At a time when there is so much talk about the need to regulate social media (including calls by media entities themselves), the Sandra Day O’Connor College of Law at Arizona State University last month convened a conference titled “Non-Governmental Restrictions on Free Speech.” As you can see from the agenda below, the conference brought together an impressive array of scholars.
→ Papers from the conference are set to be published in a forthcoming issue of the Journal of Free Speech Law.
- Taylor Osborne, “Social Media Regulations v. The First Amendment,” First Amendment Law Review Blog (2021)
Last January the First Amendment Law Review held its annual First Amendment symposium. Presumably, many or all of the contributors (listed below) will have their remarks or papers published in the review.
- Keynote Address by FEC Commissioner, Shana M. Broussard, J.D.
Panel 1: Content Regulation and Election-Related Speech
- Moderated by Professor Mary-Rose Papandrea, J.D.
UNC School of Law, Samuel Ashe Distinguished Professor of Constitutional Law
- Professor Helen Norton, J.D.
Colorado University School of Law, University Distinguished Professor and Rothgerber Chair in Constitutional Law
- Professor Martin Redish, J.D.
Northwestern University School of Law, Louis and Harriet Ancel Professor of Law and Public Policy
- Professor Clay Calvert, J.D., Ph.D.,
University of Florida College of Journalism, Brechner Eminent Scholar in Mass Communication
Director, Marion B. Brechner First Amendment Project
- Evan Ringel, J.D., Ph.D. Candidate
UNC Hussman School of Journalism & Media
UNC Center for Information Technology and Public Life – Research Lead, Regulation of Election-Related Speech
- Professor William Marshall, J.D.
UNC School of Law, William Rand Kenan Jr. Distinguished Professor of Law
Panel 2: Regulation of Money and Transparency in Election-Related Speech
- Moderated by Professor Eric Muller, J.D.
UNC School of Law, Dan K. Moore Distinguished Professor of Law in Jurisprudence and Ethics
- Professor Richard Hasen,
UC Irvine School of Law, Chancellor’s Professor of Law and Political Science
Co-Director, Fair Elections and Free Speech Center
- Professor Ciara Torres-Spelliscy, J.D.
Stetson University, Professor of Law
- Professor Leslie Kendrick, M.Phil, D.Phil, J.D.
University of Virginia School of Law, White Burkett Miller Professor of Law and Public Affairs
Director, Center for the First Amendment
Panel 3: The Role of Online Platforms in Reducing Election Misinformation
- Moderated by Professor David Ardia, M.S., J.D., L.L.M.
UNC School of Law, Reef C. Ivey II Excellence Fund Term Professor of Law
Co-Director of the Center for Media Law and Policy
- Professor Jasmine McNealy, J.D., Ph.D.
University of Florida, Associate Professor, Department of Media Production, Management, and Technology
Associate Director, Marion B. Brechner First Amendment Project
- Professor Brenda Reddix-Smalls, J.D., L.L.M.
North Carolina Central University School of Law, Professor of Law
- Professor Robert Yablon, M.A., J.D.
University of Wisconsin School of Law, Associate Professor
Co-Director, State Democracy Research Initiative
- Professor Neema Guliani, J.D.
Legislative Counsel, American Civil Liberties Union
YouTube: Kristen Waggoner on ‘our cancel culture environment’
- “Yale Law Students Disrupt Free Speech Event Regarding Supreme Court Case,” EWTN News Nightly (March 18)
- Eugene Volokh, “Yale Law Prof. Kate Stith Confirms that the Protest of a Fed Soc Event She Moderated was Extremely Disruptive,” The Volokh Conspiracy (April 1)
New book on democracy and free speech
- Andrew T. Kenyon, “Democracy of Expression: Positive Free Speech and Law” (Cambridge University Press, 2021)
Free speech has positive dimensions of enablement and negative dimensions of non-restraint, both of which require protection for democracy to have substantial communicative legitimacy. In Democracy of Expression, Andrew Kenyon explores this need for sustained plural public speech linked with positive communicative freedom. Drawing on sources from media studies, human rights, political theory, free speech theory and case law, Kenyon shows how positive dimensions of free speech could be imagined and pursued. While recognising that democratic governments face challenges of public communication and free speech that cannot be easily solved, Kenyon argues that understanding the nature of these challenges (including the value of positive free speech) at least makes possible a democracy of expression in which society has a voice, formulates judgments, and makes effective claims of government. In this groundbreaking work, Kenyon not only reframes how we conceptualize free speech but also provides a roadmap for reform.
Forthcoming book on censorship and ‘the myth of harm’
- Sarah Cleary, “The Myth of Harm: Horror, Censorship and the Child” (Bloomsbury Academic, Dec. 29, 2022)
The horror genre has endured a long and controversial success within popular culture. Fraught with accusations pertaining to its alleged ability to harm and corrupt young people and indeed society as a whole, the genre is constantly under pressure to suppress that which has made it so popular to begin with – its ability to frighten and generate discussion about society’s darker side. Recognising the circularity of patterns in each generational manifestation of horror censorship, The Myth of Harm draws upon cases such as the Slenderman stabbing and the James Bulger murder amongst many others in order to explore the manner in which horror has been repeatedly cast as a harmful influence upon children at the expense of scrutinising other more complex social issues.
Focusing on five major controversies beginning in the 1930’s Golden Age of Horror Cinema and ending on a more contemporary note with Cyber-Gothic horror – this book identifies and considers the various myths and false hoods surrounding the genre of horror and question the very motivation behind the proliferation and dissemination of these myths as scapegoats for political and social issues, platforms for “moral entrepreneurs” and tools of hyperbolae for the news industry.
New scholarly articles on NYT v. Sullivan
- David McGowan, “A Bipartisan Case Against New York Times v. Sullivan,” Journal of Free Speech Law (2022)
- The Sullivan Story
- The Sullivan Court’s Thesis
- The Conservative Critique
- The Liberal Critique
- Assessing the Critiques
- Flaws in Defenses of the Actual Malice Rule
- Speakers Willing and Able to Use Reasonable Care
- Speakers Possibly Unable to Use Reasonable Care
- Speakers Maximizing Partisan Influence
- Harm to Public Discourse
- Tyler Valeska, “First Amendment Limitations on Public Disclosure of Protest Surveillance,” Columbia Law Review (2021)
During and after last year’s expansive Black Lives Matter protests, police departments nationwide publicly shared robust video surveillance of protestors. Much of this footage rendered individual protestors identifiable, sometimes in ways that seemed intentional. Such disclosures raise First Amendment concerns under NAACP v. Alabama ex rel. Patterson and its progeny, including the recent Americans for Prosperity v. Bonta decision. Those cases limit how the government may collect and distribute sensitive associational information. Bonta raised the First Amendment bar by adding (or clarifying) a narrow tailoring requirement to the exacting scrutiny test for associational disclosures.
This Piece argues that wholesale dumps of unedited footage likely violate the First Amendment in at least some circumstances, including those of last summer’s Black Lives Matter protests. While the Supreme Court has insulated governmental collection of protest surveillance from First Amendment challenges via its standing doctrine, public dissemination of such surveillance creates a cognizable injury that avoids standing obstacles. That injury is inflicted by governmental distribution of protest surveillance despite the public nature of protests, as protestors retain certain privacy interests in the public square. And despite the strong governmental interest in transparency surrounding police–protestor interactions, blanket dumps of footage likely fail under exacting scrutiny when they render individual peaceful protestors publicly identifiable. Threat of identification chills protestors’ speech and assembly rights by subjecting them to threats of private retaliation like adverse actions by employers and violence by extremist militias. Bonta’s narrow tailoring requirement likely requires police to avoid identifying peaceful protestors by blurring out faces before releasing (or while livestreaming) protest footage and by not zooming in surveillance cameras for extended, close-range livestreaming of individuals.
- Tyler Valeska, “A Press Clause Right to Cover Protests,” Washington University Journal of Law and Policy (2021)
As protests have become more frequent, an increasing number of journalists have been targets of harassment and violence. The long-disputed role of the First Amendment’s press clause demands attention now more than ever. This Article demonstrates how a theoretical framework for a revitalized press clause can be operationalized in a particular context: journalists covering protests. Valeska first details the normative and structural justifications for an affirmative press clause right to cover protests. He then considers two proposals for deciding whom the right would protect: first, leaving the determination of who is a journalist to officers on the protest’s ground level, with the decision being subject to a reasonableness standard; second, through a government credentialing process. Valeska concludes by summarizing what the right would accomplish. He argues for media exemptions from related curfew and equipment ordinances, heightened protections against arrest and detainment, and special access to spaces cleared by dispersal orders. This Article demonstrates that we are in a time of intensifying social unrest and that critical prophylactic steps must be taken to shore up protections for one of our most important democratic institutions.
- Brandon Hasbrouck, “Who Can Protect Black Protest?,” University of Pennsylvania Law Review Online (2022)
Police violence both as the cause of and response to the racial justice protests following George Floyd’s murder called fresh attention to the need for legal remedies to hold police officers accountable. In addition to the well-publicized issue of qualified immunity, the differential regimes for asserting civil rights claims against state and federal agents for constitutional rights violations create a further barrier to relief. Courts have only recognized damages as a remedy for such abuses in limited contexts against federal employees under the Bivens framework. The history of Black protest movements reveals the violent responses police have to such challenges to the white supremacist social order. The use of federal officers in that violent response during the summer of 2020 makes the urgent need for Bivens relief for the victims of police violence clear. Fortunately, the history of the First and Fourth Amendments reveals a basis for extending Bivens relief under both Amendments in the context of the violent policing of Black protest. But will the courts or Congress extend that protection?
Forthcoming article on professional schools and the First Amendment
- Kellin Tompkins, “Stepping out of the Professional Speech Minefield: How Professional Schools Violate the First Amendment through Student Conduct Policies,” Albany Government Law Review (2022)
Universities have discarded their role as institutions dedicated to the marketplace of ideas and the freedom of expression. The desire to shield students from ideas that make them uncomfortable has unfortunately spread to professional programs, as administrators have constructed student conduct policies that limit political speech. Although recent federal circuit decisions have permitted professional programs more discretion to punish speech than undergraduate or graduate students, courts have only applied those decisions to situations where student conduct clearly violates established professional standards.
While professional programs possess a legitimate pedagogical purpose in preparing its students to enter a licensed profession, that purpose is not absolute and is limited by the First Amendment when applied to political speech. Courts should find that professional programs violate its students’ First Amendment rights when student conduct policies punish political speech that does not violate any written code of conduct or established professional standard.
When a university punishes a professional student’s political speech without reference to existing professional standards, student discipline may become a pretext for discrimination against political beliefs. Accordingly, courts should hold that an administrator’s application of a student conduct policy against political speech is void for vagueness and overbreadth and risks viewpoint discrimination. When students are unaware of what political speech their universities may sanction, they may avoid engaging in frank discussions of politics over the fear of discipline. Professional students are the emerging leaders of our country, and their program administrations should not chill them from freely expressing their opinions on matters of public concern as the price of admission into the program.
This article will take a novel approach to reject limitations on professional student political speech, using the Tenth Circuit’s analysis in Hunt v. Board of Regents of the University of New Mexico to demonstrate the threat of students’ First Amendment rights.
La Noue on compelled speech & land acknowledgment statements
Free speech controversies are often focused on acts of censorship such as speech cancellations, speech codes, safe spaces, and bias response teams. There is another type of free speech issue, however, that receives much less attention: speech that is not censored but compelled. Increasing numbers of campuses have adopted political statements that employees and prospective employees are expected to affirm publicly. If they do not, they may be excluded from employment consideration. If they are already hired, they may be subject to discipline or even termination. Litigation may be necessary to challenge and end campus compelled speech.
Land Acknowledgement Statements
One controversy is over “Land Acknowledgement” statements, which faculty have recently challenged. Sprouting across the county, these declarations urge campus residents to recognize the indigenous peoples who may once have resided in the local area and to honor them and their current lineage. That may be harmless virtue signaling, since campuses have no intention of returning the land to a tribe or paying reparations.
The context of the “Acknowledgement,” however, is highly political, suggesting a campus and even the United States as a country are on “occupied land” and, therefore, probably illegitimate. For example, the Northwestern University statement proclaims “Land acknowledgments do not exist in the past tense, or historical contexts: colonialism is a current ongoing process….” The Guide to Indigenous Land Acknowledgement urges campuses not to “sugarcoat the past. Use terms like genocide, ethnic cleansing, stolen land and forced removal to reflect actions taken by colonizers.”
- “University of Washington: Professor created ‘toxic environment’ by deviating from university-approved language about Native American land,” FIRE (Jan. 11, 2022)
- Greg Gonzales, “AAUP sides with FIRE, opposes legislation which adopts overly broad antisemitism definition as a threat to academic freedom and freedom of speech,” FIRE (April 5)
- “Judge Fines Alex Jones for Failing to Appear for a Deposition in Sandy Hook Defamation Suit,” First Amendment Watch (April 4)
- Eugene Volokh, “Nevada S. Ct. Rejects Libel Plaintiff’s Attempt to Dismiss a Case While an Anti-SLAPP Motion is Pending,” The Volokh Conspiracy (April 4)
- Charles Russo, “Supreme Court is about to decide whether a public school football coach can pray on the field,” Associated Press / The Free Speech Center (April 1)
- Sydney Welch, “Banning Reality: Attempts to Restrict Books with Anti-Racist and Anti-Cop Views in the Wake of 2020 Protests,” First Amendment Law Review Blog (2021)
2021-2022 SCOTUS term: Free expression & related cases
- City of Austin, Texas v. Reagan National Advertising of Texas Inc.
- Federal Election Commission v. Ted Cruz for Senate
- Shurtleff v. Boston
- Kennedy v. Bremerton School District
- 303 Creative LLC v. Elenis
- Smith v. United States
- Lundergan v. United States
- Kelly v. Animal Legal Defense Fund
- Edgar et al. v. Haines
- Clear Channel Outdoor, LLC v. Raymond
- American Society of Journalists v. Bonta
- Arlene’s Flowers Inc. v. Washington (petition for rehearing)
- Green v. Pierce County
- Burns v. Town of Palm Beach
- Gilbert v. United States
- Roberson v. United States
- Woods v. Alaska State Employee Association
- Lamoureux v. Montana
- Asociación de Periodistas de Puerto Rico v. Commonwealth of Puerto Rico
- John K. MacIver Institute for Public Policy, Inc., et al. v. Evers
- Project Veritas Action Fund v. Rollins
- Troesch v. Chicago Teachers Union, et al.
- Dignity Health v. Minton
- Pace v. Baker-White
- Tah v. Global Witness Publishing, Inc.
- American Civil Liberties Union v. U.S.
- Frasier v. Evans (First Amendment and qualified immunity)
- Louisiana v. Hill
- Baisley v. International Association of Machinists and Aerospace Worker
- Crowe v. Oregon State Bar
- Boardman v. Inslee
- Pasadena Republican Club v. Western Justice Center, et al.