First Amendment News will pause for the holidays and return after the first of the year. Merry Christmas, Happy Kwanzaa, Happy Holidays, Happy New Year . . . or whatever.
On December 1st, a federal court in Texas issued a preliminary injunction against Texas’ social media law, HB 20, for violating platforms’ First Amendment right to moderate the third-party content they disseminate. “HB 20 prohibits virtually all content moderation, the very tool that social media platforms employ to make their platforms safe, useful, and enjoyable for users,” U.S. District Court Judge Robert Pitman wrote.
The ruling was in response to the lawsuit filed on September 22nd in the U.S. District Court for the District of Texas Austin Division, by two Internet trade associations, NetChoice and Computer and Communications Industry Association (CCIA). NetChoice and CCIA represent Facebook, Twitter, YouTube, and other social media platforms.
In their complaint, NetChoice and CCIA contended that Texas’ House Bill 20 “imposes impermissible content- and viewpoint-based classifications to compel a select few platforms to publish speech and speakers that violate the platforms’ policies.”
Hours before the law was to take effect, Pitman agreed with NetChoice and CCIA, writing that HB 20’s “prohibitions on ‘censorship’ and constraints on how social media platforms disseminate content violate the First Amendment.”
- Mukund Rathi, “Victory! Federal Court Blocks Texas’ Unconstitutional Social Media Law,” Electronic Frontier Foundation (Dec. 14)
Schafer on libel
- Matthew Schafer, “Liberty, Libel, and the First Amendment,” SSRN (Dec. 1)
In recent years, the Supreme Court’s resort to originalism is personified by resort, ad infinitum, to the English jurist William Blackstone. What Blackstone thought must have been what the Founders thought. While the Court has resorted to Blackstone in many contexts, it has largely ignored him in its freedom of press cases – not least because Blackstone’s views on liberty of the press were quite narrow. In the Commentaries on the Laws of England, he says only that “liberty of the press . . . consists in laying no previous restraints upon publications.” Were this all the First Amendment protected, much of the Court’s First Amendment jurisprudence would have to be thrown out. Nevertheless, Justices Clarence Thomas and Neil Gorsuch have recently invoked Blackstone in their broadsides on one of the Court’s defining First Amendment decisions, New York Times v. Sullivan.
This article questions these Justices importation of Blackstone into First Amendment jurisprudence by posing two questions: did early legal commentators understand Blackstone’s views on liberty of the press and the common law of libel to be the American view? And, if not, why not? It demonstrates that long-standing assumptions that these commentators adopted Blackstone’s narrow views about liberty and libel are incorrect. In fact, only one of these commentators explicitly adopted his approach. This article also uncovers the reason for this rejection: a stubborn commitment to republicanism that survived even in the largely conservative legal academy of the nineteenth century. It concludes that Thomas and Gorsuch’s reliance on Blackstone is thus ahistorical and anti-revolutionary. In fact, it argues that far from drawing into doubt Sullivan, the reasoning of these commentators supports the Court’s later expansion of First Amendment protections into the law of libel.
Forthcoming scholarly article by Norton on manipulating free speech norms
- Helen L. Norton, “Manipulation and the First Amendment,” William and Mary Bill of Rights Journal (2022)
This Essay draws from ethicists’ insights to explain how manipulation can inflict harms distinct from those imposed by coercion and deception, and to explain why addressing these distinct harms is a government interest sufficiently strong to justify appropriately tailored interventions. More specifically, the key features of manipulation—as defined by ethicists Daniel Susser, Beate Roessler, and Helen Nissenbaum—are a speaker’s hidden efforts to shape listeners’ decision-making that target and exploit those listeners’ vulnerabilities in ways that the targets are not consciously aware of, and in ways that those targets could not easily become aware of if they were to try
This Essay then explores how these conceptual tools also help us understand when, how, and why government can regulate manipulation consistent with the First Amendment. In commercial settings, more specifically, it proposes that the Court should refine and extend commercial speech doctrine to add “manipulative” commercial speech to the commercial speech it currently treats as entirely unprotected by the First Amendment because it frustrates listeners’ interests. This move tracks the original theoretical justifications of the commercial speech doctrine as steeped in protecting listeners’ First Amendment interests. When we recall that false and misleading commercial speech, as well as commercial speech related to illegal activity, loses its First Amendment protection precisely because it frustrates listeners’ First Amendment interests, we can see that the same can be true of manipulative commercial speech: it frustrates listeners’ interests by seeking to covertly influence those listeners’ choices without their conscious awareness and by targeting and exploiting their vulnerabilities.
Filling this doctrinal lacuna would also help fill enforcement lacunae within current law. Even though existing consumer protection statutes frequently prohibit “unfair” as well as “deceptive” trade practices, to date enforcement efforts have focused almost entirely on allegedly deceptive practices—largely because of the conceptual difficulty in defining and describing illegally “unfair” practices. Here too ethicists give us the conceptual tools to help us understand why manipulation can be regarded as “unfair” to listeners even when it is hard to characterize as deceptive in traditional terms.
This then requires that we have a workable principle for identifying online commercial speech that is manipulative (and thus unprotected by the First Amendment). To this end, this Essay consider two possibilities: a) focusing on evidence of interfaces’ manipulative success in changing consumers’ choices; and b) targeting interfaces that display key manipulative features that increase the risk of manipulation.
Finally, this Essay briefly examines how online manipulation in the political setting poses harms of its own that may also justify appropriately tailored regulatory intervention (even while recognizing that the First Amendment barriers to such regulation are significantly greater in this context than in the commercial setting) and closes by highlighting some possible interventions that deserve further consideration.
New scholarly article on compelled disclosures in discovery
- Richard Heppner, “Appealing Compelled Disclosures in Discovery that Threaten First Amendment Rights,” Kansas Law Review (2022)
Last year, the Supreme Court held in Americans for Prosperity Foundation v. Bonta that a California anti-fraud policy compelling charities to disclose the identities of their major donors violated the First Amendment. That holding stems from the 1958 case NAACP v. Alabama where the Court held that a discovery order compelling the NAACP to disclose the names of its members violated the First Amendment right of free association because of the members’ justifiable fear of retaliation.
In the over sixty years since NAACP v. Alabama, the Court has only decided a handful of cases about how compelled disclosures of sensitive information can deter free association and thus violate the First Amendment. Those cases all concerned disclosures compelled by statutory or regulatory regimes. None addressed the context where the issue was first recognized, and where it still arises most often: civil discovery. Consequently, the doctrine was muddled before Americans for Prosperity, and that decision did little to clarify it. The three opinions that made up the fractured majority in Americans for Prosperity disagree about what standard of scrutiny applies to First Amendment associational challenges to compelled disclosures. They do not clearly explain how courts should weigh the relevant features of a compelled disclosure: the nature of the disclosed information, the governmental interest in the disclosure, the tailoring of the disclosure to the governmental interest, the degree of threatened harm to the disclosing party, and the risk of (and protections against) further disclosures. And they say nothing about how or whether this confusing analysis applies to compelled disclosures in civil discovery, the original context of NAACP v. Alabama.
This article does not offer any answers to these open questions. Instead, it offers an explanation for why they remain unanswered, a prediction about their importance going forward, and a proposal for how to get answers in the future—all based on the observation that the most common context for the compelled-disclosure issue to arise, civil discovery orders, is the least likely to give rise to an appeal. The explanation for why these questions remain unanswered after sixty years is that appellate courts have had too few opportunities to consider which compelled disclosures violate the First Amendment. The prediction is that after Americans for Prosperity more litigants will argue that compelled disclosures in civil discovery violate their First Amendment rights. And the proposal is that courts should use the collateral order doctrine to permit immediate appeals of discovery orders compelling disclosures that threaten First Amendment rights.
Forthcoming book: Niehoff & Sullivan on free speech debates
- Len Niehoff & Thomas Sullivan, “Free Speech: From Core Values to Current Debates” (Cambridge University Press, May 31, 2022)
“Niehoff and Sullivan are sure-footed and lucid guides to a legal terrain of greater scope and variety than the basic idea of free speech might suggest. The book is skillfully organized, with just the right mix of case description, historical perspective, storytelling, critique, and explanatory synthesis. It fills a need, and fills it better than I would have thought possible.”
— Vincent Blasi, Corliss Lamont Professor of Civil Liberties, Columbia Law School
Why do we protect free speech? What values does it serve? How has the Supreme Court interpreted the First Amendment? What has the Court gotten right and wrong? Why are current debates over free expression often so divisive? How can we do better? In this succinct but comprehensive and scholarly book, authors Len Niehoff and Thomas Sullivan tackle these pressing questions.
Free Speech: From Core Values to Current Debates traces the development and evolution of the free speech doctrine in the Supreme Court and explores how the Court – with varying levels of success – has applied that doctrinal framework to “hard cases” and current controversies, such as those involving hate speech, speech on the internet, speech on campus, and campaign finance regulation. This is the perfect volume for anyone – student, general reader, or scholar – looking for an accessible overview of this critical topic.
→ Len Niehoff is a Professor from Practice at the University of Michigan Law School.
→ Tom Sullivan is President Emeritus and Professor of Law and Political Science at the University of Vermont.
New book on dilemmas of free speech
- Emmett Macfarlane, ed. “Dilemmas of Free Expression,” University of Toronto Press (Nov. 2021)
Ian Rosenberg’s latest book receives star review
- “Free Speech Handbook: A Practical Framework for Understanding Our Free Speech Protections,” Publishers Weekly (Nov. 2021)
Taking a rare general-interest approach to constitutional issues that doesn’t speak down to its audience, this savvy nonfiction graphic narrative provides an excellent introduction to the little-understood theory and practice of free speech in America. Adapting his 2021 The Fight for Free Speech, Rosenberg breaks down the issue into ten concepts (e.g. prior restraint and press freedom, protections for hate speech). With art by Cavallaro (the Nico Bravo series), each offers a dramatic and intelligent analysis of the core cases and their broader real-life effects.
So to Speak Podcast interview with Orwell biographer
Who was Eric Arthur Blair, better known by his pen name “George Orwell?”
In this episode of So to Speak: The Free Speech Podcast, we explore the life and work of an author who died at the age of 46 but whose writings — namely “Animal Farm” and “1984” — still help to shape our understanding of the freedoms of speech and conscience.
Joining us for the discussion is the author of Orwell’s authorized biography, Indiana State University professor Michael Shelden. Shelden’s biography of Orwell was a finalist for the Pulitzer Prize in 1992.
- Eugene Volokh, “Magistrate Judge Expresses Concerns About DOJ’s Not Explaining How It’s Complying with Policy Related to Getting Information from News Media,” The Volokh Conspiracy (Dec. 15)
- Daniel Burnett, “89 colleges earn our lowest rating for free speech,” FIRE (Dec. 14)
- Jameel Jaffer and Scott Wilkens, “Social Media Companies Want to Co-opt the First Amendment. Courts Shouldn’t Let Them,” The New York Times (Dec. 9)
- Larry Neumeister, “Judge appoints special master in Project Veritas raids case,” Associated Press (Dec. 9)
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
- Kelly v. Animal Legal Defense Fund
- Roberson v. United States
- Edgar et al. v. Haines
- Asociación de Periodistas de Puerto Rico v. Commonwealth of Puerto Rico
- Woods v Alaska State Employee Association
- Green v. Pierce County
- John K. MacIver Institute for Public Policy, Inc., et al. v. Evers
- 303 Creative LLC v. Elenis
- Lamoureux v. Montana
- Kennedy v. Bremerton School District
- Clear Channel Outdoor, LLC v. Raymond
- Arlene’s Flowers Inc. v. Washington (petition for rehearing)
- Project Veritas Action Fund v. Rollins
- Troesch v. Chicago Teachers Union, et al.
- Fraiser v. Evans (First Amendment and qualified immunity)
- 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.