He is the new Socrates of a new academy, the University of Austin (UATX). While the old Socrates did not preside over an academy, he did attack the Greek Gods (impiety) and corrupt the youth of Athens. Or so he was charged, and then convicted, by the people of Athens. If Panayiotis (“Pano”) Kanelos, UATX’s inaugural president, follows in Socrates’ footsteps, the man and his mission may well present a clear and present danger to the culture that today is so prevalent in universities and society at large.
At war with modernity?
Earlier this year, Dr. Kanelos served as President of St. John’s College. That college is grounded on and prides itself on reading the “Great Books” — e.g., reading the likes of Archimedes, Aristophanes, Sophocles, Plato, the Hebrew Bible, the New Testament, Copernicus, Maimonides, Shakespeare, Stravinsky, Simone de Beauvoir, Emily Dickenson, Frederick Douglas, W.E. Du Bois, Sigmund Freud, William Faulkner, Edmund Husserl, Karl Marx, Friedrich Nietzsche, and Supreme Court opinions (unedited).
In so many ways, the educational program at St. John’s College (it has tutors, not professors) is at war with modernity and the ethos that propels it. In that sense, it can be viewed as either very conservative, because it preserves the values of the past, or very radical because it rejects many of the cultural norms of the present. According to a profile in The New York Times:
Dr. Kanelos, who describes himself as a Shakespeare scholar and “old soul,” said he was pleased by the uproar over his announcement. “I’m just delighted that people are paying this much attention to higher education,” he said.
Universities devoted to the unfettered pursuit of truth are the cornerstone of a free and ﬂourishing democratic society.
For universities to serve their purpose, they must be fully committed to freedom of inquiry, freedom of conscience, and civil discourse.
In order to maintain these principles, UATX will be ﬁercely independent—ﬁnancially, intellectually, and politically.
Our Forbidden Courses summer program invites top students from other universities to join us for a spirited discussion about the most provocative questions that often lead to censorship or self-censorship in many universities. Students will become proficient and comfortable with productive disagreement. Instructors will range from top professors to accomplished business leaders, journalists, and artists.
→ Kanelos on “Restoring Civil Discourse in Higher Education,” Heterodox Academy (Nov. 9)
“Liberal education is predicated on a world that has a certain metaphysical understanding of human beings.”
To speak generally: liberal education is grounded in a particular kind of notion of human freedom and agency. The idea that if human beings free themselves from certain constraints in the pursuit of truth, then they will have the opportunity to move closer to something called truth. Not necessarily get there, but we’re working on it. It also has as a precondition the idea that human beings are, to a large extent, free. We’re free, we have an agency. And with that agency comes moral responsibility. The choices we make are our choices, and the choices we make, for better or worse, we bear moral responsibility for. The liberal education is predicated on a world that has a certain metaphysical understanding of human beings: the idea that the best way for human beings to seek flourishing is to do so in an environment that provides freedom of thought and freedom of speech. I think we are seeing, in higher education itself, challenges to that very notion.
An environment that is rooted in freedom, one in which intellectual exploration is the centerpiece, depends upon the ability of a community to allow one another to make mistakes, to explore ideas that maybe aren’t fruitful, to sometimes say things that are challenging or might offend the sensibilities of others—and then to forgive each other when we do make mistakes and to continue to move on. I think the conditions for liberal education in general are becoming harder to maintain in our culture.
→ Related: Leo Strauss, “What Is Liberal Education?” (June 6, 1959)
More on the man and his mission
- Nico Perrino interviews Pano Kanelos on the So to Speak Podcast (Nov. 9)
- Kanelos holds a Ph.D. from the Committee on Social Thought at the University of Chicago, an M.A. in political philosophy and literature from the University Professors Program at Boston University, and a B.A. in English from Northwestern University.
- Pano Kanelos, “We Can’t Wait for Universities to Fix Themselves. So We’re Starting a New One,” Common Sense with Bari Weiss (Nov. 8)
- Anemona Hartocollis, “They Say Colleges Are Censorious. So They Are Starting a New One,” The New York Times (Nov. 8)
- City of Austin, Texas v. Reagan National Advertising of Texas Inc. (Issue: “Whether the Austin city code’s distinction between on-premise signs, which may be digitized, and off-premise signs, which may not, is a facially unconstitutional content-based regulation under Reed v. Town of Gilbert.”)
- Amy Howe, “In First Amendment challenge to city billboard rules, justices will be sign language interpreters,” SCOTUSblog (Nov. 9)
Cert denied: ACLU’s challenge to secrecy in FISA courts
The Supreme Court recently denied cert. in American Civil Liberties Union v. United States. The issues in the case were: (1) “Whether the Foreign Intelligence Surveillance Court (FISC), like other Article III courts, has jurisdiction to consider a motion asserting that the First Amendment provides a qualified public right of access to the court’s significant opinions and whether the Foreign Intelligence Surveillance Court of Review has jurisdiction to consider an appeal from the denial of such a motion”; and (2) “Whether the First Amendment provides a qualified right of public access to the FISC’s significant opinions.”
Two Justices (Neil Gorsuch and Sonia Sotomayor) voted to hear the case.
The American Civil Liberties Union, the Knight First Amendment Institute at Columbia University, the Media Freedom, and Information Access Clinic at Yale Law School, and former Solicitor General Theodore B. Olson filed the petition on behalf of the ACLU, arguing that the First Amendment requires the FISC to make its legal opinions public, with only those redactions necessary to serve compelling government interests.
As reported by David Hudson over at The Free Speech Center:
This case began with a motion filed by the ACLU before the FISC in October 2016, asking for “opinions and orders containing novel or significant interpretations of law issued between September 11, 2001, and the passage of the USA FREEDOM Act.” Both the FISC and FISCR courts denied this request.
The ACLU then filed a petition for writ of certiorari to the U.S. Supreme Court. In its petition, the ACLU argued that “a qualified First Amendment right of access applies to significant FISC opinions.”
The Reporters Committee for Freedom of the Press, along with more than 30 other press entities, filed an amicus brief in support of the ACLU. They argued in their brief that “public access to these opinions and orders is an essential safeguard against executive overreach.”
said Patrick Toomey, senior staff attorney at the ACLU’s National Security Project. “Our privacy rights rise or fall with the court’s decisions, which increasingly apply outdated laws to the new technologies we rely on every day. These opinions are the law and they should be public, not kept hidden from Americans whose rights hang in the balance.”“By turning away this case, the Supreme Court has failed to bring badly needed transparency to the surveillance court and to rulings that impact millions of Americans. Secret court decisions are corrosive in a democracy, especially when they so often hand the government the power to peer into our digital lives,”
New defamation suits filed against Trump, Giuliani, et al.
- “Pennsylvania Voting Official Sues Trump, Giuliani, and Others for Defamation,” First Amendment Watch (Nov. 5)
James Savage, a supervisor of a voting machine warehouse in the Philadelphia suburbs is suing Donald Trump, his two former attorneys Rudy Giuliani and Jenna Ellis, and two GOP poll watchers for defamation and civil conspiracy.
The lawsuit, filed in Philadelphia county court, alleges that Gregory Stenstrom and Leah Hoopes, the two GOP poll watchers, falsely claimed that Savage altered the vote tabulation of the 2020 presidential election and gave Joe Biden 50,000 additional votes.
The suit alleges that the claims made by Stenstrom and Hoopes were repeated by Trump, Giuliani, Ellis and others, on the national stage, and their “outrageously defamatory claims and/or insinuations against Mr. Savage, subjecting him to threats of physical violence,” caused Savage to have two heart attacks.
The lawsuits note that none of the plaintiffs referred to Savage by name, but says “anyone who heard or saw these defamatory statements or insinuations would have known that they were referring to Mr. Savage, because he was the only Chief Custodian/Voting Machine Warehouse Supervisor position in Delaware County, so it was obvious there was only one person who was being accused of election fraud by all of the Defendants herein.”
Palmer & Zick: Firearms are having a documented chilling effect on free speech
- Diana Palmer & Timothy Zick, “The Second Amendment Has Become a Threat to the First,” The Atlantic (Oct. 27)
Many Americans fervently believe that the Second Amendment protects their right to bear arms everywhere, including at public protests. Many Americans also believe that the First Amendment protects their right to speak freely and participate in political protest. What most people do not realize is that the Second Amendment has become, in recent years, a threat to the First Amendment. People cannot freely exercise their speech rights when they fear for their lives.
This is not hyperbole. Since January 2020, millions of Americans have assembled in public places to protest police brutality, systemic racism, and coronavirus protocols, among other things. A significant number of those protesters were confronted by counterprotesters visibly bearing firearms. In some of these cases, violence erupted. According to a new study by Everytown for Gun Safety and the Armed Conflict Location & Event Data Project (ACLED), one in six armed protests that took place from January 2020 through June 2021 turned violent or destructive, and one in 62 turned deadly.
This kind of data fills a void in ongoing debates about the compatibility of free speech and firearms at protest events. For example, is the phenomenon of armed protests new? Is it frequent? The open display of firearms at public protests, including long rifles and what are sometimes called “assault-style rifles,” is a relatively new phenomenon. Although many states allow firearms in public places, until recently few Americans have openly toted firearms to political demonstrations. The Everytown/ACLED study examined thousands of protests, showing a marked uptick in protests at which people were visibly armed following the police murder of George Floyd. It found that at least 560 events involved an armed protester or counterprotester. Loose state firearms laws are part of the explanation for this phenomenon. The incidence of armed protests was three times higher in states with expansive open-carry laws, the study noted.
Off-Broadway: Ronnie Marmo, ‘I’m not a comedian, I’m Lenny Bruce’
I’M NOT A COMEDIAN…I’M LENNY BRUCE ran for 125 performances in Los Angeles and for 9 months Off-Broadway to massive media attention, critical acclaim, and dozen upon dozens of rave reviews.
An LA Times’s Critic’s Choice, this look at the life and battles of the most groundbreaking and impactful comedian of all time, Lenny Bruce, not only draws from his many court battles championing the freedom of speech but also includes many of Bruce’s original comedic bits and insights from his own writings, masterfully woven together by the show’s creator and star, Ronnie Marmo and expertly directed by Tony Award-winning stage actor, film and television star, Joe Mantegna.
→ Now in Chicago
→Collins & Skover, “The Trials of Lenny Bruce: The Fall & Rise of an American Icon” (Kindle edition)
Coming soon: Ross on officials lying and the First Amendment
- Catherine J. Ross, “A Right to Lie?: Presidents, Other Liars, and the First Amendment” (University of Pennsylvania Press, Nov. 30)
Catherine J. Ross addresses the urgent issue of whether the nation’s highest officers, including the president, have a right to lie under the Speech Clause, no matter what damage their falsehoods cause. Does freedom of expression protect even factual falsehoods? If so, are lies by candidates and public officials protected? And is there a constitutional path, without violating the First Amendment, to stop a president whose persistent lies endanger our lives and our democracy?In A Right to Lie?, legal scholar
Perhaps counter-intuitively, the general answer to each question is “yes.” Drawing from dramatic court cases about defamers, proponents of birtherism, braggarts, and office holders, Ross reveals the almost insurmountable constitutional and practical obstacles to legal efforts to rein in public deception. She explains the rules that govern the treatment of lies, while also demonstrating the incalculable damage presidential mendacity may lead to, as revealed in President Trump’s lies about the COVID-19 pandemic and the legitimacy of the 2020 election.
Falsehoods have been at issue in every presidential impeachment proceeding from Nixon to Trump. But, until now, no one has analyzed why public lies might be impeachable offenses, and whether the First Amendment would provide a defense. Noting that speech by public employees does not receive the same First Amendment protection as the speech of ordinary citizens, Ross proposes the constitutionally viable solution of treating presidents as public employees who work for the people. Charged with oversight of the Executive, Congress may—and should—put future presidents on notice that material lies to the public on substantial matters will be deemed a “high crime and misdemeanor” subject to censure and even impeachment. A Right to Lie? explains how this approach could work if the political will were in place.
→ Upcoming event at Cato Institute: Nov. 16, 12:00-1:30 PM EST (click here to register)
→ Interview: Andrea Mitchell Center for the Study of Democracy (YouTube)
- Richard L. Hasen, “Cheap Speech: How Disinformation Poisons Our Politics―and How to Cure It” (Yale University Press, March 8, 2022)
Forthcoming book: Moral narratives that prescribe the boundaries of free speech
- When Freedom Speaks: The Boundaries and the Boundlessness of Our First Amendment Right” (Brandeis University Press, May 20, 2022) Lynn Greenky, “
When Freedom Speaks chronicles the stories behind our First Amendment right to speak our minds. Lynn Levine Greenky’s background as a lawyer, rhetorician, and teacher gives her a unique perspective on the protection we have from laws that abridge our right to the freedom of speech. Rhetoricians focus on language and how it influences perception and moves people to action.
Powerfully employing that rhetorical approach, this book explores concepts related to free speech as moral narratives that proscribe the boundaries of our constitutionally protected right. Using the characters and drama embedded in legal cases that elucidate First Amendment principles, When Freedom Speaks makes the concepts easier to understand and clearly applicable to our lives. With a wide range of examples and accessible language, this book is the perfect overview of the First Amendment.
New book: A philosophical look at free speech and self-restraint
- Freedom of Expression as Self-Restraint” (Oxford University Press, (2021) Matthew H. Kramer, “
Freedom of Expression as Self-Restraint provides a novel justificatory foundation for the principle of freedom of expression. As the book argues, such a principle is absolute in that it is exceptionless; it imposes general duties that are binding always and everywhere on every system of governance.
In addition to injecting a new level of philosophical sophistication into the debates over freedom of expression, the book ties the principle to an ideal of governmental self-restraint, and it shows how that ideal connects to the paramount moral responsibility of every system of governance: the responsibility to bring about the political, social, and economic conditions under which every member of society can be warranted in harboring an ample sense of self-respect. In short, compliance by a system of governance with the principle of freedom of expression is integral to the fulfillment of that paramount responsibility.
Matthew H. Kramer is Professor of Legal and Political Philosophy at the University of Cambridge and is a Fellow of Churchill College, Cambridge. He is the Director of the Cambridge Forum for Legal & Political Philosophy, and he has been a Fellow of the British Academy since 2014.
New book: Byrum on the European right to be forgotten
- Kristie Byrum, “The European Right to Be Forgotten: The First Amendment Enemy” (Lexington Books, 2021)
The European Right to be Forgotten: The First Amendment Enemy asserts that the right to be forgotten provision of the European General Data Protection Regulation threatens the free flow of information within a global society. In a thoughtful explanation of how the regulation functions as an enemy of the United States’ First Amendment, the book addresses the marketplace of ideas, communication in democracy, the specter of government intervention, censorship, and the distortion of history in the Right to be Forgotten environment.
While RTBF advocates point to the regulation as a privacy victory, the author explains how the erasure of data from search engine results foretells negative consequences for social, political, and economic environments. In a rallying cry to preserve freedom of information in the technology-driven era, the author presents “The Free Speech Manifesto for the Digital Age: Seven Tenets to Preserve Information Flow in Democracy.” This book offers a unique communications-based perspective on the Right to be Forgotten and precisely documents why a corresponding regulation in the United States conflicts with constitutional protections.
Erica Goldberg: ‘Our current First Amendment model creates pathologies in discourse’
- First Amendment Contradictions and Pathologies in Discourse,” Arizona Law Review (forthcoming) Erica Goldberg, “
A robust, principled application of the First Amendment produces contradictions that undermine the very justifications for free speech protections. Strong free speech protections are justified by the idea that rational, informed deliberation leads to peaceful decision-making, yet our marketplace of ideas is crowded with lies, reductive narratives, emotional appeals, and speech that leads to violence.
Our current First Amendment model creates pathologies in discourse that are exacerbated in our modern age of easy communication. The reason for these pathologies lies in the relationship between reason and emotion, both in human psychology and in First Amendment doctrine. But the solution to these speech pathologies is not to dramatically alter First Amendment doctrine, which, despite claims that the First Amendment is ill-equipped to deal with modern problems, is needed now more than ever.
New scholarly article: Anonymous expression in an age of facial recognition
- Apratim Vidyarthi, “The Public Square Has Eyes (or Cameras): Anonymous Speech Under the First and Fourth Amendment in the Age of Facial Recognition,” Fordham Intellectual Property, Media & Entertainment Law Journal (2021)
Facial recognition technology (FRT) and systems, once a futuristic fantasy, are more prevalent than ever, and show no signs of stopping. And while this technology has its upsides, it brings to mind the notion of an omnipresent being that can see us and track us at any time. FRTs encroach on the First Amendment’s right to anonymous speech by revealing the identity of speakers and chilling their speech. Yet First Amendment doctrine does not provide much solace, since the right to anonymous speech regulates the government’s ability to force disclosure of a speaker’s identity, rather than prevent it from collecting publicly available facial data. The right to anonymous speech also clashes with private actors’ right to collect and disseminate information, which provides an avenue for private actors to destroy anonymity. And private actors’ First Amendment rights allow them to collect and develop FRT that they can use in private spaces.
In addition to the inadequacy of the right to anonymous speech, litigating FRTs’ impacts on the right to anonymous speech is likely to face significant barriers in court. Specifically, plaintiffs will find it hard to show that they have been affected by these systems and that their speech has been chilled, giving them no standing. And courts’ deference to issues of crime control and national security might justify an encroachment on the right to anonymous speech. Finally, the right to collect and disseminate information by private parties is a serious barrier to challenging privately operated FRTs, and provides the government an additional avenue for gathering facial data and tracking individuals. A better approach to remedying the issues caused by FRT is prophylactic legislation. This legislation can regulate the government’s use of FRT, private actors’ implementation of FRT, and the very creation of FRTs themselves.
- Paul Egan, “State of Michigan employees told how to react to First Amendment auditors,” Detroit Free Press (Nov. 9)
- Eugene Volokh, “Theater Prof Facing Possible Firing for Not Being Sufficiently Outraged,” The Volokh Conspiracy (Nov. 9)
- Lindsie Rank & Adam Goldstein, “Who’s protected by a free student press? Part II: Viewpoint diversity and neutrality in the newsroom,” FIRE (Nov. 8)
- David L. Hudson, Jr., “Wash. appeals court upholds cyberstalking conviction,” The Free Speech Center (Nov. 8)
- Maureen Breslin, “Critical race theory bans threaten First Amendment guarantees, free speech group says,” The Hill (Nov. 8)
- Michael Wines, “University of Florida Reverses Course to Allow Professors to Testify Against State,” The New York Times (Nov. 5)
- Michael Hurley, “Congressional free speech resolution highlights FIRE research,” FIRE (Nov. 5)
- Michael Powell, “M.I.T.’s Choice of Lecturer Ignited Criticism. So Did Its Decision to Cancel,” The New York Times (Oct. 20)
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
- Green v. Pierce County
- John K. MacIver Institute for Public Policy, Inc., et al. v. Evers
- Arlene’s Flowers Inc. v. Washington (petition for rehearing)
- 303 Creative LLC v. Elenis
- Lamoureux v. Montana
- Kennedy v. Bremerton School District
- Clear Channel Outdoor, LLC v. Raymond
- Project Veritas Action Fund v. Rollins
- 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