Last week Rowman and Littlefield released Collins & Skover’s The People v. Ferlinghetti: The Fight to Publish Allen Ginsberg’s Howl (hard cover: $30 with photos). Here is the abstract of our latest book:
Lawrence Ferlinghetti’s name does not appear in any First Amendment treatise or casebook. And yet when the best-selling poet and proprietor of City Lights Books was indicted under California law for publishing and selling Allen Ginsberg’s poem, Howl, Ferglinghetti buttressed the tradition of dissident expression and ended an era when minds were still closed, candid literature still taboo, and when selling banned books was considered a crime.
The People v. Ferlinghetti is the story of a rebellious poet, a revolutionary poem, an intrepid book publisher, and a bookseller unintimidated by federal or local officials. There is much color in that story: the bizarre twists of the trial, the swagger of the lead lawyer, the savvy of the young ACLU lawyer, and the surprise verdict of the Sunday school teacher who presided as judge. With a novelist’s flair, noted free speech authorities, Ronald K. L. Collins and David Skover tell the true story of an American maverick who refused to play it safe and who in the process gave staying power to freedom of the press in America. The People v. Ferlinghetti will be of interest to anyone interested [in] the history of free speech in America and the history of the Beat poets.
- “Lawrence Ferlinghetti is a too little recognized one-hundred year old First Amendment hero, a poet, painter, bookseller and book publisher whose devotion to freedom of expression has been boundless. In this splendid book about Ferlinghetti, Collins and Skover combine a mastery of narrative with profound insight in a manner that inspires us all to recommit ourselves to the uniquely American experiment in free-speech freedom.” (Floyd Abrams, Senior Counsel, Cahill Gordon & Reindel)
- “When it comes to First Amendment scholarship and storytelling, Collins and Skover are in a league of their own. With verve and vision, their engaging free speech narratives capture what has often been overlooked. That their latest work should focus on Lawrence Ferlinghetti (that rebel poet and publisher) is no surprise. His story lends itself perfectly to the kind of First Amendment history that sorely needs to be retold with historical accuracy, jurisprudential insight, and literary élan — the very kind of undertaking Collins and Skover have perfected.” (Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law)
- “A riveting and rollicking account of a mad effort to prosecute a poem — and its publisher and Bookseller. Lawrence Ferlinghetti’s bold defense of freedom of the press is a remarkable story, told here in the poetic spirit of its protagonists.” (David Cole, National Legal Director, American Civil Liberties Union)
- Collins & Skover, Lawrence Ferlinghetti, American Maverick, Publishers Weekly (March 8, 2019)
- FAN 42: Tribute to Al Bendich (1929-2015) — the ACLU lawyer who made the difference in the HOWL & Lenny Bruce cases (January 7, 2015)
- City Lights Bookstore, San Francisco, Tuesday, March 26th at 7 pm
- Flying Dog Brewery, Frederick, MD, Sunday, April 14th at 3:00 – 5:00 pm
Headline: Rep. Devin Nunes Sues Twitter in Defamation Action
- Quint Forgey, Rep. Devin Nunes suing Twitter for $250 million, Politico (March 18, 2019)
Rep. Devin Nunes (R-Calif.) has sued Twitter and three of its users for $250 million in damages, alleging that he was defamed and that the social media juggernaut engages in the “shadow-banning” of conservative opinions and selectively enforces its terms of service to benefit opponents of the Republican Party.
Nunes also claims in the 40-page lawsuit, dated Monday and filed in the Virginia Circuit Court in Henrico County on Tuesday, that Twitter sought to influence his 2018 reelection race and interfere with his investigation into Hillary Clinton’s presidential campaign and Russian involvement in the 2016 elections. Nunes oversaw that inquiry as chairman of the House Intelligence Committee — a role he held until Democrats officially retook the House in January.
9th Cir. Rejects Student’s First Amendment Claim RE: Off-Campus Private Journal “Hit List” Entry
- McNeil v. Sherwood School District 88 J (9th Cir., 2019) (per curiam) (“An Oregon student has lost out on a First Amendment challenge to his one-year expulsion from school over a private journal entry that threatened violence to fellow students and a former employee at his high school. . . .” Source here)
ACLU, Knight First Amendment Institute, & Reporters Committee File Amicus Brief in DNC v. Russian Federation
[W]hether an act of publication that would otherwise be protected by the First Amendment loses that protection simply because a source acquired the published information unlawfully.
The brief explains that the Supreme Court has recognized broad First Amendment protection for the publication of information of public concern and that it has extended that protection even to the publication of information acquired unlawfully in the first instance, so long as the publishing party was “not involved in the initial illegality.”
Adler: “SCOTUS Still Won’t Allow TV Cameras — But What About Same-Day Audio?”
- Jonathan H. Adler, SCOTUS Still Won’t Allow TV Cameras — But What About Same-Day Audio?, The Volokh Conspiracy (March 15, 2019)
Laura Weinrib to Lecture on the “Weaponization” of the First Amendment
From the University of Colorado Boulder’s Center for Western Civilization, Thought & Policy:
The Center for Western Civilization, Thought & Policy will host law professor Laura Weinrib for an event on Wed. March 20. Weinrib’s lecture “The First Weaponization of the First Amendment,” will discuss how the first amendment first became “weaponized” in the 1930s and how that has affected constitutional rights today. She is speaking as part of the Western Civ Dialogue Series.
Weinrib’s lecture will explain how in the 30s, radical labor activists first weaponized the first amendment. She argues that the unusual coalition between the activists and business leaders helped to make judicial enforcement of free speech a central feature of American constitutional democracy. Weinrib will explain how this forgotten bargain backfired and how it has implicated the contest over constitutional rights in the present day.
Date: March 20, 2019
Location: Hale Science, room 270, beginning at 5:30 pm. The discussion will be followed by a Q&A session and a small reception.
Register: via CU Events Calendar. Students, faculty, and members of the public are encouraged to attend the lecture.
Preempting Common Law: State Torts, Other Civil Actions & the First Amendment
- Jeff Gordon, Silencing State Courts, William & Mary Bill of Rights Journal (2018). Abstract:
In state courts across the Nation, an absolutist conception of the First Amendment is preempting common law speech torts. From intentional infliction of emotional distress and intrusion upon seclusion, to intentional interference with contractual relations and negligent infliction of emotional distress, state courts are dismissing speech tort claims on the pleadings because of the broad First Amendment defense recognized by Snyder v. Phelps in 2011. This Article argues, contrary to the scholarly consensus, that Snyder was a categorical departure from the methodology adopted by New York Times Co. v. Sullivan, the landmark 1964 case that first applied the First Amendment against state common law. Sullivan, on the one hand, was a classical common law decision, taking the internal point of view with respect to state common law. Snyder, on the other, was only concerned with the existence of protected speech, an issue for which state common law was irrelevant. This Article contends that Snyder’s absolutism has negative systemic consequences for judicial federalism: courts are unnecessarily prevented from judging certain conduct right or wrong under the local standards of state tort law, even if the First Amendment ultimately immunizes a defendant from liability. Sullivan’s methodology is better than Snyder’s because it embraced cooperative judicial federalism. Sullivan has underwritten fifty years of productive state-federal judicial dialogue; in just seven years, Snyder has censored every significant opportunity for cross-systemic judicial conversation.
Bollinger & Stone: The Free Speech Century
- BOOK TV: Bollinger & Stone The Free Speech Century (video)
- Lee C. Bollinger & Geoffrey R. Stone: The Free Speech Century, Carnegie Council (video)
- New Book Examines Past, Present and Future of Free Speech in U.S, WTTW (video)
- Stepehen Rohde, The Hundred Years’ War Over Free Speech, LA Review of Books
- How the First Amendment Came to Life, Columbia Law School
In Case You Missed It: Yoo & Phillips on Free Speech
- John Yoo & James C. Phillips, ‘Free Speech’ Means Just That, National Review (Dec. 31, 2018)
→ See also: James R. Stoner, The Free Speech Debate, Claremont Review of Books (Feb. 8, 2018)
Grants Available for Campus First Amendment PR Campaigns
Brian Buchanan writing in First Amendment Encyclopedia:
Now colleges and universities can receive grants to help public relations and communications classes design public relations campaigns that promote understanding of the First Amendment.
A new project of 1 for All and the Free Speech Center at Middle Tennessee State University, the program offers $2,000 grants to support college public relations and strategic communications professors who wish to give their students hands-on PR campaign experience while building understanding of the First Amendment.
“The client is the First Amendment and democracy the beneficiary,” said Ken Paulson, founder of 1 for All and dean of the Middle Tennessee State University College of Media and Entertainment. “With support from these grants, students can design and carry out a campaign that engages their campus on the importance of our First Amendment freedoms.
“This effort is purely nonpartisan and educational,” said Paulson. “We just want to encourage your people to reflect on the importance of free speech and the value of actually listening to a wide range of ideas.”
Professors or student PR organizations can apply for the grants simply by sending an email to email@example.com and making the request. A confirmation will come within 48 hours. Classes will have until Dec. 31, 2019, to spend the funds.
→ Go here for more information.
Samuel Chamberlain for Fox News: “Shepard Smith Honored with Leonard Zeidenberg Award for Protecting First Amendment Freedoms”
Fox News’ Shepard Smith was honored on Wednesday night at the Radio Television Digital News Foundation’s 29th annual First Amendment Awards dinner in Washington, D.C., where he received the Leonard Zeidenberg First Amendment Award.
Smith, the chief news anchor and managing editor for the network’s breaking news division, said he was ‘humbled and thankful’ to receive the award, which previously was given to broadcasting legends David Brinkley, John Chancellor, Mike Wallace and Walter Cronkite.
‘This award I share with my team here [in Washington] and back in New York, who produced and edited and copy-edited and checked again, as we do every single day, our newscast,” Smith, the anchor of “Shepard Smith Reporting,” said. “… They really are the backbone of what we do because they work so hard to get everything exactly right.”
Forthcoming Book on “Weaponizing the First Amendment”
- William Bennett Turner, Free Speech for Some: How the Supreme Court is Weaponizing the First Amendment to Empower Corporations and the Religious Right (June 11, 2019)
Forthcoming Book on Campus Speech
- Miachael S. Roth, Safe Enough Spaces: A Pragmatist’s Approach to Inclusion, Free Speech, and Political Correctness on College Campuses (Aug. 20, 2019)
Tim Wu: “Is the First Amendment Obsolete?”
- Tim Wu, Is the First Amendment Obsolete?, Michigan Law Review (2018)
New Scholarly Articles
- Elizabeth Aronson, The First Amendment and Regulatory Responses to Workplace Sexual Misconduct: Clarifying the Treatment of Compelled Disclosure Regimes, New York University Law Review (2018)
- Clay Calvert, Beyond Headlines & Holdings: Exploring Some Less Obvious Ramifications of the Supreme Court’s 2017 Free-Speech Rulings, William & Mary Bill of Rights Journal (2018)
- Brian Murchison, The Visibility Value of the First Amendment, William & Mary Bill of Rights Journal (2018)
- Student Note, Commonwealth v. Knox: True Threat Doctrine — Pennsylvania Supreme Court Finds Rap Song a True Threat, Harvard Law Review (2018)
- Abby K. Wood & Ann M. Ravel, Fool Me Once: Regulating “Fake News” and Other Online Advertising, Southern California Law Review (2018)
- Scott Skinner-Thompson, The First Queer Right, Michigan Law Review (2018) (review of The First Amendment & LGBT Equality)
Podcast Interview: NYT Counsel on Press Freedom in Trump Era
- Terry Gross, Times Deputy Counsel on Fighting For Press Freedom In The Trump Era, NPR (March 12, 2019)
Podcast: “The Great Firewall of China: How to Build and Control an Alternative Version of the Internet”
- Maury Shenk interviews James Griffiths, a journalist based in Hong Kong and the author of the new book, “The Great Firewall of China: How to Build and Control an Alternative Version of the Internet,” The Volokh Conspiracy (March 13, 2019)
So to Speak Podcast: Worst Colleges RE: Free Speech
- Sarah McLaughlin, UC Davis confirms professor will not be investigated for years-old tweets amid legislative pressure, FIRE (March 18, 2019)
New & Notable Blog Posts
- Ruthann Robson, Federal District Judge Dismisses Claims Against Trump Campaign for Disclosure of Information, Constitutional Law Prof Blog (March 15, 2019)
- Ruthann Robson, New York Appellate Court Upholds Jurisdiction Over President in Zervos’s Defamation Lawsuit, Constitutional Law Prof Blog (March 14, 2019)
News, Editorials, & Op-Eds
- Greg Piper, Arkansas expands First Amendment protections for students in state law, The College Fix (March 18, 2019)
- Eriq Gardner, Donald Trump Beats Lawsuit Over Hacked DNC Emails Despite Losing First Amendment Argument, Hollywood Reporter (March 15, 2019)
- Matthew S. Schwartz, Police Officer Can’t Pull Over Driver For Giving Him The Finger, Court Rules, NPR (March 15, 2019)
- David Hudson, Jr., Court says man did not have a free-speech right to wear Black Lives Matter shirt during trial, First Amendment Encyclopedia (March 14, 2019)
- Jeff Joseph, We need a national privacy law that respects the First Amendment, The Hill (March 13, 2019)
- David L. Hudson, Jr., How 2 Supreme Court cases from 1919 shaped the next century of First Amendment law, ABA J (March 12, 2019)
2018–2019 Term: Free Expression & Related Cases
Pending: Cert. Petitions
- Missouri Ethics Commission, et al. v. Free and Fair Election Fund
- Knox v. Pennsylvania
- Uradnik v. Inter Faculty Organization
- In-and-Out Burger v. NLRB
- The Colorado Independent v. District Court
- Township of Millburn v. Palardy
- Tate v. United States
- Abbott, et al. v. Pastides (reply brief here)
- Utah Republican Party v. Cox
- McKee v. Cosby, Jr. (Thomas, J., concurring in denial of cert. with opinion)
- Kennedy v. Bremerton School District
- Lair v. Motil
- Lair v. Mangan
- Berninger v. FCC (net neutrality)
- Montanans for Community Development v. Mangan
- Zimmerman v. Austin
FOIA: Review Granted
Free Expression Related Cases: Review Granted
- Nieves v. Bartlett (probable cause, first amendment, and retaliation)
Pending Free Expression Related Cases
- Manhattan Community Access Corp. v. Halleck
- Rucho v. Common Cause (standing and gerrymandering)
- Manhattan Community Access Corp. v. Halleck (state action)
- Woodhull Freedom Foundation v. United States (Art. III, standing)
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