First Amendment News

Abortion rights demonstrators rally near the Supreme Court of the United States to protest the court’s decision overturning Roe v. Wade.

What is the reach of free speech after the Dobbs abortion ruling? Part 2 — FAN 347

July 27, 2022

The July 13th post of FAN highlighted various attempts and concerns about censorship following the Supreme Court’s anti-abortion ruling in Dobbs v. Jackson Women’s Health Organization (2022). Given the uptick of developments in this area, we returned to the subject in today’s post and will continue to monitor matters as they develop. — rklc


Op-eds and commentary 

Online expression

Section 230

Data privacy

Free speech implications of Texas anti-abortion law

Libraries

Campus expression 

Will institutions face legal liability for aiding and abetting abortion access? How will law enforcement look upon providing advice or transportation for terminating a pregnancy? Will colleges provide legal counsel for students or faculty helping provide abortion access? Can colleges assist employees who want to travel from a prohibition state to another state for an abortion?

Employment

Lisa Michelle Kohring & Weston Mumme, “Employment Implications Arising from Dobbs v. Jackson Women’s Health Organization,” Holland & Knight (June 29)

Harassment 

Buffer zones

The other side: Censoring ‘pro-life’ advocates

Strossen & Coulter: An exchange on hate speech

Forthcoming book on ‘the myth of harm’ 

The Myth of Harm Cover
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 falsehoods 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 hyperbole for the news industry.

Forthcoming book on censorship of early modern drama

Mastering the Revels cover
Mastering the Revels traces the measures taken by the governments of Elizabeth I, James I, and Charles I to regulate the new phenomenon of fixed playhouses and resident playing companies in London, and to censor their plays. It focuses on the Masters of the Revels, whose primary function was to seek out theatrical entertainment for the court but whose role expanded to include oversight of the players and their playhouses.

The book proceeds chronologically, tracking each of the Masters in the period–Edmund Tilney (served 1579-1610), Sir George Buc (1610-22), Sir John Astley (1622-3), and Sir Henry Herbert (1623-1642). Tilney was the first to receive a Special Commission giving him wide-ranging powers over the players. When Buc first became involved is examined here in detail, as is the parallel history of the Children of the Queen’s Revels who between 1604 and 1608 staged some of the most scandalous plays of the era. Astley succeeded Buc, but soon sold the office to Herbert, who then served to the closing of the theatres.

Manuscripts of plays censored by Tilney, Buc, and Herbert have survived and are examined in detail to assess their concerns. Large parts of Herbert’s office-book have also survived, giving detailed insights into his professional life, including interactions with both the court and the players. It reveals the difficulties he faced negotiating recurrent popular pressure for war against Spain, resistance to Archbishop Laud’s reforms of the church, and Henrietta Maria’s problematic presence as a Catholic queen to Charles I.

New scholarly article: Nunziato on free speech & dominant social media platforms 

Dominant social media platforms have been increasingly perceived as engaging in discrimination against conservative and right-wing viewpoints. Trump’s deplatforming, coupled with the platforms’ recent removal of Covid- and election-related misinformation, led to cries of censorship by conservatives and increased calls for regulation of the platforms. Supreme Court Justice Thomas took up this charge, suggesting a regulatory path forward for lawmakers seeking to hold the platforms liable for alleged viewpoint discrimination and censorship.

Prof. Dawn C. NunziatoProf. Dawn C. Nunziato

This Article examines the desirability and constitutionality of recent legislative initiatives that seek to provide remedies for these alleged ills and to rein in the dominant platforms’ discretion exercised in content moderation decisions by prohibiting them from engaging in viewpoint discrimination, and by imposing notice, transparency, and other due process-type obligations. This Article analyzes the proposed legislation in light of the obligations that the U.S. government historically has historically imposed on common carriers and broadcasters. This Article then examines the procedural dimensions of our free speech commitments and values and our commitments to due process, including those enshrined in the Constitution and in International Covenant on Civil and Political Rights.

This Article concludes with a favorable assessment of the desirability and constitutionality of proposed legislation that would require platforms to comport with principles of nondiscrimination and due process. This Article contends that, while the platforms should continue to enjoy the discretion to regulate many categories of speech that are protected by the First Amendment and to restrict speakers in clear and blatant violation of their terms of service, the dominant platforms should generally be prohibited from engaging in blatant viewpoint or speaker-based discrimination and should be required to accord their users certain due process type protections.

Three (!!!) new or forthcoming scholarly articles by Eugene Volokh 

Prof. Eugene VolokhProf. Eugene Volokh

In several major cities and counties, in some territories, perhaps in the whole states of California and Montana, and to a small extent in Minnesota, private businesses may not discriminate against patrons based on certain kinds of political activities. In most of these jurisdictions (plus in South Carolina) it’s also illegal to discriminate based on political activities in housing (and sometimes in commercial real estate transactions). Some of these bans are narrow, just protecting the decisions to belong to or support a political party. Others are broader, applying to political advocacy more generally, including political advocacy on the business’s premises.

This article describes such rules, and the cases that have been decided under them, so as to better understand the options that legislators have chosen with regard to this question, especially when evaluating similar new proposals. This may be particularly helpful given the interest in using public accommodations law as a model for limiting social media platforms’ ability to block users based on their speech or political ideology.

And it’s also helpful to see these rules when considering the implications of certain readings of public accommodation law more broadly. Say, for instance, that courts conclude that a wedding photographer has no First Amendment right to refuse to photograph a same-sex wedding in a state with a ban on sexual orientation discrimination by public accommodations. A photographer would then have no First Amendment right to refuse to photograph a Nazi or Communist event in a jurisdiction with a ban on political discrimination by public accommodations. Indeed, briefs and an opinion in such cases have drawn this analogy.

Craig is trying to force Danielle to do something, by explicitly or implicitly threatening to criminally retaliate if she doesn’t go along—and if Craig makes good on the threats, third-party bystanders might suffer. Should the legal system require Danielle to comply with the demands, on pain of civil liability or even of criminal punishment? Or should Danielle be allowed to defy Craig’s demands, even if this means a higher risk to bystanders?

These questions can arise in many different situations: negligence law, nuisance law, the heckler’s veto, disturbing the peace law more generally, the duty to retreat, the duty to comply with negative demands, and more. And they can arise with regard to many different criminal demands, whether political (e.g., terrorist threats aimed at abortion clinics, bookstores, and the like) or personal. This Article surveys all these areas, and suggests that, generally speaking, the law should protect defiance of criminal demands against legal liability, even when such defiance can increase the risk that the criminal will harm third parties

When may parties in American civil cases proceed pseudonymously? The answer turns out to be deeply unsettled. This Article aims to lay out the legal rules (such as they are) and the key policy arguments, in a way intended to be helpful to judges, lawyers, pro se litigants, and academics.

More Volokh . . . on four new libel cases

Upcoming August conference on censorship and sexual freedom 

Woodhull logo
August 4, 2022
2:00 pm ET
Alexandria, VA

Censorship is everywhere – and almost all of it is aimed squarely at sexual expression. Limiting our access to and enjoyment of sexual freedom is a fundamental human rights violation that affects every one. That’s why Woodhull’s Human Rights Commission at #SFS22 will focus on the impact of censorship on individuals, highlighting opportunities for cross-movement strategies to push back against the growing tide of laws and policies. Testimony will come from healthcare providers, museum curators, librarians, and from a young person directly impacted by Florida’s “Don’t Say Gay” bill.

‘So to Speak’ on the popular free speech platform Substack

Substack — the popular newsletter and publishing service — has made a name for itself by swimming against the current: As many technology companies devise new ways to censor or moderate content on their platforms, Substack made free speech one of its core values and, in doing so, has attracted bloggers and journalists from across the political spectrum.

“While we have content guidelines that allow us to protect the platform at the extremes, we will always view censorship as a last resort, because we believe open discourse is better for writers and better for society,” proclaimed Substack’s founders.

Lulu Cheng Meservey is Vice President of Communications for Substack. She went viral earlier this year when she tweeted about why free expression is an important principle for Substack. She joins us this week to discuss Substack, free speech, and the new media ecosystem.

More in the news

2021-2022 SCOTUS term: Free expression & related cases

Cases decided

Review granted

Pending petitions

First Amendment-related petitions

Petition withdrawn 

Applications for stay orders

Review denied

Last FAN

This article is part of First Amendment News, an editorially independent publication edited by Professor Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. Opinions expressed are those of the article's author(s) and may not reflect the opinions of FIRE or of Professor Collins.