Category: First Amendment


Joel Gora, The Roberts Court & the Future of Free Speech

Below is a post by a guest blogger, Professor Joel M. Gora. He is on the faculty of the Brooklyn Law School where he teaches constitutional law and related courses and has written extensively on First Amendment issues. He served as a lawyer for the national ACLU for nearly a decade and worked on dozens of United States Supreme Court cases, including many landmark rulings (see e.g., herehereherehere, and here). Chief among them was Buckley v. Valeo (1976). He worked on behalf of the ACLU on most  of the important campaign finance cases to come before the Court. He also served for more than 25 years on the board of directors of the New York Civil Liberties Union and was one of its general counsel. The views expressed here are his own. — rklc

* * * *

The new Supreme Court Term that begins today marks the tenth anniversary of “the Roberts Court,” which reached full complement in January 2006. That was when Associate Justice Samuel Alito joined the Court, which Chief Justice John G. Roberts had been appointed to lead a few months earlier. The resulting coalition of a five-Justice “conservative majority” has had significant impact on the Court’s jurisprudence in a number of areas, and this has been especially evident in its rulings on the crucial First Amendment right of freedom of speech. In my view, “the Roberts Court” may well be the most speech-protective Court in a generation – if not in the Nation’s history – reaffirming and expanding extraordinary protection for free speech in a variety of settings. In the process, the Court has rebuffed numerous attempts by government and its allies to restrict established free speech protections or create new free speech limitations.

Professor Joel Gora

Professor Joel Gora

First, in a series of cases, the most well-known of which is Citizens United v. Federal Election Commission (2010), the Court has been insistent that protecting political speech is at the heart of the First Amendment’s purposes in a democracy and that limits on political spending are limits on political speech and can rarely be justified. The Court’s theory, echoing earlier rulings, is that government restrictions on how much can be spent to speak about politics and government and what individuals or groups can do the spending and speaking are fundamentally anathema to the essence of political freedom of speech and association.

In these campaign finance cases, the Court has also reaffirmed a theme that transcends politics: that another core purpose of the First Amendment is to guarantee that the people, not the government, get to determine what they want to say and how they want to say it. This liberty-affirming concept, which celebrates the autonomy of each person and group and condemns censorship of thought and speech by government, has application well beyond the political realm and guarantees the strongest protection to free speech in a number of settings, including protection for artistic, corporate and commercial speech as well. In all of these areas the Roberts Court has insisted that the First Amendment presumption against government censorship is but another recognition of individual and group freedom.

Applying these principles, the Court has steadfastly refused to declare speech that many deemed socially worthless to be beyond the pale of the First Amendment’s protection. In rejecting government efforts to criminalize depictions of animal cruelty, regulate the sale of violent video games to young people, punish those who lie about receiving military honors, unduly regulate those who protest near abortion clinics, and permit damages to the targets of even hateful and hurtful homophobic slurs and insults, the Court has reaffirmed that it is the individual, not the government, who must judge the worth of such speech. In those cases the Court emphatically refused to expand the very short list of “non-speech” exceptions from First Amendment protection, such as, obscenity and fighting words.

To be sure the Roberts Court has not invariably ruled in favor of free speech claims. It has allowed government, in some circumstances, to censor student speech, government employee speech, certain forms of campaign funding associated with elections to judicial office, and speech supporting terrorist organizations. It has also given government some leeway to control speech on or utilizing government’s own property. But these few exceptions help prove the rule that, outside these few instances, the Court has insisted on preserving the vital individual and societal First Amendment values served by affording the most rigorous protection to free speech.  The same regard for the individual can also found in a number of significant cases where the Court has protected religious freedom against the demands of government, including safeguarding the rights of a church to determine whom to hire as a teacher, a family-held company to resist providing health care insurance against its religious convictions, a Muslim prisoner to wear a beard for religious reasons despite prison security concerns, and an employee to wear a religious head scarf despite a company’s dress code appearance rules.

What does the future hold for free speech in the Roberts Court? The Court’s free speech docket for the upcoming Term is a modest one at this point, though involving an important case about whether non-union public employees can be compelled to pay the union for representing them against their will. Also, the court has just agreed to hear a government employee free speech case. So, time will tell whether the Roberts Court will continue to be the surprisingly powerful voice for free speech that it has become.

Dissenting Justices and prominent legal scholars have suggested that the Roberts Court has gone too far in overprotecting freedom of speech and not properly taking account of, and balancing the needs of, government which have been advanced to justify the particular restrictions on speech at issue. Other critics write off the Court’s free speech jurisprudence as simple right-wing favoritism of the rich and the powerful, insisting instead that the First Amendment should mainly protect just the deserving “lonely pamphleteer” or “soapbox orator” of an earlier era.

Ironically, liberals who usually led the fight for free speech a generation ago are more likely to be leading the charge to restrict free speech today. The current Court, however, has strongly maintained that the First Amendment must be available to every person or group who would seek to exercise its rights and has refused to means-test free speech protection. In taking that position, the Roberts Court is relying on free speech themes sounded in earlier, more “liberal” eras of the Court and building upon and strengthening the foundational pillars of free speech erected by the great Justices like Holmes, Brandeis, Black, Douglas and Brennan.

And, that is all to the good for one final, troubling, albeit ironic reason.  In a time when the Supreme Court seems to be affording more free speech in its rulings than any predecessor Court has done, in everyday life, these are trying times for free speech. Censorship seems to reign, both at home and abroad, in what sometimes seems to be a war on free speech. Whether it be the instantaneous condemnation and punishment of fraternity members for singing racially offensive lyrics at a social event, the brazen murder of journalists for producing anti-Muslim cartoons and commentary, or the cancelling of celebrity contracts for making offensive remarks or expressing unpopular views, free speech in everyday life seems often under attack and in jeopardy.

Enhanced by technology, and “going viral,” one slip of the tongue, caught on camera or recorder, can ruin an individual’s career or life prospects. Technology has also facilitated unprecedented surveillance of citizens, which can create a new form of chilling effect to suppress criticism of government. And, too often, our campuses, rather than being sanctuaries of free speech, thought and inquiry, are venues for suppression and censorship of “hurtful” ideas.

In the face of these various suppressions of speech, it is imperative that at least where the law is concerned the Supreme Court continues to make it quite clear that free speech must be the rule and government censorship the rare exception.


FAN 79 (First Amendment News) Conduits and Communication: Is “Mere” Transmission Speech? — Gov. Says No in Net Neutrality Case

“[T]here is no real basis for contending that mere transmission of bits is ‘speech.'”

Stuart Minor Benjamin (2014)

Assistant Attorney General William J. Baer

Assistant Attorney General William J. Baer

The above statement (by a former FCC distinguished scholar and now a Duke Law professor) is quoted approvingly in the government’s brief in United States Telecom Association, et al v. Federal Communications Commission. The government began its brief by declaring: “This case is about whether the Federal Communications Commission has the authority to ensure that the Internet, the central means of communication in the 21st Century, remains open to all Americans.” To that end the government’s lead lawyers, William J. Baer and Jonathan Sallet, made the following arguments in Part VI of their brief:

“The Open Internet Rules are Consistent with the First Amendment”

  •  “[T]he rules do not impair broadband providers’ First Amendment rights at all . . . because broadband providers are not acting as speakers but instead as conduits for the speech of others. . . .”
  • “The [FCC] Order does not curtail broadband providers’s free speech rights because providers of Broadband Internet Access Service are not acting as speakers delivering their own messages, but instead serve as conduits for the speech of others.”
  • “For conduct to possess “sufficient communicative elements to bring the First Amendment into play,” it must manifest “an intent to convey a particularized message” and “be understood [as a message] by those who viewed it.” Texas v. Johnson, 491 U.S. 397, 404 (1989) (internal quotation marks omitted). The provision of broadband service lacks these essential  characteristics. . . . Nor is there anything in the record to suggest that companies providing mass-market retail broadband  service as defined in the Order are seeking to convey any particularized message to their users. Instead, when providing Broadband Internet Access Service, broadband providers function (and are understood by their users to function) simply ‘as conduits for the speech of others, not as speakers themselves.'”
  •  “By simply delivering content as requested by their customers, broadband providers are no different from telephone companies or FedEx. See Benjamin, 127 HARV. L. REV. F. at 348-49.”
  • Alamo’s First Amendment challenge thus fails here for the same reason as the challenge in Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006). In FAIR, universities argued that a law requiring them to allow military recruiters to use their job-recruiting facilities violated the First Amendment by requiring the universities to carry the military’s speech. The Supreme Court unanimously rejected that claim, explaining that the access requirement “regulates conduct, not speech. It affects what law schools must do—afford equal access to military recruiters—not what they may or may not say.” Id. at 60. Thus, ‘the schools are not speaking when they host interviews and recruiting receptions.’ Id. at 64. Here, as in FAIR, the Open Internet rules ‘regulate[] conduct, not speech,’ because they address only what broadband providers ‘must do . . . not what they may or may not say.’ Id. at 60. The rules therefore fall outside the ambit of the First Amendment.”

On December 4, 2015 the case will be argued in the Court of Appeals for the District of Columbia.

The FCC Order can be found here

→ For links to the various Orders and Briefs  in the case, go here.

Another View re First Amendment Coverage?

Electronic Frontier Foundation & ACLU amicus brief

The [FCC’s] Order implicates the competing First Amendment interests of individual  users to speak and seek speech online, and of ISPs to transmit speech without undue government interference. 

UN Commission Calls for Web Censorship

Caitlin Dewey

Caitlin Dewey

This from Caitlin Dewey writing in the Washington Post: “It may not have intended to, precisely, but the United Nations just took sides in the Internet’s most brutal culture war.On Thursday, the organization’s Broadband Commission for Digital Development released a damning “world-wide wake-up call” on what it calls ‘cyber VAWG,’ or violence against women and girls. The report concludes that online harassment is “a problem of pandemic proportion” — which, nbd, we’ve all heard before.”

“But the United Nations then goes on to propose radical, proactive policy changes for both governments and social networks, effectively projecting a whole new vision for how the Internet could work.”

“Under U.S. law — the law that, not coincidentally, governs most of the world’s largest online platforms — intermediaries such as Twitter and Facebook generally can’t be held responsible for what people do on them. But the United Nations proposes both that social networks proactively police every profile and post, and that government agencies only ‘license’ those who agree to do so. . . .”

The Commission’s Report can be found here.

Reporters Committee Levels Objections to “Right to be Forgotten” Order

UnknownIn a letter dated September 14, 2015, the Reporters Committee for Freedom of the Press and 29 other media and news organizations wrote to President Isabelle Falque-Pierrotin of the Commission nationale de l’informatique et des libertés. Here are some excerpts from that letter:

“The Reporters Committee for Freedom of the Press and the undersigned news and journalism organizations write to express concerns regarding the notice given by CNIL to Google Inc. on May 21, 2015 ordering the company to apply new delisting requirements to all domains of the search engine and not merely to its domains in the European Union. In making its order public, CNIL referred specifically to its desire to ‘inform . . . content publishers . . . of the scope . . . of the right to obtain erasure of personal data.’ It is in that spirit of dialogue that we offer these objections.”

In their letter the groups raised four basic objections:

  1. “CNIL’s action raises concerns about encroachment on speech and press freedoms worldwide as well as on the right of access to information.”
  2. “Mere accessibility of content on the Internet is not a standard; it’s a surrender to an Internet governed by the least protective speech laws around the world.”
  3. “Search engines must be able to notify publishers of delisting,” and
  4. “he CNIL order does not adequately protect other fundamental rights, including the fundamental right of free expression and access to information.”

The groups closed by stating: “We recognize France’s right to weigh the competing interests between promoting personal privacy and data protection and protecting free expression and access to information in a way that reflects its values. But when CNIL seeks to compel Internet users outside of the EU to live with the balance it has struck in this area, it crosses a line and creates an ominous new precedent for Internet censorship that jeopardizes speech and press freedoms worldwide. . . .”

Into the “Weeds” with Posner 

Pic of native Illinois weeds

Pic of native Illinois weeds

Two days ago a Seventh Circuit panel handed down its decsion in Discount, Inn, Inc. v. City of Chicago. In that case a Chicago agency ruled that the Petitioner violated two city ordinances — a weed ordinance and a fencing ordinance. Among other claims, the Petitioner alleged that the weed ordinance “is vague and forbids expressive activity protected by the First Amendment. The concern is that native plants, while sharing with weeds the property of not having to be planted, are, unlike weeds, beautiful and nondestructive when properly managed.”

Photos of said Illinois native plants are included in Judge Richard Posner’s opinion. On that score Judge Posner noted: “A legitimate concern of property owners who grow native plants is that enforcers of the weed ordinance will mistake native plants for ‘weeds,’ an undefined term in the ordinance . . . .” But that point did not save the day for the Petitioner: “Even if we assume (as is plausible) that the weed ordinance does not embrace native‐plant gardens, this can do nothing for Discount Inn, because it does not argue that its properties contain gardens of native or other decorative plants. Instead it argues that the ten‐inch ceiling on weeds violates the free‐speech clause of the First Amendment.”

Pic of community garden in which the gardeners cultivate Illinois native plants,

Pic of community garden in which the gardeners cultivate Illinois native plants

Turning to the merits of the First Amendment issue, Posner observed: “Though plants do not speak, this need not exclude all gardens from the protection of the clause, for the clause has been expanded by judicial interpretation to embrace other silent expression, such as paintings. . . . The gardens of Sissinghurst Castle and of Giverny might well be recognized as works of art were they in the United States. There may be gardens in Chicago, whether consisting of native or other plants, that are or should be recognized as works of art. . . . But the plaintiff’s claim that the free‐speech clause insulates all weeds from public control is ridiculous. It’s not as if the plaintiff invented, planted, nurtured, dyed, clipped, or has otherwise beautified its weeds, or that it exhibits or intends or aspires to exhibit them in museums or flower shows. Its weeds have no expressive dimension. The plaintiff just doesn’t want to be bothered with having to have them clipped.”

Posner then turned to his garbage-and-Beethoven argument:

Taken to its logical extreme, the plaintiff’s defense of the weed would preclude any efforts by local governments to prevent unsightly or dangerous uses of private property. Homeowners would be free to strew garbage on their front lawn, graze sheep there, and broadcast Beethoven’s Fifth Symphony 24 hours a day through outdoor loudspeakers — all in the name of the First Amendment.

[ht: Howard Bashman, How Appealing]

KY Campaign Donations Law Challenged

A recent story in the  Lexington Herald-Leader reported on a new challenge to campaign finance laws, one that relates to political bribes or their equivalent. Here is an excerpt: 

“Republican state Sen. John Schickel and two Libertarian political candidates are suing to overturn state laws limiting campaign donations to $1,000 and prohibiting gifts to legislators from Frankfort lobbyists.”

“The politicians say the laws violate their constitutional rights to free speech and equal protection by restricting their access to people who want to help them. But state regulators say the laws are meant to prevent bribery at the state Capitol. Most were enacted after Operation BOPTROT, an FBI investigation in 1992 that exposed 15 current or former legislators who sold their votes. Don Blandford, the House speaker, was among those sent to prison. . . .”

“They are challenging the state’s $1,000-per-election contribution limit to individual candidates. They also want the court to strike down ethics rules prohibiting Frankfort lobbyists from donating campaign money to legislators or legislative candidates; barring the employers of lobbyists from donating while the General Assembly is in session; and outlawing gifts from lobbyists to legislators, including private meals.”

The case is Schickel v. Dilger (Dist. Ct., E. Dist. KY). The complaint can be found here.

Read More


FAN 78 (First Amendment News) Alan Garten, Trump’s Lawyer, Threatens “Multi-million dollar” Lawsuit for Attack Ads Against His Client

Alan Garten, executive vice president & general counsel of The Trump Organization.

Alan Garten, executive vice president & general counsel to The Trump Organization 

Presidential candidate Donald Trump’s lawyer, Alan G. Garten, is helping his boss retaliate against the Club for Growth’s TV ads attacking Mr. Trump’s record on taxes. According to a New York Times story, Mr. Garten “sent a two-page letter to the group’s president, David McIntosh, accusing it of trying to damage Mr. Trump’s reputation by lying about his policies. The threat of litigation comes a week after the group started a $1 million advertising campaign that paints Mr. Trump as a disingenuous politician who intends to impose a huge tax increase if elected president.”

Here are some excerpts from Mr. Garten’s September 21, 2015 letter: “Simply stated, your attack ad is not only completely disingenious, but replete with outright lies, false, defamatory and destructive statements and downright fabrications, which you fully know to be untrue, thereby exposing you and your so-called ‘club’ to liability for damages and other tortious harm. For example, while your Attack Ad blatantly misrepresents to the public that Mr. Trump ‘supports higher taxes,’ nothing could be further from the truth. To be clear, Mr. Trump’s tax plan, which is scheduled to be released later this wek, supports a lowering of taxes. . . .”

[Video of Club for Growth ad here.]

“In the interest of avoiding what will certainly be a costly litigation process, we are prepared to offer you the one-time opportunity to rectify this matter by providing us with your prompt written assusrances that (i) you have stopped running the Attack Ads; and (ii) you will not generate or disseminate any misleading or inaccurate information or make any factually baseless accusations you know to be untrue with respect to my client at any point in the future. In the event, however, we do not promptly receive these assurances, please be advised that we will commence a multi-million dollar lawsuit against you personally and your organization for your false and defamatory statements and the damage you have intentionally caused to my client’s interests as well as pursue all other remedies available to us at law or in equity. [ ¶ ] Please be guided accordingly.”

Screen Shot 2015-09-22 at 11.17.06 PM

→ David McIntosh replies: “‘Tough guy Donald Trump starts whining when his liberal record is revealed. Trump has advocated higher taxes numerous times over many years, just like he’s advocated for universal health care, the Wall Street bailout and expanded government powers to take private property. “Trump’s own statements prove that our ads are accurate. They will continue to run.'”

Mr. Garten & His Client

  • Dec. 27, 2012 letter from Mr. Garten threatening to sue online petition organizer re campaign urging Macy’s  to “dump Trump” (US News & World Report story here)

Alan Garten: “Donald Trump is no bigot, he’s no racist, yet that’s what the accusations are.  Mr. [Angelo] Carusone basically says this is not about Donald Trump, it’s about Macy’s. This is all about Donald Trump. Mr. Carusone is basically trying to suppress Donald Trump’s free speech rights. . . He’s trying to suppress free speech by targeting Mr. Trump’s business partners and pressuring them through . . . bullying and mob-like tactics.” (full audio here

  1. NY ethics board drops Trump complaint about attorney general,” Associated Press, September 1, 2015
  2. Trump delivers on promise to sue chef Jose Andres,” Politico, August 1, 2015
  3. Donald Trump still battling lawsuits from defunct Trump University,” CBS/6, July 24, 2015
  4. Donald Trump’s lawyer: NBC in ‘breach’ on Miss Universe contract, CNN, July 5, 2015
  5. Lawsuit accuses Donald Trump of deceiving students,” CBS Money Watch, October 31, 2014
  6. Trump GC Must Give Deposition In D&O Sanctions Fight,” Law360, March 19, 2014

* * * 

  See also “7 times Trump has sued (or threatened to sue) over his wealth and brand,” Yahoo Finance, July 16, 2015
 See also “The Story of Donald Trump’s lawsuit against Bill Maher Over An Orangutan Joke,” YouTube, July 7, 2014 (see here, too)


Old or Modern Whig?  

Photo-illustration by Bobby Doherty. Trump photograph by Michele Asselin/Contour by Getty Images; Wig Styling by Sharelle Roberts for Raffaele Mollica; Body-double casting by Impossible Casting.

Photo-illustration by Bobby Doherty. Trump photograph by Michele Asselin/Contour by Getty Images; Wig Styling by Sharelle Roberts for Raffaele Mollica; Body-double casting by Impossible Casting.

EFF & ACLU file Amicus Brief Supporting Net Neutrality 
The case is U.S. Telecom Association v. FCC EFF. Here are some excerpts from the EFF’s press release:

“The Electronic Frontier Foundation (EFF) is asking a federal appeals court to approve Federal Communications Commission (FCC) net neutrality rules that prevent Internet service providers from interfering with and censoring content on the Web. U.S. telecommunication providers sued the FCC in Washington D.C. federal circuit court after the FCC published the rules, called the Open Internet Order, earlier this year. Among other things, service providers and their supporters argue that the order strips telecom companies of control over which speech they transmit.”

“In an amicus brief filed in the case today, EFF and the American Civil Liberties Union (ACLU) explain that the order is an appropriately-tailored measure that protects the Internet’s open and robust  “marketplace of ideas” without placing excessive or inappropriate restrictions on telecommunications providers or regulating their speech or messages.”

Among other things, the EFF/ACLU amicus brief argues:

  1. The Internet Was Built on Principles of Neutrality
  2. The Internet Is Now the Core Platform for Free Speech and Access to Knowledge.
  3. Permitting ISPs to Act as Gatekeepers Threatens Free Expression and Innovation.
  4. The BIAS Market Is a Dysfunctional, Government Enabled Oligopoly.
  5. First Amendment Principles Weigh in Favor of the Open Internet Order.
  6. The Order Constitutionally Regulates ISPs in Their Role as Conduits for Internet Speech.
  7. The Open Internet Order Is Facially Content Neutral and Survives Intermediate Scrutiny.
  8. The Primary Guideposts for Any “Unreasonable Interference” Analysis Should Be Free Expression and Application Agnosticism.
[ht: Josh Blackman]

Read More

Greene & Kesselheim vs. Kardashian

Jeremy Greene and Aaron Kesselheim have a fascinating piece on the new challenges facing the FDA as selfie-driven marketing reaches Instagram. After promoting an anti-nausea drug (for morning sickness, not in anticipation of celebrity-phobic viewers), Kardashian had to follow up with the following “corrective advertisement:”

#CorrectiveAd I guess you saw the attention my last #morningsickness post received. The FDA has told Duchesnay, Inc., that my last post about Diclegis (doxylamine succinate and pyridoxine HCl) was incomplete because it did not include any risk information or important limitations of use for Diclegis.

As Greene and Kesselheim observe:

The rise of social media has raised a parade of new questions for the agency: How is it supposed to monitor person-to-person pharmaceutical recommendations? Can something be considered an advertisement if it’s only 140 characters long? Who is responsible for the accuracy of tweets about a drug? But this isn’t the first time evolving technology has forced the FDA to rethink its role. Before Instagram, television advertising was once new; before television, radio. Since the agency’s founding, its ability to regulate drugs has been consistently challenged by new forms of communication.

For more on the controversy, check out The Week in Health Law, where Nicolas Terry and I discuss the case with Kesselheim. And don’t worry, it’s not all about Kardashians–we also cover a new study of ACOs, proposed budget cuts for AHRQ, worry over unintended consequences of readmission penalties, and EHR gag clauses (and developer codes of conduct).


FAN 77 (First Amendment News) NPR & Other Press Groups Oppose Pentagon’s New “Law of War” Manual

Screen Shot 2015-09-14 at 11.55.14 PMThe report is titled Department of Defense War Manual, which was relased last June. The 1,176 page, 297 footnoted document is dense and stocked full of military jargon. But Michael Oreskes, the senior vice president for news and editorial director at National Public Radio, has plowed through it and took strong exception to some of its claims. In an August 19, 2015 letter to Secretary of Defense Ashton B. Carter, Mr. Oreskes began by stating: “A country that protects its journalists, protects the truth. The Department of Defense’s recently issued Law of War Manual fails to do that.” Among other things, Mr. Oreskes complained that:

  • “The document creates dangerous ambiguity around the collection of information for use in reporting.”
  • “The Manual does not explain the distinction between newsgathering and spying except to note vaguely that journalists should “act openlyand with the permission of relevant authorities” and that they should present “identification documents” to prove they are journalists.”
  • “The Manual, as it is currently drafted, might be read to empower governments to judge for themselves whether a U.S. journalist’s work is spying, and to punish the journalist accordingly.”

In a story by Benjamin Mullin, writing in Poynter, it was also repaired that “several other news organizations, including The New York Times, The Associated Press and ABC News, expressed disapproval of certain things in the Manual. “Writing for The New York Times, editorial board member Ernesto Londono said a possible Pentagon decision to revise the manual “can’t happen quickly enough.” In that regard, Mr. Londo noted:

Allowing this document to stand as guidance for commanders, government lawyers and officials of other nations would do severe damage to press freedoms. Authoritarian leaders around the world could point to it to show that their despotic treatment of journalists — including Americans — is broadly in line with the standards set by the United States government. . . .

Even more disturbing is the document’s broad assertion that journalists’ work may need to be censored lest it reveal sensitive information to the enemy. This unqualified statement seems to contravene American constitutional and case law, and offers other countries that routinely censor the press a handy reference point. . . . 

A spokesman for the National Security Council declined to say whether White House officials contributed to or signed off on the manual. Astonishingly, the official pointed to a line in the preface, which says it does not necessarily reflect the views of the “U.S. government as a whole.”

See also “U.S. Department of Defense manual allows some journalists to be held as ‘belligerents’,” Associated Press, August 25, 2o15 (“‘I’m troubled by the label ‘unprivileged belligerents,’ which seems particularly hostile,’ said Kathleen Carroll, AP’s executive editor. ‘It sounds much too easy to slap that label on a journalist if you don’t like their work, a convenient tool for those who want to fight wars without any outside scrutiny.'”)

[hat tip: Ashley Messenger]

FCC Defends Implementation of Net Neutrality Rules

76582a77da3d81000ca6d19ea20e5924This from Jon Brodkin at ArsTechnica: “The Federal Communications Commission yesterday said it did not violate the First Amendment rights of Internet service providers when it voted to implement net neutrality rules.”

“Broadband providers who sued to overturn the rules claim their constitutional rights are being violated, but the FCC disputed that and other arguments in a filing in the US Court of Appeals for the District of Columbia Circuit. . . .”

“‘Nobody understands broadband providers to be sending a message or endorsing speech when transmitting the Internet content that a user has requested,’ the FCC wrote. ‘When a user directs her browser to the New York Times or Wall Street Journal editorial page, she has no reason to think that the views expressed there are those of her broadband provider.'”

“First Amendment objections have been briefly raised by AT&T, CenturyLink, CTIA-The Wireless Association, and the United States Telecom Association. The argument that net neutrality rules violate broadband providers’ First Amendment rights was also made by Verizon back in 2012.”

“In the current case, the First Amendment objections have been made most forcefully by Alamo Broadband, a small provider in Texas. Alamo argued that ISPs ‘exercise the same editorial discretion as cable television operators in deciding which speech to transmit.'”

See here re FCC’s Net Neutrality order.

Jonathan Keane, “Net neutrality doesn’t violate ISPs’ first amendment rights says FCC,” Digital Trends, Sept. 15, 2015

Arkansas AG Calls on Court to Overrule Abood Read More


FAN 76.1 (First Amendment News) Chemerinsky & Volokh discuss the Roberts Court & The First Amendment (video posted)

Eugene Volokh, Erwin Chemerinsky & Kelli Sager

Eugene Volokh, Erwin Chemerinsky & Kelli Sager

UPDATE: Access to the video link below is now available to the public.   

It was a remarkable late-afternoon program last month as the First Amendment Salon went on the road for the first time with an event held at the Los Angeles office of Davis Wright Tremaine. There was a live feed to DWT’s offices in New York City and Washington, D.C. Those participating in the Salon (the sixth) were UC Irvine Dean Erwin Chemerinsky and UCLA Law Professor Eugene Volokh with DWT lawyer Kelli Sager moderating the exchange between the two. The Salons are conducted in association with the law firm of Levine Sullivan Koch & Schulz and the Floyd Abrams Institute for Free Expression at Yale Law School. (Chemerinsky and Volokh are on the Salon’s advisory board). Lee Levine introduced the program. The topic of discussion for the 90-minute exchange, replete with questions from the audience, was “The Roberts Court and the First Amendment.”

The video link to the discussion can be found here. (Circuit Judge Alex Kozinski was present and asked a question.)

A list of the topics covered can be found here.

 Again, thanks to the fine folks at Davis Wright Tremaine for hosting the Los Angeles Salon.

NEXT SALON: November 2, 2015: Floyd Abrams and Robert Post will discuss the ramifications of Reed v. Town of Gilbert (2015) with Linda Greenhouse moderating.

EARLIER SALON: “Is the First Amendment Being Misused as a Deregulatory Tool?” — Professors Jack Balkin and Martin Redish with Floyd Abrams moderating. (video here)


FAN 76 (First Amendment News) Federal Report on Ferguson Identifies First Amendment Concerns

53ee71fd731e9.imageIn a report recently issued by the U.S. Department of Justice (see press release here), questions were raised concerning the First Amendment and the police handling of demonstrations in Ferguson, Missouri. Among other things, the 162-page Report stated:

  1. [Discretionary application of sanctions]: “[A]s the ‘keep moving’ order was put into effect, protected First Amendment activity was swept up by prohibition of such activity and threat of (or actual) arrest. Discretionary application of sanctions by law enforcement is always a concern. The exposure to potential arrest for exercising one’s right to peacefully assemble and protest was problematic.”
  2. [“Keep Moving” Orders & Right to Assembly]: “Unified command created a vague and arbitrary derivative of the Missouri failure to disperse statute—the ‘keep moving’ order, or ‘five-second rule,’ which violated citizens’ right to assembly and free speech, as determined by a U.S. federal court injunction.”
  3. [Police Discouraged Protests]: “Unified command failed to establish a clearly marked First Amendment free speech zone until August 19, 2014. This delay, coupled with the ‘keep moving’ order, had an overall effect of discouraging protesters from exercising their First Amendment rights.”
  4. [Police Removal of Badges]: “During the law enforcement response to the protests, some officers removed their nameplates. This behavior defeated an essential level of on-scene accountability that is fundamental to the perception of procedural justice and legitimacy.”
  5. [Suspicious Lack of Citizen Complaints]: “[G]iven the size and scope of the protest and the findings outlined within this report, the limited number of filed complaints is misleading. Other factors that made it difficult or impossible to lodge complaints— or a lack of confidence in the complaint process— likely deterred citizens from filing complaints about police behavior.”
  6. [Press Arrests]: “Controversy over police tactics also heightened on August 13, when two news reporters from The Washington Post and The Huffington Post were arrested in a restaurant near the protests. The visibility of these arrests drew more negative attention toward police practices. Allegations of the police abusing their authority and violating citizens’ civil rights were common.”
  7. [The Need for Effective Protocols]: “[T]here were no effective protocols in place to handle an event like this; if such protocols had been in place, they would have identified the appropriate police resources and procedures for the event to accompany the mutual aid agreements.”
  8. [The Need for Planning]: “Even with the best planning for a police response to a protest, the nature and evolution of a protest, factors collaterally related to the protest, and the effectiveness of tactics and strategies must be constantly monitored and changed to reflect the changing protest management environment.”
  9. [Reasonable Accommodations for Protests]: “As a statement of principle to ensure procedural justice, law enforcement should provide all lawful and reasonable accommodation and support to facilitate the First Amendment expressive activity of citizens. Great restraint of police powers should be used to protect the rights of lawful demonstrators, while at the same time protecting the safety and rights of citizens whose persons and property are contiguous to the demonstration. In cases when the safety and rights of others are in jeopardy from the demonstration activities, law enforcement should propose alternate accommodations to protesters.”
  10. [Free Speech Zones] “A First Amendment free speech zone set up by authorities as an area where groups could congregate to demonstrate should be clearly established, allowing for reason- able accessibility to the media. Free speech zones such as the “protester assembly zone” (also called the “approved assembly area”) established by police in Ferguson pursuant to the Abdullah case are designated zones in public areas set aside by authorities in which people may exercise their First Amendment rights. Use of zones requires government to strike an appropriate balance between public safety concerns and First Amendment freedoms, because First Amendment activity is permitted only in the designated zone.”
  11. [Need for Constitutionally Sensitive Police Policies] “It is essential that law enforcement establish and apply procedures that comply with statutory and constitutional requirements. Legal counsel should be consulted and involved when establishing policies, procedures, and tactics that could infringe on or impact constitutional protections.”
  12. [Balancing Public Safety with Right to Protest]: “While law enforcement must meet its duty to protect people and property during mass demonstrations and protests, it can never do so at the expense of upholding the Constitution and First Amendment-protected rights.”
  13. [Need for Police Training: Lawful vs Unlawful Assembly]: “Officers should have been educated or reminded of the difference between a violation of Missouri’s unlawful assembly, riot, and failure to disperse laws versus lawful assembly and the protections of the First Amendment that could make an order to disperse to be in and of itself illegal. Law enforcement should have been more aware of how its response had a chilling effect on the protesters exercising their First Amendment rights.”
  14. [Need for Police Training: First Amendment Education]: “Agencies should train all officers on the nature of the First Amendment and the protections it affords, including what is a lawful protest, how law enforcement should deal with lawful protests, and what are best practices for policing crowds.”
  15. [Methods for Processing Citizen Complaints]: “Law enforcement agencies should establish multiple methods for submitting complaints/commendations (in person, by phone, online, etc.) that are easily accessible, efficient, effective, and not intimidating to the public to ensure that citizen complaints are received, fairly investigated, and adjudicated. Agencies should review these methods periodically to stay current with technology and generational changes.”
  16. [Communicating with Protestors]: “Law enforcement must reach out to protest leaders to understand the protesters’ issues and establish an understanding of police responsibilities for managing the safety and security of protesters and the community.”
  17. [Improving Lines of Communication]: “Lines of communication between law enforcement and protest leaders should remain open and consistent not only throughout the protest but also after the protest to ensure effective communications to prepare for future protests and to ensure a relevant ongoing dialogue between the protesters and the police occurs.”
  18. [Timely Release of Public Information]: “Law enforcement should establish a practice to release all information law- fully permitted as soon as possible and on a continuing basis, unless there is a compelling investigatory or public safety reason not to release the information. A ‘compelling reason’ should be narrowly defined and limited in scope. Had law enforcement released information on the officer-involved shooting in a timely manner and continued the information flow as it became available, community distrust and media skepticism would most likely have been lessened.”
  19. [Cell Phone Photography & Accountability] “Social media—from video streams to cell phone videos to photographs— can be a strong accountability tool when used to document the behavior of not only police officers but also demonstrators.”

In light of the above, tomorrow I will post a piece entitled “Teaching First Amendment Law in Reality-Friendly Ways.”

Bookstore Owner & Free-Speech Defender Joyce Meskis to be Honored Read More


FAN 75 (First Amendment News) Justice Kagan & the future of Abood, the strength of stare decisis, & the relevance of Garcetti

imagesThis post marks the 75th weekly issue of First Amendment News. I want to thank our publisher Dan Solove for making this possible. Thanks, too, to all those in the free-speech community — lawyers, professors, judges,  journalists, and activists — who brought me their news and kindly shared mine. And thanks to my fellow bloggers, both here and elsewhere, for their support. In the days ahead I will explore ways to make FAN better and ever more timely and informative. Thus, if you have any ideas (small or big), please pass them along. Finally, and consistent with the spirit of the First Amendment, I try to be fair to all sides in what I select and how I present it. So if you have some news to share, pass it along. Meanwhile, onward!

* * *  *

 (Photo by Chip Somodevilla/Getty Images, Credit: Chip Somodevilla)

(Photo by Chip Somodevilla/Getty Images, Credit: Chip Somodevilla)

This October will mark the beginning of her sixth term on the Court. At 55, she could spend another 27 years on the Court before she is Justice Ruth Bader Ginsburg’s age. So she has plenty of time, she can move slowly and deliberatively, and she can plant seeds in today’s dissents for harvest in a future year. She is, of course, Justice Elena Kagan.

Soon, the Court will schedule oral arguments in Friedrichs v. California Teachers Association, et al., the latest public employees union case involving a First Amendment challenge to an opt-out requirement in a union-fee case. Among other issues, Justice Kagan has previously flagged two points that could prove to be important in Friedrichs. (1) how will the Court finesse the stare decisis  question? And (2), how much latitude will it give to what it ruled in Garcetti v. Ceballos (2006). Those two points are highlighted below.

________ Just How Binding is Stare Decisis? ________

In Brulotte v. Thys Co. (1964), this Court held that a patent holder cannot charge royalties for the use of his invention after its patent term has expired. The sole question presented here is whether we should overrule Brulotte. Adhering to principles of stare decisis, we decline to do so. . . Overruling precedent is never a small matter. . . Respecting stare decisis means sticking to some wrong decisions. — Justice Elena Kagan for 6-3 majority in Kimple v. Marvel Entertainment (2015)

One of the specific issues in Friedrichs is whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment. In that regard, recall that Justice Kagan joined Justice Stephen Breyer’s dissent in Knox v. Service Employees International Union, Local 110 (2012), wherein it was said: “Of course, principles of stare decisis are not absolute. But the Court cannot be right when it departs from those principles without benefit of argument in a matter of such importance.” In Friedrichs it will have precisely that “benefit of argument” . . . assuming the case is not dismissed.

It is also well to remember how Justice Kagan began her dissent in Harris v. Quinn (2014):

Abood v. Detroit Bd. of Ed. answers the question presented in this case. Abood held that a government entity may, consistently with the First Amendment, require public employees to pay a fair share of the cost that a union incurs negotiating on their behalf for better terms of employment. . .  The Abood rule is deeply entrenched, and is the foundation for not tens or hundreds, but thousands of contracts between unions and governments across the Nation. Our precedent about precedent, fairly understood and applied, makes it impossible for this Court to reverse that decision.”

Sensitive to the doctrine of stare decisis — a creed to which all would-be Justices feign allegiance when appearing before a Senate confirmation hearing — she roundly defended that doctrine as it applies to Abood:

“This Court’s view of stare decisis makes plain why the majority cannot—and did not—overturn Abood. That doctrine, we have stated, is

  1. a ‘foundation stone of the rule of law.’ Michigan v. Bay Mills Indian Community (2014). It ‘promotes the evenhanded, predictable, and consistent development of legal principles [and] fosters reliance on judicial decisions.’  Payne v. Tennessee (1991).
  2. As important, it ‘contributes to the actual and perceived integrity of the judicial process,’ ibid., by ensuring that decisions are ‘founded in the law rather than in the proclivities of individuals,’ Vasquez v. Hillery (1986). For all those reasons, this Court has always held that ‘any departure’ from precedent ‘demands special justification.’ Arizona v. Rumsey (1984).
  3.  And Abood,” she stressed, “is not just any precedent: It is entrenched in a way not many decisions are. Over nearly four decades, we have cited Abood favorably numerous times, and we have repeatedly affirmed and applied its core distinction between the costs of collective bargaining (which the government can demand its employees share) and those of political activities (which it cannot).”
  4. “Perhaps still more important, Abood has created enormous reliance interests. More than 20 States have enacted statutes authorizing fair-share provisions, and on that basis public entities of all stripes have entered into multi-year contracts with unions containing such clauses.” [indented numbers added to text]

Notably, many of those same arguments, even worded the same way, were set out in her Kimple majority opinion, with the Chief Justice and Justice Clarence Thomas joining in Justice Samuel Alito’s dissent. Perhaps fearful of the application of stare decisis to future cases such as FriedrichsJustice Alito began his Kimple dissent by stating: “The Court employs stare decisis, normally a tool of restraint, to reaffirm a clear case of judicial overreach.”

________ Garcetti’s Liberal Promise? ________

There is also the Garcetti point raised by Justice Kagan in the course of oral arguments in Harris: “[I]n the workplace we’ve given the government a very wide degree of latitude and there’s much that the government can do. It can fire people. It can demote people for things that they say in the workplace, not for things that they say as a citizen, but for things that they say in the workplace. That’s the fundamental lesson of Garcetti and of many, many others of our cases. So you’re saying, well, the government can punish somebody for saying something [as in Garcetti], but the government in the exact same exact position cannot compel somebody to say something they disagree with. And I want to know what’s the basis for that distinction . . . .”

SCOTUSblog Symposium on Friedrichs 

Charlotte Garden, “Another battle in the war over union fees,” SCOTUSblog, Aug. 28, 2015; David Rivkin & Andrew Grossman, “Correcting the “historical accident” of opt-out requirements,” SCOTUSblog, Aug. 27, 2015; Catherine Fisk, “The Friedrichs petition should be dismissed,” SCOTUSblog, Aug. 26, 2015; Bill Messenger, “Will the Court continue to recognize a distinction between bargaining with government and lobbying the government?,” SCOTUSblog, Aug. 25, 2015; Ann C. Hodges, “Public-sector unions, labor relations, and free speech,” SCOTUSblog, Aug. 25, 2015; and Deborah J. LaFetra, “Overrule Abood to protect individual rights,” SCOTUSblog, Aug. 24, 2015.

Reed Opinion fuels Challenge to D.C. Panhandling Law 

This from Martin Austermuhle at WAMU 88.5:  “If someone walks down a D.C. sidewalk loudly expressing a political opinion, it’s considered free speech that’s protected by the First Amendment. But what if they’re homeless, and instead of making a statement ask someone else for money? Is that also protected speech?”

Robert S. Reynolds (credit: Richmond Times-Dispatch)

(credit: Richmond Times-Dispatch)

“D.C. attorney William Claiborne thinks so, and he’s hoping a D.C. court agrees with him.”

“Claiborne has filed a class action lawsuit challenging the city’s panhandling law, saying that it unconstitutionally infringes upon the First Amendment by distinguishing between panhandlers who ask passers-by for money on spot and organizations like the Girls Scouts who might ask for donations to be given later. . . . “

The First Amendment challenge is grounded largely in the Court’s recent ruling in Reed v. Town of Glibert

See also: Clay Calvert, “Content-Based Confusion and Panhandling: Muddling a Weathered First Amendment Doctrine Takes its Toll on Society’s Less Fortunate,” Richmond Journal of Law & Public Interest (2015)

FAN 54 (First Amendment News): “Fourth Circuit Skeptical of Local Panhandling Law . . . Issue Before SCOTUS in Another Case,” April 1, 2015

Rick Hasen Interviews Floyd Abrams: Selected Excerpts  Read More


FAN 74.1 (First Amendment News) First Amendment Salon goes to L.A. — Chemerinsky & Volokh discuss Roberts Court & First Amendment . . . & more!

It was a remarkable late-afternoon program yesterday as the First Amendment Salon went on the road for the first time with an event held at the Los Angeles office of Davis Wright Tremaine. There was a live video feed to DWT’s offices in New York City and Washington, D.C. Those participating in the Salon (the sixth) were UC Irvine Dean Erwin Chemerinsky and UCLA Law Professor Eugene Volokh with DWT lawyer Kelli Sager moderating the exchange between the two. The Salons are conducted in association with the law firm of Levine Sullivan Koch & Schulz and the Floyd Abrams Institute for Free Expression at Yale Law School. (Chemerinsky and Volokh are on the Salon’s advisory board). Lee Levine introduced the program. The topic of discussion for the 90-minute exchange, replete with questions from the audience, was “The Roberts Court and the First Amendment.”

Eugene Volokh, Erwin Chemerinsky & Kelli Sager

                        Eugene Volokh, Erwin Chemerinsky & Kelli Sager

The Chemerinsky-Volokh exchange was nuanced and esoteric yet always insightful, informative, and engaging. Ms.Sager ably navigated the discussion through a variety of topics including:

  • First Amendment law in the context of the government acting as sovereign vs the government acting in a managerial capacity
  • the reach of the government speech doctrine after Walker
  •  the future of “strict scrutiny” analysis after Williams-Yulee
  • whether in light of Williams-Yulee (and the idea that judicial elections are different) independent expenditures might be regulated notwithstanding the holding in Buckley
  • the impact of Reed on the “secondary effects” doctrine
  • the likelihood that the trio of Breyer, Ginsburg, and Kagan will be able to persuade a majority of the Court to abandon strict scrutiny in content-discrimination cases
  • whether in the Friedrichs case the Court will overrule Abood (reference was made to Catherine Fisk’s SCOTUSblog post “The Friedrichs petition should be dismissed“)
  • what important First Amendment issues are not before the Court but which need to be
  • whether the Court is likely to grant cert. in a “right to publicity” case (see Law360 Aug. 14, 2015 news story here)
  • and how the Court has yet to give any serious consideration, post Reno and Ashcroft, as to how the Internet impacts First Amendment law.
Judge Alex Kozinski

Judge Alex Kozinski

And there was more, much more, including a variety of questions from the audience consisting of First Amendment lawyers and law professors, journalists, and free-speech activists.

BTW: Ninth Circuit Judge Alex Kozinski was in the audience and asked the two professors to comment on the following statement: “The big threat to free speech in the next twenty years is from foreign countries” trying to enforce “right to be forgotten” laws against the likes of Google and ordering them to remove certain items from all of their posts in all nations, including the United States. “The right to be forgotten,” he added, “is just the first of what may be many laws that are more speech restrictive than those of the U.S., e.g. defamation, privacy, and moral rights.” [See Mike Masnick, “Google Disappears Techdirt Article About Right To Be Forgotten Due To Right To Be Forgotten Request,”, Aug. 25, 2015)]

Shout out to the fine folks at Davis Wright Tremaine for hosting the Los Angeles Salon.

The L.A. Salon event was video-recored and I hope to post a link to it soon.

Go here for video of fifth Salon: “Is the First Amendment Being Misused as a Deregulatory Tool?”  The exchange, held at the Abrams Institute at Yale Law School, was between Professors Jack Balkin and Martin Redish with Floyd Abrams moderating.


FAN 74 (First Amendment News) Summer thoughts on dissent

Before the summer runs its course, I thought I’d do a post on one of my favorite topics — dissent. So no news this week, just some thoughts on dissent — and some lists of books, and songs, and what have you.

Take dissent out of the cultural and constitutional equation and what remains is faint-hearted freedom. Dissent gives free speech its steel. One of the First Amendment’s greatest virtues is the protection of those messages we fear and/or loathe — those sent our way by insufferable Anti-Federalists, abolitionists, suffragists, unionists, anarchists, Communists, atheists, civil-rights activists, anti-war pacifists, gay-rights antagonists, Tea Party supporters, religious zealots, the politically incorrect, and even nihilists.

* * * *

William F. Buckley, Jr.

William F. Buckley, Jr.

Dissent. It is a word we all know. We use the word with regularity in any variety of contexts. Judges dissent against a court majority. Political activists dissent against the establishment. Religious protesters dissent against orthodoxy. Students dissent against an administration. Newspaper editorialists dissent against politicians. And employees dissent against management. The list goes on.

In these ways and others, America values dissent, or so it seems. We often tolerate, encourage, and protect dissent. It is part of our Madisonian heritage. Some preach it, some practice it, others safeguard it, and still others endure it even when they oppose its message. Dissent is a salient feature of our modern society. It is a cultural and constitutional given.

Over the ages, dissent has been championed for assorted reasons. Dissent, it might be said, promotes self-realization and autonomy. It enables individual self-expression without fear of societal repression. The liberty of self is meaningless if one must always conform to majority will. Freedom for the outsider allows a unique brand of self-identity and self-expression.

Dissent, it might be said, advances religious freedom. When people of faith are permitted to question prevailing beliefs, they stand to redefine the relationship between themselves and their Maker. This spirit of moderation extinguishes the fires of heresy.

Dissent, it might also be said, contributes to the marketplace of ideas. It does this by promoting competition among divergent viewpoints. The hope is that, in the battle of opinions, some form of truth will prevail over falsehood, and the struggle will produce a more enlightened citizenry.

(credit: Adam Zyglis / The Buffalo News)

(credit: Adam Zyglis / The Buffalo News)

Dissent, it might further be said, enables self-governance by civic participation. Such participation is a two-way street: it is the prerogative to agree or disagree with governmental action. When the governed rule, they must have the right to differ from their governors.

Dissent likewise checks governmental abuses of power. When the whistleblower exposes governmental corruption or malfeasance, political power then comes under public scrutiny. By raising citizen awareness, dissent might bring about institutional reforms.

Dissent might moreover cultivate a democratic culture of tolerance, where all views are suffered no matter how objectionable they may be. Democracy is diversity, and diversity of views is often born out of dissent. One measure of a thriving democracy is the extent to which it fosters vibrant dissent.

Finally, it might also be said that a culture of dissent secures a safe haven for the outsider. When individuals no longer fear censure simply for being different, they can give public voice to their private views. Thereby, dissenters are afforded a chance to expand the behavioral boundaries of their society.

Whatever the objections to dissent, it is valued for all these reasons and others.  (source: Collins & Skover, On Dissent: Its Meaning in America)

Unknown rebel in front of tank in Tiananmen Square (credit: The Mirror, UK)

Unknown rebel in front of tank in Tiananmen Square (credit: The Mirror, UK)

Books of and on Dissent 

  1. Pierre Berton, editor, Voices from the Sixties: Twenty-Two Views of a Revolutionary Decade (1966)
  2. William F. Buckley, Jr., God and Man at Yale: The Superstitions of “Academic Freedom” (1951)
  3. Stokely Carmichael & Charles Hamilton, Black Power: The Politics of Liberation in America (1976)
  4. Stephen Carter, The Dissent of the Governed (1998)
  5. Nancy Chang, Silencing Political Dissent (2002)
  6. Collins & Skover, On Dissent: Its Meaning in America (2013)
  7. Dinesh D’Souza, Letters to a Young Conservative (2005)
  8. William O. Douglas, Points of Rebellion (1969)
  9. Christopher Fairman, Fuck: Word Taboo and Protecting our First Amendment Liberties (2009)
  10. Betty Friedan, The Feminine Mystique (1963)
  11.  Amin Ghaziani, The Dividends of Dissent: How Conflict and Culture Work in Lesbian and Gay Marches on Washington (2008)
  12. Christopher Hitchens, God Is Not Great: How Religion Poisons Everything (2009)
  13. Andrew Hsiao & Audrea Lim, editors, The Verso Book of Dissent: From Spartacus to the Shoe-Thrower of Baghdad (2010)
  14.  Eugene Dennis

                   Eugene Dennis

    Martin Luther King, Letter From a Birmingham Jail (1963) (full text here)

  15. Anthony Lewis, Freedom for the Thought That We Hate: A Biography of the First Amendment (2007)
  16. Robert W.T. Martin, Government by Dissent: Protest, Resistance, and Radical Democratic Thought in the Early American Republic (2013)
  17. Kate Millett, Sexual Politics (1970)
  18. Jack Newfield, editor, American Rebels (2003)
  19. The Port Huron Statement: The Visionary Call of the 1960s Revolution (1962, 2005)
  20. Michael Ratner & Margaret Ratner Kunstler, Hell No: Your Right to Dissent in 21st-century America (2011)
  21. Charles Reich, The Greening of America (1964)
  22. Austin Sarat, editor, Dissent in Dangerous Times (2005)
  23. Steven Shiffrin, Dissent, Injustice, and the Meanings of America (2010)
  24. Herbert Storing, editor, The Complete Anti-Federalist (1981)
  25. Cass Sunstein, Why Societies Need Dissent (2003)
  26. Henry David Thoreau, Jeffrey S. Cramer, editor, Essays (2013)
  27. Gordon S. Wood, The Radicalism of the American Revolution (1991)
  28. Ralph Young, Dissent: The History of an American Idea (2015)
  29. Howard Zinn, Declarations of Independence: Cross-Examining American Ideology (1990)

51CmbungqBL._SX327_BO1,204,203,200_Forthcoming Books on Dissent

  1. Melvin Urofsky, Dissent and the Supreme Court: Its Role in the Court’s History and the Nation’s Constitutional Dialogue (Pantheon, October 13, 2015)
  2. Stephen D. Solomon, Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (St. Martin’s Press (April 26, 2016)
  3. Thomas Grace, Kent State: Death and Dissent in the Long Sixties (University of Massachusetts Press, January 14, 2016)
  4. Maria Rovisco & Jonathan Corpus Ong, editors, Taking the Square: Mediated Dissent and Occupations of Public Space (Rowman & Littfield, April 2016)
  5. Wendy B. Scott & Linda S. Greene, I Dissent!: The Dissenting Opinions of Justice Thurgood Marshall (Carolina Academic Press, March 11, 2016)
  6. Thomas Grace, Kent State: Death and Dissent in the Long Sixties (University of Massachusetts Press, January 14, 2016)

* * * *

 [I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate. — Holmes, dissenting in United States v. Schwimmer (1929)

Editorial_cartoon_depicting_Charles_Darwin_as_an_ape_(1871)Books of and on Religious Dissent

  1. Margaret H. Bacon, The Quiet Rebels: The Story of the Quakers in America (1969)
  2. John M. Barry, Roger Williams and the Creation of the American Soul (2012)
  3. Nicholas P. Miller, The Religious Roots of the First Amendment: Dissenting Protestants and the Separation of Church and State (2012)
  4. William Lee Miller, The First Liberty, Expanded and Updated: The First Liberty: America’s Foundation in Religious Freedom (2003)
  5. Martha Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (2010)
  6. Shawn Francis Peters, Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution (2000)
  7. John Ragosta, Wellspring of Liberty: How Virginia’s Religious Dissenters Helped Win the American Revolution & Secured Religious Liberty (2010)
  8. Stephen Stein, Communities of Dissent: A History of Alternative Religions in America (2003)
  9. Roger Williams, The Bloudy Tenent of Persecution for Cause of Conscience (1644)
  10. John Winthrop, A Short History of the Rise, Reign, and Ruin of the Antinomians, Familists, and Libertines (1644)
Bob Dylan & Joan Baez (credit: SVA Picture Collection)

Bob Dylan & Joan Baez (credit: SVA Picture Collection)

Songs of Dissent (YouTube clips)

  1. Tracy Chapman, Talkin’ bout a Revolution
  2. Sam Cooke, A Change is Gonna Come
  3. Crosby, Stills, Nash and Young, Ohio
  4. Bob Dylan, Masters of War
  5. Dylan, The Lonesome Death of Hattie Carroll
  6. Dylan, The Times They Are A-Changin
  7. Peter Gabriel, Biko
  8. Marvin Gay, What’s Goin On?
  9. Woody Guthrie, This Land is Your Land
  10. Billie Holiday, Strange Fruit
  11. Macklemore & Ryan Lewis (feat. Mary Lambert), Same Love 
  12. Barry McGuire, Eve of Destruction (Reply: Barry Sadler, Ballad of the Green Berets)
  13. N.W.A., Fuk Da The Police
  14. Phil Ochs, I Ain’t Marching Anymore
  15. The Plastic Ono Band, Give Peace a Chance
  16. Public Enemy, Fight the Power
  17. Nina Simome

             Nina Simone

    Rage Against the Machine, Killing in the Name

  18. Pete Seeger sings Woody Guthrie Deportee
  19. Seeger, We Shall Overcome
  20. Nina Simone, Mississippi Goddam
  21. Todd Snider, Ballad of the Kingsmen 
  22. Buffalo Springfield, For What It’s Worth
  23. Buffy St Marie, Universal Soldier
  24. U2, Sunday Bloody Sunday
  25. Suzanne Vega, Luka
  26. The Wailers, Get Up, Stand Up

Last Scheduled FAN #73: “D.C. Circuit strikes down SEC “conflict minerals” rule by 2-1 margin

Next Scheduled FAN #75: September 2, 2015