Tagged: free speech


The Terrorist’s Veto

We live in terrorist times — post-Charlie Hebdo times. In this brutish world the target of attack is liberty as we know it, the kind in which people come together to discuss “Art, Blasphemy and the Freedom of Expression.” But as recent events in Copenhagen reveal, even in that world armed guards may not be enough to turn back the barbarity at the door. What to do?

Carsten Jensen, a Danish author and political columnist, urges us to reconsider our commitment to free speech freedom: “If you want the minority and Danish majority to live together in peaceful ways, you have to ask if hate speech is fruitful.”

Fair question, fair point. So is hate speech fruitful? Just for the sake of argument, let us say that it is – that vibrant criticism of a radical fringe of a religious group is important to the wellbeing of democratic rule. What then? I suspect the temptation to roll back freedom would be much the same. Why? Because the terrorists have terrorized us.

The terrorist’s veto is the savage cousin of the heckler’s veto. The logic of both is the same: freedom of speech is abridged in order to prevent the dangerous behavior of the reacting party. Once such veto power is granted, either formally or functionally, the hostile audience gets its way while freedom flees.

It really doesn’t matter if the speech in question is hateful or political or what have you. One only need look back in history to see how Salvation Army members, Jehovah’s Witnesses, Socialists, labor activists, racial justice activists, and political activists were silenced by the veto power. And recall that Professor Harry Kalven coined the phrase “heckler’s veto” in connection with bigoted opposition to free speech freedom in support of racial justice. (See his The Negro and the First Amendment (1965).)

It makes for a strange legal brew: once empowered, the veto renders the lawful unlawful; it turns liberty into license; and in the process reconstitutes our system of constitutional freedom in favor of ruthless anarchy. In his 1897 Introduction to the Study of the Law of the Constitution, the famed British jurist and constitutional theorist A.V. Dicey contested such legal logic:

[N]o meeting which would not otherwise be illegal becomes unlawful because it will excite opposition which is itself unlawful, and thus will indirectly lead to a breach of the peace. The plain principle is that A’s right to do a lawful act, namely walk down the High Street, cannot be diminished by X’s threat to do an unlawful act, namely to knock A down.

To develop Dicey’s point a bit, there is something profoundly disturbing about conditioning one person’s lawful free speech rights based on the degree of unlawful hostility demonstrated by the speaker’s adversaries. (See Note, “Constitutional Law — Unconstitutional Abridgement of Free Speech by Municipal Ordinance,” 24 N.Y.U. L. Rev. 891, 893 (1949).) In this regard, Professor Franklyn Haiman put it powerfully nearly a half-century ago when he countered: “Only by the firmest display of the government’s intention to use all the power at its disposal to protect the constitutional rights of dissenters will hecklers be discouraged from taking the law into their own hands.”

What is really at stake here is not so much the value of so-called hate speech as the willingness of a free society to recommit itself to freedom in the face of ferocious opposition. Having grown fat on freedom, we are use to tolerating speech with which we disagree if only because the consequences are typically of no moment. Hence, we defend the free speech principle because it’s risk-free. To borrow from old Tom Paine, we are “sunshine patriots” when it comes to defending free speech freedom. But if they bad guys ratchet up the consequences of our toleration, will we continue hold firm to our commitment?

There is no escaping it: In a democracy committed to the principle of free speech, the veto power – be it that of the heckler or the terrorist – must not be permitted to silence a society. For if you take the risks out of freedom, nothing of real value remains. In such a world, the tyranny of the veto is emboldened by the cowardice of the people.


Fifty Years of “I know it when I see it.”

On June 22, 1964, Justice Potter Stewart coined the phrase “I know it when I see it” in his concurring opinion in Jacobellis v. Ohio. Fifty years later, that expression holds the distinction of being one of the few modern legal phrases to become a regularly accepted expression among educated Americans. The half-century anniversary of Jacobellis provides a fitting opportunity to ask why “I know it when I see it” has enjoyed such popularity and what lessons that phrase and its history might hold for us today.

Jacobellis reversed the conviction of an Ohio movie theater manager for showing obscene material in the form of the French film Les Amants (The Lovers), which included a sex scene at its conclusion. The court’s 6-3 decision was highly fragmented, with six opinions in total and the plurality garnering only two votes.

Potter Stewart

In a short 144-word concurring opinion, Stewart wrote that he found it almost impossible to define obscenity precisely, which should only include “hard-core pornography.” His now famous line concluded the opinion:

 “But I know it when I see it, and the motion picture involved in this case is not that.”

At the time, the pithy phrase actually garnered little interest in the public sphere. Many newspapers chose instead to focus on another obscenity case decided that same day, Quantity of Books v. Kansas. Those journalists who did write about Jacobellis largely ignored “I know it when I see it” and chose to focus on the legal technicalities the case posed.

While it is difficult to pinpoint exactly when Stewart’s iconic expression became common, we can chart its growing popularity via Google’s Ngram search engine. Google Ngram measures the percentage of English language books that contain a phrase up to five words long. Because “I know it when I see it” is seven words, I ran the search for each five-letter segment of the phrase (“I know it when I;” “know it when I see;” “it when I see it.”). The graph clearly shows the steeply rising and still growing interest in Stewart’s phrase, starting slightly after 1964:

I know it when I see it Ngram


The Ngram search also reveals some interesting instances of similar phrases, both legal and not, pre-dating Jacobellis. Consider two examples: In an obituary for Benjamin Cardozo that ran in the Columbia, Yale and Harvard law journals in 1939, Learned Hand praised Justice Cardozo for his wisdom, writing:

“And what is wisdom — that gift of God which the great prophets of his race exalted? I do not know; like you, I know it when I see it, but I cannot tell of what it is composed.”

Read More


Torts, Bans, and Democratic Persuasion: A Reply to West, Fleming, and McClain (with help from Norton)

At the start of the symposium on When the State Speaks, Paul Horwitz praised much of the book’s argument and its conclusions, but he worried that public officials might push the state’s expressive powers in problematic directions. This sort of worry led him and Steve Calabresi to argue that the book is too strong in its conception of democratic persuasion. For example, they raise concerns about my argument that the tax privileges of 501(c)3 status should be extended only to groups that serve the public good.

I argue that the law already has a public good requirement for receiving tax privileges, but that the definition of “public good” is often vague and potentially arbitrary. The book defines the public good requirement in a more precise and consistent way that would be less open to abuse than the current standard. To serve the public good, groups should accept the ideal of freedom and equality for all citizens. A group that supports hatred of minorities and the curtailment of their rights should not receive public support in the form of tax privileges.

In this post I respond to scholars who are pushing me in the opposite direction from Paul and Steve. Robin West, James Fleming, and Linda McClain all agree with me that the state should promote an ideal of free and equal citizenship. Their arguments help to motivate a strong conception of democratic persuasion, in response to Paul’s and Steven’s concerns. However, West, Fleming, and McClain would allow types of democratic persuasion that are more activist than the book’s. Would their proposals risk violating free speech rights, and would they be consistent with my approach? Read More


Democratic Values v. Virtues: Brettschneider on Ordered Liberty

How can a liberal democracy promote its central values, such as autonomy and non-discrimination, at the same time that it protects basic rights, such as free speech? One common view is that these two goals are incompatible. According to this view, free speech rights commit liberal democracy to “neutralism,” which prohibits favoring any values. Under a neutralist approach, liberal democracy cannot promote its core values of autonomy and non-discrimination. It has no role in encouraging responsibility and virtue among its citizens.

James Fleming and Linda McClain offer a powerful challenge to the neutralist view. They propose an account of “autonomy as responsibility” that reconciles the two goals of protecting rights and promoting a set of public values and virtues. Liberal democracy upholds the rights of citizens out of respect for their autonomy, or their ability to use their reason freely to choose their own ends. For citizens to be able to make decisions as autonomous agents, they must have the right to choose their religion, associations, and political positions. But it is also important in an autonomy respecting regime that the government cultivate and encourage good decision-making. It would be pointless to respect autonomy if no actual people exercised their autonomy well. The government thus has an obligation to promote the capacity of citizens to make better and more responsible decisions. The government, including the Supreme Court, should pursue the twin aims of protecting rights and promoting individual autonomy and responsibility. This view differs from perfectionist theories, which advance particular comprehensive doctrines, and neutralist accounts, which refuse to promote values altogether. Read More


Washington Law Review, Issue 87:2 (June 2012)

Volume 87  | June 2012 | Issue 2

June 2012 Symposium: The First Amendment in the Modern Age


The Guardians of Knowledge in the Modern State: Post’s Republic and the First Amendment


Ronald K.L. Collins & David M. Skover


The First Amendment, the Courts, and “Picking Winners”


Judge Thomas L. Ambro & Paul J. Safier

Public Discourse, Expert Knowledge, and the Press


Joseph Blocher

The First Amendment’s Epistemological Problem


Paul Horwitz

A View from the First Amendment Trenches: Washington State’s New Protections for Public Discourse and Democracy


Bruce E.H. Johnson & Sarah K. Duran

Democratic Competence, Constitutional Disorder, and the Freedom of the Press


Stephen I. Vladeck


Understanding the First Amendment


Robert C. Post


Robert C. Post, Selected Bibliography of First Amendment Scholarship


Washington Law Review


Defining “Breach of The Peace” in Self-Help Repossessions


Ryan McRobert

Addressing the Costs and Comity Concerns of International E-Discovery


John T. Yip


Initial Thoughts on the Stolen Valor case

Although most people are focusing on Chief Justice Roberts’ vote to uphold the healthcare law, it turns out the Chief also voted with the “liberals” today to strike down the Stolen Valor Act as violating the First Amendment.  This is an important First Amendment opinion with lots of points for discussion.

The Stolen Valor Act makes it a misdemeanor to “falsely represent oneself as a recipient of military honors.  The final vote from the Court was 6-3, but the six votes were spread between Justice Kennedy’s plurality opinion (joined by the Chief and Justices Ginsburg and Sotomayor) and Justice Breyer’s concurring opinion joined somewhat surprisingly by Justice Kagan (more on that in a minute). The dissent was written by Justice Alito, joined by Justices Scalia and Thomas.

I will just note a few things that captured my attention after a first read:

Reliance on the marketplace of ideas: Although Justice Kennedy spends a lot of time in his plurality opinion discussing how the current statute does not require prosecutors to demonstrate any material harm resulting from the false speech, he also notably places a lot of confidence in the marketplace of ideas to discredit false statements.  In particular, he relies heavily on the ability of counterspeech to flush out the truth.  In this case, Kennedy writes, the Government could easily post online a database listing those who have received military honors.  Justice Breyer’s concurring opinion also discussed the importance of the marketplace of ideas and encouraged the Government to embrace “information-disseminating devices” to correct the truth.

Read More


Leakers and the First Amendment

There has always been an active debate about whether the First Amendment affords government outsiders (like the media) any protection when they disseminate classified national security information without authorization.  As I mentioned in my blog post last week, however, critics of the most recent round of high-profile leaks have targeted their attacks almost exclusively on the leakers themselves and not on the news outlets that published the leaks.  So the question is, do leakers have any First Amendment right to disclose national security information to government outsiders without authorization?

At the outset, let me just say leakers have a variety of statutory arguments they might make if prosecuted under the Espionage Act and related statutes.   Charlie Savage recently outlined a few of these arguments here.  In addition, one of the obstacles the government might face is that in order to prove that the disclosure was harmful to national security, they might have to reveal even more national security secrets (often called “graymail”).  This is one reason why the Drake prosecution fell apart.

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(Don’t) Blame the Messenger: What to Do about National Security Leaks

Many thanks to Danielle Citron for inviting me to serve as a guest blogger.  Lately I have been following the discussion about the most recent series of national security leaks, including those that detailed the White House’s terrorist “kill lists,” the foiling of a terrorist plot by a double agent in Yemen, and cyberattacks against Iran.  Outrage about leaks is hardly new.  Neither are leaks.  (See my prior article detailing the long history of leaks in this country.)  What is new is that the outrage this time around seems to be directed at the leakers and not at the media outlets that published the leaked information.

Back in December 2005, when the New York Times published its story about the NSA’s warrantless wiretapping program, the paper and its reporters were condemned just as vigorously as the leakers themselves.  It is interesting to think about why the politicians and commentators have held their fire against the media after this latest round of leaks (at least so far).  Perhaps critics’ suspicions that these leaks were politically motivated during an election year to make President Obama look like a strong leader has made them forget to take their usual shots at the “liberal media” that disseminated them to the public.  But given that leaks often appear politically motivated, this answer is not all that satisfying.

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Better Stories, Better Laws, Better Culture

I first happened across Julie Cohen’s work around two years ago, when I started researching privacy concerns related to Amazon.com’s e-reading device, Kindle.  Law professor Jessica Littman and free software doyen Richard Stallman had both talked about a “right to read,” but never was this concept placed on so sure a legal footing as it was in Cohen’s essay from 1996, “A Right to Read Anonymously.”  Her piece helped me to understand the illiberal tendencies of Kindle and other leading commercial e-readers, which are (and I’m pleased more people are coming to understand this) data gatherers as much as they are appliances for delivering and consuming texts of various kinds.

Truth be told, while my engagement with Cohen’s “Right to Read Anonymously” essay proved productive for this particular project, it also provoked a broader philosophical crisis in my work.  The move into rights discourse was a major departure — a ticket, if you will, into the world of liberal political and legal theory.  Many there welcomed me with open arms, despite the awkwardness with which I shouldered an unfamiliar brand of baggage trademarked under the name, “Possessive Individualism.”  One good soul did manage to ask about the implications of my venturing forth into a notion of selfhood vested in the concept of private property.  I couldn’t muster much of an answer beyond suggesting, sheepishly, that it was something I needed to work through.

It’s difficult and even problematic to divine back-story based on a single text.  Still, having read Cohen’s latest, Configuring the Networked Self, I suspect that she may have undergone a crisis not unlike my own.  The sixteen years spanning “A Right to Read Anonymously” and Configuring the Networked Self are enormous.  I mean that less in terms of the time frame (during which Cohen was highly productive, let’s be clear) than in terms of the refinement in the thinking.  Between 1996 and 2012 you see the emergence of a confident, postliberal thinker.  This is someone who, confronted with the complexities of everyday life in highly technologized societies, now sees possessive individualism for what it is: a reductive management strategy, one whose conception of society seems more appropriate to describing life on a preschool playground than it does to forms of interaction mediated by the likes of Facebook, Google, Twitter, Apple, and Amazon.

In this Configuring the Networked Self is an extraordinary work of synthesis, drawing together a diverse array of fields and literatures: legal studies in its many guises, especially its critical variants; science and technology studies; human and computer interaction; phenomenology; post-structuralist philosophy; anthropology; American studies; and surely more.  More to the point it’s an unusually generous example of scholarly work, given Cohen’s ability to see in and draw out of this material its very best contributions.

I’m tempted to characterize the book as a work of cultural studies given the central role the categories culture and everyday life play in the text, although I’m not sure Cohen would have chosen that identification herself.  I say this not only because of the book’s serious challenges to liberalism, but also because of the sophisticated way in which Cohen situates the cultural realm.

This is more than just a way of saying she takes culture seriously.  Many legal scholars have taken culture seriously, especially those interested in questions of privacy and intellectual property, which are two of Cohen’s foremost concerns.  What sets Configuring the Networked Self apart from the vast majority of culturally inflected legal scholarship is her unwillingness to take for granted the definition — you might even say, “being” — of the category, culture.  Consider this passage, for example, where she discusses Lawrence Lessig’s pathbreaking book Code and Other Laws of Cyberspace:

The four-part Code framework…cannot take us where we need to go.  An account of regulation emerging from the Newtonian interaction of code, law, market, and norms [i.e., culture] is far too simple regarding both instrumentalities and effects.  The architectures of control now coalescing around issues of copyright and security signal systemic realignments in the ordering of vast sectors of activity both inside and outside markets, in response to asserted needs that are both economic and societal.  (chap. 7, p. 24)

What Cohen is asking us to do here is to see culture not as a domain distinct from the legal, or the technological, or the economic, which is to say, something to be acted upon (regulated) by one or more of these adjacent spheres.  This liberal-instrumental (“Netwonian”) view may have been appropriate in an earlier historical moment, but not today.  Instead, she is urging us to see how these categories are increasingly embedded in one another and how, then, the boundaries separating the one from the other have grown increasingly diffuse and therefore difficult to manage.

The implications of this view are compelling, especially where law and culture are concerned.  The psychologist Abraham Maslow once said, “it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.”  In the old, liberal view, one wielded the law in precisely this way — as a blunt instrument.  Cohen, for her part, still appreciates how the law’s “resolute pragmatism” offers an antidote to despair (chap. 1, p. 20), but her analysis of the “ordinary routines and rhythms of everyday practice” in an around networked culture leads her to a subtler conclusion (chap. 1, p. 21).  She writes: “practice does not need to wait for an official version of culture to lead the way….We need stories that remind people how meaning emerges from the uncontrolled and unexpected — stories that highlight the importance of cultural play and of spaces and contexts within which play occurs” (chap. 10, p. 1).

It’s not enough, then, to regulate with a delicate hand and then “punt to culture,” as one attorney memorably put it an anthropological study of the free software movement.  Instead, Cohen seems to be suggesting that we treat legal discourse itself as a form of storytelling, one akin to poetry, prose, or any number of other types of everyday cultural practice.  Important though they may be, law and jurisprudence are but one means for narrating a society, or for arriving at its self-understandings and range of acceptable behaviors.

Indeed, we’re only as good as the stories we tell ourselves.  This much Jaron Lanier, one of the participants in this week’s symposium, suggested in his recent book, You Are Not a Gadget.  There he showed how the metaphorics of desktops and filing, generative though they may be, have nonetheless limited the imaginativeness of computer interface design.  We deserve computers that are both functionally richer and experientially more robust, he insists, and to achieve that we need to start telling more sophisticated stories about the relationship of digital technologies and the human body.  Lousy stories, in short, make for lousy technologies.

Cohen arrives at an analogous conclusion.  Liberalism, generative though it may be, has nonetheless limited our ability to conceive of the relationships among law, culture, technology, and markets.  They are all in one another and of one another.  And until we can figure out how to narrate that complexity, we’ll be at a loss to know how to live ethically, or at the very least mindfully, in an a densely interconnected and information rich world.  Lousy stories make for lousy laws and ultimately, then, for lousy understandings of culture.

The purposes of Configuring the Networked Self are many, no doubt.  For those of us working in the twilight zone of law, culture, and technology, it is a touchstone for how to navigate postliberal life with greater grasp — intellectually, experientially, and argumentatively.  It is, in other words, an important first chapter in a better story about ordinary life in a high-tech world.


One more principle: Nondiscrimination

There is one principle that I would add to the five that Marvin examines in the article:  nondiscrimination.  It seems to me that across public and private, physical and virtual “space” contexts (and judicial opinions), one persistent principle is that nondiscriminatory approaches to sustaining spaces, platforms, … infrastructures are presumptively legit and normatively attractive — whether government efforts to “sustain” involve public provisioning, subsidization or regulation.

I recognize that this might seem to tread too close to the negative liberty / anti-censorship model, but in my view, it helps connect the anti-censorship model with the pro-architecture model.  We should worry when government micro-manages speech and chooses winners and losers, but macro-managing/structuring the speech environment is unavoidable.  A nondiscrimination principle guides the latter (macro-management) to avoid the former (micro-management).

This sixth principle is implicit is the other five that Marvin discusses.  It’s not articulated as a stand-alone principle, uniform across situations, or even defined completely.  Nonetheless, nondiscrimination of *some* sort is part of the spatial analysis for each principle. For example, in the paper, when Marvin discusses designated public spaces, he says that government can designate spaces–so long as it does so in a nondiscriminatory way. The nondiscrimination principle here is limited: government cannot discriminate based on the limited notion of “content.”  Another example is limited public forums where government cannot discriminate on viewpoint, but can set aside a forum for particular speakers based on the expected content (say students / educational content).  There are other examples that Marvin explores in the paper.  In my view, there is something fundamental about nondiscrimnation and the functional role that it plays that warrants further attention.

Frankly, the idea of a nondiscrimination principle connects with my own ideas about the First Amendment being aimed at sustaining infrastructure commons and the many different types of spillovers from speech–or more broadly, sustaining a spillover-rich cultural environment;  I explored those ideas in an essay and I expand on them in the book.   It is important to make clear that government support for infrastructure commons — whether by direct provisioning or by common carrier style regulation — lessens pressure on both governments and markets to pick winners and losers in the speech marketplace/environment, and as Marvin argues, that is something that is and ought to be fundamental or core in any FA model.