FAN 40 (First Amendment News) Steve Shiffrin & Bob Corn-Revere debate “What’s Wrong with the First Amendment?”
For those who savor good give-and-take talk about the First Amendment, last Wednesday evening was a memorable one as Professor Steven Shiffrin debated Robert Corn-Revere with Ashly Messenger moderating. The topic: “What’s Wrong with the First Amendment?” Why that title? Because that’s the working title of Professor Shiffrin’s next book.
The New York city event was the third in a series of First Amendment salons held at the offices of the law firm of Levine, Sullivan, Koch & Schulz. The program was introduced by Lee Levine, who announced that this was the first salon done in conjunction with the Floyd Abrams Institute for Freedom of Expression at Yale Law School. The event was video cast live to the firm’s office in Washington, D.C. and to the Abrams Institute in New Haven.
Among others, those attending the event included: Floyd Abrams, Sandra Baron, John Berger, Joan Bertin, Vince Blasi, Kali Borkoski, Karen Gantz, Joel Gora, Laura Handman, David Horowitz, Maureen Johnston, Adam Liptak, Greg Lukianoff, Tony Mauro, Wes Macleaod-Ball, David Savage, David Schulz, Paul Smith, and James Swanson.
The exchange was robust as the Cornell professor took articulate and passionate exception to several of the Roberts Court’s First Amendment rulings, including United States v. Stevens, Brown v. Entertainment Merchants Association, and United States v. Alvarez — all cases in which Corn-Revere had an amicus’ hand in defending the free speech claims. No potted plant, the First Amendment lawyer fired back with facts, figures, and history as the two men debated the pros and cons of balancing vs strict scrutiny approaches to free speech decision-making. The animated discussion was always friendly and at times even funny as the two traded witty retorts.
The dialogue was enriched as Vince Blasi, Katherine Bolger, Joan Bertin, Paul Smith, James Swanson, and Floyd Abrams, among others, weighed in. As the discussion developed one could almost see minds bouncing back-and-forth as Ms. Messenger pressed the two seasoned First Amendment experts. The evening ended on a high note as Shiffrin and Corn-Revere laughed and shook hands. (Re earlier salons, see here and here.)
Coming soon: book by Seana Shiffrin
The Shiffrin name has long been a familiar one in First Amendment circles — a name that has both invited and provoked thought. Now comes another Shiffrin, UCLA philosophy and law Professor Seana Shiffrin, who is a scholar in her own right — someone quite attune to jurisprudential nuance.
If the case of United States v. Alvarez (2012) — the Stolen Valor case — caught your attention, and if you were intrigued by Chief Judge Alex Kozinki’s separate opinion in the case when it was before the Ninth Circuit, then Speech Matters: On Lying, Morality, and the Law (Princeton University Press, Dec. 21, 2014) by Seana Shiffrin is a book for you. And it is more, philosophically much more.
Here is the publisher’s description of the forthcoming book: “To understand one another as individuals and to fulfill the moral duties that require such understanding, we must communicate with each other. We must also maintain protected channels that render reliable communication possible, a demand that, Seana Shiffrin argues, yields a prohibition against lying and requires protection for free speech. This book makes a distinctive philosophical argument for the wrong of the lie and provides an original account of its difference from the wrong of deception.”
“Drawing on legal as well as philosophical arguments, the book defends a series of notable claims — that you may not lie about everything to the “murderer at the door,” that you have reasons to keep promises offered under duress, that lies are not protected by free speech, that police subvert their mission when they lie to suspects, and that scholars undermine their goals when they lie to research subjects.”
“Many philosophers start to craft moral exceptions to demands for sincerity and fidelity when they confront wrongdoers, the pressures of non-ideal circumstances, or the achievement of morally substantial ends. But Shiffrin consistently resists this sort of exceptionalism, arguing that maintaining a strong basis for trust and reliable communication through practices of sincerity, fidelity, and respecting free speech is an essential aspect of ensuring the conditions for moral progress, including our rehabilitation of and moral reconciliation with wrongdoers.”
Table of Contents
Chapter 1: Lies and the Murderer Next Door 5
Chapter 2: Duress and Moral Progress 47
Chapter 3: A Thinker-Based Approach to Freedom of Speech 79
Chapter 4: Lying and Freedom of Speech 116
Chapter 5: Accommodation, Equality, and the Liar 157
Chapter 6: Sincerity and Institutional Values 182
I plan to say more about this book in the coming year. Stay tuned.
The author: Fleming Rose
The book: The Tyranny of Silence (Cato Institute, Nov. 14, 2014)
Description: “When the Danish newspaper Jyllands-Posten (Viby, Denmark) published the cartoons of the prophet Mohammed nine years ago, Denmark found itself at the center of a global battle about the freedom of speech. The paper’s culture editor, Flemming Rose, defended the decision to print the 12 drawings, and he quickly came to play a central part in the debate about the limitations to freedom of speech in the 21st century. Since then, Rose has visited universities and think tanks and participated in conferences and debates around the globe in order to discuss tolerance and freedom. In The Tyranny of Silence, Flemming Rose writes about the people and experiences that have influenced the way he views the world and his understanding of the crisis, including meetings with dissidents from the former Soviet Union and ex-Muslims living in Europe. He provides a personal account of an event that has shaped the debate about what it means to be a citizen in a democracy and how to coexist in a world that is increasingly multicultural, multi-religious, and multi-ethnic.”
→ See Fleming Rose here re his recent appearance on The Last Word with Lawrence O’Donnell.
1-A groups urge school district to select books “solely on sound educational grounds”
“A group of First Amendment organizations sent a letter Monday to Highland Park ISD leaders urging them to choose books and instructional materials “solely on sound educational grounds.”
In a letter sent earlier this week, the “group, led by New York-based National Coalition Against Censorship, warned the school district against making curriculum decisions based on “some notion of ‘decency’ or ‘community standards,’ terms that are inherently vague and subjective.”
“Highland Park ISD officials and parents have been embroiled in debate for the past few months after some parents said the content of some high school books was too mature for teens. They raised objections about sex scenes and references to rape, abortion and abuse. . . .” The letter was sent on behalf of the following groups:
- the National Coalition Against Censorship
- the American Booksellers Foundation For Free Expression
- the Association of American Publishers
- the Comic Book Legal Defense Fund
- the National Council of Teachers of English
- PEN American Center and
- the Society of Children’s Book Writers & Illustrators.
→ Source: Melissa Repko for the Dallas Morning News (Nov. 10, 2014)
Revenge Porn Laws: Federal law being considered, state law being challenged
Congresswoman Jackie Speier (D-Cal.) continues to work away on proposed legislation concerning “revenge porn,” this with assistance from University of Miami Law Professor Mary Anne Franks. In that regard, Professor Franks has stated: “To date, I have advised legislators in 18 states and D.C. in the drafting of laws prohibiting the non-consensual distribution of intimate images, several of which have already passed. I am currently working with Congresswoman Jackie Speier (D-CA) on a federal criminal law protecting sexual privacy. An up-to-date list of states that have laws prohibiting non-consensual pornography can be found here; the National Conference on State Legislature’s resource page on state revenge porn legislation is here. You can find out more about the campaign to end revenge porn here.” Meanwhile, tech companies, civil liberties groups, and other stakeholders are being consulted in order to help facilitate the drafting of the proposed law.
→ At the state level, several groups have filed a complaint in federal court challenging the constitutionality of an Arizona Revenge Porn law (Ariz. Rev. Stat. § 13-1425). On November 3, 2014, the Media Coalition filed a motion for preliminary injunction asking the U.S. District Court to block enforcement of the law while the lawsuit is pending.
→ Related news items: Anne Kim, “Addressing Celebrity Nude Photo Leaks and Revenge Porn: the First Amendment Question,” TechnoCrat, Nov. 7, 2014
→ Gerry Smith, “Now Women Are Getting Arrested For Revenge Porn,” Huffington Post, ct. 21, 2014
→ Related book: Danielle Citron, Hate Crimes in Cyberspace (Harvard University Press, 2014)
→ Related article: John A. Humbach, “How to Write a Constitutional ‘Revenge Porn’ Law,” SSRN (Oct. 30, 2014)
American Library Association Releases Study on the Impacts of the Children’s Internet Protection Act
→ Kristen R.Batch, Fencing out Knowledge (Policy Brief # 5: June 2014)
Some of the findings include the following ones:
- Filtering in Libraries Causes Patron Needs to Go Unmet
- Filtering in Schools Goes Far Beyond the Legal Mandate of CIPA
- Disproportionate Impact of CIPA
- Alternatives to Over-filtering: Digital Literacy and Digital Inclusion
The recommendations include the following ones:
- Increase awareness of the spectrum of filtering choices.
- Develop a toolkit for school leaders
- Establish a digital repository of internet filtering studies
- Conduct research to explore the educational uses of social media platforms and assess the impact of filtering in schools.
Schauer reviews Post’s Citizens Divided book
→ Frederick Schauer, “Constitutions of Hope & Fear” (forthcoming Yale Law Journal, 2014)
Abstract: This review essay for the Yale Law Journal of Robert Post’s Citizens Divided: Campaign Finance Reform and the Constitution contrasts Post’s hopeful and optimistic vision of discursive democracy, and its accompanying hopeful and optimistic visions of the Constitution and the First Amendment, with the more fearful and risk-averse visions well-captured by Winston Churchill’s famous observation that “democracy is the worst form of Government except all those other forms that have been tried from time to time.” Although Post’s vision is attractive in a more hopeful or even utopian way, the more pessimistic vision of democracy, of constitutionalism, and of freedom of speech, arguably exemplified in the title of John Hart Ely’s Democracy and Distrust, is distrustful of government, distrustful of legislative power, distrustful of courts, and even distrustful of public discourse. And although this essay does not seek to determine as a matter of ideal theory which vision is superior, it does suggest that, pace Post, the vision of fear and distrust may fit better with existing American constitutional doctrine and traditions. Along the way, the essay also endorses substantial campaign finance regulation but questions, against Post and many others, whether drawing a line between the speech of corporations and the speech of natural persons is consistent with either free speech doctrine or the soundest underlying justifications for a free speech principle.”
New & Forthcoming Books
- Amy Gajda, The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press (Harvard University Press, Jan., 2015)
- Ralph Young, Dissent: The History of an American Idea (New York University Press, April, 2015)
- Peter Davis, From Androboros to the First Amendment: The Writing of America’s First Play (University of Iowa Press, May, 2015)
New & Forthcoming Scholarly Articles
- Genevieve Lakier, “The Invention of Low-Value Speech” (forthcoming in Harvard Law Review, 2014)
- JoAnne Sweeny, “Sexting and Freedom of Expression: A Comparative Approach,” Kentucky Law Journal (2014)
- William Janssen, “A Historical Perspective on Off-Label Medicine: From Regulation, Promotion, and the First Amendment to the Next Frontiers,” SSRN (June 2014)
- “Can California ban gun stores from advertising handguns on their signs?,” Volokh Conspiracy, Nov. 11, 2014 (see here also)
- “Why the Perry indictment should be dismissed: count II (threat of veto), freedom of speech,” Volokh Conspiracy, Nov. 10, 2014
- “Shouting ‘Fie!’ in a crowded Boston meetinghouse,” Volokh Conspiracy, Nov. 6, 2014
- Scott Bomboy, “Even giant rats have constitutional First Amendment rights,” Constitution Daily, Nov. 12, 2014
- Andy Grimm,”Appeals court refuses to weigh in on 1st Amendment rights of anonymous online commenters,” Times-Picayune, Nov. 11, 2014
- Gene Policinski, “Seeing news from every angle is vital,” The Desert Sun, Nov. 11, 2014
- Matt Pearce, “No-fly zones over Disney parks face new scrutiny,” Los Angeles Times, Nov. 10, 2014
Last Scheduled FAN Column: #39 — “More License Plates Cases Come to High Court”
Next Scheduled FAN Column: #41 — Wednesday, Nov. 19, 2014