FAN 56 (First Amendment News) Floyd Abrams Signs Contract to do Third Book on Free Speech

Floyd Abrams

Floyd Abrams

If only he didn’t so much enjoy the lawyering life, Floyd Abrams might have been a law professor. For he surely savors publishing books and articles. Witness his Speaking Freely: Trials of the First Amendment (Penguin, 2006), followed by his Friend of the Court: On the Front Lines with the First Amendment (Yale University Press, 2013) — this in addition to numerous law review articles and op-eds (see here).

Now, only a little more than a year since his last book was published, Mr. Abrams has signed a contract to do yet another book on free speech. Its title: Why the First Amendment Matters. The book will be a part of the “Why X Matters” series published by Yale University Press. Other works in that series include Mark Tushnet’s Why the Constitution Matters (2011) and Louis Begley’s Why the Dreyfus Affair Matters (2010).

The work will be in the 30,000-40,000 words range with a submission date of November 15, 2015. Steve Wasserman is Abrams’ editor. Mr. Wasserman is the former editor of the Los Angeles Times Book Review and served as the editorial director of Times Books and publisher of Hill & Wang, an imprint of Farrar, Straus & Giroux. He is a past partner of the Kneerim & Williams Literary Agency and is currently the executive editor at large for Yale University Press (he specializes in trade publications).

The 78-year-old Abrams shows no signs of retiring anytime soon and continues to manage a full workload (and then some) as a practicing lawyer. That said, he still has a ways to go to top the publishing record of another First Amendment lawyer, Theodore Schroeder (1864-1953) — the co-founder of the Free Speech League (the precursor to the ACLU) and the author of several books on free speech.  To be fair, however, Schroeder was more of a writer and activist than a litigator, so he did not have to worry about the demands of being a full-time practitioner.

 See also Floyd Abrams, “Libert is Liberty” (March 16, 2015 speech at Temple University Law School)

Go here for a list of practicing lawyers who have written books on free speech.

 Forthcoming Event: Floyd Abrams Institute: Freedom of Expression Scholars Conference # 3 (Saturday, May 2, 2015 – 8:15 a.m. to Sunday, May 3, 2015 – 5:15 p.m.) (Mr. Abrams will be in attendance)

Hillary Clinton: ‘I would consider’ anti-Citizens United amendment

The movie that gave rise to the Citizens United case

The movie that gave rise to the Citizens United case

This from an MSNBC news report: “Taking questions from Facebook users at the social media giant’s California headquarters Monday evening, Clinton expressed some interest in the idea. ‘I would consider supporting an amendment among these lines that would prevent the abuse of our political system by excessive amounts of money if there is no other way to deal with the Citizen’s United decision,’ she said in response to a question on the measure.”

“Taking questions from Facebook users at the social media giant’s California headquarters Monday evening, Clinton expressed some interest in the idea. “I would consider supporting an amendment among these lines that would prevent the abuse of our political system by excessive amounts of money if there is no other way to deal with the Citizen’s United decision,” she said in response to a question on the measure.”

→ See also YouTube video clip here.

Garry Trudeau Takes Aim at Charlie Hebdo — Critics Fire Back 

Garry Trudeau, Stanford University, April 2014

Garry Trudeau, Stanford University, April 2014

Writing in The Atlantic, the famed cartoonist Garry Trudeau (best known for the Pulitzer Prize-winning Doonesbury comic strip) recently published remarks entitled “The Abuse of Satire.” The text is based on Mr. Trudeau’s remarks delivered on April 10th at the Long Island University’s George Polk Awards ceremony, where he received the George Polk Career Award (he is the 33rd recipient of the award).

Here are a few excerpts: “Traditionally, satire has comforted the afflicted while afflicting the comfortable. Satire punches up, against authority of all kinds, the little guy against the powerful. Great French satirists like Molière and Daumier always punched up, holding up the self-satisfied and hypocritical to ridicule. Ridiculing the non-privileged is almost never funny—it’s just mean. . . .”

“What free speech absolutists have failed to acknowledge is that because one has the right to offend a group does not mean that one must. Or that that group gives up the right to be outraged. They’re allowed to feel pain. Freedom should always be discussed within the context of responsibility. At some point free expression absolutism becomes childish and unserious. It becomes its own kind of fanaticism. . . .”

“It’s not easy figuring out where the red line is for satire anymore. But it’s always worth asking this question: Is anyone, anyone at all, laughing? If not, maybe you crossed it.”

→ For three opposing views, see: 

  • Eugene Volokh, “Adherents of Islam, second largest religion in the world, are a ‘powerless, disenfranchised minority’?,” Volokh Conspiracy, April 11, 2015 (“Whatever the status of Muslims might be in France, Charlie Hebdo’s famous cartoons weren’t commenting on French Muslims as such — they were commenting on Islam generally, and particularly at the more traditionalist strands of Islam.Islam has an estimated 1.6 billion adherents, and is the most powerful religion in many important countries. Being powerful, it has been doing plenty of its own “punching downward” lately, and not just by means of satire. It has plenty of “the self-satisfied and hypocritical” within it. Much within Islam — like much within many religions — merits some “afflicting” through criticism and even ridicule.”)
  • John Hinderaker, “Punching Down & Shooting Back,” PowerLine, April 12, 2015 (“In his younger days I suppose Trudeau would have claimed to be an advocate of free speech, but no longer. He has joined most others on the Left in the view that whether speech is free or not depends on whether it conforms to leftist dogmas. Thus, Charlie Hebdo’s satirizing of Islam was “hate speech.” While he doesn’t quite come out and say it, Trudeau seems to think that the magazine’s editors had it coming.”)
  • John Nolte, “Victim-Blaming: Garry Trudeau Blasts Charlie Hebdo’s ‘Hate Speech,” Breitbart News, April 11, 2015 (“What Trudeau fails or chooses not to understand is that rebellion is not hate speech. Charlie Hebdo was not gratuitously mocking Mohammed or Jesus Christ or the Pope. For the cause of free speech, Charlie Hebdo was pushing back against what it rightly saw as creeping fascism, especially Islamic fascism, in the most blatant and in-your-face way possible.”)
Bill Maher

Bill Maher

→ For an earlier opposing view by way of comedy, see Real Time with Bill Maher, “Self Censorship vs. Free Speech” (HBO, Jan. 16, 2015) (BM: Students at U.C. Berkeley were “protesting me for once saying that ‘Islam is the only religion that acts like the mafia and will kill you if you say the wrong thing or draw the wrong picture,’ and then two jihadists gunned down twelve people in Paris for saying the wrong thing and drawing the wrong picture — you have to tell me, where do I go to protest you?”).

Steven Shiffrin: “Why do liberals value freedom of speech over freedom of religion?”

Professor Steven Shiffrin

Professor Steven Shiffrin

In a new post on, Cornell Law Professor (emeritus) Steven Shiffrin asked the question raised above.

Before getting to his answer to that question, let me quote the opening to his blog post: “Liberals think it obvious that evangelical Christians should not have a constitutional right to discriminate in hiring or in deciding which customers to serve on the basis of sexual orientation. I agree with these conclusions, but I think the question whether good faith religious liberty claims should be respected in the case of customer discrimination should be regarded as a closer question than most liberals would concede.”

It is against that backdrop that Shiffrin asks: “Why do liberals value freedom of speech over freedom of religion?”

His answer: “Why should the state tolerate hate speech on the basis of sexual orientation (not to mention race)? If permitting some religious individuals the ability to discriminate against gays and lesbians in the purchasing of products and services is a stigmatizing denial of equality, how much more stigmatizing is virulent hate speech? In addition, however difficult it might be for many liberals to muster any empathy for the evangelical Christian who feels a religious obligation not to serve gays or lesbians, the explicitly homophobic hate monger is surely worthy of substantially less respect which is to say – no respect.”

And here is how he ends his post: “Which is worse? Denying the sale of a product on the basis of sexual orientation because of a traditional, albeit untenable, religious position or engaging in a homophobic diatribe designed to stigmatize gay and lesbian citizens on the basis of who they love? I think the question answers itself.”

See also “Steve Shiffrin, the Dissenter at the First Amendment Table,” Concurring Opinions, May 12, 2014

Screen Shot 2015-04-13 at 10.07.26 PM

For info re above, go here 

Coast Guard: Environmental Protestors to be Confined to “First Amendment Area”  

Are these people in the zone? The First Amendment zone? (credit: The Stranger)

Are these people in the zone? The First Amendment zone? (credit: The Stranger)

‘To address whatever is going to happen when Shell’s Arctic drilling fleet arrives in Seattle’s port—like, oh, the presence of an unusual number of environmentalist kayakers—the US Coast Guard will be establishing safety zones around Shell’s vessels and a “First Amendment” area near Terminal 5.’

So reports Amanda Lee writing in The Stranger. “When the Polar Pioneer drilling rig is towed to Seattle,” she adds, “activists will have to stay 100 yards away from the vessel when it’s stationary, and 500 yards away when it’s moving. A temporary restraining order established by a federal judge in Alaska mandates longer distances for Greenpeace—they have to stay 1,000 meters away from the vessels in transit.”

“Puget Sound sector commander Captain Joe Raymond also invited some environmental groups to come in on Monday and talk about safety and upcoming protests. “Working with them, we have found a location just to the north of T-5 that will be a great place for people to express their First Amendment rights,” he told reporters on Tuesday morning. ‘They’ll be able to safely launch their kayaks from nearby ramps, be able to be seen, to be heard, but to be able to stay out of the traffic lanes.'”

Penalties: Coral Garnick of the Seattle Times also reported that “[p]rotesters who enter the safety zones could face civil and criminal penalties. Coast Guard spokesman Lt. Dana Warr said a civil penalty would not exceed $40,000, while criminal penalties, for violations which are willful and knowing, have a maximum punishment of 10 years in jail, a $250,000 fine, or both.”

Group Releases First Free Speech Report

Unknown-1The American Booksellers for Free Expression (ABFE) has just released its inaugural issue of the Free Speech Report.

The Report is published monthly by the ABFE, the successor of the American Booksellers Foundation for Free Expression, which merged with the American Booksellers Association. The Free Speech Report seeks to inform booksellers, those in the publishing industry, and members of the public about the ongoing fight to defend the freedom to read. The notice was released by Chris Finan, ABFE’s director.

Go here to subscribe to the monthly Report, which is free of charge.

More on the Michigan American Sniper Flap

Professor Howard Wasserman

Professor Howard Wasserman

Over at PrawfsBlawg, Professor Howard Wasserman weighed in on the University of Michigan free-speech flap concerning the cancelled showing of American Sniper at a UMix. As Wasserman sees it; “The First Amendment’s preferred response, Justice Brandeis would tell is, is counter-speech. And the objecting students could have engaged in all manner of it here–protest outside or around the building, take to various fora real and virtual fora to urge people not to attend, show a different, contrary movie at the same time and in a similar location. But that never seems to enter the picture; the objector’s move is to jump directly to silencing the message to which they object.”

“Why?,” he asks and then offers three answers:

  1. “One possibility is that the harm caused by the speech being heard is simply too great–the harm comes with the film and cannot be alleviated by alternative messages. This view is bound-up with unique concerns about identity, disadvantaged groups, and social power imbalances. This is not your grandfather’s censorship of socialism and dirty movies–the sorts of speech that progressives sought to protect once upon a time. This is about racism and hate crimes and its utterance cannot be tolerated.” (fn omitted)
  2. “A second possibility is that counter-speech is hard. It requires people to get out there, organize, protest, etc. Obviously these students worked hard to create the groundswell necessary for the university to cave, sending out messages and garnering support. But organizing new events and protests requires another level of commitment. Plus, your side may lose with counter-speech–you may not convince anyone to come over to your position and more people may choose to see the movie anyway. The only sure way to win is not to let the other side be heard.”
  3. “[A] third possibility shifts the blame back to the university. Acting on concerns for safety, convenience, and ‘order,’ universities (and governments generally) make counter-speech incredibly difficult. Universities demand permits, push many protests into ‘free speech zones,’ impose restrictions on the numbers of protesters and where they can be and when, and generally create all manner of time, place, and manner limitations designed to ensure that public protest not last and that it not inconvenience or annoy anyone else. The result is to deter counter-speech–it simply becomes too difficult to do . . . “

His bottom line: “By limiting the type of counter-speech in which protesting students might engage, the university itself leaves protesting students with no option but to call for silencing.”

Numerous New & Forthcoming Books & Broadsides 

  1. Geoff Kemp, Censorship Moments: Reading Texts in the History of Censorship and Freedom of Expression (Bloomsbury Academic, January 15, 2015)
  2. Alex Brown, Hate Speech Law: A Philosophical Examination (Routledge, March 25, 2015)
  3. Andrew C. McCarthy, Islam and Free Speech (Encounter Broadside, #42, April 14, 2015)
  4. Committee to Protect Journalists, Attacks on the Press: Journalism on the World’s Front Lines (Bloomberg, April 20, 2015)
  5. David P. Fidler, editor, The Snowden Reader (Indiana University Press, April 24, 2015)
  6. Pat R. Scales, Scales on Censorship: Real Life Lessons from School Library Journal (Rowman & Littlefield Publishers, April 24, 2015)
  7. Gordon S. Jackson, Christians, Free Expression, and the Common Good: Getting Beyond the Censorship Impulse (Lexington Books, April 30, 2015)
  8. Kirsten Powers, The Silencing: How the Left is Killing Free Speech (Regnery Publishing, May 4, 2015)
  9. Robert Justin Goldstein, editor, Little “Red Scares”: Anti-Communism and Political Repression in the United States, 1921-1946 (Ashgate Pub Co., new edition, May 5, 2015)
  10. Nicole Moore, editor, Censorship and the Limits of the Literary: A Global View (Bloomsbury Academic, July 30, 2015)
  11. Helena Carrapico & Benjamin Farrand, editors, The Governance of Online Expression in a Networked World (Routledge, August 8, 2015)
  12. Pat R. Scales, Books under Fire: A Hit List of Banned and Challenged Children’s Books (Amer Library Assn Editions, September 1, 2015)
  13. Robert Justin Goldstein & Andrew Nedd, editors, Political Censorship of the Visual Arts in Nineteenth-Century Europe: Arresting Images (Palgrave Macmillan, September 2, 2015)
  14. Mickey Huff & Andy Lee Roth, editors, Censored 2016: The Top Censored Stories and Media Analysis of 2014-15 (Seven Stories Press, October 6, 2015)
  15. John C. Knechtle, Mastering First Amendment Law (Carolina Academic Press, Nov. 2015)

David K. Shipler, Freedom of Speech: Mightier Than the Sword (Knopf, May 12, 2015, 352 pp). Here is the publisher’s blurb:

Unknown“With his best seller The Working Poor, Pulitzer Prize winner and former New York Times veteran David K. Shipler cemented his place among our most trenchant social commentators. Now he turns his incisive reporting to a critical American ideal: freedom of speech. Anchored in personal stories — sometimes shocking, sometimes absurd, sometimes dishearteningly familiar — Shipler’s investigations of the cultural limits on both expression and the willingness to listen build to expose troubling instabilities in the very foundations of our democracy.”

“Focusing on recent free speech controversies across the nation, Shipler maps a rapidly shifting topography of political and cultural norms: parents in Michigan rallying to teachers vilified for their reading lists; conservative ministers risking their churches’ tax-exempt status to preach politics from the pulpit; national security reporters using techniques more common in dictatorships to avoid leak prosecution; a Washington, D.C., Jewish theater’s struggle for creative control in the face of protests targeting productions critical of Israel; history teachers in Texas quietly bypassing a reactionary curriculum to give students access to unapproved perspectives; the mixed blessings of the Internet as a forum for dialogue about race.”

“These and other stories coalesce to reveal the systemic patterns of both suppression and opportunity that are making today a transitional moment for the future of one of our founding principles. Measured yet sweeping, Freedom of Speech brilliantly reveals the triumphs and challenges of defining and protecting the boundaries of free expression in modern America.”

→ Mick Hume, Trigger Warning: Is the Fear of Being Offensive Killing Free Speech? (William Collins, June 18, 2015). Here is the publisher’s blurb:

UnknownFree speech is being threatened, not by jackbooted censorship but by a creeping culture of conformism. This is a call to gird up our loins and laptops to fight the new free speech wars. Do we really need to worry about free speech in the West these days? After all, while the Internet might be censored in China and “blasphemers” can be executed in Islamist states, here everybody in public life insists that they now support free speech. And yet…Scratch the surface and it becomes clear that many support not so much free speech as speech on parole, released on licence with a promise of good behaviour, preferably wearing a security ankle bracelet to stop it straying from the straight and narrow.”

“Lobbies demanding tighter regulation for the UK press try to differentiate between what they deem the respectable, serious press and the vulgar, irascible tabloids. Twitter has become the scene of “twitch hunts” where online mobs hunt down trolls and others who step outside the accepted conventions of online opinion. Football fans are nicked for a “racially-motivated public order offence” after calling a famously fat and Scottish manager a “fat Scottish w****r”. In today’s context, these all become coded ways to insist that there is too much freedom of expression in our society. And yet without freedom of expression, no other liberties would be possible. Against the background of the historic fight for free speech, this book identifies the unique challenges facing freedom of expression today and spells out how unfettered freedom of expression, despite the pain and the problems it entails, is the most important liberty of all.”

Akeel Bilgrami & Jonathan R. Cole, editors, Who’s Afraid of Academic Freedom? (Columbia University Press, February 10, 2015) (contributors include: Judith Butler, Noam Chomsky, Jon Elster, Stanley Fish, Robert Post & Geoffrey Stone)

Maryrose Carroll, Beats Me: Love, Poetry, Censorship, from Chicago to Appalachia (Big Table Book, February 16, 2015) (“Beats Me is quintessentially a love story and a ‘fascinating account os some of the most vibrant, stormy and controversial times in American literature.’ Combining literary history with very personal drama, I tell the tale of my husband, Paul Carroll, and his exploits with the censorship of his little magazine, Big Table, by The University of Chicago and the attempted censorship the U. S. Post Office in 1959.)

New & Forthcoming Scholarly Articles 

  1. Kevin Huguelet, “Death by a Thousand Cuts: How the Supreme Court Has Effectively Killed Campaign Finance Regulation by Its Limited Recognition of Compelling State Interests,” University of Miami Law Review (forthcoming 2015)
  2. Danieli Evans, “Commercial Religious Exercise: Translating the Commercial Speech Doctrine to the Free Exercise Clause,” Georgetown Law Journal
  3. Carlos A. Ball, “Obsecenity, Morality, and the First Amendment: The First LGBT Rights Cases Before the Supreme Court,” Columbia Journal of Gender and Law (forthcoming 2015)
  4. Micah L. Berman, “Manipulative Marketing and the First Amendment,” Georgetown Law Journal (2015)
Cover of NMU student newspaper

Cover of NMU student newspaper

News Stories, Editorials, Op-eds & Blog Posts 

Eugene Volokh, “N.Y. court: Legal to surreptitiously photograph people in their homes, and sell those photos,” Volokh Conspiracy, April 10, 2015 (case: Foster v. Svenson)

Ruthann Robson, “En Banc Ninth Circuit Rejects First Amendment Challenge to Ballot Initiative Sponsor Requirements,” Constitutional Law Prof blog, April 3, 2015 (case: Chula Vista Citizens for Jobs and Fair Competition v. Norris)

  1. Editorial, “Preservation of First Amendment rights more important than protecting [N. Mich. U.] administration,” Oklahoma Daily, April 14, 2015
  2. Daniel Terdiman, “Feds concede drone filmmakers have First Amendment rights,” VB News, April 14, 2015
  3. Islamophobic ads highlight free speech controversy,” The DePaulia, April 12, 2015
  4. Avaya Shamira, “Free Speech and Mandatory Voting: You’ve Been There; You’ve Done That,” Daily Kos, April 11, 2015
  5. M.D. Harmon, “First Amendment Applies to Everyone — Even Students,” Portland Press Herald,  April 11, 2015
  6. New .sucks domain stirs up storm over free speech,” Relaxnews, April 10, 2015
  7. Anne Midgette, “Free speech or hate speech? Lisitsa and the TSO,” Washington Post, April 9, 2015
  8. White House supports banning sexual orientation conversion therapy,” Jurist, April 9, 2015
  9. Federal appeals court: Larry Flynt may pursue sealed Missouri execution records,” Jurist, April 8, 2015

Newly-Posted YouTube Videos 

  1. Xuan Shantae, “‘US citizen has no right to free speech?’ State Dept spokesperson grilled over Snowden,” YouTube, April 13, 2015 (State Dept. press conference re Edward Snowden)
  2. The David Pakman Show, “Why Can’t They Understand the First Amendment?,” April 11, 2015 (interview with Burt Neuborne)
  3. Elbert P. Tuttle Federal Courthouse, First Amendment Audit” (re videoing in front of federal courthouse & interaction with police), April 7, 2015

Flashback: Daniel Elllsberg on the Pentagon Papers Controversy (video, cira 2001)


[last updated: 4-6-15]

The next Court Conference is scheduled for April 17th and oral arguments will resume on April 20th.

Review Granted

  1. Elonis v. United States (argued on 12-1-14)
  2. Williams-Yulee v. The Florida Bar (argued 1-20-15)
  3. Reed v. Town of Gilbert (argued on 1-12-15)
  4. Walker v. Texas Division, Sons of Confederate Veterans (license plate case) (argued 3-23-15)

Pending Petitions

  1. Berger v. American Civil Liberties Union of North Carolina (license plate case)
  2. Thayer v. City of Worcester
  3. Friedrichs v. California Teachers Association, et al.
  4. Apel v. United States (Erwin Chemerinsky, counsel of record)
  5. Central Radio Co., Inc. v. City of Norfolk

Review Denied

  1. Dariano v. Morgan Hill Unified School District
  2. The Bronx Household of Faith v. Board of Education of the City of New York 
  3. Arneson v. 281 Care Committee
  4. Kagan v. City of New Orleans
  5. on 8 v. Bowen
  6. Clayton v. Niska
  7. Pregnancy Care Center of New York v. City of New York 
  8. City of Indianapolis, Indiana v. Annex Books, Inc.
  9. Ashley Furniture Industries, Inc. v. United States 
  10. Mehanna v. United States
  11. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  12. Vermont Right to Life Committee, et al v. Sorrell

LAST SCHEDULED FAN POST, #55: “Another Sign Case Comes to the Court

NEXT SCHEDULED FAN POST, #57, Wednesday, April 22, 2015

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