FAN 72 (First Amendment News) Megyn Kelly — Bold Defender of Free Speech Freedoms

In America we stand for liberty, and freedom to offend, to provoke, to persuade, and to defy. — Megyn Kelly

Megyn Kelly

Megyn Kelly

Though she is a news anchor, she is very much in the news these days. She is the object of a national discussion about women. And it all stemmed from a pointed, polite, and entirely appropriate  question she posed to the most outspoken candidate currently seeking to be President of the United States.

She is, of course, Fox’s Megyn Kelly, the one who has a TV following of 2.8 million followers. Before entering the world of journalism, Ms. Kelly held her able own at the Jones Day law firm.

Her calling card: Feisty, informed, incredulous, and quick-witted. Make of her what you will — too conservative, too blond, or maybe too tough on the likes of Karl RoveDick Cheney and Donald Trump. As for the Trump flap, Ms. Kelly stood her free-press ground: ““I certainly will not apologize for doing good journalism, so I’ll continue doing my job without fear or favor,” she told viewers of The Kelly File. By the same journalistic measure, recall Ms. Kelly’s skepticism, which proved to be founded, concerning Duke University’s alleged sexual assault incident.

However you cast her, there is also this: Megyn Kelly is bullish on the First Amendment. While we still need to hear more from her on any variety of free-speech issues, what we do know at this point is that she is a woman who yields no ground when it come to our First Freedom.

[N]o matter how abhorrent one might find another’s words, in this country, we defend their right to say them. Standing up for that principle is not an endorsement of the controversial speech. It is promoting a value at the very core of who we are.  Megyn Kelly

There’s a spark of Nat Hentoff in her steadfast commitment to free speech. Just consider her response to a claim made by TV critic Howard Kurtz: “There’s a reason free speech is in Amendment number one. It goes to the core of our principles as Americans and what we stand for. You can hate the message, you can hate everything they’re saying … that is allowed in the United States of America, because, as the Supreme Court once put it, the answer to speech you do not like is not less speech. It’s more speech,”

Mr. Kelly & Mr. O'Reilly

Ms. Kelly & Mr. O’Reilly

When it comes to free speech, the TV news anchor and commentator is willing to go toe-to-toe with  anyone, even if that someone is Bill O’Reilly: “The relevnt question is not [whether] those under attack say something offensive, the relevnt question is what we do about a group that wants to kill us for exercising our contitutional rights.” (See also here)

Before the recent Trump flap, she gave the blustery billionaire a civics lesson: “What do we stand for as Americans if not freedom of speech and the ability to express yourself?”

Not surprisingly, some in the First Amendment community are taking note of Ms. Kelly and her views on free speech.

Alan Dershowitz: “Megyn Kelly has demonstrated how the First Amendment can be used to expose the real views of candidates. She provokes, and she succeeds. Keep it up.” (see also here)

Nadine Strossen: “As a law professor, I join Prof. Alan Dershowitz in awarding Megyn Kelly an A for her solid understanding of core First Amendment principles that Justices across the ideological spectrum have consistently upheld.  As a civil libertarian, I award her an A+ for her fearless, impassioned, and eloquent defense of those principles when too many others – also across the ideological spectrum – seek to trim back our First Amendment rights in response to what the Supreme Court has called “the heckler’s veto,” but what Megyn has correctly referred to as “the assassin’s veto.”

Robert Corn-Revere: “Megyn Kelly provides a clear and consistent reminder that the right to free expression includes the right to offend, and, in fact, that right cannot exist when some assert a right not to be offended.  Ms. Kelly recognizes that the role of some people in the marketplace of ideas may be mainly to serve as bad examples – but that is the only way the system can work effectively.  Everyone should have their say, and people will choose what ideas to accept or to reject.”

“Kelly speaks in a jazz-improv progression of italics, all-caps and boldface.” That is how Jim Rutenberg portrayed her in a recent and lengthy New York Times magazine profile titled “The Megyn Kelly Moment.” There is truth there provided one adds the word informed.

Ms. Kelly & Richard Fowler

Ms. Kelly & Richard Fowler

When it comes to free speech, her passion tracks her informed grasp of her subject. Simply consider her exchange with Richard Fowler when they were discussing the “Draw Muhammad” cartoon contest: “The more offensive speech is, Richard, the more protection it needs. That’s how the First Amendment works. We can defend the First Amendment right to say it without aligning ourselves with the message.” She took exception, strong exception, to notion that Americans should be squeamish or apologetic about their exercise of their First Amendment rights. She took even strainer exception to those who counseled otherwise.

In much the same vein, she took the Catholic League’s President, Bill Donohue, to task over his criticism of the Charlie Hebdo cartoonists. With finger pointed and eyes scanning, she quoted approvingly from Chief Justice William Rehnquist’s 1988 majority opinion in Hustler Magazine v. Falwell: “[T]he freedom to speak one’s mind is not only an aspect of individual liberty – and thus a good unto itself – but also is essential to the common quest for truth and the vitality of society as a whole.” [quoting Bose Corp. v. Consumers Union of United States, Inc. (1984)]

Ms. Kelly & Professor Eugene Volokh

Ms. Kelly & Professor Eugene Volokh

In a May 7, 2015 program, Kelly found a First Amendment ally in UCLA Law Professor Eugene Volokh. At the outset of that program she was emphatic: “The terrorist point was to shut us up, not just the organizers of the [Draw Muhammed Cartoon Contest] but also any American who danes to disagree with their  way of life or thinking. . . . In this country we have every right to say what we want to say about Muhammed or about anyone else for that matter.” Volokh agreed: “People are free to engage in much more offensive speech than that.” He went on to explain how the contours of modern free speech law were consistent with Ms. Kelly’s views and how such speech had value as “a reaffirmation of our free speech rights . . . “

Will her commitment continue? Will she vacillate when other tough First Amendment issues are presented to her? Who knows?  That said, it seems likely that Ms. Kelly will become an even grander figure in the world of free speech in the days and months ahead.

 See here for a listing of Ms. Kelly’s various comments concerning the First Amendment.

Opinion in Amarin Pharma, Inc. v. U.S. Food & Drug Adminstration

 Here is the District Court opinion in the Amarin off-label commercial speech case.

Commentaries 

  1. Kenneth Wilbur, “Federal Court Grants First Amendment Injunction in Amarin Case,” National Law Review, August 7, 2015
  2. Peter J. Henning, “F.D.A.’s ‘Off-Label’ Drug Policy Leads to Free-Speech Fight,” New York Times, August 10, 2015
  3. Robert King, “Drug company scores First Amendment victory,” Washington Examiner, August 11, 2015

Headline: “Federal judge in New Hampshire: Ballot ‘selfies’ are free speech, don’t encourage voter fraud”

According to a recent Associated Press story, “New Hampshire’s law banning voters from posting pictures of completed ballots online squelches free speech and isn’t needed to prevent election fraud, a federal judge ruled Tuesday. In his ruling, U.S. District Court Judge Paul Barbadoro said it’s speculation to think people will be coerced into selling votes if they can post the image online. During arguments in June, lawyers for the state acknowledged there are no known cases of vote-buying or coercion in New Hampshire.”

The case is Rideout v. Gardner (Dist. Ct., Dist of NH, Case #: 14-cv-489-PB, Aug. 11, 2015).

This from Judge Barbadoro’s opinion: “Plaintiffs challenge only the portion of [the New Hampshire law] that makes it unlawful for a voter to take and disclose an image of his or her marked ballot. As they see it, this act of disclosure, which ordinarily occurs far from the polling place and will generally be accomplished through the use of social media, is an important and effective means of political expression that is protected by the First Amendment. In contrast, Secretary Gardner defends the law primarily by arguing that it is a necessary restraint on speech that is required to prevent vote buying and voter coercion.”

Relying on Reed v. Town of Gilbert (2015), and distinguishing Walker v. Texas Division, Sons of Confederate Veterans (2015), Judge Barbadoro ruled that New Hampshire’s content-based law could not survive strict scrutiny and thus declared: “I grant the plaintiffs’ request for declaratory relief but determine that injunctive relief is not necessary at the present time.  . . . The plaintiffs’ motion for summary judgment . . . is granted to the extent that it seeks a judgment for declaratory relief, and the Secretary’s corresponding motion . . . is denied.”

Lawyers

  • Counsel for Plaintiff-Appellant: William E. Christie and Gilles Bissonnette.
  • Counsel for Defendant-Appellee Secretary of State: Stephen G. Labonte and Anne M. Edwards, Office of the Attorney General of New Hampshire
 Commentary 

→ See Richard Hasen’s comments here.

Can We Take a Joke? — New FIRE-Supported Film Examines Collision Between Comedy & Outrage

This from FIRE: “Earlier this year, comedian Chris Rock went on record saying he doesn’t play colleges anymore. It’s ‘not in [students’] political views,’ Rock said, ‘but in their social views and their willingness not to offend anybody. … You can’t even be offensive on your way to being inoffensive.'”

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It’s not just college campuses, and it’s not just Chris Rock, however. Jerry SeinfeldPatton Oswalt, and others have also noted the conflict between comedy, hypersensitivity, and political correctness on and off campus.

Bill Maher recently said, “Americans have got to learn how to take a joke.”

We at FIRE couldn’t agree more. That’s why we are proud to announce that we’ve partnered with DKT Liberty Project and director Ted Balaker of Korchula Productions to produce Can We Take a Joke?, a documentary about what happens when outrage and comedy collide.

Due for release this fall, the documentary will explore topics and cases familiar to many Torchreaders, including the case of student Chris Lee, whose satirical play Passion of the Musicalwas disrupted by a group of students who had been organized by Washington State University administrators. It will also include interviews with FIRE President and CEO Greg Lukianoff, long-time FIRE friend and Brookings Institution scholar Jonathan Rauch, and Stand Up For Speech Litigation Project attorney Bob Corn-Revere.

But what would a documentary about comedy be without the comedians?

Can We Take a Joke? has plenty of those, too. Adam Carolla, Gilbert Gottfried, Penn Jillette, Jim Norton, Lisa Lampanelli, Heather McDonald, Karith Foster, and others sat down for interviews to offer their perspectives on the state of comedy and free speech—and to tell stories of their own run-ins with the outrage buzzsaw.

The story of comedy legend Lenny Bruce is a major focus of the film. His career—and ultimately his life—ended because his routines led to obscenity charges in cities throughout the county.

It used to be the case that comedians like Lenny Bruce had to fear the police cracking down on their more edgy routines. But now, according to many comics, the audience has become the police—and its tolerance for jokes that push the boundaries is waning. It happens allthetime: a comedian tells a joke, someone gets offended, and outrage blasts across the land.

These days some people seem more interested in being outraged than having a laugh.

A release date for the film will come soon, so stay tuned. In the meantime, to learn more about the documentary, please “Like” the new Can We Take a Joke? Facebook page, follow theCan We Take a Joke? Twitter account, and sign up for email updates at the Can We Take a Joke? website.

→ See also Ronald Collins & David Skover, The Trails of Lenny Bruce: The Fall & Rise of an American Icon (Top Five Books 10th Anniversary e-book Edition, 2012)

840Campus Free-Speech Watch

Greg Lukianoff & Jonathan Haidt,  “The Coddling of the American Mind,” The Atlantic, September 2015

  1. 10 Things ‘The New Yorker’ Gets Wrong About Free Speech (Part 1),” FIRE, August 11, 2015
  2. Scott Timberg, “Stop the hand-wringing over campus PC culture: Corporations and the far right are a much bigger threat to free expression,” Salon, August 11, 2015
  3. Walter E. Williams, “Academic Fascism attacks free speech,” The News Star, August 11, 2015
  4. Cal Poly Student Sues University Over Free Speech Dispute,” CBS, August 11, 2015
  5. Ian Hanchett, “Flanagan: Free Speech Is A ‘Nuisance’ On College Campuses,” Breitbart, August 8, 2015

Forthcoming Books

  1. Rebecca Sullivan & Alan McKee, Pornography: Structures, Agency and Performance (Polity, November 2, 2015)
  2. David K. Shipler, Freedom of Speech: Mightier Than the Sword (Vintage, April 19, 2016)
  3. Wendell Bird , Press and Speech Under Assault: The Early Supreme Court Justices, the Sedition Act of 1798, and the Campaign against Dissent (Oxford University Press, February 1, 2016)

New & Forthcoming Scholarly Articles

Richard Hasen, “Election Law’s Path in the Roberts Court’s First Decade: A Sharp Right Turn But with Speed Bumps and Surprising Twists,” SSRN (August 4, 2015) (UC Irvine School of Law Research Paper No. 2015-70)

  1. Sonya Bonneau, “Ex Post Modernism: How the First Amendment Framed Nonrepresentational Art,” SSRN, (August 10, 2015)
  2. Thomas Wuil Joo, “Corporate Speech and the Rights of Others,” Constitutional Commentary (2015)
  3. Jedediah S. Purdy , “That We Are Underlings: The Real Problems in Disciplining Political Spending and the First Amendment,” Constitutional Commentary (2015)

Notable Blog Posts

  1. Eugene Volokh, “First Amendment limits on freedom of information law,” The Volokh Conspiracy, August 11, 2015
  2. Ruthann Robson, “Federal Judge Allows Steven Saliata’s Constitutional Claims to Proceed,” Constitutional Law Prof Blog, August 6, 2015
  3. Ruthann Robson, “District Judge Holds Idaho’s Ag-Gag Law Unconstitutional,” Constitutional Law Prof Blog, August 3, 2015
  4. Eugene Volokh, “Thoughts on the court decision striking down Idaho’s ‘ag-gag’ law,” The Volokh Conspiracy, August 6, 2015
  5. Eugene Volokh, “Ban on knowing lies in political campaigns violates the Massachusetts constitution,” The Volokh Conspiracy, August 6, 2015

News, Op-eds & Blog Posts

  1. Mariana Viera, “How the Lyrics of Two Violent Rap Songs Could Redefine Your Online Free Speech Protections,Huffington Post, August 11, 2015
  2. Catherine Rampell, “Republicans have their own speech police,” Richmond Times-Dispatch, August 11, 2015
  3. Colby May, “Issues to Watch: FCC Regulation of Political Speech on the Internet,The Moral Liberal, August 11, 2015
  4. Brandon Larrabee, “Florida senators complain their First Amendment rights trampled on as special session starts,” Florida-Times Union, August 10, 2015 
  5. Editorial, “1st Amendment protects civil rights of all,” Myrtle Beach Online, August 8, 2015
  6. Scott Klinger, “Silencing Factory Farm Whistleblowers Violates the First Amendment,” Center for Effective Government, August 7, 2015
  7. John Steingart, “Police Union Head Not Protected by First Amendment,” Bloomberg BNA, August 5, 2015
  8. Eugene Volokh, “TV station had First Amendment right to show suicide at the end of a police chase,” The Volokh Conspiracy, August 5, 2015

The Court’s 2015-2016 First Amendment Docket 

Review Granted

  1. Friedrichs v. California Teachers Association, et al.

Pending Petitions*

  1. Center for Competitive Politics v. Harris

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.   

Last Scheduled FAN Post, #71: Just Released: 2nd ed. of Cogan’s “The Complete Bill of Rights” — 30 New Pages on History of Press & Assembly Clauses

Last Two FAN Posts: FAN #71.2: “Floyd Abrams prevails in off-label drug case — Court grants preliminary injunction” and FAN #71:14th Circuit Strikes Down Anti-Robocall Statute

Next Scheduled FAN Post: Wednesday, August 19, 2015.

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15 Responses

  1. Shag from Brookline says:

    When this was posted, had Ailes of Fox publicly made peace with Trump by in effect throwing Kelly under the bus? This raises the 1st A economic issue of what a journalist does when the boss does this to her.

  2. Joe says:

    The response to Trump’s actions by FOX suggests one aspect of the 1A — the various interests of media ownership when the freedom of the press is put into action. This over the years led to some somewhat unsavory activities, but part of the mix.

  3. Brett Bellmore says:

    The answer to media outlets censoring their employees, is more ideological diversity in media outlets. That’s where we’ve horribly fallen down in this country; While the media were pretending objectivity, they were purging dissent, and now we’ve got a media culture where FOX looks like a break in the wall, by just not being quite so heavy handed.

    A far cry from the origins of the 1st amendment, when the media outlets were openly partisan, but it didn’t matter because all sides of the debate had their own outlets.

  4. Joe says:

    If we are pining for the great days of the 1790s when “original understanding” led to the Alien-Sedition Acts and prosecutions upheld by multiple Supreme Court justices — resulting in a pushback that was an early example of how constitutional understanding changed over time in response to events and changing facts — “dissent” was “purged” then too.

    This includes in the media sources of the time, all print of course, since they were more like advocacy magazines than “balanced” newspapers that became the norm later. We have that today too — there are loads of choices out there geared to various points of view. The choices then wasn’t always ideal, e.g., the average reader in South Carolina might not be able to get the abolitionist view point that readily especially when soon enough those who wanted that had their mail blocked.

    The idea behind FOX was that it provided a conservative viewpoint to the liberal leaning MSM — the liberal nature of the MSM somewhat exaggerated. The idea FOX was useful for not being as “heavy handed” full stop is amusing. Seriously. Come on. If you want to say CNN and the other outlets are AS heavy-handed (debatable at best), fine.

    Anyway, again, various media outlets remain partisan, underlined by ideologically slanted op-ed pages and so on. There was some development in the news where there was an understanding that it should be more “fair and balanced,” an imperfect thing at best. That’s a long complicated history, but then it’s easier to pine for the past when picking and choosing.

    • Brett Bellmore says:

      Joe, last week of the campaign, MSNBC ran ZERO negative stories about Obama, and ZERO positive stories about Romney. Vs FOX’s much more mixed coverage.

      Study: No, the mainstream media wasn’t biased… except for the last week of the campaign

      No question Fox is biased, in the opposite direction from the rest of the media. But not AS biased.

      • Joe says:

        Your link doesn’t work. This might be the link or study involved — https://www.aei.org/publication/study-no-the-mainstream-media-wasnt-biased-except-for-the-last-week-of-the-campaign/

        How one station covered one issue for one week doesn’t conclusively answer a question except perhaps if you are just trying to find something to prove something you concluded already. The fact FOX’s base already didn’t like Romney only underlines that.

        • Brett Bellmore says:

          One network. You make MSNBC sound like it’s a UHF station out in the middle of nowhere, instead of a cable network.

          Anyway, there have been plenty of studies of media bias, and the bottom line is that while most media outlets are, objectively, biased in favor of the Democratic party, Fox is biased in favor of the Republican party. But not more biased than the other networks are in favor of the Democrats, and often less so.

          Really, instead of “Fair and Balanced”, they should have just ripped off Limbaugh’s motto: “I’m not balanced, I AM the balance”. Each given piece of the media market doesn’t have to be unbiased, as long as all the biases aren’t the same. The real problem with media bias is that, with the exception of FOX, it’s relentlessly in favor of the same party. They’re the only one that hasn’t fallen in line.

          Yet.

          • Shag from Brookline says:

            Brett, a self-proclaimed anarcho libertarian and 2nd A absolutist, seems to have a problem with an absolutist 1st A speech/press clauses. Perhaps his solution is to trump (no, not “The Donald”) the 1st A with the 2nd A.

            Of course Brett’s “objectively” is merely redneck rhetoric.

          • Joe says:

            “The real problem with media bias is that, with the exception of FOX, it’s relentlessly in favor of the same party.”

            There is not an “exception” by FOX. My amusement continues — the idea FOX is BETTER than the other stations in the neutral sense of bias is a hard argument to take that seriously. It is strongly partisan. It is not an “exception.”

            Your qualifier “often less so” underlines that using a single data point (for a big or small station) is problematic. Many studies examined FOX as a whole and pointed out how it is worse than other stations. But, I’ll simplify things. I granted a basic equality. It is that it is “better,” that THIS is the positive (not that it provides a conservative alternative), that amused me.

            Anyway, the other stuff I said holds too.

  5. Shag from Brookline says:

    Is it mere coincidence that Megyn Kelly is going on vacation for a week and a half following Roger Ailes making up and playing nice with “The Donald” and stopping Megyn’s bleeding from “wherever” by applying a tourniquet to her journalistic neck? Megyn has to consider the personal economics of her journalistic principles. What better than being with her husband and children. So is it the case that Fox News is misogynistic?

  6. Shag from Brookline says:

    I did not suggest that Fox TV was a state actor or that if Fox fired Kelly it would be a 1st A violation. Fox and other media have the benefit of the 1st A. Your complaint is that the media seems to favor Democrats more than Republicans, which are protected by the 1st A. So perhaps you might resolve your complaint with some form of self defense?

    By the way, are you in agreement with all views expressed by Pew?

    • Brett Bellmore says:

      If you weren’t suggesting that Fox firing Kelly would be a 1st amendment violation, what were you implying by saying, “Brett, a self-proclaimed anarcho libertarian and 2nd A absolutist, seems to have a problem with an absolutist 1st A speech/press clauses.”

      Just because I think the media are biased, doesn’t mean I want Congress to pass a law. Mainly, I think conservatives are morons for not buying more media outlets, when the old style media are going for fire sale prices.

      No, I’m not always in agreement with Pew, but when a polster that makes a living pleasing Democrats says (most of) the media are biased in favor of Democrats, you should pay attention. You’re familiar with the concept of a “statement against interest”, right?

      • Shag from Brookline says:

        An absolutist 1st A speech/press clause permits media to favor one political party over another. Your complaint is that much of the media allegedly favors Democrats over Republicans. You of course can complain about this via your 1st A rights. But how do you address your complaint, with words only, or do you think you have 2nd A self defense rights to resolve your complaint?

        I note you cherry-pick Pew as you do provisions in the Constitution.

  7. Joe says:

    http://www.nytimes.com/2015/08/17/magazine/this-looks-like-a-national-strategy.html

    A past thread included a debate over NC voting laws. A question in the article covers the issue.