FAN 99 (First Amendment News) Welcome to the Marketplace of Ideologies — Where Ideas go to Die

One of the prerogatives of publishing First Amendment News is that I am free to express an editorial opinion from time to time. Thus the one that follows . . . along with some news items, of course. — RKLC


One fact has come into bold relief following the death of Justice Antonin Scalia: Ours is a more a marketplace of ideologies than one of ideas. Let me say it again: Ours is a marketplace of ideologies. In this marketplace ideas do not count for much unless they can be tapped to further some political or religious ideology. So, too, facts are of no moment if they conflict with ideology. Even the constitutional process of governing can be put on hold if it cannot be squared with ideology. And the noble pursuit of truth must take a back seat to ideology. In all of this, conservatives and liberals alike push their respective ideologies into the marketplace. We are, after all, at war — a culture war (or a “kulturkampf” as Justice Scalia tagged in in Romer v. Evans).

→ I  D  E  O  L  O  G  Y ← 

Say goodbye to John Milton and his claims in Areopagitica (1644): “And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?”

Farewell to Harold Laski’s hope expressed in Authority in the Modern State (1919): It “is in the clash of ideas that we shall find the means of truth. There is no other safeguard of progress.”

Au revoir to Holmes’s dissent in Abrams: “when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”

And adios to the “marketplace of ideas,” the one coined by Justice William O. Douglas in his concurrence in  United States v. Rumely (1953): “Like the publishers of newspapers, magazines, or books, this publisher bids for the minds of men in the market place of ideas.”

Bunk, all bunk! And why? The answer is because too often we no longer trade in ideas when they conflict with our ideologies; too frequently we no longer concern ourselves with having our thoughts accepted in the competition of the market if those thoughts cannot serve our ideologies; and who, pray tell, gives a Holmesian hoot about truth when it cannot be squared with our ideologies?

Politicians make up facts; they deny truths; they evade tough questions; and they now say anything, no matter how bizarre or hypocritical, to appeal to our ideologies. While Supreme Court Justices are not yet entirely in that league, time and again their rulings in controversial cases cut along ideological lines. In that clash, ideas have value only insofar as they advance this or that ideological end.

So scrap the old Enlightenment ideal; forget the quest for Truth; discard all that Meiklejohnian idealism about free speech and an informed electorate; chuck all that aspirational Brennan-talk about the importance of the “unfettered interchange of ideas” as a way of “bringing about of political and social changes desired by the people”; and dump all that highfalutin free speech theory preached from the pulpits of the legal academy.

Can we speak frankly? Can we talk openly about what we all know privately? Can we bring some realism into the room? If so, perhaps we will stop conflating ideas with ideologies.

Dogmatism is ideology’s calling card. Where ideology reigns supreme, an open mind poses a clear and present danger to its stability. There is no trade in ideas with ideologues, there is only the demand that all opposing views surrender to the preferred creed.

Ideology is akin to groupthink, which is to say it does not involve individual thought. It is more a reaction than a reason, more influenced by opinion than fact, and more beholden to outcomes than premises. An idea is a thought whereas ideology is an orientation. The two are very different. Whereas an idea can be tested, an ideology cannot, if only because its measure is not truth. Ideology cares not about science or logic or history or facts unless they are harnessed in its name. I D E O L O G Y trumps all.

My fear: The idea of our faith in ideas has passed. We have abdicated; we have moved on; today we trade in the marketplace of ideologies — the very place where ideas go to die.


Brooklyn Law School to Host Yet Another First Amendment Event 

Brooklyn Law School is quacking becoming a rich marketplace of ideas about free Speech and the First Amendment.  Thus, this Friday the law school will host a symposium titled “Free Speech Under Fire: The Future of the First Amendment.”

About the Symposium
E1C85355EC6B4DCD967413FD80E27F57For free speech, it may be the best of times, yet the worst of times. The Roberts Supreme Court may be the most speech-protective Court in a generation, extending free speech protection on a number of fronts and rebuffing claims by government and its allies to limit such protections. Yet these free speech rulings have drawn fire from critics, on and off the Court, who contend that the decisions are inconsistent with the democratic and egalitarian purposes of the First Amendment. Meanwhile, at home and abroad, censorship and suppression of speech seems more the rule than the exception. The Symposium will bring together many of the nation’s leading First Amendment advocates and scholars to address these pressing issues as they play out in the areas of hate speech, money and speech, corporate and commercial speech, and surveillance and speech.

Sponsored by the Journal of Law and Policy

Agenda here


  1. Floyd Abrams, Partner, Cahill Gordon & Reindel LLP
  2. Jonathan H. Adler, Johan Verheij Memorial Professor of Law, Case Western Reserve University School of Law
  3. Nicholas W. Allard, President, Joseph Crea Dean, and Professor of Law, Brooklyn Law School
  4. William Araiza, Vice Dean and Professor of Law, Brooklyn Law School
  5. Sahar F. Aziz, Associate Professor of Law, Texas A&M University School of Law
  6. Miriam H. Baer, Professor of Law, Brooklyn Law School
  7. Robert Corn-Revere, Partner, Davis Wright Tremaine, LLP
  8. Joel M. Gora, Professor of Law, Brooklyn Law School
  9. Richard L. Hasen, Chancellor’s Professor of Law and Political Science, UC Irvine School of Law
  10. Susan N. Herman, Centennial Professor of Law, Brooklyn Law School; President, ACLU
  11. Jamil N. Jaffer, Adjunct Professor and Director, Homeland and National Security Law Program, George Mason University School of Law
  12. Beryl Jones-Woodin, Professor of Law, Brooklyn Law School
  13. Greg Lukianoff, President and CEO, Foundation for Individual Rights in Education (FIRE)
  14. Hon. Andrew P. Napolitano, Distinguished Visiting Professor of Law, Brooklyn Law School; Senior Judicial Analyst, Fox News
  15. Burt Neuborne, Norman Dorsen Professor of Civil Liberties, NYU School of Law
  16. Tamara R. Piety, Phyllis Hurley Frey Professor of Law, University of Tulsa College of Law
  17. K. Sabeel Rahman, Assistant Professor of Law, Brooklyn Law School
  18. Steven R. Shapiro, National Legal Director, ACLU
  19. Bradley A. Smith, Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law, Capital University Law School
  20. Nadine Strossen, John Marshall Harlan II Professor of Law, New York Law School
  21. Nelson W. Tebbe, Professor of Law, Brooklyn Law School
  22. Jeremy Waldron, University Professor, NYU School of Law

 To attend, go here

University of Arizona Law School to Host Free Speech Workshop

Professor Derek Barbauer

Professor Derek Bambauer

Title: Speech Holes: A workshop on Free Speech Theory

University of Arizona College of Law

Date: February 25-26, 2016

Professor Jane Bambauer

Professor Jane Bambauer

Overview: Each workshop will begin with a round robin. Each participant will take a couple minutes to share his/her reactions and questions about the designated topic. These initial comments are designed to seed a conversation (with the help of a moderator.)

The public session will use a more traditional panel format. Each participant will be asked to give prepared remarks for 6-7 minutes on whether modern free speech rights are an ally or threat to public welfare. This will be followed by an exchange between the participants and then audience questions and comments.

Workshops: Titles

Workshop 1: Holes in the State Action Doctrine (Is direct government censorship the biggest threat to free speech in an era of intermediated communications?)

Moderator: Derek Bambauer

Public Session: Is Free Speech for Assholes? (Are liberals being duped into supporting free speech rights for corporations, bigots, and idiots?)

Moderator: Jane Bambauer

Workshop 2: Holes in the Theory of Coverage (What, exactly, should the First Amendment protect, and why?)

Moderator: Toni Massaro


  1. Jack Balkin, Yale Law School
  2. Derek Bambauer, University of Arizona College of Law
  3. Jane Bambauer, University of Arizona College of Law
  4. Ron Collins, University of Washington School of Law
  5. Helen Norton, University of Colorado School of Law
  6. Margot Kaminski, Ohio State University School of Law
  7. Seth Kreimer, University of Pennsylvania School of Law
  8. Genevieve Lakier, University of Chicago School of Law
  9. Toni Massaro, University of Arizona College of Law
  10. Chris Robertson, University of Arizona College of Law
  11. Carol Rose, Yale Law School & University of Arizona College of Law
  12. David Skover, Seattle University School of Law
  13.  Roy Spece, University of Arizona College of Law

Call for Abstracts and Participants: Freedom of Expression Scholars Conference

Deadline: Friday, February 26, 2016 – 11:15pm
Location: Yale Law School

abrams-logoThe Abrams Institute for Freedom of Expression and the Information Society Project at Yale Law School invite applications to participate in the fourth annual Freedom of Expression Scholars Conference (FESC).  The conference will be held on April 30-May 1, 2016, at Yale Law School in New Haven, Connecticut. We ask all those interested in participating in the conference, whether as an author or otherwise, to respond by February 26, 2016. (Note the new extended deadline.)

The conference brings together academics, practitioners and others  to discuss their scholarly works-in-progress concerning freedom of speech, expression, press, association, petition, assembly, and related issues of knowledge and information policy. The conference has become the premier gathering of First Amendment scholars in the United States. Past conferences have been great successes, including dozens of papers presented, and more than fifty scholars in attendance.

UnknownThe conference offers participants an opportunity to receive substantive feedback through group discussion. Unlike a traditional conference, authors do not give formal presentations of their work. Rather, each accepted paper will be assigned a discussant, who will briefly introduce the paper, provide feedback to the author, and lead a discussion among participants. This format permits substantive and lively discussion of ideas and writings that may be inchoate or not yet fully developed.

Participants will be expected to attend the entire conference. Accepted papers will be circulated to all conference attendees before the conference so that participants can read papers in advance and contribute to the workshop-style discussions. In the past, there have been eight sessions, running from Saturday morning through Sunday afternoon, with a welcome dinner on Friday evening for those already arrived in New Haven.

Participation in the conference is by invitation only, but we welcome paper submissions and applications to participate from a wide range of scholars, practitioners, advocates, and other members of the First Amendment community. Please feel free share this call for submissions widely in your networks.

  • Titles and abstracts of papers should be submitted electronically to sends e-mail) no later than February26, 2016.
  • Those interested in attending the conference to serve as a discussant or otherwise attending without submitting a paper should also contact sends e-mail) by February 26, 2016.
  • Workshop versions of accepted papers will be due on March 31, 2016 so that they can be circulated to discussants and other conference participants in advance.

Forthcoming Books 41m1EBTYN3L._SX310_BO1,204,203,200_

  1. Tom Slater, editor, Unsafe Space: The Crisis of Free Speech on Campus (Palsgrave Macmillan, May 11, 2016)
  2. Timothy Garton Ash, Free Speech: Ten Principles for a Connected World (Yale University Press, May 24, 2016)
  3. Terri Diane Halperin, The Alien and Sedition Acts of 1798: Testing the Constitution (Johns Hopkins University Press, June 3, 2016))
  4. Katharine Gelber, Free Speech after 9/11 (Oxford University Press, June 14, 2016)
  5. Patricia Dooley, Freedom of Speech: Reflections in Popular Culture (Greenwood Press, Aug. 2016)

Notable Blog Posts

  1. Eugene Volokh, “Court: No First Amendment right to videorecord police unless you are challenging the police at the time,” The Volokh Conspiracy, Feb. 23, 2016
  2. Ruthann Robson, “Magistrate Orders Apple to ‘Unlock’ iPhone of Deceased Shooter,Constitutional Law Prof Blog, Feb. 16, 2016

Coming Soon: FAC 6 (First Amendment Conversations) “The Law & Politics of Money: A Q & A with Professor Richard Hasen”

Forthcoming Scholarly Articles

  1. John O. McGinnis, “Neutral Principles and Some Campaign Finance Problems,” William & Mary Law Review (forthcoming 2016)
  2. Ashutosh Avinash Bhagwat , “In Defense of Content Regulation,” SSRN (Feb. 10, 2016)
  3. Brian C. Murchison, “Speech and the Truth-Seeking Value,” SSRN (Feb. 1, 2016)
  4. Tabatha Abu El-Haj , “Beyond Campaign Finance Reform,” SSRN (Feb. 9, 2016)

Noteworthy News

 Josh Solomon, “Once a thorn in government’s side, First Amendment lawyer Luke Lirot will defend Pasco County’s new sex offender ordinance,” Tampa Bay Times, Feb. 23, 2016

The Court’s 2015-2016 First Amendment Docket

Cases Decided

** Shapiro v. McManus (9-0 per Scalia, J., Dec. 8, 2015: decided on non-First Amendment grounds) (the central issue in the case relates to whether a three-judge court is or is not required when a pleading fails to state a claim, this in the context of a First Amendment challenge to the 2011 reapportionment of congressional districts) (from Petitioners’ merits brief: “Because petitioners’ First Amendment claim is not obviously frivolous, this Court should vacate the judgments of the lower courts and remand the case with instructions to refer this entire action to a district court of three judges.”) (See Rick Hasen’s commentary here)

Review Granted

  1. Heffernan v. City of Paterson (cert. petition,  amicus brief) (see blog post here)
  2. Friedrichs v. California Teachers Association, et al. (all briefs here) (Lyle Denniston commentary)

Oral Arguments Schedule 

  1. January 11, 2016:  Friedrichs v. California Teachers Association, et al. (transcript here)
  2. January 19, 2016:  Heffernan v. City of Paterson (see Howard Wasserman SCOTUSblog commentary here)(transcript here)

Review Denied

  1. Town of Mocksville v. Hunter
  2. Miller v. Federal Election Commission
  3. Sun-Times Media, LLC v. Dahlstrom
  4. Rubin v. Padilla
  5. Hines v. Alldredge
  6. Yamada v. Snipes
  7. Center for Competitive Politics v. Harris
  8. Building Industry Association of Washington v. Utter (amicus brief)

Pending Petitions*

  1. Justice v. Hosemann 
  2. Cressman v. Thompson
  3. POM Wonderful, LLC v. FTC (Cato amicus brief) (D.C. Circuit opinion)
  4. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  5. Electronic Arts, Inc. v. Davis
  6. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority (relisted)

First Amendment Related Case

  • Stackhouse v. Colorado (issue: Whether a criminal defendant’s inadvertent failure to object to courtroom closure is an “intentional relinquishment or abandonment of a known right” that affirmatively waives his Sixth Amendment right to a public trial, or is instead a forfeiture, which does not wholly foreclose appellate review?)  (see Reporters Committee for Freedom of the Press amicus brief raising First Amendment related claims)

Freedom of Information Case

→ The Court’s last Conference was on February 19, 2016 and its next is on February 26, 2016.

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.

Next FAN #100: Wednesday, March 9, 2016 (skipping next week)

Last FAN # 98: “The Roberts Court’s 5-4 First Amendment Rulings — Will They Survive?” (Feb. 17, 2016)

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