FAN 119 (First Amendment News) — Snapshots of David Cole, the ACLU’s New National Legal Director

Professor David Cole

Professor David Cole

Now that Professor David Cole has been named the new national legal director for the American Civil Liberties Union, I plan to do several posts on him and some of his views on the First Amendment.

As some may know, David Cole was the main author of the briefs in two landmark flag-burning cases:  Texas v. Johnson (1989); and United States v. Eichman (1990). William Kunstler, who argued both cases, commented that as the author of those briefs Cole was “the intellectual architect of the courtroom victories.” (See also Collins & Chaltain, We Must not be Afraid to be Free.)

David Cole likewise argued Reno v. American-Arab Anti-Discrimination Committee (1999) (First Amendment challenge to the selective enforcement of the immigration law against Palestinian immigrants based upon their political associations and activities). National Endowment for the Arts v. Finley (1998) was another First Amendment case Professor Cole argued (First Amendment challenge to NEA’s politically-based denial of federal funding to four performance artists whose works address issues of sexuality, and to the 1990 statutory provision requiring NEA grants to made “taking into consideration general standards of decency.”) He also served on the Advisory Board of The Free Expression Policy Project.

His most recent book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law (2016) (see also his remarks at Politics & Prose Bookstore, April 2016) (YouTube)

* * * * 

For now, let us turn to Professor Cole’s arguments to the Court in Holder v. Humanitarian Law Project (2010), the “material support” to terrorist organizations case.  Below are some selected excerpts from the oral arguments in that case:

Core political speech

Mr. Cole: Mr. Chief Justice, and may it please the Court: This as-applied challenge asks whether the government can make it a crime for Ralph Fertig and the Humanitarian Law Project to speak in association with the Kurdistan Workers Party.

Specifically, they seek to advocate for legal reform in Congress and the UN, to write and distribute articles supportive of Kurdish rights, to inform the Kurds of their international human rights and remedies, and to advise them on peaceful conflict resolution.

It is undisputed that the Kurdistan Workers Party engages in a wide range of lawful activities and that plaintiffs seek to support only lawful ends.

The government has a concededly compelling interest in combatting terrorism, yet it has not even tried to defend these prohibitions under strict scrutiny.

Instead, it rests its entire case on the proposition that criminalizing plaintiffs’ speech is a regulation of conduct, not speech, and therefore can be upheld under O’Brien. . . .

Justice Stevens: But, Mr. Cole, don’t you agree that some of the speech could be regulated?

Mr. Cole: –Some of my clients’ speech?

Justice Stevens: Some of the speech of your client.

Mr. Cole: I don’t think — I don’t think any of it could be prohibited, Your Honor, unless the government can satisfy the stringent scrutiny that this Court applies when Congress seeks to prohibit pure speech. . . .

Justice Stevens: You think all of the speech at issue is protected?

Mr. Cole: –I think that certainly all of the speech that I’ve just identified, which is the core–

 . . . . It’s core — and I think the reason, Your Honor, is it is core political speech on issues of public concern.

It is advocating only lawful, peaceable activities.

This Court has never upheld the criminal prohibition of lawful speech on issues of public concern.

“Money is different”

Justice Kennedy: Well, could the government, I assume — I assume you will say NGO or other organization or person from giving tsunami aid to one of these organizations, from giving them money?

Mr. Cole: I think money is different, Your Honor.

Justice Kennedy: Could they — could the government prohibit that?

Mr. Cole: I think money is different because it’s  . . . conduct, not speech.

Make Distinctions: Aid, support & membership

Justice Scalia: Any assistance you provide to these organizations cannot be separated from assistance to their terrorist activities.

Mr. Cole: Well, Your Honor, that is precisely the argument that the United States made to this Court in Scales.

And here I’m quoting from the government’s brief:

“Active membership can be proscribed even though the activity be expended along lines not otherwise illegal, since active support of any kind aids the organization in achieving its own illegal purposes. “

That was with respect to an organization that Congress spent 10 years studying, made findings that it was an international conspiracy directed and controlled by the Soviet Union with the aim of overthrowing the United States by force and violence, using terrorism.

And, nonetheless, this Court in Scales held you’ve got to distinguish between that aid and support and membership which is furthering the lawful activities and that which is furthering the illegal activities; otherwise you are penalizing the exercise of lawful speech.

The Court said the same thing in De Jonge.

Justice Ginsburg: Mr. Cole, as I remember, Scales upheld a conviction, wasn’t–

Mr. Cole: It did, Justice Ginsburg, but only because it interpreted the statute to be — to be limited to specific . . . members — active membership that is specifically intended to further the illegal ends of the group, precisely–

. . . .

Speech Tantamount to Material Support

Justice Kennedy: Suppose the speech is tantamount to material support in that it legitimizes, encourages, or strengthens the organization.

Mr. Cole: Well, two things in response to that, Justice Kennedy.First, that is what the United States argued in Scales. And, again, the Court, not only in Scales but in a host of cases striking down Communist Party statute, said you have to distinguish between aid that’s intended to further lawful activity and aid that’s intended to further illegal activity when it’s in the form of protected activity — association, here speech and association.

And, secondly–

Justice Stevens: In those cases, the real question was whether membership was enough, wasn’t it?

Mr. Cole: Active membership . . .  which the government says constitutes more than mere nominal membership.

Justice Kennedy: And this is support. It’s different.

Mr. Cole: Well, Your Honor, in De Jonge, one of these cases, one of this Court’s first First Amendment cases, the government argued that Mr. De Jonge aided the Communist Party in its illegal ends by conducting a meeting for them and being their lead speaker at the meeting.

And this Court said: We’ve got to look at what he did, and what — yes, he conducted the meeting; yes, he was a member of the Communist Party; yes, he solicited people to join the Communist Party.

But what did he do? He advocated lawful peaceable activities.

Justice Kennedy: But there wasn’t a statute on the books that prohibited material support–

Mr. Cole: Well, I don’t think it would–

Justice Kennedy: And here there is, and this is in aid of that prohibition.

Mr. Cole: Right, but Your Honor, what would — if Congress came along after the Communist Party cases and said, okay, you’ve said we can’t make it a crime to criminalize membership in the Communist Party; we are now going to make it a crime to speak in conjunction with the Communist Party — do you think the decisions would have come out any differently?I don’t think so, because this Court has said that speech is different from money, that it–

Justice Scalia: I think it’s very unrealistic to compare these terrorist organizations with the Communist Party. Those cases involved philosophy. The Communist Party was — was — was more than a — than an organization that — that had some unlawful ends. It was also a philosophy of — of — of extreme socialism.And — and many people subscribed to that philosophy. I don’t think that Hamas or any of these terrorist organizations represent such a philosophical organization.

Mr. Cole: Your Honor, this Court accepted Congress’s findings.Congress’s findings were not that this was a philosophical debating society, but that it was an international criminal conspiracy directed by our enemy to overthrow us through terrorism. . . .

Justice Scalia: They joined it for philosophical reasons. These terrorist organizations have very practical objectives. And the only reason for joining them or assisting them is to assist those practical objectives.

Mr. Cole: Well, I don’t think that’s — I don’t think that’s fair, Justice Scalia. The Humanitarian Law Project has no interest in furthering terrorism, but the Kurdistan Workers Party are the principal representatives of the — of the Kurds in Turkey. They do have an interest in protecting the rights of the Kurds. They do have an interest in encouraging the Kurdistan Workers Party to — to disavow violence and engage in lawful peaceful means of resolving their disputes . . . .

*  * Additional Materials  * * 

David Cole on the ‘Material Support’ Law and the Constitution, American Constitution Society, November 30, 2010 (YouTube)

David Cole, “The First Amendment’s Borders: The Place of Holder v. Humanitarian Law Project in First Amendment Doctrine,” 6 Harv. L. & Pol. Rev. 147 (2012)

James Bamford, David Cole & Margaret Russell — PATRIOT Acts I & II: New Assault on Liberty?, The Independent Institute, November 2003 (YouTube)

Ron Rotunda: “The ABA Overrules the First Amendment”

Writing in the Wall Street Journal, Professor Ronald Rotunda recently took issue with an American Bar Association rule:

Professor Ronald Rotunda

Professor Ronald Rotunda

“At its San Francisco convention this month, the ABA adopted a rule regulating things from lawyers’ speech to the access to their office restrooms. Even before state courts adopt these changes, law schools must teach this rule and bar exams must test on it.”

“Known as 8.4(g), the rule provides that it is ‘professional misconduct’ to engage in discrimination based on ‘race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.’ The rule specifies that discrimination includes ‘verbal’ conduct that ‘manifests bias.'”

In his op-ed, Professor Rotunda added: “More likely consequences include a scenario where, e.g., a law firm does not hire a job applicant who seeks a position as a messenger. If this firm designates restrooms by sex, the applicant can always argue that the firm engaged in ‘gender identity’ discrimination. If the disappointed job seeker identifies with the opposite sex (or claims to), he creates leverage by claiming that he was not hired because the firm’s restrooms demonstrated gender-identity bias.”

“Lawyers hauled before the discipline board will find that the proceedings, unlike courts, are typically not open to the public, there’s no jury and the rules of evidence are relaxed. . . .”

Professor Eugene Volokh has also commented on the ABA rule: “A speech code for lawyers, banning viewpoints that express ‘bias,’ including in law-related social activities,” The Volokh Conspiracy, August 10, 2016

Free Speech on College Campuses 

  1. Haley Hudler, FIRE’s Depressing Commencement Speaker Prediction May Be Coming True: University of South Carolina Announces New President-Only Policy, The Torch, August 15, 2016
  2. Susan Kruth, Oklahoma Wesleyan Joins Lawsuit Challenging 2011 ‘Dear Colleague’ Letter, The Torch, August 15, 2016
  3. Megyn Kelly and Ben Shapiro Talk About the First Amendment Being Ignored in College, YouTube, August 14, 2016
  4. John Carpay, Censoring Pro-Life Campus Club Flies In The Face Of Free Speech, Huffington Post, August 12, 2016
  5. Anthony Gockowski, Clemson protesters call free speech ‘garbage,’ plan to shut down Milo event, Campus Reform, August 10, 2016
  6. Editorial, Stand up for campus free speech: A word to the wise, and DePaul, Orlando Sentinel,August 5, 2016
  7. Tammi Rossman-Benjamin, The Jewish Exception to Free Speech on Campus, The Jewish Press, August 2, 2016
  8. Cecilia Capuzzi Simon, Fighting for Free Speech on America’s Campuses, New York Times, August 1, 2016
  9. Max Lewontin, Texas expands campus concealed carry, overriding free speech concerns, Christian Science Monitor, August 1, 2016
  10. Bob Kellogg, Campus free-speech group celebrates 2 years of victories, NENewsNow, July 21, 2016

Nominations sought for James Madison Award 

The Scripps Howard First Amendment Center is again seeking nominations for its annual James Madison Award. The award, created in 2006, honors the extraordinary efforts of the man who worked diligently for the passage of the Bill of Rights, which includes the guarantee of freedom of speech and of the press.

Director of the center is Northern Kentucky’s Mike Farrell, former managing editor of The Kentucky Post and co-founder/special projects editor of the Northern Kentucky Tribune and KyForward.

awardFarrell said nominees should be someone with significant Kentucky ties who champions the values of the First Amendment and transparent government. Nominees are not limited to journalists. Educators, librarians, lawyers, judges, community leaders, students, legislators and government workers who have taken stands or action related to freedom of expression are eligible.

he Madison Award recognizes someone who has made a contribution in one or more of these areas: open government and open records; promotion of the watchdog role of the press; defense against government or private censorship; or robust debate in the marketplace of ideas.

Efforts of the nominees must have resulted in the preservation or expansion of freedom of the press and/or freedom of speech. Dedication to the First Amendment principle of free expression is not accomplished in a day’s work but rather a lifetime. Thus the award recognizes a longterm commitment to such ideals.

The deadline for nominations is midnight Friday, Sept. 9. The Scripps Howard First Amendment Center is part of the School of Journalism and Telecommunications in the College of Communication and Information at the University of Kentucky.

Nominations should be sent to Mike Farrell, Scripps Howard First Amendment Center, School of Journalism and Telecommunications, 220 Grehan Building, Lexington, KY 40506-0042, or emailed to

For more information, contact Mike Farrell, director of the Scripps Howard First Amendment Center, at 859-257-4848 or

Latest FIRE Podcast

See alsoQ&A: First Amendment Attorney Daniel Silver of Landmark Supreme Court Case Healy v. James (Alex Morey interviewing Daniel Silver)

51ev+5SIRsL._SX327_BO1,204,203,200_Next First Amendment Salon

The next First Amendment Salon (#10) will take place at the Abrams Institute at Yale Law School on September 9th.  This Salon, which will take place during the lunch hour at the Law School and by private videocast at the Salon’s New York and DC venues.

The Salon will examine freedom of speech in the founding era.

The discussion will feature Professor Stephen Solomon  (Associate professor at NYU School of Journalism, Associate Director of the Carter Journalism Institute, and the author of Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (2016)) and Professor Akhil Amar (Sterling Professor of Law, Yale Law School) and will be moderated by Professor Nadine Strossen (John Marshall Harlan II Professor of Law, NY Law School).

Frederick County Public Libraries Presents: Freedom Reads @ Flying Dog

The Frederick County library, in conjunction with the Flying Dog Brewery, continues its Freedom Reads series.

flying dog logo“Wait – you’re having a book discussion at a brewery? You read that right. Flying Dog Brewery is starting a non-profit focusing on the First Amendment of the U.S. Constitution. And you know who else is a proponent of free speech? Your local library! So, like freedom and eagles, Flying Dog and FCPL are getting together to make something great—a Free Speech Book Club. Come for the discussion, stay for the drinks, and let freedom ring!”


  • Ronald Collins on Allen Ginsburg’s Howl — August 10, 2016: 6:00 pm
  • Michelle Markey Butler on J.K. Rowling’s Harry Potter & the Sorcerer’s S tone — July 13, 2016: 6:00 pm
  • Garrett on the U.S. Constitution through the lens of Leaves of Grass on June 8, 2016: 6:00 pm

Robert Corn-Revere is the next scheduled speaker.

See Flying Dog’s First Amendment Society (see here, too)

Flemming Rose on Free Speech

The folks at the Cato Institute have just posted Flemming Rose’s remarks as the recipient of the 2016 Milton Friedman Prize for Advancing Liberty. Professor Nadine Strossen presented the award to him.

Here are a few excerpts:

“. . . . I want to ponder a question: What is the best possible and most sustainable defense of free speech across cultures and history? More specifically in this context, I want to challenge what is probably the most popular metaphor used to defend free speech in the United States: the marketplace of ideas.”

Flemming Rose

Flemming Rose

“It was introduced by the legendary Supreme Court Justice Oliver Wendell Holmes in the fall of 1919 in a historic dissent, in which Holmes broke with his previous decisions defending severe limitations on opinions and speech, even with the help of the clear-and-present-danger test that later paved the way for the best protection of speech anywhere in the world based on the Supreme Court’s interpretations of the First Amendment throughout the 20th century, though it shouldn’t blind us to the fact that cultural and social pressure has become a threat to free speech in America.”

“Holmes said, ‘The ultimate good desired is better reached by free trade in ideas—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.'”

“The same argument for free speech was used by Milton Friedman.”

“The marketplace metaphor understands free speech as a mechanism to achieve a goal. It renders our defense of free speech problematic when the goal—in Holmes’ case truthseeking—itself is challenged. . . .”

Floyd Abrams

Floyd Abrams

Coming: New Book by Floyd Abrams

In his spare moments from litigating cases, the ever-productive Floyd Abrams finds time to write books. Early next year Yale University Press will publish his third and latest book: The Soul of the First Amendment: Why Freedom of Speech Matters. More about this as we get closer to the publication date.

Mr. Abrams’ last two books were:

Forthcoming Book

New & Forthcoming Scholarly Articles 

  1. Eugene Volokh, The Freedom of Speech & Bad Purposes, UCLA Law Review (2016)
  2. Samuel Sadeghi, Election Speech & Collateral Censorship at the Slightest Whiff og Legal TroubleUCLA Law Review (2016)
  3. Michael Grynberg, A Trademark Defense of the Disparagement Bar, SSRN (August 1, 2016)
  4. Renee Newman Knake,  Lawyer Speech in the Regulatory State, Fordham Law Review (2016)
  5. Leslie Gielow Jacobs, Government Identity Speech Programs – Understanding and Applying the New Walker Test, Pepperdine Law Review (2016)
  6. Jamie Cameron, The Great Dissent: How Oliver Wendell Holmes Changed His Mind – And Changed the History of Free Speech in America, SSRN (August 10, 2016)
  7. Anthony Lauriello, Regulation of Expression in Times Square and the First Amendment, SSRN (July 13, 2016)
  8. Gary M. Parsons, Jr., Buying Time: Protecting Free Speech and Functional Democracy by Distinguishing Between Expenditures, SSRN (August 1, 2016)

New Blog Posts

  1. Eugene Volokh, Is it a crime to publicly assert that a crime victim or witness is untrustworthy?, The Volokh Conspiracy, August 15, 2016
  2. Eugene Volokh, “Bust a deal, face the wheel”: Mel Gibson, confidentiality provisions, and the First Amendment, The Volokh Conspiracy, August 11, 2016
  3. Steven Schwinn, Officer’s Allegations of Misconduct are Protected Speech, Constitutional Law Prof Blog, August 11, 2016

News, Editorials, Commentaries & Op-eds 

Screen Shot 2016-08-16 at 1.13.23 PM

Garrett Epps, Does the First Amendment Protect Deliberate Lies?, The Atlantic, August 16, 2016

David Boaz, Individualism, Community, and Coercion, Cato Policy Report, July/August 2016

  1. Kirsten Powers, Trump’s odd view of First Amendment, Daily Record, August 17, 2016
  2. Will Bunch, Presidential campaign endangering First Amendment, Online Athens, August 16, 2016
  3. Evan Grossman, Union moves to limit First Amendment rights of teachers, Pennsylvania, August 16, 2016
  4. Alison Frankel, Backpage wants First Amendment cloak in Senate sex traffic probe, Reuters, August 15, 2016
  5. Mark Summer, Donald Trump vs. the First Amendment and the ‘disgusting’ press, Daily Kos, August 15, 2016
  6. Christina Sterbenz, Infringing upon First Amendment rights makes policing ‘virtually impossible’, Business Insider, August 13, 2016
  7. C. Ryan Barber, D.C. Circuit Blocks Senate Subpoena Targeting CEO, National Law Journal, August 12, 2016
  8. Steve Fair, The First Amendment is under attack by liberals in the name of “tolerance,” Tulsa World, August 12, 2016
  9. Noah Feldman, The First Amendment Can’t Save You From Your Homework, Bloomberg View, August 12, 2016
  10. Noah Feldman, First Amendment Has the Teeth to Help Consumers, Bloomberg View, August 11, 2016
  11. James Hoefler, Do menacing comments about Hillary Clinton cross the First Amendment line?, Washington Post, August 10, 2016
  12. Elaine Watson, San Francisco soda health warnings violate First Amendment, Food Navigator, August 9, 2016
Professor Steven Pinker

Professor Steven Pinker


  1. Steven Pinker – Free Speech and US Education, Wellesley College, August 15, 2016
  2. Trump: ‘It Is Not Freedom Of The Press When…’, Secular Talk, August 15, 2016
  3. Judge Andrew Napolitano: What the 1st Amendment Really Means, Mises Institute, August 12, 2016

The Court’s 2016-2017 First Amendment Free Expression Docket

Pending Petitions*

  1. Armstrong v. Thompson
  2. Williams v. Coalition for Secular Government 
  3. Wolfson v. Concannon
  4. Lee v. Tam
  5. Dart v.
  6. Pro-Football v. Blackhorse 
  7. Packingham v. North Carolina

 The Court’s next Conference is on September 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.

Last Scheduled FAN, #118: University of Cape Town Disinvites Flemming Rose — Floyd Abrams Dissents

Next Scheduled FAN, #120: Wednesday, August 24, 2016

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