FAN 123 (First Amendment News) When you think of free speech, think of “45” — New book by Stephen Solomon explains why

It is said that the dead live on the lips of the living.  And so it was at the Floyd Abrams Institute for Freedom of Expression at Yale Law School last Friday when it co-hosted the tenth First Amendment Salon.

The discussion centered around Professor Stephen D. Solomon’s new book Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (2016).

Stephen Solomon, Nadine Strossen & Akhil Amar

Stephen Solomon, Nadine Strossen & Akhil Amar

Speaking before a full house at YLS, Professors Akhil Amar and Nadine Strossen joined in the exchange with Professor Solomon. The event was introduced by Floyd Abrams and was video-cast live to audiences at the offices of Levine Sullivan Koch & Schulz in New York and Washington, D.C.

Much of the lively discussion focused on dissenting speech (including symbolic expression) in the revolutionary era. In the course of an animated, opinionated, and sophisticated dialogue, there were several references to the number “45” and its significance in the history of free speech. So why?

Here is where Professor Solomon’s well-researched book came into play (as the excerpts below reveal):

“[T]he number forty-five [was] symbolically linked to John Wilkes, a member of Parliament who gained renown for going to jail after criticizing the king in the forty-fifth issue of the newspaper [The North Briton] he published” in 1763.

“First in England and then in America, those who sympathized with Wilkes began engaging in an endless variety of symbolic protests with the number forty-five as the common theme.”

unknown-1 “On the evening of March 14, 1770, a prison guard opened the doors of Alexander McDougall’s jail cell so that visitors could enter.  There were forty-five visitors, to be exact, and all of them were women. . . . For publicity sake — and all of this was for publicity sake — the forty-five women had been described to the public as virgins. McDougall had been jailed for criticizing the royal governor and the New York general assembly, and his supporters aimed to to draw attention to him as a martyr for the cause of liberty.”

“In 1769, the Boston Gazette noted that forty-five ladies engaged in spinning linen and cotton, providing cloth to replace the British goods boycotted in the non-importation agreements. The Sons of Liberty in Boston made a procession of forty-five carriages, while . . . [at] an orchard outside Charleston, patriots decorated their Liberty Tree [see above] with forty-five lights and fired forty-five rockets.”

There is more, to be sure, but you’ll have to read Revolutionary Dissent to find out what you’re missing.

One more notable point: The text of the First Amendment contains, yes, 45 words!

Amar & Strossen channel Madison 

One of the high moment of the event came toward the end when Amar began to recite portions of James Madison’s November 27, 1794 speech in Congress. As soon as he begun to mouth the opening words, Strossen joined in memorized unison and harmony: “If we advert to the nature of republican government, we shall find that the censorial power is in the people over the government, and not in the government over the people.”

A video of this salon will be posted in an upcoming issue of FAN.

The next salon will be held in Washington, D.C. on Thursday, December 8th and will involve a dialogue between David Cole (the new National Legal Director for the ACLU) and Jess Bravin (the WSJ Supreme Court correspondent).

Headline: “Supreme Court won’t block Senate subpoena for”

This from Josh Gerstein writing in Politico: “The Supreme Court has refused to block a Senate panel’s subpoena seeking records from about the prevalence of ads for sexual services, including incidents of minors being sexually trafficked via the site. Chief Justice John Roberts stepped in last week, temporarily halting enforcement of the subpoena from the investigative subcommittee of the Senate Homeland Security and Governmental Affairs Committee while the high court considered the stay application. However, in an order Tuesday, the court denied the stay sought by the online classified-ad website Backpage and its CEO Carl Ferrer. No justice publicly dissented from the court’s action, although Justice Samuel Alito indicated he recused himself from the case. . . .”

MN high court to review law outlawing adult sex-texting to minors

This from Brandon Stahl writing in the Star Tribune: “The Minnesota Supreme Court will take up a case looking at whether a state law banning adults from sexting with minors is unconstitutional.”

“In what became known across some internet forums as the ‘Lunch Lady sexting case,’ Dakota County prosecutors charged Krista Ann Muccio with two felonies in 2014 after she was accused of exchanging nude photos and lewd texts with a 15-year-old boy.

“Muccio, 43, met the boy when he was in 8th grade while she worked at the Inver Grove Heights middle school and high school cafeteria, according to court records. The two began texting in June 2014. That November the boy’s father found nude photos sent by Muccio on his son’s iPad. Police later found texts from Muccio writing that she wanted to have sex with the teen.”

“Muccio sought to dismiss the first count, communication with a minor describing sexual conduct, arguing that one of the laws Dakota County accused her of breaking instead violated the First Amendment’s protection of freedom of speech.”

“Minnesota’s law makes it illegal for anyone to engage “in communication with a child or someone the person reasonably believes is a child, relating to or describing sexual conduct.’

“Muccio’s attorney argued that the law was so broad that it could capture constitutionally protected speech. . . .”

Campus Free Speech 

  1. Alex Morely, Professors Standing Up for Freedom of Association at Harvard, FIRE, September 13, 2016
  2. Robert Shibley, New Video of Last Year’s Yale Halloween Costume Confrontation EmergesFIRE, September 13, 2016
  3. Zach Greenberg, Berkeley Protesters Attack College Republicans, Campus Police Let It Happen, FIRE, September 13, 2016
  4. Rick Ruggles, UNL chancellor’s comments spark free-speech debate, Omaha World-Herald, Sepetember 12, 2016
  5. Daniel Jacobson, Freedom of Speech Under Assault on Campus , Cato Institute Policy Analysis (2016)
  6. Aleister, Study Confirms Free Speech is Under Assault on College Campuses, Legal Insurrection, September 10, 2016

Coming to Brown University: “Should Free Speech be Limited on College Campuses?”

The Political Theory Project at Brown University invites you to our annual Constitution Day Lecture on Thursday, September 15 at 5 pm in Smith-Buonanno Hall, Room 106 at Brown University.

This year, our featured speakers Stanley Fish, Floersheimer Distinguished Visiting Professor of Law at Yeshiva University’s Benjamin N. Cardozo School of Law, and Greg Lukianoff, president of the Foundation for Individual Rights in Education will present their opposing viewpoints on the issue of free speech on college campuses.

This event is free and open to the public.

Upcoming Event: Signs and Speech One Year After Reed

Today the State & Local Legal Cenetr will host an event at 1:00 pm (ET) entitled “Signs and Speech One Year After Reed.”

Last summer the Supreme Court declared part of the Town of Gilbert’s sign code unconstitutional ruling  that content-based regulations are subject to strict scrutiny. John M. BakerGreene Espel, will discuss how local governments have been modifying their sign codes to come into compliance with Reed v. Town of Gilbert, Arizona and how courts have interpreted the Reed decision in and out of the sign context.

The webinar is FREE. Continuing legal education (CLE) credit is not offered.

Register here

Bill Maher

Bill Maher

Bill Maher to receive PEN First Amendment Award

Writing in the Los Angeles Times, Carolyn Kellogg reports that “[t]alk show host Bill Maher will be presented with PEN center USA’s First Amendment Award at the organization’s 26th Literary Awards this month. The award has previously been given to journalists Chris Hedges, Robert Scheer and Charles Bowden; Glenn Greenwald and documentarian Laura Poitras; Hugh Hefner; and former CIA officer  John Kiriakou, who went to prison after leaking information about interrogation practices. . . .”

Forthcoming Book

New & Forthcoming Scholarly Articles

  1. Andrew Gilden, Punishing Sexual Fantasy, William & Mary Law Review (forthcoming 2016-17)
  2. Timothy McGettigan, Survival of the Fittest Ideas: The Enduring Importance of Free Speech on Campus, SSRN (Sept. 4, 2016)
  3. Adam Dunbar, Charis Kubrin & Nicholas Scorch, The Threatening Nature of ‘Rap’ MusicPsychology, Public Policy and Law (2016)
  4. Daniel Jacobson, Freedom of Speech Under Assault on Campus , Cato Institute Policy Analysis (2016)

Volokh on proposed Consumer Review Fairness Act

Eugene Volokh, Congress to allow special restrictions on speech ‘inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic’?, The Volokh Conspiracy, September 13, 2016

“On Monday the House of Representatives passed the Consumer Review Fairness Act, which would invalidate most form contracts that limit consumer reviews of businesses. If a business purports to require consumers not to criticize the business (see the KlearGear controversy), that contract would be unenforceable, and the Federal Trade Commission and state enforcement agencies would be able to take action against such a business even if it didn’t try to sue for breach of the contract. The Senate passed a similar bill last year. . . .”

“[W]hat struck me about the law is its exemption of certain kinds of contracts (see subsection (b)(3)): The law ‘shall not apply to the extent that a provision of a form contract prohibits . . . submission of,” among other things, material that “contains the personal information or likeness of another person, or is libelous, harassing, abusive, obscene, vulgar, sexually explicit, or is inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic’ (emphasis added).”

“So speech on all sorts of viewpoints would be protected by the proposed law, even against private contractual restrictions. A business couldn’t require users to agree to a contract that forbids critical reviews. A fur store couldn’t do the same as to anti-fur reviews; a restaurant couldn’t do the same to reviews that faulted it for serving foie gras. A business whose owner was pro-Donald Trump, and who was afraid that clients would learn this and would then publicly excoriate him for it, couldn’t do the same as to anti-Trump reviews. But contracts barring speech that “is inappropriate” (whatever that is) “with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic” would remain perfectly legal.”

“That, I think, is a very bad idea, and indeed an unconstitutional idea. Should Congress be free to set up one set of contract law rules for contracts dealing with “unpatriotic speech” and another for contracts dealing with other viewpoints? A special set of contract law rules for contracts dealing with speech that ‘is inappropriate with respect to veteran status,’ differing from rules related to other speech? A special set of contract law rules for contracts dealing with speech that condemned a business’s environmental practices? I don’t think so — and Congress likewise shouldn’t set up rules allowing special restrictions (not applicable to other speech) on “inappropriate” speech “with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic.’ . . . .”

News, Editorials, Op-Eds & Blog Posts

  1. Noah Feldman, Shady Sex Ads May Have Some First Amendment Protection, Bloomberg View, September 13, 2016
  2. Awr Hawkins, Couric Anti-Gun Doc Director: Lawsuit Over Deceptive Edits An Attack on First Amendment, Breitbart, September 13, 2016
  3. Mike Bibb, Do school kids have First Amendment rights?, Eastern Arizona Courier, September 13, 2016
  4. DOJ To Researchers: First Amendment Does Not Protect Violating Websites’ Terms Of Services, TechDirt, September 12, 2016
  5. Michael Cadigan, New rules for public comment has people fearing for their First Amendment Rights, Fox4, September 12, 2016
  6. Steven Aftergood, Terrorism and the First Amendment, & More from CRS, Federation of American Scientists, September 12, 2016
  7. Lisa Colangelo, Probe says speech in anti-Semitic CUNY incidents is covered by First Amendment, Daily News, September 10, 2016
  8. Jonathan Turley, Planned Parenthood Law Criticized As Major Rollback on Free Speech and Press Freedoms, Res Ipsa Loquitur, September 8, 2016
  9. Paul Bedard, FEC commissioner warns Dems are gunning for conservative media, Washington Examiner, September 7, 2016
  10. Sam Roberts, Richard Neville, 74, a Founder of ’60s Counterculture Magazine Oz, Dies, New York Times, September 6, 2016


  1. Wake Forest’s John Dinan says 2016 election could sway First Amendment rulings, John Locke Foundation, September 12, 2016
  2. Julian Assange, Obama & Hillary Clinton disregard first amendment, September 8, 2016

This Day in First Amendment History (from Today in Civil Liberties History)

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

Pending Petitions*

  1. Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered Augsburg Confession
  2. NCAA v. O’Bannon
  3. Mech v. School Board of Palm Beach County
  4. Bondi v. Dana’s Railroad Supply
  5. Flytenow v. Federal Aviation Administration
  6. Armstrong v. Thompson
  7. Williams v. Coalition for Secular Government 
  8. Wolfson v. Concannon
  9. Lee v. Tam
  10. Dart v.
  11. Pro-Football v. Blackhorse 
  12. 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, #122Alito’s prophesy? Cert. petition in Gov. Speech case raises questions about future of doctrine

Next Scheduled FAN, #124: Wednesday, September 21, 2016

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