FAN 131 (First Amendment News) Forthcoming: Chemerinsky & Gillman on the importance of free speech on college campuses

It is one of the topics of our times — free speech on college campuses. As noted below, each week there are numerous news stories about this or that form of censorship endorsed by campus administrators. Now, two experts in the field of law and education have entered the marketplace of ideas in which this controversy continues.

Dean Erwin Chemerinsky

Dean Erwin Chemerinsky

Enter Dean Erwin Chemerinsky and Chancellor Howard Gillman with their next book: Free Speech on Campus (Yale University Press, summer 2017). Here is a draft of an excerpt from the preface to that book:

“Students are rightly demanding, and colleges and universities are striving to provide, greater diversity and an environment conducive to learning for all students. Often, though, these efforts have led to calls to restrict, punish, or disrupt speech by students and faculty members that is seen as creating a hostile learning environment, especially for those who have traditionally suffered discrimination. Some of this anger has been focused on speech that almost anyone would consider offensive and hateful. But there have also been calls to suppress speech that is merely politically controversial or contrarian. There are demands that campuses deal with “microaggressions” and require faculty to provide ‘trigger warnings’ before covering material that some students might find upsetting. Students have demanded—and received—formal investigations of possible violations of federal law after faculty members published scholarly articles in journals. The issues concerning speech on campus are complicated by the unprecedented ability for any person to quickly reach a large audience via social media. . . .”

Chancellor Howard Gillman

Chancellor Howard Gillman

“We fear that discussions over this issue, like so much else in society, are polarizing into two camps. One derides all efforts to protect students from the effects of offensive or disrespectful speech as ‘coddling’ and ‘political correctness.’ The other side believes that free speech rights are secondary to the need to protect the learning experience of students, especially minority students. “

“We write this book because we believe both sides are right and wrong. They are right in that both equality of educational opportunity and freedom of speech are essential for colleges and universities. But they are wrong in thinking that one of these objectives can be pursued to the exclusion of the other. Colleges and universities must both create inclusive learning environments for all students and protect freedom of speech. To achieve both of these goals, campuses may do many things, but they must not treat the expression of ideas as a threat to the learning environment. Freedom of expression and academic freedom are at the very core of the mission of colleges and universities, and limiting the expression of ideas would undermine the very learning environment that is central to higher education. . . . .”

There is more, much more, but I will stop there since the book is in the editing process. That said, the authors have kindly agreed to allow me to reprint a draft of the book’s table of contents:


Chapter 1:  The New Censorship

Chapter 2:  The Importance of Free Speech

Chapter 3:  The Special Role of Free Speech at Colleges and Universities

Chapter 4:  Hate Speech

Chapter 5:  Academic Freedom and Inclusive Learning Environments

Chapter 6:  What’s at Stake?

I will say more about this important book this coming summer when it is scheduled to be released.

Free Speech on College Campuses 

Heard on Campus: ‘The First Amendment and Diversity and Inclusion,’ Penn State News, Nov. 8, 2016 (video, participants: Robert D. Richards, Carla Pratt, Nancy J. LaMont, Stephen Ross, Victor Romero, & Maureen B. Cavanaugh

Susan Kruth, First Amendment Lawsuit Settled with Speech Code Revisions on 10 Arizona Campuses, FIRE, Nov. 8, 2016

Greg Piper, Satirical campus paper that was defunded because it offended people loses court battle, The College Fix, Nov. 8, 2016

Christina Hoff Sommers (credit: Aarushi Jain, Columbia Spectator)

Christina Hoff Sommers (see #10 below)
(credit: Aarushi Jain, Columbia Spectator)

  1. ASNE stands ready to defend First Amendment rights, strong democracy, iReach, Nov. 9, 2016
  2. Annalena Wolcke, A Brief Overview of “Freedom of Speech” on the University’s Campus, The Daily Princetonian, Nov. 9, 2016
  3. Sara Shepherd, National free speech group says KU is among schools with codes that ‘violate’ the First Amendment; University Senate free speech committee continues meeting, LJ World, Nov. 7, 2016
  4. Annika Cline, MCCCD Eliminates Free Speech Zones, Allowing Expression Everywhere On Campuses, KJZZ, Nov. 7, 2016
  5. Ray Stern, Free Speech Now Freer at Maricopa County Community College District, Phoenix Times, Nov. 7, 2016
  6. Van Nguyen, Conservative journalist Ben Shapiro criticizes campus censorship at YCT event, The Daily Texan, Nov. 4, 2016
  7. Cody Nelson, In campus free speech debate, nobody’s really winning, MPR News, Nov. 4, 2016
  8. D.C. McAllister, Free Speech Under Attack at Another College Campus, PJ Media, Nov. 3, 2016
  9. Pfeffer Merrill, Pro: Colleges must guard free speech, Evansville Couruer & Press, Nov. 3, 2016
  10. Cara Maines, Controversial feminist critic discusses trigger warnings, free speech amidst opposition on campus, Columbia Daily Spectator, Nov. 2, 2016
  11. A Public University Makes Students Choose Between Their First Amendment Rights & Graduation, Forbes, Nov. 2, 2016
  12. Lawrence Ross, Blackface on College Campuses Isn’t About Freedom of Speech; It’s About White Supremacy, The Root, Oct. 31, 2016
  13. Cliff Maloney, Jr., Colleges Have No Right to Limit Students’ Free Speech, Time, Oct. 13, 2016

Ballot Selfies: Colorado & California — Different Results  

  • Ruthann Robson, Colorado Federal District Judge Enjoins State’s Ballot Selfie BanConstitutional Law Prof Blog, Nov. 4, 2016 (In her opinion in Hill v. Williams, United States District Judge Christine Arguello enjoined Colorado Revised Statute § 1-13-712(1), which prohibits a voter from “show[ing] his ballot after it is prepared for voting to any person in such a way as to reveal its contents.”)
  • Lauretta Brown, Judge Upholds California Ban on Ballot Selfies Despite ACLU Free Speech Complaints, CNSNews, Nov. 7, 2016 (“U.S. District Judge William Alsup upheld California’s ban on ballot selfies last week after the American Civil Liberties Union (ACLU) filed a lawsuit challenging the ban last Monday, arguing that photographing a marked ballot is political speech protected by the First Amendment. The ban on photographing and sharing one’s marked ballot has already been repealed by the state legislature, but the repeal won’t go into effect until January. The ACLU argued that the ban denies voters’ First Amendment rights and sought an injunction to block the state from enforcing the ban on Nov. 8.”)

51kaavzvsl-_sx327_bo1204203200_New & Forthcoming Books

  1. Laura Weinrib, The Taming of Free Speech: America’s Civil Liberties Compromise (Harvard University Press, October 10, 2016)
  2. Frank Snepp, Irreparable Harm: A Firsthand Account of How One Agent Took on the CIA in an Epic Battle Over Free Speech (University Press of Kansas, reprint edition, August 30, 2016)
  3. Kevin Saunders, Free Expression and Democracy: A Comparative Analysis (Cambridge University Press, February 28, 2017)
  4. Billy Hallowell, Fault Line: How a Seismic Shift in Culture Is Threatening Free Speech and Shaping the Next Generation (Frontline, March 7, 2017)
  5. Robert Spencer, The Complete Infidel’s Guide to Free Speech (Regnery Publishing, July 24, 2017)

New & Forthcoming Scholarly Articles

  1. Marc J. Randazza, The Freedom to Film Pornography, Nevada Law Journal (forthcoming 2016)
  2. David Shapiro, Lenient in Theory, Dumb in Fact: Prison, Speech, and Scrutiny, George Washington Law Review (2016)
  3. Lisa P. Ramsey, A Free Speech Right to Trademark Protection?, Trademark Reporter (2016)
  4. Hillary Webb, ‘People Don’t Forget’: The Necessity of Legislative Guidance in Implementing a U.S. Right to Be Forgotten, George Washington Law Review (forthcoming, 2016-17)
  5. Mateo Forero,  Drawing the Line for Democratic Choice: How the Petition Clause Can Restore a Citizen ‘s Right to Participate in Commission-Driven Redistricting, Indiana Journal of Law & Social Equality (2016)
  6. Elizabeth Tolon,  Updating the Social Network: How Outdated and Unclear State Legislation Unconstitutionally Violates Sex Offenders’ First Amendment Rights, SSRN (Oct. 28, 2016)
  7. Paul M. Scunda, Zimmer on ‘Reason-Specific Protections’ for Employee Speech: Predicting the Constitutionalization of the Private-Sector Workplace, Employee Rights and Employment Policy Journal (forthcoming 2017)

New & Notable Blog Post

News, Editorials, Op-eds, & Blog Posts,

  1. Justin Holcomb, Julian Assange’s Election Statement: First Amendment Only Truly Lives Through Repeated Exercise, TownHall, Nov. 8, 2016,
  2. Eugene Volokh, Montana legislator threatened with prosecution for talking about ethics complaint against governorThe Volokh Conspiracy, Nov. 8, 2016
  3. Eugene Volokh, High school student allegedly ordered to change out of ‘Hillary for Prison’ T-shirt, The Volokh Conspiracy, Nov. 8, 2016
  4. Robby Soave, Censorship: High School Makes 18-Year-Old Girl Remove ‘Hillary for Prison’ T-Shirt,, Nov. 7, 2016
  5. Roy Gutterman, The Ballot Selfie And The First Amendment, Huffington Post, Nov. 7, 2016
  6. Noah Feldman, When the First Amendment is the wrong weapon, The Oregonian, Nov. 4, 2016
  7. David Post, A setback for First Amendment protection for anonymous speech, The Volokh Conspiracy, Oct. 31, 2016


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

Cert. Granted

  1.  Expressions Hair Design v. Schneiderman
  2. Lee v. Tam
  3. Packingham v. North Carolina

Pending Petitions*

  1. Bennie v. Munn
  2. Augsburg Confession
  3. Bondi v. Dana’s Railroad Supply
  4. Flytenow v. Federal Aviation Administration

Cert. Denied

  1. Armstrong v. Thompson
  2. Wolfson v. Concannon
  3. Dart v.
  4. NCAA v. O’Bannon
  5. Mech v. School Board of Palm Beach County
  6. Williams v. Coalition for Secular Government 
  7. Pro-Football v. Blackhorse 

First Amendment Religious Expression Case: Cert. Denied

Melhorn v. Baltimore Washington Conference of United Methodist Church (Whether the ministerial exception of the First Amendment absolutely bars breach of contract and tortious conduct lawsuits in situations of illegal conduct or harm to third parties.)

Free Speech Related Case: Pending 

  • Doe v. LLC (Whether Section 230 of the Communications Decency Act, which provides that no internet service provider “shall be treated as the publisher or speaker” of internet content that was “provided by another,” precludes a civil lawsuit against a website owner and operator based on its own criminal conduct any time online content created by a third party was part of the chain of causation leading to the plaintiff’s injuries.)

First Amendment Religious Expression Case: Pending 

  • Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered (Whether the First Amendment to the United States Constitution provides absolute immunity for defamatory statements made in a religious setting, even if the person defamed is not a member of the religious organization and even if the truth or falsity of the defamatory statement can be adjudicated without considering or interpreting religious doctrine — applicability of the ecclesiastical abstention doctrine)

  The Court’s next Conference is on November 10, 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 Scheduled FAN, #132: November 16, 2016

Last Scheduled FAN, #130“Porn Panic” Prompts Pushback

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