FAN 132 (First Amendment News) FIRE Launches First Amendment Online Library

This past Monday some 100 people came to the Washington, D.C. scenic offices of Jones Day where the Foundation for Individual Rights (FIRE) hosted an event to launch the First Amendment Library, the only such online library in the nation.

This from the press release: “FIRE’s First Amendment Library is a free, online database of First Amendment-related materials, including illustrated timelines, educational materials, unique articles, and more than 900 Supreme Court cases concerning the First Amendment. The content available in the library serves as the foundation for an an easy-to-use, ever-expanding resource for students, law clerks, lawmakers, judges, lawyers, journalists, and anyone else who wants to learn about the First Amendment.”

“The First Amendment Library is a one-of-a-kind knowledge hub for all things relating to our Constitution’s first freedoms,” said FIRE Executive Director Robert Shibley. “FIRE is excited to share this resource with the world, and we hope that it will generate more interest in the First Amendment and its important history.”

Greg Lukianoff, Ron Collins & Robert Shibley

Greg Lukianoff, Ron Collins & Robert Shibley

The program was introduced by Greg Lukianoff (FIRE’s president & CEO), Robert Corn-Revere (First Amendment Lawyer), and Robert Shibley (FIRE’s executive director).

Here are a few samples of some of the contents of the online library:

The online library will be updated regularly and expanded greatly in the months and years ahead. For example, in the coming weeks new content will be added concerning everything from the 1734 trial of John Peter Zenger to the list of First Amendment free expression cases decided by the Roberts Courts to First Amendment briefs filed in the Supreme Court by noted appellate lawyers.     

Board of Advisors

  • Floyd Abrams
  • Erwin Chemerinsky
  • Robert Corn-Revere
  • Lucy Dalglish
  • Charles Haynes
  • Lee Levine
  • Michael McConnell
  • Paul McMasters
  • Martin Redish
  • Catherine Ross
  • Nadine Strossen
  • Laurence Tribe
  • Melvin Urofsky
  • Eugene Volokh
  • James Weinstein

Some of those attending the event: Jim Caruso, Susan Cohen, Anthony Dick, Lee Levine, Ronnie London, Tony Mauro, Robert M. O’Neil, Sigrid Fry-Revere, Catherine Ross, Ilya Shapiro, Mel Urofsky, and Lisa Zycherman.

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Campus “grievance culture” tested in S.C. case 

The case is Abbott v. Pastideswhich is currently before the U.S. District Court for the District of South Carolina (Columbia Division). The current posture of the case concerns the Plaintiffs’ consolidated opposition to the Defendants’ motion for summary judgment and Plaintiffs’ cross-motion for partial summary judgment. The information set out below is from the Plaintiffs’ memorandum in support of their cross-motion.

University of South Carolina

  University of South Carolina

Facts: Here is how counsel for the petitioners summarized the facts: Plaintiffs in this case wanted to start a dialogue with their fellow students about the growing number of free speech controversies on American college campuses but learned the sad lesson that you can’t even talk about free speech these days without getting into trouble. They held a Free Speech Event at the University of South Carolina where they described recent cases in which freedom of expression had become a controversial issue. The event went well, but when a few students complained that they were offended and felt “triggered,” the University promptly began an investigation of the speakers, even though their event had been fully explained to USC officials and approved in advance.

University of South Carolina’s Student Non-Discrimination & Non-Harassment Policy (see here)

“Grievance culture” — “This case . . . illustrates how campus bureaucracies can favor grievance culture over the free exchange of ideas, and why structuring rules to nurture and encourage complaints about speech contributes to a mistaken belief by some that there is an American right not to be offended. Such misconceptions have been fostered by constitutionally unsound directives from the Office of Civil Rights of the U.S. Department of Education (“OCR”) and the U.S. Department of Justice (“DOJ”) that purport to establish a blueprint for regulating free expression on college campuses. USC unfortunately got entangled in this mindset and adopted policies to regulate student speech based on broad and nebulous terms using procedures that favor those who complain over the rights of speakers.”

Plaintiffs’ First Amendment Arguments

I. Defendants’ Investigation of the Free Speech Event Violated Plaintiffs’ First Amendment Rights in Ways that Preclude Qualified Immunity & Compel Judgment for Plaintiffs’

A.  Plaintiffs’ First Amendment Rights Are Clearly Establishes

B.  Forcing Plaintiffs to Justify Their Exercise of Free Speech and Threatening Sanctions Violated Their First  Amendment Rights

        1.  Defendants Misstate Controlling First Amendment Principles

        2.  Defendants’ Investigation Burdened Plaintiffs’ First Amendment Rights

II. USC’s Non-Discrimination & Non-Harassment Policy is Facially Invalid Because it is Vague, Overly Broad, & Fails to Incorporate Sufficient Safeguards for Free Expression

A. USC’s Non-Discrimination and Non-Harassment Policy (STAF 6.24) is Vague and Overly Broad

1. STAF 6.24 Restricts Speech Using Amorphous and Undefined Terms

2. The “Limiting Clause” of STAF 6.24 Cannot Rehabilitate a Constitutionally Defective Policy

3. USC’s Policy Fails to Implement the Required Constitutional Standard

 B. USC’s Reliance on DOJ and OCR Guidance is No Defense, & Instead Illustrates the Constitutional Deficiencies of its Policy

C. The Court Should Grant Plaintiffs’ Motion for Summary Judgment

→ Counsel for Plaintiffs: Robert Corn-Revere, Ronald London & Lisa Zycherman

Related Documents & Articles

Ross Abbott, Why I Sued the School, The Daily Gamecock, March 2, 2016

Complaint and Exhibits (additional documents from PacerMonitor here)

For a discussion of the case, see The Academy Uncensored: Abbott v. Pastides 

Coming Nov. 18th: Student Free Speech Video Fair

This from the Newseum Institute:

  • November 18, 2016 @ 12:00 pm – 2:00 pm
  • Newseum Second Floor, Washington, DC
  • Free with Newseum admission.

Meet the winners of our “Free Expression on Campus” video competition and watch their short films about free speech on college campuses. Six student teams from colleges across the nation will be screening their winning videos about free speech on their college campuses.

Visitors will have the opportunity to talk with the students about their views on issues involving First Amendment rights in higher education settings. While attending the video fair, visitors may also:

  • Express an opinion by voting in the “Questions of the Day” about free speech on campus or by recording one’s own video.
  • Enter to win prizes, including Newseum merchandise and one of three iPad Minis. Drawings will be held throughout the day.

The Newseum Institute continues to explore First Amendment issues around free speech on campuses – from what students and teachers can say in class to what students can say about each other: in person and online.

To learn more about the ways that students throughout history have fought for their free speech rights, visit the Cox First Amendment Gallery and see artifacts from pivotal Supreme Court cases.

Free Speech on College Campuses 

  1. Video: DePaul University Threatens to Arrest Ben Shapiro if He Steps on Campus, The Daily Wire, Nov. 16, 2016
  2. Eugene Volokh, Student group at Cal State Northridge boasts of ‘shutting down’ speech by award-winning scholar, The Volokh Conspiracy, Nov. 15, 2016
  3. Ian Schwarz, Tucker Carlson vs. DePaul University Professor: Students Who Disagree Are Squashed, Real Clear Politics, Nov. 15, 2016
  4. Susan Kruth, Historian Shouted Down at Cal State Northridge, FIRE, Nov. 15, 2016
  5. Anti-Trump Student Protester Violently Attacked at Campus Rally, Advocate, Nov. 15, 2016 
  6. Jeff Charis-Carlson, Student reports more white heritage posters on Iowa State campus, Des Moines Register, Nov. 15, 2016
  7. Administration speaks on First Amendment rights, The CT, Nov. 14, 2016
  8. Marieke Tuthill Beck-Coon, Court Denies Preliminary Injunction for Defunded Satirical Newspaper at UC San Diego, FIRE, Nov. 14, 2016
  9. Suzanne Nossel, Make campuses safe for diversity and free speech, Philly.com, Nov. 14, 2016
  10. Cody Nelson, Nobody’s winning campus free speech debate, Austin Daily Herald, Nov. 6, 2016

New & Forthcoming Scholarly Articles

  1. Bradley Smith, The Academy, Campaign Finance, and Free Speech under Fire, Journal of Law & Policy (2017)
  2. Rebecca E. Zietlow, The Constitutional Right to Organize in Martha Fineman & Jonathan Fineman, editors, Labor and Vulnerability (Ashgate Press, 2017)
  3. David Rosenberg, The Corporate Paradox of Citizens United and Hobby Lobby, SSRN (2016)
  4. Matthew Seipel, How the Press Violates the NLRA: The Social Media Policies of News Companies, SSRN (2016)
  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. Marc J. Randazza, The Freedom to Film Pornography, Nevada Law Journal (2016)

Coming this April: Floyd Abrams’ Next Book

Yale University Press (April 25, 2017)

Yale University Press (April 25, 2017)

New & Notable Blog Posts

  1. Eugene Volokh, Shaker Heights High School reverses discipline of students who critically publicized classmate’s anti-black post, The Volokh Conspiracy, Nov. 15, 2016
  2. Steven D. Schwinn, No Free Speech for Officer Criticizing Operations, Superiors, Constitutional Law Prof Blog, Nov. 12, 2016

Editorials & Op-eds: First Amendment Spotlight on Donald Trump 

  1. Margaret Sullivan, Our First Amendment test is here. We can’t afford to flunk it, Washington Post, Nov. 16, 2016
  2. Jessica Williams, Reviving the first amendment, The Times News, Nov. 15, 2016
  3. Mike Masnick, Fighting For The First Amendment Is Going To Be A Priority: Help Us Do It, TechDirt, Nov. 15, 2016
  4. Brian Flood & Tim Molloy, Trump vs. Press Freedom: How Much Damage Can He Do?, The Wrap, Nov. 15, 2016
  5. Kelly Riddell, Media worry about First Amendment rights under Trump but ignore Obama’s chilling precedents, Washington Times, Nov. 15, 2016
  6. John Daniel Davidson, Mainstream Journalists Don’t Care About Free Speech Until Donald Trump Attacks It, The Federalist, Nov. 15, 2016
  7. Editorial, Our first responsibility: Free speech always needs defending, The Union Leader, Nov. 14, 2016
  8. Samanta Storey, Why A Free Press Really, Really Matters, Huffington Post, Nov. 14, 2016
  9. Sarah Warren, Are Public Universities Protecting Students’ First Amendment Rights?, Uloop, Nov. 13, 2016

This Date in First Amendment History 

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. Independence Institute v. FEC
  2. Bennie v. Munn
  3. Augsburg Confession
  4. Bondi v. Dana’s Railroad Supply
  5. Flytenow v. Federal Aviation Administration

Cert. Denied

  1. Armstrong v. Thompson
  2. Wolfson v. Concannon
  3. Dart v. Backpage.com
  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. Backpage.com 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 22, 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, #133: November 23, 2016

Last Scheduled FAN, #131Forthcoming: Chemerinsky & Gillman on the importance of free speech on college campuses

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