FAN 145 (First Amendment News) David Cole: “Does anyone believe that the ‘free marketplace of ideas’ is functioning?”

In a recent issue of the New York Review of Books, the ACLU’s David Cole and SODIL reviewed:

David Cole

“‘Civil liberties once were radical.’ So begins Laura Weinrib’s important revisionist history of the origins of American civil liberties, ” writes Cole. “By 1938,” he adds, “Roger Baldwin, the ACLU’s executive director, proclaimed that the ACLU had ‘no ‘isms’ to defend except the Bill of Rights.’ The ACLU had shifted its focus from labor’s struggle for economic justice to a defense of the ‘neutral’ rights of speech and association, rights that could be invoked not just by individual workers and unions but by Henry Ford and big business. As Baldwin put it one year later, ‘We are neither anti-labor nor pro-labor. With us it is just a question of going wherever the Bill of Rights leads us.'”

“Sam Lebovic tells a related story in [his book]. In his account,” Cole notes, “American constitutional law has favored a classical liberal ‘freedom of the press,’ which stresses the importance of staving off state censorship, over ‘freedom of the news,’ a concept formulated by Franklin Delano Roosevelt, which envisions the state working proactively to ensure access to information against concentrated media ownership. Lebovic argues that the liberal conception of free speech and a free press, founded on the ‘free marketplace of ideas,’ is and always has been inadequate to address the threats to ‘freedom of the news,’ including not just the power of media moguls, but also the consequences of the Internet and the state’s over-reliance on secrecy.”

In a world where claims of “fake news” fill the airwaves, Cole asserts that “following Donald Trump’s election, on a campaign that relied on outright lies and stubborn denials of the truth, does anyone believe that the ‘free marketplace of ideas’ is functioning?” Then again, he stresses that “the inauguration of Donald Trump has dramatically reinforced the continuing importance of traditional core First Amendment rights.”

We are neither anti-labor nor pro-labor. With us it is just a question of  going wherever the Bill of Rights leads us. — Roger Baldwin (1940)

A new focus — look beyond the courts 

We were weened in an era when courts were often seen as the great defenders of equality. Even so, Cole invites his readers to reassess that reliance: “if we are to attain a more egalitarian exchange of ideas, it will be more likely through the political rather than the judicial branches.”

And as more and more liberals urge government intervention in the free speech arena, Cole counsels caution: “empowering the state to correct perceived deficiencies in the marketplace of ideas is a cure that is worse than the disease. ”

So what is the baseline for Cole’s conception of free speech?  “The best argument for protecting speech,” he stresses, “is not that the free marketplace of ideas will lead us to truth, but that it is superior to all the alternatives. . . . [W]hile it is true that a right to universal free speech can be invoked by the powerful as well as the weak, by business as well as labor, the right is nonetheless more valuable for the weak.”

SPLC: Google, Hate Crimes, and Algorithms

In case you missed it, the Southern Poverty Law Center recently issued a story titled  Google and the Miseducation of Dylann RoofRecall, Roof was the man who murdered nine African Americans during a Bible study. How did Roof go from being someone who was not raised in a racist home to someone so steeped in white supremacist propaganda the man responsible for the massacre at the historic Emanuel A.M.E. Church in Charleston? Here is how the SPLC story answered that question:

“The answer lies, at least in part, in the way that fragile minds can be shaped by the algorithm that powers Google Search.

It lies in the way Google’s algorithm can promote false propaganda written by extremists at the expense of accurate information from reputable sources.

See SPLC video here

Roof’s radicalization began, as he later wrote in an online manifesto, when he typed the words “black on White crime” into Google and found what he described as “pages upon pages of these brutal black on White murders.”

SPLC President Richard Cohen

The first web pages he found were produced by the Council of Conservative Citizens, a crudely racist group that once called black people a “retrograde species of humanity.” Roof wrote that he has “never been the same since that day.” As he delved deeper, because of the way Google’s search algorithm worked, he was immersed in hate materials.

Google says its algorithm takes into account how trustworthy, reputable or authoritative a source is.

In Roof’s case, it clearly did not.”

Speaking this past Monday evening the George Washington University’s Lisner Auditorium, SPLC President Richard Cohen said that at first Google was reluctant to tweet its algorithms but apparently did so afterwards. Mr. Cohen said that a meeting has been set up between Google and representatives from the SPLC.

Story: “Amazon releases Echo data in murder case, dropping First Amendment argument”

The PBS News Hour reports that after “several months of pushback, Amazon has agreed to release user data from an Amazon Echo device involved in a high-profile Arkansas murder trial.The device, a popular, hands-free artificial intelligence assistant named ‘Alexa’ that responds to human directives, contains audio recordings that prosecutors say could could provide information in the murder of Victor Collins, 47, who was found dead in his hot tub on Nov. 22, 2015, in Bentonville, Arkansas. . . .”

“Benton County Prosecuting Attorney Nathan Smith wrote in an email that prosecutors were “pleased” with Amazon’s decision.

‘I am pleased that we will have access to the data from the Defendant’s Echo device since the Defendant consented to its release,’ Smith said. ‘As with any case, our obligation is to investigate all of the available evidence, whether the evidence proves useful or not.’

Smith said he could not provide details on the recordings or if they would be used in court because the case is still under investigation.

Amazon had argued against the data’s release in February, saying the Echo recordings were protected under the First Amendment. According to a court order, Bates consented to the disclosure, which then prompted Amazon to agree to the release of the data March 3. . . .”

Headline: “Middlebury: Who Pays for Free Speech?” 

D.D. Guttenplan, editor at large at The Nation,recently weighed in on the Middlebury campus free speech controversy. Among other things, Guttenplan wrote:

By ceding the high ground to [Charles] Murray, and dissenting in a way that allowed them and their allies to be so easily caricatured and dismissed, the protesters were tactically foolish.”

D.D. Guttenplan (credit: Columbia College)

“They were also deeply condescending to their fellow students, who are supposed to be developing the ability to think and argue and test their beliefs. Murray’s views may be odious, but students have a right to hear them and make up their own minds. You don’t need to be a free-speech absolutist to see that allowing a mob to veto unpopular ideas is a weapon that can all too easily be turned against progressive causes—especially in Trump’s America. . . .”

[I]t is incumbent on institutions like Middlebury to exercise great care—not in whom they allow to speak; campuses especially should be open to all opinions—but in how controversial speakers are presented. By offering Murray not just a platform but also departmental sanction and a presidential introduction, Middlebury let down those students denigrated by his work. By allowing the inevitable, and justified, protests in response to degenerate from dissent to disruption to violence, the administration then let down everyone else. . . .”

In detaching ‘free speech’ from politics, and turning it into an icon of our own righteousness, Americans forget something we once knew—and that citizens of Rwanda, or Sarajevo, have had to learn the hard way: In deeply polarized societies, the gap from speech to violence becomes dangerously short.”

“Acknowledging that free speech always has a cost—and openly debating who should bear that cost—is the best, and perhaps the only way, to keep free speech from becoming a luxury good. . . .”

Hubbard Honored With First Amendment Award

Stanley Hubbard (credit: Business Jet Traveler)

This from an ABC News 5 story: “Stanley S. Hubbard, chief executive of Hubbard Broadcasting, received the First Amendment Leadership Award at the 2017 Radio Television Digital News Foundation awards ceremony Tuesday in Washington D.C.

Hubbard was one of seven award recipients at the 27th anniversary event.

He was honored along with his father, the late Stanley E. Hubbard, who also received the First Amendment Leadership Award. The elder Hubbard, who founded the company and died in 1992, was inducted into the National Radio Hall of Fame in 2014. . . .”

FIRE Posts Campaign Finance Timeline

The Foundation for Individual Rights (FIRE) has just posted a timeline (1760-2015) for the history of campaign finance law, litigation, and a few things in between.

Forthcoming Books

  1. John Palfrey, Safe Spaces, Brave Spaces: Diversity and Free Expression in Education (MIT Press, Sept. 22, 2017)
  2. Gregory P. Magarian, Managed Speech: The Roberts Court’s First Amendment (Oxford University Press, April 4, 2017)
  3. Mickey Huff, et al, editors, Censored 2018: Press Freedoms in a “Post-Truth” Society-The Top Censored Stories and Media Analysis of 2016-2017 (Seven Stories Press, October 3, 2017)
  4. Robert Spencer, The Complete Infidel’s Guide to Free Speech (Regnery Publishing, July 24, 2017)
  5. Committee to Protect Journalists, Attacks on the Press: The New Face of Censorship (Bloomberg Press, April 24, 2017)

Araiza on Alito

Professor William Araiza

Professor William Araiza has an essay forthcoming in the Cornell Law Review Online. Th article is titled, “Samuel  Alito: Populist.” Below is an abstract of the essay:

“This Essay considers several high-profile opinions written by Justice Alito, mostly separate concurrences or dissents, which reflect a style of rhetoric and reasoning fairly describable as “populist.” That term attempts to capture the sense from these opinions that constitutional (or, in one example, statutory) meaning can be revealed by the moral outrage generated by the facts of the case. For example, Justice Alito’s partial concurrence in Brown v. Entertainment Merchants expressed outrage at the violence and anti-social themes reflected in the video games at issue in that First Amendment case. More importantly, that outrage seems to have partially fueled his skepticism about the majority’s doctrinal analysis protecting that speech.

This Essay examines a number of such examples. It then discusses what such an approach to constitutional law might mean, both substantively and in terms of its perception by the American public. It also notes that Justice Sonia Sotomayor’s increasingly distinctive voice sometimes reflects a similar rhetorical style, albeit from a very different political perspective. This insight suggests that the dialogue among the justices may soon feature this populist style, with important implications for constitutional meaning, methodology, and public perceptions.”

Prof. Ronnell A. Jones

Article: “Enemy Construction and the Press”

That is the title of a new article by Professors Ronnell Andersen Jones & Lisa Grow Sun. Here is an abstract of that article:

“When the president of the United States declared recently that the press is “the enemy,” it set off a firestorm of criticism from defenders of the institutional media and champions of the press’s role in the democracy. But even these Trump critics have mostly failed to appreciate the wider ramifications of the president’s narrative choice. Our earlier work describes the process of governmental “enemy construction,” by which officials use war rhetoric and other signaling behaviors to convey that a person or institution is not merely an institution that, although wholly legitimate, has engaged in behaviors that are disappointing or disapproved, but instead an illegitimate “enemy” triggering a state of Schmittian exceptionalism and justifying the compromise of ordinarily recognized liberties. The Trump administration, with a rhetoric that began during the campaign and burgeoned in the earliest days of Donald Trump’s presidency, has engaged in enemy construction of the press, and the risks that accompany that categorization are grave.

Prof. Lisa Grow Sun

This article examines the fuller components of that enemy construction, beyond the overt use of the label. It offers insights into the social, technological, legal, and political realities that make the press ripe for enemy construction in a way that would have been unthinkable a generation ago. It then explores the potential motivations for and consequences of enemy construction. We argue that enemy construction is particularly alarming when the press, rather than some other entity, is the constructed enemy. Undercutting the watchdog, educator, and proxy functions of the press through enemy construction leaves the administration more capable of delegitimizing other institutions and constructing other enemies — including the judiciary, the intelligence community, immigrants, and members of certain races or religions — because the viability and traction of counter-narrative is so greatly diminished.”

New & Forthcoming Scholarly Articles

  1. Shlomit Yanisky-Ravid & Ben Zion Lahav, Public Interest vs. Private Lives – Affording Public Figures Privacy, in the Digital Era: The Three Principles Filtering Model, University of Pennsylvania Journal of Constitutional Law (2017)
  2. Erica Rachel Goldberg, Competing Free Speech Values in an Age of Protest, SSRN (March 2017)
  3. Lucas Newbill, Violating Free Speech in the War on Opioid Addiction: The Washington Legislature’s Voice in the Doctor’s Office, Gonzaga Law Review (2017)

Brandeis University Library: Lenny Bruce Audio Recordings 

The folks at FIRE have posted the Lenny Bruce Trial Transcripts; meanwhile, the folks at Brandeis University Library have posted audio files of the comedian’s performances at various clubs.

→ Go here for more audio recordings.

FIRE’s “So to Speak” Podcasts

  1. How Daryl Davis, a black man, defeats the KKK w/ dialogue
  2. Rob Corry, ‘speech code slayer’

New & Noteworthy Blog Posts

  1. Eugene Volokh, Apparently-fake-defendant libel lawsuit watch: Richart Ruddie & SEO Profile Defender Network LLC paying $71,000 to settle claim, The Volokh Conspiracy, March 14, 2017
  2. Eugene Volokh, Utah poised to outlaw mentioning people’s names online with intent to ‘abuse’ or ‘harass’, The Volokh Conspiracy, March 13, 2017
  3. Ruthann Robson, DC Circuit Upholds Statute Prohibiting Speeches in Supreme Court Building, Constitutional Law Prof Blog, March 5, 2017

News, Editorial, Op-eds & Blog Posts

  1. Toni Airaksinen, U-Chicago student leaders slam their president for his commitment to free speech, The College Fix, March 15, 2017
  2. Luke Wachob, Gorsuch Understands How Bureaucratic Bullies Harm First Amendment Rights, The American Spectator, March 14, 2017
  3. Hillel Italie, Advocates Say First Amendment Can Withstand Trump Attacks, Associated Press, March 14, 2017
  4. Bill Rickards, Franklin & Marshall students set example handling controversial speaker, FIRE, March 14, 2017
  5. Editorial, GOP lawmakers want to criminalize First Amendment right to protest, Fresno Bee, March 13, 2017
  6.  Mike Plaisance, Holyoke drone ordinance neglects First Amendment, free press specialists say, Mass Live, March 13, 2017
  7. Baylen Linnekin, Dr. Oz Rebuffs First Amendment Challenge by Olive Oil Industry ,, March 11, 2016
  8. Adam Steinbaugh, Arkansas state legislators seek to eliminate Arkansas Tech Department of Diversity and Inclusion over student ‘Sex on the Lawn’ event, FIRE, March 10, 2017


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

Cert. Granted

  1.  Expressions Hair Design v. Schneiderman (transcript here)
  2. Lee v. Tam (transcript here)
  3. Packingham v. North Carolina (transcript here)

Pending Appeals & Petitions & Related Cases*

  1. Keefe v. Adams
  2. Augsburg Confession
  3. Bondi v. Dana’s Railroad Supply
  4. Scott v. Georgia (The Georgia Supreme Court upheld, in the face of a First Amendment overbreadth challenge, a statute that forbids otherwise-protected sexually related speech to minors if the speaker intends to arouse or satisfy someone’s sexual desire. The Texas Court of Criminal Appeals and the Ninth Circuit Court of Appeals have held such statutes unconstitutional.)

Summary Disposition

  1. Independence Institute v. FEC (affirmed)

Cert. Denied

  1. Bennie v. Munn
  2. Flytenow v. Federal Aviation Administration
  3. Armstrong v. Thompson
  4. Wolfson v. Concannon
  5. Dart v.
  6. NCAA v. O’Bannon
  7. Mech v. School Board of Palm Beach County
  8. Williams v. Coalition for Secular Government 
  9. 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 Cases: Review denied 

  • 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: Denied 

  • 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)

Speech & Debate Clause: Pending

  • Menendez v. United States (Whether a court may consider a legislator’s motive for performing an act when deciding whether the act is protected by the speech or debate clause).

Freedom of Information Act Petition: Pending  

 The Court’s next Conference is on March 17, 2017

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, #146: March 22, 2017

Last Scheduled FAN, #144Cert Petition: Nursing student challenges expulsion for Facebook comments

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1 Response

  1. Brett Bellmore says:

    ” We are neither anti-labor nor pro-labor. With us it is just a question of going wherever the Bill of Rights leads us. — Roger Baldwin (1940)”

    “Except for the parts we don’t like.-Nadine Strossen(1994”