FAN 149 (First Amendment News) On hate speech: Will Howard Dean publicly debate Eugene Volokh?

Suggestion: Howard Dean should debate Eugene Volokh at the Newseum, or at the National Constitutional Center, and/or on air — say, on CNN’s The Lead with Jake Tapper or Fox’s Tucker Carlson Tonight or on MSNBC’s Morning Joe or elsewhere. Here is why I suggest this.  

Howard Dean

The Berkeley controversy began with a back-and-forth over cancelling and then postponing Ann Coulter’s speech at the very campus known for launching its own free-speech movement.

Then Ms. Coulter ratcheted it up a bit more with this tweet: “I’m speaking at Berkeley on April 27th, as I was invited to do and have a contract to do.”

Most recently, a First Amendment lawsuit was filed as this controversy continues to prompt ideological posturing.

Earlier, and on a related from, Steven Greenhouse weighed in with a tweet: “Free Speech Defenders Don’t Forget: Ann Coulter once said: My only regret w/ Timothy McVeigh is he did not go to the New York Times building.”

Now onto the reason why I suggest a Dean-Volokh on-air debate.

Apparently, Greenhouse’s tweet got Howard Dean’s juices flowing, so he took to Twitter:

Not to let such an assertion pass uncontested, Professor Eugene Volokh added this to the mix:

“This leads me to repeat what I’ve said before: There is no hate speech exception to the First Amendment. Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas. One is as free to condemn, for instance, Islam — or Muslims, or Jews, or blacks, or whites, or illegal immigrants, or native-born citizens — as one is to condemn capitalism or socialism or Democrats or Republicans. As the Supreme Court noted in Christian Legal Society v. Martinez (2010), the First Amendment’s tradition of ‘protect[ing] the freedom to express ‘the thought that we hate’ ‘ includes the right to express even ‘discriminatory’ viewpoints. (The quote comes from the four liberal justices, plus Justice Anthony Kennedy, but the four more conservative justices would have entirely agreed with this, though also extended it to university-recognized student groups’ freedom to exclude members, and not just their freedom to express their thoughts.)”

Professor Eugene Volokh (credit: UCLA Magazine)

“To be sure, there are some kinds of speech that are unprotected by the First Amendment. But those narrow exceptions have nothing to do with “hate speech” in any conventionally used sense of the term. For instance, there is an exception for “fighting words” — face-to-face personal insults addressed to a specific person, of the sort that are likely to start an immediate fight. But this exception isn’t limited to racial or religious insults, nor does it cover all racially or religiously offensive statements. Indeed, when the City of St. Paul tried to specifically punish bigoted fighting words, the Supreme Court held that this selective prohibition was unconstitutional (R.A.V. v. City of St. Paul (1992)), even though a broad ban on all fighting words would indeed be permissible. . . . ”

And then this:

To which Volokh replied: , No, Gov. Dean, Chaplinsky v. New Hampshire does not recognize a ‘hate speech’ exception, The Volokh Conspiracy, Aril 22, 2017. Here are a few excerpts:

“I’m pleased to say that I have read Chaplinsky v. New Hampshire (1942), which is usually cited as recognizing a ‘fighting words’ exception to the First Amendment — personally addressed face-to-face insults that are likely to start an imminent fight are not constitutionally protected. But that has little to do with ‘hate speech’ as most people tend to use the phrase: (1) Such personal insults are constitutionally unprotected entirely without regard to whether they are bigoted. (2) Bigoted expressions of opinion that don’t involve such personally addressed face-to-face insults are constitutionally protected. (3) Indeed, statutes that target only bigoted ‘fighting words’ for special punishments are constitutionally unprotected, even if they are limited to such personally addressed face-to-face insults, see R.A.V. v. City of St. Paul (1992).”

Then on MSNBC, Mr. Dean countered: “Okay, several things to think about. One, the United States has the most far-reaching protections on speech of any country in the world. Two, it’s not absolute. Three, there are three Supreme Court cases you ned to know about. One, the most recent, is a John Roberts opinion that said that the Phelps people . . . had the right to picket horrible offensive [things] with signs [at] military funerals. Two, in 2002, . . . the Supreme Court . . . said that cross-buring was illegal because it could incite violence. And three, [the] Chaplinsky case in 1942 said speech was not permitted if it included fighting words that were likely to incite violence. So, this is not a clear-cut [case] . . . . Ann Coulter has used wrods that you cannot use on television to describe Jews, Blacks, gays, Muslims and Hispanics — I think there is a case to be made that invokes the Chaplinsky decision, which is fighting words, likely to incite violence. And I think Berkeley is with its rights to make the decision that it puts there campus in danger if they have her there.”

“I’ll be the first to admit, it’s a close call, it’s a close call,” he added.

*  * * *  *  *

↑→ For a refutation, see Jim Geraghty, Howard Dean’s First AmendmentNational Review, April 24, 2017

Related: Marc Randazza, Dear Berkeley: Even Ann Coulter deserves free speech, CNN, April 24, 2017

Did anti-Trump protestors violate his First Amendment rights?

(credit: Politico)

This from Politico’s Kenneth Vogel: “President Donald Trump’s lawyers argued in a Thursday court filing that protesters “have no right” to “express dissenting views” at his campaign rallies because such protests infringed on his First Amendment rights.The filing comes in a case brought by three protesters who allege they were roughed up and ejected from a March 2016 Trump campaign rally in Louisville, Kentucky, by Trump supporters who were incited by the then-candidate’s calls from the stage to ‘get ’em out of here!’ Lawyers for Trump’s campaign have argued that his calls to remove the protesters were protected by the First Amendment. But the federal district court judge hearing the case issued a ruling late last month questioning that argument, as well as the claim that Trump didn’t intend for his supporters to use force.”

“Of course, protesters have their own First Amendment right to express dissenting views, but they have no right to do so as part of the campaign rally of the political candidates they oppose,” Trump’s lawyers told Newsweek.

 Defendants’ motion to certify an interlocutory appeal in Nwanguma et al v. Donald Trump, President of the United States (Dist. Ct.,, W.D., KY, 2017).

 R. Kent Westberry is counsel for Donald Trump, both as President and individually.

“The Trump Defendants request that the Court certify the following issues:

  1. Whether the First Amendment protects Mr. Trump’s campaign speech as a matter of law, or whether the speech falls within the narrow category of expression that can be subject to censorship for ‘inciting a riot’
  2. Whether the First Amendment precludes holding a speaker liable for negligently causing others to engage in violence.”

Susan Seager, a noted media lawyer,  commented on the claims made by President Trump’s lawyer:

President Trump makes an argument already rejected by the court.  The court ruled that the anti-Trump protesters did have a right to attend the rally since they obtained tickets and were allowed to enter by organizers.  The court said they were not trespassers. Once inside, the protesters did have a First Amendment right to peacefully protest. Organizers had the right to eject them, but not violently.

 Related: Noah Feldman, Trump Lawyers Get Creative With First Amendment, BloombergView, April 24, 2017

Justice Department targets Assange . . . & other leakers 

I love WikiLeaks — candidate Donald Trump (Oct. 10, 2016)

“We are going to step up our effort and already are stepping up our efforts on all leaks,” Sessions said at a news conference on Thursday in response to a reporter’s question about a US priority to arrest Assange.

  • “Even though Trump once praised WikiLeaks founder Julian Assange (and, before that, suggested that he deserved the death penalty), the administration may now be turning on Assange, who by dumping thousands of hacked emails, may have helped Trump become president in the first place.” (Source: Salon)
  • “Attorney General Jeff Sessions said at a news conference on Thursday that Assange’s arrest is a ‘priority’ of the administration.” (Source: CNN)
  • “Prosecutors are believed to be preparing or considering charges against WikiLeaks and its founder, according to US media reports, and Jeff Sessions said officials had ‘already begun to step up our efforts’ to crack down on leaks. (Source: The Independent)
  • “CIA Director Mike Pompeo said last week, ‘It’s time to call out WikiLeaks for what it really is: a non-state hostile intelligence service often abetted by state actors like Russia.'” (Source: Fox News)

And as for those other leakers — this from Attorney General Sessions:

“This is a matter that’s gone beyond anything I’m aware of. We have professionals that have been in the security business of the United States for many years that are shocked by the number of leaks and some of them are quite serious. Whenever a case can be made, we will seek to put some people in jail.


Headline: “Floyd Abrams sees Trump’s anti-media tweets as double-edged swords”

This from Jim Rutenberg’s story in the New York Times:

Floyd Abrams

On the Trump Administration: Floyd Abrams “is not forlorn about the prospects for free speech under the new administration. But he isn’t sanguine, either, especially after the news about a potential WikiLeaks prosecution. In his book, Mr. Abrams harshly criticizes WikiLeaks as irresponsible, but he said criminal charges against the group would be ‘a perilous step in terms of First Amendment protection.’ In other words: Be afraid, at least a little afraid.”

” . . . . ‘My concerns on the Trump level are more in two areas,’ he said. ‘One, the potential use of the Espionage Act against journalists reporting on national security-related matters, and the other is leak investigations in which the journalists are called to testify.'”

Reporters and Leaks: “if a reporter is swept up in a leak investigation over an article the administration doesn’t like, his or her lawyers would just have to log on to Twitter and search @RealDonaldTrump to find support for an argument that the government was misusing the legal system to punish journalists. ‘Enemy of the people’ would be on page one’ of any defense, Mr. Abrams said, referring to Mr. Trump’s post describing reporters as such.”

On the Gawker case: “. . . I wondered about Gawker, which a Florida jury hit with a $140 million verdict in an invasion-of-privacy lawsuit last year. Without the financial wherewithal to fight on through the appeals process, its owners went into bankruptcy and sold to Univision. But Mr. Abrams said, ‘I think Gawker would have won if it had had a chance to go higher.’ Juries, he said, have always shown a willingness to punish journalists — who are down there with lawyers in the public esteem rankings — just as appellate courts are often willing to reverse those juries.”

Cato to host Floyd Abrams event

Date & Time: May 1, 2017 @ 12:00 pm to 1:30 pm

Location: Hayek Auditorium, Cato Institute, Washington, D.C.

Cato’s Roger Pilon

“Featuring the author Floyd Abrams, Senior Counsel, Cahill Gordon & Reindel LLP; with comments by Ronald Collins, Harold S. Shefelman Scholar, University of Washington School of Law and Author, “First Amendment News,” Concurring Opinions blog; and Ilya Shapiro, Editor-in-Chief, Cato Supreme Court Review, Cato Institute; moderated by Roger Pilon, Director, Center for Constitutional Studies, Cato Institute.”

“Unlike most other people around the world, even in democracies such as Canada and England, we Americans are free to speak our minds without government approval or oversight. The Constitution’s First Amendment and the law that has grown up under it ensures that right, even when the speech is politically controversial or otherwise offensive. Yet the battle to protect free speech is never finally won, as our campuses and courtrooms attest. And no one has done more in that battle to defend that right than Floyd Abrams, who has gone before the Supreme Court in cases ranging from the struggle over the Pentagon Papers to Citizens United and more, much more. With this new, accessible book, The Soul of the First Amendment, Abrams draws on a lifetime of experience defending our right to speak freely. Please join us for a discussion of this bedrock principle in our constitutional order.”

If you can’t make it to the event, you can watch it live online at and join the conversation on Twitter using #CatoEvents. Follow @CatoEvents on Twitter to get future event updates, live streams, and videos from the Cato Institute.

Game maker files First Amendment lawsuit

The National Law Review reports that  “Candy Lab AR, makers of the augmented reality poker game Texas Rope ‘Em, sued Milwaukee County, Wisconsin, over an ordinance alleged to be violating the First Amendment. The ordinance states: ‘Permits shall be required before any company may introduce a location-based augmented reality game into the Parks . . . .'”

“The complaint alleges, in part, that: this restriction impinges on Candy Lab AR’s right to free speech by regulating Candy Lab AR’s right to publish its video games that make use of the augmented reality medium. It also claims that the ordinance is a prior restraint on Candy Lab AR’s speech, impermissibly restricts Candy Lab AR’s speech because of its content, and is unconstitutionally vague . . . .”

Solomon speaks at pre-launch History Book Festival event 

Stephen Solomon (left) & Mike DiPaolo (right)

For its fourth pre-launch event, the History Book Festival hosted an interview with Professor Stephen Solomon at the Lewes Public Library. Michael DiPaolo, executive director of the Lewes Historical Society, conducted the interview, the focus of which was on Solomon’s Revolutionary Dissent: How the Founding Generation Created the Freedom of SpeechSolomon and DiPaolo spoke to a full house this past Friday.

This was the fourth pre-launch event hosted by the History Book Festival. Previous speakers were:

The History Book Festival — the first one of its kind — officially launches in Lewes, Delaware on Oct. 6th and 7th.  Some of those who have already agreed to participate include:

The Festival is co-directed by Ronald Collins and Jen Mason.

So to Speak podcast with Geoffrey Stone

Over at FIRE’s So to Speak podcasts, Nico Perrino interviews Professor Geoffrey Stone re his new book Sex and the Constitution (podcast here).

“During our conversation, Stone explains how ‘obscenity‘ came to be regulated in America and why its legal definition constantly shifts. We also explore other First Amendment issues surrounding sexual expression, including nude dancing and the public funding of art with sexual themes.”

Justice Hans Linde to be Honored

Justice Hans Linde (ret)

Oregon Supreme Court Justice Hans Linde (ret.)  has been named the 2017 Jonathan U. Newman Legal Citizen of the Year. The Classroom Law Project is hosting a dinner in his honor tomorrow at the Sentinel Hotel in downtown Portland.

Justice Linde, who is 93, is best known as the “intellectual godfather” of the “new judicial federalism.” Linde is also widely regarded for his free-speech opinions and scholarly articles, which include:

 See also, Rex Armstrong, “Free Speech Fundamentalism – Justice Linde’s Lasting Legacy,” 70 Or. L. Rev. 855 (1991)

New & Forthcoming Books

  1. David van Mill, Free Speech and the State: An Unprincipled Approach (Palgrave Macmillan, February 3, 2017)
  2. Kevin Saunders, Free Expression and Democracy: A Comparative Analysis (Cambridge University Press, March 21, 2017)
  3. Carlos A. Ball, The First Amendment and LGBT Equality: A Contentious History (Harvard University Press, March 27, 2017)
  4. Gregory P. Magarian, Managed Speech: The Roberts Court’s First Amendment (Oxford University, April 4, 2017)
  5. Robert Spencer, The Complete Infidel’s Guide to Free Speech (and Its Enemies) (Regnery Publishing, July 24, 2017)
  6. Martin Gitlin, When Is Free Speech Hate Speech? (Greenhaven Press, August 15, 2017)
  7. Zeke Jarvis, Silenced in the Library: Banned Books in America (Greenwood Publishing Group, August 31, 2017)
  8. Mickey Huff & Andy Lee Roth, 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)
  9. Richard Pifer, The Great War Comes to Wisconsin: Sacrifice, Patriotism, and Free Speech in a Time of Crisis (Wisconsin Historical Society Press, October 31, 2017)
  10. Gavan Titley & Des Freedman, et al, editors, After Charlie Hebdo: Politics, Media and Free Speech (Zed Books, November 15, 2017)

New & Forthcoming Scholarly Articles 

  1. Rachel Elizabeth VanLandingham, Jailing the Twitter Bird: Social Media, Material Support to Terrorism, and Muzzling the Modern PressCardozo Law Review (forthcoming, 2017)
  2. Blake Anthong Klinkner, Do You Have a First Amendment Right to Social Media?, The Wyoming Lawyer (2017)
  3.  Julie Seaman & David Sloan Wilson, #FreeSpeech, Arizona State Law Journal (2017)

Notable Blog Posts

Today & Tomorrow in First Amendment History 

April 25, 1906:  William J. Brennan, Jr. born in Newark, New Jersey, the second of eight children. His parents, William and Agnes (McDermott) Brennan, were Irish immigrants.

April 26, 1968: “Fuck the Draft” — Robert Paul Cohen Arrested

This from Today in Civil Liberties History: “To protest the Vietnam War, Robert Paul Cohen walked through the Los Angeles County Court House on this day with the words, “FUCK THE DRAFT. STOP THE WAR,” on the back of his jacket. He was arrested and later convicted of disturbing the peace, but the Supreme Court reversed his conviction in Cohen v. California on June 7, 1971.

Prof. Mel Nimmer represented Cohen in the Supreme Court

Justice John Marshall Harlan, II wrote for the majority, while Justice Harry Blackman wrote a dissent in which Chief Justice Warren Burger and Hugo Black joined. Here is an excerpt from Harlan’s opinion:

“Against this perception of the constitutional policies involved, we discern certain more particularized considerations that peculiarly call for reversal of this conviction. First, the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.”

Note: Anthony G. Amsterdam filed an amicus brief for the American Civil Liberties Union of Northern California.

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

Opinions Rendered 

  1. Expressions Hair Design v. Schneiderman (opinion here)

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. Alabama Democratic Conference v. Marshall
  2. Augsburg Confession
  3. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission  (SCOTUSblog commentary)

Summary Disposition

  1. Independence Institute v. FEC (affirmed)

Cert. Denied

  1. Keefe v. Adams
  2. Scott v. Georgia
  3. Bondi v. Dana’s Railroad Supply
  4. Bennie v. Munn
  5. Flytenow v. Federal Aviation Administration
  6. Armstrong v. Thompson
  7. Wolfson v. Concannon
  8. Dart v.
  9. NCAA v. O’Bannon
  10. Mech v. School Board of Palm Beach County
  11. Williams v. Coalition for Secular Government 
  12. 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: Review 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 April 28, 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, #150: May 3 2017

Last Scheduled FAN, #148: Coming this fall: NYU Law to host conference to commemorate centennial anniversary of Hand’s Masses decision

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1 Response

  1. Brett Bellmore says:

    Dean’s take on the 1st amendment wasn’t meant, I think, as a description of the current state of the law. It was aspirational: It’s what the law would be like if Democrats had won the election, and gained a 5-4 majority on the Supreme court.

    Democrats are, after all, the party that recently made attempts to amend the 1st amendment, to reduce freedom of speech. Dean was just describing where his party means to take the law, if they get a chance.

    Fortunately, until they get that chance, we’re still free to discuss the matter.