FAN 161 (First Amendment News) Nadine Strossen’s Next Book — “Hate: Why We Should Resist it With Free Speech, Not Censorship”

In a forthcoming book, New York Law School Professor Nadine Strossen returns to a topic she explored 27 years ago in an insightful Duke Law Journal article titled “Regulating Racist Speech on Campus: A Modest Proposal?” This spring, Oxford University Press will publish her latest book:  Hate: Why We Should Resist it With Free Speech, Not Censorship. (This book is part of the “Inalienable Rights” Series, of which University of Chicago Law Professor Geoffrey Stone is editor.)

Dedication: The book is dedicated to “Norman Dorsen and Aryeh Neier, key leaders of the ACLU during the Skokie controversy, inspiring human rights champions, and revered mentors.”

I read an advance version of the manuscript and will say this: Strossen has accomplished something remarkable in this slim book — she has ventured into a complex and heavily examined field and produced a book that is original, insightful, and clear-headed. My guess: this book will become the go-to work in the field.   

Prof. Nadine Strossen

Abstract: One of Donald Trump’s signal successes in the 2016 election campaign was his unrelenting attack on ‘political correctness.’ While the phenomenon of political correctness is certainly very polarizing, it is also a capacious and somewhat amorphous concept. At root, though, it centers on speech and expression-the idea that since certain words and arguments are hurtful to those less powerful, they should therefore be viewed with suspicion and even opprobrium.

As the eminent scholar and activist Nadine Strossen shows, this is not a new idea. Long before anyone had heard of political correctness, the term ‘hate speech’ was in broad circulation. Indeed many of the controversies swirling around alleged political correctness are really claims and counterclaims about hate speech. Some say that Black Lives Matter engages in hate speech against cops. Some say evangelicals engage in hate speech against the LGBT community. The list of aggrieved populations is long, which begs a question: when is speech truly ‘hate speech’ or, alternatively, simply a cherished right protected by the Constitution?

In this book Strossen dispels the many misunderstandings that have clouded the perpetual debates about this topic, including the equally erroneous assertions that it is either absolutely unprotected or absolutely protected. She explains the more nuanced approach that U.S. law actually embodies: allowing hateful or discriminatory speech to be outlawed in many situations, including when it directly causes specific imminent serious harm; but not empowering government to punish such speech solely because its message is disfavored, disturbing, or feared to possibly contribute to some harm.

Prof. Geoffery Stone (series editor)

Strossen shows that such principles have been especially important for sheltering dissenting views, minority speakers, and advocates of equal rights causes. Conversely, she shows that the “hate speech” laws in many other countries, including those comparable to the U.S., have punished and chilled vital speech about public issues, leading many human rights activists in those countries and in international agencies to criticize those laws and to advocate the U.S. approach: counterspeech and other non-censorial alternatives, including strong enforcement of anti-discrimination laws. Beyond the constitutional arguments, Strossen makes a compelling, evidence-rich case that the “more speech” approach is more effective than censorship in countering the harms that “hate speech” is feared to cause: discrimination, violence, and psychic injuries.

→  This from Professor Stone’s Introduction:In this work, Strossen stakes out a bold and important claim about how best to protect both equality and freedom. Anyone who wants to advocate for ‘hate speech’ laws and policies in the future now has the “Devil’s Advocate” right at hand. No one can address this issue in the foreseeable future without taking on this formidable and compelling analysis. It lays the foundation for all debates on this issue for years to come.”

TABLE OF CONTENTS

Acknowledgements

Editor’s Note

Essential Concepts 

Introduction

Chapter 1: Overview

Chapter 2: “Hate Speech” Laws Violate Fundamental Free Speech and Equality Principles

Chapter 3: When “Hate Speech” is Protected and When it is Punishable

Chapter 4: Because of Their Intractable Vagueness and Overbreadth, “Hate Speech” Laws Undermine Free Speech and Equality

Chapter 5: Is it Possible to Draft a “Hate Speech” Law That is Not Unduly Vague or Overbroad?

Chapter 6: Does Constitutionally Protected “Hate Speech” Actually Cause the Feared Harms?

Chapter 7: “Hate Speech” Laws Are at Best Ineffective and at Worst Counterproductive

Chapter 8: Non-Censorial Methods Effectively Curb the Potential Harms of  Constitutionally Protected “Hate Speech”

Chapter 9: Conclusion: Looking Back – and Forward

Corn-Revere files Amicus Brief in Masterpiece Cakeshop

First Amendent lawyer Robert Corn-Revere (of the DC office of Davis Wright Tremaine) recently filed an amicus brief in Masterpiece Cakeshop v. Colorado Civil Rights Commission in support of the Petitioners’ First Amendment free speech (but not free exercise) calims. He filed the brief (joined by Ronald G. London) on behalf of the First Amendment Lawyers Association. His main arguments are:

— The First Amendment Prohibits Enforcing Anti-Discrimination Laws to Compel the Creation of Expressive Works:

A.      The Parties Agree That the Colorado Anti-Discrimination Act Could Not Be Applied to Compel Speech.

B.      The First Amendment Prohibits State Action Compelling the Creation of Artistic Works, Including Wedding Cakes

C.      Upholding Petitioners’ Right to be Free From Compelled Expression Under the First Amendment’s Free Speech Clause Helps Avoid a Constitutional Morass

Here are a few excerpts from the brief:

“The First Amendment protects both the right to speak and the right to refrain from speaking as part of a broader concept of “individual freedom of mind.” Wooley v. Maynard . . .  (1977). . . . There is no disagreement about whether the Constitution prohibits the state from compelling speech, but the Court of Appeals errone- ously held that creating a custom, artistic design is not expression protected by the Free Speech Clause.”

Robert Corn-Revere

“As if channeling Samuel Goldwyn’s immortal line “if you want to send a message, call Western Union,” the court based its ruling on a too literal-minded understanding of First Amendment protections for symbolic speech. Citing Spence, it asked whether ‘Masterpiece conveys a particularized message celebrating same-sex marriage, and whether the likeli- hood is great that a reasonable observer would both understand the message and attribute that message to Masterpiece.'”

“But this is the wrong question. When it comes to artistic expression, First Amendment protection does not depend on having a “particularized message.” If it did, much of what we commonly regard as art – including non-representational painting or sculpture, instrumental music, dance, mime, or other non- verbal expression would be excluded from constitutional immunity. Thus, the relevant questions for purposes of deciding this case are whether art is “speech” within the meaning of the First Amendment, and if so, can the government require a person to create it?”

“Once properly framed, the answers are clear: Artistic expression most certainly is protected and it offends the First Amendment to compel its creation or performance. Contrary to the decision below, this Court held in Hurley that First Amendment protection is not conditioned on the existence of a “narrow, succinctly articulable message,” [citation], and the Court of Appeals cited no authority for the proposition that acts of creative expression can be compelled by the state.”

“The Court should decide this case under the Free Speech Clause of the First Amendment and not the Free Exercise Clause. Applying the compelled speech doctrine to bar the government from requiring individuals to create expressive works will resolve the issue while avoiding doctrinal confusion. It is thus unnecessary to address whether the Free Exercise Clause precludes enforcement of the Colorado public accommodation law.”

Court Urged Not to Reach Free Exercise Claim

“[T]his Court should not reach the question of whether Petitioners’ refusal to design a cake for a same-sex wedding is protected under the Free Exercise Clause. The analysis under the Free Speech Clause is fully dispositive and presents far fewer difficult implications than if this were treated as a religious question.”

“Any exemption based on the Free Exercise Clause would be far broader. For example, if the Westboro Baptist Church opened a diner, a religiously-based right to refuse service would permit the group to deny a seat at their lunch counter to anyone the members of the church dislike – which in their case is pretty much everyone. And such a right would not require determining whether the service they provided is in any way expressive. An exemption to public accommodation laws based on the Free Exercise Clause thus would be virtually limitless, because it would create a potential loophole for any bigot who waves a Bible or Koran at the law. Perhaps because of the inherent difficulties of resolving such religious questions, the Court did not address the Free Exercise Clause issue presented in Snyder v. Phelps .  . . , and decided the case under the Free Speech Clause. . . .”

For a contrary view re the Free Excercise claim, see:

  • Amicus Brief in Support of Petitioners filed by The Becket Fund for Religious Liberty (Eric Rassback, counsel of record)
  • Amicus Brief in Support of Petitioners filed by The Conference of Catholic Bishops, et al (John J. Bursch, counsel of record)

The amicus brief filed by the United States in support of the Petitioners raises only a First Amendment free-speech claim (Jeffrey B. Wall, Acting Solicitor General, counsel of record)

 Select Commentaries

Amicus Brief on Behalf of Cake Makers . . . Replete with Photos! 

ARGUMENT

  1. The Design And Preparation Of Custom Cakes Is An Artistic And Expressive Activity

A.  Wedding cakes are the most iconic examples of the cake artist’s craft

  1. Traditional wedding cakes are readily identified at a glance, but their magic lies in their details
  2. Imaginative wedding cakes that add new features
  3. Same-sex wedding cakes can be especially artistic

B.   Expressive cakes can cement deep meaning for many other occasions

C.  Cakes of enormous beauty exemplify custom cakes’ artistic character regardless of linkage to any specific purpose or event.

D.  The technical and creative skills used in preparing custom cakes require enormous artistic energy

II.       Cake Artists Merit As Much Protection For Their Expressive Work As Artists Using Other Mediums

A.   This Court’s cases make clear that the artistic nature of cake-making is not diminished by its “non-traditional” medium

B.   Copyright law illustrates why cakes can have artistic value

Cake Artists’ Amicus Brief, p. 21

Numerous Briefs in Masterpiece Cakeshop Case

 Posted on the American Bar Association website (see here) and on SCOTUSblog (see here).

Tenth Circuit: Wyoming Data Trespass Laws Violate First Amendment 

This from a news report by K2Radio (Wyoming): “A federal appeals court in Denver says a pair of Wyoming statutes violate the First Amendment of the U.S. Constitution, and a federal judge in Wyoming must reconsider advocacy groups’ challenge to the statutes.’We conclude that the statutes regulate protected speech under the First Amendment and that they are not shielded from constitutional activity merely because they touch upon access to private property,’ reads Thursday’s ruling by the 10th U.S. Circuit Court of Appeals.”

“The Wyoming Legislature in 2015 created Wyoming Statutes 6-3-414 and 40-27-101, which create criminal and civil penalties for anyone who would “trespass unlawfully to collect resource data.” Wyoming already had trespassing penalties on the books; the statutes made available additional penalties. . . .”

“The . . . statutes [challenged] allowed for penalties for anyone who “(1) enters private land ‘for the purpose of collecting resource data’; (2) enters private land and ‘collects resource data’; or (3) ‘crosses private land to access adjacent or proximate land where he collects resource data.'”

Case here: Western Watershe Project, et al v. Michael (10th Cir., Sept. 7, 2017)

New Hampshire Panhandling Law Struck Down

This from Professor Ruthann Robson over at Constitutional Law Prof Blog:

(Credit: Kitsap Sun)

“In a lengthy opinion in Petrello v. City of Manchester, United States District Judge Landya McCafferty found the City’s efforts to control ‘panhandling’ through its enforcement of a disorderly conduct statute and through an ordinance directed at panhandling both violated the First Amendment. . . . ”

“In its other attempt to curtail panhandling. the City of Manchester passed an ordinance providing:

‘No person shall knowingly distribute any item to, receive any item from, or exchange any item with the occupant of any motor vehicle when the vehicle is located in the roadway.'”

“. . . Judge McCafferty found the ordinance content-neutral and again that the ordinance violated the First Amendment. Again, Judge McCaffery found that while the government interests were valid, the Ordinance was not sufficiently tailored to those interests for four main reasons: (1) the Ordinance bans roadside exchanges that do not obstruct traffic or pose safety risks; (2) the Ordinance is geographically overinclusive because it applies citywide; (3) the Ordinance is underinclusive because it penalizes only pedestrians, not motorists; and (4) the City has less speech- restrictive means available to address its concerns. In reaching these conclusions, Judge McCafferty relied in part on the Ninth Circuit en banc decision in Comite de Jornaleros de Redondo Beach v. City of Redondo Beach (2011) regarding day labor solicitation.”

Job Opening: First Amendment Litigation Attorney Sought 

The Center for Competitive Politics seeks an experienced attorney to join its litigation team. A successful applicant will be expected to take a leading, independent role in First Amendment cases brought in federal and state courts.

Founded in 2005 by former Federal Election Commission Chairman Bradley A. Smith, the Center for Competitive Politics is the nation’s largest organization devoted solely to the protection of the First Amendment’s guarantees of free speech, press, assembly, and petition.

Responsibilities

  • As directed by CCP’s Legal Director, serve as counsel responsible for all stages of litigation, including: research; discovery; writing correspondence; writing complaints, memoranda, and briefs; motion practice; and court appearances.
  • Work directly with local counsel and clients.
  • Assist in writing advocacy materials, including legal backgrounders, blog posts, and opinion articles.
  • Write or assist with writing legal analysis of legislative, regulatory, and policy initiatives.

Go to this link re “job requirements”

  • Materials should be emailed in one PDF document to Claire Kittle Dixon, Executive Director of Talent Market, who is assisting with the search: claire@talentmarket.org
  • Please include “Attorney, CCP – Your Name” in the subject line of your email.

Related: Matt Nese, CCP Asks Supreme Court to Refute “Welcome Restraint” Speech Doctrine in Trump “Travel Ban” Case, Center for Competitive Politics, Aug. 3, 2017

Upcoming Conference: Symposium — the First Amendment on Campus & Dispute Resolution

On Oct. 27, 2017 Missouri’s Center for the Study of Dispute Resolution Annual Symposium will host s symposium titled  “The First Amendment on Campus:  Identifying Best Practices for Managing and Resolving Disputes.”

Almost weekly, events on our nation’s campuses vividly demonstrate conflicting attitudes about the boundaries of free speech and expression.  Many angles of inquiry exist for this important subject.  The focus of this symposium is the complex intersection between free expression and conflict at universities – in particular, what processes and procedures are appropriate for managing free speech disputes on our campuses, and how best to facilitate peaceful, appropriate, and lawful resolutions or accommodations of the underlying conflicts.  By bringing together free speech scholars, dispute resolution experts, and university leaders with experience with free expression conflict, we hope to advance our understanding of how university leaders can remain true to both the mission of the university and the values of the First Amendment.

Dean Robert Post of the Yale Law School, a noted First Amendment scholar, will be the keynote speaker.  Lisa Amsler (Indiana), Jennifer Brown (Quinnipiac), and Grande Lum (Ohio State) will anchor an afternoon panel on lessons to be learned from DR scholarship.  And there are other panels, too.

For registration information, the program, the speakers, and other details, and to register online, please go to the symposium website.

Another Upcoming Conference: “Fake News” & Free Speech 

The First Amendment Law Review will hold its annual symposium on Oct. 27th in Chapel Hill, NC. The event will bring together noted legal scholars, social scientists, and professionals to discuss the timely topic of fake news.

Participants:

  • Mary-Rose Papandrea
  • Ashton Cooke
  • Angie Drobnic Holan
  • Bill Marshall
  • Clay Calvert
  • Ashley Messenger
  • Richard Hasen
  • David Han
  • Michael Curtis
  • Helen Norton
  • Lil Levi
  • Joseph Blocher
  • David Ardia
  • Sonja West
  • Deen Freelon
  • Dereck Bambauer
  • Lindsie Trego
  • John Cashion

Yet Another Upcoming Conference: “Listeners & the First Amendment” 

The Ira C. Rothgerber Jr. Conference on Constitutional Law is an annual White Center, University of Colorado Law School, event that brings scholars from across the nation to Colorado Law for a discussion on a current constitutional issue.

The 26th Annual Rothgerber Constitution Law Conference, “Listeners and the First Amendment,” will take place on Friday, April 13, 2018 from 8:30 am-3:30 pm.  Speakers from around the United States will explore a broad range of issues related to listeners’ constitutional interests and rights. Topics may include when and why listeners’ interests should matter to First Amendment law, how we might go about determining listeners’ interests, and what to do when listeners’ interests may be in tension with speakers’ interests — generally or in specific contexts involving speech to voters, consumers, workers, students, information users, shareholders, clients, consumers of the media, and other specific individuals or communities.

Newseum Falls on Tough Times

(Photo via Wikimedia Commons/David Monack)

  1. Michael Shannon, Newseum a Sinking Ship of Self-Aggrandizement, Newsmax, Sept. 9, 2017
  2. Newseum Institute, Jeff Herbst Steps Down as Newseum President and CEO, Aug. 30, 2017
  3. William Racke, Newseum’s Executives Raked In Huge Salaries While Organization Lost Millions, The Daily Caller, Aug. 30, 2017
  4. Roger Yu, The Newseum CEO steps down as it considers selling, closing, USA Today, Aug. 30, 2017
  5. Sophie Haigney, Newseum’s Leader Resigns Amid Review of Finances, New York Times, Aug. 29, 2017
  6. Margaret Sullivan, The Newseum opened as the journalism industry tanked. No wonder it’s in deep troubleWashington Post, Aug. 29, 2017
  7. Jack Shafer, The Newseum Deserves to Die, Politico, Aug. 29, 2017

David Cole: “Why We Must Still Defend Free Speech”

The September 28th issue of The New York Review of Books contains an important essay by David Cole ( National Legal Director of the ACLU) entitled “Why We Must Defend Free Speech.” Here is how it begins:

“Does the First Amendment need a rewrite in the era of Donald Trump? Should the rise of white supremacist and neo-Nazi groups lead us to cut back the protection afforded to speech that expresses hatred and advocates violence, or otherwise undermines equality? If free speech exacerbates inequality, why doesn’t equality, also protected by the Constitution, take precedence?”

David Cole

“After the tragic violence at a white supremacist rally in Charlottesville, Virginia, on August 12, these questions take on renewed urgency. Many have asked in particular why the ACLU, of which I am national legal director, represented Jason Kessler, the organizer of the rally, in challenging Charlottesville’s last-minute effort to revoke his permit. The city proposed to move his rally a mile from its originally approved site—Emancipation Park, the location of the Robert E. Lee monument whose removal Kessler sought to protest—but offered no reason why the protest would be any easier to manage a mile away. As ACLU offices across the country have done for thousands of marchers for almost a century, the ACLU of Virginia gave Kessler legal help to preserve his permit. Should the fatal violence that followed prompt recalibration of the scope of free speech?”

“The future of the First Amendment may be at issue. A 2015 Pew Research Center poll reported that 40 percent of millennials think the government should be able to suppress speech deemed offensive to minority groups, as compared to only 12 percent of those born between 1928 and 1945. Young people today voice far less faith in free speech than do their grandparents. And Europe, where racist speech is not protected, has shown that democracies can reasonably differ about this issue. . . .”

Two New Books on Campus Free Speech 

Abstract: Hardly a week goes by without another controversy over free speech on college campuses. On one side, there are increased demands to censor hateful, disrespectful, and bullying expression and to ensure an inclusive and nondiscriminatory learning environment. On the other side are traditional free speech advocates who charge that recent demands for censorship coddle students and threaten free inquiry. In this clear and carefully reasoned book, a university chancellor and a law school dean—both constitutional scholars who teach a course in free speech to undergraduates—argue that campuses must provide supportive learning environments for an increasingly diverse student body but can never restrict the expression of ideas. This book provides the background necessary to understanding the importance of free speech on campus and offers clear prescriptions for what colleges can and can’t do when dealing with free speech controversies.

 

Abstract: Safe spaces, trigger warnings, microagressions, the disinvitation of speakers, demands to rename campus landmarks — debate over these issues began in lecture halls and on college quads but ended up on op-ed pages in the New York Times and the Wall Street Journal, on cable news, and on social media. Some of these critiques had merit, but others took a series of cheap shots at “crybullies” who needed to be coddled and protected from the real world. Few questioned the assumption that colleges must choose between free expression and diversity. In Safe Spaces, Brave Spaces, John Palfrey argues that the essential democratic values of diversity and free expression can, and should, coexist on campus.

Palfrey, currently Head of School at Phillips Academy, Andover, and formerly Professor and Vice Dean at Harvard Law School, writes that free expression and diversity are more compatible than opposed. Free expression can serve everyone — even if it has at times been dominated by white, male, Christian, heterosexual, able-bodied citizens. Diversity is about self-expression, learning from one another, and working together across differences; it can encompass academic freedom without condoning hate speech.

Palfrey proposes an innovative way to support both diversity and free expression on campus: creating safe spaces and brave spaces. In safe spaces, students can explore ideas and express themselves with without feeling marginalized. In brave spaces — classrooms, lecture halls, public forums — the search for knowledge is paramount, even if some discussions may make certain students uncomfortable. The strength of our democracy, says Palfrey, depends on a commitment to upholding both diversity and free expression, especially when it is hardest to do so.

Forthcoming Books

Jerome Barron, First Amendment Law in a Nutshell (West Academic Publishing; 5th ed., Nov., 2017)

Helen Norton’s Two Forthcoming Free-Expresson Articles 

Abstract: This essay considers a particular universe of potentially dangerous governmental falsehoods: the government’s lies and misrepresentations about and to the press.

Government’s efforts to regulate private speakers’ lies clearly implicate the First Amendment, as many (but not all) of our own lies are protected by the Free Speech Clause. But because the government does not have First Amendment rights of its own when it speaks, the constitutional limits, if any, on the government’s own lies are considerably less clear.

Prof. Helen Norton

In earlier work I have explored in some detail the Free Speech and Due Process Clauses as possible constraints on certain government lies that inflict economic and reputational harm, that punish or silence individuals’ speech, or that imprison or deny other protected liberties. In this paper I focus instead on the ways in which some of the government’s press-related lies and misrepresentations can frustrate the two values most commonly identified as underlying the First Amendment’s Press Clause: exposing (and thus checking) government misconduct, and informing public opinion about a wide range of matters.

Part I identifies a number of these falsehoods and the ways in which they can frustrate the press’s effectiveness in performing its watchdog and educator functions. For example, the government’s misappropriation of the press’s identity (i.e., the government’s lies that it is the press) and the government’s obfuscation of its role as author of material it has produced for publication (i.e., the government’s lies that it is not the press) undermine the press’s independence and credibility. The public needs to see and understand the press and the government as distinct entities with very different roles if the press is to offer a meaningful check on the government; the government’s lies about being (or not being) the press thus threaten to blur the line between the two in damaging ways. Relatedly, the government’s lies to the press about its own behavior — coupled with its lies about the press intended to discredit the press — directly interfere with the press’s ability to hold the government accountable to the public through accurate and credible reporting. Part II then considers potential legal, structural, political, and expressive responses to such governmental falsehoods and their harms. Possibilities include a more muscular Press Clause doctrine that would prohibit governmental lies and misrepresentations that interfere with Press Clause functions, as well as engaged counterspeech and oversight by other government actors, the press, and the public more generally.

Abstract: The government is unique among speakers because of its coercive power, its substantial resources, its privileged access to national security and intelligence information, and its wide variety of expressive roles as commander-in-chief, policymaker, educator, employer, property owner, and more. Precisely because of this power, variety, and ubiquity, the government’s speech can both provide great value and inflict great harm to the public. In wartime, more specifically, the government can affirmatively choose to use its voice to inform, inspire, heal, and unite — or instead to deceive, divide, bully, and silence.

In this essay, I examine the U.S. government’s role as speaker (rather than as regulator of speech) in its war on terror, drawing from historical and contemporary examples to illuminate the great power of government’s wartime expression. As we shall see, the government’s expressive choices in wartime can be enormously valuable. On the other hand, the government has also engaged in wartime fearmongering and lies, with at times devastating effects to its targets specifically and to the American public collectively. Many of the challenges involving the government’s speech in today’s war on terror are familiar (often painfully so), while some seem different in degree and perhaps in kind.

Although courts and commentators have discussed at some length the First Amendment issues raised by the government’s restriction of others’ speech as part of its war on terror, relatively little attention has yet been devoted to the implications of the government’s own expression in this setting. Except for the Court’s interpretation of the Establishment Clause to limit government’s religious speech in certain contexts, for example, the Court’s government speech doctrine remains incomplete in that it has yet to address the ways in which the government’s own speech might affirmatively threaten other constitutional values.

Part I of this essay considers the government’s fearmongering speech in wartime — i.e., its deliberate expressive effort to instill or exacerbate public fear of certain individuals or communities through stereotyping and scapegoating. Part II considers the government’s war-related lies — i.e., its deliberately or recklessly false assertions of fact about its wartime conduct made with the intent that the listener understand them to be true. Part III outlines a range of constitutional, statutory, structural, and political responses to the government’s wartime speech that threatens key constitutional values.

Jane Bambauer’s Two Forthcoming Free-Expresson Articles 

Abstract: The First Amendment should protect not only the right to share ideas and factual claims, but also a (limited) right to test them. At first, this proposition will seem implausible, even dangerous. The right to share and receive ideas is protected in part because expression causes no direct, physical harm. Testing the validity of a claim, by contrast, often involves conduct that can directly bring non-communicative harms. But despite these legitimate concerns, a limited right to information-gathering and experimentation is necessary for a coherent and well-functioning First Amendment.

First, the performance of the “marketplace of ideas” depends on our ability to validate and invalidate competing claims. Most claims, whether trivial or profound, are empirical claims that should be accepted or rejected by their audience on evidentiary grounds that the listeners can experience for themselves. The proverbial marketplace cannot function if listeners are unable to access information or to run the experiments they need to assess the validity of the claims that are offered to them. The state therefore exercises great control over human knowledge if it has unfettered power over the means of empirical testing, even if it has no ability to suppress the claims that are offered for public acceptance.

Prof. Jane Bambauer

Second, the prospect of state suppression of empirical testing is not hypothetical. The government frequently exercises state power in ways that not only have the effect but the very purpose of suppressing empirical inquiry. Federal and state regulations of research prohibit otherwise legal conduct that is done with an intent to learn. Proposals for more and greater restrictions on research are emerging in the wake of advances in machine learning and AI-generated research. Other laws indirectly but severely limit the ability to test hypotheses and generate new knowledge in the course of regulating trade secrets, privacy, professional malpractice, computer hacking, and public records, again often with the very purpose of obstructing access to knowledge.

This essay explains why free speech theory and case law should, can, and to some extent already does recognize a First Amendment interest in testing competing theories. It then suggests how this constitutional interest can be cautiously expanded. This expansion will inure to the benefit of not only the participants, but the modern regulatory state as well.

Abstract: Consumer privacy is predominantly regulated through disclosure. The Federal Trade Commission (FTC) strongly urges American businesses to notify consumers about their privacy practices, and the agency is considering requiring “just-in-time” disclosure that would make these notices more salient and aggressive. American law contains many mandated disclosure rules, and they fall along a spectrum. Some disclosures are indisputably good policy because they alert consumers about material risks that all would agree are bad, such as product warnings about latent dangers of physical harm. These long-accepted “informational” disclosures are compatible with the compelled speech doctrine of the First Amendment. Other mandated disclosures are arguably poor policy because they mislead consumers and cause foreseeable overreactions. For example, mandated disclosures about the presence of mercury in vaccines, about the foreign origins of products, or about raw correlations between depression and abortion technically consist of factual statements. Nevertheless, they should be treated as “ideological” disclosures running afoul of the compelled speech doctrine.

Much less is known about mandated disclosures that fall in the middle of the range, between clearly informational and clearly ideological disclosures. Mandatory privacy disclosures seem to fall in this middle range. These disclosures do not have the virtue of alerting consumers to risks because they concern attributes that consumers do not consistently see as positive or negative. Some disclosures are useful for preference matching where consumers value a product more after learning about an attribute, while others value it less. Some disclosures are useless, meaning that consumers informed about the attribute do not change their valuation at all. These middle range disclosures may be wasteful, but they are not fraudulent or distortive. How should the First Amendment treat the laws that mandate disclosure about these attributes? This essay presents a theory and practical instrument for distinguishing between informational and ideological mandated disclosures, and shows that at least some of the privacy policies required by law are constitutionally suspect.

→ See also:

New & Forthcoming Scholarly Articles

  1. Len Niehoff, Doe v. University of Michigan: Free Speech on Campus 25 Years Later, University of Miami Law Review (2017)
  2. Elana Zeide, The Limits of Education Purpose LimitationsUniversity of Miami Law Review (2017)
  3. Patricia J. Zettler, The Indirect Consequences of Expanded Off-Label Promotion, Ohio State Law Journal (2017 forthcoming)
  4. Lynne H. Rambo, When Should the First Amendment Protect Judges from Their Unethical Speech?, Ohio State Law Journal (forthcoming 2017-2018)
  5. Kyle Langvardt, Regulating Online Content Moderation, Georgetown Law Journal (forthcoming 2017-2018)
  6. Lackland H. Bloom, Jr., John Stuart Mill and Political Correctness, University of Louisville Law Review (forthcoming 2017-2018)
  7. Laura M. Weinrib, The Right to Work and the Right to Strike, University of Chicago Legal Forum (forthcoming 2017)
  8. Gerald Korngold, A New Framework for Achieving Free Expression and Speech in the Evolving and Reconceptualized Shopping Mall of the Twenty-First Century, Case Western Reserve Law Review (forthcoming 2017)
  9. Courtlyn G. Roser-Jones, Reconciling Agency Fee Doctrine, the First Amendment, and the Modern Public Sector Union, Northwestern University Law Review (forthcoming 2018)

News, Editorials, Op-eds. & Blog Posts

→ Laura Weinrib, The ACLU’s free speech stance should be about social justice, not ‘timeless’ principles, Los Angeles Times, Aug. 31, 2017

  1. Christopher Peak, Judge Schools City On 1st Amendment, New Haven Independent, Sept. 11, 2017
  2. George Lakoff, Why Hate Speech is Not Free Speech, Sept. 8, 2017
  3. Jonathan Hamrick, After Charlottesville, Reconsider the First Amendment, The Emory Wheel, Sept. 6, 2017
  4. Noah Feldman, The First Amendment Protects the Dreamers, Too, Bloomberg View, Sept. 6, 2017
  5. Eugene Volokh, ‘Deadpool,’ alcohol and the First Amendment, The Volokh Conspiracy, Sept. 1, 2017
  6. Kristal Cox, The First Amendment And Copyright Law: Can’t We All Just Get Along?, Above the Law, Aug. 31, 2017
  7. Philip Wegmann, University of Chicago law professor wants the ACLU to get over the First Amendment, Washington Examiner, Aug. 31, 2017

Free-Speech Contest

This from Peter Bonilla over at FIRE:

As we kick off the new school year, FIRE is delighted to announce the return of our Free Speech Essay Contest! Open to high school juniors and seniors, our essay contest asks students to write about the importance of freedom of speech both to higher education and society at large, using FIRE’s videos and other available materials to guide them. FIRE will award a total of $20,000 in college scholarship funds to the winners of the contest, including a $10,000 first prize.

The return of FIRE’s essay contest could not be more timely, as free speech in higher education has become an increasingly urgent and contentious national issue. It is more important than ever that high school students have an understanding of the importance of free speech before they head to college so that they are prepared to defend themselves against censorship when they arrive.

FIRE will award one $10,000 first prize, one $5,000 second prize, and three $1,000 runner-up prizes for the best essays. Four $500 winners will be chosen from the remaining entrants in a drawing.

This year’s essay contest asks students to explain why free speech is so important to higher education, and why censorship undermines the ideals of liberal education and a free society.

Further information for entrants is available below.

Who is eligible to enter the essay contest?

The contest is open to juniors and seniors in U.S. high schools (graduating in 2018 or 2019), including home-schooled students, as well as U.S. citizens attending schools overseas. Additional questions regarding eligibility may be emailed to essaycontest@thefire.org.

What is the deadline for entering?

The deadline for submissions is 11:59 P.M. on December 31, 2017. Winners will be announced by January 31, 2018.

What FIRE materials should I use to prepare my essay?

We ask that entrants watch two FIRE videos—about Williams College student Zach Wood’s fight for open discourse and a University of Cincinnati student’s fight to rid his institution of so-called “free speech zones”—to inform their answers to our essay prompt.

What is the essay prompt?

In 800-1,000 words, explain why free speech is so important to higher education, and why censorship undermines the ideals of liberal education and a free society.

Can we use any of FIRE’s other materials in addition to those videos?

Sure! FIRE maintains a wealth of information for students at no cost to them. These include our ever-expanding First Amendment Library, our daily Newsdesk, our active FIRE Student Network, and numerous publications including our comprehensive “Guide to Free Speech on Campus.” Feel free to educate yourself using any of these resources as you prepare your essays.

What are the scholarship prizes, and how many winners will be selected?

FIRE will award one $10,000 first prize, one $5,000 second prize, and three $1,000 runner-up prizes for the best essays. Four $500 winners will be chosen from the remaining entrants in a drawing.

Where should I send my essay?

Essays must be submitted through the form on the contest page, thefire.org/contest.

I’d like to know more about FIRE’s work defending free speech. Any suggestions?

Absolutely! To start, we encourage all interested students to join the FIRE Student Network to stay connected with FIRE and learn more about the work being done by their fellow students defending free speech at colleges and universities across the country.

Any additional questions regarding the essay contest can be directed to FIRE via email at essaycontest@thefire.org. Good luck in the new school year, and we look forward to reading your essays!

Podacst: “The neurodiversity case for free speech”

Geoffrey Miller, The Neurodiversity Case for Free Speech, Quillette, July 18, 2017

YouTube: Whistleblowers on Campus 

This from Chris Maltby over at FIRE:

What happens to faculty who speak out about administrative misconduct on their campuses and face retaliation? FIRE sat down with professors who say it happened to them.

Professor Philip Beverly sued Chicago State University after he says the school engaged in a far-reaching censorship campaign to silence his blog criticizing university leadership. Dr. James Enstrom, formerly a researcher at the UCLA Fielding School of Public Health, says the school cut his funding — and ultimately his job — for research that contradicted regulations adopted by the powerful California Air Resources Board. UCLA also reached a $10 million settlement with Dr. Robert Pedowitz, the former chairman of UCLA’s orthopedic surgery department, who claimed the school retaliated against him after he raised concerns about financial conflicts of interest that may have put patients at risk.

↓ Hear from the whistleblowers themselves about the need for free speech and academic freedom:↓

Whistleblowers on campus: The fight for free speech and academic freedom

YouTube: Oxford Union Debate on Money & Democracy 

Oxford Union Debate (Money & the Democratic Process) 

Floyd Abrams at Oxford Union Debate

* * * * * 

2017-2018 Term: First Amendment Free Expression Opinions

Cert. Granted

  1. Masterpiece Cakeshop v. Colorado Civil Rights Commission

Pending: Cert. Petitions 

  1. Final Exit Network, Inc. v. Minnesota
  2. Minnesota Voters Alliance v. Mansky
  3. Lozman v. City of Riviera Beach, Florida
  4. Elonis v. United States
  5. Harris v. Cooper 
  6. National Institute of Family and Life Advocates v. Becerra
  7. A Woman’s Friend Pregnancy Resource Clinic v. Becerra
  8. Livingwell Medical Clinic, Inc. v. Becerra

Free-Speech Related Cases

Next Scheduled FAN: #162: September 2o, 2017.

Last Scheduled FAN: # 160: Latest First Amendment Salon: A Dialogue Between Geof Stone & Vince Blasi re “Sex & the Constitution”

You may also like...

1 Response

  1. Brett Bellmore says:

    Glad that the 1st amendment is still part af the ACLU’s Bill of Rights. Which I’m told isn’t co-extensive with the written one the states actually ratified, so that’s not guaranteed.

    I’ve worried a bit on that score recently, what with their hiring a director of litigation who wants their victory in the Citizens United case overturned.

Leave a Reply

Your email address will not be published. Required fields are marked *

*
To prove you're a person (not a spam script), type the security word shown in the picture. Click on the picture to hear an audio file of the word.
Anti-spam image