FAN 162 (First Amendment News) Online First Amendment Encyclopedia Launched

Given our increasingly polarized society, it’s important to remember what should unite us: respect for freedom of speech, press, religion, and the right to assemble and petition. — Ken Paulson (Sept. 14, 2017)

Dean Ken Paulson (credit: Bruce Guthrie)

It’s online now: The First Amendment Encyclopedia. Among other things, it is a impressive collection of more than 1,500 articles on First Amendment topics, court cases, and history. The online encyclopedia was culled and updated from the two-volume Encyclopedia of The First Amendment edited by John R. Vile, David L. Hudson, Jr. & David Schultz.

Two of the three original editors of the volumes — John Vile and David Hudson — spent the past several months reviewing and updating entries and adding new ones.

This online treasure trove of information was originally published by Congressional Quarterly in 2009 and listed for $355.00. The online encyclopedia (now free of charge) comprehensively examines the political, historical, and cultural significance and development of freedom of religion, freedom of speech, freedom of the press, the right to peaceably assemble, and the right to petition the government.

 The rights to the Encyclopedia were purchased by Dean Ken Paulson of Middle Tennessee State University.

John Seigenthaler (1927-2014)

“We’ve found the now out-of-print two-volume edition,” said Paulson, “to be an extraordinary resource, so we purchased it, digitized it and updated the content.  It’s a remarkable resource for those interested in First Amendment freedoms and it’s written in a style that makes it useful to both students and scholars.”

“The encyclopedia,” he added, “is part of an ongoing expansion of the Seigenthaler Chair of Excellence in First Amendment Studies at Middle Tennessee State Univeristy. The chair honors John Seigenthaler and his lifelong commitment to the First Amendment. Expanded programing and the revitalization of the website are among the steps we’re taking to address John’s lifelong goal of preserving and protecting the First Amendment through education and information.”

Deborah Fisher at press conference

“This is a living, breathing project that will continue to grow in a way that promotes awareness and understanding of the First Amendment and its role in American history,” said Deborah Fisher, director of the Seigenthaler Chair of Excellence.

 Video of press conference here

 Disclosure: Many years ago Ken Paulson hired me to work at the First Amendment Center.

→ Related Resource: FIRE’s First Amendment Online Library

On Compelled Artistic Expression: Judge Breyer circa 1988

Re: Masterpiece Cakeshop v. Colorado Civil Rights Commission

If you want to get a sense of First Amendment law and compelled artistic expression, a good case to consult is Redgrave v. Boston Symphony Orchestra, 855 F.2d 888 (1st Cir. en banc, 1988).

First Circuit Judge Stephen Breyer (C-SPAN)

The case involved actress Vanessa Redgrave who “brought suit against the Boston Symphony Orchestra (BSO) for cancelling a contract for Redgrave’s appearance as narrator in a performance of Stravinsky’s Oedipus Rex. The cancellation occurred in the wake of protests over Redgrave’s participation because of her support of the Palestine Liberation Organization. She sought recovery both for breach of contract and for violation of her civil rights under [a Massachusetts civil rights law.”

Writing for the Court sitting en banc Judge Frank Coffin declared:

  • “Protection for free expression in the arts should be particularly strong when asserted against a state effort to compel expression.”
  • Judge Coffin then added: “We see no reason why less protection should be provided where the artist refuses to perform; indeed, silence tradi- tionally has been more sacrosanct than affirmative expression.”
  • The court was “unable to find any case, involving the arts or otherwise, in which a state has been allowed to compel expression,” and observed that doing so would be “completely unprecedented.”
  • “All three groups indicated, in tones ranging from strong suggestion to outright certainty, a view that the BSO should not be held liable under the [state civil rights law] for exercising its free speech right not to perform.”

Judge Stephen Breyer was one of the judges who joined Judge Coffin’s opinion.

See Amicus brief of First Amendent Lawyers Association in Masterpiece Cakeshop v. Colorado Civil Rights Commission

ACLU Brief in Masterpiece Cakeshop Case Rejects Free Speech Claim

In its brief in opposition presented in Masterpiece Cakeshop v. Colorado Civil Rights Commissionthe National ACLU and its Colorado affiliate argued against the First Amendment free-speech claim raised in the case.  In a brief prepared by Leslie Cooper (Counsel of Record) and Ria Tabacco Mar, Joshua Block, James D. Esseks, Louise Melling, Steven R. Shapiro, Mark Silverstein, and Sara Neel (all of the ACLU), they argued:

Importance of FactsRespondents David Mullins and Charler Craig “expressed interest in buying a cake for ‘our wedding.’ . . . Phillips refused to serve them, explaining that the Company had a policy of refusing to sell baked goods for weddings of same-sex couples. . . . Phillips did not ask for, and Mullins and Craig did not offer, any details about the design of the cake. Phillips was unwilling to make any cake for the wedding because they were a same-sex couple, and therefore any further discussion would have been fruitless. . . . . As the Administrative Law Judge in the Colorado administrative proceedings found, ‘[f]or all Phillips knew at the time, [Mullins and Craig] might have wanted a nondescript cake that would have been suitable for consumption at any wedding.'”

Leslie Cooper

Legal Arguments: “Colorado’s anti-discrimination law is a content- and viewpoint-neutral regulation of business conduct, not a law that targets speech. It applies to all businesses that offer goods or services to the general public, and merely requires that they not discriminate against their customers on the basis of race, sex, sexual orientation and several other protected characteristics. The Act does not require the Company to affirm its support for the anti- discrimination goals of the Act, for any of the groups protected against discrimination by the Act, or for the marriages of same-sex couples. The court below correctly rejected the Company’s claim that the right to free speech entitles it to discriminate in violation of the Act. The Company provides no basis for this Court to review this straightforward application of settled law.”

“This Court’s compelled speech decisions have consistently differentiated between laws that target speech or alter the message of private expressive associations, and laws that regulate commercial business practices without regard to content or viewpoint. Compare Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000); Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557 (1995), with Cohen v. Cowles Media, 501 U.S. 663 (1991); Arcara v. Cloud Books, 478 U.S. 697 (1986); Hishon v. King & Spalding, 467 U.S. 69 (1984); Pittsburgh Press Co. v. Pittsburgh Comm’n on Hum. Relations, 413 U.S. 376 (1973). This case presents the latter. Colorado’s anti-discrimination law does not compel speech, it merely requires public accommodations in the state to provide equal treatment to protected groups. . . .”

“The Company’s argument to the contrary ignores this Court’s decision in Rumsfeld v. Forum for Academic and Institutional. Rights, Inc., 547 U.S. 47 (2006). There, as here, an entity sought to avoid a non-discrimination mandate by asserting that complying with the law would compel it to express a message of which it disapproved. Rumsfeld involved a challenge to the Solomon Amendment, which required law schools to provide equal access to military recruiters and non-military recruiters alike. 547 U.S. at 54. At the time, the federal government’s ‘Don’t Ask, Don’t Tell’ policy forbade lesbians and gay men from serving openly in the military. Id. at 52 & n.1. A coalition of law schools argued that the Solomon Amendment violated their First Amendment rights by requiring them to endorse the military recruiters’ message that gay people should not serve in the armed forces by allowing the recruiters access to campus. Id. at 52. This Court rejected the law schools’ free speech claim, stressing that the Solomon Amendment did ‘not dictate the content of the [law schools’] speech at all.’ Id. at 62.”

“The Solomon Amendment, the Court found, “regulates conduct, not speech. It affects what law schools must do—afford equal access to military recruiters—not what they may or may not say.” Id. at 60 (emphasis in original). “Congress, for example, can prohibit employers from discriminating on the basis of race. The fact that this will require an employer to take down a sign reading ‘White Applicants Only’ hardly means that the law should be analyzed as one regulating the employer’s speech rather than conduct.” Id. at 62. The Court acknowledged that the schools’ assistance to recruiters “often includes elements of speech. For example, schools may send e-mails or post notices on bulletin boards on an employer’s behalf . . . .” Id. at 61. But the Court found that this was “a far cry” from being required to pledge allegiance to the flag or bear a state motto on one’s license plate, citing West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943), and Wooley v. Maynard, 430 U.S. 705, 717 (1977). Id. at 62. The Rumsfeld Court explained that “[t]he Solomon Amendment, unlike the laws at issue in those cases, does not dictate the content of the speech at all, which is only ‘compelled’ if, and to the extent, the school provides such speech for other recruiters.” Id. The same is true here. The Company need not sell wedding cakes to anyone, but it may not discriminate based on protected characteristics by selling wedding cakes to opposite-sex couples while refusing to sell them to same-sex couples. . . .”

EFF to Court: The First Amendment Protects the Right to Record First Responders

This from the Electronic Frontier Foundation’s press release: “The First Amendment protects the right of members of the public to record first responders addressing medical emergencies, EFF argued in an amicus brief filed in the federal trial court for the Northern District of Texas. The case, Adelman v. DART, concerns the arrest of a Dallas freelance press photographer for criminal trespass after he took photos of a man receiving emergency treatment in a public area.”

“EFF’s amicus brief argues that people frequently use electronic devices to record and share photos and videos. This often includes newsworthy recordings of on-duty police officers and emergency medical services (EMS) personnel interacting with members of the public. These recordings have informed the public’s understanding of emergencies and first responder misconduct.”

“EFF’s brief was joined by a broad coalition of media organizations: the Freedom of the Press Foundation, the National Press Photographers Association, the PEN American Center, the Radio and Television Digital News Association, Reporters Without Borders, the Society of Professional Journalists, the Texas Association of Broadcasters, and the Texas Press Association.”

“Our local counsel are Thomas Leatherbury and Marc Fuller of Vinson & Elkins L.L.P.”

“EFF’s new brief builds on our amicus brief filed last year before the Third Circuit Court of Appeals in Fields v. Philadelphia. There, we successfully argued that the First Amendment protects the right to use electronic devices to record on-duty police officers.”

“Adelman, a freelance journalist, has provided photographs to media outlets for nearly 30 years. He heard a call for paramedics to respond to a K2 overdose victim at a Dallas Area Rapid Transit (“DART”) station. When he arrived, he believed the incident might be of public interest and began photographing the scene. A DART police officer demanded that Adelman stop taking photos. Despite Adelman’s assertion that he was well within his constitutional rights, the DART officer, with approval from her supervisor, arrested Adelman for criminal trespass.”

“Adelman sued the officer and DART. EFF’s amicus brief supports his motion for summary judgment.”

U.S.C.’s Student Non-Discrimination & Non-Harassment Policy Challenged in 4th Circuit

The case is Abbott v. Pastdies (Dist. Ct., S.C. July 11, 2017). In their brief the lawyers for Plaintiff-Appellants set out the case in these terms: “The University of South Carolina (‘USC’) maintains policies that function as a repressive speech code. The University’s overly broad prohibitions and restrictions on harassment and discrimination unlawfully define speech to be restricted, and USC has enforced this unlawful restriction by subjecting speakers to official inquiry that privileges censorship over free expression. In this case, the Appellees, officials at the University, sent a ‘Notice of Charge’ to the Appellants, Ross Abbott, the Young Americans for Liberty at the University of South Carolina (‘YAL’), and the College Libertarians at the University of South Carolina (‘College Libertarians’), not because they hurled epithets at other students or engaged in harassment, but because they held a school-approved Free Speech Event during which a few students were offended by materials of which USC officials had previously been made aware. Appellants tried to open a dialog with the campus community about the importance of free expression, but it resulted in a very different lesson – that you can get in trouble at USC for simply talking about free speech. The District Court erroneously concluded that neither Abbott nor the student groups have standing to challenge the policies under which they were investigated based on the non sequitur that the policies do not apply to them.” (emphasis in original)

Summary of Legal Arguments:

II.   USC’s Anti-Discrimination Policy (STAF 6.24) Violates the
First Amendment Because it Imposes Broadly-Worded and
Vague Restrictions on Protected Speech

A.   The District Court Erred in Holding Appellants Lack
Standing to Challenge STAF 6.24

  1. The Court Misconstrued Applicable Law
  2. Standing and Future Enforcement

B.  The First Amendment Requires Anti-Discrimination
Measures to Be Narrowly-Framed, Precisely Defined,
and Limited to Pervasive and Objectively-Offensive Harassment

C.  STAF 6.24 is Overly Broad, Vague, and Not Limited to Instances of Actual Discrimination

III.  USC’S Investigation of the Free Speech Event and
Preemptive Imposition of a Gag Order Chilled Appellants’
Speech and Violated the First Amendment

A.  Investigations Must Use the Least Restrictive Means

of Regulating Speech, Which Includes Screening Out
Frivolous Complaints

B.  USC’s Procedures Favor Complainants and Fail to Apply Non-Restrictive Means

C.  USC’s Investigation Directly Censored Speech, Chilled
Student Expression Generally, and Violated the First Amendment

Counsel for Plaintiffs-Appellants: Robert Corn-Revere, Ronald London, and Lisa B. Zycherman

Survey: Views among college students regarding the First Amendment

This from a new survey by John Villasenor for the Brookings Institution:

Does the First Amendment protect “hate speech”?

Political Affiliation Type of College Gender
All Dem Rep Ind Public Private Female Male
Yes 39 39 44 40 38 43 31 51
No 44 41 39 44 44 44 49 38
Don’t know 16 15 17 17 17 13 21 11

John Villasenor

(The values in the table identify the responses by percent, weighted for gender. Percentages are rounded to two digits, so in some cases the total will not be exactly 100. For more details regarding the survey see the explanation at the end of this article.)

One of the noteworthy observations from this data is that across all three political affiliations listed in the table, fewer than half of the respondents indicated a belief that hate speech is constitutionally protected. The very significant gender variation in the responses is also noteworthy.

Controversial speakers 

A public university invites a very controversial speaker to an on-campus event. The speaker is known for making offensive and hurtful statements.

The survey included a set of questions considering student views regarding actions aimed at disrupting the speech:

A student group opposed to the speaker disrupts the speech by loudly and repeatedly shouting so that the audience cannot hear the speaker. Do you agree or disagree that the student group’s actions are acceptable?

Political Affiliation Type of College Gender
All Dem Rep Ind Public Private Female Male
Agree 51 62 39 45 51 51 47 57
Disagree 49 38 61 55 49 49 53 43

The responses to the above question show a very distinct variation across political affiliation, with 62 percent of Democrats but “only” 39 percent of Republicans agreeing that it was acceptable to shout down the speaker. More generally, I find the numbers in the above table to be highly concerning, because they show that a very significant fraction of students, across all categories, believe it is acceptable to silence (by shouting) a speaker they find offensive. And, it gets worse:

A student group opposed to the speaker uses violence to prevent the speaker from speaking. Do you agree or disagree that the student group’s actions are acceptable?

Political Affiliation Type of College Gender
All Dem Rep Ind Public Private Female Male
Agree 19 20 22 16 18 21 10 30
Disagree 81 80 78 84 82 79 90 70

These results are notable for several reasons. First, the fraction of students who view the use of violence as acceptable is extremely high. While percentages in the high teens and 20s are “low” relative to what they could be, it’s important to remember that this question is asking about the acceptability of committing violence in order to silence speech. Any number significantly above zero is concerning. The gender difference in the responses is also notable.

Does the First Amendment require presentation of counterpoints?

Consider an event, hosted at a public U.S. university by an on-campus organization, featuring a speaker known for making statements that many students consider to be offensive and hurtful. A student group opposed to the speaker issues a statement saying that, under the First Amendment, the on-campus organization hosting the event is legally required to ensure that the event includes not only the offensive speaker but also a speaker who presents an opposing view. What is your view on the student group’s statement?

Political Affiliation Type of College Gender
All Dem Rep Ind Public Private Female Male
Agree 62 65 62 58 63 60 60 66
Disagree 38 35 38 42 37 40 40 34

Across all of the categories in the table, a majority of students expressed agreement with the assertion that in the scenario presented, compliance with the First Amendment requires offering a counterpoint. This shows an important misunderstanding, since the First Amendment of course involves no such requirement. Many of the respondents appear to be confusing good event design—which under some circumstances can indeed benefit from the presentation of counterpoints—with the completely different issue of what compliance with the First Amendment requires.

There is more, much more, so do check out the survey.

New & Forthcoming Books

Jeremy Geltzer, Film Censorship in America: A State-by-State History (McFarland, November 10, 2017)

Abstract: Since the first films played in nickelodeons, controversial movies have been cut or banned across the United States. Far from Hollywood, regional productions such as Oscar Micheaux’s provocative race films and Nell Shipman’s wildlife adventures were censored by men like Major M.L.C. Funkhouser, the terror of Chicago’s cinemas, and Myrtelle Snell, the Alabama administrator who made the slogan Banned in Birmingham famous. Censorship continues today, with Utah’s case against Deadpool (2016) pending in federal court and Robert Rodriguez’s Machete Kills (2013) versus the Texas Film Commission. This authoritative state-by-state account covers the history of film censorship and the battle for free speech in America.

  1. Zeke Jarvis, Silenced in the Library: Banned Books in America (Greenwood, August 31, 2017)
  2. Matthew Fellion & Katherine Inglis, Censored: A Literary History of Subversion & Control Hardcover (The British Library Publishing Division, September 28, 2017)
  3. P.G. Ingram, Censorship and Free Speech: Some Philosophical Bearings (Routledge, Oct. 7, 2017)
  4. Patricia Hall, editor, The Oxford Handbook of Music Censorship (Oxford University Press, Oct. 25, 2017)
  5. Elizabeth C. Childs, Suspended License: Censorship and the Visual Arts (University of Washington Press, January 11, 2018)
  6. Mike Ananny, Networked Press Freedom: Creating Infrastructures for a Public Right to Hear (MIT Press, April 2018)

Giorgio Caravale, Censorship and Heresy in Revolutionary England and Counter-Reformation Rome: Story of a Dangerous Book (Palgrave Macmillan, October 19, 2017)

Abstract: This book explores the secrets of the extraordinary editorial success of Jacobus Acontius’ Satan’s Stratagems, an important book that intrigued readers and outraged religious authorities across Europe. Despite condemnation by the Catholic Church, the work, first published in Basel in 1565, was a resounding success. For the next century it was republished dozens of times in different historical context, from France to Holland to England.

The work sowed the idea that religious persecution and coercion are stratagems made up by the devil to destroy the kingdom of God. Acontius’ work prepared the ground for religious toleration amid seemingly unending religious conflicts. In Revolutionary England it was propagated by latitudinarians and independents, but also harshly censored by Presbyterians as a dangerous Socinian book.

Giorgio Caravale casts new light on the reasons why both Catholics and Protestants welcomed this work as one of the most threatening attacks to their religious power. This book is an invaluable resource for anyone interested in the history of toleration, in the Reformation and Counter-Reformation across Europe.

Hasen on “Cheap Speech” 

Forthcoming in the First Amendment Law Review (2018) is the following article by U.C. Irvine Law Professor Richard L. Hasen, “Cheap Speech and What It Has Done (to American Democracy).”

Abstract:  In a remarkably prescient article in a 1995 Yale Law Journal symposium on “Emerging Media Technology and the First Amendment,” Professor Eugene Volokh looked ahead to the coming Internet era and correctly predicted many changes. In Cheap Speech and What It Will Do, Volokh could foresee the rise of streaming music and video services such as Spotify and Netflix, the emergence of handheld tablets for reading books, the demise of classified advertising in the newspaper business, and more generally how cheap speech would usher in radical new opportunities for readers, viewers, and listeners to custom design what they read, see, and hear, while concomitantly undermining the power of intermediaries including publishers and book store owners.

Prof. Richard Hasen (credit: Zócalo Public Square)

To Volokh, these changes were exciting and democratizing. The overall picture he painted was a positive one, especially as First Amendment doctrine no longer had to deal with the scarcity of broadcast media to craft special First Amendment rules curtailing some aspects of free speech. As this article for a First Amendment Law Review symposium on “Fake News” argues, twenty-two years later, the picture of what cheap speech has already done and is likely to still do — in particular to American democracy — is considerably darker than Volokh’s vision. No doubt cheap speech has increased convenience, dramatically lowered the costs of obtaining information, and spurred the creation and consumption of content from radically diverse sources. But the economics of cheap speech also have undermined mediating and stabilizing institutions of American democracy including newspapers and political parties, with negative social and political consequences. In place of media scarcity, we now have a media firehose which has diluted trusted sources of information and led to the rise of “fake news” — falsehoods and propaganda spread by domestic and foreign sources for their own political and pecuniary purposes. The demise of local newspapers sets the stage for an increase in corruption among state and local officials. Rather than democratizing our politics, cheap speech appears to be hastening the irrelevancy of political parties by facilitating the ability of demagogues to secure support from voters by appealing directly to them, sometimes with incendiary appeals. Social media also can both increase intolerance and overcome collective action problems, both allowing for peaceful protest but also supercharging polarization and raising the dangers of violence in the United States.

The Supreme Court’s libertarian First Amendment doctrine did not cause the democracy problems associated with the rise of cheap speech, but it may stand in the way of needed reforms. For example, in the campaign finance arena the Court’s doctrine and accompanying libertarian ethos may stymie efforts to limit foreign money flowing into elections, including money being spent to propagate “fake news.” The Court’s reluctance to allow the government to regulate false speech in the political arena could limit laws aimed at requiring social media sites to curb false political advertising. Loose, optimistic dicta in the Justice Kennedy’s majority opinion for the Court in 2017’s Packingham v. North Carolina case also may have unintended consequences with its infinitely capacious language about First Amendment protection for social media. In the era of cheap speech, some shifts in First Amendment doctrine seem desirable to assist citizens in ascertaining truth and bolstering stabilizing institutions. Nonetheless, it is important not to fundamentally rework First Amendment doctrine, which also serves as a bulwark against government censorship and oppression potentially undertaken in an ostensible effort to battle “fake news.”

Non-governmental actors, rather than the courts and government, are in the best position to ameliorate some of the darker effects of cheap speech. Social media hosts and search sites such as Facebook, Google, and Twitter can assist readers, viewers, and listeners in ferreting out the truth if there is the commercial will to do so. Consumer pressure may be necessary to get there, but it is not clear if consumers or shareholders will have the power to move dominant market players who do not want to be moved. Fact checks can also help. Subsidies for (especially local) investigative reporting can also help the problems of corruption and bolster the credibility of newspapers and other supports for civil society. But nothing is certain to work in these precarious times, and the great freedom of information which Volokh rightly foresaw in the era of cheap speech is coming with a steep price for our democracy.

Forthcoming Scholarly Article 

New from the Volokh Conspiracy 

2017-2018 Term: First Amendment Free Expression Opinions

Cert. Granted

  1. Masterpiece Cakeshop v. Colorado Civil Rights Commission

Pending: Cert. Petitions 

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

Free-Speech Related Cases

Next Scheduled FAN: #163: September 27, 2017.

Last Scheduled FAN: # 161: Nadine Strossen’s Next Book — “Hate: Why We Should Resist it With Free Speech, Not Censorship”

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