FAN 163 (First Amendment News) Sanford Ungar Heads New Free Speech Project at Georgetown University

At the heart of this project is how universities and American society at large can uphold the First Amendment while also protecting people from harassment and threats of violence. We will study the condition of free speech in America today, both in higher education and in civil society, in an attempt to create frameworks that promote public discussion about divisive issues in a civil manner. — Sanford J. Ungar

Some know him as the president emeritus of Goucher College. Others know him as a vetran journalist with UPI, or as a former Washington editor of The Atlantic, or as a past director of the Voice of America.  Still others know him as the former dean of the School of Communication at American University. And yet others know him as the author of The Papers & The Papers: An Account of the Legal and Political Battle over the Pentagon Papers (1973). Now Sandy Ungar has a new job title: director of The Free Speech Project (Georgetown University), with funding from the Knight Foundation.

Sanford Ungar (credit: Lumina Foundation)

Here is the focus of The Project: “Pitched battles in the streets of Berkeley, California, as rival factions fight over who should be allowed to speak at one of America’s great public universities.  A faculty member seriously injured on the idyllic campus of Middlebury College in Vermont as violence erupts at a talk by a controversial visitor that she attempted to moderate.  Bedlam on the floor of the Texas House of Representatives with pistol-packing legislators threatening to kill each other.  A Princeton professor receives death threats and goes into hiding after cellphone videos of a commencement speech she gave in New England, in which she criticized President Trump, go viral. A massive replica of the Ten Commandments erected near the Arkansas State Capitol, but bulldozed into smithereens hours later by an angry citizen. A neighborhood pizza parlor in the nation’s capital hurled into the spotlight after a “fake news” conspiracy report inspires a North Carolina man to open fire in the restaurant. One of America’s great newspapers, the Los Angeles Times, reduced to recruiting subscribers by promising ‘We publish what’s REAL.'”

“What is happening to Free Speech in America?  The Free Speech Project at Georgetown University, launched with the support of the John S. and James L. Knight Foundation, aspires to find out and to analyze the condition of First Amendment values.”

Here is how The Project is described: “The project’s Free Speech Tracker, perhaps the first of its kind, documents incidents across the country over the past two years and going forward, as well as monitoring activity in state legislatures seeking to curb or calm public protest.”

“‘Our theory,’ says Ungar, a distinguished scholar-in-residence at Georgetown since 2014, ‘is that these incidents and various legislative initiatives are all related.'”

“‘When you have stark and deadly confrontations in Charlottesville and brawls and death threats on the floor of the Texas legislature, you cannot expect college and university campuses to be islands of civility and peaceful debate,’ he adds. ‘We have to understand and deal with the fact that some young people may try to shut down speech they find offensive because they are worried that they won’t have their own opportunity to speak up and be heard.'”

“‘Our nation was founded on the principles of free debate and dissent as enshrined in the First Amendment,’ said Jennifer Preston, Knight Foundation vice president for journalism. ‘At various times in history these rights have been challenged and are now being tested in an America where trust in institutions, in news and in each other grows more tenuous. To preserve the First Amendment, we must examine and better understand the forces that might jeopardize its future.’

“Ungar says the independent and nonpartisan Free Speech Project will address such concerns by looking more deeply into volatile incidents and emerging legislation around the country.”

Website, video & archives 

“The website eventually will include videos of one-on-one interviews by Ungar with key thinkers in the free speech debate, and currently contains an archive of commentary and analysis from newspapers and other sources concerning freedom of speech and other First Amendment rights.”

“The archive covers five areas – legal jurisprudence, campus incidents, legislative developments, freedom of the press and government secrecy, and civil society.”

“‘Free Speech is debated and analyzed at a dizzying pace by leading thinkers and journalists around the country and throughout the world,’ Ungar says. ‘We can’t compile every article related to free speech, but we do hope to offer commentary across the political spectrum to show the wide-ranging perspectives and viewpoints on this issue.'”

Project to host programs

“Operating out of Georgetown but independent of the university, the project will also sponsor public programs – on campus in its first year and later in other venues – where various constituencies can contribute ideas about how to reestablish national respect for fundamental First Amendment values while also promoting civility and inclusiveness.”

“‘We need to focus on how better to preserve and protect free speech, but also get buy-in from all the people and groups that believe in free expression and are in a position to promote it,’ Ungar explains. ‘This is fundamental to the survival of American democracy, especially in these turbulent times.'”

Sanford J. Ungar, Bannon called the media the ‘opposition.’ He’s right, and it’s a good thing, Washington Post, Feb. 7, 2017

Just In: ** David Shortell, Sessions to wade into divisive campus free speech debate, CNN, Sept. 26, 2017 **

Coming: Major Conference on Masses Publishing Co. v. Patten

Title of Event: A Decision for the Ages: A Symposium Marking the Centenary of Masses Publishing Co. v. Patten

Co-hosted by:

  • New York University School of Law
  • Sandra Day O’Connor College of Law, Arizona State University.

Date, Time & Location: The symposium will be held at New York University School of Law on Friday, October 20, from 9:00 a.m. to 5:00 p.m. in Greenberg Lounge.  A reception will follow.


Historical and Cultural Background

  • Amy Adler, Emily Kempin Professor of Law, New York University School of Law
  • Geoffrey Stone, Edward H. Levi Distinguished Service Professor of Law, University of Chicago Law School
  • David Rabban, Dahr Jamail, Randall Hage Jamail and Robert Lee Jamail Regents Chair and University Distinguished Teaching Professor, University of Texas School of Law

The Masses Case: Dramatis Personae and Decision

  • Edward A. Purcell, Jr., Joseph Solomon Distinguished Professor of Law, New York Law School
  • Eric Easton, Professor of Law, University of Baltimore School of Law
  • Vincent Blasi, Corliss Lamont Professor of Civil Liberties, Columbia Law School

 Aftermath of the Masses Decision

  • Thomas Healy, Professor of Law, Seton Hall Law School
  • Mark Graber, University System of Maryland Regents Professor, University of Maryland Francis King Carey School of Law
  • Paul Bender, Professor of Law, Sandra Day O’Connor College of Law, Arizona State University (via videoconference)

The Influence of Masses on Modern First Amendment Doctrine

  • Burt Neuborne, Norman Dorsen Professor of Civil Liberties, New York University School of Law
  • James Weinstein, Dan Cracchiolo Chair in Constitutional Law, Sandra Day O’Connor College of Law, Arizona State University
  • Martha Field, Langdell Professor of Law, Harvard Law School

Replay: Podcast — Judge Richard Posner on the First Amendment

  • On the retirment of Judge Richard Posner, Nico Perrino over at FIRE’s So to Speak replayed a First Amendment Salon interview Professor Geoffrey Stone did with Judge Posner back in May of 2016.

→ See also: Nico Perrino, The British free speech invasion, So to Speak, Sept. 21, 2017

Video: Cato Constitution Day Panel: “First Amendment Challenges”

  • Moderator: Ilya Shapiro, Editor-in-Chief, Cato Supreme Court Review
  • Clay Calvert, Director, Marion B. Brechner First Amendment Project, University of Florida
  • Paul M. Sherman, Senior Attorney, Institute for Justice
  • Robert Corn-Revere, Partner, Davis Wright Tremaine LLP

→ Video here


Loyola, L.A., Law School’s Practitioner Moot Program

If your appealing a case (say, a First Amendment one) and need to moot it, look no further than Loyola, L.A., Law School’s Practitioner Moot Program.

Description: Loyola Law School (Los Angeles) built upon its award-winning advocacy program by offering an appellate moot court opportunity specifically for practitioners. Attorneys with pending oral argument dates in federal or state appellate courts can have their cases thoroughly mooted by faculty experts and experienced litigators in the area. The moots represent a significant resource for practitioners, a unique pedagogical opportunity for students, and another meaningful way for faculty to contribute to the development of the law.

Loyola has hosted moots for cases later argued in the U.S. Supreme Court, the Ninth Circuit, the California Supreme Court, and the California Courts of Appeal, among others, involving a wide range of issues. Feedback from practitioners who have availed themselves of the opportunity to moot their cases has been extraordinarily positive.

Any interested attorney may request a Loyola practitioner moot (just email Prof. Aimee Dudovitz or Prof. Aaron Caplan with the request). If the case is accepted, a coordinator from LLS will recruit Loyola faculty members (and, where appropriate, subject-matter experts from the community) to appear on an appellate moot panel. With the practitioner’s permission, students will collect the briefs, provide bench memoranda, and observe the oral argument. Argument sessions can be scheduled to suit the practitioners’ preferences. In most circumstances, it will also be possible to offer a recording of the argument sessions, if the practitioners wish.

Loyola moots are offered free of charge. To prevent any conflict or appearance of conflict of interest, only one side of a case may use the program. All work related to the moot session (including the argument session itself) will be held strictly confidential.

Forthcoming Books

Abstract: This project examines the legal discourse around political falsehood in the wake of the 2012 U.S. Supreme Court decision in U.S. v. Alvarez through communication law, political philosophy, and communication theory perspectives. As U.S. v. Alvarez confirmed First Amendment protection for lies, Robert N. Spicer addresses how the ramifications of that decision function by looking at the legal discourse surrounding First Amendment protection for political deception. Illustrating how commercial speech is regulated but political speech is not, Spicer evaluates the role of lying in politics and its consequences for democracy in a contemporary society conflicted between political expression, political figures, and the media.

Banned Books Week: Explore banned and challenged books

This excerpt from Jackie Farmer over at FIRE:

“In honor of Banned Books Week, FIRE’s First Amendment Library has launched a new resource dedicated to highlighting books that have been banned or challenged in the United States throughout history. A book is challenged when people call for it to be banned or removed from the public’s access — whether it be from an elementary school library, public library, or a high school suggested summer reading list. You may be shocked to find some of your favorite books on this list!”

“This list of books is by no means exhaustive and will expand in honor of Banned Books Week every year. Learn more about the challenges each book has faced by scrolling over its cover to reveal the reasons people called for censorship and additional facts about select censorship attempts. Many of the descriptions link to resources provided by the American Library Association, which takes on the important task of monitoring challenges to the public’s access to literature.”

“Some facts you’ll find include:

“We hope our readers leave this resource feeling inspired to pick up a book they normally would not consider — if only because we have the freedom to do so.”

Forthcoming Scholarly Articles 

Prof. Dan T. Coenen

Abstract: Because the Free Speech Clause limits government power to enact penal statutes, it has a close relationship to American criminal law. This Article explores that relationship at a time when a fast-growing “decriminalization movement” has taken hold across the nation. At the heart of the Article is the idea that free speech law has developed in ways that have positioned the Supreme Court to use that law to impose significant new limits on the criminalization of speech. More particularly, this article claims that the Court has developed three distinct decision-making strategies for decriminalizing speech based on constitutional principles.

  1. The first involves judicial blocking—that is, declaring some speech controls altogether out of bounds, whether they utilize either criminal or civil sanctions.
  2. The second involves judicial channeling—that is, requiring that government regulation of some types of speech must take the form of civil law, and not criminal law, restraints.
  3. The third involves judicial narrowing—that is, interpreting criminal statutes to restrict their reach and thus frustrate potential government prosecutions in light of free expression values.

This Article identifies concrete ways in which the Court might deploy all three strategies to support the decriminalization of expressive conduct in the future, with regard to such topics as fighting words, hostile audience speech, infliction of emotional distress, mens rea rules, speech law “tortification,” content discrimination, individualized-warning requirements, hybrid-rights analysis, and more.

Abstract: Surprisingly few, if any, works on the First Amendment have explored the relation between free speech and certainty. The same holds true for decisional law. While this relationship is inherent in much free speech theory and doctrine, its treatment has nonetheless been rather opaque. In what follows, the author teases out – philosophically, textually, and operationally – the significance of that relationship and what it means for our First Amendment jurisprudence. In the process, he examines how the First Amendment operates to counter claims of certainty and likewise how it is employed to demand a degree of certainty from those who wish to cabin free speech rights.

Drawing its satirical title from words purportedly spoken by Galileo when he was persecuted by ecclesiastical inquisitors for defending the heliocentric theory of Copernicus, the Essay argues that many free speech theories (from Milton to Meiklejohn and beyond) have the net effect of constricting our First Amendment freedoms based on uncertain claims to normative benefits and equally uncertain claims of societal harm. In this general sense, many free speech theorists might be viewed as the descendants (albeit kinder ones) of Galileo’s ecclesiastical detractors insofar as they invoke their own certainty of morals (or normative theories) or alleged harms to override actual facts in order to censor speech. This problem is compounded when First Amendment lawyers must disingenuously pigeonhole their client’s speech into the doctrinal boxes compatible with normative theories. In the duplicitous course of things, bawdy comedy becomes political action, erotic sexual expression becomes self-realization, offensive speech becomes cultural criticism, and imagistic commercial expression becomes consumer information. Strange as it is, in such circumstances falsity is necessarily called into the service of placing a normative face on aberrant expression.

By way of a bold counter to all such theories, and duly mindful of the role of real harm in the working scheme of things, the author advances a view of the First Amendment premised less on certainty (and its conceptual cousin, normativity) than on risk – real and substantial risks, properly comprehended. Thus understood, the very idea of risk deserves to be an accepted and preferred part of the calculus of decision-making, be it judicial, legislative or executive. Hence, at the philosophical level, a risk-free First Amendment is a contradiction while at the operational level it is a formula for suppression. Undaunted by the specter of criticism of his own experimental views on the matter, the author invites the kind of First Amendment risk-taking once roundly championed by Justice Louis Brandeis – a brand of freedom though uncertain of its success is nevertheless hopeful of its attainment.

Prof. Jonathan Haidt

Notable Magazine Essay 

“Of all the ideas percolating on college campuses these days, the most dangerous one might be that speech is sometimes violence. We’re not talking about verbal threats of violence, which are used to coerce and intimidate, and which are illegal and not protected by the First Amendment. We’re talking about speech that is deemed by members of an identity group to be critical of the group, or speech that is otherwise upsetting to members of the group. This is the kind of speech that many students today refer to as a form of violence. If Milo Yiannopoulos speaks on the University of California, Berkeley, campus, is that an act of violence? . . . .”

New & Notable Blog Posts

“The Ninth Circuit’s opinion in American Beverage Association v. City and County of San Francisco, reversing the district judge, found that San Francisco’s ordinance requiring a warning about the health effects of sugary drinks likely violated the First Amendment and should be enjoined.”

“The ordinance required advertisements for sugar-sweetened beverages (SSB) to include a statement:

WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.

“The ordinance not only defined SSBs, but also required that the warning ‘occupy 20 percent of the advertisement and be set off with a rectangular border.'”

“The Ninth Circuit panel’s opinion, authored by Judge Ikuta, applied the well-known Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985) First Amendment standard for disclosures in the context of commercial speech, joining a previous Ninth Circuit panel regarding Berkeley’s cell-phone warnings as well as sister-circuits in applying Zauderer beyond the context of preventing consumer deception. . . .”

News, Editorials, Op-eds & Blog Posts 

Jim Christie, Gawker’s bankruptcy once again a venue for First Amendment fight, Reuters, Sept. 25, 2017

  1. Diallo Brooks, Protest Isn’t Unpatriotic — Attacking The First Amendment Rights of Black Athletes Is, Huffington Post, Sept. 25, 2017
  2. Scott Jaschik, Students and Free Speech: Was Study Valid?, Inside Higher Ed, Sept. 25, 2017
  3. Pearce Godwin, Colleges, the First Amendment isn’t protection from offensive speech, The Hill, Sept. 22, 2017

YouTube: Panel on Fake News

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: #164: October 4, 2017.

Last Scheduled FAN: # 162: Online First Amendment Encyclopedia Launched

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1 Response

  1. BraveHeartAnn says:

    Providing the freedom of speech for the students is essential these days. The students are the new generation that is driving the progress to where it is going. They should have a say about what they see their education like and what they would like to be added in the curriculums. It would be useful for the students to be involved in the discussion of important issues of the University. Perhaps, one day the students would like to see the Best Of Writers service’s specialists giving them advice in the meeting and this event would make it easier for learners to achieve their learning goals.