FAN 176 (First Amendment News) Arizona State University to Host Major Conference on “Free Speech and Intellectual Diversity”

As you can see from the two news items mentioned below, the Sandra Day O’Connor College of Law at Arizona State University continues to make its presence known (and in big ways) in the First Amendment community.  Recall that last October the Law School co-hosted, with New York University Law School, an impressive conference to commemorate the 100th anniversary of Judge Learned Hand’s opinion in  Masses Publishing Co. v. Patten (1917).

And the folks at the SDOC College of Law are doing it again as they partner with the School of Civic and Economic Thought and Leadership and the Walter Cronkite School of Journalism and Mass Communication to host a major conference on free speech:

Free & Open to the Public

Register at:

Questions: email or call (480) 965-0155


Date: February 23, 2018

Location: ASU Tempe Campus, New Student Pavilion

Robert Post (Yale Daily News)

Opening Keynote Lecture

  • Robert Post
    Former Dean, Yale Law School
    “The Classic First Amendment Tradition Under Stress: Freedom of Speech and the University”

Panel: “Why Do Students Need Free Speech on Campus?”

Moderator: Nicole Taylor, Deputy Vice President, Dean of Students, ASU Tempe Campus


  • Zachary Wood, Williams College
  • Matthew Foldi, University of Chicago
  • and Students for Free Expression Gabriel Sandler, Arizona State University
    Téa Francesca Price, Arizona State University

Professor Harvey Mansfield (Harvard Gazette)

Panel: “Free Inquiry and the Philosophy of Higher Education”

Moderator: Daniel Cullen, Professor, Rhodes College


  • Jim Stoner, Louisiana State University
  • Harvey Mansfield, Harvard University
  • Norma Thompson, Yale University

Professor Richard Garnett

Panel: “Intellectual Diversity and Higher Education: A Crisis?”

Moderator: Cristine Legare, Associate Professor, University of Texas, Austin


  • Joshua Dunn, University of Colorado, Colorado Springs
  • Neil Gross, Colby College
  • Richard Garnett, University of Notre Dame, Law School

Plenary Address

  • Jeremy Waldron, University Professor, New York University Heckling in a University Setting      “Heckling in a University Setting”


Date: February 24, 2018

Location: ASU Downtown Campus, Sandra Day O’Connor College of Law, BCLS 544

Heather McDonald

Panel: Negotiating Controversial Speakers on Campus

Moderator: Stefanie Lindquist, Deputy Provost, Academic Affairs and Professor, ASU


  • Heather MacDonald, Manhattan Institute
  • Bret Weinstein, Evergreen College
    Ulrich Baer, Professor, New York University

Professor James Weinstein

Panel: Freedom of Speech and Thought on Campus: What Role for the First Amendment?

Moderator: James Weinstein, Dan Cracchiolo Chair in Constitutional Law, Sandra Day O’Connor College of Law, ASU


  • Azhar Majeed, Vice President, FIRE
  • Donald Downs, University of Wisconsin, Madison
  • Laura Beth Nielsen, Northwestern University, and American Bar Foundation

Professor Larry Alexander

Panel: State Legislative Remedies to Free Speech Challenges on Campus: Are They Consistent with Academic Freedom?

Moderator: Mike Liburdi, General Counsel, AZ Governor Doug Ducey, and adjunct Professor, Sandra Day O’Connor College of Law

  • Eugene Volokh, UCLA School of Law
  • James Manley, Goldwater Institute
  • Larry Alexander, University of San Diego School of Law

First Amendment Fellow Sought for 1-A ClinicThe Sandra Day O’Connor College of Law at Arizona State University seeks applicants for a full-time fellow position. The inaugural First Amendment Fellow will help design and run a First Amendment clinic focused on speech, press, and assembly rights.

Details about the clinic can be found here:

The advertisement for the First Amendment Fellow position can be found here:

→ Those seeking additional information should contact Adam Chodorow:

Headline: “First Amendment Lawsuit Results In Louisiana Police Department Training Officers To Respect Citizens With Cameras”

This from Tim Cushing writing for techdirt (Jan. 30, 2018): “Another police department has ‘learned’ it has to respect the First Amendment rights of citizens. A settlement obtained by the ACLU as the result of a civil rights lawsuit will result in additional training that surely should be redundant at this point in time.”

Training officers on First Amendment rights, including the public’s right to photograph officers while performing their public duties, has been implemented at the Lafayette Police Department. The training was included in a settlement announced by the American Civil Liberties Union of Louisiana today.

“The lawsuit was brought by Chelline Carter, who had her camera warrantlessly seized and searched by Officer Shannon Brasseaux of the Lafayette PD. Carter had been called to a local drugstore because her son had just been arrested. After helping the officer find her son’s ID card, Carter walked over to the vehicle her son had been placed in and took a photo of him.”

“Officer Brasseaux then took Carter’s phone from her, claiming she had broken the law by taking pictures of ‘evidence.’ He then swiped her phone to open it, searched for the photo she had taken of her son, and deleted it. . . .”

Department of Justice files statement of interest in UC Berkeley First Amendment case

, writing for FIRE, has written that “the U.S. Department of Justice filed a statement of interest in a lawsuit brought by the Berkeley College Republicans and Young America’s Foundation alleging that Berkeley’s High-Profile Speakers and Major Events policies violate their First and Fourteenth Amendment rights.”

“In its statement of interest, the DOJ argues that the “Plaintiffs’ allegations, if proven, demonstrate that the University’s High-Profile Speaker Policy and Major Events Policy are unconstitutional because they grant administrators unchecked discretion to restrict protected speech.” Associate Attorney General Rachel Brand said in a press release announcing the filing: ‘This Department of Justice will not stand by idly while public universities violate students’ constitutional rights.'” (emphasis added)

“The DOJ has been active in campus speech litigation in recent months. Last fall, the DOJ filed a statement of interest in Shaw v. Burke, a lawsuit filed as part of FIRE’s Million Voices campaign.”

Wisconsin high Court to hear appeal from fired Marquette University professor

Professor John McAdams

This from  over at FIRE: “Last week, the Wisconsin Supreme Court agreed to hear an appeal by Professor John McAdams in his lawsuit against Marquette University. McAdams was fired by Marquette for criticizing a graduate instructor on his personal blog. McAdams’ lawyers petitioned Wisconsin’s highest court to hear the case, bypassing the intermediate appellate court. FIRE filed an amicus curiae brief in support of the petition.”

“Following the dismissal of McAdams’ case by the Milwaukee County Circuit Court, FIRE hopes that the Wisconsin Supreme Court’s willingness to hear the case indicates its appreciation of the case’s importance to free expression and academic freedom on Wisconsin’s college and university campuses. We will continue to keep readers updated on the progress of McAdams’ appeal.”

→‎ Related: Editorial, Marquette and the First Amendment, Wall St. J., Jan. 28, 2018

R.I. ACLU contests  town’s social media policy for city employees

This from a recent press release: “The ACLU of Rhode Island has called upon the East Greenwich Town Council to revisit an ‘Employee Social Media Policy’ it adopted last week. In a letter to the Council, the ACLU raises concerns about the policy’s ‘breadth and its impact on Town employees’ First Amendment rights.’ Excerpts from the ACLU’s letter appear below:

  • “A major problem with this policy . . . is that it inappropriately conflates an employee’s speech as an employee with their speech as a private citizen. . . But the Town simply has no authority to regulate an employee’s private speech in the same manner as his or her speech in an official capacity. Government employees retain the general right to speak out as private citizens on matters of public concern.
  • “The policy’s restrictions are also extremely vague and open-ended. Among the types of speech that employees, even in their personal capacity, cannot post are comments that ‘ridicule,’ ‘disparage,’ or ‘otherwise bias [sic] against … any protected class of individuals.’ A person privately retweeting, or responding to, some of President Trump’s less tolerant comments over this past year could very well find themselves in violation of this policy.
  • “The policy further bans employees’ private speech ‘involving themselves or other Town personnel reflecting behavior that would reasonably be considered reckless.’ In light of last November’s rather scathing opinion issued by Superior Court Judge Susan McGuirl, finding that the Town engaged in knowing and willful violations of the law, would it violate this policy for an employee to make reference to that opinion since it reflects ‘reckless’ behavior on the part of Town officials?
  • “In light of all that has gone on in the Town during the past year, we would respectfully submit that more speech, rather than less, should be encouraged among Town employees. A policy that so broadly serves only to chill employees from speaking out about improprieties, misconduct or other matters affecting the residents of East Greenwich is a disservice not only to the Town and its employees, but to its residents as well. The additional broad censorship of private speech unrelated to Town matters also sets a poor example.”

“The letter concluded by urging the Council to reconsider the policy in light of these issues. For the past year, the Town has been embroiled in various controversies and litigation over employment matters and open meetings violations by the Town Council. It was only after its passage last week that some residents contacted the ACLU about the new policy, prompting the letter.”

Forthcoming Books

→‎ Keith Whittington, Speak Freely: Why Universities Must Defend Free Speech (New Forum Books, Princeton U. Press, April 17, 2018)

Abstract:  Free speech is under attack at colleges and universities today, with critics on and off campus challenging the value of open inquiry and freewheeling intellectual debate. Too often speakers are shouted down, professors are threatened, and classes are disrupted. In Speak Freely, Keith Whittington argues that universities must protect and encourage free speech because vigorous free speech is the lifeblood of the university. Without free speech, a university cannot fulfill its most basic, fundamental, and essential purposes, including fostering freedom of thought, ideological diversity, and tolerance.

Examining such hot-button issues as trigger warnings, safe spaces, hate speech, disruptive protests, speaker dis-invitations, the use of social media by faculty, and academic politics, Speak Freely describes the dangers of empowering campus censors to limit speech and enforce orthodoxy. It explains why free speech and civil discourse are at the heart of the university’s mission of creating and nurturing an open and diverse community dedicated to learning. It shows why universities must make space for voices from both the left and right. And it points out how better understanding why the university lives or dies by free speech can help guide everyone―including students, faculty, administrators, and alumni―when faced with difficult challenges such as unpopular, hateful, or dangerous speech.

Forthcoming Scholarly Article 

Abstract: Fake news” has become the central inflammatory charge in media discourse in the United States since the 2016 presidential contest. In the political realm, both intentionally fabricated information and the “fake news” defense by politicians confronted with negative press reports can potentially influence public beliefs and possibly even skew electoral results. Perhaps even more insidiously, as evidenced by President Trump’s dismissal of the traditional press as the “enemy of the American people,” the “fake news” accusation can serve as a power-shifting governance mechanism to delegitimize the institutional press as a whole. Both these strategic uses of “fake news”—to achieve specific political results and to destabilize the press as an institution—are self-evidently very dangerous for democracy. As if this were not a sufficient threat to the democratic order, however, “fake news” is also a threat, inter alia, to the stability of the financial markets as well. Whether for competitive advantage, terror, or geopolitical gamesmanship, the deployment of market-affecting fabricated information is a looming danger ahead. Simply put, therefore, “fake news” presents profound—and likely increasing—challenges for both the public and private spheres today.

Professor Lili Levi

In light of this complexity, no single—or simple—tactic is sufficient to address the variety of challenges posed by the multi-headed phenomenon of “fake news.” This Article suggests beginning with a three-pronged approach—focusing on platform self-regulation, audience information literacy, and—perhaps counterintuitively—empowerment of the press itself. First, despite distrust of platform self-regulation, there is reason to believe that the threats posed by “fake news” to commercial interests may stimulate constructive solutions. Second, while cognitive science reveals limits to traditional information literacy approaches, interdisciplinary engagement may enhance the effectiveness of inevitably iterative information literacy initiatives in the “fake news” context. Third, in contrast to suggested solutions exploring express governmental attempts to prohibit or limit “fake news” directly, the Article instead recommends a reversal of current doctrine and practice in the form of a broad-based expansion of affirmative rights for the press. If given expanded protections, the professional press can transform the modern context of “fake news” into an opportunity to shine as a watchdog and, hopefully, thereby rebuild public trust. Tools to empower the professional press can help forge alliances between the conservative and liberal wings of the traditional media, thereby isolating and minimizing the impact of newly-rising alt-right media entrants. The results will surely be imperfect, but the alternative is worse: a neutered and supine press operating merely to entertain a fragmented and polarized audience in an increasingly authoritarian global political and commercial environment.

The mainstream press today is both demonized by the right and at risk from the left’s recent attempts to desacralize the First Amendment on the ground of its rightward ideological drift. In questioning that development, the Article suggests that progressive scholars’ critiques of recent libertarian doctrinal developments regarding the freedom of speech should in no way impede the recognition and enhancement of the First Amendment’s protections for a free and independent press. In that spirit, the Article appeals to courts, legislators, and government actors at every level to back up an ostensible commitment to free speech with an equally robust commitment to a free press. It also calls on the press to revise its practices in response.

New Scholarly Article

Professor Margot Kaminski

Abstract: Technology is often characterized as an outside force, with essential qualities, acting on the law. But the law, through both doctrine and theory, constructs the meaning of the technology it encounters. A particular feature of a particular technology disrupts the law only because the law has been structured in a way that makes that feature relevant. The law, in other words, plays a significant role in shaping its own disruption. This Essay is a study of how a particular technology, artificial intelligence, is framed by both copyright law and the First Amendment. How the algorithmic author is framed by these two areas illustrates the importance of legal context and legal construction to the disruption story.

Book Review Essay 

SCOTUSblog Symposium on Minnesota Voters Alliance v. Mansky

The case will be argued on February 28, 2018.

→ National ACLU files amicus brief in support of Petitioners  (David Cole, counsel of record)

Cato Institute et al files amicus brief in support of Petitioners (Ilya Shapiro, counsel of record)

Three Timely Podcasts: Professors Gordon, Stone & Kennedy (Randall) 

Professor Sarah Barringer Gordon

By the end of World War II, Jehovah’s Witnesses would argue nearly two dozen First Amendment cases at the Supreme Court. Their body of litigation would pressure the court to better define, and elevate, the role of personal liberty protections in American law.

As Sarah Barringer Gordon, a law professor at the University of Pennsylvania puts it: Jehovah’s Witnesses “brought into existence a new constitutional world.”

In the penultimate episode of the Constitutional podcast, we examine the fascinating story of how this marginalized group was able to so powerfully transform First Amendment law. Gordon is a special guest on the episode alongside Julie Silverbrook, executive director of the Constitutional Sources Project.

Professor Geoffrey Stone

In the wake of hate group rallies and protests of controversial speakers on college campuses, how far does the right to free speech extend? What are its limits? Should the federal government and universities be empowered to place further restrictions on speech, or would further curtailments do more harm than good? Join us as we discuss with Professor Geoffrey Stone, Edward H. Levi Distinguished Service Professor at the University of Chicago, and Professor Genevieve Lakier, Assistant Professor of Law at the University of Chicago.

This episode of Briefly, a production of the University of Chicago Law Review, was produced by Tom Molloy and John Tienken.

Professor Randall Kennedy

“Has the history of how our constitutional rights came to be protected on campus been forgotten?”

“Professor Randall L. Kennedy believes it has. It’s a history even he wasn’t familiar with until recently. On this episode of So to Speak: The Free Speech Podcast, Professor Kennedy explains how civil rights activists in the 1950s and 60s secured early victories for free speech, due process, and public assembly on high school and college campuses.”

“Professor Kennedy teaches courses on contracts, criminal law, and the regulation of race relations at Harvard Law School, and he is the author of “The Forgotten Origins of the Constitution on Campus.” Prior to arriving at Harvard, he was a law clerk for Justice Thurgood Marshall at the United States Supreme Court.”

Blog Post 

This from the   latest edition of Short Circuit, a weekly feature from the Institute for Justice as it appears on The Volokh Conspiracy:

  • Wilson County, Tenn. probation officer is fired for (allegedly) lying in court. A violation of her First Amendment rights and/or the Tennessee Public Employee Political Freedom Act? The Sixth Circuit says no.

News, Editorials, & Op-Eds

  1. Ilya Shapiro & Meggan Dewitt, Berkeley Advances Junk Science in the Name of Consumer Protection, Cato at Liberty, Jan. 30, 2018
  2. Devin Watkins, The First Amendment Protects the Right Not to Speak, Competitive Enterprise Institute, Jan. 30, 2018
  3. Eliza Newlin Carney, What First Amendment?, The American Prospect, Jan. 25, 2018
  4. Gordon Danning, “Hate Speech” Does Not Incite Hatred, Quillette, Jan. 18, 2018


2017-2018 Term: First Amendment Free Expression Cases

Cert. Granted

  1. National Institute of Family and Life Advocates v. Becerra (argument: March 20, 2018)
  2. Lozman v. City of Riviera Beach, Florida (argument: Feb. 27, 2018)
  3. Minnesota Voters Alliance v. Mansky (argument: Feb. 28, 2018)
  4. Janus v. American Federation of State, Municipal and County Employees (argument: Feb. 26, 2018)
  5. Masterpiece Cakeshop v. Colorado Civil Rights Commission (argument: Dec. 5, 2017)

Pending: Cert. Petitions 

  1. CTIA v. City of Berkeley 
  2. Harris v. Cooper 
  3. A Woman’s Friend Pregnancy Resource Clinic v. Becerra
  4. Livingwell Medical Clinic, Inc. v. Becerra
  5. Berninger v. Federal Communications Commission

Review Denied

  1. Shepard v. Florida Judicial Qualifications Commission 
  2. Morris v. Texas (dismissed for want of jurisdiction)
  3. Connecticut v. Baccala
  4. Tobinick v. Novella
  5. Muccio v. Minnesota
  6. Elonis v. United States
  7. Final Exit Network, Inc. v. Minnesota 

Free-Speech Related Cases: Cert. Granted

  • Carpenter v. United States (Whether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.)
  • Blagojevich v. United States (When the Government prosecutes a public official for soliciting campaign contributions in alleged violation of the Hobbs Act or other federal anti-corruption laws, must the Government prove the defendant made an “explicit promise or undertaking” in exchange for the contribution, McCormick v. United States (1991) (emphasis added), as five circuits require, or “only . . . that a public official has obtained a payment . . . knowing that [it] was made in return for official acts,” Evans v. United States (1992), as three other circuits hold?)

Free-Speech Related Cases: Cert. Denied

Last Scheduled FAN # 175: Seattle University Law School to host Conference on Artificial Intelligence — includes panel on Robotic Speech 

Next Scheduled FAN # 177: Wednesday, February 7, 2018

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