FAN 183 (First Amendment News) Pushback: Seidman’s “Can Free Speech Be Progressive?” article draws critical response

Declining support for unfettered debate among politicians, academics, and the public doesn’t bode well for the future of free speech.  — J.D. Tuccille, March 19, 2018

There’s dissent in the air — from the Left, the Right, and from Libertarian quarters, too. Everybody is getting ever more worked up about free speech in America.

J.D. Tuccille

Donald Trump wants to revive old defamation laws; some on the Left want to amend the First Amendment; some on the Right want the government to regulate violent movies and video games; many college administrators appear determined to abridge the First Amendment; college students gather en masse to silence speech that offends them; First Amendment scholars ask What’s Wrong with the First Amendment?; and Libertarians, well, they can never have enough free-speech freedom.

Make no mistake: the future of the First Amendment hangs in the balance as never before.  This is no “the sky is falling” claim. Rather, it is an observation on our times. No, not like the late 18th century, or WWI, or the McCarthy Era. Not at all. But we are in a state of transition. Take heed: the goal lines are shifting.

Indicative of that shift is a headline over at Reason.com: “Trump’s Anti-Speech Agenda Gets a Boost From Lefty Lawyers and Academics.” Among other things, it is offered up as a sort of reply to something I posted last week: Professor Louis Seidman’s forthcoming Columbia Law Review article titled Can Free Speech Be Progressive?  J.D. Tuccille authored the article. He is a former managing editor of Reason.com and current contributing editor. Here are some excerpts from his article:

  • “We have an environment in which the president of the United States is dismissive of the free speech rights of his opponents, prominent constitutional scholars sniff at free speech unless it’s used by the “right” people for their favored goals, and the country’s leading civil liberties organization is suffering an internal revolt by staffers who oppose “rigid” support for free speech protections.”
  • “[I]f you’re an academic with expertise in constitutional law, and you have months to watch a populist politician who commands the power of the presidency fulminate about punishing those who criticize him, what do you do? If you’re Georgetown Law’s Louis Michael Seidman, you suggest that the president might be on to something.”
  • “In 2016, [Professor Seidman] wrote for the Nation, ‘Would the election of Donald Trump threaten the sanctity of the United States Constitution? We should be so lucky.’ In fact, Seidman has long been an advocate for dumping the Constitution and its protections in their entirety. He just thinks that Trump is the wrong vehicle.”
  • “And Seidman isn’t alone in arguing from academia that free speech is overrated. His paper favorably quotes Laura Weinrib of the University of Chicago Law School, author of The Taming of Free Speech: America’s Civil Liberties Compromise. Weinrib complained in a Los Angeles Times op-ed last summer that “free speech has served to secure the political influence of wealthy donors,” while “labor’s strength has plummeted, and the Supreme Court is poised to recognize a 1st Amendment right of public sector employees to refuse to contribute to union expenses.”
  • “Last fall, about 200 of the [ACLU’s] staff members signed a letter objecting to the groups’ ‘rigid stance’ on the First Amendment. The letter was characterized by former ACLU board member Michael Meyers as ‘a repudiation of free-speech principles.'”
  • “[I]ntolerance has pretty clearly become a dominant theme at colleges, where the likes of Seidman and Weinrib teach that free speech is overrated and important primarily as a tool to be reserved for the right ideas.”

There is more, much more, but you’ll need to read the full article to discover what you missed.

Court Reporters’ assessments of arguments in California abortion-speech law case

Yesterday the Supreme Court heard oral arguments in National Institute of Family and Life Advocates v. Becerra.

Issue: Whether the disclosures required by the California Reproductive FACT Act violate the protections set forth in the free speech clause of the First Amendment, applicable to the states through the F Fourteenth Amendment.

Facts: This from Amy Howe over at SCOTUSblog: “The California legislature passed the law because it was worried that crisis pregnancy centers – nonprofit organizations, often affiliated with Christian groups, that are opposed to abortion – were posing as full-service reproductive health clinics and providing pregnant women with inaccurate or misleading information about their options. The act requires nonprofits that are licensed to provide medical services (such as pregnancy tests and ultrasound examinations) to post notices to inform their patients that free or low-cost abortions are available, while centers without such licenses – which try to support pregnant women by supplying them with diapers and formula, for example – must include disclaimers in their advertisements to make clear, in up to 13 languages, that their services do not include medical help.”

Lawyers 

  • Michael P. Farris argued on behalf of the Petitioners.
  • Jeffrey B. Wall, Deputy Solicitor General, Department of Justice, argued on behalf of the United States, as amicus curiae, in support of neither party, and
  • Joshua A. Klein, Deputy Solicitor General, California, argued on behalf of the Respondents

Commentators — Consensus: Justices skeptical of constitutionality of California law 

  • Adam Liptak (NYT): “A California law that requires ‘crisis pregnancy centers’ to provide information about abortion met a skeptical reception at Supreme Court arguments on Tuesday. . . . Some justices expressed frustration with the thin court record in the case, which arrived at the Supreme Court at an early stage in the proceedings. That left open the possibility that the justices could return the case to the lower courts for a full trial.”
  • David Savage (L.A. Times): “The Supreme Court sounded ready Tuesday to strike down a California disclosure law that requires pregnancy centers — including those that are faith-based — to notify women that the state offers subsidies for abortion. . . . [M]ost of the justices took sharp issue with all or parts of the California law. They said it was unfairly targeted at the faith-based centers. Doctors and for-profit clinics were exempted from the law. . . . Tuesday’s case marked the third time in recent months that the justices weighed a conservative group’s claim that a liberal state law amounts to unconstitutional ‘compelled speech.'”
  • Nina Totenberg (NPR): “Supreme Court justices on both sides of the ideological spectrum expressed skepticism about California’s ‘truth-in-advertising’ law requiring anti-abortion clinics to more fully disclose what they are.”
  • Robert Barnes (Washington Post): “Supreme Court justices on Tuesday indicated that a California law requiring antiabortion pregnancy centers in California to notify women that the state provides free or low-cost health care, contraception services and abortion, could violate free speech rights. . . . [Justice Kennedy’s questions] were almost uniformly hostile to the law, and he was even short with other justices who seemed to defend it.”

Related

EXCERPTS from aruments in California abortion-speech law case

JUSTICE KAGAN: “Would a requirement that [a non-medical] facility post a notice saying there actually are a lot of options and here’s how you can access them, would that be unconstitutional?” . . . .

JUSTICE ALITO: “What if there [was] a state law that required every doctor or facility that provides medical treatment for pregnant women to post a notice setting out the full range of options available to those women and where they might obtain services at no cost, if those — if those are available?” . . .

JUSTICE BREYER: “In law, as you well know, what is sauce for the goose is sauce for the gander. And so I think what’s bothering [with] these questions people, as it bothers me . . . — there are pro-choice states and there are pro-life states. All right? So, if a pro-life state can tell a doctor you have to tell people about adoption, why can’t a pro-choice state tell a doctor, a facility, whatever it is, you have to tell people about abortion?” . . . .

JUSTICE GORSUCH: “We don’t have a lot of evidence with respect to the nature of the burden that would be imposed by the 48-font requirement on all ads. There’s some evidence in the amicus briefs that it might be like a $9,000 a month tax for advertisements. But what do we do about the lack of a record here and whether we should wait for an as-applied challenge . . . .”

JUSTICE GINSBURG: “We don’t know what kind of adjustments might have been made because this case went off without any kind of an evidentiary hearing, as was pointed out.”

JUSTICE SOTOMAYOR: “The text of the page titled ‘Abortion’ says Fallbrook will educate clients about different abortion methods available, and describe in medical terms different abortion procedures.  The website also says clients will be evaluated by nurses and that they follow all HIPAA regulations, which if they’re not a medical provider, they don’t have to follow HIPAA. wrong?” . . . .

JUSTICE SOTOMAYOR: “So if you’re giving people advice about pregnancy when you are not a licensed facility, please explain to me what is both misleading, incorrect, or suggestive in any way that a person has to do something like go to this doc — to a doctor, how is it doing anything other than telling people that, despite how the picture looks on the website, this is not a medical facility?”

JUSTICE KENNEDY: “What would happen if an unlicensed entity, unlicensed center, just had a billboard that said ‘Choose Life.’ Would they have to make the disclosure?” . . .  .

CHIEF JUSTICE ROBERTS: “can [these facilities] be required to list services that they don’t provide but that may be provided elsewhere?” . . . .

JUSTICE BREYER: “So, in your view, family planning clinics do not have to tell any woman about abortion — adoption?”

JUSTICE BREYER: “There are millions of people in this country who have views on this subject that are absolutely opposed, one to the other. So that, to me, suggests the law should keep it as simple as possible. And that’s why sauce for the goose, sauce for the gander. I mean, if the law is permissible which says, Doctor, you must tell the woman about adoption, then why shouldn’t the law say, Family Planning Center, you must tell the woman about abortion? Sounds even-handed, sounds as if everybody in the same business is under the same rules.” . . . .

JUSTICE ALITO: “[T]o take a couple of examples: Journalists are professionals. So would they be subject to this standard? How about economists? How about climate scientists? How about a fortune teller? The Fourth Circuit said that a fortune teller is a — is a professional. How about somebody who writes an advice column for parents? I mean, wouldn’t we be getting into very dangerous territory if we do this?” . . . .

JUSTICE ALITO: “If you have a law that’s neutral on its face, but then it has a lot of crazy exemptions, and when you apply all the exemptions, what you’re left with is a very strange pattern and, gee, it turns out that just about the only clinics that are covered by this are pro-life clinics. Do you think it’s possible to infer intentional discrimination in that situation?” . . . .

JUSTICE ALITO: “Why does this apply only to clinics whose primary function is providing service to pregnant women?” . . . .

JUSTICE ALITO: [Why does the law] apply almost only to for — to non-profits and not for-profits? If the purpose is to get this information out to poor women, don’t you think there are examples of poor women who stumble into a for-profit facility? Wouldn’t it be beneficial for them to know that they could get treatment at no cost through the state?” . . .

JUSTICE KAGAN: “[W]e’re really concerned that there are low-income women, don’t have a lot of access to information, don’t realize what all their options are, want to make sure in general and across the board that they get the best information that’s available to them. Another way to think about what the problem is and how a statute like this comes about is more targeted. It’s to say there are these crisis pregnancy centers all over California and we know that women just go into them and they don’t realize what they are, and they’re being subject to being misled and we think that this is a terrible problem.” . . . .

JUSTICE GORSUCH: “Well, but if you’re trying to educate a class of — of persons about their rights, it’s — it’s pretty unusual to force a private speaker to do that for you under the First Amendment.”

JUSTICE SOTOMAYOR: “Mr. Klein, can we go back to the question Justice Kennedy asked the other side, which was for you to affirm or disaffirm that if one of these facilities wrote an ad that just said pro-life and put their name, it appears as if the law would require them to have the statement ‘This is not a medical facility” in 48-point font?'”

JUSTICE KAGAN: “[W]e have these general disclosure requirements, but we don’t really want to apply them generally, we just want to apply them to some speakers whose speech we don’t much like . . . .”

Amending Section 230 of the Communications Decency Act 

Alina Selyukh
(Stephen Voss/NPR)

Over at NPR, Alina Selyukh has a post entitled “Section 230: A Key Legal Shield For Facebook, Google Is About To Change.” Here are a few excerpts:

  • “In the first major change to Section 230 in years, Congress is voting this week to make Internet companies take a little more responsibility than they have for content on their sites. . . The Senate is expected to pass the bill as early as Wednesday, sending it to President Trump for his signature. The White House has supported the legislation.””And for the first time, after years of staunch defiance, the Internet Association came out in support of legislation to change Section 230 — shocking smaller Internet companies and digital-rights groups by breaking ranks.”
  • Section 230 lives inside the Communications Decency Act of 1996, and it gives websites broad legal immunity: With some exceptions, online platforms can’t be sued for something posted by a user — and that remains true even if they act a little like publishers, by moderating posts or setting specific standards.”‘Section 230 is as important as the First Amendment to protecting free speech online, certainly here in the U.S.,’ says Emma Llanso, a free-expression advocate at the Center for Democracy and Technology.”
  • “Section 230 is also tied to some of the worst stuff on the Internet, protecting sites when they host revenge porn, extremely gruesome videos or violent death threats. The broad leeway given to Internet companies represents ‘power without responsibility,’ Georgetown University law professor Rebecca Tushnet wrote in an oft-cited paper.
  • “Danielle Citron, a University of Maryland law professor who authored the book Hate Crimes in Cyberspace, argues that responsibility is exactly what’s missing from the law.’Yes, let’s think about the consequences for speech,” she says, pointing to the flip side of the free-wheeling Internet. “There are countless individuals who are chased offline as a result of cyber mobs and harassment.'”

C.J. Roberts is Reshaping The First Amendment

Amelia Thompson-DeVeaux

Amelia Thomson-DeVeaux, writing for Five Thirty-Eight, has a new article on Chief Justice Roberts and the First Amendment. Here are some excerpts from her article:

“As of the end of the 2016 term, Roberts had written 34 percent of the free speech decisions the court has handed down since he joined its ranks, and 14 percent of his majority opinions were devoted to the topic. Even when he’s not writing for the majority, Roberts is rarely on the losing side: Out of the 38 free speech cases we counted, he voted with the minority only once.”

Free speech-related* Supreme Court cases,

by author of the majority opinion, 2005-16

JUSTICE NO. OF SPEECH CASES SHARE
Roberts 13 34.2%
Alito 5 13.2
Breyer 5 13.2
Scalia 4 10.5
Kennedy 4 10.5
Sotomayor 2 5.3
Thomas 2 5.3
Souter 1 2.6
Stevens 1 2.6
Ginsburg 1 2.6
O’Connor 0 0.0
Kagan 0 0.0
Gorsuch 0 0.0

* Decisions that list “First Amendment (speech, press and assembly)” as a legal provision considered in the case

SOURCE: The Supreme Court Database

→ There is more and I urge readers to review the entire article.

New article examines  conflict between academic freedom & open-records laws

Professor Claudia Polsky

This from  Zach Greenberg writing for FIRE: “A recent paper provides an in-depth look into the ongoing friction between state open records laws and the academic freedom of university researchers.”

“The article, written by University of California, Berkeley, School of Law professor Claudia Polsky, addresses how these laws have been used to conduct politically-motivated fishing expeditions into the private academic records of controversial professors in order to deter them from research and debate.”

“Polsky argues that “professors should never have been subject to public records laws in the first instance, both because they are not engaged in public governance, and because open records laws are fundamentally incompatible with academic freedom.” Her meticulously researched article documents numerous instances of professors targeted by open records laws — a distortion detrimental to the “democracy-promoting intent” of these statutes. Although these laws were designed to shed light on government actors with decision-making authority, Polsky explains how they are currently being twisted to stifle legitimate academic inquiries into controversial issues.”

Related: FIRE’s Model Resolution on Academic Freedom and Government Transparency

W. Va.  court strikes down Internet restrictions on parolees

David Hudson

This from David L. Hudson, Jr. at The Encyclopedia of the First Amendment: “A restriction that prohibited a parolee from possessing or having contacts with a computer or other device with internet access violates the First Amendment, the West Virginia Supreme Court has ruled in Mutter v. Ross.”

“Bobby Ross sexually assaulted a female in 1987.  He received a lengthy prison sentence and the state released him on parole in May 2014.   A special condition of his parole prohibited him from “possess[ing] or hav[ing] contact with any computer, electronic device, communication device or any device which is enabled with Internet access.”   Thus, the condition prohibited Mr. Ross from owning a smartphone, checking the Internet for job ads, or other innocent activity that involved the use of a computer.”

“A parole officer noticed that Ross’ girlfriend owned a computer.  Because Ross lived with his girlfriend, the parole officer believed that Ross violated his parole and started proceedings that led him to be placed back into prison.  For his part, Ross and his girlfriend testified that Ross did not use the computer.”

Ross challenged his parole revocation on several grounds, including a First Amendment argument. Ross contended that the special parole restriction violated the First Amendment based on the U.S. Supreme Court’s decision in Packingham v. North Carolina (2017). . . .”

“‘The special condition of parole is clearly unconstitutional in light of the Supreme Court’s ruling in Packingham,’ the state high court wrote.”

Job Announcement: First Amendment Watch seeks Researcher/Writer

Researcher/Writer
NYU Arthur L. Carter Journalism Institute

First Amendment Watch is currently seeking a full-time Researcher/Writer in New York to research and build site content and promote our work on social media.First Amendment Watch is an online news and educational resource for journalists, educators and students. Our goal is to increase civic engagement by providing the tools for citizens of all ages to better understand their rights. The site documents contemporary threats to the freedoms of speech, press, assembly, and petition—rights that are specified in the First Amendment. We provide links to wide-ranging coverage as well as analysis and commentary from varying points of view. We also offer original content explaining the legal and historical background behind each controversy, including discussion of relevant court decisions.  In addition, we provide book excerpts of leading First Amendment writers and excerpt important First Amendment historical documents and case decisions. We round out our resources with a glossary of terms and links to resources for further study.

Competitive salary and full NYU benefits package.

QUALIFICATIONS

Minimum requirements:

  • Bachelor’s degree in Journalism or Communications preferred, Masters degree is a plus.
  • Minimum one-year full-time professional news reporting experience preferred.
  • Knowledge of local and national current events, newsmakers, and issues particularly related to First Amendment.
  • Able to efficiently research and contribute content to all platforms, including but not limited to Facebook, Twitter and Instagram.
  • A working knowledge of basic content management systems (CMS) such as WordPress and/or Drupal is essential. A fair knowledge of InDesign, Illustrator and Photoshop is preferable.
  • Knowledge of MailChimp and newsletter campaigns.
  • Experience using Google Analytics and similar tools.
  • Ability to shoot video.
APPLICATION INSTRUCTIONS

Review of applications will begin immediately and will continue until the position is filled. We are requesting a cover letter, resume and two writing samples (links acceptable).

Job Announcement: Liberty & Law Center Seeks Free Speech Fellow

In Fall of 2018, the Liberty and Law Center will launch a Free Speech Clinic, which will provide Scalia Law students with hands-on experience representing clients against infringements upon their freedom of speech. The Clinic will also be a resource for organizations, students, journalists, and citizens defending and advancing freedom of expression.

Over at The Volokh Conspiracy, David E. Bernstein posted the job announcement set out below. Professor Bernstein is the  Executive Director of the Liberty and Law Center and University Professor at the Antonin Scalia Law School.

Liberty and Law Center / Free Speech Clinic Fellow

Salary Range: Competitive with similar fellowships.

The Liberty and Law Center at the Antonin Scalia Law School is looking for a Free Speech Clinic Fellow to run a new Free Speech Clinic for law students, which will begin in Fall of 2018. The Free Speech Clinic Fellow will collaborate with the Clinic Director to manage, instruct, and support the activities of the Free Speech Clinic. It is anticipated that the Clinic will focus on two core First Amendment objectives: (1) litigating and supporting cases and other legal proceedings that further the cause of free speech; and (2) training a group of future lawyers who want to advance their knowledge of the status of freedom of speech in the United States, and seek practical training in protecting freedom of speech.

The Liberty and Law Center is a new academic center within Scalia Law School. Its mission is to provide a forum to learn about the role of law in protecting and promoting liberty, challenge government encroachment upon liberty, and lead the discussion of the law’s role in protecting and promoting liberty.

Fellowship Description:

At the direction of the Clinic Director and the Center’s leadership, the Fellow’s responsibilities include but are not limited to:

  • Serve as the day-to-day manager of the Clinic.
  • Provide supervision and instruction to students in the Clinic, including feedback, mentoring, and training.
  • Manage ongoing cases, ensuring that the work is done in a timely and professional manner.
  • Assist with the organization and teaching of the Clinic, focusing on substantive knowledge of First Amendment doctrine and the litigation process, as well as effective legal writing, advocacy, and client relations skills.
  • Develop the focus of cases the Clinic will work on, including developing and maintaining relationships with public interest law firms with which the Clinic expects to collaborate.
  • Assist in managing the marketing and promotion of the Clinic.

This is a full-time position for a period of two-years and is benefits eligible. The position may be renewable.

Requirements: The Fellow must be a U.S. citizen (or otherwise eligible to work in the U.S.) and a law school graduate, with practical experience and background in constitutional law.

Desired qualifications and skills:

  • A strong interest in freedom of speech and the First Amendment;
  • 2 or more years of relevant experience;
  • Demonstrated ability to collaborate with others and execute projects;
  • Strong analytical and research skills;
  • Strong spoken and written communication skills; and
  • Highly self-motivated and detail-oriented with an ability to advance projects in a self-directed way.

Required qualifications:

  • A juris doctor;
  • License to practice law in Virginia, or ability to obtain a Virginia bar license within a short timeframe; and
  • Either (1) At least one year of litigation experience; or (2) a demonstrated interest in constitutional law and public interest litigation.

Required application materials:

  • Cover letter;
  • Resume, no longer than two pages;
  • Three professional references; and
  • Writing sample, no longer than five pages (can be an excerpt from a longer work).

Upcoming Symposium: A First Amendment for All? Free Expression in an Age of Inequality

Date:   March 23, 2018

Co-sponsored by the Knight First Amendment Institute and the Center for Constitutional Governance

Location: Jerome Greene Hall Room 101 435 West 116th Street, New York, New York

Description:  A growing chorus of judges, lawyers, and journalists have called attention to a “Lochnerian” turn in First Amendment doctrine, as the federal courts have increasingly invalidated or narrowed regulations of socio-economic power in the name of free speech or the free exercise of religion. While many legal scholars have offered criticisms of First Amendment Lochnerism—the use of the First Amendment to entrench social and economic hierarchy—there have been few efforts to describe or defend the alternative: a First Amendment that would advance, rather than obstruct or remain indifferent to, the pursuit of social and economic equality. There has likewise been very little commentary connecting First Amendment Lochnerism to broader changes in the institutional landscape of free expression, including the proliferation of private platforms that facilitate and filter public debate.

In response, the Columbia Law Review is convening a day of debate, discussion, and reflection by leading legal scholars. In asking where the First Amendment goes from here, this symposium aims to break down barriers between different scholarly subfields—connecting high-level questions about the First Amendment’s meaning and function with emerging problems in areas such as Internet law, media law, labor law, antidiscrimination law, campaign finance law, and commercial speech. More fundamentally, it aims to move First Amendment theory and practice away from critiques of past judicial rulings and toward the more affirmative project of redesigning the law of free expression for a present and future of mounting economic inequality and authoritarian challenges to democratic norms. The conversation will center around seven original works of scholarship, to appear in the November 2018 issue of the Columbia Law Review, that take up this challenge, whether enthusiastically or critically.

 Detailed Schedule

Register here

Upcoming Event: Speak Freely: Why Universities Must Defend Free Speech

This from the folks over at the Cato Institute:

Date: March 29, 2019 / 12:00PM to 1:30PM EDT
Location: Hayek Auditorium, Cato Institute, Washington, D.C.
Featuring the author Keith E. Whittington, William Nelson Cromwell Professor of Politics, Princeton University; with comments by Ilya Somin, Professor of Law, George Mason University; moderated by John Samples, Vice President, Cato Institute.

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. Constitutional scholar Keith E. 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 to foster freedom of thought, ideological diversity, and tolerance.
Examining such hot-button issues as trigger warnings, safe spaces, hate speech, disruptive protests, speaker disinvitations, 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 a better understanding of why the university lives or dies by free speech can help guide everyone—including students, faculty, administrators, and alumni—faced with difficult challenges such as unpopular, hateful, or dangerous speech.

Timely and vitally important, Speak Freely demonstrates why universities can succeed only by fostering more free speech, more free thought—and a greater tolerance for both.

If you can’t make it to the event, you can watch it live online at www.cato.org/live and join the conversation on Twitter using #Cato1A. Follow @CatoEvents on Twitter to get future event updates, live streams, and videos from the Cato Institute.

Now Posted: Video of 1-A Salon on Masterpiece Cakeshop case

      Sarah Warbelow, Ilya Shapiro, Steve Wermiel, Robert Corn-Revere & John Paul Schnapper-Casteras

Thanks to Nico Perrino and the fine folks at FIRE for posting the latest First Amendment Salon, this one on Masterpiece Cakeshop v. Colorado Civil Rights Commission. 

The next First Amendment Salon is on April 27th and will take place at the Floyd Abrams Institute for Freedom of Expression at Yale Law School (topic to be determined).

Two New Podcasts: On Ancients & Moderns  

  • Episode 4: Expert Opinion – Paul Cartledge, Clear & Present Danger: A History of Free Speech (FIRE) (In our first expert opinion segment, Jacob Mchangama talks to Emeritus Professor of Greek Culture at Cambridge University Paul Cartledge. With his intimate knowledge of ancient Greece, we dive deeper into the concepts of free speech and democracy in Athens that were discussed in episode one. What are the differences between free speech in the Athenian democracy and free speech in a modern liberal democracy? What limits did religion set for Athenian free speech? Was Plato a totalitarian? And was the trial of Socrates mostly religious or political?)
  • Ken White, Disparagement, Contempt, and Disrepute, Make No Law: The First Amendment Podcast, March 15, 2018 (“Simon Tam named his band ‘The Slants’ as a form of self-empowerment, but ran into problems when he tried to tried to register the name as a trademark, and ended up taking the case to the Supreme Court.”)

New & Forthcoming Books 

Abstract: On February 1, 1960, four African American college students entered the Woolworth department store in Greensboro, North Carolina, and sat down at the lunch counter. This lunch counter, like most in the American South, refused to serve black customers. The four students remained in their seats until the store closed. In the following days, they returned, joined by growing numbers of fellow students. These “sit-in” demonstrations soon spread to other southern cities, drawing in thousands of students and coalescing into a protest movement that would transform the struggle for racial equality.

The Sit-Ins tells the story of the student lunch counter protests and the national debate they sparked over the meaning of the constitutional right of all Americans to equal protection of the law. Christopher W. Schmidt describes how behind the now-iconic scenes of African American college students sitting in quiet defiance at “whites only” lunch counters lies a series of underappreciated legal dilemmas—about the meaning of the Constitution, the capacity of legal institutions to remedy different forms of injustice, and the relationship between legal reform and social change. The students’ actions initiated a national conversation over whether the Constitution’s equal protection clause extended to the activities of private businesses that served the general public. The courts, the traditional focal point for accounts of constitutional disputes, played an important but ultimately secondary role in this story. The great victory of the sit-in movement came not in the Supreme Court, but in Congress, with the passage of the Civil Rights Act of 1964, landmark legislation that recognized the right African American students had claimed for themselves four years earlier. The Sit-Ins invites a broader understanding of how Americans contest and construct the meaning of their Constitution.

New & Forthcoming Scholarly Articles

  1. Catherine Fisk, A Progressive Labor Vision of the First Amendment: Past as Prologue, Columbia Law Review (2018 forthcoming)

Professor Catherine Fisk

Abstract: This essay proposes a way to expand First Amendment protection for labor protest, and to invalidate restrictions on secondary boycotts and picketing seeking to organize a union, without further jeopardizing the shaky detente in free speech battles between those who believe in heightened scrutiny only of laws restricting political speech and those who advocate heightened scrutiny of all laws, including economic regulations, that restrict speech. A principled line, supported by venerable precedent, exists between laws restricting picketing and speech on matters of public concern in traditional public forums and laws regulating coercive, harassing, or threatening speech inside the workplace. The contours of such a First Amendment theory can be found in the past. When the Court abandoned its deferential reasonableness rule that allowed government to prohibit speech that had a tendency to produce bad consequences in favor of the Brandenburg rule requiring government to make a powerful showing that controversial speech is almost certainly going to incite “imminent lawless action,” it undermined the basis for its labor protest cases of the 1940s and 1950s. In its cases in the early 1980s rejecting First Amendment challenges to labor boycotts, it elided the significance of the shift in First Amendment jurisprudence by saying that labor protest was coercive, unlike the anti-war or civil rights advocacy it held constitutionally protected in the 1960s, 1970s, and the 1980s or the anti-abortion and homophobic picketing it has held constitutionally protected in the 2010s. But it is no longer plausible to say that labor picketing or calls for secondary boycotts are coercive. To restore intellectual credibility to free speech law, the Court should return to the First Amendment of labor protest of the early 1940s before it began to find labor speech to be coercion. Restoring the term “coercion” in section 8(b)(4) (which prohibits secondary boycotts) to its plain meaning has the great benefit of being the meaning that Congress intended. In short, the Court should expand to all workers the robust First Amendment protection for picketing and boycotts that it pivoted toward in 1963, when it abandoned its earlier view that laws or judicial decrees banning civil rights activism were permissible.

2.   Aaron Tang, Whose Money Is It Anyway: Have We Been Wrong About Agency Fees All Along?, Harvard Law Review Forum (2018)

3.    Scott Skinner-Thompson, Privacy’s Double Standards, Washington Law Review (forthcoming, 2018)

New & Notable Blog Posts

  1. Ruthann Robson, New York Judge: Trump Not Immune From Defamation Suit by Summer Zervos, Constitutional Law Prof Blog, March 20, 2018 (“In her opinion in Zervos v. Trump, New York County Supreme Court Justice Jennifer Schecter ruled that the lawsuit for defamation by Summer Zervos against now-President Trump could proceed, denying a motion to dismiss or to stay by Trump based on his presidential status.”)
  2. Eugene Volokh, Court Allows Lawsuit Against Ideological Group for Discriminatory Rejection of Noncommercial Ad in Its Publication, The Volokh Conspiracy (Reason.com), March 19, 2018
  3. Mark Graber, Stormy Daniels and New York Times Co. v. Sullivan, Balkinization, March 17, 2018

News, Editorials, Op-Eds & Blog Posts 

InfoWars, Alex Jones and Others Sued For Defamation, First Amendment Watch, March 14, 2018

The Limits of Transparency and FOIA Under TrumpFirst Amendment Watch, March 14, 2018

  1. Tenure Criticism is Protected by First Amendment, Court Rules, Accuracy in Academia, March 20, 2018
  2. Second Amendment Foundation To Help Students Defend Their 1st Amendment Right To Support 2nd, Cision, March 20, 2018
  3. John Riley, Norton calls out First Amendment Defense Act for threatening DC’s Civil Rights Laws, Metro Weekly, March 20, 2018
  4. Taylor Armerding, Sensitivity on campus threatens First Amendment, The Joplin Globe, March 19, 2018
  5. Taylor Armerding, Sensitivity on campus threatens the First Amendment, Niagara Gazette, March 18, 2018
  6. Andrew Hartman, People always think students are hostile to speech. They never really are, Washington Post, March 15, 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. Contest Promotions, LLC., v. City & County of San Francisco
  2. Holmes v. Federal Election Commission
  3. Flanigan’s Enterprise, Inc. v. City of Sandy Springs
  4. Nationwide Biweekly Administration, Inc., et al v. Perez
  5. CTIA v. City of Berkeley 
  6. Harris v. Cooper 
  7. A Woman’s Friend Pregnancy Resource Clinic v. Becerra
  8. Livingwell Medical Clinic, Inc. v. Becerra
  9. Berninger v. Federal Communications Commission

Review Denied

  1. Walker v. N.Y.C. Dep’t of Educ. et al.
  2. Shepard v. Florida Judicial Qualifications Commission 
  3. Morris v. Texas (dismissed for want of jurisdiction)
  4. Connecticut v. Baccala
  5. Tobinick v. Novella
  6. Muccio v. Minnesota
  7. Elonis v. United States
  8. Final Exit Network, Inc. v. Minnesota 

Free-Speech Related Cases: Cert. Granted

  • Carpenter v. United States (Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cellphone user over the course of 127 days are permitted by the Fourth Amendment.)

Free-Speech Related Cases: Cert. Pending

  • 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 # 182: Can free speech be progressive? Professor Seidman thinks not

Next Scheduled FAN # 184: Wednesday, March 29, 2018

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