FAN 189 (First Amendment News) Justice Alito’s free speech jurisprudence continues to draw scholarly attention
Justice Samuel Alito is getting ever more attention in the world of First Amendment free speech jurisprudence. Two recent pieces, one an online essay, and the other a law review essay, examine that jurisprudence.
Over at the Knight First Amendment Institute website there is a newly posted essay by Professor Garrett Epps, which is titled “Alito’s Way: Free Speech for Power, Money, and Traditional Values.” In his essay, Professor Epps focuses on the following areas of Justice Alito’s First Amendment jurisprudence:
- Government Speech
- Campaign Financing
- Public Employee Unions, and
- “Marginal” Speech & Speakers
Here is an excerpt:
“Underlying Alito’s free-speech jurisprudence is a profound anxiety about the impact of social change on those he deems worthy of protection. He combines selective empathy with an acute awareness of the sensitivities of the social groups he favors, once real or imagined majorities but now, increasingly, minorities. Alito draws from a rich rhetorical palette to describe a group’s social exclusion, fear, and isolation and the negative effects of speech. In his view, though, those feelings merit protection only when felt by the deserving — those at the center of power, wealth, and traditional values.”
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Justice Alito may well be the justice most closely in sync with the national mood. — William Araiza
Professor William D. Araiza has a law review essay in the Cornell Law Journal; it is titled Samuel Alito: Populist. While it is not entirely on the Justice’s free speech jurisprudnce (see Professor Clay Calvert’s article below), it does discuss it at some length. See table of contents below:
EVALUATIONS OF JUSTICE ALITO
- Caetano v. Massachusetts
- Snyder v. Phelps
- Fisher v. University of Texas
- Ricci v. DeStefano
EVALUATING THE OPINIONS
- Differences, Similarities, and Caveats
- Justice Alito’s Rhetorical Style
SAMUEL ALITO: POPULIST
- Clay Calvert, Justice Samuel A. Alito’s Lonely War Against Abhorrent, Low-Value Expression: A Malleable First Amendment Philosophy Privileging Subjective Notions of Morality and Merit, Hofstra Law Review (2011).
- Nikita Vladimirov, Alito talks First Amendment, makeup of future court, The Hill, Nov. 17, 2016
- Justice Alito discusses four First Amendment cases in Kristol interview — Free-Speech Jurisprudence Comes into Sharper Focus, First Amendment News (July 22, 2015)
- Robert Barnes, Alito stands alone on Supreme Court’s First Amendment cases, Washington Post, March 3, 2011
Debate: Jeremy Waldron & Nadine Strossen on Hate Speech
This from Winny Sun over at the Cornell Daily Sun: “. . . . Jeremy Waldron, University Professor at NYU School of Law, argued in favor of passing hate speech regulations. His opponent, Nadine Strossen, the John Marshall Harlan II Professor of Law, New York Law School and former president of the American Civil Liberties Union, disagreed with his stance that hate speech is not free speech.”
“Strossen began by telling the Myron Taylor Hall audience that the U.S. Supreme Court has never categorized a certain type of speech as hate speech, so hate speech is not required to be reviewed under constitutional terms.”
“She also said that she believes the government should not use its power to suppress an unfavorable idea even when it is a viewpoint that ‘the vast majority of the community despises.'”
“However, Strossen also claimed that she thought not all hate speech is immune to punishment. When the hate speech incident becomes subject to emergency principles, where it has the potential to ‘pose the greatest risk of harm’ or cause the “intentional incitement of imminent violence,” she said there are existing U.S. laws in place to deal with the case.
→ Nadine Strossen, HATE: Why We Should Resist It with Free Speech, Not Censorship (2018)
“Strossen said that she supports how the U.S. Government currently regulates hate speech since within this system, discordant ideas are not censored while the group impacted by hate speech can also be protected.”
“‘We should not suppress an idea merely because that idea is offensive to somebody, but … if we can avoid expressing that idea in a language that is insensitive, we should do that,’ Strossen said. ‘I think there is more to gain than lose from that … individual pressure and self pressure to watch what we say and avoid hurting people without stifling our ideas.'”
“Waldron argued that legislatures should be doing what they can to ‘prevent the fermenting of communal hostility between social or religious groups’ through the passage of hate speech regulation. . . .”
“Waldron also talked specifically about hate speech and its impact on college campuses. The legal scholar said that although he acknowledged universities to be places of free inquiry where ‘free speech should be privileged,” he also believed that “the campus is a community that faces issues of vulnerability.'”
→ Jeremy Waldron, The Harm in Hate Speech (2014)
“‘What the university authorities have to concern themselves with … is not just the expression of hate speech … but [how] expression of hate speech … has been intended to poison the atmosphere on campus,’ Waldron said.”
“‘People are sensitive … people worry,” he said, arguing that college and university authorities need to take this aspect into consideration in addressing the issue.’ . . .”
- Firing Line with William F. Buckley Jr.: Do We Need Laws That Confront Hate Crimes? (Nov. 12, 1998) (William F. Buckley, Nadine Strossen & Terence Jeffrey discuss Hate Sppech & Hate Crimes)
- Cato Speakers’ Event, Nadine Strossen, HATE: Why We Should Resist It with Free Speech, Not Censorship, May 7, 2018 9 (12:00 pm – 1:30 pm)
Upcoming: Online symposium on Seidman essay First Amendment Watch will soon launch an online symposium to discuss Professor Professor Louis Seidman’s forthcoming essay titled Can Free Speech Be Progressive?
The list of scheduled contributors includes:
— Professor Seidman will reply to the six commentaries. (More at a future posting)
First social-media-blocking lawsuit proceeds to Fourth Circuit
Press Release (May 2, 2018) : The Knight First Amendment Institute at Columbia University today announced that it will represent Brian Davison, a Virginia resident who was temporarily blocked from the Facebook page of a local public official, as his case proceeds before the U.S. Court of Appeals for the Fourth Circuit. There are a number of legal challenges across the country regarding public officials who have blocked individuals from social media accounts, and this will be the first such lawsuit to be heard at the appellate level.
The Knight Institute had previously submitted an amicus brief in Davison v. Randall urging the Fourth Circuit court to uphold a lower court’s ruling that Phyllis Randall, the Chair of the Loudoun Board of Supervisors, violated Davison’s First Amendment rights by blocking him from a personal Facebook page that she was using in an official capacity. After the Fourth Circuit court indicated that the case warranted oral argument, Davison, who was previously representing himself, retained the Institute as counsel. The Fourth Circuit court today issued an order providing a briefing schedule for the remainder of the case.
The Institute is also representing seven individuals who were blocked from the @realDonaldTrump Twitter account after criticizing the president, and is currently awaiting a ruling from the district court for the Southern District of New York.
The following statement is attributable to Katie Fallow, senior staff attorney at the Knight Institute:
“The district court properly recognized that the First Amendment bars public officials from blocking individuals from official social media accounts on the basis of viewpoint. We look forward to defending that decision on appeal. It’s crucial that the First Amendment protections that apply in conventional public forums like open school board and city council meetings apply with equal force online.”
→ For more information, contact the Knight Institute at firstname.lastname@example.org.
Robert Post on “Free Speech on Campus and Academic Freedom in the Trump Era”
First Amendment Watch in collaboration with NYU’s Steinhardt School of Culture, Education, and Human Development, New-York Historical Society and the Institute for Constitutional History sponsored a talk for NYC educators by Robert Post, First Amendment scholar and former dean of Yale Law School.
The topic, “Free Speech on Campus and Academic Freedom in the Trump Era,” addressed important First Amendment issues facing educators and students.
The talk was held in NYU’s Steinhardt School of Culture, Education, and Human Development, on Monday, April 30, 4:30-6:15. The nearly three dozen attendees asked a wide range of questions to that delved into important campus freedom of speech issues.
→ Video posted here.
Eight Forthcoming Books
→ Matthew Pressman, On Press: The Liberal Values That Shaped the News (Harvard University Press, November 5, 2018)
Abstract: In the 1960s and 1970s, the American press embraced a new way of reporting and selling the news. The causes were many: the proliferation of television, pressure to rectify the news media’s dismal treatment of minorities and women, accusations of bias from left and right, and the migration of affluent subscribers to suburbs. As Matthew Pressman’s timely history reveals, during these tumultuous decades the core values that held the profession together broke apart, and the distinctive characteristics of contemporary American journalism emerged.
Simply reporting the facts was no longer enough. In a country facing assassinations, a failing war in Vietnam, and presidential impeachment, reporters recognized a pressing need to interpret and analyze events for their readers. Objectivity and impartiality, the cornerstones of journalistic principle, were not jettisoned, but they were reimagined. Journalists’ adoption of an adversarial relationship with government and big business, along with sympathy for the dispossessed, gave their reporting a distinctly liberal drift. Yet at the same time, “soft news”―lifestyle, arts, entertainment―moved to the forefront of editors’ concerns, as profits took precedence over politics.
Today, the American press stands once again at a precipice. Accusations of political bias are more rampant than ever, and there are increasing calls from activists, customers, advertisers, and reporters themselves to rethink the values that drive the industry. As On Press suggests, today’s controversies―the latest iteration of debates that began a half-century ago―will likely take the press in unforeseen directions and challenge its survival.
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→ Dan Berstein, Justice in Plain Sight: How a Small-Town Newspaper and Its Unlikely Lawyer Opened America’s Courtrooms (University of Nebraska Press, January 1, 2019)
“During the 1970s and 1980s, the U.S. Supreme Court made public access to criminal court proceedings a constitutional right. . . . Justice in Plain Sight documents the struggle to achieve those rights and adds to the public’s understanding of what makes the American justice system the most transparent and trusted system in the world.”—Lucy Dalglish (dean of Phillip Merrill College of Journalism at the University of Maryland)
Abstract: Justice in Plain Sight is the story of a hometown newspaper in Riverside, California, that set out to do its job: tell readers about shocking crimes in their own backyard. But when judges slammed the courtroom door on the public, including the press, it became impossible to tell the whole story. Pinning its hopes on business lawyer Jim Ward, whom Press-Enterprise editor Tim Hays had come to know and trust, the newspaper took two cases to the U.S. Supreme Court in the 1980s. Hays was convinced that the public—including the press—needed to have these rights and needed to bear witness to justice because healing in the aftermath of a horrible crime could not occur without community catharsis. The newspaper won both cases and established First Amendment rights that significantly broadened public access to the judicial system, including the right for the public to witness jury selection and preliminary hearings.
Justice in Plain Sight is a unique story that, for the first time, details two improbable journeys to the Supreme Court in which the stakes were as high as they could possibly be (and still are): the public’s trust in its own government.
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→ Cynthia Chris, The Indecent Screen: Regulating Television in the Twenty-First Century ( Rutgers University Press, January 7, 2019)
Abstract: The Indecent Screen explores clashes over indecency in broadcast television among U.S.-based media advocates, television professionals, the Federal Communications Commission, and TV audiences. Cynthia Chris focuses on the decency debates during an approximately twenty-year period since the Telecommunications Act of 1996, which in many ways restructured the media environment. Simultaneously, ever increasing channel capacity, new forms of distribution, and time-shifting (in the form of streaming and on-demand viewing options) radically changed how, when, and what we watch. But instead of these innovations quelling concerns that TV networks were too often transmitting indecent material that was accessible to children, complaints about indecency skyrocketed soon after the turn of the century. Chris demonstrates that these clashes are significant battles over the role of family, the role of government, and the value of free speech in our lives, arguing that an uncensored media is so imperative to the public good that we can, and must, endure the occasional indecent screen.
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- Timothy K. Kuhner & Eugene Mazo, editors, Democracy by the People: Reforming Campaign Finance in America (Cambridge University Press, September 30, 2018)
- Eric P. Robinson, Reckless Disregard: St. Amant v. Thompson and the Transformation of Libel Law (LSU Press, December 12, 2018)
- Carmen Maye, Roy L. Moore & Erik L. Collins, Advertising and Public Relations Law (Routledge, 3rd ed, February 3, 2019)
- Tim Davenport & David Walters, editors, The Selected Works of Eugene V. Debs, Vol. I: Railway Populist, 1877-1896 (Haymarket Books, January 1, 2019)
- Larry Dane Brimmer, Blacklisted!: Hollywood, the Cold War, and the First Amendment (Calkins Creek, October 9, 2018)
Podcast: Laura Handman — Exploring threats to a free press
What are the greatest threats to a free press in America, and how have they changed in recent years?
On this episode of So to Speak, Nicco Perrino speaks with Laura R. Handman, who is a partner at Davis Wright Tremaine and a co-chair of the firm’s appellate practice. For 30 years, she has worked on free press issues ranging from defamation to reporter’s privilege. Her media clients include National Public Radio, Atlantic Media, Dow Jones, The Economist, Amazon, Bloomberg, and many more.
Podcast: Marc Randazza on potential exceptions to the First Amendment
Ken White and guest Marc Randazza examine the question of whether the government can continually come to the Supreme Court with potential exceptions to the First Amendment.
— Make No Law Podcast Series: Crush (April 12, 2018)
Podcast discusses medieval freethinking and freethinkers
- Clear & Present Danger Podcast Series: Episode 7: Expert Opinion: Peter Adamson
In expert opinion episode, Jacob Mchangama talks with Peter Adamson, who is a professor of philosophy at Ludwig Maximilian University of Munich and host of the podcast “History of Philosophy Without Any Gaps.”
We’ll discuss medieval freethinking and freethinkers from both the Islamic world and the Latin West. Where was the soil most fertile for medieval freethinking? What was the impact of Muslim philosophers like Avicenna and Averroes on European thought? And finally, who makes Peter’s list of the top three boldest European medieval freethinkers?
Professor Peter Adamson has released over 300 podcast episodes on the history of philosophy, written several books, and published numerous papers on medieval and ancient philosophy. He holds a joint appointment with the Ludwig Maximilian University of Munich and King’s College London.
Ten New or Forthcoming Scholarly Articles
→ Albert W. Alschuler, Laurence H. Tribe, Norman L. Eisen & Richard W. Painter, Why Limits on Contributions to Super PACS Should Survive Citizens United, Fordham Law Review (2018)
- Kenneth Lasson, The Decline of Free Speech on the Postmodern Campus: The Troubling Evolution of the Heckler’s Veto, Quinnipiac Law Review (forthcoming 2018)
- Rachel VanLandingham, The First Amendment in Camouflage: Rethinking Why We Criminalize Military Speech, Ohio State Law Journal (forthcoming 2018)
- Timothy K. Kuhner & Eugene D. Mazo, Regulating Campaign Finance through Legislative Recusal Rules, in Democracy by the People: Reforming Campaign Finance in America (2018, forthcoming)
- James Grimmelmann, Listeners’ Choices, University of Colorado Law Review (forthcoming 2018)
- Gregory Klass, The Law of Deception: A Research Agenda, University of Colorado Law Review (forthcoming 2018)
- Daniel P. Rabinowitz, United States V. Caronia: Off-Label Drug Promotion and First Amendment Balancing, Fordham Law Review (2018).
- Bryan L. Adamson, The ‘Blurred Lines’ of Marvin Gaye’s ‘Here, My Dear’: Music as a Tortious Act, Divorce Narrative and First Amendment Totem, Cardozo Arts & Entertainment Law Journal (forthcoming 2018)
- Caitlin Jokubaitis, There and Back Again: A Vindication of the Listener’s Interests in Regulating Targeted Advertising in the Internet Information Economy, Columbia Journal of Law & the Arts (2018)
- Josh Blackman, Presidential Speech, SSRN (April 14, 2018
Two New & Notable Blog Posts
- Ruthann Robson, Stormy Daniels Sues Donald Trump for Defamation, Constitutional Law Prof Blog, May 2, 2018
- Eugene Volokh, ‘Freedom of the Press’ and Non-Professional-Media Speakers: Why It Matters, The Volokh Conspiracy (Reason.com), May 2, 2018′
In the News: ACLU sues SEPTA on ad policy
- Jim Saksa, ACLU sues SEPTA, claiming ad policy violates First Amendment, WHYY, May 2, 2018
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- Kathryn Moody, Philadelphia’s salary history ban violates First Amendment, judge says,HR Dive, May 2, 2018
2017-2018 Term: First Amendment Free Expression Cases
- Benisek v. Lamone (argument: March 27, 2018)
- National Institute of Family and Life Advocates v. Becerra (argument: March 20, 2018)
- Lozman v. City of Riviera Beach, Florida (argument: Feb. 27, 2018)
- Minnesota Voters Alliance v. Mansky (argument: Feb. 28, 2018)
- Janus v. American Federation of State, Municipal and County Employees(argument: Feb. 26, 2018)
- Masterpiece Cakeshop v. Colorado Civil Rights Commission (argument: Dec. 5, 2017)
Pending: Cert. Petitions
- Contest Promotions, LLC., v. City & County of San Francisco
- Holmes v. Federal Election Commission
- Flanigan’s Enterprise, Inc. v. City of Sandy Springs
- Nationwide Biweekly Administration, Inc., et al v. Perez
- CTIA v. City of Berkeley
- Harris v. Cooper
- A Woman’s Friend Pregnancy Resource Clinic v. Becerra
- Livingwell Medical Clinic, Inc. v. Becerra
- Berninger v. Federal Communications Commission
- Walker v. N.Y.C. Dep’t of Educ. et al.
- Shepard v. Florida Judicial Qualifications Commission
- Morris v. Texas (dismissed for want of jurisdiction)
- Connecticut v. Baccala
- Tobinick v. Novella
- Muccio v. Minnesota
- Elonis v. United States
- 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
- MasTec Advanced Technologies v. National Labor Relations Board ((1) Whether, under NLRB v. Local Union No. 1229, International Brotherhood of Electrical Workers (Jefferson Standard), an employer may discharge an employee for his or her disloyalty when that employee makes disparaging and disloyal public statements about the employer’s only customer; and (2) whether, in such cases, the employee’s disloyalty is measured under an objective or subjective standard.)
Last Scheduled FAN # 188: UW law profs release letter re applicable law governing security fees on college campuses
Next Scheduled FAN # 190: Wednesday, May 9, 2018