FAN 192 (First Amendment News) The Trend Continues: Forthcoming Book — Anthony Leaker, “Against Free Speech”

Dr. Anthony Leaker

Who is Anthony Leaker? Answer: He is a Senior Lecturer in Cultural and Critical Theory at the University of Brighton. Now this cultural critic has turned his attention to free speech. Perhaps taking his cue from Professor Steven Shiffrin (What’s Wrong with the First Amendment), Leaker’s forthcoming book, Against Free Speech (Rowman & Littlefield, November 16, 2018), may well be yet another example of the liberal flight from robust free-speech freedom.

Abstract: This book examines the renewed and vociferous defence of free speech witnessed in relation to a number of recent events, including the Charlie Hebdo massacre, the Brexit and Trump campaigns, and recent campus politics.Anthony Leaker argues that the defence of free speech has played a pivotal role in a resurgent right-wing nationalism, that it is the rallying point for a wider set of reactionary political demands, a form of aggrieved liberalism at best and patriarchal white supremacy at worst, aided by a complicit liberal centre.

By focusing on these events and situating them within the wider geopolitical context of a post-democratic, post-truth world of austerity, ongoing conflict in the Middle East, pasokification, and rising fascism, Leaker critiques the role that the defence of free speech has played in legitimising the scapegoating of oppressed minorities while deflecting attention from the egregious operations of power that have led to ever greater inequality, injustice and capitalist destruction.

This powerful book shows that free speech is in fact a myth, an ideological tool employed by those in power to sustain existing power relations.

Yesterday: Supreme Court Denies Cert. in Commercial Speech Case

The case is Contest Promotions, LLC., v. City & County of San Francisco. The issue in the case was whether the First Amendment permits a municipality to ban all signs, of any kind, advertising off-premises commercial activity, without making any showing that the ban furthers a substantial government interest in a direct, material and tailored way.

Just Launched — The FIRE Faculty Network

This from Julia Schwarz over at FIRE: “We’re excited to announce the launch of the FIRE Faculty Network, a diverse coalition of faculty interested in defending and sustaining academic freedom, free speech, and civil liberties on campus. By joining FIRE’s faculty network, you’ll receive information curated specifically for faculty, including the latest information on FIRE events, legal developments, strategies for activism, and noteworthy research and reporting related to free speech and academic freedom.”

“If you’re a faculty member, graduate student, or higher education professional interested in getting involved or staying informed on issues related to academic freedom and free speech on campus, sign up today!”

Upcoming: 2018 Faculty Conference 

“We’re also currently accepting applications to attend our 2018 FIRE Faculty Conference, taking place October 11-13 in Chicago, at Loyola University Chicago’s downtown Water Tower campus, with accommodations at the nearby Omni Hotel. We’re accepting applications on a rolling basis through July 31. Apply now to secure a spot — space is limited!”

“The conference will bring together faculty from a variety of disciplines and institutions to present research and discuss issues related to academic freedom and freedom of expression on campus. Beyond these discussions, faculty will meet peers from around the country who share an interest in defending academic freedom and promoting rigorous intellectual discourse. There is no fee to attend the conference, and those accepted will be eligible for a $750 travel stipend to assist with the costs of lodging and transportation.”

“If you have questions about the faculty network or the conference, please be in touch.”

Headline:” PETA — Texas A&M is violating First Amendment rights by blocking critics online”

KBTX-TV reports that a “ruling by a federal judge last week could be a factor in a lawsuit filed against Texas A&M University by an animal rights organization.”

“‘Like President Trump’s Twitter feed, Texas A&M University’s Facebook page is a forum open to the public,’ said PETA in a written statement to KBTX.”

“PETA has filed a federal lawsuit against A&M, challenging the school’s use of a filter on its official Facebook page. According to PETA, the filter automatically deletes visitor posts and comments if they contain words such as ‘PETA,’ ‘cruelty,’ ‘lab,’ and other terms associated with PETA’s campaign against the school’s use of dogs in research for muscular dystrophy.”

“Last week, U.S. District Judge Naomi Reice Buchwald in Manhattan ruled President Donald Trump violates the First Amendment when he blocks critics on Twitter.”

“‘A declaratory judgment should be sufficient, as no government official — including the President — is above the law, and all government officials are presumed to follow the law as has been declared,’ Judge Buchwald wrote.

Responding to the ruling, PETA says it ‘is an irrefutable message to government officials who are banning dissenting views: You need to stop. If the president of the United States can’t violate the First Amendment, it should be clear to Texas A&M officials that they can’t, either.'”

“PETA says the outcome of its lawsuit will have enormous implications for individuals and advocacy organizations that use social media in protest and public-awareness campaigns. . . .”

Montana’s Campaign Disclosure Requirements Law Upheld

This from Steven D. Schwin over at Constitutional Law Prof Blog: “The Ninth Circuit yesterday upheld Montana’s political committee reporting and disclosure requirements against First Amendment challenges by a group whose major purpose was not political advocacy. The ruling keeps these requirements on the books.”

“The case arose when the group Montanans for Community Development refrained from sending a pro-job-growth mailer that mentioned certain candidates in upcoming state elections, because it would have to comply with state political committee reporting and disclosure requirements. MCD sued, arguing that the requirements were unconstitutionally vague, that they were overbroad, and that they were unconstitutional as applied to MCD (as a group whose major purpose wasn’t political advocacy).”

“The court, in a brief and unpublished opinion, rejected these claims. . . .”

Coming June 1st — Free Speech Today Newsletter

The Free Speech Project, a grantee of The John S. and James L. Knight Foundation, studies the state of Free Speech in America, with special focus on challenges to free expression in higher education, civil society, and state legislatures.

Sanford Ungar

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 and directed by Sanford Ungar, aspires to find out and to analyze the condition of First Amendment values.  Watch this space over the weeks and months ahead.

The project’s new monthly newsletter, Free Speech Today — coming June 1 — will feature research and comment on current Free Speech issues, and also provide highlights of the project’s work to document incidents in which Free Speech has been tested or compromised in recent years.

Go here to subscribe.

New Book by Marjorie Heins

Marjorie Heins

Abstract: This collection of the best writing from the Free Expression Policy Project, or “FEPP” (2001-2017) highlights events and controversies that continue to resonate in American culture and law. Topics include:

  • loyalty oaths,
  • the Muhammad cartoons,
  •  junk science, the FCC’s censorship of “indecency” on the airwaves,
  • legislative efforts to restrict violent video games,
  • Janet Jackson’s infamous “wardrobe malfunction” at the 2004 Super Bowl,
  • the Walt Disney Company’s suppression of a Michael Moore film,
  • the “Mickey Mouse” law extending the term of copyright,
  • other copyright issues involving James Joyce, Tennessee Williams,
  • and Fantasy Baseball.

From basic questions about the meaning of the First Amendment to specific issues of art censorship, copyright, “harm to minors,” and the structure of the media industry, FEPP’s news reports and commentaries provide lively narratives along with basic grounding in the ironies and complexities of free expression politics and law.

Forthcoming Book — Bollinger & Stone, The Free Speech Century 

President Lee Bollinger

Abstract: The Supreme Court’s 1919 decision in Schenck vs. the United States is one of the most important free speech cases in American history. Written by Oliver Wendell Holmes, it is most famous for first invoking the phrase “clear and present danger.” Although the decision upheld the conviction of an individual for criticizing the draft during World War I, it also laid the foundation for our nation’s robust protection of free speech. Over time, the standard Holmes devised made freedom of speech in America a reality rather than merely an ideal.

Professor Geoffery Stone

In The Free Speech Century, two of America’s leading First Amendment scholars, Lee C. Bollinger and Geoffrey R. Stone, have gathered a group of the nation’s leading constitutional scholars —

  • Cass Sunstein,
  • Lawrence Lessig,
  • Laurence Tribe,
  • Kathleen Sullivan,
  • Catherine McKinnon,

among others–to evaluate the evolution of free speech doctrine since Schenk and to assess where it might be headed in the future. Since 1919, First Amendment jurisprudence in America has been a signal development in the history of constitutional democracies–remarkable for its level of doctrinal refinement, remarkable for its lateness in coming (in relation to the adoption of the First Amendment), and remarkable for the scope of protection it has afforded since the 1960s. Over the course of The First Amendment Century, judicial engagement with these fundamental rights has grown exponentially. We now have an elaborate set of free speech laws and norms, but as Stone and Bollinger stress, the context is always shifting. New societal threats like terrorism, and new technologies of communication continually reshape our understanding of what speech should be allowed.

Publishing on the one hundredth anniversary of the decision that laid the foundation for America’s free speech tradition, The Free Speech Century will serve as an essential resource for anyone interested in how our understanding of the First Amendment transformed over time and why it is so critical both for the United States and for the world today.

Two Other Forthcoming Books

Dr. Paul Bernal (credit: Al Jazeera)

Abstract: The Internet, Warts and All asks questions. Why are government digital policies so often out of touch and counter-productive? Why is surveillance law problematic and ineffective – and often defeated in court? Do companies like Google and Facebook really care about freedom of speech? Why are neither laws nor technology companies able to get to grips with trolling? Is ‘fake news’ something that can be ‘dealt with’? Can these issues be addressed more effectively, intelligently and appropriately in the future? To answer these questions, The Internet, Warts and All busts a number of myths and illusions about the internet – about the neutrality of algorithms, the permanence of information, the impact of surveillance, the nature of privacy and more. It shows how trolling and ‘fake news’ arise – and why current moves to deal with them are doomed to failure. It suggests a way forward – by embracing the unruly nature of the internet.

New Scholarly Article on Private Universities & First Amendment 

Professor Ben Tractenberg

AbstractThis Article questions whether private colleges and universities should act as though the First Amendmentapplies to them in the same way it constrains the policy of public colleges and universities. Specifically, the Article examines the common suggestion—by laypersons, lawyers, and scholars alike—that private universities ought to tolerate offensive, hateful, bigoted speech because the values animating FirstAmendment jurisprudence are similar to those guiding the decisions of good universities committed to free inquiry and the open exchange of ideas. It then notes that this suggestion, while commonly made, is rarely defended with much rigor or vigor.

The Article next marshals arguments in opposition to the suggestion—including evidence that some of the sort of speech protected by the First Amendment at public universities may well hinder free inquiry and inhibit the open exchange of ideas. The Article concludes with the modest claim that if policymakers and scholars want private universities to voluntarily assume onerous free speech obligations imposed by the Constitution on public universities, they should at least consider whether the benefits of such obligations truly outweigh the harms.

Clear and Present Danger podcast – Expert opinion, Christine Caldwell Ames

Our last stop in the Middle Ages is an interview with professor Christine Caldwell Ames, who is an expert on medieval heresy and inquisition in Judaism, Christianity, and Islam. The discussion highlights the similarities and differences between Christianity, Catholic and Orthodox, Judaism, and Islam when it comes to defining and policing orthodoxy.

Among the topics discussed are:

  • Was the Medieval Inquisition motivated by worldly power or religious zeal?
  • What effect did the Medieval Inquisition have on ordinary people and local communities?
  • Why has the Spanish Inquisition become so infamous?
  • Was Islamic Spain a haven of religious tolerance compared to the Latin West?
  • Are inquisitions a thing of the past or still relevant in the 21st century?

And much, much more.

Professor Ames is a department chair at the University of South Carolina, as well as the author of “Medieval Heresies: Christianity, Judaism, and Islam” and “Righteous Persecution: Inquisition, Dominicans, and Christianity in the Middle Ages.” Ames has an MA in Church History from Yale Divinity School and a Ph.D. in Medieval History from the University of Notre Dame.

You can subscribe and listen to Clear and Present Danger on iTunesGoogle PlayYouTube, TuneIn and Stitcher, or download episodes directly from SoundCloud.

New & Notable Blog Post from Richard Hasen

“[Last week]  a federal court held that President Trump’s decision to block users on Twitter violates the First Amendment. This is big news, and Eugene Volokh gives his First Amendment take here.”

Professor Richard Hasen

“But I wanted to point out an important Remedies issue. Rather than order Trump to comply with an injunction (which is immediately punishable by the power of contempt), the court instead used a declaratory judgment, simply declaring that Trump is violating the law. “Finally, we consider what form of relief should be awarded, as plaintiffs seek both declaratory relief and injunctive relief. While we reject defendants’ categorical assertion that injunctive relief cannot ever be awarded against the President, we nonetheless conclude that it is unnecessary to enter that legal thicket at this time. A declaratory judgment should be sufficient, as no government official — including the President — is above the law, and all government officials are presumed to follow the law as has been declared.”

“There’s a more extensive discussion near the end of the opinion. After noting a dispute over whether a court can issue an injunction against the President (there’s no doubt it could, the court says), it adds:”

Accordingly, though we conclude that injunctive relief may be awarded in this case — at minimum, against Scavino — we decline to do so at this time because declaratory relief is likely to achieve the same purpose. The Supreme Court has directed that we should “assume it is substantially likely that the President and other executive . . . officials would abide by an authoritative interpretation of [a] . . . constitutional provision,” Franklin, 505 U.S. at 803 (plurality opinion); see Utah v. Evans, 536 U.S. at 464 (citing Franklin, 505 U.S. at 803 (plurality opinion)); see also Allco Fin. Ltd. v. Klee, 861 F.3d 82, 96 (2d Cir. 2017); Made in the USA, 242 F.3d at 1310; Swan, 100 F.3d at 980; L.A. Cty. Bar Ass’n v. Eu, 979 F.2d 697, 701 (9th Cir. 1992) (“Were this court to issue the requested declaration, we must assume that it is substantially likely that [government officials] . . . would abide by our authoritative determination.”), and there is simply no reason to depart from this assumption at this time. Declaratory judgment is appropriate under the factors that the Second Circuit directs us to consider, see Dow Jones & Co. v. Harrods Ltd., 346 F.3d 357, 359-60 (2d Cir. 2003), and a declaration will therefore issue: the blocking of the individual plaintiffs from the @realDonaldTrump account because of their expressed political views violates the First Amendment. “It is emphatically the province and duty of the judicial department to say what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), and we have held that the President’s blocking of the individual plaintiffs is unconstitutional under the First Amendment. Because no government official is above the law and because all government officials are presumed to follow the law once the judiciary has said what the law is, we must assume that the President and Scavino will remedy the blocking we have held to be unconstitutional.

“The court is right that ordinarily a declaratory judgment is as good as an injunction. It is implicitly coercive, and can be followed up by an injunction if necessary (note the “at this time” language in the court opinion). It is a “myth” that declaratory judgments are milder, as Sam Bray argues. And it made sense here for the court to piggy-back off that myth. . . . ”

“If Trump doesn’t comply, then we get into dicier territory, where an angrier judge can order Trump to comply and we will see what happens (as the President likes to say). Of course, this could all be mooted if the Second Circuit reverses on the merits on appeal. . . .”

News, Editorials, Op-eds & Blog Posts

  1. Federal Judge Allows Researchers’ First Amendment Challenge to CFAA’s “Access” Provision to Move Forward, JD Supra, May 29, 2018
  2. Jack Holmes, ABC Canceling Roseanne Is Not a First Amendment Issue, Esquire, May 29, 2018
  3. Dahleen Glanton, In new national anthem policy, the NFL tramples on First Amendment values, Chicago Tribune, May 28, 2018
  4. Lata Nott,  These Two States Are Pushing Laws To Criminalize Some Protests, First Amendment Watch, May 25, 2018
  5. Eugene Volokh, Tavis Smiley Libel Claims Against PBS Thrown Out, The Volokh Conspiracy, May 24, 2018

2017-2018 Term: First Amendment Free Expression Cases

Cert. Granted & Cases Argued 

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

Pending: Cert. Petitions 

  1. Flanigan’s Enterprise, Inc. v. City of Sandy Springs
  2. Nationwide Biweekly Administration, Inc., et al v. Perez
  3. CTIA v. City of Berkeley 
  4. Harris v. Cooper 
  5. A Woman’s Friend Pregnancy Resource Clinic v. Becerra
  6. Livingwell Medical Clinic, Inc. v. Becerra
  7. Berninger v. Federal Communications Commission

Review Denied

  1. Contest Promotions, LLC., v. City & County of San Francisco
  2. Holmes v. Federal Election Commission
  3. Walker v. N.Y.C. Dep’t of Educ. et al.
  4. Shepard v. Florida Judicial Qualifications Commission 
  5. Morris v. Texas (dismissed for want of jurisdiction)
  6. Connecticut v. Baccala
  7. Tobinick v. Novella
  8. Muccio v. Minnesota
  9. Elonis v. United States
  10. 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 # 191: Robotica” — First Book on Speech Rights & Artificial Intelligence Published

Next Scheduled FAN # 193: Wednesday, June 6, 2018

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