FAN 194.10 (First Amendment News) Richard Delgado Responds to Michael Seidman’s “Can Free Speech Be Progressive?”

  • News item: Adam Liptak, How Conservatives Weaponized the First Amendment, New York Times, June 30, 2018
  • Forthcoming: On Thursday, July 5th, FAN will post Wendy Kaminer’s latest reply to David Cole re the ACLU free speech controversy.  


Prof. Richard Delgado (credit: Seattle University)

Unlike other areas of law that have greatly benefited from the realist revolution of the last century, First Amendment doctrine proceeds as though the realists and critics had never existed. No wonder it resists balancing, sociological jurisprudence, perspective-changing, and any of the other tools of critical thought that have enabled progress in dozens of other areas, including family law, torts, consumer protection, and environmental protection. Richard Delgado

The online dialogue continues over at First Amendment Watch with today’s posting of Professor Richard Delgado’s response to Professor Michael Seidman’s “Can Free Speech be Progressive?

Additional posts will continue tomrrow:

Previous Responses 


2017-2018 Term: First Amendment Free Expression Cases

F ive Cases Decided* 

  1. National Institute of Family and Life Advocates v. Becerra
  2. Lozman v. City of Riviera Beach, Florida
  3. Minnesota Voters Alliance
  4. Janus v. American Federation of State, Municipal and County Employees
  5. National Institute of Family and Life Advocates v. Becerra

*   Masterpiece Cakeshop v. Colorado Civil Rights Commission (First Amendment Free Exercise holding)

*   Benisek v. Lamone (Because the balance of equities and the public interest tilt against the preliminary injunction motion of plaintiffs claiming that a Maryland congressional district was gerrymandered to retaliate against them for their political views, the district court did not abuse its discretion in denying the motion.)

Vacated & Remanded 

  1.  A Woman’s Friend Pregnancy Resource Clinic v. Becerra (vacated and case remanded for further consideration in light of National Institute of Family and Life Advocates v. Becerra)
  2. Livingwell Medical Clinic, Inc. v. Becerra (vacated and case remanded for further consideration in light of National Institute of Family and Life Advocates v. Becerra)

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. Nieves v. Bartlett
  2. Flanigan’s Enterprises, Inc. v. City of Sandy Springs
  3. Nationwide Biweekly Administration, Inc., et al v. Perez
  4. CTIA v. City of Berkeley 
  5. Harris v. Cooper
  6. 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 Case: Decided 

  • 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. — Fourth Amendment claim sustained).

Free-Speech Related Cases: Cert. Denied

  • 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?)
  • 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.)

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1 Response

  1. Brett Bellmore says:

    Again I find myself asking, was ANYBODY invited to this shindig who wasn’t favorably inclined towards progressivism, viewing liberty as only having instrumental value, and only insofar as it advances the Cause?

    Was anybody even considered for invitation, who might think that free speech isn’t progressive, and so much the worse for progressivism?

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