FAN 199.8 (First Amendment News) Now Out — “The Coddling of the American Mind” by Greg Lukianoff & Jonathan Haidt

Co-authored by FIRE President and CEO Greg Lukianoff and New York University professor Jonathan Haidt, the book is a timely investigation into the new “safety culture” on campus and the dangers it poses to free speech, mental health, education, and, ultimately, democracy.

Description: Something has been going wrong on many college campuses in the last few years. Speakers are shouted down. Students and professors say they are walking on eggshells and are afraid to speak honestly. Rates of anxiety, depression, and suicide are rising—on campus as well as nationally. How did this happen?

First Amendment expert Greg Lukianoff and social psychologist Jonathan Haidt show how the new problems on campus have their origins in three terrible ideas that have become increasingly woven into American childhood and education: What doesn’t kill you makes you weaker; always trust your feelings; and life is a battle between good people and evil people. These three Great Untruths contradict basic psychological principles about well-being and ancient wisdom from many cultures.  Embracing these untruths—and the resulting culture of safetyism—interferes with young people’s social, emotional, and intellectual development. It makes it harder for them to become autonomous adults who are able to navigate the bumpy road of life.

Greg Lukianoff

Lukianoff and Haidt investigate the many social trends that have intersected to promote the spread of these untruths. They explore changes in childhood such as the rise of fearful parenting, the decline of unsupervised, child-directed play, and the new world of social media that has engulfed teenagers in the last decade. They examine changes on campus, including the corporatization of universities and the emergence of new ideas about identity and justice. They situate the conflicts on campus within the context of America’s rapidly rising political polarization and dysfunction.

Jonathan Haidt (credit: Dartmouth Review)

This is a book for anyone who is confused by what is happening on college campuses today, or has children, or is concerned about the growing inability of Americans to live, work, and cooperate across party lines.

Early Reviews:

  • “[A] disturbing and comprehensive analysis of recent campus trends. … Lukianoff and Haidt notice something unprecedented and … frightening … .” — The New York Times Book Review
  • “Their advice is sound. Their book is excellent. Liberal parents, in particular, should read it.” — Financial Times
  • “The speed with which campus life has changed for the worse is one of the most important points made by Greg Lukianoff and Jonathan Haidt in this important if disturbing book.” — The Times
  • “Rising intolerance for opposing viewpoints is a challenge not only on college campuses but also in our national political discourse. The future of our democracy requires us to understand what’s happening and why — so that we can find solutions and take action. Reading ‘The Coddling of the American Mind’ is a great place to start.” — Michael Bloomberg, founder of Bloomberg LP and Bloomberg Philanthropies, and 108th mayor of New York City

 Podcast — Nico Perrino interviews Greg Lukianoff re the book: go here

—- On Judge Kavanaugh & Campaign Finance Laws —-

Professor Richard Hasen (credit: Zócalo Public Square)

“By the time President Donald Trump runs for re-election in 2020, he might be able to accept unlimited campaign contributions to support his bid, thanks to his nomination of Judge Brett Kavanaugh to the United States Supreme Court. Documents released ahead of Kavanaugh’s confirmation hearings this week that date from his time in George W. Bush’s White House reveal that the judge just might be ready to strike down what’s left of federal law limiting contributions to candidates, as a First Amendment violation. There are two cases heading to the Supreme Court that would allow him to do just that.”

“As court watchers are well aware, the Supreme Court has been chipping away at campaign finance limits for some years now. In the 2010 case of Citizens United v. Federal Election Commission, the Supreme Court held that corporations have a First Amendment right to spend unlimited sums to support or oppose candidates for office if their payments are made independent of candidates’ campaigns. And in a much less famous but equally important 2014 case, McCutcheon v. Federal Election Commission, the same five-justice majority who decided Citizens United made it harder for courts to sustain the constitutionality of laws—aimed at preventing corruption and its appearance—that limit the amount of money that individuals can contribute directly to candidates. As I explained in Slate when Chief Justice Roberts wrote the majority opinion, McCutcheon was a “subtly awful decision” that was also vintage Roberts: It subtly undermined old precedents to set the stage for their eventual overruling.”

“. . . . If, as expected, Judge Brett Kavanaugh joins the court, he could well push it to move more quickly in a way that could eventually cause the downfall of the federal law that limits an individual to contributing no more than $2,700 per election to a candidate for federal office. Kavanaugh worked in the Bush White House when it was looking at the McCain-Feingold law, which Bush eventually signed even while expressing constitutional reservations about parts of it in a signing statement.”

Recently released documents from the time that Kavanaugh was advising Bush on McCain-Feingold show a person seriously skeptical of campaign finance laws’ constitutionality. Kavanaugh expressed deep misgivings about laws that let outside groups spend unlimited sums in elections while limiting how much candidates and parties can raise to respond to such ads. He told another adviser that he saw “serious” First Amendment problems with capping what people can contribute to candidates, adding that “it is possible my 1A views are even purer than yours.” He also noted that while “very few people” thought contribution limits to candidates are unconstitutional, ‘I for one tend to think those limits have constitutional problems.'”

“. . . . Right now pending before the court is a cert petition asking the Supreme Court to review Montana’s campaign contribution limits. The issue in the 9th Circuit case of Lair v. Motl may seem a bit esoteric; it concerns how much evidence of corruption a state must produce to support a campaign contribution limit. But make no mistake: The Lair case, brought by Citizens United brainchild Jim Bopp, builds upon Chief Justice Roberts’ McCutcheon decision to argue for a standard that would lead courts to strike down virtually all contribution limits.”

“The court is also considering petition from opponents of city-level campaign contribution limits in Austin, Texas. Although a 5th Circuit panel upheld Austin’s limits in Zimmerman v. City of Austin, newly confirmed Judge Jim Ho wrote a strong dissent from the entire 5th Circuit’s decision not to rehear the case. Ho, a former clerk of campaign finance law opponent Justice Clarence Thomas, issued a screed arguing that all campaign finance laws violate the First Amendment and people who don’t like big money in politics should simply shrink the size of government so the government doesn’t have a lot of goodies to give away. “

“Neither Lair nor Zimmerman directly call the federal $2,700 campaign finance limit into question, but either or both cases could be the vehicle to create a precedent that would compel federal courts to strike down the $2,700 limit. It could even happen before the 2020 election. And because this is a constitutional ruling, there would be precious little that Congress could do about it (not that Mitch McConnell, who has helped engineer these events, from supporting the relevant lawsuits to blocking Merrick Garland and shoving Kavanaugh through the Senate without a full document release, would want to do anything but pop open a bottle of Champagne)….”

Can Free Speech Be Progressive? — The Dialogue Continues

Professor Michael Seidman (credit: Book TV)

Professor Michael Seidan’s essay, “Can Free Speech Be Progressive?,” has yet to appear in the Columbia Law Review. Even so, it continues to garner interest (450+ downlaods on SSRN).  Following an online symposium on the essay hosted by First Amendment Watch and First Amendment News comes an upcmoing event on the essay hosted by the Cato Institutute in Washington D.C.

→ Date & Time: September 11, 2018 12:00 p.m. to 1:30 p.m. Hayek Auditorium, Cato Institute

Featuring Louis Michael Seidman, Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center, Robert F. Bauer, Professor of Practice and Distinguished Scholar in Residence, New York University School of Law, and Ronald K. L. Collins, Harold S. Shefelman Scholar, University of Washington School of Law.

→ Moderated by John Samples, Vice President, Cato Institute

Descrition: For much of the 21st century, those who identified themselves as left of center were the strongest proponents of freedom of speech. They believed in the principle, and they thought that free speech benefited civil rights and labor activists—not to mention radicals seeking fundamental change. Conservatives, they thought, would always oppose free speech because of its threat to the status quo. Beginning in the late 1960s, some spoke of free speech as “repressive tolerance” that precluded radical changes. Later, as courts connected free speech to campaign finance, some on the left argued that the First Amendment served corporate interests, not emancipation of the oppressed. Professor Michael Seidman has renewed this debate with a provocative paper denying that free speech in the American context can be progressive. Please join us for an intriguing debate about the future of free speech, a debate that matters for everyone at all points on the political spectrum.

You can watch it live online at and join the conversation on Twitter using #Cato1A.

_______________New Podcast_________________

We enter the early modern age with an expert opinion featuring Teresa Bejan, associate professor at Oriel College, Oxford University and author of “Mere Civility: Disagreement and the Limits of Toleration.” In this episode, Jacob and Teresa will discuss political thought on tolerance and the limits of religious speech in early modern England and colonial America.

Professor Teresa Bejan

The episode investigates the writings of intellectual rock stars — John Milton,  Thomas Hobbes, and John Locke and the less famous but hugely relevant Roger Williams.

Among the topics discussed are: Milton’s “Areopagitica” Early colonial religious “hate speech” laws Why Hobbes found “the mere fact of disagreement offensive” The origin, development, and limits of Lockean tolerance Williams’s combination of fundamentalist evangelical intolerance and free speech fundamentalism Why political theory and practice of the 17th century is relevant to modern day controversies on free speech.

Bejan is an Associate Professor of Political Theory in the Department of Politics and International Relations at the University of Oxford and a Fellow of Oriel College.

_______________First Amendment Teachers’ Guides_________________

Over at First Amendment Watch they’ve posted several First Amendment teachers’ guides:

First Amendment Watch will offer a series of Teacher Guides to help educators both at a high school and college level teach important First Amendment cases and concepts. The guides will also support teaching First Amendment history and the defense of a free press by James Madison and other writers throughout history. This is critical at a time when few Americans can name the five freedoms guaranteed by the First Amendment according to the most recent “State of the First Amendment” survey by the Freedom Forum Institute.

_______________New Article_________________

Abstract — This Note assesses First Amendment freedom of speech claims with regard to online civil rights testing. Transactions that have conventionally occurred in person are now more often completed online, and providers transacting online have been increasingly using algo­rithms that synthe­size users’ data. While these algorithms are helpful tools, they may also be yielding discriminatory results, whether inten­tionally or unintentionally.

In order to test whether such algorithms are discriminating, civil rights testers and researchers have developed various online auditing methods. Two methods in particular, the “sock puppet” audit and the “scraping” audit, have been considered especially viable in de­tecting discrimination. In a sock puppet audit, a tester acts as different bona fide patrons of various demographic backgrounds to test whether an algorithm returns disparate results. In a “scraping” audit, the tester creates bots that act as different individuals and then issue repeated queries to an algorithm and record the various responses received.

While these methods are promising, they currently violate many online providers’ terms of service. Further, due to judicial interpretations of the Computer Fraud and Abuse Act (CFAA) as proscribing violations of a web­site’s terms of service, engaging in these testing methods could give rise to criminal liability.

This Note argues that, in light of precedent related to protected conduct, false speech, investigative journalism, and the tradition of testers in civil rights enforcement, the First Amendment’s protections can and should extend to civil rights testing. Therefore, the CFAA, inso­far as it is applied to civil rights testers engaging in online testing activity, infringes upon the First Amendment by criminalizing constitutionally protected conduct.

Last FAN # 199.7ACLU Targets Panhandling Laws Across the Nation

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