Author: Ronald K.L. Collins

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FAN 162 (First Amendment News) Online First Amendment Encyclopedia Launched

Given our increasingly polarized society, it’s important to remember what should unite us: respect for freedom of speech, press, religion, and the right to assemble and petition. — Ken Paulson (Sept. 14, 2017)

Dean Ken Paulson (credit: Bruce Guthrie)

It’s online now: The First Amendment Encyclopedia. Among other things, it is a impressive collection of more than 1,500 articles on First Amendment topics, court cases, and history. The online encyclopedia was culled and updated from the two-volume Encyclopedia of The First Amendment edited by John R. Vile, David L. Hudson, Jr. & David Schultz.

Two of the three original editors of the volumes — John Vile and David Hudson — spent the past several months reviewing and updating entries and adding new ones.

This online treasure trove of information was originally published by Congressional Quarterly in 2009 and listed for $355.00. The online encyclopedia (now free of charge) comprehensively examines the political, historical, and cultural significance and development of freedom of religion, freedom of speech, freedom of the press, the right to peaceably assemble, and the right to petition the government.

 The rights to the Encyclopedia were purchased by Dean Ken Paulson of Middle Tennessee State University.

John Seigenthaler (1927-2014)

“We’ve found the now out-of-print two-volume edition,” said Paulson, “to be an extraordinary resource, so we purchased it, digitized it and updated the content.  It’s a remarkable resource for those interested in First Amendment freedoms and it’s written in a style that makes it useful to both students and scholars.”

“The encyclopedia,” he added, “is part of an ongoing expansion of the Seigenthaler Chair of Excellence in First Amendment Studies at Middle Tennessee State Univeristy. The chair honors John Seigenthaler and his lifelong commitment to the First Amendment. Expanded programing and the revitalization of the website are among the steps we’re taking to address John’s lifelong goal of preserving and protecting the First Amendment through education and information.”

Deborah Fisher at press conference

“This is a living, breathing project that will continue to grow in a way that promotes awareness and understanding of the First Amendment and its role in American history,” said Deborah Fisher, director of the Seigenthaler Chair of Excellence.

 Video of press conference here

 Disclosure: Many years ago Ken Paulson hired me to work at the First Amendment Center.

→ Related Resource: FIRE’s First Amendment Online Library

On Compelled Artistic Expression: Judge Breyer circa 1988

Re: Masterpiece Cakeshop v. Colorado Civil Rights Commission

If you want to get a sense of First Amendment law and compelled artistic expression, a good case to consult is Redgrave v. Boston Symphony Orchestra, 855 F.2d 888 (1st Cir. en banc, 1988).

First Circuit Judge Stephen Breyer (C-SPAN)

The case involved actress Vanessa Redgrave who “brought suit against the Boston Symphony Orchestra (BSO) for cancelling a contract for Redgrave’s appearance as narrator in a performance of Stravinsky’s Oedipus Rex. The cancellation occurred in the wake of protests over Redgrave’s participation because of her support of the Palestine Liberation Organization. She sought recovery both for breach of contract and for violation of her civil rights under [a Massachusetts civil rights law.”

Writing for the Court sitting en banc Judge Frank Coffin declared:

  • “Protection for free expression in the arts should be particularly strong when asserted against a state effort to compel expression.”
  • Judge Coffin then added: “We see no reason why less protection should be provided where the artist refuses to perform; indeed, silence tradi- tionally has been more sacrosanct than affirmative expression.”
  • The court was “unable to find any case, involving the arts or otherwise, in which a state has been allowed to compel expression,” and observed that doing so would be “completely unprecedented.”
  • “All three groups indicated, in tones ranging from strong suggestion to outright certainty, a view that the BSO should not be held liable under the [state civil rights law] for exercising its free speech right not to perform.”

Judge Stephen Breyer was one of the judges who joined Judge Coffin’s opinion.

See Amicus brief of First Amendent Lawyers Association in Masterpiece Cakeshop v. Colorado Civil Rights Commission

ACLU Brief in Masterpiece Cakeshop Case Rejects Free Speech Claim Read More

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FAN 161 (First Amendment News) Nadine Strossen’s Next Book — “Hate: Why We Should Resist it With Free Speech, Not Censorship”

In a forthcoming book, New York Law School Professor Nadine Strossen returns to a topic she explored 27 years ago in an insightful Duke Law Journal article titled “Regulating Racist Speech on Campus: A Modest Proposal?” This spring, Oxford University Press will publish her latest book:  Hate: Why We Should Resist it With Free Speech, Not Censorship. (This book is part of the “Inalienable Rights” Series, of which University of Chicago Law Professor Geoffrey Stone is editor.)

Dedication: The book is dedicated to “Norman Dorsen and Aryeh Neier, key leaders of the ACLU during the Skokie controversy, inspiring human rights champions, and revered mentors.”

I read an advance version of the manuscript and will say this: Strossen has accomplished something remarkable in this slim book — she has ventured into a complex and heavily examined field and produced a book that is original, insightful, and clear-headed. My guess: this book will become the go-to work in the field.   

Prof. Nadine Strossen

Abstract: One of Donald Trump’s signal successes in the 2016 election campaign was his unrelenting attack on ‘political correctness.’ While the phenomenon of political correctness is certainly very polarizing, it is also a capacious and somewhat amorphous concept. At root, though, it centers on speech and expression-the idea that since certain words and arguments are hurtful to those less powerful, they should therefore be viewed with suspicion and even opprobrium.

As the eminent scholar and activist Nadine Strossen shows, this is not a new idea. Long before anyone had heard of political correctness, the term ‘hate speech’ was in broad circulation. Indeed many of the controversies swirling around alleged political correctness are really claims and counterclaims about hate speech. Some say that Black Lives Matter engages in hate speech against cops. Some say evangelicals engage in hate speech against the LGBT community. The list of aggrieved populations is long, which begs a question: when is speech truly ‘hate speech’ or, alternatively, simply a cherished right protected by the Constitution?

In this book Strossen dispels the many misunderstandings that have clouded the perpetual debates about this topic, including the equally erroneous assertions that it is either absolutely unprotected or absolutely protected. She explains the more nuanced approach that U.S. law actually embodies: allowing hateful or discriminatory speech to be outlawed in many situations, including when it directly causes specific imminent serious harm; but not empowering government to punish such speech solely because its message is disfavored, disturbing, or feared to possibly contribute to some harm.

Prof. Geoffery Stone (series editor)

Strossen shows that such principles have been especially important for sheltering dissenting views, minority speakers, and advocates of equal rights causes. Conversely, she shows that the “hate speech” laws in many other countries, including those comparable to the U.S., have punished and chilled vital speech about public issues, leading many human rights activists in those countries and in international agencies to criticize those laws and to advocate the U.S. approach: counterspeech and other non-censorial alternatives, including strong enforcement of anti-discrimination laws. Beyond the constitutional arguments, Strossen makes a compelling, evidence-rich case that the “more speech” approach is more effective than censorship in countering the harms that “hate speech” is feared to cause: discrimination, violence, and psychic injuries.

→  This from Professor Stone’s Introduction:In this work, Strossen stakes out a bold and important claim about how best to protect both equality and freedom. Anyone who wants to advocate for ‘hate speech’ laws and policies in the future now has the “Devil’s Advocate” right at hand. No one can address this issue in the foreseeable future without taking on this formidable and compelling analysis. It lays the foundation for all debates on this issue for years to come.”

TABLE OF CONTENTS

Acknowledgements

Editor’s Note

Essential Concepts 

Introduction

Chapter 1: Overview

Chapter 2: “Hate Speech” Laws Violate Fundamental Free Speech and Equality Principles

Chapter 3: When “Hate Speech” is Protected and When it is Punishable

Chapter 4: Because of Their Intractable Vagueness and Overbreadth, “Hate Speech” Laws Undermine Free Speech and Equality

Chapter 5: Is it Possible to Draft a “Hate Speech” Law That is Not Unduly Vague or Overbroad?

Chapter 6: Does Constitutionally Protected “Hate Speech” Actually Cause the Feared Harms?

Chapter 7: “Hate Speech” Laws Are at Best Ineffective and at Worst Counterproductive

Chapter 8: Non-Censorial Methods Effectively Curb the Potential Harms of  Constitutionally Protected “Hate Speech”

Chapter 9: Conclusion: Looking Back – and Forward

Corn-Revere files Amicus Brief in Masterpiece Cakeshop Read More

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FAN 160.1 (First Amendment News) Ballard Spahr and Levine Sullivan Koch & Schulz to Merge

Press ReleaseAm Law 100 firm Ballard Spahr and Levine Sullivan Koch & Schulz (LSKS)—the preeminent First Amendment and media law boutique in the United States—announced today that they have agreed to merge effective October 1, 2017. The powerhouse combination, which will retain the name Ballard Spahr, brings together two nationally renowned media law practices and creates a team that represents the biggest and most prominent names in the industry.

All 25 of LSKS’s lawyers, including all four of its name partners—Lee Levine, Michael D. Sullivan, Elizabeth C. Koch, and David A. Schulz—will join Ballard Spahr in its Washington, D.C., New York, Philadelphia, and Denver offices. LSKS is well known for its deep bench of top-tier First Amendment attorneys. Its lawyers, including Mr. Levine—who has been described in Chambers USA as “the greatest First Amendment attorney in the United States”—have argued landmark cases before the U.S. Supreme Court and in state and federal courts across the country.

Mark S. Stewart (Ballard Spahr) 

“We have made one outstanding addition after another to our Media and Entertainment Law Group—including Practice Leaders David Bodney and Chuck Tobin, who are recognized as among the very best in the business,” said Ballard Spahr Chair Mark Stewart. “With the arrival of LSKS, we will have one of the largest practices of its kind in the country. The LSKS lawyers are terrific people whose dedication to this critically important work mirrors ours. It is an exciting development for both firms.”

Media attorneys at Ballard Spahr and LSKS represent and counsel clients across platforms and industry sectors—news, entertainment, sports, publishing, advertising, and advocacy. They defend media clients in defamation, privacy, and First Amendment litigation; prosecute actions to secure open government and public access; defend journalists against civil, criminal, and grand jury subpoenas; advise reporters in their newsgathering; provide prepublication and prebroadcast counseling to a wide array of media; and help clients protect their intellectual property rights.

Jay Ward Brown (LSKS)

LSKS has been at the vanguard in representing the media in many of its most significant and consequential First Amendment cases in recent years. Last month, the firm achieved dismissal in federal court of a defamation suit brought against The New York Times by former vice presidential candidate Sarah Palin. LSKS also helped the Associated Press obtain the release of sealed documents in the Bill Cosby sexual assault cases; successfully defended NBCUniversal in a defamation suit brought by George Zimmerman, the man acquitted in the fatal shooting of Trayvon Martin; and succeeded in reversing a jury verdict against the estate of famed Navy SEAL Chris Kyle in a case brought by Jesse Ventura following the publication of Kyle’s best-selling book American Sniper: The Autobiography of the Most Lethal Sniper in U.S. Military History.

“We are more committed than ever to providing our clients with the strongest, most comprehensive representation possible,” said LSKS Managing Partner Jay Ward Brown. “We saw that same commitment in Ballard Spahr, and we knew that Ballard—with its practice depth and national platform —would support and strengthen our work. We share many of the same clients, and those clients have the highest regard for Ballard Spahr. Together, this team is second to none.”

‡ ‡ ‡ ‡  

 As with Levine Sullivan Koch & Schulz, Ballard Spahr will continue to host and support The First Amendment Salon.

‡ ‡ ‡ ‡ 

Ballard Spahr welcomes the following attorneys from LSKS:

  • Lee Levine
  • Michael D. Sullivan
  • Elizabeth C. Koch
  • David A. Schulz
  • Thomas B. Kelley
  • Celeste Phillips
  • Robert Penchina
  • Seth D. Berlin
  • Jay Ward Brown
  • Steven D. Zansberg
  • Michael Berry
  • Chad R. Bowman
  • Cameron Stracher
  • Ashley I. Kissinger
  • Alia L. Smith
  • Paul J. Safier
  • Elizabeth Seidlin Bernstein
  • Mara J. Gassmann
  • Dana R. Green
  • Matthew E. Kelley
  • Jeremy A. Kutner
  • Max Mishkin
  • Thomas B. Sullivan
  • Al-Amyn Sumar
  • Alexander I. Ziccardi

The LSKS merger is the second to be announced by Ballard Spahr. Last week, Ballard Spahr announced that it will join with Lindquist & Vennum—a Minneapolis-based law firm known as a leader in middle-market M&A and private equity dealmaking—effective January 1, 2018. The combination will extend Ballard Spahr’s national footprint into the Midwest, giving the firm offices in Minneapolis and Sioux Falls, SD, and an expanded presence in Denver. When the mergers are completed, Ballard Spahr will have more than 675 lawyers in 15 offices across the country.

About Ballard SpahrBallard Spahr LLP, an Am Law 100 law firm with more than 500 lawyers in 13 offices in the United States, provides a range of services in litigation, business and finance, real estate, intellectual property, and public finance. Our clients include Fortune 500 companies, financial institutions, life sciences and technology companies, health systems, investors and developers, government agencies, media companies, educational institutions, and nonprofit organizations. The firm combines a national scope of practice with strong regional market knowledge. For more information, please visit www.ballardspahr.com.

About LSKSLevine Sullivan Koch & Schulz is a national law firm dedicated to serving the legal needs of creators and providers of virtually every type of content in virtually every kind of media, both traditional and new. Its practice focuses exclusively on the field of media law, specializing in First Amendment, entertainment, and intellectual property law. With offices in Washington, D.C., New York, Philadelphia, and Denver, the firm provides counsel nationwide on defamation and privacy, access and freedom of information, content regulation, subpoena matters, and intellectual property rights.


 

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America’s Greatest Contemporary Jurist: Posner Stepping Down

This from the Chicago Tribune:

“Judge Richard A. Posner, one of the nation’s leading appellate judges, whose acerbic wit attracted an almost cultlike following within legal circles, is retiring after more than three decades with the 7th U.S. Circuit Court of Appeals in Chicago.

Posner, 78, is stepping down effective Saturday, according to a news release Friday from the 7th Circuit. He was appointed to the court by President Ronald Reagan in 1981 and served as its chief judge from 1993 to 2000.

Posner said in a statement he has written more than 3,300 opinions in his time on the bench and is “proud to have promoted a pragmatic approach to judging” as well has his view that “judicial opinions should be easy to understand and that judges should focus on the right and wrong in every case.”

→ The Complete Posner on Posner Series (2015)

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FAN 160 (First Amendment News) Latest First Amendment Salon: A Dialogue Between Geof Stone & Vince Blasi re “Sex & the Constitution”

Note: Summer schedule until September 6th when I will return to a regular Wednesday weekly schedule. 

Professors Geof Stone & Vince Blasi

This book was in some ways an accident. One day in occurred to me [that] the Supreme Court has made, what I regard, all this progress in these various areas relating to sexual freedom, over the last 60 years. (It’s was actually 50 years ago when I had that thought. . . .) I said, ‘what would the framers have thought of this?’ Not that I’m an originalist, because I’m not. I was just sort of curious. Because I really didn’t have any idea of wat they would have thought of the world we’re living in today.Geoffrey Stone 

Last month, the First Amendment Salon hosted its 14th salon, which consisted of a conversation betwwen Professors Vince Blasi and Geoffrey Stone. The dialogue, which was introduced by Lee Levine, focused on Stone’s latest book, Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century (Liveright, 2017).

A video of this rich and engaging dialogue can be found here, thanks to Nico Perino and the folks at FIRE.

The next salon will occur in New York on November 14th at 6:00 pm. It will consist of a Second Circuit reargument of the the Masses case (2nd Cir., 1917). Details forthcoming in early fall. This Salon will follow the all day conference at New York Universtiy celebrating the 100th anniversary of Judge Learned Hand’s district court opinion in that case.

“Ninth Circuit poised to resolve major free speech issue in secret proceeding”

Paul Alan Levy writing in the Consumer Law & Policy Blog notes that “[t]he United States Court of Appeals for the Ninth Circuit has issued an order signed only by the Clerk declaring that a significant free speech issue bearing on the rights of anonymous Internet users will be decided in a totally secret proceeding, involving sealed briefs, a sealed record, and without any help from would-be amici (including Public Citizen) seeking to explain the dangers posed by the proceeding.”

Paul Alan Levy of Public Citizen

“The case arises from a subpoena served by the United States on the employer-rating site Glassdoor, originally demanding identifying information about the owners of more than one hundred pseudonymous accounts that had, it appears, been used to post reviews of a particular employer whose contracting practices were subject to a federal criminal investigation. Over the past few years, Glassdoor has been one of the most aggressive companies demanding strong justification for civil subpoenas seeking to identify its users (considering how expensive legal services are, this company commitment earns it much credit in my book). Extending this approach to the criminal law context, Glassdoor refused to produce the information demanded by the grand jury subpoena, citing the First Amendment right of its users to speak anonymously.”

“In an effort to compromise, the government limited its production demand to eight specified reviewers. Glassdoor responded to that offer by proposing that it notify the users of the subpoena and provide identifying information for such of its users who were willing to be identified to the prosecutors. After the government rejected this offer, Glassdoor moved to quash the subpoena, invoking its users’ First Amendment right to speak anonymously which, Glassdoor contended, created a privilege against production of the information. At the same time, it notified its users of the subpoena, thus meeting one of the conditions of the Dendrite line of cases that it cited in its motion. Those cases rely on the First Amendment right to speak anonymously as a basis for posing procedural and substantive obstacles to civil subpoenas seeking to identify online speakers so that they can be served with process and sued for wrongful speech. Eventually, Glassdoor also invoked Bursey v. United States, a decision in which the Ninth Circuit quashed in part a grand jury subpoena directed at the process of publishing the newspaper of the Black Panther Party.”

“The entire subpoena litigation was conducted under seal, but we know some of the details because, having taken a contempt citation to secure its ability to appeal, Glassdoor next obtained the government’s stipulation for the partial unsealing of the briefs exchanges by the two sides on Glassdoor’s motion to quash. Glassdoor had appealed, and raised the possibility that parties beside itself might wish to provide the Court of Appeals with the benefit of their views of the applicable law. The trial judge granted that request; as a result the briefs supporting and opposing the Glassdoor motion to quash, as well as reply briefs both from Glassdoor and from the government, are available in the public record, as is the judge’s ruling on the motion. . . .”

[ht: Volokh Conspiracy]

Professor Ruthann Robson

Robson on New First Amendment Rulings

  • Ruthann Robson, Third Circuit: First Amendment Right to Record PoliceConstitutional Law Prof Blog, July 7, 2017 (In its opinion in Fields v. City of Philadelphia, the Third Circuit concluded that “Simply put, the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public.’  As the panel majority opinion by Judge Thomas Ambro noted, ‘Every Circuit Court of Appeals to address this issue (First, Fifth, Seventh, Ninth, and Eleventh) has held that there is a First Amendment right to record police activity in public’; the Third Circuit joined ‘this growing consensus.'”)

           → Video of oral arguments in Third Circuit 

See also: Rebecca Tushnet, Court gags on Utah’s ag-gag law (July 13, 2017)

→ Related:  Press Release: Animal Legal Defense Fund Puts Wisconsin Hunting Statute in the Cross Hairs (“Today the Animal Legal Defense Fund filed a lawsuit in federal court aiming to strike down a recently amended Wisconsin statute which bans photographing, videotaping, approaching or even “maintaining a visual or physical proximity” to a hunter. The organization argues the law unconstitutionally restricts free speech and violates the First Amendment.”)

[ht: David Keating]

National Review headline: “Republicans, Don’t Sacrifice Free Speech to Punish the Media”

Here is how Elliot Kaufman begins the above titled editorial: “You can’t call yourself a supporter of the First Amendment if you would deny the rights it guarantees to those with whom you disagree.”

Elliot Kaufman

“By a margin of over two to one, Republicans support using the courts to shut down news media outlets for “biased or inaccurate” stories, according to a recent poll from The Economist and YouGov. When asked if cracking down on the press in this manner would violate the First Amendment, a narrow majority of Republicans agreed that it does, seeming to create a contradiction. However, a further question gave them a chance to clear the air and reaffirm the primacy of principle over political expediency: “Which is more important to you?” it asked, ‘(A) Protecting freedom of the press, even if that means media outlets sometimes publish biased or inaccurate stories; (B) Punishing biased or inaccurate news media, even if that means limiting the freedom of the press; (C) Not sure.'”

“Shockingly, a full 47 percent of Republicans support “punishing biased or inaccurate news media, even if that means limiting the freedom of the press,” versus just 34 percent who support “protecting freedom of the press, even if that means media outlets sometimes publish biased or inaccurate stories.” By contrast, 59 percent of Democrats said they prioritize protecting the freedom of the press, dwarfing the 19 percent who see it the other way. On this issue, the Democrats are right. Freedom of the press is included in the Bill of Rights for two reasons: It matters, and there is perpetually an illiberal temptation to extinguish it. Republican politicians will always call CNN and the New York Times ‘biased’ and ‘inaccurate.’ . . . .”

Looking Back: 1972 | Pressmen Balk at an Impeachment Ad in The Times

Writing in the New York Times recently, David Dunlap began his story with this: “‘A Resolution to Impeach Richard M. Nixon as President of the United States,’ said the headline across a two-page political advertisement in The New York Times. It had nothing to do with Watergate. In fact, the break-in at the Democratic National Committee office in the Watergate complex — the “third-rate burglary” that ultimately doomed President Nixon — hadn’t even occurred on May 31, 1972, when the ad ran. . . .”

“Down in The Times’s basement pressroom at 229 West 43rd Street, the men who printed the newspaper were having none of it. . . . The pressmen demanded that The Times remove the ad. The management refused. Then they demanded space in the paper to express their opposition. The management refused again. By this time, the start of the press run had been delayed almost 15 minutes — a critical interval given delivery timetables that required Times trucks get to newsstands, depots, railroad stations and airports on a pinpoint schedule.”

Arthur Ochs Sulzberger, the publisher, was infuriated. . . .”

Ira Glasser responds in letter-to-editor:

“I was the head of the New York Civil Liberties Union when we represented the plaintiffs in the 1972 impeachment ad case you describe. It was the first time the government tried to use a campaign finance law to suppress criticism of an elected official.”
“The Times vigorously supported the free speech right of the citizens we represented, and we won.”

“Later, the ACLU (a corporation) itself was effectively barred by campaig

Ira Glasser

n finance law from running an ad in the Times criticizing President Nixon for his views on school integration. We sued, and again the Times vigorously supported our free speech right against restrictions in campaign finance law, and our ad was published.”

“In 2010, an organization called Citizens United, also a corporation like the ACLU, tried to broadcast a film it had made critical of Hillary Clinton, as we had years before been critical of Richard Nixon. Again, the government tried to use the campaign finance law to block the film from being shown. The Supreme Court struck that attempt down.”
“But this time the Times radically changed its position, and denounced the Court’s decision, opposing publication of the Citizens United film criticizing Clinton, a radical departure from its support of the ACLU’s ad criticizing Nixon.”
“Why the change? What happened at the Times that led it to abandon the First Amendment, upon which its own freedom of the press depends?”
Ira Glasser

The writer was executive director of the NYCLU 1970-78 and of the ACLU 1978-2001.

3 Notable Forthcoming Scholarly Articles 

Al-Amyn Sumar, Are All Prior Restraints Equal? The Constitutionality of Gag Orders Issued under the Stored Communications Act, Yale Journal of Law & Technology (Forthcoming 2017)

Al-Amyn Sumar of Levine, Sullivan, Koch & Schulz

Abstract: The First Amendment abhors no restriction on speech more than a prior restraint. A prior restraint on expression — a restriction that “forbid[s] certain communications when issued in advance of the time that such communications are to occur” — is “the most serious and the least tolerable infringement on FirstAmendment rights,” and bears a “heavy presumption” of unconstitutionality. Put simply, the prohibition on prior restraints under black letter First Amendment law is “near-absolute.”

The focus of this Essay is the source of an unexpected but important challenge to classic prior restraint doctrine: government surveillance in the digital era. Ongoing litigation about the constitutionality of the Stored Communications Act (SCA) highlights that challenge. The SCA authorizes the government both to obtain a person’s stored Internet communications from a service provider, and to seek a gag order preventing the provider from even notifying a person of that fact. In April 2016, Microsoft brought a lawsuit against the Department of Justice in federal court, alleging that gag orders issued under the SCA constitute unconstitutional prior restraints and content-based restrictions on speech. In a February 2017 decision, the court denied the government’s motion to dismiss Microsoft’s First Amendment claims and allowed the suit to proceed.

The court was right to do so, and it should ultimately invalidate the SCA’s gag-order provisions. SCA gag orders are prior restraints on speech, and the statute cannot withstand the heavy scrutiny that applies to them. However, recent decisions addressing the constitutionality of similar gag orders involving National Security Letters suggest that courts are sympathetic to the view that such orders are not “typical” prior restraints, and therefore attract a lesser standard of scrutiny. That premise appears dubious. But even granting it, the SCA poses serious constitutional problems, and it should be either invalidated and then amended or interpreted to avoid those issues. If courts are to carve out an exception allowing for prior restraints in the era of digital surveillance, that exception should be exceedingly narrow.

Martin H. Redish & Matthew Fisher, Terrorizing Advocacy and the First Amendment: Free Expression and the Fallacy of Mutual Exclusivity, Fordham Law Review (Forthcoming 2017)

Professor Martin Redish

Abstract: Recent concern about modern terrorists’ attempts to induce ideologically-driven violence has given rise to a First Amendment dilemma. Some conclude that to preserve our free speech tradition, unlawful advocacy must be protected absent the imminent danger of harm. Others argue that traditional First Amendmentprotection must be suspended in the specific context of terrorist speech to prevent potentially violent catastrophes. We seek to resolve this dilemma by recognizing a new hybrid category called “terrorizing advocacy.”

This is a type of traditionally protected public unlawful advocacy that simultaneously exhibits the unprotected pathologies of true threats. When a speaker urges a willing listener to commit violence against an intended victim who is an intended recipient of the speaker’s advocacy, the speech constitutes a blend of protected persuasive and unprotected coercive speech. We propose a new multi-factor test designed to balance these competing elements in a manner that protects unlawful advocacy when appropriate but suppresses inherently coercive threats where they dominate the expression. In this manner we have recognized an inherent duality of two types of criminal speech when to date courts and scholars have implicitly assumed the mutual exclusivity of unlawful advocacy and true threats doctrine.

Robert Yablon, Campaign Finance Reform Without Law, Iowa Law Review (forthcoming 2017)

Professor Robert Yablon

Abstract: Conventionally understood, campaign finance reform is a matter of public regulation. Reformers believe that, without adequate government intervention, wealthy individuals and entities are destined to exert outsized influence over elections and governance. Propelled by that belief, they have spent decades advocating regulatory fixes, with relatively little to show for it. Many existing regulations are watered down and easy to circumvent. Efforts to bolster them have repeatedly hit doctrinal and political roadblocks — obstacles that are more formidable today than ever before.

This Article seeks to shift campaign finance discourse toward private ordering. Because scholars and reformers have long focused on public regulation, they have largely overlooked possible private correctives. The Article maps that uncharted terrain, revealing an array of extra-legal mechanisms that at least somewhat constrain money’s electoral clout. This survey suggests that numerous private actors have incentives and capacities to implement additional extra-legal reform. The Article then sketches several potential private interventions, and it assesses the interplay between public regulation and private reform. Private reform is no silver bullet, but to ignore private ordering even as public regulation flounders makes little sense. Especially given the significant constraints on public intervention, it is vital for campaign finance scholars and reformers to look beyond the law.

New & Forthcoming Books

Abstract: From the University of California, Berkeley, to Middlebury College, institutions of higher learning increasingly find themselves on the front lines of cultural and political battles over free speech. Repeatedly, students, faculty, administrators, and politically polarizing invited guests square off against one another, assuming contrary positions on the limits of thought and expression, respect for differences, the boundaries of toleration, and protection from harm.

In Free Speech on Campus, political philosopher Sigal Ben-Porath examines the current state of the arguments, using real-world examples to explore the contexts in which conflicts erupt, as well as to assess the place of identity politics and concern with safety and dignity within them. She offers a useful framework for thinking about free-speech controversies both inside and outside the college classroom, shifting the focus away from disputes about legality and harm and toward democracy and inclusion. Ben-Porath provides readers with strategies to de-escalate tensions and negotiate highly charged debates surrounding trigger warnings, safe spaces, and speech that verges on hate. Everyone with a stake in campus controversies—professors, students, administrators, and informed members of the wider public—will find something valuable in Ben-Porath’s illuminating discussion of these crucially important issues.

Abstract: Grove Press and its house journal, The Evergreen Review, revolutionized the publishing industry and radicalized the reading habits of the “paperback generation.” In telling this story, Rebel Publisher offers a new window onto the long 1960s, from 1951, when Barney Rosset purchased the fledgling press for $3,000, to 1970, when the multimedia corporation into which he had built the company was crippled by a strike and feminist takeover. Grove Press was not only one of the entities responsible for ending censorship of the printed word in the United States but also for bringing avant-garde literature, especially drama, into the cultural mainstream. Much of this happened thanks to Rosset, whose charismatic leadership was crucial to Grove’s success. With chapters covering world literature and the Latin American boom; experimental drama such as the Theater of the Absurd, the Living Theater, and the political epics of Bertolt Brecht; pornography and obscenity, including the landmark publication of the complete work of the Marquis de Sade; revolutionary writing, featuring Rosset’s daring pursuit of the Bolivian journals of Che Guevara; and underground film, including the innovative development of the pocket filmscript, Loren Glass covers the full spectrum of Grove’s remarkable achievement as a communications center for the counterculture.

Abstract:  The overarching objective of Understanding the First Amendment is to facilitate student learning efficiency and academic success. Toward this end, it focuses upon core subject matter that is likely to be tested in a law school examination or on the bar examination. The book also provides tools that enable students to organize the course and their understanding in a way that enhances retention. The beginning of each chapter highlights key points of coverage. The end of each chapter indicates essential points to remember. The book strikes a balance between comprehensiveness and selectivity, thus providing students with assurance that they know enough, know it well, but are not overwhelmed by details that are unduly esoteric or irrelevant to their performance needs.

Abstract: This title was first published in 2000:  While there are many philosophical studies of free speech, treating censorship historically, politically, or by the medium restricted (films, press etc.), little has been written on censorship and free speech dealing with issues philosophically and approaching them from the perspective of restrictions. This book treats censorship and free speech as a problem of ideas, examining the issues as an aspect of our wider social and political lives and critically examining mainstream arguments against censorship. This unique approach takes issue with the concept of censorship as something aberrant, to examine where the limits of free speech lie in ensuring individual development and collective harmony. Examining the possibility of accepting censorship positively to serve legitimate purposes, it will be a thought-provoking challenge to prescriptive arguments for free speech.

Litigation Journal: “Chutzpah” Issue 

The forthcoming summer issue of Litigation Journal (vol. 43 #4) is devoted to the topic of “Chutzpah” and the law.  Included in the issue are the following two articles:

  • Robert Corn-Revere “’I Will Defend to the Death Your Right to Say It.’ But How? (A look at First Amendment cases and how to plead them successfully.)
  • Joel Gora, Money, Speech, and Chutzpah (The ins and outs of the decades-long battle over campaign finance limitations and free speech.)
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FAN 159 (First Amendment News) Flying Dog quits Brewers Association over censorship flap

It’s a free speech issue, but not a First Amendment one. Still, a censorship battle has been been brewing for a while and now it’s come to a head:  Flying Dog Brewery has just terminated its Brewers Association membership. And why? According to Craft Business Daily and confirmed by Jim Caruso, Flying Dog’s CEO:

Bob Pease

“When Brewers Association president Bob Pease announced plans to crack down on offensive beer labels earlier this year [see Craft Business Daily, 4-12-2017], we had a hunch (as did most people) that this new initiative would not sit well with the people at Flying Dog Brewery . . . . Flying Dog ended its relationship with the BA at the start of last month. The departure, as predicted, is in response to the BA’s recent tweak to the language in its Marketing and Advertising code [see here].

Jim Caruso (credit: Atlast Society)

In a prepared statement for Craft Business Daily,  Mr. Caruso stated: “The BA’s new Marketing and Advertising Code is nothing more than a blatant attempt to bully and intimidate craft brewers into self-censorship and to only create labels that are acceptable to the management and directors of the BA. By contrast, Flying Dog believes that consumers are intelligent enough to decide for themselves what choices are right for them: What books to read, movies to watch, music to listen to, or beers to consume (and whether or not they like the labeling).”

According to Craft Business Daily (and confirmed by Mr. Caruso):

“When Flying Dog first started barking at the BA over the announcement, Bob Pease allegedly tried to keep the relationship in tact by assuring the brewery that the BA has ‘no issue with any Flying Dog brand.’ But Bob’s claim ‘entirely missed the point,’ Jim said, and appears to have set the brewery off even more. After announcing its intention to part ways with the BA on June 1st, Flying Dog CEO Jim Caruso penned a six-page letter to Bob that made Flying Dog’s position clear: ‘On principle, Flying Dog will never contribute to, support, or in any way sanction any organization that is so averse to freedom of expression that it actively engages in any form of censorship. “Everybody finds something offensive,’ Jim continued. ‘That’s just part of life. People have the right to choose what they like and to reject what they find offensive. To us, the BA’s anti-free expression stance is offensive, and we are exercising our freedom to choose by rejecting the BA,’ Jim wrote.”

Flying Dog’s statement ended with this: “Flying Dog is contributing to the 1st Amendment Society an amount equal to double the tens of thousands of dollars it has spent on its BA membership and BA-related events annually.”

Invitation to respond 

Mr. Bob Pease, CEO of the Brewers Association, has been invited to respond to Flying Dog’s comments.

Related 

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FAN 158 (First Amendment News) 2016-2017 Term Ends: Three First Amendment Victories & cert. grant in religious cake-baker case

Today, after consideration in many conferences, the Court agreed to hear Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights CommissionThe issue in the case is whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment. The Coloroado Court of Appeals denied those First Amendment claims.

 Counsel of record for Petitioners: Jeremy D. Tedesco (cert. petition here)

2016-2017 Term: First Amendment Free Expression Opinions  

With the close of this Term, the Roberts Court has rendered opinions in 46 First Amendment free-expression cases. Notably, as indicated below, this Term the Court was unanimous in all three of its First Amendment free speech cases.

  1. Packingham v. North Carolina (2017) (8-0, per Roberts, C.J.) (opinion by Alito, J., concurring in the judgment) (striking down N.C. law prohibiting registered sex offenders access to Internet sites that permit minor children to become members or to create or maintain personal Web pages)
  2. Matal v. Tam (2017) (8-0, per Alito, J.) (with separate opinions by Kennedy, J., concurring in part & concurring in the judgment, and Thomas, J., concurring in part & concurring in the judgment) (disparagement clause of the Lanham Act violates the First Amendment’s free speech clause)
  3. Expressions Hair Design v. Schneiderman (2017) (8-0, per Roberts, C.J.) (opinion by Breyer, J., concurring in the judgment, and an opinion by Sotomayor, J., concurring in the judgment) (holding that N.Y. credit card surcharge statute regulates speech within the meaning of the First Amendment; remaded to determine whether law was valid commercial speech regulation under Central Hudson and whether the law can be upheld as a valid disclosure requirement under Zauderer).

Pending Appeals & Petitions & Related Cases

  1. Elonis v. United States
  2. Harris v. Cooper 
  3. National Institute of Family and Life Advocates v. Becerra
  4. A Woman’s Friend Pregnancy Resource Clinic v. Becerra
  5. Livingwell Medical Clinic, Inc. v. Becerra

Summary Dispositions

  1. Republican Party of Louisiana, et al. v. FEC (affirmed) (Justices Thomas & Gorsuch would note probable jurisdiction and set the case fororal argument)
  2. Independence Institute v. FEC (affirmed)

Cert. Denied

  1. Garcia v. Bloomberg
  2. Mulligan v. Nichols
  3. Alabama Democratic Conference v. Marshall
  4. Augsburg Confession
  5. Keefe v. Adams
  6. Scott v. Georgia
  7. Bondi v. Dana’s Railroad Supply
  8. Bennie v. Munn
  9. Flytenow v. Federal Aviation Administration
  10. Armstrong v. Thompson
  11. Wolfson v. Concannon
  12. Dart v. Backpage.com
  13. NCAA v. O’Bannon
  14. Mech v. School Board of Palm Beach County
  15. Williams v. Coalition for Secular Government 
  16. Pro-Football v. Blackhorse 

First Amendment Religious Expression Case: Cert. Denied

Melhorn v. Baltimore Washington Conference of United Methodist Church (Whether the ministerial exception of the First Amendment absolutely bars breach of contract and tortious conduct lawsuits in situations of illegal conduct or harm to third parties.)

Free Speech Related Cases: Review denied 

  • Doe v. Backpage.com LLC (Whether Section 230 of the Communications Decency Act, which provides that no internet service provider “shall be treated as the publisher or speaker” of internet content that was “provided by another,” precludes a civil lawsuit against a website owner and operator based on its own criminal conduct any time online content created by a third party was part of the chain of causation leading to the plaintiff’s injuries.)

First Amendment Religious Expression Case: Review Denied 

  • Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered (Whether the First Amendment to the United States Constitution provides absolute immunity for defamatory statements made in a religious setting, even if the person defamed is not a member of the religious organization and even if the truth or falsity of the defamatory statement can be adjudicated without considering or interpreting religious doctrine — applicability of the ecclesiastical abstention doctrine)

Speech & Debate Clause: Petition Denied

  • Menendez v. United States (Whether a court may consider a legislator’s motive for performing an act when deciding whether the act is protected by the speech or debate clause).

Freedom of Information Act Petition: Cert. Denied  

Roberts Court Era: Justice Kennedy’s Majority or Plurality First Amendment Free-Expreesion Opinions 

Given the talk in the news about Justice Anthony Kennedy’s possible retuirment, I thought it useful to list his free-expression First Amendment opinions published during the era of the Roberts Court:

  1. Garcetti v. Ceballos (2006) (vote: 5-4)
  2. Citizens United v. Federal Election Commission (2010) (vote: 5-4)
  3. Sorrell v. IMS Health Inc(2011) (vote: 6-3)
  4. Borough of Duryea v. Guarnieri (vote: 2011) (8-1)
  5. United States v. Alvarez (2012) (vote: 6-3)
  6. Packingham v. North Carolina (2017) (vote: 8-0)

 Notable Roberts Court Era Separate Opinions:

College fires professor over comments made on TV

This from a story by Josh Delk writing for The Hill: “Essex County College has fired adjunct professor Lisa Durden after she made racially charged comments in an interview with Tucker Carlson on Fox News, according to a new report by the Associated Press.”

Tucker Carlson & Professor Lisa Durden

“The college’s president, Anthony Munroe, announced the decision Friday, two weeks after Durden went on “Tucker Carlson Tonight” to discuss an “all-black Memorial Day celebration” hosted by a Black Lives Matter group.”

“When asked by Carlson about the event, Durden interrupted the host, saying “boo hoo hoo. You white people are angry because you couldn’t use your white privilege card to get invited” to the Black Lives Matter event.”

“‘You’re demented, actually,’ Tucker later responded to her defense.”

“Durden went on to call America a ‘racist society.'”

“According to AP, Durden was suspended with pay on June 8, two days after the interview aired, when college officials say they received complaints about her comments. After a Tuesday meeting with college officials, she was fired. . . .”

Video clip here

 Full text of statement from college president here

President Anthony E. Munroe

Excerpt from President Anthony E. Munroe’s statement: “While the adjunct who expressed her personal views in a very public setting was in no way claiming to represent the views and beliefs of the College, and does not represent the College, her employment with us and potential impact on students required our immediate review into what seemed to have become a very contentious and divisive issue. For the purpose of a fair and immediate review, the adjunct was suspended with full pay, for the remainder of the summer I session which equated to six (6) working days, pending the outcome of a fair and thorough review of the matter. The adjunct addressed the College community at an open forum on June 20th. In consideration of the College’s mission, and the impact that this matter has had on the College’s fulfillment of its mission, we cannot maintain an employment relationship with the adjunct. The College affirms its right to select employees who represent the institution appropriately and are aligned with our mission.”

FIRE’s Policy Reform department is hiring

By June 22, 2017

Free speech-minded attorneys and recent law school graduates, pay attention: FIRE is looking to add a new staff member to its Policy Reform department.

FIRE’s Policy Reform team works with college students, faculty members, administrators, and general counsels to improve their institutions’ protections for free speech and academic freedom. We help to revise unconstitutional and restrictive speech codes, enact policy statements codifying the principles underlying the First Amendment, and work in other ways to improve the campus climate for free expression. We’re now looking to add another member to our team!

Applicants can check out the full job posting before submitting their application materials.

The ideal applicant will be passionate about First Amendment law and principles, demonstrate enthusiasm for working with students, faculty members, and administrators, and possess the legal analysis, writing, and research skills that are critical to a successful career in constitutional law and civil liberties.

Chris Finan: New Director of National Coalition Against Censorship

Chris Finan

NCAC Press Release: The National Coalition Against Censorship (NCAC), an alliance of 56 national non-profit organizations, announced today that it has hired Christopher M. Finan as its next executive director.  Joan Bertin, the current executive director, is stepping down after leading the organization for 20 years.  NCAC promotes freedom of thought, inquiry and expression and opposes censorship in all its forms.

“We are indeed lucky that a free expression advocate the caliber of Chris Finan has agreed to lead the NCAC to its next chapter,” said Jon Anderson, chair of the NCAC Board of Directors and president and publisher of Simon & Schuster Children’s Publishing. “In this most challenging of times for First Amendment rights, we need someone with the experience and reputation that Chris brings to the table in protecting the rights of all Americans to express themselves as they choose.”

Finan has a long career as a free speech activist.  He is currently director of American Booksellers for Free Expression, part of the American Booksellers Association (ABA).  In 1982, he joined Media Coalition, a trade association that defends the First Amendment rights of booksellers, publishers, librarians and others who produce and distribute First Amendment-protected material.  In 1998, he became president of the American Booksellers Foundation for Free Expression.  The foundation merged with ABA in 2015.

Finan has worked closely with NCAC as a member of the board of directors and as a board chair.  In 2007, he and Bertin created NCAC’s Kids’ Right to Read Project, which supports parents, students, teachers and librarians who are fighting efforts to ban books in schools and libraries.

“I am very grateful for the opportunity to lead an organization that plays such an important role in protecting free expression.  I am also very fortunate to be succeeding Joan Bertin, who has led NCAC’s vigorous defense of free speech during a time of growing censorship pressure,” Finan said.

As examples of NCAC’s recent advocacy, Finan pointed to statements defending publishers who are pressured to censor books that some critics consider offensive, condemning the Trump administration’s attacks on the press and criticizing the Walker Art Center’s decision to dismantle a sculpture after accusations that it was “cultural appropriation.”

Joan Bertin Honored by Freedom to Read Foundation

NCAC Press Release:  Joan Bertin, the National Coalition Against Censorship’s (NCAC) longtime executive director, is a 2017 recipient of the Freedom to Read Foundation’s (FTRF) Roll of Honor Award, which recognizes individuals for outstanding contributions to safeguarding intellectual freedom and the right to read.

Joan Bertin

The FTRF, which is affiliated with the American Library Association, protects and defends the First Amendment to the Constitution and supports the right of individuals to access information. Bertin is being recognized for her efforts to provide “support, education, and direct advocacy to people facing book challenges or bans in schools and libraries.”  In announcing the award, the FTRF observes that under Bertin’s leadership, NCAC has defended hundreds of book titles across the country, helping ensure that thousands of children will continue to enjoy literary masterpieces and popular young adult novels.

Bertin said, “I am deeply honored by the award, especially for its recognition of NCAC’s contributions to the protection of the intellectual freedom rights of young people.  Books can contribute so much to kids’ intellectual and emotional development, and it has been my privilege and pleasure to protect their right to read.”

The award will be presented at the 2017 American Library Association Annual Conference during its Opening General Session on Friday, June 24, in Chicago.

New Additions to FIRE’s Online First Amendment Library

Forthcoming: Timelines on Movie Censorship and Anthony Comstock

Forthcoming Books

Professor Loren Glass, English Dept., University of Iowa

Abstract: Grove Press and its house journal, The Evergreen Review, revolutionized the publishing industry and radicalized the reading habits of the “paperback generation.” In telling this story, Rebel Publisher offers a new window onto the long 1960s, from 1951, when Barney Rosset purchased the fledgling press for $3,000, to 1970, when the multimedia corporation into which he had built the company was crippled by a strike and feminist takeover. Grove Press was not only one of the entities responsible for ending censorship of the printed word in the United States but also for bringing avant-garde literature, especially drama, into the cultural mainstream. Much of this happened thanks to Rosset, whose charismatic leadership was crucial to Grove’s success. With chapters covering world literature and the Latin American boom; experimental drama such as the Theater of the Absurd, the Living Theater, and the political epics of Bertolt Brecht; pornography and obscenity, including the landmark publication of the complete work of the Marquis de Sade; revolutionary writing, featuring Rosset’s daring pursuit of the Bolivian journals of Che Guevara; and underground film, including the innovative development of the pocket filmscript, Loren Glass covers the full spectrum of Grove’s remarkable achievement as a communications center for the counterculture.”

Related: Barney Rosset, Rosset: My Life in Publishing and How I Fought Censorship (2016)

New & Notable Blog Posts

  1. Ruthann Robson, En Banc Ninth Circuit Upholds Liquor Regulation Against First Amendment Challenge, Constitutional Law Prof Blog, June 23, 2017 (“In its en banc opinion in Retail Digital Network v. Prieto, the Ninth Circuit rejected a First Amendment challenge to a California prohibition of alcohol manufacturers and wholesalers from providing anything of value to retailers in exchange for advertising their alcohol products.”)
  2. Zach Greenberg, Supreme Court strikes down law prohibiting disparaging trademarks, affirms protection for offensive expression, FIRE, June 20, 2017

News, Op-eds, Editorials & Blog Posts

Ilya Shapiro, Even sex offenders have First Amendment rights, Washington Examiner, June 19, 2017

  1. Alex Swoyer, Islamic State flag on New Hampshire dam raises First Amendment questions in times of terrorism, Washington Times, June 25, 2017
  2. Mark Joseph Stern, Does Partisan Gerrymandering Violate the First Amendment?, Slate, June 19, 2017

Next Scheduled FAN, #159: June 14, 2017

Last Scheduled FAN, # 157Today: Senate Judiciary Committee to hold hearing on campus free speech

Last FAN, #157.1Music to their ears — The Slants win in SCOTUS: Commentaries, Podcasts & Interviews

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FAN 157.1 (First Amendment News) Music to their ears — The Slants win in SCOTUS: Commentaries, Podcasts & Interviews

Music is the best way we know how to drive social change: it overcomes social barriers in a way that mob-mentality and fear-based political rhetoric never canSimon Tam

The Slants (credit: Anthony Pidgeon/Redferns, via Associated Press)

A major First Amendment victoryNational ACLU

The far-reaching importance of this case cannot be overstatedNational Law Journal

The opinion: Matal v. Tam (June 19, 2017) (Oral Argument Transcript)

Counsel for RespondentJohn C. Connell

Coursel for PetitionerMalcolm L. Stewart (Deputy Solicitor General)

Briefs Filed in CaseParties & Amici

Video Interview: Extended Interview: The Slants’ Simon Tam (KOIN 6, June 19, 2017)

SCOTUSblog Symposium 

  1. The cacophony of trademarks is not government speech
  2.  Increasing First Amendment scrutiny of trademark law after Matal  v. Tam
  3.  Free speech comes to trademark law
  4. The First Amendment silences trademark
  5.  The Constitution prohibits government’s “happy-talk” requirement for trademark registration

FIRE: So to Speak Podcast 

Cato Podcast: The Michael Berry Show

Rolling Stone Magazine

Balkinization

Constitutional Law Prof Blog

Volokh Conspiracy

Bloomberg View

The Federalist

Forbes

Slate

In A Crowded Theater

This journey has always been much bigger than our band: it’s been about the rights of all marginalized communities to determine what’s best for ourselves.Simon Tam

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FAN 157 (First Amendment News) Today: Senate Judiciary Committee to hold hearing on campus free speech

“After a string of high-profile and sometimes violent instances of censorship this past school year, free speech on campus has become a pressing concern for many Americans,” said FIRE Legislative and Policy Director Joe Cohn. “We are pleased that the Senate Judiciary Committee is taking this issue seriously and hope this hearing will raise new awareness on Capitol Hill of the problems posed by campus censorship.”

Today, at 10:30 a.m. ET, the United States Senate Committee on the Judiciary will hold a hearing titled:

The hearing will be live streamed on the committee’s website.

Presiding: Chairman Charles Grassley

Ranking Member: Dianne Feinstein

Those testifying are:

  1. Zachary R. Wood
  2. Frederick M. Lawrence
  3. Isaac Smith
  4. Fanta Aw
  5. Eugene Volokh
  6. Richard Cohen
  7. Floyd Abrams

STATEMENT OF FLOYD ABRAMS BEFORE THE SENATE COMMITTEE ON THE JUDICIARY

June 20, 2017

Chairman Grassley and Ranking Member Feinstein: I appreciate the opportunity to appear this morning to comment on the status – or, I could say, the sad state – of freedom of speech on college campuses around the nation.

About two years ago, I gave a speech in Philadelphia at Temple University in which I tried to answer the question of what the single greatest threat to free speech was in the nation. And where it was. I concluded then, as I do now, that the locale of the threat was on our college campuses and that the nature of the threat was nothing less than the suppression of free speech on our campuses. I pointed out, as I would today, that while our problems did not approach those in many other countries around the world, that they were serious, troubling, disturbing.

That is so notwithstanding ever-increasing focus on the problem, as illustrated by this significant hearing. Put plainly, the problem arises less because of a desire of university administrators to limit speech on campus – there is some of that, but it is not the dominant cause – than the conduct of a minority of students who will simply not tolerate the expression of views which they view as socially harmful or destructive.

A critic of recent speech-destructive behavior on campus has an overstuffed menu of choices to choose to discuss. Shall I focus on Evergreen, Middlebury or Berkeley? Or Milo Yiannopoulos or Ann Coulter? On the cancellation of previously made invitations to speakers such as Christine Lagarde, the first woman to head the IMF? Or the loud and strident interruptions to speakers – former New York City Police Commissioner Ray Kelly was one of many – to the point that the speech simply could not proceed?

Let me start instead with two examples. The President of California State University Los Angeles cancelled a speech by an editor of Breitbart, the conservative publication, who was about to speak on a topic that he had entitled as “When Diversity Becomes a Problem.” The explanation for the cancellation was—this one is worth saying slowly—“the need for free exchange of ideas.” According to the president of the university, the speaker could appear (but only appear) as part of a group of people with varying viewpoints on diversity. He could not speak alone, as left-wing speakers such as Cornel West and Angela Davis had spoken at CSU, with no request, let alone requirement, that the “other” side be heard simultaneously.

And, speaking of California, just yesterday (June 19th) a complaint was filed in federal court in San Francisco on behalf of Jewish students at San Francisco State University arising in part out of the misconduct of other students who effectively shut down a speech by the Mayor of Jerusalem by the use of amplified sound and loud and virulent anti-Semitic chants. The complaint sets forth in painful and exhaustive detail the disruption and the conscious decision of the university administration to order police to stand down and allow the shouting students to shut down the event and prevent the Mayor from delivering his scheduled speech, as well as the administration’s decision not to discipline any of the students, or the student group which prevented the speech from being delivered.

Thinking of just those examples, I couldn’t help but compare them to the time when I entered Cornell University more than a few years ago. At that time, upon entrance into the university, all students were required to sign some sort of document agreeing that we could be suspended for saying just about anything on just about any topic of which the university disapproved. In fact, we were required to carry at all times some sort of identification card saying just that. And as I recall it, there really was very little controversial speech at all on campus—a real loss, I can say in retrospect—but very much the ethos of life in America on and off campus in the long ago 1950s.

In fact, in those days, what was viewed as the most dangerous threat to freedom of speech on campus was the power that wealthy and politically regressive alumni sometimes exercised on some campuses. For an artistic look at that sort of danger, have a look at an old [1942] movie called “The Male Animal,” with Henry Fonda playing the role of a professor at risk of losing his position because he read a letter to his English class from Bartolomeo Vanzetti, an anarchist convicted—quite possibly unjustly—of murder in a most celebrated trial of the 1920s. Colleges were also under siege during the McCarthy era and many behaved badly, dismissing scholars for their supposed political views.

But today there are new censors – sometimes students, sometimes with outside support — who seek to place new limits on what may be said on campus. What can one say in response to this other than to quote from the statement of the American Association of University Professors that, in the clearest language, observed that “[o]n a campus that is free and open, no idea can be banned or forbidden. No viewpoint or message may be deemed so hateful or disturbing that it may not be expressed.” Oliver Wendell Holmes, Jr. put it well, when he was a Harvard undergraduate before the Civil War and was a student editor of Harvard Magazine. “We must,” he wrote in 1859, “have every thought brought before us when we are young, and we may as well at once prepare for it.”

The on-campus crisis is not limited to disinviting speakers. Wendy Kaminer, writing in the Washington Post, described a panel she was on at Smith College that dealt with freedom of speech. At one point, Smith’s President, Kathleen McCartney, had observed, tongue in cheek, “We’re just wild and crazy, aren’t we?” When a transcript was prepared, Kaminer writes, the word “crazy” was replaced by the words “[ableist slur.”] When one her fellow panelists mentioned that the State Department had, at one time, banned the words “jihad,” “Islamist” and “caliphate”, the transcript substituted the words [“anti-Muslim/Islamophobic language.”] I know this sounds more like a script for Saturday Night Live than on-campus reality, but it’s all real. As was the predictable reality that when Ms. Kaminer turned to Huckleberry Finn and discussed Huck’s savior and the book’s leading (and, by far, most attractive figure) by name—perhaps you can recall it– she was challenged by other panelists for doing so and later accused in the Huffington Post with committing “an explicit act of racial violence”.

The problem is not unique to our country. Just as the First Amendment, which applies only to the government and thus not privately funded institutions, and what I think of as the spirit of the First Amendment, which should be taken account of in all universities, has not sufficed to prevent such speech destructive activities here, the same has been true in other nations that pride themselves on the protection of free expression. The Observer has reported on one English university that banned supposedly “racist” sombreros and native American dress; and of another where a debate on abortion was cancelled by College Censors (that’s their official name) on the ground that they wanted to protect “students’ emotional wellbeing” by “avoiding unnecessary distress, particularly for any residents who may have had an abortion.”

This sort of thinking makes this an extraordinary perilous moment with respect to free speech on campuses. It sometimes seems as if too many students, even if they are no more than a vocal minority, seem to want to see and hear only views they already hold. And to prevent others from hearing views with which they differ. On one level, this is all perfectly understandable. Justice Holmes, to whom I referred earlier, in one of his most famous opinions, long ago observed that “[i]f you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition.” But natural as that response is, as Holmes later made clear, it is contrary to the core of the First Amendment that “free trade in ideas” be protected. Yet to avoid what the Oxford censors characterized as “unnecessary distress” we have seen speech stifled time and again on campuses in our country.

I don’t mean to suggest that there are no hard cases about what should be permitted on a campus and what not. Incitements to violence are no more protected by the First Amendment on campus than anywhere else. And as the University of Chicago advised the entering class of 2020 at the same time it eloquently defended free speech on campus, “freedom of expression does not mean the freedom to harass or threaten others.”

Nor should students be condemned for feeling and speaking passionately against what they perceive to be racist speech or conduct. Indeed it is important that student activism should generally be encouraged and protected, just as criticism of that activism should be protected, just as I wish we had had far more of all of it when I was in college and that I had participated in it. The absence of such speech was a loss to me, my generation and our nation.

Most campus activism in public universities is protected by First Amendment and in private universities by internal commitments by universities to abide by First Amendment norms. We need more students, not fewer, to become involved with the public issues of the day and on campuses. Their doing so is indispensable if society is to change for the better. If students disagree with the views of a speaker, they should engage with it, picket it, even walk out on it. I do not, in that respect, agree with the criticism voiced by Fareed Zakaria, among others, of students who peacefully walked out at Notre Dame when Vice President Pence was beginning a speech there. Doing so is not only one form of First Amendment protected conduct but a long-recognized and honored one. What is unacceptable is preventing speech from occurring, not protesting it.

Have students changed? Have their views? I have read a disturbing study, by the Higher Education Research Institute at UCLA, based on surveying the views of over 141,000 full-time first year students at colleges around the country.

  • About 71% of them said that they agreed “strongly” or “somewhat” that “colleges should prohibit racist/sexist speech on campus”;
  • about 43% of them said that they agree “strongly” or “somewhat” that “colleges have the right to ban extreme speakers from campus”;
  • and only 64% said that they “strongly “or at least “somewhat” agree that “dissent is a critical component of the political process.”

Put another way, over a third of the entering students polled did not agree that dissent is a critical component of the political process.

Another study concluded that while only 12 percent of my generation (don’t ask what ages I’m talking about) think the government should be able to punish speech viewed as offensive by minority groups, around a 25% of the immediately succeeding generations thought so, and 40 percent of millennials (people 18-34) think so. I know you can read that in two ways. One is the optimistic way. The younger people are, the more unwilling they are to simply accept the existence of often outrageous, even destructive speech. The other way is to conclude that the younger a generation is, the less knowledgeable it is about (or, worse yet, unwilling to accept) the essence of the First Amendment. In that respect, another study concluded that nearly a third of college students could not identify the First Amendment as the one that even deals with freedom of speech. Maybe both are correct. But wouldn’t it be better if we all condemned racist or sexist speech but we all also knew and celebrated the freedom provided by the First Amendment, especially if we know what it says and what it means.

Of course, “extreme” speech is sometimes upsetting, sometimes painful to hear—if you choose to do so. Racist or sexist speech is harmful to the body politic and painful to those at whom it is aimed and those who listen to it. But the First Amendment is rooted in the notion that government (including the administrators of state universities) is not to be trusted to determine what is “extreme” speech, what is “sexist” speech, or the like. Or to punish it, even if they think they can define it. Former President Obama, I think, put it well when he said this: “I’ve heard of some college campuses where they don’t want to have a guest speaker who is too conservative or they don’t want to read a book if it has language that is offensive to African-Americans or somehow sends a demeaning signal towards women. I’ve got to tell you, I don’t agree with that, either. I don’t agree that you, when you become students at colleges, have to be coddled and protected from different points of view.”

A final note. I understand why any university leadership seeks to avoid any potential conflict on campus about speech that some students finds deeply offensive. Why would it not? What university administration would not seek to avoid such any such clash, especially since our nation still has so much to answer for with respect to its historic mistreatment of racial and other minorities? And at a time where serious steps must still be taken, on campus and off, to address ongoing manifestations of racism, sexism, anti-Semitism or the like.

But the answer to the suppression of almost any speech, the First Amendment answer, cannot be to limit expression but to discuss it, not to bar offensive speech but to answer it. Or to ignore it. Or to persuade the public to reject it. I know that’s easy to say but it’s got to be the way we respond to speech which we abhor. What is unacceptable is to suppress the speech. That is why I welcome this hearing the opportunity you have given me to participate in this hearing.

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FAN 156 (First Amendment News) Special Post: The Espionage Act at the 100 Year Mark: Commentaries by Bambauer, Chemerinsky, Stone & Vladeck

There are citizens of the United States . . . born under other flags but welcomed under our generous naturalization laws to the full freedom and opportunity of America, who have poured the poison of disloyalty into the very arteries of our national life; who have sought to bring the authority and good name of our Government into contempt, to destroy our industries wherever they thought it effective for their vindictive purposes to strike at them, and to debase our politics to the uses of foreign intrigue. . . . 

I urge you to enact . . . laws at the earliest possible moment and feel that in doing so I am urging you to do nothing less than save the honor and self-respect of the nation. Such creatures of passion, disloyalty, and anarchy must be crushed out. — Woodrow WilsonState of the Union Address, December 7, 1915

[T]he newspaper or individual who criticizes or points out defects in policies . . . with the honest purpose of promoting remedial action and warning against danger is not a public enemy. — Editorial, New York Times,  April 13, 1917

Today marks the 100th anniversary of the Espionage Act of 1917 (18 U.S. Code Chapter 37). In light of that, I have collected some background materials about the Act followed by several original comentaries on it, which follow the introductory materials below.

Origins

  • Assistant Attorney General Charles Warren drafts a bill “for suppressing or punishing disloyal and hostile acts and utterances.”
  • Bill introduced in the House as H.R. 291
  • Bill passes in the House on May 4, 1917 (261–109)
  • Bill passes the Senate on May 14, 1917 (80–8)
  • President Woodrow Wilson signs bill into law on June 15, 1917.

August 1917 cover of Masses Magazine

First Amendment Online Library Timeline of Espionage Act & Related Acts

 The Masses cases:

  • Masses Publishing Co. v. Patten, 244 F. 535 (S.Dist.N.Y., 1917) (per Hand, J.)
  • ruling re stay of appealed order, 245 F. 102 (per Hough, J., 1917), and
  • Circuit Court ruling reversing District Court,  246 F. 24 (2nd Cir., 1917) (per Rogers, J. for the majority  with Ward, J. concurring)

FAN 148, Coming this fall: NYU Law to host conference to commemorate centennial anniversary of Hand’s Masses decision

Controversial Provisions of the Act: “The Espionage Act put into law a penalty of up to 20 years imprisonment for anyone convicted of interfering with military recruitment. The law also presented the penalty of levying fines of up to $10,000 for those convicted. The law also gave additional powers to the post office. Specifically, the law allowed the Postmaster General to confiscate any mail that might be deemed seditious or treasonable.” (source: This Day in History)

Domestic Issues of Concern: “There were quite a number of concerns the Wilson administration had about certain groups that were in opposition to the war. Public criticism of the war was definitely a major concern of the government. Since a significant number of troops would be needed to carry out the war effort, a draft was imposed. Among the concerns the government had was the notion that constant criticism would make recruitment and even conscription difficult.” (source: This Day in History)

Enforcement: “Enforced largely by A. Mitchell Palmer, the United States attorney general under President Woodrow Wilson, the Espionage Act essentially made it a crime for any person to convey information intended to interfere with the U.S. armed forces prosecution of the war effort or to promote the success of the country’s enemies. Anyone found guilty of such acts would be subject to a fine of $10,000 and a prison sentence of 20 years.” (Source: Totally History)

See also David Greene, As the Espionage Act Turns 100, We Condemn Threats Against Wikileaks, Electronic Frontier Foundation, June 14, 2017

Historical Resources

→ Zechariah Chafee, Jr., Freedom of Speech in War Time, 32 Harvard Law Review 932 (1919)

Karl N. Llewellyn, Free Speech in Time of Peace, 29 Yale Law Journal 337 (1920) (student comment)

Walter Nelles, In the Wake of the Espionage Act, The Nation (December 15, 1920)

Masthead from Masses magazine

Commentaries by Derik Bambauer, Erwin Chemerinsky, Geoffrey Stone & Stepehen Vladeck 

Backwards and Forwards

by Derek E. Bambauer

Many thanks to Ron Collins for the invitation to reflect on the centennial of the Espionage Act!

I want to argue that the Espionage Act is not only problematic on its own terms, but that it has paved the way for a newer set of worrisome statutes and dubious cases. These newer measures, like the Act itself, respond to an exaggerated sense of danger from internal and external threats. Courts and lawmakers alike have largely engaged in ahistorical analysis: they have failed to learn the lessons from the past. They underrated the perceived risk of subversive political speech in wartime in the early twentieth century, and they fail to question whether terrorism is a sufficiently existential threat today to warrant impingements on speech. I conclude that there are two possible responses, neither particularly promising.

To give the problems with the Espionage Act and its progency some currency, consider the current fight against the terror group ISIS in the Middle East. ISIS has taken a surprising amount of territory, and has become infamous for its horrific treatment of captives. There have been domestic attacks by individuals or small groups who claimed an association with or allegiance to ISIS. However, while these attacks are horrifying, even significant terror attacks are not existential threats to the United States.

But the perceived threat from ISIS has generated a disproportionate response, and one that frequently targets speech. For example, the assistant attorney general for national security said that people who are “proliferating ISIS social media” could be prosecuted under 18 U.S.C. 2339A (the material support statute). His contention was that disseminating ISIS’s point of view counts as providing “technical expertise” to a terrorist group. In 2012, the government successfully prosecuted Tarek Mehanna as a terrorist, in part because he translated al Qaeda writings and videos into English. The First Circuit Court of Appeals, in affirming his conviction, called terrorism the “modern-day equivalent of the bubonic plague” and an “existential threat” – an embarrassing example of hyberbole. And the Supreme Court has failed to rein in restrictions on speech justified as necessary for the war on terror. In Holder v. Humanitarian Law Project, the Supreme Court rejected a First Amendment challenge to the material support statute, highlighting the fact that completely independent political advocacy is not covered by the law’s prohibitions. (The challenge, of course, is determining when someone is “completely independent.”)

The material support statute is also problematic in that it defers decisions about what content should be criminalized to the executive branch. The State Department is empowered to determine which entities constitute terrorist groups. Coordinated political advocacy with groups on the list is a crime; advocacy for violent but not listed groups is safe. One person’s terrorist is another’s freedom fighter. There’s also the risk of one-way advocacy: if terrorist group calls for people to advocate on its behalf, and someone does so, does that count as coordination? And, of course, the Justice Department has charged Edward Snowden under the Espionage Act itself, and continues to investigate whether to prosecute WikiLeaks and Julian Assange under it.

These efforts seem similar to prosecutions in the early twentieth century under the Espionage Act that ultimately elucidated the weak form of the “clear and present danger” test. For example, Charles Schenck was convicted for distributing pamphlets for American Socialist Party that read “Assert your rights – do not submit to intimidation” – hardly stuff to stir the blood. The Socialist Eugene Debs was convicted for giving a speech titled “Socialism is the Answer.” And Jacob Abrams was an anarchist convicted for his criticism of the U.S. decision to defend Russia against the Bolsheviks.

There were similar trends during the Cold War. The Communist Eugene Dennis received his conviction for knowingly advocating the overthrow of the U.S. government by force. The Supreme Court called the Communist Party a “permanently organized, well-funded, semi-secret organization.” These cases demonstrate at least two parallels to current events. The first is a conception of political (largely foreign) enemies as an existential threat. The second is that the magnitude of this threat justifies restrictions on political speech and advocacy that would ordinarily be at the heart of First Amendment protection.

I can see two tentative responses to these problems, one pessimistic and one mildly optimistic.

The pessimistic channels Geoffrey Stone: we must accept as inevitable that there will be limits on political advocacy, especially in wartime, even if that war is a long twilight struggle rather than a declared conflict. This has the interesting side effect of making First Amendment less exceptional – there turns out to be an implicit balancing test even with “core” political speech. It might also be a useful descriptive exercise to examine the pendulum swing of First Amendment liberties – is it temporal in nature, or does it relate primarily to subject matter?

The optimistic idea is to draw upon the historical parallels elaborated above: neither socialists nor Communists proved an existential threat to U.S. politics and institutions, despite the heated fears of the moment. This requires more work on our collective part: we have to hold the government to its burden when it seeks to restrict speech, first by questioning the characterization of information as a threat, and second by carefully policing the line between conduct and speech when regulations are proposed or promulgated. That will require political courage – always in short supply – and legal analysis grounded in history.

The Espionage Act ought to teach us that these are vital assets in our self-governance, but it’s not clear we have yet learned the lesson.

A Loaded Gun

By Erwin Chemerinsky

The Espionage Act of 1917 is a loaded gun waiting for the federal government to use it to punish speech. Indeed, throughout its history, it has been used to punish speech that should be deemed constitutionally protected. I especially worry that the Obama administration has set a precedent for the Trump administration, which has shown great hostility to the press. Since the enactment of the Espionage Act of 1917, twelve prosecutions have been brought under it for disclosures of information and nine of those were during the Obama administration.

The Espionage Act, by its very terms, is directed at restricting speech. The law makes it a crime to convey information with the intent to interfere with the operation of the armed forces or to promote the success of its enemies. The Act also makes it a federal crime to convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies when the United States is at war, to cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States, or to willfully obstruct the recruiting or enlistment service of the United States. Yet another provision gives the Postmaster General the authority to impound or to refuse to mail publications that he determined to be in violation of its prohibitions.

The Act has been used to punish speech. Most famously, it was used to punish speech during World War I that the First Amendment never should have allowed to be punished. In Schenck v. United States, the Court considered the conviction of two individuals – Charles Schenck and Elizabeth Baer – who were prosecuted for circulating a leaflet arguing that the draft violated the Thirteenth Amendment as a form of involuntary servitude. The leaflet was titled, “Long Live the Constitution of the United States.”   It said, ‘‘Do not submit to intimidation,’’ and ‘‘Assert Your Rights,’’ but did not expressly urge violation of any law; it advocated repealing the draft law and encouraged people to write to their representatives in Congress to do so.

There was not any evidence that their leaflet had any effect in causing a single person to resist the draft. Nonetheless, they were prosecuted and convicted and sentenced to jail for violating the 1917 Act. The Supreme Court, in an opinion by Justice Oliver Wendell Holmes, upheld their convictions and sentences; he dismissed as irrelevant that the leaflet had no effect.

A week after Schenck was announced, the Court upheld convictions under the 1917 Act in two other cases, Frohwerk v. United States and Debs v. United States.   Jacob Frohwerk was the publisher of a German language newspaper, Missouri Staats-Zeitung. He was prosecuted for a dozen articles published between June and December 1917. Again, the speech was the antithesis of shouting fire in a crowded theater or that which would pose a clear and present danger.   Without doubt, any court today would regard it as expression protected by the very core of the First Amendment. It took the jury only three minutes of deliberation to convict Frohwerk of violating the 1917 Espionage Act and the judge sentenced him to 10 years in prison for his writings. The Supreme Court affirmed.

Albert Burleson was appointed Postmaster General by Woodrow Wilson

In Debs v. United States, the Court affirmed the conviction of Socialist Party leader Eugene Debs who had been sentenced to jail for ten years for violating the 1917 Act. Debs was a national political figure, having run for President in 1900, 1904, 1908, and 1912. Debs was convicted for a speech that was primarily advocacy of socialism, but it included some mild criticism of the draft. At one point in a long speech, Debs remarked that he had to be ‘‘prudent’’ and not say all that he thought, but that ‘‘you need to know that you are fit for something better than slavery and cannon fodder.’’ For this mild statement Debs was convicted of attempting to incite disloyalty in the military and obstruct the draft. Again, the Supreme Court affirmed.

Moreover, during World War I, the Postmaster used the authority under the statute to seize magazines and newspapers. Albert Burleson, a reactionary racist from Texas who despised labor unions and the people who supported them, began a campaign to root out magazines and newspapers that promoted socialist or radical causes.

The subsequent use of the Espionage Act reinforces reasons for great concern. It is the statute used to prosecute Daniel Ellsberg and Chelsea Manning. It is a law that can be used to punish those who provide information to the press and to those who disseminate information. The Act is so broadly written that there is no way to know the speech that it has chilled over the years. I have great fears of how it might be used in the next four years with a President who has shown such great hostility to the press.

When Can a Government Employee Leak Classified Information?

by Geoffrey R. Stone

The Espionage Act of 1917, as amended over the years, forbids government employees to disclose classified information to any person who is not authorized to have access to it. For this reason, most prosecutions of government leakers of classified information have relied upon the Espionage Act. The Act recognizes no defense for government employees who leak such information. This is one of Edward Snowden’s justifications for refusing to return to the United States to face prosecution. He maintains that the absence of a defense that would exonerate government leakers of classified information whose acts do more good than harm is unjust. As we look to the future, a central question is whether the Espionage Act should be amended to recognize such a defense.

Edward Snowden (credit: The Guardian)

At first blush, there is obvious logic in Snowden’s position. After all, if someone does more good than harm, shouldn’t they be free to do the good? Moreover, this seems especially sensible in the context of classified information, because the test for classification is whether the disclosure of the information might “reasonably be expected to harm the national security.” There is no balancing at all of good versus harm. The standard does not take into account the possible benefits of the leak and it does not require that the harm be likely, imminent, or grave.

Moreover, the government quite predictably tends to over-classify information. The simple rule is: Better be safe than sorry. In addition, we know from experience that public officials have on occasion abused the classification system in order to hide from public scrutiny their own misjudgments, incompetence, and venality.

In light of these concerns, it might seem logical to amend the Espionage Act to permit a government employee legally to disclose classified information whenever she can demonstrate that the benefit of the disclosure outweighed the actual harm to the national security. Why shouldn’t Edward Snowden have such a defense, if he can prove the case? After all, granting such a high level of deference to the government in these situations significantly overprotects government secrecy at the expense of both official accountability and informed public debate. Even worse, in some situations the leaker might disclose the existence of programs that are themselves unlawful. In that case, how can it possibly be right to make it a crime for the government employee to disclose the information to the public?

The government’s response to all this is fairly straightforward. First, except in extraordinary circumstances like self-defense, we don’t give individuals a right to break the law because, in the circumstances, committing the crime might do more good than harm. For example, if X steals someone’s purse because he needs money to feed his children, he could easily argue that his theft did more good than harm, but that is not a defense. One could, of course, multiply that hypothetical endlessly.

Second, there are more than a million government employees and private contractors who have access to classified information. The government will argue that it would be reckless in the extreme to permit each of those individuals to think that it is permissible for them to disclose classified information whenever they conclude that the good would outweigh the harm. Even if in some instances they might be right, often they will be wrong – especially because individual government employees and contractors are rarely in a position to understand how the information they plan to disclose might damage the national security. Thus, the government will argue, the only sensible thing to do is to take that option away from these employees. Finally, the government will point out that in order to prove in court that a leak caused substantial damage it would often have to reveal even more classified information, often including sources and methods, which would make such inquiries especially problematic.

So, what’s to be done? It seems unlikely that the Supreme Court will recognize a First Amendment right of government employees to leak classified information. The implementation of a constitutional rule that permits leaks would just be too messy for the Court to impose or to implement. As a legislative matter, though, it would make sense to create some internal mechanism through which these employees can raise their concerns, especially if they believe the programs at issue to be unlawful. To-date, though, there seems to be little interest in such an option. Another possibility, of course, is simply to tighten up the standards and procedures for classification. No one doubts that we currently live in a world of gross over-classification.

Are there cases one can imagine in which even under existing law it would seem implausible to punish a leaker? Suppose an FBI agent learns from a classified document that at the direction of the Russian government the FBI assassinated the president? I rather suspect that if she leaked that information, assuming it is accurate, she would not go to jail.

It’s (Long-Past) Time to Modernize the Espionage Act

by Stephen Vladeck 

For a law that turns 100 today, and that’s only been materially amended once in a century, the Espionage Act has sure enjoyed a popular resurgence of late. President Barack Obama used it to prosecute more leakers than all previous Presidents put together. Critics of Secretary Hillary Clinton’s unauthorized use of a private e-mail server sought desperately to make the (legally unconvincing but politically damaging) argument that she had violated the statute. And when former FBI Director Jim Comey revealed just last week that he had been responsible for leaking a memo memorializing a conversation he had with President Trump, commentators quickly gravitated toward the Act as proof that, if any laws were broken as part of Comey’s termination, it was the old chestnut herself through Comey’s transgression.

U.S. Army Intelligence WW I Poster Warned Americans About German Spies.

What all of these recent stories have in common is the absence of actual “espionage”— the conduct that motivated Congress to enact the law in the first place. The Act was written on the eve of the United States’s entry into World War I, and, as importantly, before the emergence of either the modern terminology for national security classification or the Supreme Court’s modern First Amendment and vagueness jurisprudence. But because Congress has resisted decades of calls to revisit it, it remains on the books mostly as initially enacted—a statute aimed at German spies. Its clunky and capacious language paints with the same brush three distinct offenses:

  1. classic espionage,
  2. leaking, and
  3. the retention or redistribution of national defense information by third parties.

Part of why it’s so problematic that the Espionage Act treats these three very different sins as the same crime is because of its outdated (and outmoded) language. We now have a sophisticated series of Executive Orders that define and regulate the scope of “classified” national security information, and that have, unlike the Espionage Act, regularly been updated to respond to changes in technologies and threat vectors. One would think it is those provisos, and not a century-old statute, that better reflect the true contemporary scope of “information relating to the national defense.”

And, along with classification, we also now have a far-more-sophisticated understanding of the problem of over-classification—and why it’s so problematic that courts have refused to recognize “improper classification” as a defense to an Espionage Act prosecution. Thus, the more information that has become classified, the easier it has become to violate the Espionage Act through conduct that bears increasingly less resemblance to spying.

Finally, we also now have First Amendment jurisprudence that recognizes at least some circumstances (albeit virtually none thus far involving national security information) in which the disclosure of certain previously confidential material might be of such surpassing public concern as to be protected by the First Amendment even when it might otherwise be unlawful. But the 100-year-old verbiage of the Espionage Act doesn’t account for any of these developments. That may be why, 37 years ago (before it qualified for Medicare), the Act was decried by Anthony Lapham, then the General Counsel of the CIA, as the “the worst of both worlds.” As he then explained to Congress:

On the one hand the laws stand idle and are not enforced at least in part because their meaning is so obscure, and on the other hand it is likely that the very obscurity of these laws serves to deter perfectly legitimate expression and debate by persons who must be as unsure of their liabilities as I am unsure of their obligations.

Modernizing the Espionage Act won’t be easy. But 100 years in, it’s long past time for Congress to do so.