Author: Ronald K.L. Collins

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FAN 174.2 (First Amendment News) Floyd Abrams Institute: Call for Abstracts for Scholars’ Conference

Call for Abstracts & Participants: Freedom of Expression Scholars Conference

The Floyd Abrams Institute for Freedom of Expression invites applications to participate in the sixth annual Freedom of Expression Scholars Conference (FESC).

 Conference Date: The conference will be held at Yale Law School in New Haven, Connecticut from April 27–29, 2018.

→ Response Date: All those interested in presenting a paper or commenting on a paper respond by February 23, 2018.

At FESC, scholars and practitioners discuss works-in-progress on the freedoms of speech, expression, press, association, petition, and assembly as well as on related issues of knowledge and information policy. FESC has become a fixture on the calendar of leading First Amendment thinkers and scholars nationwide.

The paper titles and attendees from prior conferences are available here:

→ Workshop Sessions: Each accepted paper is assigned to a discussant, who will summarize the paper for the workshop audience, provide feedback, and lead a discussion. Workshop sessions are typically lively discussions among authors, discussants, and participants. Sessions run from Saturday morning through Sunday afternoon, with a welcome dinner on Friday evening. Conference participants are expected to read the papers in advance and to attend the entire conference.

Papers are accepted on a wide array of freedom of expression and information policy topics. Although participation at the conference is by invitation only, we welcome paper proposals from scholars, practitioners, and free speech advocates all over the world. Please feel free to share this call for submissions widely.

→ Abstract Submissions & Due Date: Titles and abstracts of papers should be submitted electronically to Heather Branch no later than February 23, 2018.

→ For Additional Information: Those interested in attending the conference or acting as a discussant should also contact Heather Branch no later than February 23, 2018.

→ Due Date for Completed Papers: Workshop versions of accepted papers will be due on March 30, 2018, so that they can be circulated to discussants and other conference participants.

→ Travel & Accommodations: Participants will ask their home institutions to cover travel expenses. However, thanks to a generous donation from the Stanton Foundation, we are able to offer Abrams Travel Fellowships to cover some of the costs associated flights, lodging, and reasonable travel expenses for presenters and discussants who would not otherwise be able to attend. This fellowship is intended to encourage submissions from junior faculty and lawyers. Should you be invited to participate as an author or discussant, please inform us in your response whether you will require Abrams Travel Fellowship funding.

→ For Additional Information: Re questions: contact Heather Branch.

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FAN 174.1 (First Amendment News) Text of Senator Jeff Flake’s Speech on Truth & Press Freedom

Text of remarks of Senator Jeff Flake of speech presented to the Senate on January 17, 2018.

C-Span video here (remarks begin at 23:01)

Mr. President, near the beginning of the document that made us free, our Declaration of Independence, Thomas Jefferson wrote: “We hold these truths to be self-evident…” So, from our very beginnings, our freedom has been predicated on truth. The founders were visionary in this regard, understanding well that good faith and shared facts between the governed and the government would be the very basis of this ongoing idea of America.

Senator Jeff Flake (C-SPAN)

 As the distinguished former member of this body, Daniel Patrick Moynihan of New York, famously said: “Everyone is entitled to his own opinion, but not to his own facts.” During the past year, I am alarmed to say that Senator Moynihan’s proposition has likely been tested more severely than at any time in our history.

It is for that reason that I rise today, to talk about the truth, and its relationship to democracy. For without truth, and a principled fidelity to truth and to shared facts, Mr. President, our democracy will not last.

2017 was a year which saw the truth – objective, empirical, evidence-based truth — more battered and abused than any other in the history of our country, at the hands of the most powerful figure in our government. It was a year which saw the White House enshrine “alternative facts” into the American lexicon, as justification for what used to be known simply as good old-fashioned falsehoods. It was the year in which an unrelenting daily assault on the constitutionally-protected free press was launched by that same White House, an assault that is as unprecedented as it is unwarranted. “The enemy of the people,” was what the president of the United States called the free press in 2017.

Mr. President, it is a testament to the condition of our democracy that our own president uses words infamously spoken by Josef Stalin to describe his enemies. It bears noting that so fraught with malice was the phrase “enemy of the people,” that even Nikita Khrushchev forbade its use, telling the Soviet Communist Party that the phrase had been introduced by Stalin for the purpose of “annihilating such individuals” who disagreed with the supreme leader.

This alone should be a source of great shame for us in this body, especially for those of us in the president’s party. For they are shameful, repulsive statements. And, of course, the president has it precisely backward – despotism is the enemy of the people. The free press is the despot’s enemy, which makes the free press the guardian of democracy. When a figure in power reflexively calls any press that doesn’t suit him “fake news,” it is that person who should be the figure of suspicion, not the press.

I dare say that anyone who has the privilege and awesome responsibility to serve in this chamber knows that these reflexive slurs of “fake news” are dubious, at best. Those of us who travel overseas, especially to war zones and other troubled areas around the globe, encounter members of U.S. based media who risk their lives, and sometimes lose their lives, reporting on the truth. To dismiss their work as fake news is an affront to their commitment and their sacrifice.

According to the International Federation of Journalists, 80 journalists were killed in 2017, and a new report from the Committee to Protect Journalists documents that the number of journalists imprisoned around the world has reached 262, which is a new record. This total includes 21 reporters who are being held on “false news” charges.

Mr. President, so powerful is the presidency that the damage done by the sustained attack on the truth will not be confined to the president’s time in office. Here in America, we do not pay obeisance to the powerful – in fact, we question the powerful most ardently – to do so is our birthright and a requirement of our citizenship — and so, we know well that no matter how powerful, no president will ever have dominion over objective reality.

No politician will ever get to tell us what the truth is and is not. And anyone who presumes to try to attack or manipulate the truth to his own purposes should be made to realize the mistake and be held to account. That is our job here. And that is just as Madison, Hamilton, and Jay would have it.

Of course, a major difference between politicians and the free press is that the press usually corrects itself when it gets something wrong. Politicians don’t.

No longer can we compound attacks on truth with our silent acquiescence. No longer can we turn a blind eye or a deaf ear to these assaults on our institutions. And Mr. President, an American president who cannot take criticism – who must constantly deflect and distort and distract – who must find someone else to blame — is charting a very dangerous path. And a Congress that fails to act as a check on the president adds to the danger.

Now, we are told via twitter that today the president intends to announce his choice for the “most corrupt and dishonest” media awards. It beggars belief that an American president would engage in such a spectacle. But here we are.

And so, 2018 must be the year in which the truth takes a stand against power that would weaken it. In this effort, the choice is quite simple. And in this effort, the truth needs as many allies as possible. Together, my colleagues, we are powerful. Together, we have it within us to turn back these attacks, right these wrongs, repair this damage, restore reverence for our institutions, and prevent further moral vandalism.Together, united in the purpose to do our jobs under the Constitution, without regard to party or party loyalty, let us resolve to be allies of the truth — and not partners in its destruction.

It is not my purpose here to inventory all of the official untruths of the past year. But a brief survey is in order. Some untruths are trivial – such as the bizarre contention regarding the crowd size at last year’s inaugural.

But many untruths are not at all trivial – such as the seminal untruth of the president’s political career – the oft-repeated conspiracy about the birthplace of President Obama. Also not trivial are the equally pernicious fantasies about rigged elections and massive voter fraud, which are as destructive as they are inaccurate – to the effort to undermine confidence in the federal courts, federal law enforcement, the intelligence community and the free press, to perhaps the most vexing untruth of all – the supposed “hoax” at the heart of special counsel Robert Mueller’s Russia investigation.

To be very clear, to call the Russia matter a “hoax” – as the president has many times – is a falsehood. We know that the attacks orchestrated by the Russian government during the election were real and constitute a grave threat to both American sovereignty and to our national security. It is in the interest of every American to get to the bottom of this matter, wherever the investigation leads.

Ignoring or denying the truth about hostile Russian intentions toward the United States leaves us vulnerable to further attacks. We are told by our intelligence agencies that those attacks are ongoing, yet it has recently been reported that there has not been a single cabinet-level meeting regarding Russian interference and how to defend America against these attacks. Not one. What might seem like a casual and routine untruth – so casual and routine that it has by now become the white noise of Washington – is in fact a serious lapse in the defense of our country.

Mr. President, let us be clear. The impulses underlying the dissemination of such untruths are not benign. They have the effect of eroding trust in our vital institutions and conditioning the public to no longer trust them. The destructive effect of this kind of behavior on our democracy cannot be overstated.

Mr. President, every word that a president utters projects American values around the world. The values of free expression and a reverence for the free press have been our global hallmark, for it is our ability to freely air the truth that keeps our government honest and keeps a people free. Between the mighty and the modest, truth is the great leveler. And so, respect for freedom of the press has always been one of our most important exports.

But a recent report published in our free press should raise an alarm. Reading from the story:

“In February…Syrian President Bashar Assad brushed off an Amnesty International report that some 13,000 people had been killed at one of his military prisons by saying, “You can forge anything these days, we are living in a fake news era.”

In the Philippines, President Rodrigo Duterte has complained of being “demonized” by “fake news.” Last month, the report continues, with our President, quote “laughing by his side” Duterte called reporters “spies.”

In July, Venezuelan President Nicolas Maduro complained to the Russian propaganda outlet, that the world media had “spread lots of false versions, lots of lies” about his country, adding, “This is what we call ‘fake news’ today, isn’t it?”

There are more:

“A state official in Myanmar recently said, “There is no such thing as Rohingya. It is fake news,” referring to the persecuted ethnic group.

Leaders in Singapore, a country known for restricting free speech, have promised “fake news” legislation in the new year.”

And on and on. This feedback loop is disgraceful, Mr. President. Not only has the past year seen an American president borrow despotic language to refer to the free press, but it seems he has in turn inspired dictators and authoritarians with his own language. This is reprehensible.

We are not in a “fake news” era, as Bashar Assad says. We are, rather, in an era in which the authoritarian impulse is reasserting itself, to challenge free people and free societies, everywhere.

In our own country, from the trivial to the truly dangerous, it is the range and regularity of the untruths we see that should be cause for profound alarm, and spur to action. Add to that the by-now predictable habit of calling true things false, and false things true, and we have a recipe for disaster. As George Orwell warned, “The further a society drifts from the truth, the more it will hate those who speak it.”

Any of us who have spent time in public life have endured news coverage we felt was jaded or unfair. But in our positions, to employ even idle threats to use laws or regulations to stifle criticism is corrosive to our democratic institutions. Simply put: it is the press’s obligation to uncover the truth about power. It is the people’s right to criticize their government. And it is our job to take it.

What is the goal of laying siege to the truth? President John F. Kennedy, in a stirring speech on the 20th anniversary of the Voice of America, was eloquent in answer to that question:

“We are not afraid to entrust the American people with unpleasant facts, foreign ideas, alien philosophies, and competitive values. For a nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people.”

Mr. President, the question of why the truth is now under such assault may well be for historians to determine. But for those who cherish American constitutional democracy, what matters is the effect on America and her people and her standing in an increasingly unstable world — made all the more unstable by these very fabrications. What matters is the daily disassembling of our democratic institutions.

We are a mature democracy – it is well past time that we stop excusing or ignoring – or worse, endorsing — these attacks on the truth. For if we compromise the truth for the sake of our politics, we are lost.

I sincerely thank my colleagues for their indulgence today. I will close by borrowing the words of an early adherent to my faith that I find has special resonance at this moment. His name was John Jacques, and as a young missionary in England he contemplated the question: “What is truth?” His search was expressed in poetry and ultimately in a hymn that I grew up with, titled “Oh Say, What is Truth.” It ends as follows:

“Then say, what is truth? ‘Tis the last and the first,

For the limits of time it steps o’er.

Tho the heavens depart and the earth’s fountains burst.

Truth, the sum of existence, will weather the worst,

Eternal… unchanged… evermore.”

Thank you, Mr. President. I yield the floor.

WHITE HOUSE REPLY

→ Tessa Berenson, White House Responds to Jeff Flake’s Speech Criticizing Trump, Time, Jan. 17, 2018

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FAN 174 (First Amendment News) Special Issue on Legal History — New article “reorients our understanding of the history of speech and press freedoms”

According to the most famous words of the First Amendment, “Congress shall make no law . . . abridging the freedom of speech.” But what did the founders understand those words to mean? A remarkable answer comes from Jud Campbell, a University of Richmond law professor, who has just produced what might well be the most illuminating work on the original understanding of free speech in a generation. In brief, Campbell argues that the founders meant to protect a lot less speech than most of us think.

Cass Sunstein, The Originalism Blog

Leonard W. Levy (1923-2006)

History forever haunts us. Even if it did not, there is always that temptation to look into the rear-view mirror to catch a fleeting glimpse of the world of the dead. Even some of the great who wrote about the dead are themselves now dead. Remember this constitutional historian?

Still, the living continue to dig up the dead and tell their stories . . . as best they can frame them. For example,

Of course, there is more, much more. That said, there’s a new player in the First-Amendment-history town; he is Professor Jud Campbell and he has an impressive new article in the Yale Law Journal. It is titled

Natural Rights and the First Amendment

ABSTRACT. The Supreme Court often claims that the First Amendment reflects an original judgment about the proper scope of expressive freedom. After a century of academic debate, however, the meanings of speech and press freedoms at the Founding remain remarkably hazy. Many scholars, often pointing to Founding Era sedition prosecutions, emphasize the limited scope of these rights. Others focus on the libertarian ideas that helped shape opposition to the Sedition Act of 1798. Still more claim that speech and press freedoms lacked any commonly accepted meaning. The relationship between speech and press freedoms is contested, too. Most scholars view these freedoms as equivalent, together enshrining a freedom of expression. But others assert that the freedom of speech, unlike press freedom, emerged from the legislative privilege of speech and debate, thus providing more robust protection for political speech.

Professor Jud Campbell

This Article argues that Founding Era elites shared certain understandings of speech and press freedoms, as concepts, even when they divided over how to apply those concepts. In particular, their approach to expressive freedom was grounded in a multifaceted understanding of natural rights that no longer survives in American constitutional thought. Speech and press freedoms referred, in part, to natural rights that were expansive in scope but weak in their legal effect, allowing for restrictions of expression to promote the public good. In this respect, speech and press freedoms were equivalent concepts with highly contestable implications that depended on calculations of the public good. But expressive freedom connoted more determinate legal protections as well. The liberty of the press, for instance, often referred specifically to the rule against press licensing, while the freedom of speaking, writing, and publishing ensured that well-intentioned statements of one’s views were immune from governmental regulation. In this respect, speech and press freedoms carried distinct meanings. Much of our modern confusion stems from how the Founders—immersed in their own constitutional language—silently shifted between these complementary frames of reference.

This framework significantly reorients our understanding of the history of speech and press freedoms by recognizing the multifaceted meanings of these concepts, and it raises challenging questions about how we might use that history today. Various interpretive theories—including ones described as “originalist”—might incorporate this history in diverse ways, with potentially dramatic implications for a host of First Amendment controversies. Most fundamentally, however, history undercuts the Supreme Court’s recent insistence that the axioms of modern doctrine inhere in the Speech Clause itself, with judges merely discovering—not crafting—the First Amendment’s contours and boundaries.

Nico Perrino over at FIRE interviews Professor Campbell in a So to Speak podcast

Newly Posted Historial Documents Read More

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New Book — Manheim & Watts, “The Limits of Presidential Power: A Citizen’s Guide to the Law”

A comprehensive and accurate description of the powers of the President of the United States. The book is intended primarily to benefit non-lawyers in understanding the sources and limits of the President’s powers, and their means of influencing his actions, but the work will be enlightening for lawyers as well.

Justice John Paul Stevens (ret.) 

Both a primer and a sophisticated analysis of the constantly evolving balance of power between the President, the Congress, and the Judiciary.

— U.S. Senator Slade Gorton

Two of my distinguished University of Washington Law School colleagues, Lisa Manheim and Kathryn Watts, have just released a unique and impressive book entitled The Limits of Presidential Power: A Citizen’s Guide to the Law ($7.99 paper) ($2.99 e-book, free with Kindle Unlimited subscriptions via Amazon.). Here is the abstract:

“This one-of-a-kind guide provides a crash course in the laws governing the President of the United States. In engaging and accessible prose, two law professors explain the principles that inform everything from President Washington’s disagreements with Congress to President Trump’s struggles with the courts, and more. Timely and to the point, this guide provides the essential information every informed civic participant needs to know about the laws that govern the president–and what those laws mean for those who want to make their voices heard.”

* * * *

I’ve read this book.  It is a quite accessible and highly reliable overview of the law of presidential power. Here is some of the advance buzz about the book:

This smart and indispensable guide begins where old-fashioned civics leaves off, and talks to troubled and puzzled Americans as adults. The authors demonstrate that the future of our democracy is where it’s always been: in our hands, if only we learn how to invoke the available limits on the power of the president. –Linda Greenhouse 

Prof. Lisa Manheim

Lisa Manheim and Kathryn Watts have written a wonderful book on presidential power, its scope, and its limits. The book is clearly written and easily accessible and is terrific in explaining the authority of the President and the checks on his power. The book is especially timely now, but it is about issues that have arisen since the beginning of the country and that will last as long as the Constitution. Erwin Chemerinsky 

The authors have provided a truly impressive chapter on climate change that is both sweeping and compelling, and have done so with crystal clarity and gripping narrative drive. As a result, the climate change chapter, like the rest of this book, offers every reader not only a ready understanding of a vital and complex issue and of the varying roles the government has played in shaping the issue, but also of the opportunity–for better or worse–that stakeholders and members of the public have to shape U.S. climate change policy going forward. If this is the only piece on climate change policy that a person reads, then he or she will be very well-informed and well-equipped to engage with the issue. — Joseph Goffman 

Prof. Kathryn Watts

A concise and crisp primer on the limitations of presidential power. The subject is timely and well worth pondering. This work should interest students concerned with law and the separation of powers and American politics, as well as the general public. — David M. O’Brien

In America, no one is above the law, not even the president. For anyone who has ever wondered ‘can he really do that?’ this clear and concise book on presidential power is a must read. Likewise, for everyone who cares about democracy and the rule of law, Watts and Manheim are your best guides to effective citizenship. — Kellye Testy

Accessible and interesting, this book is a must-read for anyone who wants to understand both the powers of the presidency and the limits on presidential power. Brianne Gorod 
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FAN 173.2 (First Amendment News) First Amendment Clinic Coming to Vanderbilt Law // Full-time Director Sought

Vanderbilt University Law School seeks applicants for a full-time clinical faculty position. The successful applicant will design and direct a First Amendment Clinic focused on speech, press, and assembly rights. In addition to teaching a live-client clinic, the successful applicant will also have the opportunity to teach a non-clinical course and to engage in writing as well as community and professional service.

The First Amendment Clinic is funded for an initial five-year period, after which continuation is contingent on securing additional funding.

Please send a cover letter, resume, clinic proposal/research agenda, and list of references to:

   http://apply.interfolio.com/48179

→ This from an e-mail from Professor Terry A. Maroney: Under the TN student practice rule, clinic representation is limited to persons or entities who cannot otherwise obtain counsel – so, as a general matter, this would be focused on speech, assembly, and press claims raised by poor persons, children (e.g., expression rights at school), and community organizations. Our ideal candidate is someone with a passion for free speech, meaningful litigation experience, and direct experience in teaching and mentoring law students. Other than the soft-money aspect, we anticipate that the First Amendment clinical professor would enjoy the same benefits of all our other clinical professors (e.g., non-tenure-track, with term contracts, but eligible for promotion from Assistant to Associate to full). Salary is competitive with our entry-level clinical range. I am hoping to identify someone to start this summer in anticipation of being in place for the new school year.

The final candidate for this position must successfully complete a background check. Vanderbilt University has a strong institutional commitment to recruiting and retaining an academically and culturally diverse community of faculty. Minorities, women, individuals with disabilities, and members of other underrepresented groups, in particular, are encouraged to apply. Vanderbilt is an Equal Opportunity/Affirmative Action employer.

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FAN 173.1 (First Amendment News) ROBOTICA EROTICA — Robotic Strippers Dance in Las Vegas

To suggest that the state can regulate robot dancers because they may stir erotic feelings is to say that the government may control the imagination. — Robert Corn-Revere

Dateline Pornotopia. The very thought of it would have made Doctor Freud blush, this new pleasure-principle frontier. As for Anthony Comstock, he would be in moral shock. What about Aldous Huxley? He would have said, “This is something right out of my Brave New World.” And most assuredly Professor Fred Schauer would view such eroticized acts as well beyond the First Amendment pale of protection. Then there is The Death of Discourse (1996), which predicted that the new technologies would serve the libido of future generations.

Well, make of it what you will, but it is nonetheless now a fact: Robotic strippers have come to Las Vegas at the 50th Consumer Electronics Show. Side-by-side with real dancers, the robotic strippers gyrate with erotic pulsation.  (Video here).

MANDEL NGAN/AFP/Getty Images

As reported by Kurt Wagner of CNBC: “The Sapphire Gentleman’s Club, a strip club right off Vegas’s main drag, paid to showcase the robots as a way to drum up interest from press and customers. . . . The robots were as advertised: They gyrated on a stripper pole to music from 50 Cent and Pharrell, with dollar bills scattered on the stage and the floor. A half-dozen human dancers, most of whom were dressed in tight, shiny robot costumes, repeatedly took pics in front of their metallic colleagues.”

Giles Walker (Islington Tribune)

Inventor: “They’re the work,” adds Wagner, “of an artist named Giles Walker, a 50-year-old Brit who describes himself as a scrap metal artist with a passion for building animatronic robots. One of his other projects, The Last Supper, features 13 robots interacting around a table.”

“Walker says he got the idea for pole-dancing robots more than seven years ago, when he noticed the rise of CCTV cameras being used as a way to surveil people in Britain for safety purposes, what he called ‘mechanical peeping Toms.’ He was inspired by the idea of voyeurism, or watching others for pleasure, and decided to try and turn the cameras into something sexy on their own.”

So, are these robots art? Well, they could be.  Again, consider Corn-Revere’s reply to this question: “If stationary sculptures are expressive art that the First Amendment protects – and they are – then moving sculptures can be as well.”

Question: what does this all portend for the future of eroticized expression and the First Amendment? For openers, consider Collins & Skover, Robotica: Speech Rights & Artifical Intelligence (Cambridge University Press, June 2018) —  Robotica Erotica may be the sequel.  Stay tuned!

Robot Lady (credit: Salon)

Nude Dancing: Assuming that erotic robotic dancing is covered under the First Amendment, might a state either ban or regulate such dancing? Recall in this regard the line of First Amendment cases ranging from Schad v. Mount Ephraim (1981) to Barnes v. Glen Theatre, Inc. (1991) to City of Renton v. Playtime Theatres, Inc. (1986) to Erie v. Pap’s A.M. (2000).

See also, David Hudson, “Nude Dancing,” First Amendment Online Library (“Nude dancing is a form of expressive conduct that when restricted, requires First Amendment review. However, the Supreme Court has upheld restrictions on totally nude dancing based on the secondary effects doctrine. Thus, in many cities and counties, dancers must don a modicum of clothing, arguably tempering their erotic messages.”)

Sex Toys?: Are such erotic bots akin to “sex toys” such that they might not qualify for any First Amendment protection? Consider Noah Feldman, Courts playing with the constitutionality of sex toys, Chicago Tribune, August 4, 2016 (“There’s no constitutional right to sex toys — yet. That’s according to a federal appeals court, which declined to strike down a Georgia city’s ordinance that prohibits selling sexual aids. But the three-judge panel invited the full court to rehear the case and strike down the law, stating that it was “sympathetic” to the claim but constrained by precedent. Eventually, the right to sex toys is likely to be accepted in all jurisdictions, as it already is in some. The basis will be the right to sexual intimacy recognized by the U.S. Supreme Court in the landmark 2003 case Lawrence v. Texas. And that raises a question about the evolving nature of constitutional rights: How did we get here? How does a decision framed around the autonomous right of two people to create an intimate sexual relationship come to cover access to toys? And should it?”) See Flanigan’s Enterprises v. City of Sandy Springs Georgia (11th Cir., en banc, Aug. 24, 2017).

Related

Meet “Harmony” – the sex robot with a Scottish accent (considerably more “appealing” than her Las Vegas mechanical counterparts) (YouTube video here)

→ Aurora Snow, Sex Robots Are Here, and They’re Incredibly Lifelike. But Are They Dangerous?, The Daily Beast, July 22, 2017

→ Eric Lieberman, Sex Robots Are Here And Could Change Society Forever, The Libertarian Republic, July 17, 2017

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FAN 173 (First Amendment News) Lawyer for Henry Holt & Michael Wolff Rebuffs Trump Cease & Desist Demands

Elizabeth A. McNamara (Davis Wright Tremaine)

In a categorical rebuff of the cease and desist demand sent by President Trump’s lawyer Charles J. Harder to Michael Wolff and his publisher Henry Holt, their lawyer Elizabeth A. McNamara, refused to halt publication of Fire and Fury: Inside the Trump White House or to issue any retraction or apology. Here are a few excerpts from the text of that three-page letter sent by Ms. McNamara to Mr. Harder:

  • No defamation identified: “Though your letter provides a basic summary of New York libel law, it stops short of identifying a single statement in the book that is factually false or defamatory.”
  • Accurate reporting“[A]s President Trump knows, Mr. Wolff was permitted extraordinary access to the Trump administration and campaign from May 2016 to this past October, and he conducted more than 200 interviews with President Trump, most members of his senior staff and with many people they in turn talked to. These interviews served as the basis for the reporting in Mr. Wolff’s book. We have no reason to doubt — and you letter provides no reason to change the conclusion — that Mr. Wolff’s book is an accurate report on events of vital public importance.”
  • President’s ‘bully pulpit’ & ability to respond: “We have no reason to doubt . . . that Mr. Wolff’s book is an accurate report on events of vital public importance. Mr. Trump is the President of the United States, with the ‘bully pulpit’ at his disposal. To the extent he disputes any statement in the book, he has the largest platform in the world to challenge it.”
  • False light invasion of privacy: Re New York law of false light invasion of privacy claim: McNamara stressed that such a claim doesn’t  exist under New York law. Additionally, she noted that even if such a claim did exist in New York law: “it is patently ridiculous to claim that the privacy of the President of the United States has been violated by a book reporting on his campaign and his actions in office.”
  • Re document preservation, Ms. McNamra stressed that her clients “will comply with any and all document preservation obligations that the law imposes on them.”
  • Charles J. Harder

    President’s duty to preserve documents: “[W]e must remind you that President Trump, in his personal and governmental capacity, must comply with the same legal obligations regarding himself, his family members, their businesses, the Trump campaign, and his administration, and must ensure all appropriate measures to preserve such documents are in place,” McNamara wrote. “This would include any and all documents pertaining to any of the matters about which the book reports.”

  • “Should you pursue litigation against Henry Holt or Mr. Wolff, we are quite confident that documents related to the contents of the book in the possession of President Trump, his family members, his businesses, his campaign, and his administration will prove particularly relevant to our defense.”
  • No apologies: “My clients do not intend to cease publication, no such retraction will occur, and no apology is warranted.”
Related

→ Porter Anderson, Macmillan CEO Memo to Employees in Response to Trump’s Cease-and-Desist Letter, Publishing Perspectives, January 8, 2018

 →Robert Barnes, Trump faces uphill battle in trying to block critical book, legal experts say, Washington Post, January 4, 2018

 →FAN 99.2, Trump on Libel Law & Freedom of the Press, February 27, 2016

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FAN 172.1 (First Amendment News) Spielberg’s “The Post” — More Fiction Than Fact

James Goodale

“The Post, which opens tonight, is a good movie but bad history. It exaggerates the role of The Washington Post in the success of the publication of the Pentagon Papers and the subsequent Supreme Court case. It downplays the role of the true catalyst in the real life drama: The New York Times. Kay Graham and Ben Bradlee, who were good friends of mine, must be rolling over in their graves laughing at the roles Hollywood has given them.”

Thus begins James Goodale’s op-ed in The Daily Beast. Recall, that Mr. Goodale was the former vice president and general counsel for The New York Times and, later, the Times’ vice chairman. It has been reported that Goodale was “the leading force behind the Times’ decision to publish the Pentagon Papers in 1971.” He is also the author of Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles (2013). In other words, he is someone quite familiar with the real story of the Pentagon Papers episode.

The Post, adds Goodale, “is about Katherine Graham’s decision to publish the Pentagon Papers. It creates a false impression that the Post was a major player in such publication. It’s as though Hollywood had made a movie about the Times’ triumphant role in Watergate. In fact, the Post had as much to do with the Pentagon Papers as the Times did with Watergate. But then again, we don’t look to Hollywood for history but entertainment, and The Post is good entertainment at the Academy Award level. . . .”

“While The Washington Post gets the lion’s share of the glory in the movie, it was the Times that did the vast majority of the hard work and took on far more risk in publishing the Pentagon Papers.”

Goodale closes his op-ed with this observation: “The Times eventually won the Pulitzer Prize. It did not share this prize with the Post any more than the Post shared its prize for its Watergate coverage with the Times. For Hollywood now to create the impression that The Washington Post was the key driver responsible for the publication of the Pentagon Papers or the case is—well, it’s Hollywood: good drama but bad history.”

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FAN 172 (First Amendment News) Books Issue — 15 New or Forthcoming Titles

Prof. Jerome Barron

It began nearly a quarter-century ago with the publication of First Amendment Law in a Nutshell. Now, that treasure trove of information appears yet again in “nutshell” form, this in its fifth edition. Compact in size, accessible in style, reliable in substance, and current up to Matal v. Tam (2017), this jem of a book is an indispensable resource for anyone interested in the First Amendment’s five freedoms.

Sadly, Jerome Barron’s friend and co-author Thomas Dienes died in 2013. “I did not have the joy the joy of working with him in this edition,” wrote Barron, “as I did in the first four editions of this book. I miss the benefit of his knowledge, insight and friendhip but I am grateful for the many years in which we worked on this and other books.”

Abstract: This book provides a short and readable source for individuals interested in constitutional law, First Amendment law, and communications law. It is divided into four parts: the history, methodology, and philosophical foundations of the First Amendment; topics such as First Amendment issues that arise in cable television and in regulating children’s access to the Internet; issues in First Amendment law such as the public forum doctrine, the compelled speech doctrine, and the free expression rights of government employees; and the text, history, and theory of the religion clauses, chronicling the ongoing battle in the Supreme Court between accommodationists and separationists. The Fifth Edition brings the book up to date with modern First Amendment jurisprudence, including a focus on racist and offensive speech, electoral spending, and other topics covered by recent Supreme Court cases and discussions.

Jerome Barron & C. Thomas Dienes, First Amendment Law in a Nutshell (West Academic Publishing, 5th ed., November 20, 2017)

Brand New: Fellion & Inglis on Literary Censorship

→ Matthew Fellion & Katherine Inglis, Censored: A Literary History of Subversion and Control (The British Library Publishing Division, September 28, 2017)

Brand New: Fronc on Movie Censorship

Jennifer Fronc, Monitoring the Movies: The Fight over Film Censorship in Early Twentieth-Century Urban America (University of Texas Press, November 15, 2017)

Brand New: More on Film Censorship

 Jememy Geltzer, Film Censorship in America: A State-by-State History (McFarland, November 3, 2017)

Brand New: Free Speech & Hollywood (1907-1927)

→ Jay Douglas Steinmetz, Beyond Free Speech and Propaganda: The Political Development of Hollywood, 1907–1927 (Lexington Books, November 24, 2017)

Coming this January: Easton on the Lawyer for The Masses

→ Eric B. Easton, Defending the Masses: A Progressive Lawyer’s Battles for Free Speech (University of Wisconsin Press, January 9, 2018)

Coming this January: New Life for the Press Clause?
Read More

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FAN 171.1 (First Amendment News) Met Refuses to Remove 1938 “Offensive” Painting — Free Speech Advocates Rally to Museum’s Defense

Throughout his career, Balthus rejected the usual conventions of the art world. . . Prime Ministers and rock stars alike attended the funeral of Balthus. Bono, lead-singer of U2, sang for the hundreds of mourners at the funeral, including the President of France . . . and others.  Elisa 47

Moral panics often inspire demands for censorship and this is no exception. The MET absolutely made the right decision.  Robert Corn-Revere

* * * * 

Thérèse Dreaming (Metropolitan Museum of Art)

Censorship is never a safe haven for art, be it paintings, photos, poems, films, or music. Could art, as we know it in our constitutional government, exist if it could not be offensive at times? After all, safe, sanitary, and uncontroversal art is never in need of First Amendment protection. The 1791 guaranty is there to protect art that sometimes offends, that sometimes angers, and that sometimes even trades in taboo. Or so goes the creed of the defenders of free expression who came to the defense of The Metropolitan Museum of Art’s refusal to remove a painting that some critics believe depicts “the sexualization of a child.” That painitng is Thérèse Dreaming, a 1938 work by Balthus.

Here is how the Met describes it: “With closed eyes, Balthus’s pubescent model is lost in thought. Thérèse Blanchard, who was about twelve or thirteen at the time this picture was made, and her brother Hubert were neighbors of Balthus in Paris. She appears alone, with her cat, or with her brother in a series of eleven paintings done between 1936 and 1939.”

Others see it differently.  As reported by Natalie O’Neill in a story in the New York Post: “‘The artist of this painting, Balthus, had a noted infatuation with pubescent girls and this painting is undeniably romanticizing the sexualization of a child,’ writes Mia Merrill, 30, a New York City entrepreneur who started the petition. ‘Given the current climate around sexual assault … The Met is romanticizing voyeurism and the objectification of children.'”

→ See petititon: “Metropolitan Museum of Art: Remove Balthus’ Suggestive Painting of a Pubescent Girl, Thérèse Dreaming” (10,995 supporters). Here are a few excerpts from that petition:

  • “When I went to the Metropolitan Museum of Art this past weekend, I was shocked to see a painting that depicts a young girl in a sexually suggestive pose. Balthus’ painting, Thérèse Dreaming, is an evocative portrait of a prepubescent girl relaxing on a chair with her legs up and underwear exposed.”

(From online petition)

  • It is disturbing that the Met would proudly display such an image. . .  The artist of this painting, Balthus, had a noted infatuation with pubescent girls, and it can be strongly argued that this painting romanticizes the sexualization of a child.”

Removal or Trigger Warning Urged

  • “I am not asking for this painting to be censored, destroyed or never seen again. I am asking The Met to seriously consider the implications of hanging particular pieces of art on their walls, and to be more conscientious in how they contextualize those pieces to the masses. This can be accomplished by either removing the piece from that particular gallery, or providing more context in the painting’s description. For example, a line as brief as, ‘some viewers find this piece offensive or disturbing, given Balthus’ artistic infatuation with young girls.‘”

Ms. Mia Merrill

 Mia Merrill Twitter message: “I put together a petition asking the Met to take down a piece of art that is undeniably romanticizing the sexualization of a child. If you are a part of the movement or ever think about the implications of art on life, please support this effort.”

Met Responds

As reported in the Post, Kenneth Weine, spokesman for the Met, stated:“[Our] mission is to collect, study, conserve, and present significant works of art across all times and cultures in order to connect people to creativity, knowledge, and ideas.  Moments such as this provide an opportunity for conversation, and visual art is one of the most significant means we have for reflecting on both the past and the present.”

Free-Speech Advocates Defend Met

  • “The National Coalition Against Censorship (NCAC) strongly supports The Metropolitan Museum of Art’s refusal to remove a painting that some critics believe depicts ‘the sexualization of a child.’ . . . The protesters’ claim that displaying the painting implies institutional approval of an unhealthy sexualization of young women . . . fundamentally misconstrues the role of cultural institutions, which is to facilitate a diverse public’s engagement with a rich array of cultures and objects by framing and contextualizing them. . . . NCAC applauds The Met’s refusal to bow to its critics. We will continue to support cultural institutions that allow members of the public to make up their own minds about what is ‘offensive.'”

“Great museums don’t need to be lectured about the supposedly baleful impact of their exhibitions; in each generation, they need to be protected from well-meaning but art-threatening ning censors who seek to substitute their notions of morality for artistic judgments about what to paint and what to display.” — Floyd Abrams, Senior Counsel, Cahill Gordon & Reindel

— “Especially in light of the Museum’s advance notice to potential viewers that “Some of the paintings in this exhibition may be disturbing to some visitors,” it would be inappropriate for the Museum to deprive all visitors of the opportunity to view the work and to discuss the issues it illuminates. This is particularly true during this “Me Too” moment, given the important public focus on pertinent issues, including Roy Moore’s sexual pursuit of young females.” — Nadine Strossen, John Marshall Harlan II Professor of Law, New York Law School

 “The Metropolitan Museum of Art has been forced to respond to would-be censors since the 1880s. The claim of harm to children was always the easiest to make. During the era in which Comstock Laws were enforced most broadly, reproductions of nudes exhibited at the Met were deemed obscene, burned and destroyed, while the originals were held to be art, and therefore not subject to suppression. Claims were made by Comstock and his employers about the ways in which the particular effects of originals ameliorated their ‘bad tendencies’ but in reality this responded to the political problems raised by questioning the morals of wealthy donors. Bravo, Met, once again.” — Amy Werbel, Associate Professor, Fashion Institute of Technology, State University of New York and author of Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock (forthcoming 2018)

Woodhull Freedom Foundation does not support censorship in any form, especially when it comes to works of art that raise troubling themes. We do support high standards for interpretive materials and believe that at their best they should reflect the most current understanding or knowledge about an artist, issue, historical era, or work of art. While coverage of this petition has focused on the call to remove the work, we do note that the author of the petition offers a choice, where providing better interpretive material would facilitate the display of the work in question.”  — Elizabeth Wood, Senior Strategist, Woodhull Freedom Foundation