Author: Ronald K.L. Collins


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

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

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

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

Greg Lukianoff

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

Jonathan Haidt (credit: Dartmouth Review)

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

Early Reviews:

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

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

—- On Judge Kavanaugh & Campaign Finance Laws —-

Professor Richard Hasen (credit: Zócalo Public Square)

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

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

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

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

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

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

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

Can Free Speech Be Progressive? — The Dialogue Continues

Professor Michael Seidman (credit: Book TV)

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

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

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

→ Moderated by John Samples, Vice President, Cato Institute

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

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

_______________New Podcast_________________

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

Professor Teresa Bejan

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

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

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

_______________First Amendment Teachers’ Guides_________________

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

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

_______________New Article_________________

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

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

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

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

Last FAN # 199.7ACLU Targets Panhandling Laws Across the Nation


FAN 199.7 (First Amendment News) ACLU Targets Panhandling Laws Across the Nation

The sampling of  the  stories listed below reveals that the American Civil Liberties Unions and its various chapters are engaged in an all out assault on panhandling laws across the nation. While commercial speech has long been given First Amendment protection, life-sustaining speech (e.g. begging) has not received anywhere the same kind of constitutional attention . . . until now. 

  1. ACLU: Panhandling ordinances in three Iowa cities are unconstitutional, DesMoinesRegister
  2. New Mexico ACLU targets panhandling laws, Santa Fe New Mexican
  3. ACLU of Iowa targets panhandling ordinances, Sioux City Journal
  4. ACLU demands cities scrap panhandling ordinances, WAND
  5. ACLU challenging panhandling laws in northern Colorado, The Denver Channel
  6. ACLU of Vermont asks towns to repeal anti-panhandling laws, San Francisco Chronicle
  7. ACLU challenges Rockford, state panhandling ordinancesWIFR (Chicago)
  8. Groups challenging Illinois panhandling ordinances, Chicago Sun-Times
  9. ACLU files lawsuit against City of Greensboro over panhandling, (North Carolina)

→ See also 

Related — Clash within ACLU over First Amendment defense of NRA

It is a trusism: any organization that defends robust free-speech freedoms must be prepared for some dissension in its ranks. And any group with such policy must stand ready to receive criticisms of its reasons for defending any given form of speech or for not defending it. So it is, and has long been, with the American Civil Liberies Union.

A recent FAN post was titled “ACLU’s David Cole defends NRA’s political speech rights” (see also Matt Ford’s “Andrew Cuomo’s Trumpian War on the NRA,” The New Republic, Aug. 28, 2018).

Fate being what it is, there is dissent in the ACLU big tent. A story in Slate by Mark Joseph Stern provides some backdrop behind the story of the national ACLU’s defense of the NRA’s First Amendment claims and some of the responses to it:

“Shortly before the American Civil Liberties Union filed a brief in support of the National Rifle Association on Friday, David Cole, the ACLU’s national legal director, sent out a short email to staff. Cole explained that he felt that New York Democratic Gov. Andrew Cuomo had ‘explicitly target[ed] the NRA’ based on its “constitutionally protected political advocacy” by advising banks and insurers not to do business with the pro-gun group. ‘If the state can penalize gun promotion advocacy groups by threatening their service providers,’ Cole continued, “it can do the same to other groups”—including Black Lives Matter. Thus, the ACLU had decided to urge the courts to ‘carefully scrutinize’ whether Cuomo has tried to unconstitutionally punish the NRA based on ‘hostility to [its] viewpoint.'”

“Within hours, the organizationwide listserv had lit up. Staffers at both the national office and state affiliates wrote back to register their frustration with Cole’s decision. The ACLU of New York sent out a statement on Monday explaining why it had declined to support the national office’s position. Some attorneys vigorously defended the group’s brief; others cautiously endorsed it, while complaining that its authors had failed to seek input from other stakeholders before committing to a contentious stance. Privately, some litigators fumed, concerned that the organization had needlessly tarnished its reputation by devoting limited resources to help the NRA, a formidable lobbying group with the means to defend itself.”

_______________Unrelated — Floyd Abrams in the News __________________


FAN 199.6 (First Amendment News) ACLU’s David Cole defends NRA’s political speech rights

Substitute Planned Parenthood or the Communist Party for the NRA, and the point is clear. If [Gov.] Cuomo can [target] the NRA, then conservative governors could have their financial regulators threaten banks and financial institutions that do business with any other group whose political views the governor opposes. — David Cole

David Cole

Over at the natioanl ACLU’s website there is a piece by David Cole, the group’s legal director. The piece is titled “New York State Can’t Be Allowed to Stifle the NRA’s Political Speech.” Here are a few excerpts from the piece:

“[I]n a lawsuit the NRA filed against [N.Y. Gov. Andrew] Cuomo this spring, the organization contends that he did more than criticize it. The NRA alleges that Cuomo and top members of his administration abused their regulatory authority over financial institutions to threaten New York banks and insurers that associate with the NRA or other “gun promotion” groups, and that those threats have jeopardized the NRA’s access to basic insurance and banking services in New York.”

“In the ACLU’s view, targeting a nonprofit advocacy group and seeking to deny it financial services because it promotes a lawful activity (the use of guns) violates the First Amendment. Because we believe the governor’s actions, as alleged, threaten the First Amendment rights of all advocacy organizations, the ACLU on Friday filed a friend-of-the-court brief supporting the NRA’s right to have its day in court.”

“The state has asked the court to dismiss the case without even permitting discovery into the administration’s actions. Our brief supports the NRA’s right to discovery on its First Amendment claims. To be clear, the ACLU does not oppose reasonable restrictions on guns (you can read more about that here). Our position in this case has nothing to do with our opinions on the NRA’s policies — it’s about the First Amendment rights of all organizations to engage in political advocacy without fear that the state will use its regulatory authority to penalize them for doing so.”

“The NRA points to both public and non-public actions taken by the Cuomo administration to penalize it for its views. State officials issued press releases and sent threatening letters to banks and insurance companies, and also allegedly communicated ‘backchannel threats’ to companies with ties to the NRA, warning that they would face regulatory action if they failed to end their relationships with the organization.”

“If the NRA’s charges are true, the state’s actions would clearly violate the First Amendment. Public officials are, of course, free to criticize groups with which they disagree. But they cannot use their regulatory authority to penalize advocacy groups by threatening companies that do business with those groups. And here the state has admitted, in its own words, that it focused on the NRA and other groups not because of any illegal conduct, but because they engage in “gun promotion” — in other words, because they advocate a lawful activity.”

“. . . . The NRA says that it has since had serious difficulty replacing its corporate insurance because nearly every potential replacement was afraid of being investigated by the state. The NRA also says that numerous banks have withdrawn bids to provide basic financial services because the April letters from the state indicated that any association with the NRA could expose them to regulatory retaliation.”

“The state argues that even if all of the NRA’s claims are true, the First Amendment doesn’t apply. We disagree, and as we note in our brief, dismissing the NRA case “would set a dangerous precedent for advocacy groups across the political spectrum. Public officials would have a readymade playbook for abusing their regulatory power to harm disfavored advocacy groups without triggering judicial scrutiny.”

There is more — read the entire piece here.


FAN 199.5 (First Amendment News) 17 Groups Issue Statement Condemning “Trump’s Effort to Intimidate Book Publisher”

Reecently, the National Coalition Against Censorship (NCAC) joined 16 other organizations in condemning President Trump’s effort to intimidate a book publisher by threatening legal action. The joint statement, released on August 17, 2018, states that the President’s attempts to intimidate book publishers will fail.

According to that statement: “For the second time this year, President Trump has attempted to intimidate a book publisher. Unhinged: An Insider’s Account of the Trump White House, a book by Omarosa Manigault-Newman, contains statements that the president finds ‘disparaging.’ A letter sent to the book’s publisher, Simon & Schuster, claims that the publisher is liable for ‘substantial monetary and punitive damages.'”

“The statement stresses how important free speech and access to information about public matters are to the American people. The U.S. Supreme Court has declared that public debate on issues may include ‘vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.’ Statements about the current administration, however unpleasant, are crucial so the public has information to make informed decisions. Efforts to undermine freedom of speech and freedom of the press are, the statement reads, ‘the hallmark of a totalitarian regime.'”

The statement and the full list of signatories can be found here.



FAN 199.4 (First Amendment News) Volokh on “Super-Secret Prior Restraints”

Over at The Volokh Conspiracy (on blog, Professor Eugene Volokh has some quite thoughtful observations on a most unusual case.  The controversy arose in connection with an extortion case and a court-0rdered sealed emergency speech-restrictive injunction, a matter about which Volokh wrote about earlier.

Since then, the judge in the state district court of Garfield County, Oklahoma, issued a permenant injunction.

Here is how Porfessor Volokh summed up his take on the matter as of that point in time:

Professor Eugene Volokh

“This seems to me an interesting test case for many recurring questions about the First Amendment and injunctions:

  • “Should courts be able to order people not to reveal certain information because they acquired it unlawfully, because revealing it would be a breach of a duty of confidentiality, or because it is allegedly false?
  • Should it matter that the person’s motives for threatening to reveal the information seem to be extortionate—and, if so, should the court try to enjoin just the extortion, or also enjoin the revelation of the information, period?
  • Should the victims of this apparent attempted extortion be only able to proceed by calling on criminal prosecutors, or should courts be able to supplement this criminal process with fast-moving emergency injunctions? (Acosta was never prosecuted; PSSI’s counsel tells me that this is because law enforcement couldn’t locate him, and he wasn’t heard of again after being served on April 27.)
  • Was the injunction correct in barring Acosta “from contacting any governmental agency or media outlet regarding his allegations”? Or should any duty of confidentiality in such a case be rejected as against public policy, when it bars people from alerting the U.S. Department of Agriculture (or similar agencies) to possible health risks—however ill-intentioned the people were when they gathered the information, and however spurious those allegations may (or may not) prove to be when the government does investigate them?”

“These are all interesting questions, I think, and ones much worth debating. It’s certainly possible (though I think not obvious) that the right answer to those questions is that PSSI should have prevailed under all of them.”

The conceptual plot thickens

“But the problem is that it was impossible for anyone to debate them, because all the documents in the case (though, thankfully, not the docket) were sealed. I think this sealing violated the common-law and First Amendment rights of access to court records; those rights aren’t absolute, but they are quite strong, especially when sealing of entire documents (including court orders) is involved. (See this post about a different case for more on that body of law.) Moreover, as I argued in this post from two months ago, an Oklahoma statute expressly requires that any sealing order itself be public, and expressly explains why the case was sealed; in this instance, this statute wasn’t followed. (The statute was enacted in 2014, and might thus not have been on the judge’s radar.)”

Sealed Orders Unsealed 

“Fortunately, after I moved in June of this year to unseal the sealing orders—a first step towards unsealing the rest of the case—the judge promptly did so (without objection by PSSI). And as I was preparing a motion to unseal the rest of the case, the judge, to his credit, himself issued an order to show cause why the case shouldn’t be unsealed. PSSI responded that it didn’t object to the unsealing at this point, “because Defendant’s allegations regarding the presence of bacteria on equipment at the Enid Plant have been definitively proven to be false and the emergent concerns associated with the disclosure of the allegations have since subsided.” The case was indeed unsealed several days ago.”

Some New Questions

“So, to the questions I ask above, I should also add:

  • Should such disputes be litigated under seal—on the theory that this is the only way to effectively prevent the harm caused by defendant’s apparently tortious conduct—or should they be litigated in open court, on the theory that it is important for the public to be able to “monitor the functioning of our courts, thereby insuring quality, honesty and respect for our legal system”?
  • Indeed, might such monitoring be especially important precisely when the courts are issuing orders restricting people from speaking—including through allegations (whether or not the courts view them as well-founded) of serious risks to public health?”

To read the full blog post, replete with all the incredible factual background, go here.


Nation’s only History Book Festival returns to Lewes, DE — Sept. 28th & 29th

I had the great privilege of presenting at the 2017 History Book Festival. It was an absolute delight. The organizers and hosts were extraordinarily hospitable, the events were well attended and lively, the audience was bubbling over with questions. Overall, it was a terrific and memorable experience. Great start! And, to top it off, the town of Lewes is lovely.

Geoffrey StoneSex & the Constitution: Sex, Religion, & Law from America’s Origins to the Twenty-First Century (2017)


The nation’s only History Book Festival returns to Lewes, DE., for its second year.

History Book Festival Speakers

Friday Sept. 28th & Saturday Sept. 29th

KEYNOTE (Friday Evening Sept. 28th / tickets here) 

— Blanche Wiesen Cook

  •  Eleanor Roosevet: The War Years & After, 1939-1962 (vol. 3)

 Interviewed by Paul Sparrow, Director of the FDR Library

 Musical accompaniment by David Cieri, composer for the Ken Burns documentary on FDR

_________________Saturday Sept. 29th_________________

 Lighting the Fires of Freedom: African American Women in the Civil Rights Movement by Janet Dewart Bell 

 Young Benjamin Franklin: The Birth of Ingenuity by Nick Bunker

The Comeback: Greg LeMond, the True King of American Cycling, and a Legendary Tour de France by Daniel de Visé

Valley Forge by Bob Drury and Tom Clavin,

Dinner in Camelot: The Night America’s Greatest Scientists, Writers, and Scholars Partied at the Kennedy White House by Joseph A. Esposito

Tinderbox: The Untold Story of the Up Stairs Lounge Fire and the Rise of Gay Liberation by Robert W. Fieseler,

The Royal Art of Poison: Filthy Palaces, Fatal Cosmetic, Deadly Medicine, and Murder Most Foul by Eleanor Herman

— The Lost Locket of Lewes (children’s historical fiction) by Ilona E. Holland, Ed.D

Damnation Island: Poor, Sick, Mad, and Criminal in 19th-Century New York by Stacy Horn

Kosher USA: How Coke Became Kosher and Other Tales of Modern Food by Roger Horowitz

The Hunger (historical fiction), by Alma Katsu

The Kennedy Debutante (historical fiction) by Kerri Maher 

The Widows of Malabar Hill (historical fiction) by Sujata Massey 

Five for Freedom: The African American Soldiers in John Brown’s Army by Eugene L. Meyer

The Rise of Yeast: How the Sugar Fungus Shaped Civilization by Nicholas P. Money

Inspector Oldfield and the Black Hand Society: America’s Original Gangsters and the U.S. Postal Detective Service Who Brought Them to Justice by William Oldfield and Victoria Bruce

Delaware’s John Dickinson: The Constant Watchman of Liberty 

— Chesapeake Requiem: A Year with the Watermen of Vanishing Tangier Island by Earl Swift

Miles and Me by Quincy Troupe

Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock by Amy Werbel 

Not Our Kind (historical fiction) by Kitty Zeldis


FAN 199.3 (First Amendment News) Knight Institute and Campaign for Accountability Urge Proactive Disclosure of “Secret Law” Governing Executive Branch

NEW YORK (Aug. 16, 2018) — The Knight First Amendment Institute at Columbia University and Campaign for Accountability yesterday filed an amicus brief urging a federal appeals court to rule that the Office of Legal Counsel (OLC) must proactively process its formal written opinions for public release under the Freedom of Information Act.

“The Office of Legal Counsel’s formal written opinions have become the shadow law of our democracy,” said Alex Abdo, a senior staff attorney at the Knight Institute. “The Freedom of Information Act requires the government to expose this secret body of law to the light of day.”

“The Office of Legal Counsel has created a large body of secret law, and government lawyers are the only ones who know what it says,” said Daniel Stevens, executive director of Campaign for Accountability. “The Department of Justice’s refusal to release its legal opinions directly contradicts our country’s core belief in the rule of law. It’s time for the court to put an end to this practice and force the Department of Justice to release its legal opinions.”

The brief, submitted in the lawsuit Citizens for Responsibility and Ethics in Washington v. Department of Justice, contends that the OLC’s formal written opinions, which address thelegality of policies on issues ranging from immigration to national security, function as the authoritative law of the executive branch. The Freedom of Information Act’s “reading-room” provision, as interpreted by the Supreme Court, requires agencies to proactively process for release agency records that have “the force and effect of law.” At present, however, the Justice Department discloses only certain OLC formal opinions on a case-by-case basis. The brief asks the court to hold that the OLC is required to proactively disclose its formal opinions as a general matter.

Campaign for Accountability, represented by the Knight Institute, is litigating a lawsuit, filed in 2016, that likewise seeks to establish that the OLC’s formal written opinions generally have “the force and effect of law,” and must therefore be proactively processed under FOIA. Last month, the Knight Institute argued the suit before the United States District Court in Washington D.C., and a decision is pending.

For more information, contact the Knight Institute at


New Book — “Waging Justice: A Doctor’s Journey to Speak Truth and Be Bold” by Paul Zeitz

Waging Justice is a deeply personal story of courage and compassion with global implications. Dr. Zeitz is a man of conscience who shares my commitment to bringing hope to the world’s poor. Please read Waging Justice. You won’t regret it! —Archbishop Emeritus Desmond Tutu

* * * * *

Paul Zeitz, Waging Justice: A Doctor’s Journey to Speak Truth and Be Bold (June 15, 2018) (author website here)

In unflinching prose, Dr. Paul Zeitz shares a lifetime of struggles and hard-won lessons as a doctor, activist, father, and son. His complex dance between healing others and healing himself ultimately transforms the inexplicable anger and disappointment he felt at the state of the world and his own past into full throttled, open-hearted, soul-satisfying action set with his family and on a global stage.

Waging Justice is a personal story and also a universal one: a story of action, of courage, and of forgiveness; and a rallying cry to wage justice in our lives, speak the truth, be bold, serve justice for all by taking action in the world today.

* * * * *

Dr. Paul Zeitz

Advance Praise Read More


FAN 199.2 (First Amendment News) Forthcoming — Special 200th Issue: All-Women Contributors

In September, we will celebrate the 200th posting of the regularly scheduled issue of First Amendment News. The first issue of FAN appeared on February 10, 2014 on the Concurring Opinions website.  

Kellye Testy

To mark the 200th posting we have organized a special online symposium, the first of its kind either online or in print (as far as I know).  The symposium will consist of an all-women issue — 16 women writing original essays on various aspects of freedom of expression under the First Amemdment. The issue will include essays by noted law professors, lawyers, activists, and journalism and communications scholars.

The forthcoming issue follows on the heels of FAN 199, another Special Issue — 38 Women Who Argued First Amendment Free Expression Cases in the Supreme Court: 1880 -2018

 Kellye Testy (President of the Law School Admission Council,  former president of the AALS & former Dean of the University of Washington Law School) is writing the foreword to the symposium. 

The 16 Confirmed Contributors are:

Jane Bambauer

Mary Anne Franks

Sarah C. Haan

Laura Handman

Marjorie Heins

Margot Kaminski

Genevieve Lakier

Lyrissa Lidsky

Jasmine McNealy

Helen Norton

Tamara Piety

Ruthann Robson

Kelli Sager

Alison Schary

Morgan Weiland

Sonja West


FAN 199.1 (First Amendment News) Two New Podcasts — Dissent in the Era of the Gutenberg Press & Free Speech in the Robotic Era

Two new podcasts — the subjects which are separated in time but not in concept — address the relationship between the modes of communication and censorship.  The first is a Clear & Present Danger podcast by Jacob Mchangama entitled The Great Disruption – Part II. The second is a So to Speak podcast narrated by Nico Perrino entitled Robotica: Speech Rights & Artificial Intelligence and consists of an interview with Ronald Collins and David Skover.

In episode 11 we continue to survey the wreckage after hurricane Luther was unleashed on Europe with the Reformation. When the Reformation mutated and spread across the continent a burning question arose: Can people of different faiths live together in the same state? Should social peace be based on tolerance or intolerance? We look into questions such as

  • How did other Protestant reformers like Calvin and Zwingli react to religious dissent?
  • In what manner did English and continental censorship laws differ?
  • How did the Catholic Church react to the Reformation?
  • Which states were the first to formalize religious tolerance?
  • How did the scientific and philosophical ideas of Galileo and Giordano Bruno conflict with the religious monopoly on truth and what were the repercussions?

___________________So to Speak podcast_______________________

David Skover (left), Ronald Collins (center) & Nico Perrino (right)

On this episode of So to Speak: The Free Speech Podcast, we are joined by First Amendment scholars Ronald Collins and David Skover. They are the authors of the new book, Robotica: Speech Rights & Artificial Intelligence.

From the printing press to the internet, advances in communications technology often upset the established order and spawn demands for censorship. There is little reason to suspect advances in artificial intelligence will be treated differently. As free speech advocates, how should we respond to these demands?

To answer that question, Collins and Skover argue that we need to take a step back and ask some more fundamental questions about the values we seek to advance in protecting speech in the first place.

___________________Make No Law podcast_______________________

Everyone loves a good redemption story. Maybe that’s because it helps us believe it’s never too late to change. But how does the same Justice who decided Schenck v. United States, a low point for First Amendment jurisprudence, become the ultimate source of famous First Amendment concepts and rhetoric?

In this episode of Make No Law, the First Amendment Podcast by, host Ken White explores Justice Oliver Wendell Holmes’s transformation into the First Amendment hero we know him as today. To do this, Ken discusses the Sedition Act of 1918, Holmes’s dissent in United States v. Abrams, and the discourse with his friends and colleagues that ultimately swayed his opinion on free speech. He also talks to Professor Thomas Healy, First Amendment and constitutional law professor at Seton Hall and author of The Great Dissent: How Oliver Wendell Holmes Changed His Mind And Changed The History Of Free Speech In America.