Category: Constitutional Law

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FAN 196.1 (First Amendment News) Summertime: Free Speech Podcasts to Check Out

It’s summertime and the livin’ is easy (channeling Ella Fitzgerald & Janus Joplin). So, if you’re driving to the beach, or at the beach under an umbrella, or in a hammuck watching the stars, why not plug into a mind-opening podcast on free speech? Sound inviting?  If so, check out these great podcasts (all free!):

  1. Fire in a Crowded Theater (Ken White explores the origins of the phrase “You can’t yell ‘fire’ in a crowded theater” and whether or not it actually calls for exceptions to the First Amendment.)
  2. Street (In this episode, host Ken White examines Street v. New York, the Supreme Court case which concluded that the First Amendment allows freedom of expression towards the American flag.
  3. Crush (Ken White and guest Marc Randazza examine the question of whether the government can continually come to the Supreme Court with potential exceptions to the First Amendment._

  1. The Great Disruption: Part I: The Printing Press and the Viral Reformation (In episode 10, we cover the invention, spread, and effects of the Gutenberg printing press:
  • What significance did this new technology have for the dissemination of knowledge and ideas?
  • Why was the printing press instrumental in helping a German monk and scholar break the religious unity of Europe?
  • What happened when new religious ideas raged through Europe like wildfire?
  • And did Martin Luther’s Reformation lead to religious tolerance and freedom, or persecution and censorship?)

2.  Expert Opinion: Christime Caldwell Ames (Our last stop in the Middle Ages is an interview with professor Christine Caldwell Ames, who is an expert on medieval heresy and inquisition in Judaism, Christianity, and Islam. The discussion highlights the similarities and differences between Christianity, Catholic and Orthodox, Judaism, and Islam when it comes to defining and policing orthodoxy.)

3.  The Hounds of God — Medieval Heretics & Inquisitors (From the High Middle Ages, Europe developed into a “persecuting society,” obsessed with stamping out the “cancer” of heresy. But questions about how this was accomplished — and the consequences of these developments — abound)

  1. Supreme Court Review: Kennedy, Kavanaugh, and “weaponizing the First Amendment” (On this episode of So to Speak, we discuss President Donald Trump’s nomination of Brett Kavanaugh to the United States Supreme Court and what it might mean for the First Amendment. We also review Anthony Kennedy’s legacy, the free speech cases from this past Supreme Court term, and Justice Elena Kagan’s contention that some of her colleagues are “weaponizing the First Amendment.” The guests on today’s show are: Paul Sherman: Senior attorney, Institute for Justice Bob Corn-Revere: Partner, Davis Wright Tremaine Walter Olson: Senior fellow, Cato Institute)
  2. ‘HATE’ with Nadine Strossen (On this episode of So to Speak, we welcome back to the show former ACLU president and New York Law Professor Nadine Strossen. She is the author of “HATE: Why We Should Resist It With Free Speech, Not Censorship.” In this new book, she argues that America’s broad protections for hateful speech are a good thing, and that efforts to censor such speech has historically backfired or been proven ineffective.)
  3. Most memorable FIRE cases (In this episode of So to Speak, we take a trip down memory lane. We are joined by FIRE’s Greg Lukianoff, Samantha Harris, and Will Creeley to discuss memorable cases from FIRE’s 19-year history. You can watch a video of this conversation on FIRE’s YouTube channel(youtube.com/thefireorg).

Related

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FAN 196 (First Amendment News) Special Issue: 20 New or Forthcoming Books

 

 

 

 

 

 

 

 

 

 

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        Marvin Kalb (Sept. 25,  2018)         Lukianoff & Haidt (Sept. 4, 2018)          Cynthia Chris (Jan. 2019)

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Banned Books Week 2018, the annual celebration of the freedom to read, will be held September 23 – 29. The 2018 theme, “Banning Books Silences Stories,” is a reminder that everyone needs to speak out against the tide of censorship.

For more information, click here

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Eric Robinson(Dec. 12, 2018)              Larry Brimner (Oct. 9, 2018)               Dan Bernstein (Jan. 1, 2019)

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Christian Cotton & Eric Arp, eds. (Nov. 13)  Kristie Byrum (Aug. 15, 2018)  Mike Ananny (May 4, 2018)

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Bollinger & Stone, eds. (Dec. 3, 2018) Read More

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FAN 195.1 (First Amendment News) Institute for Free Speech Releases the Free Speech Records of Judges on Trump’s Short List

The Institute for Free Speech has just released The Free Speech Records of Judges on Trump’s Short List.

Here is the introduction to its study:

“With Justice Anthony Kennedy retiring, President Trump has a second opportunity to appoint a justice to the Supreme Court.”

“As with the the previous nomination, the Institute for Free Speech seeks to analyze the records of potential nominees to educate the public on where these justices stand on First Amendment issues.”

The “Institute for Free Speech analyses on the free speech records of some of the judges on President Trump’s list of potential nominees. The Institute for Free Speech will continue to update this page with additional analyses until a nominee is named.”

Again, the records of the potential nominees as compiled by the Institute can be found here.

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FAN 195 (First Amendment News) ACLU Free Speech Controversy — Kaminer Responds to Cole + a History of the Controversy

The controversy involving the national ACLU and its free speech policies continues.  The latest round (there were others, see below) began with a Wall Street Journal op.ed by Wendy Kaminer. Here is what followed:

  1. Ira Glasser & Nadine Strossen weigh in on ACLU free speech dispute, FAN 194.6 (June 23, 2018)
  2. ACLU’s David Cole responds to Wendy Kaminer, FAN 194.5 (June 22, 2018)

** See also Volokh Conspiracy June 25, 2018 & June 22, 2018

Related

  1. Lee Rowland, Free Speech Can Be Messy, but We Need It, Speak Freely (ACLU), March 9, 2018
  2. Trend Continues: ACLU’s 2016 Workplan Omits Mention of Protecting First Amendment Free-Expression Rights — No Longer a Fundraising Concern?, FAN 97 (Feb. 10, 2016)
  3. See also links following the reply below.

Here is the latest installment in the Wendy Kaminer-ACLU controversy.

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Wendy Kaminer

Wendy Kaminer

David Cole denies that the ACLU’s new case selection guidelines represent a change in the organization’s commitment to defending the speech it hates. Really? Read the guidelines and draw your own conclusions. After the Wall Street Journal posted them, the ACLU followed suit.

This is what the guidelines propose:

In deciding whether to take a speech case the ACLU should consider: “the impact of the proposed speech and the impact of its suppression”. Factors militating against taking a case include, “the potential effect on marginalized communities; the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values; and the structural and power inequalities in the community in which the speech will occur.”

These are new criteria governing the selection of speech cases, as Ira Glasser has stressed. The ACLU has not previously advised staff to decline representing speakers when the impact of suppressing their speech is outweighed by its content and the harm it poses to social justice.

The ACLU’s David Cole

Cole avoids acknowledging this change by citing a handful of ACLU cases involving speech antithetical to ACLU values. They prove nothing. The guidelines do not provide (and I did not assert) that the ACLU should or would decline all cases involving speech that conflicts with its equality and social justice agenda. But they do provide that the ACLU will not take some of these cases, based on a new balancing test weighing the impact of censorship – and the impact of declining a case on the ACLU’s “credibility”– against the impact on social justice.

Of course the ACLU will continue representing occasional clients whose speech is anathema to ACLU values, and it will continue pointing to these cases when its commitment to free speech is questioned. But the quiet lessening of that commitment over the past decade or so is evident mainly in cases the ACLU hasn’t taken and controversies it hasn’t entered, as I observed in the Wall Street Journal back in 2007. Perhaps the most striking example of its selective defense of speech was the ACLU’s silence in Harper v Poway, a student speech case involving the right to wear a t-shirt with a religious, anti-gay message, at a time when the ACLU was vigorously defending students’ rights to wear pro-gay t-shirts. Tyler Chase Harper lost his case before the 9thcircuit, while the ACLU remained on the sidelines. (The Supreme Court vacated this clearly wrongheaded decision.)

The guidelines confirm a 21sttrend for the ACLU, and the case selection balancing test they describe refutes Cole’s rhetoric about the organization’s unchanged defense of speech. Similar, general assurances of the ACLU’s commitment to free speech are included in the guidelines. But they’re directly contradicted by a recital of specific factors militating against accepting a speech case. The guidelines assert, “the ACLU is committed to defending speech rights without regard to whether the views expressed are consistent with or opposed to the ACLU’s core values, priorities and goals.” Then, a few pages later, they cite as a reason to decline a speech case “the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values.”

What’s going on? How do we account for contradictions like this and the ACLU’s refusal to acknowledge its obvious willingness to elevate social justice concerns over the defense of speech in some cases? The ACLU is confronting a dilemma created by the hostility to free speech of its relatively new progressive constituency and the free speech values of its old guard. It’s also caught between a need to maintain its brand as the nation’s leading, non-partisan free speech champion, while embracing a new partisan political role as a leader of the resistance.

Because the ACLU has long maintained a dual, civil liberties/civil rights agenda it has long confronted conflicts between the drive for equality and defense of speech. But for decades the conflicts were manageable, even invigorating. And while, according to free speech advocates, the organization has sometime erred on the side of equality, it has not previously advised doing so systematically.

Now that its new case selection guidelines have been exposed, thanks to concerned ACLU insiders, we ought to be having a debate about the merits of this new approach to speech cases. Instead, because the ACLU doesn’t want to acknowledge its retreat from the unmitigated defense of allegedly hateful speech, we’re debating whether the guidelines mean what they say.

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The Larger Debate in the Liberal Community 

[T]he ACLU and progressives who might be persuaded by the ACLU’s logic are making a terrible mistake, and one that cannot be justified if one maintains a commitment to political democracy. This error is part and parcel of a broader process whereby the First Amendment has become more a mechanism for protecting class privilege than for protecting and promoting freedom and democracy. — Robert W. McChesney,The New Theology of the First Amendment,” Monthly Review, March 1, 1998 (insert added by rklc) 

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We’re also having an insider discussion about what constitutes ACLU policy and the board’s role in enacting it. Nadine Strossen observes that the guidelines don’t formally change policy, confirming that the board didn’t vote on them. But they will function as a de facto policy change (indicating the board’s irrelevance.) The guidelines are “intended to bind the national legal department,” and seem likely to be followed closely by many ACLU affiliates. (According to my source, the national office now strongly influences affiliate policy and staffing.)

If only the ACLU had issued a press release about the guidelines and posted them on its website when they were formulated, inviting and engaging in an honest debate about them. If only the ACLU had acted according to David Cole’s assertion (following the leak of the guidelines) that it has “nothing to hide.” While free speech advocates like me would still have vigorously critiqued the new balancing test and mourned the loss of an unwavering, unapologetic ally, we would have had no reason to accuse the ACLU of bad faith. And many ACLU supporters would (and probably do) welcome an equivocal defense of hate speech freedoms and a strengthened focus on social justice. That the ACLU is still trying to avoid this debate is another indication of its diminished devotion to its professed free speech ideals.

A Hyperlinked History of the Controversy:  ACLU & the First Amendment 

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FAN 194.11 (First Amendment News) Michael Seidman responds to his critics

Professor Louis Michael Seidman

Their comments have made me think hard about my position, and – at least for me — thinking takes time. — Michael Seidman 

The online dialogue reaches its apex with Professor Michael Seidman’s much awaited rejoinder to the five responses to his essay “Can Free Speech be Progressive?, forthcoming in the Columbia Law Review.

FAN has had the privilege of partnering with Stephen Solomon and Tatiana Serafin over at First Amendment Watch and I hope to do more of the same in the coming months.

Special thanks to Mike Seidman for being such a good sport in agreeing to participate in this online examination of his essay. And, fianlly, thanks to my four colleagues, listed below, for their contributions to this symposium..

Previous Responses 

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Six News Items

Forthcoming

On Thursday, July 5th, FAN will post Wendy Kaminer’s latest reply to David Cole re the ACLU free speech controversy.

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2017-2018 Term: First Amendment Free Expression Cases

Five Cases Decided with Opinions* 

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

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

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

Harris v. Cooper (affirmed, without any written comment)

Vacated & Remanded 

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

Cert. Granted & Cases Argued 

  1. Masterpiece Cakeshop v. Colorado Civil Rights Commission (argument: Dec. 5, 2017)
  2. Janus v. American Federation of State, Municipal and County Employees(argument: Feb. 26, 2018)
  3. Lozman v. City of Riviera Beach, Florida (argument: Feb. 27, 2018)
  4. Minnesota Voters Alliance v. Mansky (argument: Feb. 28, 2018)
  5. National Institute of Family and Life Advocates v. Becerra (argument: March 20, 2018)
  6. Benisek v. Lamone (argument: March 27, 2018)

Pending: Cert. Petitions 

  1. Nieves v. Bartlett
  2. Flanigan’s Enterprises, Inc. v. City of Sandy Springs
  3. Nationwide Biweekly Administration, Inc., et al v. Perez
  4. CTIA v. City of Berkeley 
  5. Berninger v. Federal Communications Commission

Review Denied

  1. Contest Promotions, LLC., v. City & County of San Francisco
  2. Holmes v. Federal Election Commission
  3. Walker v. N.Y.C. Dep’t of Educ. et al.
  4. Shepard v. Florida Judicial Qualifications Commission 
  5. Morris v. Texas(dismissed for want of jurisdiction)
  6. Connecticut v. Baccala
  7. Tobinick v. Novella
  8. Muccio v. Minnesota
  9. Elonis v. United States
  10. Final Exit Network, Inc. v. Minnesota

Free-Speech Related Case: Decided 

  • Carpenter v. United States (Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cellphone user over the course of 127 days are permitted by the Fourth Amendment. — Fourth Amendment claim sustained).

Free-Speech Related Cases: Cert. Denied

  • Blagojevich v. United States (When the Government prosecutes a public official for soliciting campaign contributions in alleged violation of the Hobbs Act or other federal anti-corruption laws, must the Government prove the defendant made an “explicit promise or undertaking” in exchange for the contribution, McCormick v. United States(1991) (emphasis added), as five circuits require, or “only . . . that a public official has obtained a payment . . . knowing that [it] was made in return for official acts,” Evans v. United States (1992), as three other circuits hold?)
  • MasTec Advanced Technologies v. National Labor Relations Board ((1) Whether, under NLRB v. Local Union No. 1229, International Brotherhood of Electrical Workers (Jefferson Standard), an employer may discharge an employee for his or her disloyalty when that employee makes disparaging and disloyal public statements about the employer’s only customer; and (2) whether, in such cases, the employee’s disloyalty is measured under an objective or subjective standard.)
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FAN 194.10 (First Amendment News) Richard Delgado Responds to Michael Seidman’s “Can Free Speech Be Progressive?”

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

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Prof. Richard Delgado (credit: Seattle University)

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

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

Additional posts will continue tomrrow:

Previous Responses 

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2017-2018 Term: First Amendment Free Expression Cases

F ive Cases Decided* 

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

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

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

Vacated & Remanded 

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

Cert. Granted & Cases Argued 

  1. Masterpiece Cakeshop v. Colorado Civil Rights Commission (argument: Dec. 5, 2017)
  2. Janus v. American Federation of State, Municipal and County Employees(argument: Feb. 26, 2018)
  3. Lozman v. City of Riviera Beach, Florida (argument: Feb. 27, 2018)
  4. Minnesota Voters Alliance v. Mansky (argument: Feb. 28, 2018)
  5. National Institute of Family and Life Advocates v. Becerra (argument: March 20, 2018)
  6. Benisek v. Lamone (argument: March 27, 2018)

Pending: Cert. Petitions 

  1. Nieves v. Bartlett
  2. Flanigan’s Enterprises, Inc. v. City of Sandy Springs
  3. Nationwide Biweekly Administration, Inc., et al v. Perez
  4. CTIA v. City of Berkeley 
  5. Harris v. Cooper
  6. Berninger v. Federal Communications Commission

Review Denied

  1. Contest Promotions, LLC., v. City & County of San Francisco
  2. Holmes v. Federal Election Commission
  3. Walker v. N.Y.C. Dep’t of Educ. et al.
  4. Shepard v. Florida Judicial Qualifications Commission 
  5. Morris v. Texas(dismissed for want of jurisdiction)
  6. Connecticut v. Baccala
  7. Tobinick v. Novella
  8. Muccio v. Minnesota
  9. Elonis v. United States
  10. Final Exit Network, Inc. v. Minnesota

Free-Speech Related Case: Decided 

  • Carpenter v. United States (Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cellphone user over the course of 127 days are permitted by the Fourth Amendment. — Fourth Amendment claim sustained).

Free-Speech Related Cases: Cert. Denied

  • Blagojevich v. United States (When the Government prosecutes a public official for soliciting campaign contributions in alleged violation of the Hobbs Act or other federal anti-corruption laws, must the Government prove the defendant made an “explicit promise or undertaking” in exchange for the contribution, McCormick v. United States(1991) (emphasis added), as five circuits require, or “only . . . that a public official has obtained a payment . . . knowing that [it] was made in return for official acts,” Evans v. United States (1992), as three other circuits hold?)
  • MasTec Advanced Technologies v. National Labor Relations Board ((1) Whether, under NLRB v. Local Union No. 1229, International Brotherhood of Electrical Workers (Jefferson Standard), an employer may discharge an employee for his or her disloyalty when that employee makes disparaging and disloyal public statements about the employer’s only customer; and (2) whether, in such cases, the employee’s disloyalty is measured under an objective or subjective standard.)
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Grand Theories & the Path to Censorship: Book Review of “Free Speech Beyond Words” and “The Taming of Free Speech”

I authored a short review of the two books listed below. The review appears in the current issue of the Political Science Quarterly.

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First contention: Attempts to make the First Amendment safe frequently produce censorship. Take risk out of the jurisprudential equation, and little liberty is left. Oliver Wendell Holmes Jr. tagged it an “experiment,” this business of reconciling freedom with security. But experiments sometimes fail, which points back to risk. If one does not consent to these terms of our constitutional compact, then no freedom worth preserving will emerge. Or, to put it more cavalierly: yes, sometimes the Bill of Rights can be like a suicide pact—Justice Robert Jackson’s 1949 admonition in Terminiello v. City of Chicago (337 U.S. 1) notwithstanding, which returns us to Holmes’s Darwinian experiment.

Second contention: Theories of free speech, especially those of the “elevated” or “righteous” kind, lead inescapably to censorship. Take a canonical BIG NORM (for example, truth in the marketplace, self-realization, or democratic participation), link it to the First Amendment, and what inevitably follows is freedom cabined. Know this: the moral reformist and the progressive activist are censorial fellow travelers. Free-speech freedom must stand on its own legs, unfettered by intolerant ideological interventionists.

That conceptual frameworkprovides oneway to gaugemuchofwhatpasses as free-speech theorizing in modern America. Mind you, one need not accept that framework in order to appreciate several of the varied insights offered up in the two important books reviewed here. Moreover, the four authors of the two books under consideration urge us to consider a fundamental question—namely, how should we think about the First Amendment and our free-speech freedoms?

One book (Free Speech Beyond Words) invites us to think—and think hard—about why we protect “speech” that is not literally speech. The other book (The Taming of Free Speech) urges us to think—and think passionately—about the First Amendment as a weapon of the powerless to oppose the powerful.

The first book explains and challenges the existing premises underlying the reasons why some forms of expression (for example, art, music, and “nonsense”) are covered as “speech” under the First Amendment. The other book uses the “right of agitation” (correctly defined, of course) as the benchmark for protected expression.

Free Speech Beyond Words is more philosophical (that is, probative), whereas The Taming of Free Speech is more political and (selectively) historical. With analytical rigor, Mark V. Tushnet, Alan K. Chen, and Joseph Blocher fill diverse forms of expression into assorted doctrinal boxes to avoid reaching the right judicial result for the wrong reasons.

Laura Weinrib’s book, by stark contrast, reveals how a single-concept form of First Amendment jurisprudence (of the liberal left variety) proves the truth of the dangers flagged in my two contentions.

Apparently, the author of The Taming of Free Speech  would consider the following statement heretical: “We are neither anti-labor nor pro-labor. With us it is just a question of going wherever the Bill of Rights leads us.” Thus did Roger Baldwin (1884–1981) of the American Civil Liberties Union (ACLU) view things in 1939. By Weinrib’s measure, that is what is wrong with our free-speech jurisprudence and the modern ACLU’s defense (sometimes incomplete) of it. The powerless (not the powerful), workers (not employers), and individuals (not corporations) deserve First Amendment protection . . . or so her history of the First Amendment would have us believe. While there is more than a dollop of truth here, her jurisprudential key would cabin much of the free-speech freedom we enjoy today, and this in furtherance of Weinrib’s class-based Industrial Workers of the World–like understanding of the First Amendment.

David Cole, the ACLU’s national legal director, is understandably doubtful: “a conception of speech rights that turns on assessments of which views advance the interests of the weak over the strong, or of whether the marketplace of ideas is skewed by inequality, risks giving state officials the power to censor views they disfavor” (New York Review of Books, 23 March 2017).

In the “Going Further” portion of their work, the authors of Free Speech Beyond Words turn to still other forms of expression that are not literally “speech” in order to discern some stopping point to prevent tagging everything speech—for example, from artistic and erotic dance to sports and culinary arts to the digital collection and dissemination of data. Do such forms of expression qualify for coverage under the First Amendment? If so, why? Surely, and as the authors correctly reveal, it cannot be on account of such conceptual touchstones such as the marketplace of ideas or the “checking function” theories of free speech. Good theories, bad applications. To help resolve a given issue, the authors test drive assorted free-speech theories to see how they work in the context of a given form of expression. The problem: this back-and forth form of analysis is indeterminate, as revealed in their examination of data collection and dissemination, which discusses at least three different and sometimes incompatible theories but finds no resolution short of micro case-by-case analysis. Another challenge: have the authors identified all of the applicable theories or only the traditional lineup of hierarchical theories? If not, those problems associated with my second contention might well loom large.

It is true: our First Amendment jurisprudence needs astute thinkers like Professors Tushnet, Chen, and Blocher to get us to reconsider where we have been, where we may be tending, and why.

And what of Professor Weinrib? Yes, there is welcome room for her (and the likes of Steve Shiffrin and his What’s Wrong with the First Amendment) in our grand debate parlor. For what kind of robust First Amendment would we have if not for doctrinal agitators who rail against our “overprotective” free speech jurisprudence?

In the end, one lesson to be gleaned from both of these fine books is that a vibrant First Amendment culture requires a demanding degree of openmindedness.

Take heed!

RONALD K.L. COLLINS , University of Washington, School of Law

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FAN 194.9 (First Amendment News) Ronald Collins Responds to Seidman’s “Can Free Speech Be Progressive?”

News item: Court renders 5-4 opinion in California abortion clinic free speech case — National Institute of Family and Life Advocates v. Becerra (per Thomas, J., for the majority, Kennedy, J., concurring, and Breyer, J., for the dissent).

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Ronald Collins (credit: Bruce Guthrie)

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

Additional posts will continue tomrrow:

Wednesday, June 27:              Richard Delgado
Thursday, June 28:                  Mike Seidman:  Rejoinder

Friday, June 29 onward:        Reader responses

Previous Responses 

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2017-2018 Term: First Amendment Free Expression Cases

Cases Decided 

  1. National Institute of Family and Life Advocates v. Becerra
  2. Masterpiece Cakeshop v. Colorado Civil Rights Commission
  3. Lozman v. City of Riviera Beach, Florida
  4. Minnesota Voters Alliance

Cert. Granted & Cases Argued 

  1. Masterpiece Cakeshop v. Colorado Civil Rights Commission (argument: Dec. 5, 2017)
  2. Janus v. American Federation of State, Municipal and County Employees(argument: Feb. 26, 2018)
  3. Lozman v. City of Riviera Beach, Florida (argument: Feb. 27, 2018)
  4. Minnesota Voters Alliance v. Mansky (argument: Feb. 28, 2018)
  5. National Institute of Family and Life Advocates v. Becerra (argument: March 20, 2018)
  6. Benisek v. Lamone (argument: March 27, 2018)

Pending: Cert. Petitions 

  1. Flanigan’s Enterprises, Inc. v. City of Sandy Springs
  2. Nationwide Biweekly Administration, Inc., et al v. Perez
  3. CTIA v. City of Berkeley 
  4. Harris v. Cooper 
  5. A Woman’s Friend Pregnancy Resource Clinic v. Becerra
  6. Livingwell Medical Clinic, Inc. v. Becerra
  7. Berninger v. Federal Communications Commission

Review Denied

  1. Contest Promotions, LLC., v. City & County of San Francisco
  2. Holmes v. Federal Election Commission
  3. Walker v. N.Y.C. Dep’t of Educ. et al.
  4. Shepard v. Florida Judicial Qualifications Commission 
  5. Morris v. Texas (dismissed for want of jurisdiction)
  6. Connecticut v. Baccala
  7. Tobinick v. Novella
  8. Muccio v. Minnesota
  9. Elonis v. United States
  10. Final Exit Network, Inc. v. Minnesota 

Free-Speech Related Cases: Cert. Granted

  • Carpenter v. United States (Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cellphone user over the course of 127 days are permitted by the Fourth Amendment.)

Free-Speech Related Cases: Cert. Pending

  • Blagojevich v. United States (When the Government prosecutes a public official for soliciting campaign contributions in alleged violation of the Hobbs Act or other federal anti-corruption laws, must the Government prove the defendant made an “explicit promise or undertaking” in exchange for the contribution, McCormick v. United States(1991) (emphasis added), as five circuits require, or “only . . . that a public official has obtained a payment . . . knowing that [it] was made in return for official acts,” Evans v. United States (1992), as three other circuits hold?)

Free-Speech Related Cases: Cert. Denied

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FAN 194.7 (First Amendment News) The public dialogue continues — More from Nadine Strossen on ACLU free speech controversy

The following statement was sent to FAN concerning the ongoing public disuccusion related to the recent ACLU free speech controversy.

The dialogue is also ongoing over at The Volokh Conspiracy blog.

* * * *

Statement of Nadine Strossen

Professor Nadine Strossen

I hasten to add that I agree with the Board’s judgment that these guidelines do not in fact alter the ACLU’s longstanding and proud -although always controversial – policy of defending freedom even for “the thought that we hate,” as Justice Holmes put it.    Rather, the guidelines set forth and explain the factors that have always been pertinent to the intake process.

The guidelines lay out more than a dozen such factors.  The one that has drawn criticism is the potential harmful impact of the speech at issue.  But acknowledging this incontrovertible fact is NOT AT ALL to say that such harm would warrant the ACLU not taking the case.  To the contrary, the guidelines expressly reaffirm that the ACLU will nonetheless do so.  However, that consideration might well influence HOW the ACLU handles the case. Thus, the guidelines address the importance, when taking such cases, of seeking to mitigate the speech’s potential harm through the following means:   retaining the ACLU’s right to speak against the views that it is defending from suppression;  engaging in counter protest when appropriate; consulting with its allies to explain why it is taking the case;  and devoting any attorneys fees earned to the competing civil liberties interests.

In fact, it has been a longstanding ACLU tradition, while defending freedom for anti-civil liberties views, to encourage its supporters to exercise their free speech rights to engage in “counterspeech,” protesting those views.   During my tenure as President, the Board and staff repeatedly discussed such strategic considerations concerning speech with various anti-civil liberties and otherwise noxious messages, while nonetheless defending the right to purvey such messages; for the sake of the ACLU’s effective advocacy and pursuit of its overall mission, it would have been irresponsible not to do so.

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FAN 194.6 (First Amendment News) Ira Glasser & Nadine Strossen weigh in on ACLU free speech dispute

The following statements were sent to FAN in response to David Cole’s reply to Wendy Kaminer’s Wall Street Journal op-ed.

The first is by Ira Glasser, who served as executive director of the ACLU from 1978 to 2001.

The second statment is by Professor Nadine Strossen of New York Law School; she served as as president of the ACLU from 1991 to 2008.

The memo that gave rise to the controversy is set out below along with a just published op-ed.

Finally, a more extended reply by Cole to Kaminer’s op-ed was recently posted on The Volokh Conspiracy

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Leaked memo marked “CONFIDENTIAL ATTORNEY WORK PRODUCT”: ACLU Case Selection Guidelines: Conflicts Between Competing Values or Priorities

→ “[T]here is an obvious tension between latter-day progressivism and the full-throated defense of civil liberties.” — Theodore Kupper, The ACLU Abandons Its Free-Speech Absolutism, National Review, June 23, 2018 

→ Eugene Volokh, ACLU’s David Cole Responds About ACLU and the Freedom of Speech Is the ACLU becoming less committed to protecting free speech, especially speech that some view as undermining “progress toward equality”?, The Volokh Conspiracy, June 22, 2018

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Ira Glasser 

I have long admired David Cole, and always benefited from consulting him during my long tenure as head of the ACLU. But his response to Wendy Kaminer’s concerns about certain aspects of the ACLU guidelines for taking free speech cases begs, indeed, ignores, the specific questions she raises about whether the new guidelines represent a dramatic policy departure.  She thinks they do, and, having now read them, so do I.

Ira Glasser

As a stand-alone statement of principle, David Cole’s statement reaffirms longstanding traditional ACLU policy.  But it doesn’t respond to Wendy Kaminer’s op-ed at all, not in any way, and especially not to the language she quoted from the new guidelines about balancing the “extent to which speech may assist in advancing goals contrary to our values” against the right to speak when deciding whether to defend the right to speak.

In other words, the ACLU now advises all its affiliates to consider the content of speech, and whether it advances our goals, before deciding whether to defend the right to speak.

That is a balance never before recognized by the ACLU as legitimate in deciding whether to take a free speech case.  To deny that this departure from free speech policy is a departure is intellectually dishonest, an Orwellian smokescreen thrown up to obscure what they are doing.

And that, it seems, is why they tried to hide the new guidelines, even claiming, absurdly, that they were protected by the lawyer-client privilege.  To say now, after the guidelines were disclosed by others, that they have nothing to hide rings hollow.

My question is: where is the ACLU Board, which is supposed to be the guardian of its policies. Did the Board vote to approve this policy departure?
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Nadine Strossen

Professor Nadine Strossen

Only the National Board may change policy, and it was consoling to me that the Board didn’t even consider doing so despite the post-Charlotte blowback.  In contrast, the Board did several years ago reconsider and revise its campaign finance position (to take a less absolutist free speech position), and back in the early 1990s  (when I was on the Board, and in part during my Presidency) it did revisit ACLU’s hate speech position in response to the then-new push for campus hate speech codes.  (Of course, we reaffirmed our traditional policy – unanimously, which is almost unheard of for that fractious and huge body!)  The Board is extremely jealous of its policy prerogatives and would never let the staff get away with in effect modifying policy through the stratagem of implementation guidelines.