Category: Constitutional Law

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FAN 167.2 (First Amendment Law) Campus Speech Debate Continues: Prof. Post Responds to FIRE’s Creeley

Yesterday, I posted Will Creeley’s Free Speech on Campus: A Response to Robert Post. Mr. Creeley’s piece was in response to a forthcoming article by Professor Post titled The Classic First Amendment Tradition Under Stress: Freedom of Speech and the University. Below, Professor Post replies to Mr. Creeley.

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Robert Post (Yale Daily News)

I very much appreciate Will Creeley’s excellent and eloquent post. In these times of overheated and exaggerated exchange, it is a relief to engage in such a thoughtful dialogue.

Creeley defends FIRE’s record of standing up for freedom of speech within university campuses. I have very little knowledge of the kind of cases that FIRE does or does not take, and I certainly do not mean to imply anything in particular about them. I mean only to attribute to FIRE what FIRE itself proclaims on its own website:

Freedom of speech is a fundamental American freedom and a human right, and there’s no place that this right should be more valued and protected than America’s colleges and universities. A university exists to educate students and advance the frontiers of human knowledge, and does so by acting as a “marketplace of ideas” where ideas compete. The intellectual vitality of a university depends on this competition—something that cannot happen properly when students or faculty members fear punishment for expressing views that might be unpopular with the public at large or disfavored by university administrators.

Nevertheless, freedom of speech is under continuous threat at many of America’s campuses, pushed aside in favor of politics, comfort, or simply a desire to avoid controversy.

FIRE then proceeds to discuss the First Amendment in a manner that plainly implies that the “freedom of speech” it wishes to defend is the kind associated with First Amendment rights (even if such rights do not technically apply to private universities). This is also suggested by the reference to the “marketplace of ideas” in the passage I have just quoted.

I have not reviewed FIRE’s litigation, and I hope that Creeley will correct me if I am mistaken, but I suspect that in defending free speech rights on campus, FIRE rather routinely invokes standard First Amendment doctrines, like the prohibition on content and viewpoint discrimination, the prohibition on prohibiting speech because it is outrageous or offensive, and so on. Creeley does not dispute this in his statement, and I shall assume it to be true in this post.

The chapter to which Creeley objects was written to contest this rather mechanical application of standard First Amendment doctrines to the context of universities. The chapter begins by discussing the control of classroom speech to indicate how absurdly inappropriate such doctrines are to core university functions. I do not mean to imply that FIRE argues that content neutrality applies to the classroom. My point is merely that FIRE says that it upholds the application to universities of First Amendment doctrines, and such doctrines cannot sensibly be applied to classrooms.

Creeley affirms that FIRE has “never” argued that individual free speech rights apply to students in the classroom. I believe him. But the question is why FIRE has chosen not to defend such rights. I take it, and once again Creeley should correct me if I am incorrect, that the obvious answer is that endowing students with such rights is inconsistent with the university’s mission of education. But this is as much to say that the university’s educational mission trumps the free speech rights of individual students. And the question is why, if this is true in the context of classrooms, it is not equally true throughout the university.

Universities are institutions created and dedicated to the accomplishment of two missions: the expansion of knowledge and the education of students. With respect to the first mission, I have argued elsewhere, and I will not repeat the arguments here, that the “marketplace of ideas” defended by FIRE has no place. See Robert Post, Democracy, Expertise, Academic Freedom: A First Amendment Jurisprudence for the Modern State (Yale University Press 2012) and Robert Post, Academic Freedom and Legal Scholarship64 J. Leg. Educ. 540 (2015).

In the context of hiring, promotion, tenuring, grants, and so on, the research of faculty is continuously and properly evaluated for competence. First Amendment doctrines protecting the marketplace of ideas and prohibiting content discrimination are thus inapplicable. Faculty are instead entitled to academic freedom, which, as the 1915 AAUP Declaration of the Principles on Academic Freedom and Tenure declares, concerns “not the absolute freedom of utterance of the individual scholar, but the absolute freedom of thought, of inquiry, of discussion and of teaching, of the academic profession.” Academic freedom of research is about the autonomy of the scholarly community, what Thomas Haskell calls the community of the competent. This is at root why the kind of individual (First Amendment) rights that FIRE is committed to defending are incompatible with academic freedom. To say that in the context of their scholarly research faculty have academic freedom, rather than individual rights, is thus to say that whatever First Amendment rights they may possess are subordinated to the research mission of the university.

Analogously, the individual free speech rights of students are subordinated to the university’s second mission of education. For a general and theoretical argument about why this must be so, see Robert Post, Between Governance and Management: The History and Theory of the Public Forum, 34 U.C.L.A. L. Rev.1713 (1987). Unless I miss my mark, Creeley effectively concedes that this subordination occurs in the context of the classroom. But he quotes Healy v. James for the proposition that individual student free speech rights might be more compatible with university educational objectives in other areas of the campus. I think there is much to be said for that approach. But it requires a sensitive appraisal of whether and how university regulations serve its educational mission in the context of various spaces and dimensions of campus life. Where attributing individual free speech rights to students is inconsistent with that educational mission, they must yield. Otherwise such rights will undermine the university’s very raison d’etre. That is why the Court has explicitly said that “a university’s mission is education” and that the First Amendment does not deny a university’s “authority to impose reasonable regulations compatible with that mission upon the use of its campus and facilities,” which includes “a university’s right to exclude . . . First Amendment activities that . . . substantially interfere with the opportunity of other students to obtain an education.” Widmar v. Vincent, 454 U.S. 263, 268 n.5, 277 (1981) (citing Healy v. James, 408 U.S. 169, 189 (1972)). Read More

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FAN 167 (First Amendment News) SPECIAL ISSUE: Robert Post’s Arguments Draw Replies from Erwin Chemerinsky & Will Creeley on Campus Speech Issue

(Credit: Evelyn Hockstein/ for The Washington Post)

This entire FAN post is devoted to recent developments concerning free speech on college campuses. This sampling reveals just how controversial and widespread this debate has become.

Last week I blogged on the campus speech debate as it played out with the Virginia ACLU and its response to the William and Mary controversy (Deleted Passages: VA ACLU abandons key portions of its original statement regarding William & Mary controversy. See also Walter Olson, The ACLU Yields to the Heckler’s Veto, WSJ, Oct. 24, 2017)

As evidenced by the several entries below, the campus speech issue continues to be the First Amendment issue of our times.

Just out: Post-Chemerinsky Exchange

Professors Robert Post and Erwin Chemerinsky exchange views on the topic of campus speech, this in just published Vox posts. Here are a few snippets from that exchange:

POST: “The language and structure of First Amendment rights . . . is a misguided way to conceptualize the complex and subtle processes that make such education possible. First Amendment rights were developed and defined in order to protect the political life of the nation. But life within universities is not a mirror of that life.”

“. . . [M]embers of the university community do not enjoy special freedoms. They have the right to academic freedom, not First Amendment freedom of speech. Academic freedom is defined in terms of the twin missions of the university; it encompasses freedom of research and freedom of teaching. Academic freedom does not entail the equality of ideas. To the contrary, it is defined as the freedom  to engage in professionally competent teaching and research.”

CHEMERINSKY: “Professor Post’s premise is undoubtedly correct: universities must evaluate the content of faculty and student work. But it does not follow that outside of this realm, free speech principles do not apply on campus. It is a logical fallacy to say that because basic free speech principles sometimes do not apply on campus, they must never apply.”

  • “First, it is important to distinguish what the law is from what Professor Post thinks the law should be. . . .”
  • “Second, Professor Post ignores the distinction between the university’s ability to regulate speech in professional settings (such as in grading students’ papers or in evaluating teaching and scholarship) and its ability to regulate speech in other contexts. . . .”

 Related: Erwin Chemerinsky & Howard Gillman, Free Speech on Campus (Yale University Press, 2017)

Robert Post’s Article & Will Creeley’s Response 

Recall, that in an earlier FAN post I refenced a forthcoming article by Professor Post entitled The Classic First Amendment Tradition Under Stress: Freedom of Speech and the University. Again, here is the abstract of that article:

Robert Post (Yale Daily News)

POST: This forthcoming chapter in a book to be edited by Lee Bollinger and Geoffrey Stone scrutinizes the frequently-heard claim that universities are suppressing the “First Amendment” rights of students, faculty, and invited speakers. The chapter argues that this claim rests on a fundamental misconception about the nature of First Amendment rights, which apply to public discourse and are designed to establish preconditions for democratic self-determination. Speech at universities, by contrast, must be regulated to attain the ends of education. Debates about the proper regulation of campus speech are thus ultimately debates about the nature of education, not about First Amendment rights. The overblown and misleading constitutional rhetoric of these debates is symptomatic of a larger debasement of our understanding of the nature of free speech protections, a debasement that could seriously undermine the strength of Free Speech principles when we actually need to call upon them to do serious work to protect the integrity of our political system.

I invited Will Creeley, Senior Vice President of Legal and Public Advocacy at FIRE, to respond to Professor Post’s article. That reply is set out below. Professor Post has been invited to respond. Should he accept, his response will be published in a future post.

WILL CREELEY, “Free Speech on Campus: A Response to Robert Post”

Will Creeley

In an essay for a forthcoming book edited by Lee Bollinger and Geoffrey Stone, Yale Law School professor and former dean Robert Post turns his attention to free speech on campus. Unsurprisingly, Post delivers his argument with characteristic erudition and acuity. Unfortunately, however, his contribution distorts the contours of the current debate by suggesting that my organization, the Foundation for Individual Rights in Education (FIRE), takes positions we do not in fact hold. Post’s misunderstanding of FIRE’s work requires a response.

Post argues that recent campus speech controversies illustrate “our modern failure to appreciate the fundamental purpose of the First Amendment” — that is, to “protect speech that serve[s] the purposes of self-government.” Because “public universities are not public parks,” and instead serve an educational mission, Post concludes that “it makes little sense to apply core First Amendment principles of freedom of speech to public universities.”

To make his point, Post enlists FIRE as a foil. He writes:

FIRE aggressively proclaims that First Amendment protections of free speech ought to apply within the domain of universities. The assumption is that First Amendment protections attach to speech, and speech occurs within universities. A moment’s reflection, however, reveals the superficiality of this logic.

“Consider, for example, speech within a classroom,” Post continues. “If I am teaching a class on the Constitution, my students cannot ramble on about the World Series.”

But to FIRE’s knowledge, nobody is arguing that they should be able to do so. Certainly, FIRE has never argued as much. Post does not cite any instance of FIRE (or any other organization) advocating that students should have such a right. FIRE has always recognized that professors have a right to control their classrooms. Academic freedom — that “special concern of the First Amendment” — demands it.

FIRE does not intervene in controversies involving in-class student speech. We do not take cases involving grade disputes, accusations of plagiarism, or other academic misconduct. Barring extraordinary circumstances — we have defended students who have been required by faculty to lobby for political positions outside of class, for example — we will not ever be involved in such cases. Post errs by suggesting otherwise, turning FIRE into a convenient strawman.

Post continues in this direction, attempting to show the incompatibility of the First Amendment and campus:

If I am supposed to be teaching constitutional law, I can’t spend my classroom time talking about auto mechanics. Universities also assess the quality of the ideas conveyed by professors. If a mathematics professor continuously gets her equations wrong, her competence will be called into question. Universities also compel professors to show up to class, to teach, and therefore to speak.

But again, to our knowledge, no one — not FIRE or other organizations, and certainly not courts — has suggested these examples are at odds with the First Amendment’s requirements, nor would any reasonable observer do so. In fact, the outcomes Post describes are in line with longstanding jurisprudence regarding the role of the First Amendment on public campuses. For example, like courts and the American Association of University Professors, FIRE believes that a faculty member’s in-class speech must be germane to the course’s subject, broadly construed, to earn the protection of the First Amendment and academic freedom. We acknowledge that if a professor isn’t actually teaching his or her class, he or she may be subject to discipline, though we think that such decisions are best left to his or her faculty peers.

Courts (and FIRE) have been more thoughtful about the First Amendment’s application on campus than Post acknowledges. Justice Powell’s statement in 1972’s Healy v. James is representative of the judicial approach, both then and now:

As the case involves delicate issues concerning the academic community, we approach our task with special caution, recognizing the mutual interest of students, faculty members, and administrators in an environment free from disruptive interference with the educational process. We also are mindful of the equally significant interest in the widest latitude for free expression and debate consonant with the maintenance of order.

And since the advent of forum analysis, courts have recognized the differences between the various areas of a college campus, noting the obvious distinctions between classrooms (a classic example of nonpublic fora), auditoriums or amphitheaters (designatated public fora), and open outdoor spaces and sidewalks (traditional public fora). See, e.g., Bowman v. White, 444 F.3d 967, 976-77 (8th Cir. 2006) (“A modern university contains a variety of fora…. labeling the campus as one single type of forum is an impossible, futile task.”) The judiciary has drawn these commonsense distinctions for years, but Post does not appear to acknowledge this well-established precedent.

Post’s argument is animated by his concern about applying the First Amendment “to ‘speech as such’ rather than to public discourse.” By invoking the First Amendment in controversies that concern only the quotidian “communication [that] inheres in all aspects of life,” Post worries that we are inviting a “predictable over-extension of First Amendment rights [that] will in the long run prove unsustainable.” In other words, when the speech at issue is not “essential for the free formation of public opinion,” the First Amendment need not apply.

Accordingly, because “public universities are not public parks,” Post concludes that “First Amendment doctrine does not help us resolve” campus speech controversies “because such doctrine derives from the requirements of public discourse within a heterogeneous nation.”

But the controversies in which we engage every day — FIRE’s bread and butter, wherein students and faculty engaging in public discourse outside of the classroom are subjected to censorship by the authorities or calls for such by their peers or the public — stem from analogous disputes between diverse members of a heterogenous campus. (This similarity in microcosm may partially explain the lasting public interest in campus speech controversies, and the way in which campus speech controversies sometimes prefigure or channel larger cultural disputes.) Given that we believe a core part of a public college’s educational mission is to facilitate the education of future leaders in democratic living, First Amendment doctrine is not only helpful in resolving these disputes, but essential.

If there is something “deeply wrong” about the First Amendment arguments that have helped protect student and faculty from censorship for decades, then FIRE will be happy to be as wrong as the courts that have crafted and credited them. If arguing for such is just “overblown rhetoric” — then, again, FIRE must simply disagree.

MORE ON CAMPUS FREE SPEECH ⇓ Read More

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Kozinski reviews new book — THE JUDGE: 26 MACHIAVELLIAN LESSONS

Judge Alex Kozinski (credit: The Recorder)

So you thought a judge’s job is to be fair and impartial? To renounce personal gain? To have no agenda? According to Ronald K.L. Collins and David M. Skover in their new book, The Judge: 26 Machiavellian Lessons, that’s all malarkey. If you believe it, you’re a chump. And if you’re a judge who believes it, you should quit and make room for someone who will use his power to advantage. “Power,” the authors tell us, is “that ability to make something happen.” Like Niccolo Machiavelli, whose 16th century guide to executive power they channel, the authors explain how the modern judge can exploit the opportunities his position and Fortuna bestow upon him.

So begins Ninth Circuit Judge Alex Kozinski’s book review published on Law360. Here is another excerpt:

 “The ethics of a great judge are counter-ethics. They do not bow to law’s old pieties, the ones grounded in the myths of justice impartially applied. … Still, the myth of impartiality lives on and, strangely enough, some judges (the weaker ones) actually take their decisional cues from such pious norms.” The ideal judge “appreciate[s] the value of deception.”

Collins and Skover give example after example where U.S. Supreme Court justices have (in the authors’ view) manipulated the law, lied about history, undermined precedent while pretending to follow it, “cram[med] their opinions with half-truths” and generally pulled the wool over the eyes of their colleagues and the public. The authors speak in glowing terms about justices who achieve their ends through skullduggery and disparage justices who are ineffectual because they’re proud, priggish, wedded to precedent or fooled by their own rhetoric. According to Collins and Skover, “a Justice must be hypocritical and strive to appear objective, judicious, and collegial.” John Marshall, William J. Brennan Jr., William Rehnquist, Antonin Scalia and (usually) John Roberts make the grade while James Clark McReynolds, Felix Frankfurter, William O. Douglas (except in Griswold), Warren E. Burger, and Roberts in Obergefell don’t. Frankfurter draws particular scorn as “arrogant, combative, spiteful, and manipulative (but not in effective ways).”

 Of course, there is more, much more.  The full text of the review is here: The Judge, 26 Machiavellian Lessons

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FAN 166 (First Amendment News) Deleted Passages: VA ACLU abandons key portions of its original statement regarding William & Mary controversy

[Earlier this month]  a representative from the American Civil Liberties Union saw her chance to speak about the First Amendment squashed by students chagrined by the actions of her employer.Virginia Gazette, Oct. 6, 2017 The website of the ACLU of Virginia contains a statement by Claire Guthrie Gastañaga, its Executive Director. That statement pertains to the recent controversy at William and Mary. Below are portions of that statement, including passages in red that were apparently contained in the original version but no longer exist in the current one.

Claire Guthrie Gastañaga

“The ACLU of Virginia was invited by the College of William & Mary Alma Mater Productions to speak to students on Sept. 27 about their First Amendment rights, and, particularly, their rights at protests and demonstrations. We were pleased to accept the invitation and looked forward to making the presentation and answering questions on a wide range of topics. We were disappointed that we didn’t get the chance to provide the information that the students asked us to present nor to answer the tough questions we expected the student organizers and audience members to ask. . . .”

“The ACLU of Virginia supports unequivocally the freedom of professors, students and administrators to teach, learn, discuss and debate or to express ideas, opinions or feelings in classroom, public or private discourse.”

“We also support the goals espoused by the demonstrators (ending white supremacy, achieving racial justice, elevating those who have been oppressed). It is more than disappointing, however, when the robust debate that should be the hallmark of the culture of inquiry on a college campus is disrupted by those who seek with their own voices or actions simply to silence others who took actions or hold views based on principles with which they disagree.”

 “Disruption that prevents a speaker from speaking, and audience members from hearing the speaker, is not constitutionally protected speech even on a public college campus subject to the First Amendment; it is a classic example of a heckler’s veto, and, appropriately, can be prohibited by a college student code of conduct as it is at William and Mary. As a government entity, a public college like William and Mary has an obligation to protect the freedom of the speaker to speak and not to allow one group of people to shout down or seek to intimidate other speakers or members of the audience who wish to hear the speaker from exercising their own free speech rights. This is true regardless of what individuals or groups are speaking, protesting or counter-protesting.” [This passage survives in a blog post by Sam Harris.] “The ACLU of Virginia has been and will continue to be unwavering in its commitment to campus free speech. We are equally committed to ensuring that all universities take appropriate steps to ensure that the environment on their campuses fosters tolerance and mutual respect among members of the campus community, and an environment in which all students can exercise their right to participate meaningfully in campus life without being subject to discrimination. . . . ” “What happened at William and Mary on Sept. 27 is a part of a larger national trend that is challenging campus leaders across the country to find the right formula for assuring that critical community conversations can take place in a culture of inquiry consistent with a true learning environment. Actions that bully, intimidate or disrupt must not be without consequences in any such formula.” [This passage survives in an Inside Higher Ed story by Jeremy Bauer-Wolf. Though that story contained a link to the passage in red quoted above, the contents of that link have apparently been changed since it no longer contains the lines quoted above.]

Bill Farrar of the VA ACLU

Deleted passages: By all accounts, the passages in red were contained in an earlier version of the ACLU’s statement but do not appear in the current version.

VA ACLU Responds: When asked about the above, Bill Farrar, Director of Strategic Communications, responded: “We revised our statement based on internal feeedback from our colleagues.” He agreed that the deleted passages no longer reflect the Virginia ACLU’s current position. When asked if the National ACLU was consulted, Mr. Farrar said it was not.

Hecklers shout down California attorney general 

This from Adam Steinbaugh over at FIRE: “Last week, Whittier College — my alma mater — hosted California’s Attorney General, Xavier Becerra, in a question-and-answer session organized by Ian Calderon, the Majority Leader of the California State Assembly.”

“They tried to, anyway. The event ended early after pro-Trump hecklers, upset about Becerra’s lawsuit against the Trump administration over DACA, continuously shouted slogans and insults at Becerra and Calderon. A group affiliated with the hecklers later boasted that the speakers were ‘SHOUTED DOWN BY FED-UP CALIFORNIANS” and that the “meeting became so raucous that it ended about a half hour early.'”

“The event, held in Whittier College’s Shannon Center theater, was free and open to members of the community, and featured introductions from both Whittier’s president and student body president. Becerra and Calderon were to have an hour-long question-and-answer session using audience questions randomly selected from a basket. As soon as they began the discussion, however, hecklers decked in ‘Make America Great Again’ hats began a continuous and persistent chorus of boos, slogans, and insults.”

“Video captured by an alumnus captures the difficulty of hearing the discussion”:

“Video uploaded by two of the hecklers, Arthur C. Schaper and Harim Uzziel, captures the entirety of the affair, complete with chanted slogans and insults, such as ‘lock him up,’ ‘build that wall,’ ‘obey the law,’ ‘respect our president,’ ‘Americans first,’ and ‘You must respect our president!’ It also captures audience members repeatedly asking the hecklers to stop, and campus security officials approaching the group. Another video posted by “We the People Rising” also captured much of the disruption”:

“Calderon asked the audience to hold applause or booing, remarking: ‘It’s important that we have a productive conversation here.’ Becerra said that he thought the First Amendment to be a “precious thing,” but said he doubted the audience could hear him speak. The event, scheduled for an hour, concluded after about 34 minutes.”

“Schaper, a conservative columnist, is known for leading disruptions targeting Democratic officials, and was recently charged with disrupting a public meeting. For example, he disrupted a congresswoman’s ‘Know Your Rights’ forum, intended to give information to undocumented immigrants. ‘It was offensive,’ Schaper told the San Gabriel Valley Tribune. ‘[The congresswoman] took an oath to uphold [the] Constitution, and now she’s sponsoring a town hall that teaches illegal aliens about rights they don’t have.’ . . . “

Coming Soon: The First Amendment in the Regulatory State — Research Roundtable Read More

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FAN 165.2 (First Amendment News) Masses Publishing Co. v. Patten court documents now posted on First Amendment Library

Judge Learned Hand’s order granting the temporary injunction against the postmaster and ordering the magazine transmitted through the mails “without delay” was dated July 26, two days after the decision became known. During that brief period, the company pulled back the copies sent to the Post Office so the edition could be delivered by alternate means. On the same day the order was issued, U.S. Attorney Francis G. Caffey filed an Assignment of Error listing grounds on which he would rely in his appeal from Hand’s decree. In all, there were seven alleged errors, although essentially all of them went directly to the bottom line: Hand was wrong in finding for the magazine under every provision of the Espionage Act raised by government and wrong in granting the injunction.   — Eric Easton, Defending the Masses (Jan. 2018) 

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‘Tis the year of The Masses. This year marks the 100th anniversary of Judge Learned Hand’s seminal free-speech opinion in Masses Publishing Co. v. PattenAs previously reported here, two major events have been organized to celebrate the occasion.

New York Univeristy School of Law and the Sandra Day O’Connor College of Law at Arizona State University are hosting an all-day conference in New York on October 20th.

Gilbert E. Roe (lawyer for The Masses)

 Not long thereafter, on November 6th, the Second Circuit Court of Appeals, in association with The First Amendment Salons, the Floyd Abrams Institute for Freedom of Expression at Yale Law School, and the Media Law Committee of the New York State Bar Association, will host a “reargument” of the appeal in Masses Publishing Co. v. Patten. Floyd Abrams will appear on behalf of Postmaster Patten and Kathleen M. Sullivan will appear on behalf of Masses Publishing Co. The case will be argued before a panel of three judges:

  • Circuit Judge Reena Raggi,
  • Circuit Judge Pierre N. Leval, and
  • Circuit Judge Robert D. Sack

Original court documents posted for first time

In light of all of the above, the folks over at the First Amendment Library (led by Jackie Farmer) have uploaded 18 never before posted documents relating to the appeal in The Masses case. Among other things, this compilation includes the complaint, various affidavits filed in the case, transcript of the record, the order staying Judge Hand’s injunction, and much more.

Adriana Mark, head of research and education for the Second Circuit Library, unearthed these documents for the First Amendment Library. The librarians at the Gallagher Library of the University of Washington School of Law also provided additional research.

As the editor of the Library, I wrote the Introduction to the collection of The Masses documents.

Professor Eric Easton, author of Defending the Masses: A Progressive Lawyer’s Battles for Free Speech University of Wisconsin Press (Jan. 2018), kindly agreed to allow us to post a chapter from his forthcoming book, this to provide additional context for the documents posted.

            Judge Hand’s signature in Masses case

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FAN 165.1 (First Amendment News) New FIRE Report — Majority of college students self-censor & support disinvitations

This from a just-released report from the Foundation for Individual Rights in Education (FIRE):

PHILADELPHIA, Oct. 11, 2017 — A new report from the Foundation for Individual Rights in Education finds a majority of students on college campuses self-censor in class, support disinviting some guest speakers with whom they disagree, and don’t know that hate speech is protected by the First Amendment. The study also finds that Republican and Democratic students have different opinions on campus protests, disinvitations, and hate speech protections.
In the most comprehensive survey on students’ attitudes about free speech to date, FIRE measured student responses to questions about self expression, reactions to expression of other students, guest speakers, and hate speech. Some key findings include:
  • 46 percent of students recognize that hate speech is protected by the First Amendment, and 48 percent of students think the First Amendment should not protect hate speech.
  • Most students (56 percent) support disinviting some guest speakers. Democratic students are 19 percentage points more likely than their Republican peers to agree that there are times a speaker should be disinvited.
  • 58 percent of college students think it’s important to be part of a campus community where they are not exposed to intolerant or offensive ideas.
  • Very few students report that they would participate in actions that would prevent a guest speaker event from taking place (2 percent). Even fewer said they would use violence to disrupt an event (1 percent).
  • In open-ended questions, almost half of students (45 percent) identify speech with a racist component as hate speech, and 13 percent of students associate hate speech with violence.
  • In class, 30 percent of students have self-censored because they thought their words would be offensive to others. A majority of students (54 percent) report self-censoring in the classroom at some point since the beginning of college.

FIRE’s survey also found ideological differences in how students feel about free expression, both inside and outside the classroom. Very liberal students are 14 percentage points more likely than their very conservative peers to feel comfortable expressing their opinions in the classroom. Additionally, 60 percent of Republican students think they should not have to walk past a protest on campus, while only 28 percent of Democratic students think the same.

Robert Shibley

“There is clearly a partisan divide in how students perceive free speech on college campuses,” said FIRE Executive Director Robert Shibley. “This further solidifies the importance of FIRE’s mission. Free expression is too important to become a partisan issue in higher education.”

Additionally, FIRE’s survey found that a majority of students want their schools to invite a variety of guest speakers to campus (93 percent), and 64 percent report changing an attitude or opinion after listening to a guest speaker.

FIRE contracted with YouGov (California), a nonpartisan polling and research firm, to survey 1,250 American undergraduate students between May 25 and June 8. YouGov calculated weights for each response based on the respondent’s gender, race, and age. A copy of the full report, an FAQ, and the toplines and tabulations from YouGov can be accessed here.

The survey project was made possible by a grant from the John Templeton Foundation to conduct polling on campus attitudes, engage in legal and social science research, and mobilize a wider audience on and off campus in the fight for student and faculty rights.

ContactWilliam Rickards, Communications Coordinator, FIRE
215-717-3473; media@thefire.org
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Annotating Section Two of the Fourteenth Amendment

Last week I participated in a workshop organized by the ABA to assist civics teachers who want to teach their students about the Fourteenth Amendment. As part of that program, the ABA gave each of us a pocket constitution.  You are all familiar with these. But the ABA version is annotated to some extent. At the end of Section Two of the Fourteenth Amendment, a note says “Section Two age requirements superseded by the 26th Amendment and ‘male’ restrictions superseded by the 19th Amendment.”

Now I think this is the correct reading, as I explain in my forthcoming paper about Section 2 and the reapportionment process. On the other hand, no case says this, which raises the question of why the annotators think that this is true and are telling people it is true. (This is the only annotation for the amendments in the ABA pocket constitution.)

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FAN 165 (First Amendment News) Major New First Amendment News, Analysis & History Website Launched

Prof. Stephen Solomon (credit: Sarah Solomon)

If you are interested in the First Amendment, be prepared to bookmark an invaluable new site: First Amendment Watch. This news, anlysis and history website is the brainchild of Stephen D. Solomon, New York University’s Marjorie Deane Professor at NYU’s Arthur L. Carter Journalism Institute, where he teaches First Amendment law.

Recall: Professor Solomon is the author of, among other works, Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (2016) (First Amendment Salon video here and news story re his speech at History Book Festival event here.)

Managing Editor: Tatiana Serafin has covered issues of press freedom for various publications, including her latest “I, Journalist” for The Seventh Wave. She was a staff writer at Forbes and then co-editor of the magazine’s billionaire’s list, initiating coverage of billionaires in Eastern Europe and Central Asia. She continues as a Forbes Contributor and is an Adjunct Professor at Marymount Manhattan College.

The mission of the site is to document threats to the First Amendment’s freedoms of speech, press, assembly, and petition. First Amendment Watch will highlight threats to the freedom of expression as they arise and provide continuing updates as news develops. The most important element is the deep dives into legal and historical background that provides the perspective that helps readers gain a full understanding of today’s First Amendment conflicts.

Social media also play an important role in getting news message out to the public. (See FAW’s Facebook and Twitter links.) “We hope to have a strong social media presence,” said Solomon. “We want to be engaged with the community and create a site for people to visit and learn about important First Amendment news issues.”

→ The startup phase of First Amendment Watch is entirely funded by New York University as a nonpartisan project in the public interest.

Easy to Navigate Topical Tabs 

The site has seven tabs on its information bar:

  1. News Gathering
  2. Speech
  3. Libel
  4. Threats
  5. Censorship
  6. Assembly
  7. Privacy

Managing editor Tatiana Serafin

Each tab contains numerous links to relevant news, updates, analysis, opinion and historical materials. See, for example:

Profiles — news, analysis & historical backdrop — of Contemporary Controversies 

→ Considerable attention is given to some of the most pressing free speech issues of the day, as in the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. The entry for that case is titled  Discrimination or Free Speech? What’s At Stake in the Wedding Cake Conflict.

→ Another such entry is The Supreme Court Considers First Amendment Arguments in Gerrymandering Case, the reference being to the oral arguments in Gill v. Whitford. These entries contain links to: audio and video clips, news stories and opinion posts,  and lower court opinions and appellate briefs, among other things.

Make the Connection: Linking Today’s Controversies to Those of the Past

Symbolic Speech in Early America: Liberty Tree in colonial Boston

From Liberty Tree to Taking a Knee: America’s Founding Era Sheds Light on the NFL Controversy

“Symbolic speech as a form of protest, like taking a knee at a football game while others stand for the National Anthem, enjoys a long history in America. It’s been a powerful form of political expression going back to the protests in the colonies in the 1760s against British oppression. Various forms of symbolic expression—liberty trees, liberty poles, effigies of hated politicians, even the use of the number 45—brought multitudes into the political sphere and was critical in building opposition to British rule. Much of this symbolic expression was controversial and even offensive but a powerful form of protest then and now.” – By Stephen Solomon

Mapping Free Speech Controversies

There is also a Mapping First Amendment Conflicts link that pinpoints timely free speech controversies accordingly to geographical areas.  From small to big cities, from social media to the White House, First Amendment conflicts arise nearly every day. They can involve libel suits against a big media organization, an attempt by state legislators to restrict demonstrations, public officials blocking Twitter followers they don’t like, and much more. The endless challenges to freedom of expression raise vital questions of constitutional law and the place of free speech in a democratic society. All one has to do is click on the map icons to get brief descriptions of controversies large and small as well as links to more information.

Thus, if you click on the Washington State pointer, this pops up:

Assembly – Olympia, WA – 10/11/16 — description

A Republican State Senator introduced a measure aimed at criminalizing what he calls “economic terrorism.” It “would make protesting a class C felony should it cause any sort of “economic disruption” or “jeopardize human life and property.””  http://thehill.com/blogs/blog-briefing-room/306580-washington- 

Video Links 

There are some interesting video links on the site as well.  For example:

Future Plans 

Plans for the future involve invited comment from experts as well as original videos and podcasts.

And yes, for those of you who wish to support this website, there is a tab you can click on to donate to it. Though NYU provided startup funding,  the site can continue only with outside funding.

*  * * Other First Amendment Websites * * * 

History of Film Censorship Timeline

Prof. Laura Wittern-Keller

 

Over at FIRE’s First Amendment Library, they have just posted an impressive History of Film Censorship Timeline.

The timeline was created by Professor Laura Wittern-Keller, author of Freedom of the Screen: Legal Challenges to State Film Censorship, 1915-1981 (2008) and The Miracle Case: Film Censorship and the Supreme Court (2008).

 

 

Scholarly Articles: One New, One Forthcoming  Read More

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FAN 164 (First Amendment News) 1917 Masses Case to be Reargued in Second Circuit — Floyd Abrams & Kathleen Sullivan to Argue Case

On November 6th the Second Circuit Court of Appeals, in association with The First Amendment Salons, the Floyd Abrams Institute for Freedom of Expression at Yale Law School, and the Media Law Committee of the New York State Bar Association, will host a “reargument” of the appeal in Masses Publishing Co. v. Pattenthis on the occasion of the 100th anniversary of the case. The case will be argued before a panel of three judges:

  • Circuit Judge Reena Raggi,
  • Circuit Judge Pierre N. Leval, and
  • Circuit Judge Robert D. Sack

Second Circuit Chief Judge Robert Katzmann will introduce the event. Noted First Amendment lawyer Floyd Abrams will appear on behalf of Postmaster Patten (yes, he will represent the government) and Kathleen M. Sullivan (former Stanford Law dean and seasoned appellate litigator) will appear on behalf of Masses Publishing Co.

* * * *

→ Related Event: A Decision for the Ages: A Symposium Marking the Centenary of Masses Publishing Co. v. Patten

Date & Locale: Friday, October 20, 2017 – New York University School of Law

Historical and Cultural Background – 9:00-10:30

  1. The Artistic and Cultural Scene in 1917 as reflected in The Masses magazine: Amy Adler (NYU)
  2. The Political Situation and The Espionage Act of 1917: Geoffrey Stone (Chicago)
  3. The State of Free Speech Doctrine in 1917: David Rabban (Texas)

Moderator: Michael McConnell (Stanford)

The Masses case: Dramatis Personae and Decision – 10:45-12:15

  1. Learned Hand’s Jurisprudence: Ed Purcell (New York Law School)
  2. The Role of Gilbert Roe, the Masses attorney: Eric Easton (Baltimore)
  3. The Decision: Vincent Blasi (Columbia)

Moderator: Judge Robert Sack (Second Circuit)

Lunch Break – 12:30-1:30

Aftermath of the Masses decision1:45-3:15

  1. Hand’s influence on Holmes and the Abrams dissent: Thomas Healy (Seton Hall)
  2. Hand’s influence on free speech theory and justifications: Mark Graber (Maryland)
  3. Hand’s subsequent free speech decisions: Paul Bender (ASU) (via videoconference)

Moderator: Jeremy Kessler (Columbia)

The Influence of Masses on Modern First Amendment Doctrine — 3:30-5:00

A discussion about the extent to which the Masses test has been incorporated into Brandenburg and other modern cases: Burt Neuborne (NYU); James Weinstein (ASU); Martha Field (Harvard)

Moderator: Robert LoBue (Patterson Belknap Webb & Tyler)

Reception – 5:15-6:15 p.m.

More Controversy: The ACLU’s Defense of Free Speech  Read More

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FAN 163 (First Amendment News) Sanford Ungar Heads New Free Speech Project at Georgetown University

At the heart of this project is how universities and American society at large can uphold the First Amendment while also protecting people from harassment and threats of violence. We will study the condition of free speech in America today, both in higher education and in civil society, in an attempt to create frameworks that promote public discussion about divisive issues in a civil manner. — Sanford J. Ungar

Some know him as the president emeritus of Goucher College. Others know him as a vetran journalist with UPI, or as a former Washington editor of The Atlantic, or as a past director of the Voice of America.  Still others know him as the former dean of the School of Communication at American University. And yet others know him as the author of The Papers & The Papers: An Account of the Legal and Political Battle over the Pentagon Papers (1973). Now Sandy Ungar has a new job title: director of The Free Speech Project (Georgetown University), with funding from the Knight Foundation.

Sanford Ungar (credit: Lumina Foundation)

Here is the focus of The Project: “Pitched battles in the streets of Berkeley, California, as rival factions fight over who should be allowed to speak at one of America’s great public universities.  A faculty member seriously injured on the idyllic campus of Middlebury College in Vermont as violence erupts at a talk by a controversial visitor that she attempted to moderate.  Bedlam on the floor of the Texas House of Representatives with pistol-packing legislators threatening to kill each other.  A Princeton professor receives death threats and goes into hiding after cellphone videos of a commencement speech she gave in New England, in which she criticized President Trump, go viral. A massive replica of the Ten Commandments erected near the Arkansas State Capitol, but bulldozed into smithereens hours later by an angry citizen. A neighborhood pizza parlor in the nation’s capital hurled into the spotlight after a “fake news” conspiracy report inspires a North Carolina man to open fire in the restaurant. One of America’s great newspapers, the Los Angeles Times, reduced to recruiting subscribers by promising ‘We publish what’s REAL.'”

“What is happening to Free Speech in America?  The Free Speech Project at Georgetown University, launched with the support of the John S. and James L. Knight Foundation, aspires to find out and to analyze the condition of First Amendment values.”

Here is how The Project is described: “The project’s Free Speech Tracker, perhaps the first of its kind, documents incidents across the country over the past two years and going forward, as well as monitoring activity in state legislatures seeking to curb or calm public protest.”

“‘Our theory,’ says Ungar, a distinguished scholar-in-residence at Georgetown since 2014, ‘is that these incidents and various legislative initiatives are all related.'”

“‘When you have stark and deadly confrontations in Charlottesville and brawls and death threats on the floor of the Texas legislature, you cannot expect college and university campuses to be islands of civility and peaceful debate,’ he adds. ‘We have to understand and deal with the fact that some young people may try to shut down speech they find offensive because they are worried that they won’t have their own opportunity to speak up and be heard.'”

“‘Our nation was founded on the principles of free debate and dissent as enshrined in the First Amendment,’ said Jennifer Preston, Knight Foundation vice president for journalism. ‘At various times in history these rights have been challenged and are now being tested in an America where trust in institutions, in news and in each other grows more tenuous. To preserve the First Amendment, we must examine and better understand the forces that might jeopardize its future.’

“Ungar says the independent and nonpartisan Free Speech Project will address such concerns by looking more deeply into volatile incidents and emerging legislation around the country.”

Website, video & archives 

“The website eventually will include videos of one-on-one interviews by Ungar with key thinkers in the free speech debate, and currently contains an archive of commentary and analysis from newspapers and other sources concerning freedom of speech and other First Amendment rights.”

“The archive covers five areas – legal jurisprudence, campus incidents, legislative developments, freedom of the press and government secrecy, and civil society.”

“‘Free Speech is debated and analyzed at a dizzying pace by leading thinkers and journalists around the country and throughout the world,’ Ungar says. ‘We can’t compile every article related to free speech, but we do hope to offer commentary across the political spectrum to show the wide-ranging perspectives and viewpoints on this issue.'”

Project to host programs

“Operating out of Georgetown but independent of the university, the project will also sponsor public programs – on campus in its first year and later in other venues – where various constituencies can contribute ideas about how to reestablish national respect for fundamental First Amendment values while also promoting civility and inclusiveness.”

“‘We need to focus on how better to preserve and protect free speech, but also get buy-in from all the people and groups that believe in free expression and are in a position to promote it,’ Ungar explains. ‘This is fundamental to the survival of American democracy, especially in these turbulent times.'”

Sanford J. Ungar, Bannon called the media the ‘opposition.’ He’s right, and it’s a good thing, Washington Post, Feb. 7, 2017

Just In: ** David Shortell, Sessions to wade into divisive campus free speech debate, CNN, Sept. 26, 2017 **

Coming: Major Conference on Masses Publishing Co. v. Patten

Title of Event: A Decision for the Ages: A Symposium Marking the Centenary of Masses Publishing Co. v. Patten

Co-hosted by:

  • New York University School of Law
  • Sandra Day O’Connor College of Law, Arizona State University.

Date, Time & Location: The symposium will be held at New York University School of Law on Friday, October 20, from 9:00 a.m. to 5:00 p.m. in Greenberg Lounge.  A reception will follow.

Program:

Historical and Cultural Background

  • Amy Adler, Emily Kempin Professor of Law, New York University School of Law
  • Geoffrey Stone, Edward H. Levi Distinguished Service Professor of Law, University of Chicago Law School
  • David Rabban, Dahr Jamail, Randall Hage Jamail and Robert Lee Jamail Regents Chair and University Distinguished Teaching Professor, University of Texas School of Law

The Masses Case: Dramatis Personae and Decision

  • Edward A. Purcell, Jr., Joseph Solomon Distinguished Professor of Law, New York Law School
  • Eric Easton, Professor of Law, University of Baltimore School of Law
  • Vincent Blasi, Corliss Lamont Professor of Civil Liberties, Columbia Law School

 Aftermath of the Masses Decision

  • Thomas Healy, Professor of Law, Seton Hall Law School
  • Mark Graber, University System of Maryland Regents Professor, University of Maryland Francis King Carey School of Law
  • Paul Bender, Professor of Law, Sandra Day O’Connor College of Law, Arizona State University (via videoconference)

The Influence of Masses on Modern First Amendment Doctrine

  • Burt Neuborne, Norman Dorsen Professor of Civil Liberties, New York University School of Law
  • James Weinstein, Dan Cracchiolo Chair in Constitutional Law, Sandra Day O’Connor College of Law, Arizona State University
  • Martha Field, Langdell Professor of Law, Harvard Law School

Replay: Podcast — Judge Richard Posner on the First Amendment

  • On the retirment of Judge Richard Posner, Nico Perrino over at FIRE’s So to Speak replayed a First Amendment Salon interview Professor Geoffrey Stone did with Judge Posner back in May of 2016.

→ See also: Nico Perrino, The British free speech invasion, So to Speak, Sept. 21, 2017

Video: Cato Constitution Day Panel: “First Amendment Challenges” Read More