Category: First Amendment

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FAN 178 (First Amendment News) On Hate Speech — Dershowitz Review Draws Reply

The bigot is not a stand-in for Tom Paine. .  . . Reality is not paradoxical. Our answer to the question, does defending Nazis really strengthen the system of free speech, is . . . generally no. Sometimes, defending Nazis is simply defending Nazis. –  Delgado &  Stefancic

Last week I profiled Professor Alan Dershowitz’s Washington Post review of Professors Richard Delgado and Jean Stefancic’s Must We Defend Nazis?: : Why the First Amendment Should Not Protect Hate Speech and White Supremacy. In the spirit of a robust exchange of views, I invited some replies to that review.

Professor Shannon Gilreath kindly accepted my invitation. Gilreath is a Professor of Law and Professor of Women’s, Gender, and Sexuality Studies at Wake Forest University. He is the author of The End of Straight Supremacy  (2011), in which he argues that anti-equality propaganda is incompatible with the right to equality enshrined in the Fourteenth Amendment. His reply is set out below (an invitation has been extended to Professor Dershowitz to respond).

               ______ REPLY ______

Must We Defend Nazis? is a timely update to Richard Delgado and Jean Stefancic’s now classic theory on equality and freedom of expression. Their theory has influenced a generation of lawyers to reconceptualize so-called hate speech, not for the ideas it expresses but for the injury—the discrimination—it effectuates. Once this perspective is understood, the old canard that we must “protect the ideas we hate” falls apart.

Delgado and Stefancic do not advocate the suppression of ideas or viewpoints, but rather the responsible regulation of certain types of speech as action—as actually doing the material discrimination they are designed to do. Their theory is not designed to shut down civil dialogue or to safeguard fragile feelings. It is about inequality and the role a narrowly-defined class of speech plays in creating and perpetuating inequality.

Professor Shannon Gilreath

In his review, Professor Alan Dershowitz instead worries about majoritarian condemnation of some ideas as “evil” and what perils to democracy might follow. None of the examples he offers is even remotely related to the kind of equality practice in speech that Delgado and Stefancic propose.

The case for “reasonable regulations”

First, he suggests that Delgado and Stefancic’s theory may support the silencing of activists who argue for Israel’s right to exist. But nothing in the book supports a heckler’s veto on political discourse. And there is definitely no support for anti-Semitic harangue dressed up as anti-Zionist critique. This is not to say that such things aren’t happening on some campuses. It is merely to point out that Delgado and Stefancic in no way support it or condone it. In fact, Professor Delgado and I collaborated on a symposium to address contemporary problems in free speech, and one of the issues included at Delgado’s suggestion was “the new anti-Semitism,” as Kenneth Marcus calls it, that is overtaking some campuses in the name of free expression.

Professor Jean Stefancic

In reality, Delgado and Stefancic offer a First Amendment theory that actually would allow reasonable regulation of anti-Semitic speech in ways that promote the equality interests of American Jews. The ACLU’s absolutist position instead prioritizes Nazis—a fact Dershowitz admits by his insistence that Nazi speech is at the core of the First Amendment. For Delgado and Stefancic, a commitment to equality lies at the core of a First Amendment utilized to operationalize the equality that, thanks to the Fourteenth Amendment, is at the heart of the Constitution itself.

When “neutral” is not neutral

Dershowitz prefers “neutral” speech regulations, dismissing the authors’ warning that such principles do little for the vulnerable in a system that pretends majority and minority start from the same position. He cites “time, place, and manner” restrictions. Such limitations may work if the question really was one of “hurt feelings,” as in regulations on funeral picketing, for example. They do nothing to deal with speech that produces discrimination at a systematic level. For example, a poster demanding that “Blacks Go Back to Africa” permitted in the common area of a dorm but prohibited to be nailed to the door of a black student’s dorm room is an absurd distinction. The discrimination happens regardless.

Professor Richard Delgado

Contrary to the ACLU position of “more speech,” this kind of message isn’t designed to encourage a civil political discussion on race relations. It is designed to frighten and silence. Similarly, a burning cross that is confined to the private property of a white supremacist, as in Virginia v. Black, still produces the inherent injury of discrimination through fear and intimidation, and those who are disposed to enact the harms it represents are buoyed in their desires by the display. The Court’s refusal to see the systemic meaning of such a display was farcical.

The difference in approach from Europe is, I think, explained by the fact that a majority of Americans, unlike Europeans, have never had to grapple first-hand with the kind of violence and misery anti-equality speech can produce. Public displays of anti-Semitic “news” and cartoons (Stürmerkasten) in Nazi Germany served both to cow Jews and to recruit perpetrators. It cannot happen here is too easy an attitude to take up. In fact, since Donald Trump took office, crimes of physical violence against racial minorities and gays and lesbians have risen sharply—over 400% for gays and lesbians alone (see here also). The sharpest spike in university campus crimes has been against Jewish students.

Dr. King & the Klan

Finally, Dershowitz supposes that the triumphs of Martin Luther King would have been impossible in a system other than the absolutist one he defends. This particular jab seems especially dishonest, since Brandenburg v. Ohio, establishing our recent, Klan-friendly theory of free speech, wasn’t decided until a year after King’s death. Suppressed in Dershowitz’s evenhanded treatment of the speech of Nazis and Martin King is the reality that Nazis promote inequality for minorities and King was promoting equality. This is no small detail for Delgado and Stefancic who underscore that ours is a constitutional system decidedly not neutral on equality. They offer us a theory of speech that prioritizes equality as a substantive right. And the guidance they provide may be more critical today than ever before.

* Related *

Symposium, “Equality-Based Perspectives on the Free Speech Norm — Twenty-First Century Considerations,” Wake Forest Law Review (2009) (introduction here)

→ Gilreath, ”Tell Your Faggot Friend He Owes Me $500 for My Broken Hand’: Thoughts on a Substantive Equality Theory of Free Speech,'” Wake Forest Law Review (2009)

→ Delgado & Stefanic, “Four Observations About Hate Speech,” Wake Forest Law Review (2009)

“Polish President signs controversial Holocaust bill into law”

The bill’s backers say talking about Polish complicity in Nazi genocide is a form of group defamation.

President Andrzej Duda (credit Janek Skarzynski/AFP/Getty Images)

This from James Masters over at CNN: “Polish President Andrzej Duda signed Poland’s controversial new Holocaust bill late Tuesday ahead of it being assessed by the country’s Constitutional Tribunal. The law would make it illegal to accuse the nation of complicity in crimes committed by Nazi Germany, including the Holocaust. It would also ban the use of terms such as “Polish death camps” in relation to Auschwitz and other such camps located in Nazi-occupied Poland….”

This from Jacob Sullum writing in Reason: “In Poland, as in several other European countries, it is a crime to deny the Holocaust. Soon, thanks to [the new law . . . will make it] a crime to discuss the Holocaust too frankly.”

“The . . . ban on references to Polish complicity in Nazi genocide, which has provoked outrage in Israel and around the world, may seem inconsistent with the ban on Holocaust denial. But the two taboos are of a piece with each other and with Poland’s prohibition of ethnic insults—a fact that should give pause to American fans of European-style speech regulation.”

“The Polish [law] makes it a crime, punishable by fines and up to three years in prison, to accuse ‘the Polish nation, or the Polish state, of being responsible or complicit in the Nazi crimes committed by the Third German Reich.’ The legislation was motivated largely by anger at the common use of phrases like ‘Polish death camps,’ which could be read to mean that the war crimes committed by Germans in occupied Poland were a project of the Polish government.”

“‘German Nazi crimes are attributed to Poles,” Deputy Justice Minister Patryk Jaki complained . . . . ‘And so far the Polish state has not been able to effectively fight these types of insults to the Polish nation.'”

“Some of these ‘insults’ happen to be true, since part of ‘the Polish nation’ was “complicit in the Nazi crimes.’ Poles saved Jews, but Poles also murdered Jews, under Nazi instruction and on their own initiative. . . .”

→  Atika Shubert & Antonia Mortensen, Polish Holocaust law sows ‘distortions,’ Poland’s chief rabbi says, CNN, Feb. 9, 2018 (includes video feed)

→  JTA, Poland isn’t the only country censoring speech about the Holocaust, The Jerusalem Post, Feb. 7, 2018

“New Slate Of Commissioners Should Elevate FTC’s Consideration of  First Amendment” Read More

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FAN 177 (First Amendment News) “Make No Law” First Amendment Podcast Series Launched

Over at Popehat a new First Amendment podcast series has been launched; it’s titled “Make No Law” and is hosted on the Legal Talk Network. The podcasts are conducted by Kenneth P. White, a criminal defense and First Amendment lawyer at Brown White & Osborn.

“In the podcast, we explore the background, personalities, and social and historical context of some of America’s most important First Amendment cases. What made Walter Chaplinsky so angry that he uttered his famous “fighting words” in New Hampshire, and why was a crowd so angry at him? Why did Mary Beth Tinker decide to wear a black armband to school? What made Richard Ceballos’ supervisors retaliate against him for raising concerns about police misconduct, and how did he fight back? Who gets to decide whether a trademark like “The Slants” is offensive to a group — members of the group, or the government?”

Kenneth P. White

“Through interviews of some of the participants, historians, and experts, primary documents read by voice actors, and commentary, Ken White will explain both what these cases mean for your rights today, and what they meant to the real people who fought for their rights to produce these decisions. Every episode will be accompanied by a post here at Popehat with links to supporting materials: cases, oral argument recordings, historical materials, and so on. As the series progresses, we hope that you will send in your First Amendment questions and your suggestions for cases to cover.

“You can get the episodes on iTunes or Google Play, Soundcloud, or at the Legal Talk Network, or listen to them through a link right here on the blog. There’s also the RSS feed.”

First two episodes: Chaplinsky & Tinker 

(In this inaugural episode White explores the Chaplinsky v. New Hampshire case and the ensuing “fighting words” doctrine, which is often cited in disputes over free speech in the United States.)

(White dives into the Tinker v. Des Moines case and how it has impacted freedom of speech for students on campuses today.)

Forthcoming episodes: Ceballos Matal v. Tam 

  • Episode Three: “On The Job”:  How do the courts balance the free speech rights of government employees with the need to maintain discipline in government workplaces?  I interview Richard Ceballos, a Deputy District Attorney who faced retaliation for questioning a search warrant, and whose case articulated a troubling rule for government employees.
  • Episode Four, “Disparagement, Contempt, and Disrepute”:  I interview Simon Tam of the band The Slants about his recent Supreme Court victory and the trademark process that, despite what he and his fans thought, told him his band’s name was racist and unacceptable.

California Superior Court Upholds First Amendment Claim in Same-Sex Wedding Cake Case Read More

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FAN 176 (First Amendment News) Arizona State University to Host Major Conference on “Free Speech and Intellectual Diversity”

As you can see from the two news items mentioned below, the Sandra Day O’Connor College of Law at Arizona State University continues to make its presence known (and in big ways) in the First Amendment community.  Recall that last October the Law School co-hosted, with New York University Law School, an impressive conference to commemorate the 100th anniversary of Judge Learned Hand’s opinion in  Masses Publishing Co. v. Patten (1917).

And the folks at the SDOC College of Law are doing it again as they partner with the School of Civic and Economic Thought and Leadership and the Walter Cronkite School of Journalism and Mass Communication to host a major conference on free speech:

Free & Open to the Public

Register at: scetl.asu.edu

Questions: email scetlevents@asu.edu or call (480) 965-0155

FRIDAY PROGRAM

Date: February 23, 2018

Location: ASU Tempe Campus, New Student Pavilion

Robert Post (Yale Daily News)

Opening Keynote Lecture

  • Robert Post
    Former Dean, Yale Law School
    “The Classic First Amendment Tradition Under Stress: Freedom of Speech and the University”

Panel: “Why Do Students Need Free Speech on Campus?”

Moderator: Nicole Taylor, Deputy Vice President, Dean of Students, ASU Tempe Campus

Panelists:

  • Zachary Wood, Williams College
  • Matthew Foldi, University of Chicago
  • and Students for Free Expression Gabriel Sandler, Arizona State University
    Téa Francesca Price, Arizona State University

Professor Harvey Mansfield (Harvard Gazette)

Panel: “Free Inquiry and the Philosophy of Higher Education”

Moderator: Daniel Cullen, Professor, Rhodes College

Panelists:

  • Jim Stoner, Louisiana State University
  • Harvey Mansfield, Harvard University
  • Norma Thompson, Yale University

Professor Richard Garnett

Panel: “Intellectual Diversity and Higher Education: A Crisis?”

Moderator: Cristine Legare, Associate Professor, University of Texas, Austin

Panelists:

  • Joshua Dunn, University of Colorado, Colorado Springs
  • Neil Gross, Colby College
  • Richard Garnett, University of Notre Dame, Law School

Plenary Address

  • Jeremy Waldron, University Professor, New York University Heckling in a University Setting      “Heckling in a University Setting”

SATURDAY PROGRAM

Date: February 24, 2018

Location: ASU Downtown Campus, Sandra Day O’Connor College of Law, BCLS 544

Heather McDonald

Panel: Negotiating Controversial Speakers on Campus

Moderator: Stefanie Lindquist, Deputy Provost, Academic Affairs and Professor, ASU

Panelists

  • Heather MacDonald, Manhattan Institute
  • Bret Weinstein, Evergreen College
    Ulrich Baer, Professor, New York University

Professor James Weinstein

Panel: Freedom of Speech and Thought on Campus: What Role for the First Amendment?

Moderator: James Weinstein, Dan Cracchiolo Chair in Constitutional Law, Sandra Day O’Connor College of Law, ASU

Panelists

  • Azhar Majeed, Vice President, FIRE
  • Donald Downs, University of Wisconsin, Madison
  • Laura Beth Nielsen, Northwestern University, and American Bar Foundation

Professor Larry Alexander

Panel: State Legislative Remedies to Free Speech Challenges on Campus: Are They Consistent with Academic Freedom?

Moderator: Mike Liburdi, General Counsel, AZ Governor Doug Ducey, and adjunct Professor, Sandra Day O’Connor College of Law

  • Eugene Volokh, UCLA School of Law
  • James Manley, Goldwater Institute
  • Larry Alexander, University of San Diego School of Law

Read More

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FAN 175.1 (First Amendment News) More from FIRE — New Podcast Series Charts History of Free Speech

“The podcast provides an engaging and inspiring history of free speech that is accessible to anyone interested in a topic that is fundamental to every human being and society. If you want to understand what’s at stake and know about the battles that our predecessors were engaged in the fight for free speech there can be no better place to start than with Jacob Mchangama’s podcast.”  Flemming Rose 

The folks at FIRE (Foundation for Individual Rights in Education) are on fire when it comes to almost anything having to do with free speech. They

And now, they have just released the first installment (an introduction) to an incredible podcast series on the history of free speech. It is titled: 

The series is spearheaded by Jacob Mchangama, a Danish lawyer, human-rights expert, and social commentator and the founder and director of Justitia, a Copenhagen think tank focusing on human rights and the rule of law. For six years he served as chief legal counsel at CEPOS. This year Mchangama is a Visiting Fellow at FIRE.

Why have kings, emperors, and governments killed and imprisoned people to shut them up? And why have countless people risked death and imprisonment to express their beliefs? Jacob Mchangama guides you through the history of free speech from the trial of Socrates to the Great Firewall.

Jacob Mchangama

Description

A prologue introduces the background of the podcast series and is being released today. The first official episode will be aired on February 1st. Subsequent episodes will be released on a bi-weekly basis.

Each episode focuses on a particular historical era or theme, providing listeners with a deeper understanding of how, where and why free speech has developed over time.

The first episode takes listeners back to ancient Athens focusing on the trial of Socrates and the crucial role that equal and uninhibited speech played in the world’s first democracy.

“We mustn’t allow free speech to fade into a feel-good slogan. It is an unintuitive principle with a rationale that many don’t appreciate and a history that many don’t know. Mchangama’s lucid history of free speech fills that gap and deepens our understanding of this precious concept” Steven Pinker 

The following episodes will visit places and eras such as Ancient Rome, Central Asia’s Golden Age, the Abbasid Caliphate, The Renaissance, Enlightenment and beyond.

The podcast will also feature “Expert Opinions,” interviews with leading historians and experts.

You can follow the podcast on the website (www.freespeechhistory.com), Facebook (www.facebook.com/freespeechhistory) and on Twitter (@CAPD_freespeech).

Disclosure: I work on FIRE’s online First Amendment Library and am also working with them on a forthcoming e-coursebook on free speech (stay tuned!).

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FAN 175 (First Amendment News) Seattle University Law School to host Conference on Artificial Intelligence — includes panel on Robotic Speech

Be sure to have Alexa, or Echo, or Seri, or your Google Mini save the date for an important upcoming conference on artificial intelligence. On Saturday, February 17, 2018, from 9 am to 5 pm, Seattle University Law School will host a conference titled:

Singularity: Artificial Intelligence & the Law    (Casey Commons, Seattle University)

Welcome Remarks from Dean Annette Clark

Keynote Speaker: Ryan Calo, University of Washington School of Law

Panel 1, Robotic Speech and the First Amendment: David Skover, Seattle University School of Law; Helen Norton, University of Colorado Law School; Bruce Johnson, Partner, Davis Wright Tremaine. (This panel will discuss the issues raised in the forthcoming Collins & Skover book Robotica: Speech Rights & Artificial Intelligence (Cambridge University Press, May 2018), and will be moderated by Seattle University Law Professor Gregory Silverman.)

Panel 2, Accountability for the Actions of Robots: Ryan Calo, University of Washington School of Law; Elizabeth Joh, UC-Davis School of Law (This panel will focus on Professor Calo’s research into the liability consequences when robots cause harm; a third panelist confirmation is still pending.)

Panel 3, Ethical Considerations in Artificial Intelligence: Justin Tiehen, University of Puget Sound; Ariela Tubert, University of Puget Sound; Mark Van Hollebeke, Director of Privacy, Microsoft. (This panel features will consider discreet issues in AI with an emphasis on the ethical issues in evaluating new technologies, including where ethical and legal considerations intersect.)

Cato to host panel on Janus v. American Federation Read More

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

Call for Abstracts & Participants: Freedom of Expression Scholars Conference

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Senator Jeff Flake (C-SPAN)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

There are more:

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

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

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

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

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

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

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

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

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

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

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

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

For the limits of time it steps o’er.

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

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

Eternal… unchanged… evermore.”

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

WHITE HOUSE REPLY

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

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

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

Cass Sunstein, The Originalism Blog

Leonard W. Levy (1923-2006)

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

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

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

Natural Rights and the First Amendment

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

Professor Jud Campbell

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

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

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

Newly Posted Historial Documents Read More

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FAN 173.2 (First Amendment News) First Amendment Clinic Coming to Vanderbilt Law // Full-time Director Sought

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

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

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

   http://apply.interfolio.com/48179

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

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

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

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

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

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

MANDEL NGAN/AFP/Getty Images

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

Giles Walker (Islington Tribune)

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

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

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

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

Robot Lady (credit: Salon)

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

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

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

Related

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

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

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