Category: First Amendment

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The Legal Status of the President’s Twitter Account

I want to revisit something that I posted months ago. Sooner or later, a court is going to have to assess whether the President’s tweets constitute state action.

Suppose that Mika Brzezinski decided to sue the President for libel based on what he tweeted. Before reaching the merits, the President’s lawyers would probably contend that he has absolute immunity from tort claims for his official acts and that his tweets are official acts.

There is litigation pending, though, in which some people who have been blocked by the President from his Twitter account are claiming that he cannot do that just because he does not like what they are saying. This amounts, they argue, to viewpoint discrimination under the First Amendment since the President’s Twitter account is a state actor.

If the President’s argument against the hypothetical libel claim is correct, then the claim by the folks blocked on Twitter must also be correct at least with respect to the state actor issue. I don’t see how the tweets can be official for purposes of a libel suit but unofficial for purposes of creating some sort of public forum under First Amendment doctrine. It is, of course, possible to exclude people from a limited public form with sufficient justification, but that’s a separate question.

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FAN 158 (First Amendment News) 2016-2017 Term Ends: Three First Amendment Victories & cert. grant in religious cake-baker case

Today, after consideration in many conferences, the Court agreed to hear Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights CommissionThe issue in the case is whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment. The Coloroado Court of Appeals denied those First Amendment claims.

 Counsel of record for Petitioners: Jeremy D. Tedesco (cert. petition here)

2016-2017 Term: First Amendment Free Expression Opinions  

With the close of this Term, the Roberts Court has rendered opinions in 46 First Amendment free-expression cases. Notably, as indicated below, this Term the Court was unanimous in all three of its First Amendment free speech cases.

  1. Packingham v. North Carolina (2017) (8-0, per Roberts, C.J.) (opinion by Alito, J., concurring in the judgment) (striking down N.C. law prohibiting registered sex offenders access to Internet sites that permit minor children to become members or to create or maintain personal Web pages)
  2. Matal v. Tam (2017) (8-0, per Alito, J.) (with separate opinions by Kennedy, J., concurring in part & concurring in the judgment, and Thomas, J., concurring in part & concurring in the judgment) (disparagement clause of the Lanham Act violates the First Amendment’s free speech clause)
  3. Expressions Hair Design v. Schneiderman (2017) (8-0, per Roberts, C.J.) (opinion by Breyer, J., concurring in the judgment, and an opinion by Sotomayor, J., concurring in the judgment) (holding that N.Y. credit card surcharge statute regulates speech within the meaning of the First Amendment; remaded to determine whether law was valid commercial speech regulation under Central Hudson and whether the law can be upheld as a valid disclosure requirement under Zauderer).

Pending Appeals & Petitions & Related Cases

  1. Elonis v. United States
  2. Harris v. Cooper 
  3. National Institute of Family and Life Advocates v. Becerra
  4. A Woman’s Friend Pregnancy Resource Clinic v. Becerra
  5. Livingwell Medical Clinic, Inc. v. Becerra

Summary Dispositions

  1. Republican Party of Louisiana, et al. v. FEC (affirmed) (Justices Thomas & Gorsuch would note probable jurisdiction and set the case fororal argument)
  2. Independence Institute v. FEC (affirmed)

Cert. Denied

  1. Garcia v. Bloomberg
  2. Mulligan v. Nichols
  3. Alabama Democratic Conference v. Marshall
  4. Augsburg Confession
  5. Keefe v. Adams
  6. Scott v. Georgia
  7. Bondi v. Dana’s Railroad Supply
  8. Bennie v. Munn
  9. Flytenow v. Federal Aviation Administration
  10. Armstrong v. Thompson
  11. Wolfson v. Concannon
  12. Dart v. Backpage.com
  13. NCAA v. O’Bannon
  14. Mech v. School Board of Palm Beach County
  15. Williams v. Coalition for Secular Government 
  16. Pro-Football v. Blackhorse 

First Amendment Religious Expression Case: Cert. Denied

Melhorn v. Baltimore Washington Conference of United Methodist Church (Whether the ministerial exception of the First Amendment absolutely bars breach of contract and tortious conduct lawsuits in situations of illegal conduct or harm to third parties.)

Free Speech Related Cases: Review denied 

  • Doe v. Backpage.com LLC (Whether Section 230 of the Communications Decency Act, which provides that no internet service provider “shall be treated as the publisher or speaker” of internet content that was “provided by another,” precludes a civil lawsuit against a website owner and operator based on its own criminal conduct any time online content created by a third party was part of the chain of causation leading to the plaintiff’s injuries.)

First Amendment Religious Expression Case: Review Denied 

  • Pfeil v. St. Matthews Evangelical Lutheran Church of the Unaltered (Whether the First Amendment to the United States Constitution provides absolute immunity for defamatory statements made in a religious setting, even if the person defamed is not a member of the religious organization and even if the truth or falsity of the defamatory statement can be adjudicated without considering or interpreting religious doctrine — applicability of the ecclesiastical abstention doctrine)

Speech & Debate Clause: Petition Denied

  • Menendez v. United States (Whether a court may consider a legislator’s motive for performing an act when deciding whether the act is protected by the speech or debate clause).

Freedom of Information Act Petition: Cert. Denied  

Roberts Court Era: Justice Kennedy’s Majority or Plurality First Amendment Free-Expreesion Opinions 

Given the talk in the news about Justice Anthony Kennedy’s possible retuirment, I thought it useful to list his free-expression First Amendment opinions published during the era of the Roberts Court:

  1. Garcetti v. Ceballos (2006) (vote: 5-4)
  2. Citizens United v. Federal Election Commission (2010) (vote: 5-4)
  3. Sorrell v. IMS Health Inc(2011) (vote: 6-3)
  4. Borough of Duryea v. Guarnieri (vote: 2011) (8-1)
  5. United States v. Alvarez (2012) (vote: 6-3)
  6. Packingham v. North Carolina (2017) (vote: 8-0)

 Notable Roberts Court Era Separate Opinions:

College fires professor over comments made on TV

This from a story by Josh Delk writing for The Hill: “Essex County College has fired adjunct professor Lisa Durden after she made racially charged comments in an interview with Tucker Carlson on Fox News, according to a new report by the Associated Press.”

Tucker Carlson & Professor Lisa Durden

“The college’s president, Anthony Munroe, announced the decision Friday, two weeks after Durden went on “Tucker Carlson Tonight” to discuss an “all-black Memorial Day celebration” hosted by a Black Lives Matter group.”

“When asked by Carlson about the event, Durden interrupted the host, saying “boo hoo hoo. You white people are angry because you couldn’t use your white privilege card to get invited” to the Black Lives Matter event.”

“‘You’re demented, actually,’ Tucker later responded to her defense.”

“Durden went on to call America a ‘racist society.'”

“According to AP, Durden was suspended with pay on June 8, two days after the interview aired, when college officials say they received complaints about her comments. After a Tuesday meeting with college officials, she was fired. . . .”

Video clip here

 Full text of statement from college president here

President Anthony E. Munroe

Excerpt from President Anthony E. Munroe’s statement: “While the adjunct who expressed her personal views in a very public setting was in no way claiming to represent the views and beliefs of the College, and does not represent the College, her employment with us and potential impact on students required our immediate review into what seemed to have become a very contentious and divisive issue. For the purpose of a fair and immediate review, the adjunct was suspended with full pay, for the remainder of the summer I session which equated to six (6) working days, pending the outcome of a fair and thorough review of the matter. The adjunct addressed the College community at an open forum on June 20th. In consideration of the College’s mission, and the impact that this matter has had on the College’s fulfillment of its mission, we cannot maintain an employment relationship with the adjunct. The College affirms its right to select employees who represent the institution appropriately and are aligned with our mission.”

FIRE’s Policy Reform department is hiring

By June 22, 2017

Free speech-minded attorneys and recent law school graduates, pay attention: FIRE is looking to add a new staff member to its Policy Reform department.

FIRE’s Policy Reform team works with college students, faculty members, administrators, and general counsels to improve their institutions’ protections for free speech and academic freedom. We help to revise unconstitutional and restrictive speech codes, enact policy statements codifying the principles underlying the First Amendment, and work in other ways to improve the campus climate for free expression. We’re now looking to add another member to our team!

Applicants can check out the full job posting before submitting their application materials.

The ideal applicant will be passionate about First Amendment law and principles, demonstrate enthusiasm for working with students, faculty members, and administrators, and possess the legal analysis, writing, and research skills that are critical to a successful career in constitutional law and civil liberties.

Chris Finan: New Director of National Coalition Against Censorship

Chris Finan

NCAC Press Release: The National Coalition Against Censorship (NCAC), an alliance of 56 national non-profit organizations, announced today that it has hired Christopher M. Finan as its next executive director.  Joan Bertin, the current executive director, is stepping down after leading the organization for 20 years.  NCAC promotes freedom of thought, inquiry and expression and opposes censorship in all its forms.

“We are indeed lucky that a free expression advocate the caliber of Chris Finan has agreed to lead the NCAC to its next chapter,” said Jon Anderson, chair of the NCAC Board of Directors and president and publisher of Simon & Schuster Children’s Publishing. “In this most challenging of times for First Amendment rights, we need someone with the experience and reputation that Chris brings to the table in protecting the rights of all Americans to express themselves as they choose.”

Finan has a long career as a free speech activist.  He is currently director of American Booksellers for Free Expression, part of the American Booksellers Association (ABA).  In 1982, he joined Media Coalition, a trade association that defends the First Amendment rights of booksellers, publishers, librarians and others who produce and distribute First Amendment-protected material.  In 1998, he became president of the American Booksellers Foundation for Free Expression.  The foundation merged with ABA in 2015.

Finan has worked closely with NCAC as a member of the board of directors and as a board chair.  In 2007, he and Bertin created NCAC’s Kids’ Right to Read Project, which supports parents, students, teachers and librarians who are fighting efforts to ban books in schools and libraries.

“I am very grateful for the opportunity to lead an organization that plays such an important role in protecting free expression.  I am also very fortunate to be succeeding Joan Bertin, who has led NCAC’s vigorous defense of free speech during a time of growing censorship pressure,” Finan said.

As examples of NCAC’s recent advocacy, Finan pointed to statements defending publishers who are pressured to censor books that some critics consider offensive, condemning the Trump administration’s attacks on the press and criticizing the Walker Art Center’s decision to dismantle a sculpture after accusations that it was “cultural appropriation.”

Joan Bertin Honored by Freedom to Read Foundation

NCAC Press Release:  Joan Bertin, the National Coalition Against Censorship’s (NCAC) longtime executive director, is a 2017 recipient of the Freedom to Read Foundation’s (FTRF) Roll of Honor Award, which recognizes individuals for outstanding contributions to safeguarding intellectual freedom and the right to read.

Joan Bertin

The FTRF, which is affiliated with the American Library Association, protects and defends the First Amendment to the Constitution and supports the right of individuals to access information. Bertin is being recognized for her efforts to provide “support, education, and direct advocacy to people facing book challenges or bans in schools and libraries.”  In announcing the award, the FTRF observes that under Bertin’s leadership, NCAC has defended hundreds of book titles across the country, helping ensure that thousands of children will continue to enjoy literary masterpieces and popular young adult novels.

Bertin said, “I am deeply honored by the award, especially for its recognition of NCAC’s contributions to the protection of the intellectual freedom rights of young people.  Books can contribute so much to kids’ intellectual and emotional development, and it has been my privilege and pleasure to protect their right to read.”

The award will be presented at the 2017 American Library Association Annual Conference during its Opening General Session on Friday, June 24, in Chicago.

New Additions to FIRE’s Online First Amendment Library

Forthcoming: Timelines on Movie Censorship and Anthony Comstock

Forthcoming Books

Professor Loren Glass, English Dept., University of Iowa

Abstract: Grove Press and its house journal, The Evergreen Review, revolutionized the publishing industry and radicalized the reading habits of the “paperback generation.” In telling this story, Rebel Publisher offers a new window onto the long 1960s, from 1951, when Barney Rosset purchased the fledgling press for $3,000, to 1970, when the multimedia corporation into which he had built the company was crippled by a strike and feminist takeover. Grove Press was not only one of the entities responsible for ending censorship of the printed word in the United States but also for bringing avant-garde literature, especially drama, into the cultural mainstream. Much of this happened thanks to Rosset, whose charismatic leadership was crucial to Grove’s success. With chapters covering world literature and the Latin American boom; experimental drama such as the Theater of the Absurd, the Living Theater, and the political epics of Bertolt Brecht; pornography and obscenity, including the landmark publication of the complete work of the Marquis de Sade; revolutionary writing, featuring Rosset’s daring pursuit of the Bolivian journals of Che Guevara; and underground film, including the innovative development of the pocket filmscript, Loren Glass covers the full spectrum of Grove’s remarkable achievement as a communications center for the counterculture.”

Related: Barney Rosset, Rosset: My Life in Publishing and How I Fought Censorship (2016)

New & Notable Blog Posts

  1. Ruthann Robson, En Banc Ninth Circuit Upholds Liquor Regulation Against First Amendment Challenge, Constitutional Law Prof Blog, June 23, 2017 (“In its en banc opinion in Retail Digital Network v. Prieto, the Ninth Circuit rejected a First Amendment challenge to a California prohibition of alcohol manufacturers and wholesalers from providing anything of value to retailers in exchange for advertising their alcohol products.”)
  2. Zach Greenberg, Supreme Court strikes down law prohibiting disparaging trademarks, affirms protection for offensive expression, FIRE, June 20, 2017

News, Op-eds, Editorials & Blog Posts

Ilya Shapiro, Even sex offenders have First Amendment rights, Washington Examiner, June 19, 2017

  1. Alex Swoyer, Islamic State flag on New Hampshire dam raises First Amendment questions in times of terrorism, Washington Times, June 25, 2017
  2. Mark Joseph Stern, Does Partisan Gerrymandering Violate the First Amendment?, Slate, June 19, 2017

Next Scheduled FAN, #159: June 14, 2017

Last Scheduled FAN, # 157Today: Senate Judiciary Committee to hold hearing on campus free speech

Last FAN, #157.1Music to their ears — The Slants win in SCOTUS: Commentaries, Podcasts & Interviews

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FAN 157.1 (First Amendment News) Music to their ears — The Slants win in SCOTUS: Commentaries, Podcasts & Interviews

Music is the best way we know how to drive social change: it overcomes social barriers in a way that mob-mentality and fear-based political rhetoric never canSimon Tam

The Slants (credit: Anthony Pidgeon/Redferns, via Associated Press)

A major First Amendment victoryNational ACLU

The far-reaching importance of this case cannot be overstatedNational Law Journal

The opinion: Matal v. Tam (June 19, 2017) (Oral Argument Transcript)

Counsel for RespondentJohn C. Connell

Coursel for PetitionerMalcolm L. Stewart (Deputy Solicitor General)

Briefs Filed in CaseParties & Amici

Video Interview: Extended Interview: The Slants’ Simon Tam (KOIN 6, June 19, 2017)

SCOTUSblog Symposium 

  1. The cacophony of trademarks is not government speech
  2.  Increasing First Amendment scrutiny of trademark law after Matal  v. Tam
  3.  Free speech comes to trademark law
  4. The First Amendment silences trademark
  5.  The Constitution prohibits government’s “happy-talk” requirement for trademark registration

FIRE: So to Speak Podcast 

Cato Podcast: The Michael Berry Show

Rolling Stone Magazine

Balkinization

Constitutional Law Prof Blog

Volokh Conspiracy

Bloomberg View

The Federalist

Forbes

Slate

In A Crowded Theater

This journey has always been much bigger than our band: it’s been about the rights of all marginalized communities to determine what’s best for ourselves.Simon Tam

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FAN 157 (First Amendment News) Today: Senate Judiciary Committee to hold hearing on campus free speech

“After a string of high-profile and sometimes violent instances of censorship this past school year, free speech on campus has become a pressing concern for many Americans,” said FIRE Legislative and Policy Director Joe Cohn. “We are pleased that the Senate Judiciary Committee is taking this issue seriously and hope this hearing will raise new awareness on Capitol Hill of the problems posed by campus censorship.”

Today, at 10:30 a.m. ET, the United States Senate Committee on the Judiciary will hold a hearing titled:

The hearing will be live streamed on the committee’s website.

Presiding: Chairman Charles Grassley

Ranking Member: Dianne Feinstein

Those testifying are:

  1. Zachary R. Wood
  2. Frederick M. Lawrence
  3. Isaac Smith
  4. Fanta Aw
  5. Eugene Volokh
  6. Richard Cohen
  7. Floyd Abrams

STATEMENT OF FLOYD ABRAMS BEFORE THE SENATE COMMITTEE ON THE JUDICIARY

June 20, 2017

Chairman Grassley and Ranking Member Feinstein: I appreciate the opportunity to appear this morning to comment on the status – or, I could say, the sad state – of freedom of speech on college campuses around the nation.

About two years ago, I gave a speech in Philadelphia at Temple University in which I tried to answer the question of what the single greatest threat to free speech was in the nation. And where it was. I concluded then, as I do now, that the locale of the threat was on our college campuses and that the nature of the threat was nothing less than the suppression of free speech on our campuses. I pointed out, as I would today, that while our problems did not approach those in many other countries around the world, that they were serious, troubling, disturbing.

That is so notwithstanding ever-increasing focus on the problem, as illustrated by this significant hearing. Put plainly, the problem arises less because of a desire of university administrators to limit speech on campus – there is some of that, but it is not the dominant cause – than the conduct of a minority of students who will simply not tolerate the expression of views which they view as socially harmful or destructive.

A critic of recent speech-destructive behavior on campus has an overstuffed menu of choices to choose to discuss. Shall I focus on Evergreen, Middlebury or Berkeley? Or Milo Yiannopoulos or Ann Coulter? On the cancellation of previously made invitations to speakers such as Christine Lagarde, the first woman to head the IMF? Or the loud and strident interruptions to speakers – former New York City Police Commissioner Ray Kelly was one of many – to the point that the speech simply could not proceed?

Let me start instead with two examples. The President of California State University Los Angeles cancelled a speech by an editor of Breitbart, the conservative publication, who was about to speak on a topic that he had entitled as “When Diversity Becomes a Problem.” The explanation for the cancellation was—this one is worth saying slowly—“the need for free exchange of ideas.” According to the president of the university, the speaker could appear (but only appear) as part of a group of people with varying viewpoints on diversity. He could not speak alone, as left-wing speakers such as Cornel West and Angela Davis had spoken at CSU, with no request, let alone requirement, that the “other” side be heard simultaneously.

And, speaking of California, just yesterday (June 19th) a complaint was filed in federal court in San Francisco on behalf of Jewish students at San Francisco State University arising in part out of the misconduct of other students who effectively shut down a speech by the Mayor of Jerusalem by the use of amplified sound and loud and virulent anti-Semitic chants. The complaint sets forth in painful and exhaustive detail the disruption and the conscious decision of the university administration to order police to stand down and allow the shouting students to shut down the event and prevent the Mayor from delivering his scheduled speech, as well as the administration’s decision not to discipline any of the students, or the student group which prevented the speech from being delivered.

Thinking of just those examples, I couldn’t help but compare them to the time when I entered Cornell University more than a few years ago. At that time, upon entrance into the university, all students were required to sign some sort of document agreeing that we could be suspended for saying just about anything on just about any topic of which the university disapproved. In fact, we were required to carry at all times some sort of identification card saying just that. And as I recall it, there really was very little controversial speech at all on campus—a real loss, I can say in retrospect—but very much the ethos of life in America on and off campus in the long ago 1950s.

In fact, in those days, what was viewed as the most dangerous threat to freedom of speech on campus was the power that wealthy and politically regressive alumni sometimes exercised on some campuses. For an artistic look at that sort of danger, have a look at an old [1942] movie called “The Male Animal,” with Henry Fonda playing the role of a professor at risk of losing his position because he read a letter to his English class from Bartolomeo Vanzetti, an anarchist convicted—quite possibly unjustly—of murder in a most celebrated trial of the 1920s. Colleges were also under siege during the McCarthy era and many behaved badly, dismissing scholars for their supposed political views.

But today there are new censors – sometimes students, sometimes with outside support — who seek to place new limits on what may be said on campus. What can one say in response to this other than to quote from the statement of the American Association of University Professors that, in the clearest language, observed that “[o]n a campus that is free and open, no idea can be banned or forbidden. No viewpoint or message may be deemed so hateful or disturbing that it may not be expressed.” Oliver Wendell Holmes, Jr. put it well, when he was a Harvard undergraduate before the Civil War and was a student editor of Harvard Magazine. “We must,” he wrote in 1859, “have every thought brought before us when we are young, and we may as well at once prepare for it.”

The on-campus crisis is not limited to disinviting speakers. Wendy Kaminer, writing in the Washington Post, described a panel she was on at Smith College that dealt with freedom of speech. At one point, Smith’s President, Kathleen McCartney, had observed, tongue in cheek, “We’re just wild and crazy, aren’t we?” When a transcript was prepared, Kaminer writes, the word “crazy” was replaced by the words “[ableist slur.”] When one her fellow panelists mentioned that the State Department had, at one time, banned the words “jihad,” “Islamist” and “caliphate”, the transcript substituted the words [“anti-Muslim/Islamophobic language.”] I know this sounds more like a script for Saturday Night Live than on-campus reality, but it’s all real. As was the predictable reality that when Ms. Kaminer turned to Huckleberry Finn and discussed Huck’s savior and the book’s leading (and, by far, most attractive figure) by name—perhaps you can recall it– she was challenged by other panelists for doing so and later accused in the Huffington Post with committing “an explicit act of racial violence”.

The problem is not unique to our country. Just as the First Amendment, which applies only to the government and thus not privately funded institutions, and what I think of as the spirit of the First Amendment, which should be taken account of in all universities, has not sufficed to prevent such speech destructive activities here, the same has been true in other nations that pride themselves on the protection of free expression. The Observer has reported on one English university that banned supposedly “racist” sombreros and native American dress; and of another where a debate on abortion was cancelled by College Censors (that’s their official name) on the ground that they wanted to protect “students’ emotional wellbeing” by “avoiding unnecessary distress, particularly for any residents who may have had an abortion.”

This sort of thinking makes this an extraordinary perilous moment with respect to free speech on campuses. It sometimes seems as if too many students, even if they are no more than a vocal minority, seem to want to see and hear only views they already hold. And to prevent others from hearing views with which they differ. On one level, this is all perfectly understandable. Justice Holmes, to whom I referred earlier, in one of his most famous opinions, long ago observed that “[i]f you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition.” But natural as that response is, as Holmes later made clear, it is contrary to the core of the First Amendment that “free trade in ideas” be protected. Yet to avoid what the Oxford censors characterized as “unnecessary distress” we have seen speech stifled time and again on campuses in our country.

I don’t mean to suggest that there are no hard cases about what should be permitted on a campus and what not. Incitements to violence are no more protected by the First Amendment on campus than anywhere else. And as the University of Chicago advised the entering class of 2020 at the same time it eloquently defended free speech on campus, “freedom of expression does not mean the freedom to harass or threaten others.”

Nor should students be condemned for feeling and speaking passionately against what they perceive to be racist speech or conduct. Indeed it is important that student activism should generally be encouraged and protected, just as criticism of that activism should be protected, just as I wish we had had far more of all of it when I was in college and that I had participated in it. The absence of such speech was a loss to me, my generation and our nation.

Most campus activism in public universities is protected by First Amendment and in private universities by internal commitments by universities to abide by First Amendment norms. We need more students, not fewer, to become involved with the public issues of the day and on campuses. Their doing so is indispensable if society is to change for the better. If students disagree with the views of a speaker, they should engage with it, picket it, even walk out on it. I do not, in that respect, agree with the criticism voiced by Fareed Zakaria, among others, of students who peacefully walked out at Notre Dame when Vice President Pence was beginning a speech there. Doing so is not only one form of First Amendment protected conduct but a long-recognized and honored one. What is unacceptable is preventing speech from occurring, not protesting it.

Have students changed? Have their views? I have read a disturbing study, by the Higher Education Research Institute at UCLA, based on surveying the views of over 141,000 full-time first year students at colleges around the country.

  • About 71% of them said that they agreed “strongly” or “somewhat” that “colleges should prohibit racist/sexist speech on campus”;
  • about 43% of them said that they agree “strongly” or “somewhat” that “colleges have the right to ban extreme speakers from campus”;
  • and only 64% said that they “strongly “or at least “somewhat” agree that “dissent is a critical component of the political process.”

Put another way, over a third of the entering students polled did not agree that dissent is a critical component of the political process.

Another study concluded that while only 12 percent of my generation (don’t ask what ages I’m talking about) think the government should be able to punish speech viewed as offensive by minority groups, around a 25% of the immediately succeeding generations thought so, and 40 percent of millennials (people 18-34) think so. I know you can read that in two ways. One is the optimistic way. The younger people are, the more unwilling they are to simply accept the existence of often outrageous, even destructive speech. The other way is to conclude that the younger a generation is, the less knowledgeable it is about (or, worse yet, unwilling to accept) the essence of the First Amendment. In that respect, another study concluded that nearly a third of college students could not identify the First Amendment as the one that even deals with freedom of speech. Maybe both are correct. But wouldn’t it be better if we all condemned racist or sexist speech but we all also knew and celebrated the freedom provided by the First Amendment, especially if we know what it says and what it means.

Of course, “extreme” speech is sometimes upsetting, sometimes painful to hear—if you choose to do so. Racist or sexist speech is harmful to the body politic and painful to those at whom it is aimed and those who listen to it. But the First Amendment is rooted in the notion that government (including the administrators of state universities) is not to be trusted to determine what is “extreme” speech, what is “sexist” speech, or the like. Or to punish it, even if they think they can define it. Former President Obama, I think, put it well when he said this: “I’ve heard of some college campuses where they don’t want to have a guest speaker who is too conservative or they don’t want to read a book if it has language that is offensive to African-Americans or somehow sends a demeaning signal towards women. I’ve got to tell you, I don’t agree with that, either. I don’t agree that you, when you become students at colleges, have to be coddled and protected from different points of view.”

A final note. I understand why any university leadership seeks to avoid any potential conflict on campus about speech that some students finds deeply offensive. Why would it not? What university administration would not seek to avoid such any such clash, especially since our nation still has so much to answer for with respect to its historic mistreatment of racial and other minorities? And at a time where serious steps must still be taken, on campus and off, to address ongoing manifestations of racism, sexism, anti-Semitism or the like.

But the answer to the suppression of almost any speech, the First Amendment answer, cannot be to limit expression but to discuss it, not to bar offensive speech but to answer it. Or to ignore it. Or to persuade the public to reject it. I know that’s easy to say but it’s got to be the way we respond to speech which we abhor. What is unacceptable is to suppress the speech. That is why I welcome this hearing the opportunity you have given me to participate in this hearing.

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FAN 156 (First Amendment News) Special Post: The Espionage Act at the 100 Year Mark: Commentaries by Bambauer, Chemerinsky, Stone & Vladeck

There are citizens of the United States . . . born under other flags but welcomed under our generous naturalization laws to the full freedom and opportunity of America, who have poured the poison of disloyalty into the very arteries of our national life; who have sought to bring the authority and good name of our Government into contempt, to destroy our industries wherever they thought it effective for their vindictive purposes to strike at them, and to debase our politics to the uses of foreign intrigue. . . . 

I urge you to enact . . . laws at the earliest possible moment and feel that in doing so I am urging you to do nothing less than save the honor and self-respect of the nation. Such creatures of passion, disloyalty, and anarchy must be crushed out. — Woodrow WilsonState of the Union Address, December 7, 1915

[T]he newspaper or individual who criticizes or points out defects in policies . . . with the honest purpose of promoting remedial action and warning against danger is not a public enemy. — Editorial, New York Times,  April 13, 1917

Today marks the 100th anniversary of the Espionage Act of 1917 (18 U.S. Code Chapter 37). In light of that, I have collected some background materials about the Act followed by several original comentaries on it, which follow the introductory materials below.

Origins

  • Assistant Attorney General Charles Warren drafts a bill “for suppressing or punishing disloyal and hostile acts and utterances.”
  • Bill introduced in the House as H.R. 291
  • Bill passes in the House on May 4, 1917 (261–109)
  • Bill passes the Senate on May 14, 1917 (80–8)
  • President Woodrow Wilson signs bill into law on June 15, 1917.

August 1917 cover of Masses Magazine

First Amendment Online Library Timeline of Espionage Act & Related Acts

 The Masses cases:

  • Masses Publishing Co. v. Patten, 244 F. 535 (S.Dist.N.Y., 1917) (per Hand, J.)
  • ruling re stay of appealed order, 245 F. 102 (per Hough, J., 1917), and
  • Circuit Court ruling reversing District Court,  246 F. 24 (2nd Cir., 1917) (per Rogers, J. for the majority  with Ward, J. concurring)

FAN 148, Coming this fall: NYU Law to host conference to commemorate centennial anniversary of Hand’s Masses decision

Controversial Provisions of the Act: “The Espionage Act put into law a penalty of up to 20 years imprisonment for anyone convicted of interfering with military recruitment. The law also presented the penalty of levying fines of up to $10,000 for those convicted. The law also gave additional powers to the post office. Specifically, the law allowed the Postmaster General to confiscate any mail that might be deemed seditious or treasonable.” (source: This Day in History)

Domestic Issues of Concern: “There were quite a number of concerns the Wilson administration had about certain groups that were in opposition to the war. Public criticism of the war was definitely a major concern of the government. Since a significant number of troops would be needed to carry out the war effort, a draft was imposed. Among the concerns the government had was the notion that constant criticism would make recruitment and even conscription difficult.” (source: This Day in History)

Enforcement: “Enforced largely by A. Mitchell Palmer, the United States attorney general under President Woodrow Wilson, the Espionage Act essentially made it a crime for any person to convey information intended to interfere with the U.S. armed forces prosecution of the war effort or to promote the success of the country’s enemies. Anyone found guilty of such acts would be subject to a fine of $10,000 and a prison sentence of 20 years.” (Source: Totally History)

See also David Greene, As the Espionage Act Turns 100, We Condemn Threats Against Wikileaks, Electronic Frontier Foundation, June 14, 2017

Historical Resources

→ Zechariah Chafee, Jr., Freedom of Speech in War Time, 32 Harvard Law Review 932 (1919)

Karl N. Llewellyn, Free Speech in Time of Peace, 29 Yale Law Journal 337 (1920) (student comment)

Walter Nelles, In the Wake of the Espionage Act, The Nation (December 15, 1920)

Masthead from Masses magazine

Commentaries by Derik Bambauer, Erwin Chemerinsky, Geoffrey Stone & Stepehen Vladeck 

Backwards and Forwards

by Derek E. Bambauer

Many thanks to Ron Collins for the invitation to reflect on the centennial of the Espionage Act!

I want to argue that the Espionage Act is not only problematic on its own terms, but that it has paved the way for a newer set of worrisome statutes and dubious cases. These newer measures, like the Act itself, respond to an exaggerated sense of danger from internal and external threats. Courts and lawmakers alike have largely engaged in ahistorical analysis: they have failed to learn the lessons from the past. They underrated the perceived risk of subversive political speech in wartime in the early twentieth century, and they fail to question whether terrorism is a sufficiently existential threat today to warrant impingements on speech. I conclude that there are two possible responses, neither particularly promising.

To give the problems with the Espionage Act and its progency some currency, consider the current fight against the terror group ISIS in the Middle East. ISIS has taken a surprising amount of territory, and has become infamous for its horrific treatment of captives. There have been domestic attacks by individuals or small groups who claimed an association with or allegiance to ISIS. However, while these attacks are horrifying, even significant terror attacks are not existential threats to the United States.

But the perceived threat from ISIS has generated a disproportionate response, and one that frequently targets speech. For example, the assistant attorney general for national security said that people who are “proliferating ISIS social media” could be prosecuted under 18 U.S.C. 2339A (the material support statute). His contention was that disseminating ISIS’s point of view counts as providing “technical expertise” to a terrorist group. In 2012, the government successfully prosecuted Tarek Mehanna as a terrorist, in part because he translated al Qaeda writings and videos into English. The First Circuit Court of Appeals, in affirming his conviction, called terrorism the “modern-day equivalent of the bubonic plague” and an “existential threat” – an embarrassing example of hyberbole. And the Supreme Court has failed to rein in restrictions on speech justified as necessary for the war on terror. In Holder v. Humanitarian Law Project, the Supreme Court rejected a First Amendment challenge to the material support statute, highlighting the fact that completely independent political advocacy is not covered by the law’s prohibitions. (The challenge, of course, is determining when someone is “completely independent.”)

The material support statute is also problematic in that it defers decisions about what content should be criminalized to the executive branch. The State Department is empowered to determine which entities constitute terrorist groups. Coordinated political advocacy with groups on the list is a crime; advocacy for violent but not listed groups is safe. One person’s terrorist is another’s freedom fighter. There’s also the risk of one-way advocacy: if terrorist group calls for people to advocate on its behalf, and someone does so, does that count as coordination? And, of course, the Justice Department has charged Edward Snowden under the Espionage Act itself, and continues to investigate whether to prosecute WikiLeaks and Julian Assange under it.

These efforts seem similar to prosecutions in the early twentieth century under the Espionage Act that ultimately elucidated the weak form of the “clear and present danger” test. For example, Charles Schenck was convicted for distributing pamphlets for American Socialist Party that read “Assert your rights – do not submit to intimidation” – hardly stuff to stir the blood. The Socialist Eugene Debs was convicted for giving a speech titled “Socialism is the Answer.” And Jacob Abrams was an anarchist convicted for his criticism of the U.S. decision to defend Russia against the Bolsheviks.

There were similar trends during the Cold War. The Communist Eugene Dennis received his conviction for knowingly advocating the overthrow of the U.S. government by force. The Supreme Court called the Communist Party a “permanently organized, well-funded, semi-secret organization.” These cases demonstrate at least two parallels to current events. The first is a conception of political (largely foreign) enemies as an existential threat. The second is that the magnitude of this threat justifies restrictions on political speech and advocacy that would ordinarily be at the heart of First Amendment protection.

I can see two tentative responses to these problems, one pessimistic and one mildly optimistic.

The pessimistic channels Geoffrey Stone: we must accept as inevitable that there will be limits on political advocacy, especially in wartime, even if that war is a long twilight struggle rather than a declared conflict. This has the interesting side effect of making First Amendment less exceptional – there turns out to be an implicit balancing test even with “core” political speech. It might also be a useful descriptive exercise to examine the pendulum swing of First Amendment liberties – is it temporal in nature, or does it relate primarily to subject matter?

The optimistic idea is to draw upon the historical parallels elaborated above: neither socialists nor Communists proved an existential threat to U.S. politics and institutions, despite the heated fears of the moment. This requires more work on our collective part: we have to hold the government to its burden when it seeks to restrict speech, first by questioning the characterization of information as a threat, and second by carefully policing the line between conduct and speech when regulations are proposed or promulgated. That will require political courage – always in short supply – and legal analysis grounded in history.

The Espionage Act ought to teach us that these are vital assets in our self-governance, but it’s not clear we have yet learned the lesson.

A Loaded Gun

By Erwin Chemerinsky

The Espionage Act of 1917 is a loaded gun waiting for the federal government to use it to punish speech. Indeed, throughout its history, it has been used to punish speech that should be deemed constitutionally protected. I especially worry that the Obama administration has set a precedent for the Trump administration, which has shown great hostility to the press. Since the enactment of the Espionage Act of 1917, twelve prosecutions have been brought under it for disclosures of information and nine of those were during the Obama administration.

The Espionage Act, by its very terms, is directed at restricting speech. The law makes it a crime to convey information with the intent to interfere with the operation of the armed forces or to promote the success of its enemies. The Act also makes it a federal crime to convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies when the United States is at war, to cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States, or to willfully obstruct the recruiting or enlistment service of the United States. Yet another provision gives the Postmaster General the authority to impound or to refuse to mail publications that he determined to be in violation of its prohibitions.

The Act has been used to punish speech. Most famously, it was used to punish speech during World War I that the First Amendment never should have allowed to be punished. In Schenck v. United States, the Court considered the conviction of two individuals – Charles Schenck and Elizabeth Baer – who were prosecuted for circulating a leaflet arguing that the draft violated the Thirteenth Amendment as a form of involuntary servitude. The leaflet was titled, “Long Live the Constitution of the United States.”   It said, ‘‘Do not submit to intimidation,’’ and ‘‘Assert Your Rights,’’ but did not expressly urge violation of any law; it advocated repealing the draft law and encouraged people to write to their representatives in Congress to do so.

There was not any evidence that their leaflet had any effect in causing a single person to resist the draft. Nonetheless, they were prosecuted and convicted and sentenced to jail for violating the 1917 Act. The Supreme Court, in an opinion by Justice Oliver Wendell Holmes, upheld their convictions and sentences; he dismissed as irrelevant that the leaflet had no effect.

A week after Schenck was announced, the Court upheld convictions under the 1917 Act in two other cases, Frohwerk v. United States and Debs v. United States.   Jacob Frohwerk was the publisher of a German language newspaper, Missouri Staats-Zeitung. He was prosecuted for a dozen articles published between June and December 1917. Again, the speech was the antithesis of shouting fire in a crowded theater or that which would pose a clear and present danger.   Without doubt, any court today would regard it as expression protected by the very core of the First Amendment. It took the jury only three minutes of deliberation to convict Frohwerk of violating the 1917 Espionage Act and the judge sentenced him to 10 years in prison for his writings. The Supreme Court affirmed.

Albert Burleson was appointed Postmaster General by Woodrow Wilson

In Debs v. United States, the Court affirmed the conviction of Socialist Party leader Eugene Debs who had been sentenced to jail for ten years for violating the 1917 Act. Debs was a national political figure, having run for President in 1900, 1904, 1908, and 1912. Debs was convicted for a speech that was primarily advocacy of socialism, but it included some mild criticism of the draft. At one point in a long speech, Debs remarked that he had to be ‘‘prudent’’ and not say all that he thought, but that ‘‘you need to know that you are fit for something better than slavery and cannon fodder.’’ For this mild statement Debs was convicted of attempting to incite disloyalty in the military and obstruct the draft. Again, the Supreme Court affirmed.

Moreover, during World War I, the Postmaster used the authority under the statute to seize magazines and newspapers. Albert Burleson, a reactionary racist from Texas who despised labor unions and the people who supported them, began a campaign to root out magazines and newspapers that promoted socialist or radical causes.

The subsequent use of the Espionage Act reinforces reasons for great concern. It is the statute used to prosecute Daniel Ellsberg and Chelsea Manning. It is a law that can be used to punish those who provide information to the press and to those who disseminate information. The Act is so broadly written that there is no way to know the speech that it has chilled over the years. I have great fears of how it might be used in the next four years with a President who has shown such great hostility to the press.

When Can a Government Employee Leak Classified Information?

by Geoffrey R. Stone

The Espionage Act of 1917, as amended over the years, forbids government employees to disclose classified information to any person who is not authorized to have access to it. For this reason, most prosecutions of government leakers of classified information have relied upon the Espionage Act. The Act recognizes no defense for government employees who leak such information. This is one of Edward Snowden’s justifications for refusing to return to the United States to face prosecution. He maintains that the absence of a defense that would exonerate government leakers of classified information whose acts do more good than harm is unjust. As we look to the future, a central question is whether the Espionage Act should be amended to recognize such a defense.

Edward Snowden (credit: The Guardian)

At first blush, there is obvious logic in Snowden’s position. After all, if someone does more good than harm, shouldn’t they be free to do the good? Moreover, this seems especially sensible in the context of classified information, because the test for classification is whether the disclosure of the information might “reasonably be expected to harm the national security.” There is no balancing at all of good versus harm. The standard does not take into account the possible benefits of the leak and it does not require that the harm be likely, imminent, or grave.

Moreover, the government quite predictably tends to over-classify information. The simple rule is: Better be safe than sorry. In addition, we know from experience that public officials have on occasion abused the classification system in order to hide from public scrutiny their own misjudgments, incompetence, and venality.

In light of these concerns, it might seem logical to amend the Espionage Act to permit a government employee legally to disclose classified information whenever she can demonstrate that the benefit of the disclosure outweighed the actual harm to the national security. Why shouldn’t Edward Snowden have such a defense, if he can prove the case? After all, granting such a high level of deference to the government in these situations significantly overprotects government secrecy at the expense of both official accountability and informed public debate. Even worse, in some situations the leaker might disclose the existence of programs that are themselves unlawful. In that case, how can it possibly be right to make it a crime for the government employee to disclose the information to the public?

The government’s response to all this is fairly straightforward. First, except in extraordinary circumstances like self-defense, we don’t give individuals a right to break the law because, in the circumstances, committing the crime might do more good than harm. For example, if X steals someone’s purse because he needs money to feed his children, he could easily argue that his theft did more good than harm, but that is not a defense. One could, of course, multiply that hypothetical endlessly.

Second, there are more than a million government employees and private contractors who have access to classified information. The government will argue that it would be reckless in the extreme to permit each of those individuals to think that it is permissible for them to disclose classified information whenever they conclude that the good would outweigh the harm. Even if in some instances they might be right, often they will be wrong – especially because individual government employees and contractors are rarely in a position to understand how the information they plan to disclose might damage the national security. Thus, the government will argue, the only sensible thing to do is to take that option away from these employees. Finally, the government will point out that in order to prove in court that a leak caused substantial damage it would often have to reveal even more classified information, often including sources and methods, which would make such inquiries especially problematic.

So, what’s to be done? It seems unlikely that the Supreme Court will recognize a First Amendment right of government employees to leak classified information. The implementation of a constitutional rule that permits leaks would just be too messy for the Court to impose or to implement. As a legislative matter, though, it would make sense to create some internal mechanism through which these employees can raise their concerns, especially if they believe the programs at issue to be unlawful. To-date, though, there seems to be little interest in such an option. Another possibility, of course, is simply to tighten up the standards and procedures for classification. No one doubts that we currently live in a world of gross over-classification.

Are there cases one can imagine in which even under existing law it would seem implausible to punish a leaker? Suppose an FBI agent learns from a classified document that at the direction of the Russian government the FBI assassinated the president? I rather suspect that if she leaked that information, assuming it is accurate, she would not go to jail.

It’s (Long-Past) Time to Modernize the Espionage Act

by Stephen Vladeck 

For a law that turns 100 today, and that’s only been materially amended once in a century, the Espionage Act has sure enjoyed a popular resurgence of late. President Barack Obama used it to prosecute more leakers than all previous Presidents put together. Critics of Secretary Hillary Clinton’s unauthorized use of a private e-mail server sought desperately to make the (legally unconvincing but politically damaging) argument that she had violated the statute. And when former FBI Director Jim Comey revealed just last week that he had been responsible for leaking a memo memorializing a conversation he had with President Trump, commentators quickly gravitated toward the Act as proof that, if any laws were broken as part of Comey’s termination, it was the old chestnut herself through Comey’s transgression.

U.S. Army Intelligence WW I Poster Warned Americans About German Spies.

What all of these recent stories have in common is the absence of actual “espionage”— the conduct that motivated Congress to enact the law in the first place. The Act was written on the eve of the United States’s entry into World War I, and, as importantly, before the emergence of either the modern terminology for national security classification or the Supreme Court’s modern First Amendment and vagueness jurisprudence. But because Congress has resisted decades of calls to revisit it, it remains on the books mostly as initially enacted—a statute aimed at German spies. Its clunky and capacious language paints with the same brush three distinct offenses:

  1. classic espionage,
  2. leaking, and
  3. the retention or redistribution of national defense information by third parties.

Part of why it’s so problematic that the Espionage Act treats these three very different sins as the same crime is because of its outdated (and outmoded) language. We now have a sophisticated series of Executive Orders that define and regulate the scope of “classified” national security information, and that have, unlike the Espionage Act, regularly been updated to respond to changes in technologies and threat vectors. One would think it is those provisos, and not a century-old statute, that better reflect the true contemporary scope of “information relating to the national defense.”

And, along with classification, we also now have a far-more-sophisticated understanding of the problem of over-classification—and why it’s so problematic that courts have refused to recognize “improper classification” as a defense to an Espionage Act prosecution. Thus, the more information that has become classified, the easier it has become to violate the Espionage Act through conduct that bears increasingly less resemblance to spying.

Finally, we also now have First Amendment jurisprudence that recognizes at least some circumstances (albeit virtually none thus far involving national security information) in which the disclosure of certain previously confidential material might be of such surpassing public concern as to be protected by the First Amendment even when it might otherwise be unlawful. But the 100-year-old verbiage of the Espionage Act doesn’t account for any of these developments. That may be why, 37 years ago (before it qualified for Medicare), the Act was decried by Anthony Lapham, then the General Counsel of the CIA, as the “the worst of both worlds.” As he then explained to Congress:

On the one hand the laws stand idle and are not enforced at least in part because their meaning is so obscure, and on the other hand it is likely that the very obscurity of these laws serves to deter perfectly legitimate expression and debate by persons who must be as unsure of their liabilities as I am unsure of their obligations.

Modernizing the Espionage Act won’t be easy. But 100 years in, it’s long past time for Congress to do so.

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FAN 155 (First Amendment News) “The Past, Present and Future of Free Speech” — Journal of Law and Policy posts First Amendment Symposium

Professor Joel Gora

When it comes to First Amendment symposia, Brooklyn Law School seems to be the go-to-venue, at least judging from the latest issue of the Law School’s Jounral of Law and PolicyThe symposium was done under the watchful eye of Professor Joel Gora, who authored the Introduction — The Past, Present and Future of Free Speech. In that introuction Gora writes:

This may be a historic moment for the First Amendment. In 2016, a landmark Supreme Court ruling turned forty, the Supreme Court turned a corner, and First Amendment rights may turn out to be strengthened. January 30, 2016 marked the fortieth anniversary of the U.S. Supreme Court’s landmark decision in Buckley v. Valeo, dealing with the clash between First Amendment rights and campaign finance limits. And February 12, 2016, the day Supreme Court Justice Antonin Scalia died, marked the end of a ten-year period when the “Roberts Court” became perhaps the most First Amendment friendly and speech-protective Court in the Nation’s history. And the surprise outcome of this past presidential election may, unexpectedly, enhance the future of free speech, because Judge Neil Gorsuch, Donald Trump’s nominee to succeed Justice Scalia, seems to be a strong supporter of the First Amendment

The contents of the symposium are set out below.

  1. A Landmark Decision Turns Forty: A Conversation on Buckley v. Valeo by Ira Glasser, Nicholas W. Allard, & James L. Buckley
  2. Free Speech Under Fire: The Future of the First Amendment by Nicholas W. Allard & Floyd Abrams
  3. Free Speech Matters: The Roberts Court and the First Amendment by Joel M. Gora
  4. Where’s the Fire? by Burt Neuborne
  5. Protecting Hatred Preserves Freedom: Why Offensive Expressions Command Constitutional Protection by Andrew P. Napolitano
  6. Freedom of Speech and Equality: Do We Have to Choose? by Nadine Strossen
  7. The Academy, Campaign Finance, and Free Speech Under Fire by Bradley A. Smith
  8. Money and Speech: Practical Perspectives by Nicholas W. Allard
  9. Producing Democratic Vibrancy by K. Sabeel Rahman
  10. Persistent Threats to Commercial Speech by Jonathan H. Adlers

Group Argues that Trump’s Blocking Twitter Account Violates First Amendment

In a June 6, 2017 letter to President Donald Trump, lawyers for the Knigth First Institute at Columbia University called on the President to unblock their clients’ accounts.  The Institute represents two Twitter users who while using @RealDonaldTrump were blocked after they posted tweets critical of Trump.

Below are some excerpts from the Institute’s letter, which was signed by Jameel Jaffer, Katie Fallow and Alex Abodo:

Accordingly, the Institite called on President Trump or his aides to “immediately unclock our clients’ accounts and the accounts of others who have been blocked because of their views.”

Professor Volokh Responds

 Eugene Volokh, Is @RealDonaldTrump violating the First Amendment by blocking some Twitter users?, The Volokh Conspiracy, June 6, 2017

Did the President violate the Institite’s clients’ First Amendment rights?  “I think that’s not quite so,” replied Eugene Volokh, “though the matter is not open and shut.”

Here, in abreviated form, is why Professor Volokh says so by way of his “tentative thinking on the matter”:

  1. “[M]y inclination is to say that @RealDonaldTrump, an account that Trump began to use long before he became president, and one that is understood as expressing his own views — apparently in his own words and with his own typos — rather than some institutional position of the executive branch, would likely be seen as privately controlled, so that his blocking decisions wouldn’t be constrained by the First Amendment. And I think that’s so even if he gets some help from government-employed staff in running it.”
  2. “But what if I’m mistaken, and it’s viewed as run by Trump in his capacity as a government actor, and thus subject to the First Amendment? . . . But even if he reads a few of his notifications, there’s no First Amendment problem with his refusing to read those that come from particular people. Speakers ‘have no constitutional right to force the government to listen to their views.'”
  3. ” Another effect is that the blocked users can’t follow @RealDonaldTrump, and can’t view or search his messages while logged on. But all they need to do is log off and go to http://twitter.com/RealDonaldTrump, and they’ll see them all. I do think that the First Amendment bans viewpoint-based interference with people’s ability to acquire information and not just with their ability to convey it . . . .”
  4. “If @RealDonaldTrump is seen as a governmental project and thus a limited public forum, then viewpoint-based exclusion from posting to such threads likely would be unconstitutional, just as viewpoint-based exclusion from commenting on a government-run Facebook page would be.”

Invitation

I have invited Jameel Jaffer to respond to Professor Volokh’s critique and will happily post his reponse.

Espionage Act tapped to prosecute intelligence contractor

Reality Leigh Winner

This from Charles Savage writing in the New York Times: “An intelligence contractor was charged with sending a classified report about Russia’s interference in the 2016 election to the news media, the Justice Department announced Monday, the first criminal leak case under President Trump.”

“The case showed the department’s willingness to crack down on leaks, as Mr. Trump has called for in complaining that they are undermining his administration. His grievances have contributed to a sometimes tense relationship with the intelligence agencies he now oversees.”

“The Justice Department announced the case against the contractor, Reality Leigh Winner, 25, about an hour after the national-security news outlet The Intercept published the apparent document, a May 5 intelligence report from the National Security Agency. . . .”

“It was not immediately clear who is serving as the defense lawyer for Ms. Winner, who has been charged under the Espionage Act.”

Related

Erik Wemple, Did the Intercept bungle the NSA leak?, Washington Post, June 6, 2017

Coming Next Week: Special FAN post re 100th Anniversary of Espionage Act 

Next Thursday, June 15th, I will post a special issue of FAN to mark the 100th anniversary of the Espionage Act of 1917. The following individuals will offer comments on the Act and its possible use in modern times:

  1. Derek Bambauer
  2. Bruce Brown
  3. Erwin Chemerinsky
  4. Geoffrey Stone, and
  5. Stephen Vladeck

 The post will also contain a package of resource materails prepared by Jackie Farmer and Robert Shibley who oversee, with me, FIRE’s online First Amendment Library.

Herbst & Stone on “The New Censorship on Campus” 

Read More

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FAN 154 (First Amendment News) Oregon ACLU: Attempt to Quash Alt-Right Rallies Would Violate First Amendment

If the government has concrete evidence of an imminent threat they can and should address it, without restricting 1A rights of all. Oregon ACLU 

 Our hearts are broken, but government censorship is not the answer. We must defend the constitution even when it is uncomfortable.Mat dos Santos, Oregon ACLU Legal Director

Mayor Ted Wheeler

In the aftermath of a brutal anti-Muslim attack involving the slaying of two men and the serious injury of a third, Portalnd Mayor Ted Wheeler declared that “[o]ur city is in mourning, our community’s anger is real.” Because of that, Wheeler aksed  the federal government to revoke permits for two free speech rallies slated for next week by right-wing groups. The “timing and subject of these events can only exacerbate an already difficult situation,” he stressed. “I am calling on every elected leader in Oregon, every legal agency, every level of law enforcement to stand with me in preventing another tragedy,” he added. (Video of Mayor’s statement here.)

The Organizers 

According to KGW News in Portland, “Joey Gibson is organizing a rally on June 4 and has already received a permit for the event at Shrunk Plaza from the federal government, which controls the downtown park. A second rally is scheduled for June 10 but is not yet permitted.” Both were planned prior to the recent attack.

The event, billed as the “Trump Free Speech Rally,” is, according to its organizers, slated to consist of “speakers exercising their free speech, live music, flags, and an uplifting experience to bring back strength and courage to those who believe in freedom.Thank you Trump for all you have done.” (Video by Joey Gibson here re upcoming rallies.)

  Joey Gibson

The Mayor’s Statement

“‘My main concern is that they are coming to peddle a message of hatred and of bigotry,’ Wheeler told reporters, referring to organizers of the two rallies. ‘They have a First Amendment right to speak, but my pushback on that is that hate speech is not protected by the First Amendment to the United States Constitution.'” (Source: CNN)

Oregon ACLU Response

ACU’s Mat dos Santos

Enter the ACLU.  According to a story by Aaron Mesh writing in the Willamette Week, the “American Civil Liberties Union of Oregon says that Mayor Ted Wheeler’s efforts to keep far-right protesters from holding more rallies in Portland is an unconstitutional violation of the First Amendment.”

“The government cannot revoke or deny a permit based on the viewpoint of the demonstrators,” The ACLU said. “Period. It may be tempting to shut down speech we disagree with,” the statement continued, “but once we allow the government to decide what we can say, see, or hear, or who we can gather with, history shows us that the most marginalized will be disproportionately censored and punished for unpopular speech.”

“We are all free to reject and protest ideas we don’t agree with. That is a core, fundamental freedom of the United States. If we allow the government to shut down speech for some, we all will pay the price down the line.”

Organizer Disavows Affiliation with Alleged Attacker 

As reported in the KGW news story, Joey Gibson, “who runs the group Patriot Prayer, said he is a Libertarian and does not promote hate speech. ‘I promote freedom. I promote love and I promote bringing spirituality back into this country,’ he said.Gibson said if the permit is revoked, the event could be more dangerous. He said he won’t be able to kick people out if they’re causing problems. . . . ‘Jeremy Christian has nothing to do with us and nothing to do with our movement,’ he said.”

Christian, the man alleged to have knifed three men on a MAX train, is said to have “yelled slurs at two teenage girls on the train, one of whom was wearing a hijab, when the other men intervened to try to talk him down.”

Jeremy Christian “was kicked out of a prior Patriot Prayer demonstration,” Gibson said.

Allan Brettman, Portland suspect in 2 slayings on train is known for hate speech, The Oregonian, May 28, 2017

V.P. Pence on Campus Speech Codes Read More

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FAN 153 (First Amendment News) POLICYed & Richard Epstein Bring Free-Speech Lessons to Digital Media

If you watch music videos or wild-animal adventures on YouTube, you may come upon a public-service announcement by, yes, Professor Richard Epstein. Well, sort of — he’s the brain power behind an animated and podcast series on free speech.

The series is titled Intellections: Activate Your Thinking and contains videos on a range of topics from rent control to health-care insurance to free speech and beyond. Intellections is part of POLICYed, which is funded by the Hoover Institution located on the campus of Stanford University.

Below are three animated videos for which Professor Epstein helped prepare the content:

  1. Should Speech that Offends be Prohibited? (transcript here)
  2. Who Can Restrict Free Speech? (transcript here)
  3. The Limits of Free Speech? (transcript here)

Related Podcasts

  1. The Libertarian: “Yale, Safe Spaces, And Free Speech” (Troy Senik interviewing Richard Epstein)
  2. Mob Censorship on Campus (Troy Senik interviewing Richard Epstein)
  3. The Libertarian: Free Speech on College Campuses (Troy Senik interviewing Richard Epstein)

Fourth Circuit: Wikimedia Has Standing to Challenge NSA Surveillance Program

The case is Wikimedia Foundation, et al v. National Security Agency, et al (4th Cir., May 23, 2017).

Judge Albert Diaz

Plaintiffs Claims: “Plaintiffs—educational, legal, human rights, and media organizations—filed their first amended complaint wherein they ask for, among other things, a declaration that Upstream surveillance violates the First and Fourth Amendments, an order permanently enjoining the NSA from conducting Upstream surveillance, and an order directing the NSA ‘to purge all records of Plaintiffs’ communications in their possession obtained pursuant to Upstream surveillance.'”

Summary from the court: “The Wikimedia Foundation and eight other organizations appeal the dismissal of their complaint challenging Upstream surveillance, an electronic surveillance program operated by the National Security Agency (the “NSA”). The district court, relying on the discussion of speculative injury from Clapper v. Amnesty International USA (2013), held that the allegations in the complaint were too speculative to establish Article III standing. We conclude that Clapper’s analysis of speculative injury does not control this case, since the central allegations here are not speculative. Accordingly, as for Wikimedia, we vacate and remand because it makes allegations sufficient to survive a facial challenge to standing. As for the other Plaintiffs, we affirm because the complaint does not contain enough well-pleaded facts entitled to the presumption of truth to establish their standing.”

Judge Albert Diaz wrote the majority opinion, in which Judge Motz joined and in which Senior Judge Davis joined in part. Judge Davis wrote a separate opinion dissenting in part.

Majority Opinion: Article III Standing: “[T]he Wikimedia Allegation is that the NSA is intercepting, copying, and reviewing at least some of Wikimedia’s communications in the course of Upstream surveillance, ‘even if the NSA conducts Upstream surveillance on only a single [I]nternet backbone link.’ We conclude that this allegation satisfies the three elements of Article III standing.”

“. . . because Wikimedia has self-censored its speech and sometimes forgone electronic communications in response to Upstream surveillance, it also has standing to sue for a violation of the First Amendment.”

Judge Andre Davis

Judge Andre Davis, concurring in part and dissenting in part: “I agree with the holding that Wikimedia has standing to challenge the NSA’s surveillance of its internet communications. However, because I would find that the non-Wikimedia Plaintiffs also have standing, I respectfully dissent in part.”

→ Counsel for AppellantsPatrick Christopher Toomey, ACLU Foundation, New York

→ Counsel for AppelleesCatherine H. Dorsey, United States Department of Justice

Amicus briefWikimedia Foundation v. National Security Agency (4th Cir., 2016) (Chelsea J. Crawford, Joshua Treem, Margot E. Kaminski, Marc J. Blitz, A. Michael Froomkin, David Goldberger, James Grimmelmann, Lyrissa Barnett Lidsky, Neil M. Richards, & Katherine Jo Strandburg)

Court Summarily Affirms “Soft Money” Case: Hasen’s Commentary  Read More

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FAN 152 (First Amendment News) Gilbert Roe — Free Speech Lawyer is Subject of Forthcoming Book

Breaking News from the New York Times

“. . . Mr. Comey had been in the Oval Office that day with other senior national security officials for a terrorism threat briefing. When the meeting ended, Mr. Trump told those present — including Mr. Pence and Attorney General Jeff Sessions — to leave the room except for Mr. Comey.”

“Alone in the Oval Office, Mr. Trump began the discussion by condemning leaks to the news media, saying that Mr. Comey should consider putting reporters in prison for publishing classified information, according to one of Mr. Comey’s associates.”

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Do not be bluffed on this subject of free speech. Remember that the first amendment of the Constitution stands.  I would say it with greater emphasis if I were a member of the forces of the [Wilson] Administration; for I want to say that if any administration in this country wants to seek trouble, it will find it along the line of denying the constitutional rights of free speech and free press. — Gilbert Roe (1917)

Indeed, [Gilbert] Roe provided the most trenchant and prescient of all criticisms of the Espionage bill by stressing the dangers of the intent requirement. — David Rabban

Gilbert Roe

By and large, First Amendment law is Supreme Court centric. That is, we equate the law, logic and history of freedom of speech with the names of Justices — Holmes, Brandeis, Black, Douglas, Brennan, Scalia, and Roberts. The lawyers behind the cases are all-too-frequently ignored . . . save, perhaps, for Floyd Abrams. But if one looks around the black robes and then turns the clock back, one name, among others, surfaces — Gilbert Roe (1864-1929).

Among other things, Gilbert Roe was the lawyer for the Free Speech League. He  knew and once worked with Louis Brandeis before the latter became a Justice. In 1917 Roe represented Max Eastman, the petitioner in Masses Publishing Co. v. Patten (1917, per Hand., J.). Mr. Roe also argued the case on appeal to the Second Circuit (246 F. 24), which reversed Judge Hand’s opinion.

Before the Masses case Roe was Eastman’s lawyer in a criminal libel case. See People v. Eastman, 89 Misc. 596, 152 N.Y.S. 314 (N.Y., 1915). Before that Roe was the attorney for the petitioner in Fox v. State of Washington (1915). And in April of 1917, he testified before Congress against the Espionage Act.

In his amicus brief in Debs v. United States (1919) Roe, along with the attorney for the petitioner, challenged the Blackstonian interpretation of freedom of expression.

Once this Court says that public discussion of the measures of government can be punished because of any intent which a jury may find caused the discussion, or because of any result which a jury may think will follow such discussion, then the free speech and free press of the Constitution is destroyed. — Gilbert Roe, amicus brief in Debs v. United States (1919)

 Statement of Gilbert Roe, representing the Free Speech League, House Committee on the Judiciary (65th Congress), April 12, 1917 (re proposed bill “To Punish Acts of Interferference with the Foreign Relations, the Neutrality, and the Foreign Commerce of the United States”).

Gilbert Roe & Robert La Follett (credit: Wisconsin Historical Society)

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Gilbert Roe died in 1929.

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Beyond what Professor David Rabban wrote in his seminal Free Speech in its Forgotten Years (1999) and Mark Graber in his Transforming Free Speech (1991), this January Gilbert Roe will be the object of a full-length biography by Professor Eric B. Easton.

The book, to be published by the University of Wisconsin Press, is titled Defending the Masses: A Progressive Lawyer’s Battles for Free SpeechHere is the abstract:

“Free speech and freedom of the press were often suppressed amid the social turbulence of the Progressive Era and World War I. As muckrakers, feminists, pacifists, anarchists, socialists, and communists were arrested or censored for their outspoken views, many of them turned to a Manhattan lawyer named Gilbert Roe to keep them in business and out of jail.”

“Roe was the principal trial lawyer of the Free Speech League—a precursor of the American Civil Liberties Union. His cases involved such activists as Emma Goldman, Lincoln Steffens, Margaret Sanger, Max Eastman, Upton Sinclair, John Reed, and Eugene Debs, as well as the socialist magazine The Masses and the New York City Teachers Union. A friend of Wisconsin’s progressive senator Robert La Follette since their law partnership as young men, Roe defended ‘Fighting Bob’ when the Senate tried to expel him for opposing America’s entry into World War I.”

“In articulating and upholding Americans’ fundamental right to free expression against charges of obscenity, libel, espionage, sedition, or conspiracy during turbulent times, Roe was rarely successful in the courts. But his battles illuminate the evolution of free speech doctrine and practice in an era when it was under heavy assault. His greatest victory, including the 1917 decision by Judge Learned Hand in The Masses Publishing Co. v. Patten, is still influential today.”

Prof. Eric Easton

How the book came about: “I was looking to write something about Masses Publ. Co. v. Patten, but couldn’t find an approach that hadn’t already been done . . . and done well.  I decided to look at the human side of the case. Again, I found Hand and Eastman well covered (and Patten not terribly interesting).  But Roe seemed like a possibility, although I didn’t know who he was. Brief mentions of him in books I had read (Rabban, Graber) hadn’t really registered with me.

“I wrote to the University of Wisconsin Law Library, among others, to see if they might have some of Roe’s papers, and a librarian there sent me a Westlaw printout of Roe’s published cases (something I could have done myself, but didn’t). My interest was really piqued when I saw some familiar names as parties. When I read the cases, I knew I had something, and plunged into his papers (with La Follette’s in the Library of Congress) and his wife’s (at the Wisconsin Historical Society).”

“What followed was the most enjoyable scholarly experience of my career:  a new discovery nearly every day, a fascinating cast of characters, and a true unsung hero in the evolution of American freedom of speech.  I only hope I have done him justice.” [Source: e-mail to RKLC]

Professor Easton will present a paper at the October Masses conference at New York University Law School. His paper is entitled: “The Role of Gilbert Roe, the Masses attorney.”

Cert. Petition filed in Right to Assembly Protest Case Read More

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FAN 151 (First Amendment News) Morgan Weiland Meet Ira Glasser — The First Amendment & the Liberal Dilemma

[F]or those who believe that the Speech Clause has meaning beyond its strategic use, the application of the speech right must have limits. In other words, the outward creep of the speech doctrine’s boundaries need not be tolerated as “freedom for the [speech] that we hate.” — Morgan N. Weiland

I regard [the campaign finance issue] as the biggest liberal blindspot in First Amendment struggles in my entire career at the ACLU. – Ira Glasser 

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Morgan Weiland

Expanding the Periphery and Threatening the Core: The Ascendant Libertarian Speech Tradition” is the title of a forthcoming article in the Stanford Law Review.

The author is Morgan N. Weiland, an attorney and PhD candidate at Stanford University specializing in speech, press, and technology law and ethics. Next year she will clerk for Ninth Circuit Judge M. Margaret McKeown. Here is how Ms. Weiland begins the abstract to her forthcoming article:

“Though scholars have identified the expanding scope of First Amendment speech doctrine, little attention has been paid to the theoretical transformation happening inside the doctrine that has accompanied its outward creep. Taking up this overlooked perspective, this Article uncovers a new speech theory: the libertarian tradition. This new tradition both is generative of the doctrine’s expansion and risks undermining the First Amendment’s theoretical foundations.”

“This Article excavates the libertarian tradition through an analysis of Supreme Court cases that, beginning in the 1970s, consistently expanded speech protections by striking down limits on commercial speech and corporate political spending. The Court justified this expansion with the rationale of vindicating listeners’ rights in the free flow of information—the corporate benefit was incidental. But by narrowly conceptualizing listeners as individuals whose interests are aligned with corporate speech interests, the Court ended up instrumentalizing listeners’ rights in the service of corporate speech rights. This is the libertarian tradition. Today, the tradition has abandoned listeners’ rights altogether, directly embracing corporate speech rights. . . .”

As Ms. Weiland sees it, the “libertarian tradition” threatens two longstanding free-speech theories:  “the republican and liberal tradition.” Against that conceptual backdrop, she adds:

“First, by reconceptualizing listeners as individuals whose interests are vindicated through deregulation, the libertarian tradition draws from and is hostile to the republican tradition, which emphasizes the rights of the public, figured as listeners. Second, because the libertarian tradition focuses on vindicating corporate speech rights, it strips away the hallmarks of individual autonomy central to the liberal tradition, leaving only a naked speech right against the state, which this article names ‘thin autonomy.’ If the two traditions have value, then the libertarian tradition is problematic.

This insight cuts against the widespread belief that to protect speech we must be willing to countenance nearly any application of the right, even—and perhaps especially—if it goes against our most deeply held beliefs. That view is a myth; the speech right must have limits.”

 Related 

Weiland on Press Clause & Shield Legislation 

“Weiland’s scholarship and policy work has also focused on the press clause and journalism. She is researching the doctrinal development of the press clause, a paper that was supported by Stanford’s Constitutional Law Center and presented at the Communication Department’s Rebele Symposium in April 2015.”

“Related to this research, Weiland has engaged extensively with the federal shield bill debate. She has spoken about the bill and its potential impact on journalism at AEJMC’s 2014 conference. Free Press, in a report titled “Acts of Journalism: Defining Press Freedom in the Digital Age,” notes that “[j]ournalism and First Amendment scholar Morgan Weiland has argued that lawmakers should simply drop the definition of ‘covered persons’ in both the House and Senate bills and rely instead on the House definition of journalism.” She advanced these arguments while working as a legal intern at the Electronic Frontier Foundation in 2013, where she critiqued and helped to change the legislation. Her work on congressional shield legislation is also featured in the Stanford Lawyer.” [Source here]

Podcast: Interview with former ACLU Executive Director Ira Glasser

[F]or me the First Amendment and all those always was a strategic argument. I regarded the First Amendment, not as a highfalutin doctrine of principle, but as an insurance policy, and that’s what it was meant to be. . . .Ira Glasser 

Ira Glasser

Over at FIRE’s So to Speak podcast series Nico Perrino interviews one the ACLU’s giants, Ira Glasser (transcript here).

In this wide-ranging and spirited interview, the liberal Glasser speaks about everything from

  • his teaching math at Queens and Sarah Lawrence Colleges,
  • to the people who inspired him (e.g., Murray Kempton, I.F. Stone and Max Lerner),
  • to his admiration for Jackie Robinson,
  • to his early days in 1967 at the NYCLU with Aryeh Neier (Glasser is not a lawyer),
  • to his understanding of  how real political change comes about,
  • to his presence at March on Washington in 1963 when he was 25 (“I’d never seen anything like that in my life before, or since”)
  • to his activism during the Nixon years
  • to his views on the ACLU’s involvement in the Skokie case (“It was a surprise to us that it got so controversial”)
  • to his historical discussion of Buckley v. Valeo and how of campaign-finace laws were tapped to go after liberals,
  • to his views on progressives’ call to amend the First Amendment in order to overrule Citizens United (“You are handing your enemies the tools to suppress you!”)
  • to his reply to Perrino’s last question: “What are you most proud of?” — Glasser: “There are two answers: One answer is substantive, and one answer is organizational . . . .” [You’ll have to listen to the podcast or read the transcript to hear the rest of Glasser’s answer.]

Related 

[B]ack in 1972, the ACLU, which by the way is . . . a corporation, was prevented from taking out an ad in The New York Times criticizing then-President Nixon for his opposition to school busing for integration, and had to go to court to vindicate its right to free speech. Ira Glasser (2011)

From Stanford Law Review Online: Judge Neil M. Gorsuch on Free Expression Read More