Tagged: First Amendment

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FAN 169.1 (First Amendment News) FIRE calls on Brandeis President to reinvite playwright to present controversial Lenny Bruce Play

disclosure: I was one of the signatories to this letter to Brandeis University’s President. 

Press release from Foundation for Individual Rights in Education:

An open letter to Brandeis regarding the cancellation of Lenny Bruce-inspired play, ‘Buyer Beware’

Ronald D. Liebowitz                                                                                                           November 13, 2017
Office of the President, MS 100
Irving Enclave 113
Brandeis University
415 South Street
Waltham, MA 02453
781-736-3001

URGENT

Sent via U.S. Mail and Electronic Mail (president@brandeis.edu)

Dear President Liebowitz,

Ronald D. Liebowitz, President of Brandeis University

We are a group of free speech advocates with a resilient interest in comedian Lenny Bruce’s life and legacy. We write to you today because we are concerned by recent reports that a play scheduled to be staged this month at Brandeis University was postponed and subsequently abandoned, in part because it utilized material from the university’s Lenny Bruce archives — material that some within the university found “challenging.” We call upon Brandeis to reaffirm the principles of freedom of expression, inquiry, and debate upon which any institution of higher education must be based, and to commit itself to engaging with the challenging material in the play by staging it as intended — not censoring it.

It is our understanding that the play, “Buyer Beware,” written by celebrated playwright and Brandeis alumnus Michael Weller, uses excerpts and ideas from Lenny Bruce’s routines as catalysts for a fictional debate about free speech on Brandeis’ campus. Lenny Bruce’s comedy has long been both controversial and groundbreaking. During his lifetime, he was subjected to six obscenity trials, purportedly for words that today are regularly used in all forms of artistic expression. These prosecutions left Bruce bankrupt and unable to work before dying in 1966 at the age of 40. “We drove him into poverty and bankruptcy and then murdered him,” said Vincent Cuccia, one of Bruce’s New York prosecutors. “We all knew what we were doing. We used the law to kill him.”

[Ronald D. Liebowitz, Oct. 26, 2016: Lenny Bruce exerted an impact upon his contemporaries and successors like no one else in his field, and his influence on comedy and well beyond comedy continues today. . . .  It is quite appropriate that Brandeis, with our motto of truth even unto its innermost parts, is now home to the personal papers of an individual who deeply believed in that same ideal, even to the point of persecution. We are honored to have been chosen as the keepers of this historic collection . . . . ]

Americans have since recognized the injustices dealt to Bruce. He was the last comedian to be criminally prosecuted for obscenity in the United States. Today, Bruce is revered as a champion of free speech and First Amendment principles — so much so that he was posthumously pardoned by New York Governor George Pataki in 2003. His life story serves as a cautionary tale of what happens when we censor artistic expression.

Playwright Michael Weller

Given this history, the undersigned are sensitive to the possibility that Bruce’s words may again be censored. Our unease is amplified by the fact that such censorship may occur at Brandeis University, named after the staunch free speech advocate and United States Supreme Court Justice Louis Brandeis. Our concern is all the greater insofar as the university is the institutional custodian of the Lenny Bruce archives and much of Bruce’s legacy.

A 2004 box set of Bruce’s comedy was titled “Let the Buyer Beware.” Perhaps not coincidentally, “Buyer Beware” is also the title of Weller’s play. Surely when Brandeis accepted the responsibility of preserving Bruce’s archives within its library, it well understood the risks associated with doing so — caveat emptor — and tacitly, if not explicitly, agreed that it would spare Bruce the injustice of committing or enabling his posthumous censorship.

In a statement responding to the cancellation of the fall production of “Buyer Beware,” Brandeis announced that “faculty members considered the challenging issues [the play] raised” and decided that more time was needed to produce the play “appropriately.” The statement goes on to relinquish the university’s responsibility for the play’s subsequent cessation by foisting responsibility upon Weller, who did not approve of this more “appropriate” production, which subsequent reports indicate was not even presented to him. According to a statement from the Dramatists Guild of America and the Dramatists Legal Defense Fund, Weller “has heard only indirectly about the possibility of doing it at ‘a 60-seat black box theatre in Watertown that has some lights, and a budget for one or two professional actors.’”

Kitty Bruce (daughter of Lenny Bruce & signatory to letter)

Numerous reports indicate that the decision to forestall the planned production of “Buyer Beware” comes amid a concerted effort by some Brandeis students and alumni to cancel the play. The campaign was allegedly led by a Brandeis alumna, who reportedly admitted to having never read the play’s script, yet claimed that it “is an overtly racist play and will be harmful to the student population if staged.” Scholars of Bruce’s life know well that attempts at prior restraint are insidious and beget more censorship. Indeed, after Bruce was first prosecuted in one court, additional prosecutions soon followed. “Don’t lock up these 6,000 words,” Bruce pleaded to one New York City judge during a court hearing.

We write to ask for more details about Brandeis’ decision to cancel this month’s production of “Buyer Beware.” What material, exactly, did the university consider too “challenging” for its students and faculty? And why, when an agreement could not be reached with Weller to find a more “appropriate” setting for the play, did the university decide not to stage the production as intended, and instead defaulted to functionally censoring the “challenging” material instead of openly engaging with it?

comedian Penn Jillette (signatory to letter)

We call upon Brandeis University to answer these questions in a manner consistent with the principles of freedom of speech to which the university claims to commit itself, principles that are integral components of Lenny Bruce’s and Louis Brandeis’ legacies. If it cannot, we ask you to immediately reverse the decision to cancel this month’s production of “Buyer Beware” and to reinvite Weller to stage it as intended. The play itself presents a direct challenge to the university —  according to The Brandeis Hoot: “If Lenny Bruce came to life right now, for one day, and he was booked for a gig on campus. How would the administration react?”

Again, we urge the university to commit itself to reinviting Weller to stage “Buyer Beware” as intended, thereby defending the very free speech principles for which Lenny Bruce fought throughout his life.

lawyer Robert Corn-Revere (signatory to letter)

To you, President Liebowitz, we repeat the question and also ask: Did the Lenny Bruce archives end up in the “appropriate” place?

We look forward to hearing from you by Friday, November 17.

Sincerely,

Foundation for Individual Rights in Education

Kitty Bruce
Daughter of Lenny Bruce
Founder, The Lenny Bruce Memorial Foundation

Penn Jillette
Comedian and magician, Penn & Teller

Robert Corn-Revere
Partner, Davis Wright Tremaine LLP
Attorney responsible for successfully petitioning Governor George E. Pataki to grant the first posthumous pardon in New York history to Lenny Bruce in 2003

Ronald K.L. Collins
Harold S. Shefelman Scholar
University of Washington, School of Law
Co-author, The Trials of Lenny Bruce

David M. Skover
Fredric C. Tausend Professor of Constitutional Law
Seattle University School of Law
Co-Author, The Trials of Lenny Bruce

Noam Dworman
Owner, Comedy Cellar

Ted Balaker
Director, Can We Take a Joke?, a film about the life and legacy of Lenny Bruce

Courtney Balaker
Producer, Can We Take a Joke?

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

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

* * * *

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

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

Gilbert E. Roe (lawyer for The Masses)

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

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

Original court documents posted for first time

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

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

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

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

            Judge Hand’s signature in Masses case

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

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

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

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

Robert Shibley

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

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

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

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

ContactWilliam Rickards, Communications Coordinator, FIRE
215-717-3473; media@thefire.org
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FAN 163 (First Amendment News) Sanford Ungar Heads New Free Speech Project at Georgetown University

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

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

Sanford Ungar (credit: Lumina Foundation)

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

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

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

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

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

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

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

Website, video & archives 

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

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

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

Project to host programs

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

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

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

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

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

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

Co-hosted by:

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

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

Program:

Historical and Cultural Background

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

The Masses Case: Dramatis Personae and Decision

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

 Aftermath of the Masses Decision

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

The Influence of Masses on Modern First Amendment Doctrine

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

Replay: Podcast — Judge Richard Posner on the First Amendment

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

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

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

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FAN 162 (First Amendment News) Online First Amendment Encyclopedia Launched

Given our increasingly polarized society, it’s important to remember what should unite us: respect for freedom of speech, press, religion, and the right to assemble and petition. — Ken Paulson (Sept. 14, 2017)

Dean Ken Paulson (credit: Bruce Guthrie)

It’s online now: The First Amendment Encyclopedia. Among other things, it is a impressive collection of more than 1,500 articles on First Amendment topics, court cases, and history. The online encyclopedia was culled and updated from the two-volume Encyclopedia of The First Amendment edited by John R. Vile, David L. Hudson, Jr. & David Schultz.

Two of the three original editors of the volumes — John Vile and David Hudson — spent the past several months reviewing and updating entries and adding new ones.

This online treasure trove of information was originally published by Congressional Quarterly in 2009 and listed for $355.00. The online encyclopedia (now free of charge) comprehensively examines the political, historical, and cultural significance and development of freedom of religion, freedom of speech, freedom of the press, the right to peaceably assemble, and the right to petition the government.

 The rights to the Encyclopedia were purchased by Dean Ken Paulson of Middle Tennessee State University.

John Seigenthaler (1927-2014)

“We’ve found the now out-of-print two-volume edition,” said Paulson, “to be an extraordinary resource, so we purchased it, digitized it and updated the content.  It’s a remarkable resource for those interested in First Amendment freedoms and it’s written in a style that makes it useful to both students and scholars.”

“The encyclopedia,” he added, “is part of an ongoing expansion of the Seigenthaler Chair of Excellence in First Amendment Studies at Middle Tennessee State Univeristy. The chair honors John Seigenthaler and his lifelong commitment to the First Amendment. Expanded programing and the revitalization of the website are among the steps we’re taking to address John’s lifelong goal of preserving and protecting the First Amendment through education and information.”

Deborah Fisher at press conference

“This is a living, breathing project that will continue to grow in a way that promotes awareness and understanding of the First Amendment and its role in American history,” said Deborah Fisher, director of the Seigenthaler Chair of Excellence.

 Video of press conference here

 Disclosure: Many years ago Ken Paulson hired me to work at the First Amendment Center.

→ Related Resource: FIRE’s First Amendment Online Library

On Compelled Artistic Expression: Judge Breyer circa 1988

Re: Masterpiece Cakeshop v. Colorado Civil Rights Commission

If you want to get a sense of First Amendment law and compelled artistic expression, a good case to consult is Redgrave v. Boston Symphony Orchestra, 855 F.2d 888 (1st Cir. en banc, 1988).

First Circuit Judge Stephen Breyer (C-SPAN)

The case involved actress Vanessa Redgrave who “brought suit against the Boston Symphony Orchestra (BSO) for cancelling a contract for Redgrave’s appearance as narrator in a performance of Stravinsky’s Oedipus Rex. The cancellation occurred in the wake of protests over Redgrave’s participation because of her support of the Palestine Liberation Organization. She sought recovery both for breach of contract and for violation of her civil rights under [a Massachusetts civil rights law.”

Writing for the Court sitting en banc Judge Frank Coffin declared:

  • “Protection for free expression in the arts should be particularly strong when asserted against a state effort to compel expression.”
  • Judge Coffin then added: “We see no reason why less protection should be provided where the artist refuses to perform; indeed, silence tradi- tionally has been more sacrosanct than affirmative expression.”
  • The court was “unable to find any case, involving the arts or otherwise, in which a state has been allowed to compel expression,” and observed that doing so would be “completely unprecedented.”
  • “All three groups indicated, in tones ranging from strong suggestion to outright certainty, a view that the BSO should not be held liable under the [state civil rights law] for exercising its free speech right not to perform.”

Judge Stephen Breyer was one of the judges who joined Judge Coffin’s opinion.

See Amicus brief of First Amendent Lawyers Association in Masterpiece Cakeshop v. Colorado Civil Rights Commission

ACLU Brief in Masterpiece Cakeshop Case Rejects Free Speech Claim Read More

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FAN 160.1 (First Amendment News) Ballard Spahr and Levine Sullivan Koch & Schulz to Merge

Press ReleaseAm Law 100 firm Ballard Spahr and Levine Sullivan Koch & Schulz (LSKS)—the preeminent First Amendment and media law boutique in the United States—announced today that they have agreed to merge effective October 1, 2017. The powerhouse combination, which will retain the name Ballard Spahr, brings together two nationally renowned media law practices and creates a team that represents the biggest and most prominent names in the industry.

All 25 of LSKS’s lawyers, including all four of its name partners—Lee Levine, Michael D. Sullivan, Elizabeth C. Koch, and David A. Schulz—will join Ballard Spahr in its Washington, D.C., New York, Philadelphia, and Denver offices. LSKS is well known for its deep bench of top-tier First Amendment attorneys. Its lawyers, including Mr. Levine—who has been described in Chambers USA as “the greatest First Amendment attorney in the United States”—have argued landmark cases before the U.S. Supreme Court and in state and federal courts across the country.

Mark S. Stewart (Ballard Spahr) 

“We have made one outstanding addition after another to our Media and Entertainment Law Group—including Practice Leaders David Bodney and Chuck Tobin, who are recognized as among the very best in the business,” said Ballard Spahr Chair Mark Stewart. “With the arrival of LSKS, we will have one of the largest practices of its kind in the country. The LSKS lawyers are terrific people whose dedication to this critically important work mirrors ours. It is an exciting development for both firms.”

Media attorneys at Ballard Spahr and LSKS represent and counsel clients across platforms and industry sectors—news, entertainment, sports, publishing, advertising, and advocacy. They defend media clients in defamation, privacy, and First Amendment litigation; prosecute actions to secure open government and public access; defend journalists against civil, criminal, and grand jury subpoenas; advise reporters in their newsgathering; provide prepublication and prebroadcast counseling to a wide array of media; and help clients protect their intellectual property rights.

Jay Ward Brown (LSKS)

LSKS has been at the vanguard in representing the media in many of its most significant and consequential First Amendment cases in recent years. Last month, the firm achieved dismissal in federal court of a defamation suit brought against The New York Times by former vice presidential candidate Sarah Palin. LSKS also helped the Associated Press obtain the release of sealed documents in the Bill Cosby sexual assault cases; successfully defended NBCUniversal in a defamation suit brought by George Zimmerman, the man acquitted in the fatal shooting of Trayvon Martin; and succeeded in reversing a jury verdict against the estate of famed Navy SEAL Chris Kyle in a case brought by Jesse Ventura following the publication of Kyle’s best-selling book American Sniper: The Autobiography of the Most Lethal Sniper in U.S. Military History.

“We are more committed than ever to providing our clients with the strongest, most comprehensive representation possible,” said LSKS Managing Partner Jay Ward Brown. “We saw that same commitment in Ballard Spahr, and we knew that Ballard—with its practice depth and national platform —would support and strengthen our work. We share many of the same clients, and those clients have the highest regard for Ballard Spahr. Together, this team is second to none.”

‡ ‡ ‡ ‡  

 As with Levine Sullivan Koch & Schulz, Ballard Spahr will continue to host and support The First Amendment Salon.

‡ ‡ ‡ ‡ 

Ballard Spahr welcomes the following attorneys from LSKS:

  • Lee Levine
  • Michael D. Sullivan
  • Elizabeth C. Koch
  • David A. Schulz
  • Thomas B. Kelley
  • Celeste Phillips
  • Robert Penchina
  • Seth D. Berlin
  • Jay Ward Brown
  • Steven D. Zansberg
  • Michael Berry
  • Chad R. Bowman
  • Cameron Stracher
  • Ashley I. Kissinger
  • Alia L. Smith
  • Paul J. Safier
  • Elizabeth Seidlin Bernstein
  • Mara J. Gassmann
  • Dana R. Green
  • Matthew E. Kelley
  • Jeremy A. Kutner
  • Max Mishkin
  • Thomas B. Sullivan
  • Al-Amyn Sumar
  • Alexander I. Ziccardi

The LSKS merger is the second to be announced by Ballard Spahr. Last week, Ballard Spahr announced that it will join with Lindquist & Vennum—a Minneapolis-based law firm known as a leader in middle-market M&A and private equity dealmaking—effective January 1, 2018. The combination will extend Ballard Spahr’s national footprint into the Midwest, giving the firm offices in Minneapolis and Sioux Falls, SD, and an expanded presence in Denver. When the mergers are completed, Ballard Spahr will have more than 675 lawyers in 15 offices across the country.

About Ballard SpahrBallard Spahr LLP, an Am Law 100 law firm with more than 500 lawyers in 13 offices in the United States, provides a range of services in litigation, business and finance, real estate, intellectual property, and public finance. Our clients include Fortune 500 companies, financial institutions, life sciences and technology companies, health systems, investors and developers, government agencies, media companies, educational institutions, and nonprofit organizations. The firm combines a national scope of practice with strong regional market knowledge. For more information, please visit www.ballardspahr.com.

About LSKSLevine Sullivan Koch & Schulz is a national law firm dedicated to serving the legal needs of creators and providers of virtually every type of content in virtually every kind of media, both traditional and new. Its practice focuses exclusively on the field of media law, specializing in First Amendment, entertainment, and intellectual property law. With offices in Washington, D.C., New York, Philadelphia, and Denver, the firm provides counsel nationwide on defamation and privacy, access and freedom of information, content regulation, subpoena matters, and intellectual property rights.


 

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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 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.”

_______________________

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)

Related

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 136.1 (First Amendment News) Nat Hentoff, First Amendment Champion, Dies

Sad to report the death of my father tonight at the age of 91. He died surrounded by family listening to Billie Holiday. — Nick Hentoff

Seattle. He was a friend, an inspiration, and someone who led the kind of life that so many long to live but are afraid to do so. When Ira Glasser shared the news, I left a party and went back to a quiet place to listen to Miles Davis’ Blue in Green . . . and then I turned off the lights and just sat and thought of Nat.

Perhaps no person better embodied the spirit of the First Amend — robust, rebellious, free-flyin’ and straight-talking — than Nat Hentoff (1925-2017) (AP obit here)

Fuse the life spirit of Lenny Bruce together with that of the early Bob Dylan and add a dollop of Miles Davis’ jazz and Allen Ginsberg’s poetry and you’ll get a sense of Hentoff’s persona. There was also a Tom Paine quality about him — feisty in his defense of freedom, no matter how unpopular it made him. Some liberals loved him, some conservatives admired him, and some libertarians applauded him — but very few came along for the full Hentoff monty. And that’s the way he liked it! If you have an open mind and a tolerant side, you had to love the guy . . . if only at a First Amendment distance.

If any of this strikes a chord in your free-speech consciousness, then check out the 2013 documentary on Nat — The Pleasures of Being out of Step, directed by David L. Lewis. Here is a description of the documentary:

Pleasures profiles legendary jazz writer and civil libertarian Nat Hentoff, whose career tracks the greatest cultural and political movements of the last 65 years. The film is about an idea as well as a man – the idea of free expression as the defining characteristic of the individual. . . . Pleasures wraps the themes of liberty and identity around a historical narrative that stretches from the Great Depression to the Patriot Act. Brought to life by actor Andre Braugher, the narration doesn’t tell the story – it is the story, consisting entirely of writings by Hentoff and some of his subjects. With a potent mix of interviews, archival footage, photographs and music, the film employs a complex non-linear structure to engage the audience in a life of independent ideas and the creation of an enduring voice.

At the core of the film are three extraordinarily intimate interviews with Hentoff, shot by award-winning cinematographer Tom Hurwitz. The film also includes interviews with Floyd Abrams, Amiri Baraka, Stanley Crouch, Dan Morgenstern, Aryeh Neier, Karen Durbin, Margot Hentoff and John Gennari, among others. It features music by Duke Ellington, Miles Davis, John Coltrane, Bob Dylan and Charles Mingus, and never-before seen photographs of these artists and other cultural figures at the height of their powers.

 Here is the trailer.

 Here is the bookThe Pleasures of Being Out of Step: Nat Hentoff’s Life in Journalism, Jazz and the First Amendment.

Nat Hentoff on Bill Buckley's Firing Line

   Hentoff on Bill Buckley’s Firing Line

Hentoff Books

Some of Nat’s books on free speech and related topics include the following:

See also Ronald Collins & David Skover, The Trials of Lenny Bruce (2002) (cd narrated by Nat Hentoff)

Video clips

       Hentoff & Allen Ginsberg on Charlie Rose (1995)

 Nat Hentoff on Free Speech,Jazs, & FIRE (this is precious!)

 See and hear the man himself on this Brian Lamb, C-SPAN interview with Nat (go here).

 And go here, too, for Richard Heffner’s Open Mind interview with Nat.  (See also here for a Cato Interview)

 One more — this, too, is precious: The young Nat debating the young Bill Buckley on Firing Line.

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FAN 130 (First Amendment News) “Porn Panic” Prompts Pushback

There is nothing new about the assault on sexual content.  What is new is the rubric of public health concerns over sex trafficking and child safety to justify broad restrictions on sexual content, private censorship of sexual expression, and citing health and safety of sex workers to justify onerous restrictions on producers and performers.

That is how the Free Expression Network described a recent panel discussion it hosted, one titled  “The Assault on Sexual Expression.” The panel was part of an October 17, 2016 program held in Washington, D.C. It was moderated by Ricci Levy (President of the Woodhull Freedom Foundation); the panelists were Larry Walters (partner, Walters Law Group), David Horowitz (Executive Director, Media Coalition), and Joan Bertin (Executive Director, National Coalition Against Censorship).

Item: Do you remember the group named Morality in the Media? In keeping with the times, in 2015 the group changed its name to the National Center on Sexual Exploitation. The group’s mission: “Confronting sexual exploitation.” Apparently, morality has taken a backseat to concerns such as:

unknownConsider also this item from the Republican Platform for 2016: “The internet must not become a safe haven for predators. Pornography, with its harmful effects, especially on children, has become a public health crisis that is destroying the lives of millions. We encourage states to continue to fight this public menace and pledge our commitment to children’s safety and well-being. We applaud the social networking sites that bar sex offenders from participation. We urge energetic prosecution of child pornography, which is closely linked to human trafficking.”

It all sounds so liberal, so modern, and so unobjectionable. Exit the old Anthony Comstock mindset, enter the new pro women, pro children, and pro health mindset. But just as the anti-pornography movement hoists its new flag,  opposition to it is mounting in psychological and legal quarters.

Enter Lawrence Walters  and Dr. Marty Klein — a seasoned First Amendment lawyer and certified sex therapist.

War on porn over?

First, Mr. Walters with these exclusive statements to FAN: “For decades, the “War on Porn” was justified on the grounds that viewing explicit material is immoral, and masturbation is a sin. As time passed, and erotica became mainstreamed, these hackneyed claims wore thin. Now, all the top celebrities have a sex tape, the Adult Video News Awards are broadcast on Showtime, and porn sites get more visitors than Netflix, Amazon, and Twitter, combined. Moral acceptability of porn is rising, particularly among women who now make up 24% of the largest porn site users. The federal government has essentially given up on prosecuting obscenity prosecutions, with no new cases being filed since President Obama took office. In 2014, thinkprogress.com declared that the War on Porn was over, and the censors had lost.”

Larry Walters

Larry Walters

“The prior justifications for opposing sexually explicit media,” he added, “needed a 21st Century face lift if they were to survive. Thus was born the idea of porn as a ‘public health crisis.’ Health and fitness is all the rage, so the new battle cry had a nice ring to it. To give the campaign a boost, ‘experts’ began claiming that porn was also “addictive”, and generated harmful “erototoxins” that changed the chemical makeup of the brain. Naturally, Congress held hearings to explore this new flavor of porn panic.”

“One issue that unites virtually all lawmakers,” argues Mr. Walters, “is the fight against sex trafficking. In overwhelming majority votes, the House and Senate passed the controversial SAVE Act in 2015, imposing potential life imprisonment on anyone who advertises acts of sex trafficking. A bipartisan group of lawmakers has recently called upon the Justice Department to be more proactive in enforcing the law. Now sex trafficking is being used as another justification for the renewed War on Porn? A recent, comprehensive report funded by the DOJ concluded that pornography contributes to sex trafficking. The report, entitled; Identifying Effective Counter-Trafficking Programs and Practices in the U.S.: Legislative, Legal, and Public Opinion Strategies that Work, concludes that consumption of sexually explicit media ‘contributed to a more laisse-faire attitude toward [sex trafficking].'”

In sum, “labeling pornography as a public health crisis, addictive, and supportive of sex trafficking, fits the modern agenda. It’s a far cry from claiming that looking at nudie mags is immoral.”

Porn & anti-social behavior

51shpu5r-jl-_sx313_bo1204203200_Next, there is Dr. Marty Klein, author of a just-published book titled His Porn, Her Pain: Confronting America’s PornPanic with Honest Talk About Sex (Praeger, 2016). Here are a few items of interest from the book:

  • “Does porn lead to anti-social outcomes? Since free, high-quality porn flooded America 16 years ago, the rates of sexual violence, child molestation, and divorce [in the United States] have declined.”
  • “The overwhelming majority of Internet porn shows happy, smiling people enjoying playful, consensual sex.  Critics who focus only on the violent depictions on the fringe — which most people don’t watch — aren’t talking about porn, they’re using porn to talk about other things.”
  • “Women don’t have to compete with porn actresses any more than men have to compete with John Wayne, George Clooney, or Shia LaBeouf.  Remember, men aren’t relating to the women in porn, they’re relating to the characters the actresses play.”
  • “To say that porn demeans women is to deny the reality of some women’s passion, lust, and desire.  It’s to say that women never enjoy what men enjoy.  It’s to say that women don’t enjoy playing games with their sexuality, including power games.  It’s to say that women shouldn’t be who they are or enjoy who they are, but that they can only enjoy ‘authentic’ sexuality within limited (and historically stereotypical) bounds. This is not feminism.”

> > > See also Jerry Barnett, Porn Panic!: Sex and Censorship in the UK (Zero Books, August 26, 2016)

Next, enter Larry Walters, the First Amendment lawyer.

See also Jacob Gersen & Jeannie Suk, The Sex Bureaucracy, California Law Review (2016):

Professor Jeannie Suk

Professor Jeannie Suk

“We are living in a new sex bureaucracy. Saliently decriminalized in the past decades, sex has at the same time become accountable to bureaucracy. In this Article, we focus on higher education to tell the story of the sex bureaucracy. The story is about the steady expansion of regulatory concepts of sex discrimination and sexual violence to the point that the regulated domain comes to encompass ordinary sex. The mark of bureaucracy is procedure and organizational form. Over time, federal prohibitions against sex discrimination and sexual violence have been interpreted to require educational institutions to adopt particular procedures to respond, prevent, research, survey, inform, investigate, adjudicate, and train. . . . An object of our critique is the bureaucratic tendency to merge sexual violence and sexual harassment with ordinary sex, and thus to trivialize a very serious problem. We worry that the sex bureaucracy is counterproductive to the goal of actually addressing the harms of rape, sexual assault, and sexual harassment.”

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→ See also David Post, A setback for First Amendment protection for anonymous speech, The Volokh Conspiracy, Oct. 31, 2016 (“the Illinois Supreme Court has upheld the provisions of the Illinois sex offender statute compelling disclosure of all “Internet identifiers” just a few weeks after the district court in Florida struck down, on First Amendment grounds, a virtually identical provision in the Florida statute.)

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