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FAN 194.3 (First Amendment News) Abrams Responds to Seidman’s “Can Free Speech Be Progressive?”

Professor Seidman offers too many assertions that only those who already share his views could possibly accept. . . .

He dismisses recent First Amendment victories in the Supreme Court as a ‘radical right turn in free speech law’ as if they had been written by Steven Miller from his White House desk rather than by not-so-radical jurists such as John Roberts or Anthony Kennedy.  Floyd Abrams 

Floyd Abrams

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

Additional posts will appear tomorrow and then into next week:

Friday, June 22:                         John Schnapper-Casteras
Monday, June 25:                      Jane Bambauer
Tuesday, June 26:                     Ronald R.K. Collins
Wednesday, June 27:               Richard Delgado
Thursday, June 28:                   Mike Seidman:  Rejoinder
Friday, June 29 onward:        Reader responses
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Incorporation and the Excessive Fines Clause

On Monday the Supreme Court granted certiorari in Timbs v. Indiana, which raises the question of whether the Excessive Fines Clause of the Eighth Amendment applies to the States. Consistent with my research on John Bingham, who advocated the total incorporation of the first eight amendments, I believe that the Court should hold that this provision of the Eighth Amendment, like the Cruel and Unusual Punishments Clause of the same amendment, applies to the States through the Fourteenth Amendment. How that incorporation would affect civil forfeiture, which is another question raised in the case, is something I’ve not thought about enough to express an opinion.

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FAN 194.2 (First Amendment News) First Amendment Watch & FAN co-host online roundtable on Seidman essay — “Can Free Speech Be Progressive?”

Free speech cannot be progressive. At least it can’t be progressive if we are talking about free speech in the American context, with all the historical, sociological, and philosophical baggage that comes with the modern, American free speech right. — Louis Michael Seidman

Professor Louis Michael Seidman

Over at First Amendment Watch (FAW) Professor Stephen Solomon has posted the introduction to an online roundtable discussion of Professor Louis Michael Seidman’s essay “Can Free Speech Be Progressive?,” which will be published in a forthcoming issue of Columbia Law Review.  

FAW is partnering with First Amendment News to host and publicize the online rountable.  Professor Solomon has written an introduction to the discussion along with a summary of the Seidman essay (there is also a link to the full essay). Future online exchanges are being considered —  suggested topics are invited (send to: rklc@uw.edu).

Below is a list of the commentators whose replies will appear on the FAW website starting tomorrow:

Thursday, June 21:                   Floyd Abrams
Friday, June 22:                         John Schnapper-Casteras
Monday, June 25:                      Jane Bambauer
Tuesday, June 26:                     Ronald R.K. Collins
Wednesday, June 27:               Richard Delgado
Thursday, June 28:                   Mike Seidman:  Rejoinder
Friday, June 29 onward:        Reader responses

 

Note — reader responses are invited and will be considered for posting. E-mail submissions to fawroundtable@gmail.com. The comments selected will be posted on Friday, June 29 and thereafter.

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FAN 194.1 (First Amendment News) Today — Washington Post Live hosts “Free to State: The Future of the First Amendment.

The Washington Post brings together journalists, scholars, business leaders and advocates to explore how the interpretation of our First Amendment rights have evolved in principle and practice, and what it means for a modern democracy.

Event Details

  • Tuesday, June 19, 2018
  • 3:00 PM – 5:00 PM (Doors open at 2:30)
  • The Washington Post Live Center, 1301 K Street NW, Washington, DC 20071

AGENDA

3:00 p.m.        Opening Remarks

  • Martin Baron, Executive Editor, The Washington Post @PostBaron

3:05 p.m.        The First Amendment and the Law

From courts to football fields to college campuses, a look at how key players in the free speech debate are shaping First Amendment law across the country.

  • Susan N. Herman, President, American Civil Liberties Union @SusanHermanACLU
  • Suzanne Nossel, Chief Executive Officer, PEN America @SuzanneNossel
  • Jesse Panuccio, Acting Associate Attorney General, U.S. Department of Justice @JessePanuccioFL

Moderated by Ruth Marcus, Deputy Editorial Page Editor, The Washington Post @RuthMarcus

3:35 p.m.        One-on-One with the Cambridge Analytica Whistleblower

Chris Wylie, the former Cambridge Analytica research director turned whistleblower, discusses the potential uses of big data to influence behavior and assesses how online communities are facilitating free expression and thought in the digital age.

  • Chris Wylie, Whistleblower; Former Director of Research, Cambridge Analytica @

Interviewed by Craig Timberg, National Technology Reporter, The Washington Post @craigtimberg

3:55 p.m.        Let’s Talk About ‘Political Correctness’

Promoting equality and inclusion is often at loggerheads with free speech. Speakers will discuss evolving norms of expression and representation in the areas of advocacy, popular culture and digital media.

  • Patrisse Khan-Cullors, Co-Founder, Black Lives Matter @OsopePatrisse
  • Hari Kondabolu, Comedian and Documentarian, “The Problem with Apu” @harikondabolu
  • Dylan Marron, Host, “Conversations With People Who Hate Me” @dylanmarron

Moderated by Sarah Ellison, Media Reporter, The Washington Post @Sarahlellison

4:25 p.m.        What The End of Net Neutrality Means for Online Speech

Experts debate what effect the repeal of net neutrality rules will have on access to and freedom of expression on the Internet.

  • Robert Atkinson, President, Information Technology and Innovation Foundation @RobAtkinsonITIF
  • Sen. Edward J. Markey (D-Mass.), Member, U.S. Senate Committee on Commerce, Science and Transportation @SenMarkey
  • Michael O’Rielly, Commissioner, Federal Communications Commission @mikeofcc
  • Jonathan Spalter, President and CEO, USTelecom @Jspalter

Moderated by Brian Fung, Telecommunications and Media Reporter, The Washington Post @b_fung ‏

4:55 p.m.       It’s No Joke: Comedy and Free Speech

Comedy can be used to explore uncomfortable subjects, provoke outrage, reveal truths and hold leaders accountable. Emmy and Grammy Award-winning comedian Patton Oswalt discusses the evolution of comedy as a form of free speech.

  • Patton Oswalt, Comedian and Actor @pattonoswalt

Moderated by Elahe Izadi, Pop Culture Writer, The Washington Post @ElaheIzadi

This is the second annual “Free to State” program, part of a series of events The Post is producing in partnership with the John S. and James L. Knight Foundation with support from The Freedom Forum Institute and The University of Virginia.

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John Bingham and the American Ideal of Immigration

My favorite Bingham quote comes from a speech he gave at his alma mater, Franklin College, in 1851. True then, true now.

When the vital principle of our government, the equality of the human race, shall be fully realized, when every fetter within our borders shall be broken, where the holy Temple of Freedom, the foundations of which our fathers laid amidst prayers, and sacrifices, and battles and tears, shall be complete, lifting its head-stone of beauty above the towers of watch and war, then conscious of duty performed, and a noble mission fulfilled, we may call to the down-trodden and oppressed of all lands–come.

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No Standing in the Partisan Gerrymandering Cases

The Supreme Court today decided the partisan gerrymandering cases without reaching the merits. As I often tell my students, lower federal courts have to take standing doctrine seriously. The Court, by contrast, just uses standing as a tool to manage its docket or duck hard decisions when necessary.

Now we can focus on the real issue for the House of Representatives–our unconstitutional reapportionment process (coming out next month, I’m told).

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Tribute: “Reinhardt and I” by Alex Kozinski

He left a hole in my life, and that of many others, and he left a large hole in our legal system which, with his passing, has become colder, less caring, less passionate, less human. — Alex Kozinski 

Below is a tribute to the memory of Judge Stephen Reinhardt who died on March 29th.  The tribute, “Reinhardt and I,” is by Alex Kozinski, who was Reinhardt’s colleague and longtime friend. Several links have been added (some by me, others by A.K.) along with subheadings. Photos were provided by Alex Kozinski. — RKLC

* * * * 

He stood behind his desk and looked at me the way a bird might eye a worm it’s about to gobble up.  “Nice to meet you,” he said, stretching out a hand for a reticent hand-shake.  But his manner completed the thought:  “And I hope never to see you again.”

An inauspicious beginning 

In September 1985, when I was Chief Judge of the Court of Federal Claims, I came to Los Angeles from Washington, D.C. to preside over a trial.

The previous month I was nominated to the Ninth Circuit. Even before I was confirmed, Bill Norris, who just a few years earlier recruited me to join his law firm as an associate and was now a Ninth Circuit judge, offered to introduce me to my future colleagues.

Arthur Alarcon welcomed me with open arms. Dorothy Nelson was her bubbly self. Harry Pregerson asked:  “Whom do you favor in immigration cases?” Somewhat puzzled, I said “Depends on the case–I’d have to read the briefs.” “Nah,” Pregerson said. “I always rule for the immigrant if I can get someone to go along with me.”  Betty Fletcher, who was in town for a sitting, was cordial but muted.

Reinhardt alone was overtly grumpy. We swapped glares for a few minutes while Norris waxed eloquent about what excellent colleagues we’d be.  As I turned to leave, Reinhardt muttered “good luck” and managed to make it sound like it was something I’d need very badly if he had anything to say about it.  I suspect that as soon as we left he picked up the phone and tried to gin up opposition to my confirmation. He almost succeeded.

Stephen Reinhardt & Alex Kozinski (circa 2003)

From that inauspicious beginning grew a friendship that lasted and intensified over the course of three decades to the point where we became as close as any two judges in the history of the federal judiciary.  How this came about is a tale worth telling.

The odd couple 

We managed to ignore each other for the first few months after I was confirmed, but relations started to thaw in response to a First Amendment case, International Olympic Committee v. San Francisco Arts and Athletics, more commonly known as the Gay Olympics case.  A panel of our court held that Congress had given the word “Olympic” to the United States Olympic Committee, which was entitled to enjoin its use without showing likelihood of confusion or overcoming any trademark defenses.  The defendant organization wanted to run a competition for gay athletes to promote the notion that being gay is consistent with the wholesome values associated with the Olympics.  The district court had enjoined use of the word “Olympic” and a panel of our court affirmed.  This struck me as inconsistent with the Supreme Court’s ruling in Cohen v. California that “words are often chosen as much for their emotive as their cognitive force” and one cannot, therefore, “forbid particular words without also running a substantial risk of suppressing ideas in the process.”

So I called the case en banc — the first of dozens of such calls I would make over the succeeding three decades.  The call eventually failed and I wrote a dissent from the denial of rehearing en banc — or “dissental” (a term I coined that Reinhardt loathed with a passion, but then again, he did everything with passion).  The Supreme Court took the case and affirmed. Justice Brennan dissented, quoting my dissental.  Eventually, there was a film about the case, in which I made a brief appearance.  Justice Scalia later told me with some glee that there really wasn’t much to the case and they had only granted cert because of my dissental. Far from discouraging me, Scalia’s comment confirmed that dissentals could be powerful tools — a lesson Reinhardt and I, as well as other Ninth Circuit colleagues, put to good use over the years.

Stephen Reinhardt & Alex Kozinski (circa 2003)

But the real significance of the Gay Olympics case was the thawing of relations with Reinhardt. He was recused in the case because he had been Secretary of the 1984 Los Angeles Olympic Organizing Committee, so he expressed no view and cast no vote while the case was pending before us. Soon after the case left our court, however, he told me in that he had found my call memos thought-provoking (or some such neutral phrase). But I could tell he was impressed, maybe not so much with the cogency of the arguments as with the fact that a guy appointed by Ronald Reagan would stick up publicly for the right of gays to express pride in their sexuality — a notion still outré at the time.

For a long time, he thought I was gay, to which he would allude on occasion. I demurred, but not too vigorously. If believing I’m gay gained his trust, that was fine with me. Eventually, he figured out I’m a libertarian — a liberal at home and a conservative at work, as the saying goes — and this led us to become bitter opponents in some cases and close allies and co-conspirators in others.

No punches pulled

When it came to questions of privacy and constitutional protections for criminal defendants, we were almost always on the same side, and we were usually on the same side when it came to the First Amendment.

But not always.  One case as to which we disagreed was Harper v. Poway Unified School District, which challenged the validity of a High School hate speech code under Tinker v. Des Moines School District, where public school students wore black arm bands to protest the Vietnam War.  Harper wore a T-shirt with messages (front and back) disparaging homosexuality, which school authorities ordered him to cover up and not wear to school again.  The school justified its action under its hate speech policy, which prohibited acts “motivated all or in part by hostility to the victim’s real or perceived gender, race, ethnicity, religion, sexual orientation, or mental or physical challenges.”

Harper challenged the policy relying on Tinker, and the dispute turned on whether application of the hate speech policy to ban Harper’s shirt was justified under Tinker‘s exception for speech that “involves substantial disorder or invasion of the rights of others.” There was no evidence that the T-shirt had caused disruption, but Reinhardt, writing the majority, held that the school could ban it because it “was injurious to gay and lesbian students and interfered with their right to learn.”

In dissent, I questioned whether this rationale was encompassed by Tinker‘s limited exception for speech that violates the rights of others.  After all, the black arm-bands in Tinker could easily have angered and distressed students whose friends or relatives had been killed or wounded in Nam.  And bringing the protest into the school did distract from classroom activities, as Justice Black pointed out in dissent.

We’ll never know who was right in Harper because the Supreme Court vacated our opinion as moot when Harper graduated. The question continues to be an open one and will have to be resolved by the Ninth Circuit and, eventually, the Supreme Court.  See, e.g.  G.M.  v. Washoe County School District.  (I am concerned about the long-term viability of Tinker and other strong First Amendment cases, given the precipitous erosion of respect for freedom of speech in our time.)

Another free speech case where Reinhardt and I disagreed sharply involved an English-only amendment to the Arizona constitution. Yniguz v.  Arizonans for Official English.  The law provided that all state and local government business must be conducted in English and, to that end, state and local employees could speak only English when dealing with the public.  Maria-Kelley Yniguez, who dealt with the public on behalf of the state, claimed a First Amendment right to do so in Spanish.

Stephen Reinhardt & Alex Kozinski (circa 2003)

The case found its way to an 11-judge en banc court, where Yniguez prevailed in an opinion written by Reinhardt. The opinion relies in part on the speech rights of government employees in such cases as Rankin v. McPherson and Pickering v. Board of Education, and in part on the right of the public to receive information as announced in Virginia State Bd.  of Pharmacy v. Virginia Citizens Consumer Council.  According to Reinhardt, the Arizona law restricted both the employees’ right to speak and the right of members of the public not proficient in English to receive information.

In dissent I noted that the cases cited by the majority were beside the point because they dealt with private speech whereas this case involved communications between the state and its citizens.  Even if using English was less efficient, the state had a legitimate interest in forestalling the social Balkanization that comes from having different segments of the population using different languages.

Reinhardt was so outraged by my dissent that he wrote a concurrence to his own opinion for the sole purpose of putting me in my place.  According to Reinhardt, I was espousing “an Orwellian world in which Big Brother could compel its minions to say War is Peace and Peace is War, and public employees would be helpless to object.  It would not matter whether government had a legitimate purpose or even whether it had a purpose at all.”  I didn’t think I was saying that, but there was no arguing with Reinhardt when he got his dander up –which happened fairly often.

The fact is, neither Reinhardt nor I pulled punches. He always disdained judges who sugar-coated their opinions in order to spare the feelings of other judges. Whether another judge might be disconcerted by an opinion, he thought, was irrelevant.  What mattered was getting the right result and, where appropriate, using the opinion to teach about justice. On that point we agreed, though we sometimes disagreed as to what that lesson should be.

As in Harper, we never did find out who was right in Yniguez. Maria-Kelley had resigned from her government post, so (you guessed it) the Supreme Court vacated our opinion as moot. If the issue comes before the Supreme Court again, I’m reasonably confident the Court will side with me rather than Reinhardt, but who knows? The important thing is that we gave the question serious, vigorous, passionate consideration — pulling no punches, sparing no feelings — and then went to the theater and dinner together.

Passion for the unfortunate 

Why our relationship thrived, despite frequent and vigorous disagreements, is hard to pin down. In part it was that we also often agreed, and when we did we encouraged and supported each other.  What Reinhardt brought to the table was a passion for the law and, more particularly, for those unfortunates whom the law treated badly.  He would use his considerable talents to find a principled way around adverse precedents and pull out a victory.  And when the law was insufficient, Reinhardt would try to find lawful extra-judicial means of achieving a just result.

He did this, for example, in the case of Shirley Ree Smith, the grandmother unjustly convicted of killing her grandchild by “shaken baby” syndrome, despite compelling evidence that the conviction was based on flawed forensic evidence.  After the Supreme Court summarily vacated the Ninth Circuit’s decision setting aside her conviction (over a vigorous dissent by Justice Ginsburg), Reinhardt called his long-time friend and political ally, Governor Jerry Brown, and urged him to grant Smith clemency, which the governor eventually did.  Most judges believe that their job is done once the case is over; Reinhardt believed his job wasn’t done until justice prevailed. It’s hard not to admire such ardent zeal.

Stephen Reinhardt & Alex Kozinski (circa 2003)

What caused our relationship to transform from one of professional respect into a true friendship was more personal in nature. Steven was a fun guy, once you got to know him, and it turned out we had a lot in common. He loved going to the movies and the theater, he appreciated a good joke, a fine meal (albeit sans anything green), and he had a soft spot for cats. He loved songs of all kinds, especially show-tunes, and would sometimes break into song, not caring whether he got the words or melody exactly right. And Steven was a steadfast friend. The affection, patience and devotion he showed his wife, Ramona Ripston, particularly in the final years of their life together, reflected the depth of his commitment to those about whom he cared.

Farewell

I still find it hard to believe he’s gone.  I miss our frequent phone calls and visits.  Two nights before he died he called me on his way home from work. I think he was trying to apologize for having been grumpy with me the previous Sunday when I had dropped by his home to fix his TV. He didn’t like the Roku I had brought because it required him to use new technology — something he was very bad at. He was calling to tell me he appreciated my effort and would give the Roku a try. Alas, he never got the chance.

Sometimes I still reach for the phone to punch up one of the various numbers I have for him, only to realize that he won’t be picking up.  He left a hole in my life, and that of many others, and he left a large hole in our legal system which, with his passing, has become colder, less caring, less passionate, less human.  The loss is likely to be permanent because, even if there were another Reinhardt out there willing to serve as a federal judge, no president would nominate him and the Senate would certainly never confirm him. We are all the worse for it.

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FAN 194 (First Amendment News) “Cato Unbound” & Knight Institute’s “Emerging Threats” host separate online exchanges on Free Speech abroad & on the Internet

Over at Cato Unbound they have just posted an online exchange entitled “Free Speech in International Perspective.”

The lead essay is by Jacob Mchangama and is titled “How Censorship Crosses Borders.”

Jacob Mchangama describes what he terms a “cross-fertilization of censorship,” in which regimes both free and unfree are in the process of copying one another’s restrictions on expressive freedoms. More liberal countries still frequently restrict hate speech, while less liberal ones use those restrictions to justify still more restrictive acts. The world’s centuries-long march toward freedom of expression seems to have halted. Can it be restarted?

Mchangama’s essay drew a reply from Anthony Leaker and is titled Against “Free Speech”

Anthony Leaker characterizes the recent free speech “crisis” as mythical. It is the product of far-right and indeed fascist propaganda, and we can know that this is so by observing the purported victims in the “crisis:” They are right-wing, successful, and absolutely not being persecuted. Indeed, they dictate the terms of present-day debate, exactly as people like them have always done. In this way, Leaker denies that the United States has been, or is, a force for liberty at all. Political speech does well when it liberates the oppressed, but the type of speech under discussion here is nothing of the kind.

RelatedFAN 192 — The Trend Continues: Forthcoming Book — Anthony Leaker, “Against Free Speech” (May 29, 2018)

Forthcoming

Two more essays are slated to follow:

Knight Institute’s “Emerging Threats” online symposium

Excerpt: “The United States’ internet freedom project is not just failing abroad. It is also failing at home. [T]he United States is increasingly engaged in forms of digital protectionism that it once decried. But both the commercial non-regulation principle and the anti-censorship principle are allowing real harms within the country’s borders as well. ‘[M]odern information networks and the technologies they support can be harnessed for good or for ill,’ Clinton acknowledged in her 2010 speech. The premise of the U.S. internet freedom agenda is that an open, unregulated internet is great at home on balance and thus should be exported abroad. This premise — built on an optimism about the impact of digital technologies on American public life — is now being called into question.”

“The fact that the U.S. internet freedom agenda is failing, however, does not necessarily mean that the larger project of internet freedom is failing. On the contrary, the growing detachment of this project from American commercial and ideological interests may suggest a new path forward. This is the glass-half-full perspective offered [in responses] by Nani Jansen Reventlow and Jonathan McCully, and David Kaye. While endorsing Goldsmith’s basic critique of U.S. policy, these leading international lawyers push back against the parochialism inherent in evaluating internet freedom in U.S.-centric terms.”

2017-2018 Term: First Amendment Free Expression Cases

Cert. Granted & Cases Argued 

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

Pending: Cert. Petitions 

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

Review Denied

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

Free-Speech Related Cases: Cert. Granted

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

Free-Speech Related Cases: Cert. Pending

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

Free-Speech Related Cases: Cert. Denied

Last Scheduled FAN # 193: Eight Free Expression Take Away Points from Masterpiece Cakeshop Case (# 8: Seven Justices Discuss Free Expression Claim)

Next Scheduled FAN # 195: Wednesday, June 20, 2018

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FAN 193.1 (First Amendment News) First Amendment Watch to host online roundtable on Seidman’s “Can Free Speech Be Progressive?” essay

The notion that our free speech tradition might be weaponized to advance progressive ends is fanciful.

Groups like the American Civil Liberties Union [once] managed to translate [the] right of agitation into the language of law, but the radicalism of free speech [has since been] lost in the translation.

Louis Michael Seidman

Professor Michael Seidman (credit: Book TV)

Over at First Amendment Watch Stephen Solomon and Tatiana Serafin are preparing to launch an online roundtable discussion of Professor Louis Michael Seidman’s forthcoming Columbia Law Review essay titled “Can Free Speech Be Progressive?

Below are the lineup and dates of postings:

  1. Wednesday, June 20:        Introduction & Seidman excerpt with link to his essay
  2. Thursday, June 21:            Floyd Abrams
  3. Friday, June 22:                 John Schnapper-Casteras
  4. Monday, June 25:             Jane Bambauer
  5. Tuesday, June 26:              Ronald K.L. Collins
  6. Wednesday, June 27:       Richard Delgado
  7. Thursday, June 28:           Louis Michael Seidman:  Rejoinder
  8. Friday, June 29                  Onward — Reader Responses