FIRE spreads: Group extends its reach beyond college campuses — FAN 343

Free speech has always needed defenders (simply consider Jacob Mchangama's "Free Speech: A History from Socrates to Social Media"). In the United States, groups were formed to protect the Madisonian principle when it came to unpopular speech. There was, for example, the Free Speech League, which was organized in 1902 with buy-in by the likes of  Edward Bliss Foote, Emma Goldman, Theodore Schroeder, and Ezra Heywood. Its goals were to protect "freedom of peaceable assembly, of discussion and of propaganda; an uncensored press, telegraph and telephone; an uninspected express; an inviolable mail." To that end, the League worked through the press, public speaking, and the courts, the idea being that "the education of brains and quickening of consciences are first in order of time and effect." One of the League's main targets was the Comstock Laws.

Then there was the National Civil Liberties Bureau, which was founded in 1917. Its main focus was its opposition to World War I, and specifically with the goal of assisting conscientious objectors. Roger Nash Baldwin served as director of the NCLB, which provided legal advice and representation for conscientious objectors and those prosecuted under the Espionage Act of 1917 and the Sedition Act of 1918.

Then came the American Civil Liberties Union, formed in 1920 "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." Central to that mission was protecting First Amendment rights. From its inception, the ACLU's central focus was on freedom of speech in general, and especially speech within the labor movement. In time, it took an active role in safeguarding speech rights in a variety of contexts ranging from public schools to political and civil rights protests. Despite its early affiliation with leftist labor radicals, the group nonetheless defended radical-right speech. In 1978, the ACLU took a controversial stand for free speech by defending a neo-Nazi group that wanted to march through the Chicago suburb of Skokie, where many Holocaust survivors lived. In more recent times, however, that uninhibited commitment to the free speech principle has been questioned time and again (see e.g. here and here).

Enter the Foundation for Individual Rights in Education (FIRE). The group was founded in 1999 and focused on protecting free speech rights on college campuses in the United States. It was co-founded by Alan Charles Kors and Harvey Silverglate, who were FIRE's co-directors until 2004. Greg Lukianoff was appointed president in 2006.

→ The group is now known as the Foundation for Individual Rights and Expression.

EXPANSION: FIRE's press release

Today, the Foundation for Individual Rights in Education becomes the Foundation for Individual Rights and Expression.

America’s leading defender of free speech, due process, and academic freedom in higher education is expanding its free speech mission beyond campus. The $75 million expansion initiative will focus on three main areas of programming: litigation, public education, and research.

“America needs a new nonpartisan defender of free speech that will advocate unapologetically for this fundamental human right in both the court of law and the court of public opinion,” said FIRE President & CEO Greg Lukianoff. “FIRE has a proven track record of defeating censorship on campus. We are excited to now bring that same tireless advocacy to fighting censorship off campus.”

→ Josh Gerstein, "Free-speech group will spend millions to promote First Amendment cases," Politico (June 6)

Comments on FIRE's new and expanded role

"In recent years, FIRE has done an excellent job protecting and promoting free speech on campus. But our nation’s understanding of the fundamental importance of free speech in a democracy is at risk these days, particularly as a result of social media and our political polarization. It is wonderful that FIRE is now reaching out beyond the academy in order to protect free speech more broadly and to educate our citizens about why this right is so fundamental - not only for them, but also for those who disagree with and challenge them."

— Geoffrey Stone

"Great news from FIRE; I’ve long admired their work on free speech at universities, and I’m very glad they’ll be branching out into protecting other speech as well."

— Eugene Volokh 

Related: Other free speech groups 

• American Association of University Professors
• American Booksellers Foundation for Free Expression
• American Library Association
• Comic Book Legal Defense Fund
• Electronic Frontier Foundation
• First Amendment Lawyers Association
• Free Expression Network
• Institute for Free Speech 
• Knight First Amendment Institute 
• Media Law Resource Center
• National Coalition Against Censorship
• PEN American Center
• Student Press Law Center

Note:  There are also a variety of free speech clinics associated with law schools.

Full disclosure: First Amendment News is funded by FIRE, though its editorial content is determined solely by its editor. — rklc

Ilya Shapiro resigns after 'prevailing'

“While we protect speech and expression, we work to promote civil and respectful discourse. In reviewing Mr. Shapiro’s conduct, the university followed the regular processes for members of the law center staff.”

— Meghan M. Dubyak (Georgetown spokesperson)

"Although I celebrated my 'technical victory' in the Wall Street Journal, further analysis shows that you’ve made it impossible for me to fulfill the duties of my appointed post. You cleared me on a jurisdictional technicality, but the IDEAA Report—and your own statements to the Law Center community—implicitly repealed Georgetown’s vaunted Speech and Expression Policy and set me up for discipline the next time I transgress progressive orthodoxy."

— Ilya Shapiro (resignation letter)

"Because free inquiry is so central to the academic mission, Georgetown has adopted a strong free speech policy asserting that 'it is not the proper role of a university to insulate individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive.' Punishing Shapiro for his tweets would have violated that policy. If scholars can be dismissed for expressing views that many find offensive, free inquiry will be captive to the sentiments of the majority. And while discrimination and harassment are not protected, the tweets expressing an opinion on the propriety of Biden’s pledge could not remotely qualify as either."

— David Cole (ACLU national legal director and Georgetown University Law Center professor)

"[F]or all the talk about Shapiro’s right to untrammeled speech, little was devoted to Black women’s right to the same. Shapiro’s tweet added to the stereotypes our Black female law students face daily. His characterization of Black women — and his presence — could easily have had a chilling effect on the speech of these students, who already have far too many complexities and challenges they must consider when they speak in law school. . . . Teaching Georgetown Law students is a privilege. And all students deserve to walk into our lectures, our conferences and our classrooms knowing that they will be respected as individuals — not judged by their race or gender. For all free speech is worth, this is the most basic and essential value of higher education that Georgetown should uphold."

— Alicia Plerhoples (Georgetown University Law Center professor)

"Under the reasoning of the Georgetown University Office of Institutional Diversity, Equity & Affirmative Action (IDEAA) report in the Ilya Shapiro matter, a wide range of public speech criticizing religions, political parties, veterans, etc. could be 'prohibit[ed] harassment' . . . (1) The 'harassment' policy does ban public expression by professors, (2) The policy bans expression of views in social media, op-eds, conferences, scholarship, and more. (3) The policy extends to any speech that expresses views that sufficiently offend 'reasonable' students 'in the impacted individual's position' based on their identity group membership. (4) The policy 'prohibit[s]' similar speech that relates not just to race or sex, but also to 'age . . . disability, family responsibilities, gender identity and expression, genetic information, marital status, national origin and accent, personal appearance, political affiliation, pregnancy . . . religion . . . sexual orientation, source of income, veteran's status or other factors prohibited by federal and/or District of Columbia law.' and (5) this can of course cover a wide range of expression about [a range of] topics."

— Eugene Volokh (UCLA Law School)

• Ilya Shapiro, "My Cancel-Culture Nightmare Is Over," The Wall Street Journal (June 2)
• David Cole, "Georgetown Law did the right thing on Ilya Shapiro," The Washington Post (June 4)
• Ilya Shapiro Resignation Letter to Georgetown University Law Center, June 6, 2022
• Ilya Shapiro, "Why I Quit Georgetown," The Wall Street Journal (June 6)
• Anemona Hartocollis, "A Conservative Quits Georgetown’s Law School Amid Free Speech Fight," The New York Times (June 6)
• Jonathan Chait, "Georgetown Abandons Its Free-Speech Policy Over Ilya Shapiro: Dumb tweets for me, but not for thee," New York Magazine (June 6)
• Editorial, "The Georgetown Law School Purge," The Wall Street Journal (June 6)
• David Berstein, "Ilya Shapiro Reinstated at Georgetown Law, then Resigns," The Volokh Conspiracy (June 6)
• Eugene Volokh, "What are Georgetown Professors Forbidden to Say?," The Volokh Conspiracy (June 7)

Johnny Depp's defamation case and the ACLU 

• Jon Allsop, "The Depp-Heard trial and the many factors that shape free speech," Columbia Journalism Review (June 6)

LAST WEEK, a seven-member jury in Virginia found that the actor Amber Heard defamed Johnny Depp, her ex-husband, in a 2018 opinion piece — initially drafted by the American Civil Liberties Union and published in the Washington Post — in which she didn’t name Depp but did refer to herself as a "public figure representing domestic abuse."

• Jacob Shamsian & Ashley Collman, "Amber Heard was found liable for defaming Johnny Depp in a Washington Post op-ed. She didn't write it — the ACLU did," Insider (June 1)
• Lara Bazelon, "The ACLU Has Lost Its Way," The Atlantic (May 10)

[T]he ACLU named [Amber Heard] an “ambassador on women’s rights with a focus on gender-based violence.” The ACLU had also spearheaded the effort to place the op-ed, and served as Heard’s ghostwriter. When Heard failed to pay up, Dougherty said, the ACLU collected $100,000 from Depp himself, and another $500,000 from a fund connected to Elon Musk, whom Heard dated after the divorce. (The ACLU denies that it would ever request or solicit donations in exchange for ambassadorships or op-eds.)

• Bill Chappell, "The ACLU says Amber Heard has paid less than half of her $3.5 million donation pledge," NPR (April 29)

Related

• Dan Novack, "The First Amendment is Stronger Than Johnny Depp," The Atlantic (June 2)
•  Simran Agarwal, "'Exorbitant and unreasonable': Johnny Depp REFUSES to pay $86K to ACLU over Amber Heard subpoenas," Meaww (June 6)
• Ken Paulson, "The irony of Johnny Depp and Amber Heard suing to restore their reputations," The Free Speech Center (June 2)

Speaking of the ACLU & the First Amendment: Glasser, Kaminer, & Cole mix it up

• Eugene Volokh, "The ACLU Never Stopped Defending Free Speech," The Volokh Conspiracy (June 2) (Ira Glasser and Wendy Kaminer respond, and David Cole replies — excerpts below)

Glasser says he stands by the concerns that he had expressed before, for instance when he was interviewed by Bill Maher. The new Case Selection Guidelines (which he urges people to read), he argues, are a retreat from ACLU's traditional viewpoint-neutral approach to protecting speakers.

Kaminer: "[T]o evaluate ACLU's record on speech over the past couple of decades (and the retreat from fundamental principles dates back decades), you need to know about the cases they didn't take and the controversies they avoided . . . Many (though not all) of ACLU's sins are sins of omission—which, of course, are much harder to discern."

Cole: "Glasser identifies no case we have avoided. The only case Kaminer can cite is one in which we actually filed an amicus brief supporting the First Amendment, but apparently not as early as she would have liked.  Kaminer also makes a general reference to "cancel culture," which we have, like her, criticized (see, e.g., my criticism of the call by Georgetown Law students to fire Ilya Shapiro, or my defense of Ron Sullivan when Harvard took away his deanship for his defense of Harvey Weinstein).  For people who have been making this charge for so many years, you'd think they'd be able to point to some evidence. But they can't, and they have nothing to say about the undeniable fact that we have regularly and consistently defended those with whom we disagree."

Related

• Joe Lancaster, "ACLU Would Like You To Ignore Partisan Activism, Mission Drift," Reason (June 1)

In Virginia: Lawmakers go after Barnes & Noble for 'obscenity'

• Hannah Natanson, "Va. Republicans seek to limit sale of 2 books in Barnes & Noble for ‘obscenity’," The Washington Post (May 20)

Two Virginia Republicans have asked a court for restraining orders that would prevent private bookseller Barnes & Noble from selling two books to minors, marking an escalation in the conservative campaign to limit students’ access to literature.

The two books are “Gender Queer” by Maia Kobabe, a memoir about identifying as genderqueer or nonbinary, and “A Court of Mist and Fury,” a fantasy novel by Sarah J. Maas. The two Republicans, Del. Timothy Anderson of Virginia Beach and Tommy Altman, a congressional candidate, requested the orders from Virginia Beach Circuit Court on Wednesday as part of their larger, ongoing lawsuit targeting the books.

The requested restraining orders would also prohibit distribution of the two books by Virginia Beach City Public Schools. The board of that school system voted this week to remove all copies of “Gender Queer” from its libraries over its sexual content.

First Amendment Salons expands its advisory board

The First Amendment Salons has added the following persons to its advisory board:

• Jane Bambauer, University of Arizona Law School
• Lucy Dalglish, Philip Merrill College of Journalism
• Jameel Jaffer, Knight First Amendment Institute
• Jane Kirtley, University of Minnesota Law School
• Kyu Ho Youm, School of Journalism and Communication, University of Oregon

Adam Tragone: IFS’s newest attorney

The Institute for Free Speech has just announced that Adam Tragone will be joining its ranks:

The Institute for Free Speech is glad to announce the addition of attorney Adam Tragone to our legal team. Tragone brings extensive trial and appellate court experience to IFS and will help us continue expanding our legal work to defend First Amendment rights.

In recent years, we’ve stepped up our efforts to defend political speech rights in the courts by taking on more cases affecting a wider range of First Amendment issues. Skilled litigators like Adam are essential to growing our ability to tackle the many challenges facing free speech today. We are pleased to welcome him to our team,” said Institute for Free Speech President David Keating.

Hailed as a Super Lawyers Rising Star since 2021, Tragone was previously an associate at Strassburger McKenna Gutnick & Gefsky in Pittsburgh, Pennsylvania. He has defended journalists and media outlets in a range of First Amendment matters, including access and privilege issues, defamation and privacy, and Freedom of Information Act (FOIA) requests. Adam graduated from Duquesne University School of Law, where he was the executive editor of the Duquesne Law Review and received the Louis L. Manderino Honor Society for Distinguished Achievement in Moot Court and the McGinley Fellowship for Public Service.

Prior to law school, he served as the managing editor of Human Events, one of the nation’s oldest weekly publications.

“My experience in journalism taught me the importance of First Amendment rights to a free society. I am excited and honored to be joining one the nation’s preeminent organizations fighting for free speech today,” said Tragone."

More in the news

• "'Viewpoint discrimination' case may head to U.S. Supreme Court," Associated Press (June 7)
• Eugene Volokh, "The Possibility of Prosecuting Federal Court Leakers—Update & Rejoinder," The Volokh Conspiracy (June 7) (comments by former prosecutors Markus Funk and Andrew S. Boutros, and Judge Virginia Kendall)
• Eugene Volokh, "New Haven's Removal of Columbus Statue from Public Park Isn't a First Amendment Violation," The Volokh Conspiracy (June 6)
• Richard Rampell, "First DeSantis censors school books, now he demands new lesson plan," Yahoo News (June 4)
• Eugene Volokh, "6 Months in Jail for Speaking to Newspaper About Your Court Case," The Volokh Conspiracy (June 3)
• David Hudson, Jr., "Richmond Transit ban on political bus ads violates First Amendment, 4th Circuit rules," The Free Speech Center (June 1)
• David Hudson, Jr., "Student’s racial slur has no First Amendment protection, federal judge rules," The Free Speech Center (May 31)

2021-2022 SCOTUS term: Free expression & related cases

Cases decided

• Federal Election Commission v. Ted Cruz for Senate (First Amendment claim affirmed)
• Shurtleff v. Boston (First Amendment claim affirmed)
• Houston Community College System v. Wilson (First Amendment claim denied)
• City of Austin, Texas v. Reagan National Advertising of Texas Inc. (First Amendment claim denied)

Review granted

• City of Austin, Texas v. Reagan National Advertising of Texas Inc.
• Federal Election Commission v. Ted Cruz for Senate
• Shurtleff v. Boston
• Kennedy v. Bremerton School District
• 303 Creative LLC v. Elenis

Pending petitions

• Swanson v. Griffin
• Romeril v. Securities and Exchange Commission (Distributed for conference of June 16, 2022)
• Marshall v. Supreme Court of the State of New Mexico
• Smith v. United States
• American Society of Journalists v. Bonta

First Amendment related petitions

• Outdoor One Communications LLC v. Charter Township of Canton, Michigan
• Egbert v. Boule (rejecting Bivens cause of action for First Amendment retaliation claim)

Petition withdrawn 

• Arlene’s Flowers Inc. v. Washington (petition for rehearing)

Applications for stay orders

• Netchoice v. Paxton (application denied)

Review denied

• Edgar et al. v. Haines
• Lundergan v. United States
• Clear Channel Outdoor, LLC v. Raymond
• City of Cincinnati v. Lamar Advantage Co.
• Kelly v. Animal Legal Defense Fund
• Green v. Pierce County
• Burns v. Town of Palm Beach
• Gilbert v. United States
• Roberson v. United States
• Woods v. Alaska State Employee Association
• Lamoureux v. Montana
• Asociación de Periodistas de Puerto Rico v. Commonwealth of Puerto Rico
• John K. MacIver Institute for Public Policy, Inc., et al. v. Evers
• Project Veritas Action Fund v. Rollins
• Troesch v. Chicago Teachers Union, et al.
• Dignity Health v. Minton
• Pace v. Baker-White
• Tah v. Global Witness Publishing, Inc.
• American Civil Liberties Union v. U.S.
• Frasier v. Evans (First Amendment and qualified immunity)
• Louisiana v. Hill
• Baisley v. International Association of Machinists and Aerospace Worker
• Crowe v. Oregon State Bar
• Boardman v. Inslee
• Pasadena Republican Club v. Western Justice Center, et al.

Last FAN

• FAN 342.1: "Ilya Shapiro reinstated — Nadine Strossen’s letter to Georgetown Law Dean William Treanor"

Last scheduled FAN

• FAN 342: "David Cole: ‘I drafted our case selection guidelines precisely to reaffirm [the ACLU’s] commitment to free speech, not to abandon it'”