Professor Eugene Volokh
Credit: Jacob Fabricius/Zocalo Public Square
Editor's Note:
If you've missed previous issues of FAN or wish to review some of the various essays we've posted, or if you want to bookmark us, just go here and browse our archives. Or if you want to alert us to a new case, brief, article, or book related to free speech, you can e-mail me at rklc@thefire.org.
UCLA Law School recently announced that Professor Eugene Volokh has launched a series of short, animated videos explaining modern constitutional law issues in clear, concise and often humorous terms.
→ The videos are designed to be understandable and enjoyable for K-12 students, while informative for people of all ages.
→ The video is part of what is slated to be a 10-part series of witty and informative videos that build on Volokh’s expertise. The video series is funded in part by the Stanton Foundation and produced by ReasonTV, the digital content producer associated with Reason Magazine.
“These videos distill the lessons I teach the students in my classes and First Amendment Clinic at UCLA Law, and apply to situations that we see in headlines every day,” said Volokh. “Our goal is to make it fun and easy for the public, including children taking their first classes in civics and history, to understand this extremely important area of law.”
Related: FAW's Free Speech Teaching Guides Available Online (For Free)
Mary Ellen Egan (FAW's Managing Editor)
First Amendment Watch (FAW), a publication of NYU's Arthur L. Carter Journalism Institute, offers free, online teaching guides and site material to assist educators in teaching the conflicts over freedom of speech and press that are dominating the news every day.
They offer two approaches to help you teach students about critical issues:
First, they apply the law to contemporary conflicts: Bringing old cases alive by applying the law to contemporary conflicts. For example, if someone is teaching an important case from the past such as New York Times v. Sullivan, they can direct students to FAW’s post on the libel action by Sandy Hook parents against Infowars’ Alex Jones or the suit by Judge Roy Moore against Sacha Baron Cohen.
Second, educators can use FAW’s complete teaching guides: The site offer lesson plans with learning objectives, discussion questions, and links to primary sources that can be integrated into a journalism or media law curriculum, for example. Educators don’t have to be an expert on such topics as newsgathering, libel, social media and free speech—FAW does the work for them. Just three examples:
Newsgathering: How does the First Amendment protect people who record police officers performing their duties in public, and how do time, place, and manner restrictions affect journalists and bystanders who record in public?
Privacy rights: The lawsuit brought by Hulk Hogan against Gawker for invasion of privacy explores the issues of privacy and free speech in a digital world.
Social media: The lawsuit filed against Trump for blocking critics on Twitter brings up issues involving government discrimination against unpopular viewpoints and the public forum doctrine.
First Things First: A Modern Coursebook on Free Speech Fundamentals by Ronald Collins, Will Creeley, David L. Hudson, Jr. with Jackie Farmer (FIRE e-book, 2019) (replete with hundreds of links and at an exceptionally affordable price). Stay tuned!
Public Citizen Sues Betsy DeVos for Censoring Its Website
Public Citizen sued Education Secretary Betsy DeVos on Tuesday for allegedly blocking access to the consumer group's website on her department's guest Wi-Fi and internal networks.
"No way are we going to let them get away with suppressing our views." — Robert Weissman, Public Citizen
"This is a blatant violation of the First Amendment," Public Citizen president Robert Weissman wrote in an email to supporters. "Users attempting to access Public Citizen's website though the department's guest wireless networks receive a message that access is 'in violation of your internet usage policy.' We requested the department's policy for blocking access to internet sites, but it hasn't responded to our request."
"What we do know," Weissman continued, "is that our website contains lots of information critical of DeVos and the department."
Proposed GA Law to Promote “Canons of Ethics for Journalism” Dies
A group of six Georgia Republican lawmakers introduced an "Ethics in Journalism Act," a measure that would authorize a "Journalism Ethics Board" to create and implement ethical standards to oversee journalists’ work and penalize journalists that do not comply.
If approved, the board could also issue advisory opinions about journalistic ethics, develop a voluntary accreditation, and field complaints and conduct investigations into perceived violations of journalistic ethics.
The bill is sponsored by Republican House Representative Andy Welch, who is reportedly displeased about the way the media has been covering him. The "independent body," as described in the bill, would be appointed by the University System of Georgia’s chancellor, and would be based out of the University of Georgia’s Grady College of Journalism.
The Act also would also mandate that journalists and media organizations hand over full, unedited copies of notes, photographs, and audio and video recordings of interviews at the interviewee’s request, free of charge. A journalist or news outlet’s noncompliance could result in a lawsuit or fines.
The Atlanta Journal-Constitution points out the hypocrisy of the bill which would hold media organizations to a higher standard than the General Assembly itself, which has exempted itself from the Georgia Open Records Act.
→ DOA: The Georgia legislature has adjourned so H.B. 734 is dead for the year unless it is brought back in a special session. It was introduced on the day the legislature adjourned. [ht: David Horowitz]
Britain proposed sweeping new government powers to regulate the internet to combat the spread of violent and extremist content, false information and harmful material aimed at children. The proposal, announced on Monday, would be one of the world’s most aggressive actions to rein in the most corrosive online content.
The recommendations, backed by Prime Minister Theresa May, take direct aim at Facebook, Google and other large internet platforms that policymakers believe have made growth and profits a priority over curbing harmful material. The government called for naming an internet regulator with the power to issue fines, block access to websites if necessary and make individual executives legally liable for harmful content spread on their platforms.
From award-winning comedian Judy Gold, a concise, funny, and thoughtful polemic on the current assault on comedy, that explores how it is undermining free speech and a fundamental attack against the integrity of the art.
Comedian Judy Gold
From Mae West and Lenny Bruce to Richard Pryor and Howard Stern to Kathy Griffith and Kevin Hart, comedians have long been under fire for using provocative, often taboo subjects to challenge mores and get a laugh. But in the age of social media, comedians are at greater risk of being silenced, enduring shaming, threats, and damaged careers because of angry, censorious electronic mobs.
But while comedians’ work has often been used to rile up detractors, a new threat has emerged from the left: identity politics and notions like "safetyism" and trigger warnings that are now creating a cultural and political standard that runs perilously close to censorship. From college campuses to the Oscars, comics are being censured for old jokes, long-standing comedy traditions, unfinished bits and old material that instead of being forgotten, go viral. . . .
In this era of "fake news," partisan politics, and heated rhetoric, the need to protect free speech has never been greater, especially for comics, who often serve as the canaries in the coalmine, monitoring the health of our democracy. Can’t Take a Joke is a funny and provocative look at how safe spaces are the very antithesis of comedy as an art form—and an urgent call to arms to protect our most fundamental Constitutional right. There's a good reason it was the FIRST amendment.
Forthcoming Book on History of Free Speech in Late Antiquity
The early middle ages is not a period traditionally associated with free speech. It is still widely held that free speech declined towards the end of Antiquity, disappearing completely at the beginning of the Middle Ages, and only re-emerging in the Renaissance, when people finally learned to think and speak for themselves again. Challenging this tenacious image, Irene van Renswoude reveals that there was room for political criticism and dissent in this period, as long as critics employed the right rhetoric and adhered to scripted roles. This study of the rhetoric of free speech from c. 200 to c. 900 AD explores the cultural rules and rhetorical performances that shaped practices of delivering criticism from Antiquity to the Middle Ages, examining the rhetorical strategies of letters and narratives in the late antique and early medieval men, and a few women, who ventured to speak the truth to the powerful.
Professor Joseph Blocher is quickly becoming a major player in the world of free speech and constitutional law jurisprudence. As noted in FAN 206, he has an article coming out in the Harvard Law Review: "Free Speech & Justified True Belief." Also in the forthcoming category is an article titled "Bans," which will appear in the Yale Law Journal.
Prof. Joseph Blocher
Abstract:
In the universe of legal restrictions subject to judicial review, those characterized as totally denying some aspect of a constitutional right—sometimes called “bans”—are often subject to per se rules of invalidity. Whether the subject of the restriction is a medium of expression, valuable use of property, or a class of weapons, courts in such cases will often short-circuit the standard doctrinal machinery and strike down the law, even if it might have survived heightened scrutiny. Identifying laws as bans can thus be a building block of rule-like constitutional jurisprudence, providing an end run around the tiers of scrutiny and other familiar forms of means-ends analysis.
And yet it is surprisingly difficult to identify what makes a law a ban, and why that characterization should matter. Why are yard signs an “entire medium of expression,” or assault weapons an “entire class of ‘arms’”? Why should it matter if they are completely prohibited? If the ban label is to have such important constitutional consequences, these questions must be brought to the foreground.
Using the emerging jurisprudence of the Second Amendment as an illustration, this Article explores functional, formal, and purposivist answers. It argues that none can avoid judicial discretion in the way that some proponents of rules-based jurisprudence might wish. But the ban framework might nonetheless be defensible in a limited set of cases, especially as a shorthand for the conclusion that a challenged law impermissibly interferes with rightsholders’ ability to effectuate their constitutional interests.
Volokh: "Anti-Libel Injunctions and the Criminal Libel Connection"
Gilad Edelman, writing in the current issue of the Washington Monthly, has an informative essay on campaign finance reform. Here are a few excerpts:
Gilad Edelman (credit: The American Prospect)
After years spent impotently bemoaning the symptoms of Citizens United v. FEC, congressional Democrats may have finally settled on a treatment. In March, the House of Representatives passed H.R. 1, a sweeping democracy reform bill that includes two promising campaign finance measures. One would provide a six-to-one match for donations up to $200 to candidates for federal office who swear off bigger contributions and raise the first $50,000 on their own. The other would create a pilot program in which the government would give each voter who wants one a $25 voucher to donate to their preferred candidate.
These new-generation proposals are examples of so-called “level-up” campaign finance reform. They are designed to counter the power of big money not by pushing down on the super-rich, but by boosting everyone else.
The other argument for level-up programs is necessity: the Supreme Court has essentially taken level-down off the table [when it decided Citizens United].
By making it easier to build campaigns on small-dollar donations, the proposals in H.R. 1 represent a clever way to counter the forces unleashed by Citizens United.But like any tenacious malignancy, the legal opposition to campaign finance reform is itself capable of adaptation. Even if Democrats take back the Senate in 2020 and turn H.R. 1 into law, there’s reason to worry about those provisions surviving the Supreme Court. In fact, there is already a case creeping through the court system that could stop the new wave of campaign finance reform almost before it begins. This summer, the Washington State Supreme Court will consider a challenge to Seattle’s first-of-its-kind voucher program, which was implemented in 2017. The plaintiffs argue that the system violates their First Amendment rights by using their taxes to subsidize the speech of candidates they don’t support. The case, Elster v. City of Seattle, could ultimately make it to the U.S. Supreme Court.
Our News Roundup leads with the long, slow death of Section 230 immunity. Nick Weaver explains why he thinks social media's pursuit of engagement has led to a poisonous online environment, and Matthew Heiman replays the astonishing international consensus that Silicon Valley deserves the blame – and the regulation – for all that ails the Internet. The UK is considering holding social media execs liable for "harmful" content on their platforms. Australia has already passed a law to punish social media companies for failure to remove "abhorrent violent material." And Singapore is happily drafting behind the West, avoiding for once the criticism that its press controls are out of step with the international community. Even Mark Zuckerberg is reading the writing on the wall and asking for regulation. I note that lost in the one-minute hate directed at social media is any notion that other countries shouldn't be able to tell Americans what they can and can't read. I also wonder whether the consensus that platforms should be editors will add to conservative doubts about maintaining Section 230 at all – and in the process endanger the US-Mexico-Canada Agreement that would enshrines Section 230 in US treaty obligations.
Nate Jones and I summarize the latest Reuters piece on American hackers working for the UAE. The short version? This is more a victory lap combined with journalists' special pleading than a major new story.
So to Speak Podcast: Seidman Returns: ‘Can free speech be progressive?’
Prof. Michael Seidman
On today’s episode of So to Speak, we ask the question, “can free speech be progressive?”
Our guest is Louis Michael Seidman. He is the Carmack Waterhouse Professor of Constitutional Law at Georgetown Law and the author of the much-discussed 2018 Columbia Law Review article “Can Free Speech Be Progressive?”
Quote from Michael Seidman from the podcast:
As a general matter, I think it is a mistake to view us as bound by constitutional language or to treat issues about freedom of speech or anything else as a matter of interpretation of the Constitution. I think that gets in the way of thinking in serious ways about what's best for public policy and instead gets us embedded in essentially irrelevant questions about interpreting the language written 200 years ago by people who knew nothing about our present circumstances.
