Given the historical importance of the recent Senate impeachment trial, I thought it useful to have some record of the relevant documents, news stories, videos, and op-eds concerning the First Amendment arguments tendered by the House managers and the counsel for the former president along with what it might all portend for the future.
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"He riles up a mob, incites them, he inflames them and then, when they're about to do the most lethal damage, turns away and is derelict in his duty. That's the reason it's vital — vital! — that he be convicted and personally disqualified from running."
"[T]he argument made by the House impeachment managers that the First Amendment does not apply to presidents or others who “attack our democracy” was precisely the argument made by Joseph McCarthy and his followers in the 1950s . . ."
"Holding the president accountable for his words on Jan. 6, as part of that pattern, does not run afoul of the First Amendment. The House impeachment resolution reflects this."
— Anthony Romero, Executive Director, ACLU (Jan. 11)
Panel 1: “Classification and Access to National Security Information”
Margaret Kwoka, Professor of Law at University of Denver Sturm College of Law
David Pozen, Vice Dean for Intellectual Life and Charles KellerBeekman Professor of Law at Columbia Law School
Steven Vladeck, Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law
Panel 2: “The Press, Whistleblowers, and Government Information Leaks”
Heidi Kitrosser, Visiting Professor of Law at the Northwestern Pritzker School of Law
David McCraw, Senior Vice President and Deputy General Counsel at The New York Times Company
Mary-Rose Papandrea, Judge John J. Parker Distinguished Professor of Law & Associate Dean for Academic Affairs at University of North Carolina School of Law
Upcoming law review symposium on government speech
10 a.m., Welcoming Remarks Vikram D. Amar, University of Illinois College of Law
10:05 a.m., Opening Keynote Helen Norton, University of Colorado Law School
10:15 a.m., Panel I
Panelists: Claudia E. Haupt and Wendy E. Parmet, Northeastern University School of Law Kate Shaw, Cardozo School of Law Danielle K. Citron, University of Virginia School of Law
Moderator: Jason Mazzone, University of Illinois College of Law
11:30 a.m., Panel II
Panelists: William Araiza, Brooklyn Law School Mary-Rose Papandrea, UNC School of Law Clifford Rosky, University of Utah S.J. Quinney College of Law Alexander Tsesis, Loyola University Chicago School of Law
Moderator: Jason Mazzone, University of Illinois College of Law
1 p.m., Panel III
Panelists: Erwin Chemerinsky, UC Berkeley School of Law Michael S. Kang, Northwestern Pritzker School of Law and Jacob Eisler, University of Southampton Law School Ciara Torres-Spelliscy, Stetson University College of Law
Moderator: Jason Mazzone, University of Illinois College of Law
For more information: Yongli Yang JD Candidate, Class of 2021 Managing Internet & Symposium Editor, University ofIllinois Law Review, 2020-2021 University of Illinois
New scholarly article on First Amendment and incorporation doctrine
The 20th century emergence of the incorporation doctrine is regarded as a critical development in constitutional law, but while issues related to the doctrine’s justification have been studied and debated for more than fifty years, the causes and mechanics of its advent have received relatively little academic attention. This Essay, part of a symposium on Judge Jeffrey Sutton’s recent book about state constitutional law, examines the doctrinal origins of incorporation, in an effort to help uncover why the incorporation doctrine emerged when it did and the way it did. It concludes that, for these purposes, incorporation is best understood as having three basic components, of which First Amendment incorporation predominated. It goes on to show how First Amendment incorporation drew in important ways from existing doctrine, including important strands of “Lochnerian” jurisprudence, and was structured in a way that in turn facilitated subsequent incorporation of criminal procedure protections. Finally, it notes that in its critical beginning moments, incorporation decisions did not consider, much less adjudicate, the kinds of issues that are today central to discussions of judicial federalism.
Rosenberg is assistant chief counsel at ABC, Inc., where he has provided pre-broadcast counsel for ABC News clients on libel, newsgathering, intellectual property, and FCC regulatory issues since 2003.
In May 2020, protests erupted all over the U.S. after a video emerged of a white police officer killing a black man named George Floyd. Millions took to the streets in support of racial justice under the rallying cry “Black Lives Matter.” Most protests were peaceful, but several cities experienced large-scale violence. Free speech was also affected in the process. A disturbing number of incidents of police brutality and excessive force against peaceful protesters and journalists were documented. President Trump accused a Black Lives Matter leader of “treason, sedition, insurrection” and labelled protestors as “terrorists.”
But demands for structural change also led to calls for de-platforming people whose views were deemed hostile to or even insufficiently supportive of racial justice. A Democratic data analyst named David Shor was fired after tweeting a study that showed that nonviolent black-led protests were more effective than violent ones in terms of securing voter support. In another instance, New York Times staffers protested that the newspaper put “Black @NYTimes staff in danger” by running a provocative op-ed by Republican Senator Tom Cotton, which argued for deploying the military to quell riots. The newsroom revolt led to opinion editor James Bennet resigning.
Academia was affected too. A letter signed by hundreds of Princeton faculty members, employees and students demanded a faculty committee be established to “oversee the investigation and discipline of racist behaviors, incidents, research, and publication” and write “Guidelines on what counts as racist.”
Social media companies came under intense pressure to take a more robust stand on “hate speech.”
The entrenchment of so-called “cancel culture” caused around 150, mostly liberal, writers and intellectuals to sign an open “Letter on Justice and Open Debate.” The letter argued against what the signers saw as “intolerance of opposing views, a vogue for public shaming and ostracism, and the tendency to dissolve complex policy issues in a blinding moral certainty.” The letter drew sharp criticism from many journalists, writers and intellectuals for being “tone-deaf,” “privileged,” “elitist” and detracting from or even hurting the struggle for racial justice.
The wider debate often turned nasty — especially on social media — with loud voices on each side engaging in alarmist, bad faith arguments ascribing the worst intentions to their opponents. Many of those concerned about free speech warned of creeping totalitarianism imposed by “social justice warriors” run amok, intent on imposing a stifling orthodoxy of “wokeism.” Some confused vehement criticism of a person’s ideas with attempts to stifle that person’s speech. On the other hand, some racial justice activists outright denied the existence of “cancel culture” and failed to distinguish between vehement criticism of a person’s ideas and calling for that person to be sanctioned by an employer, publisher or university. Some even accused free speech defenders of being complicit in or actual defenders of white supremacy and compared words deemed racially insensitive with violence.
Underlying these debates is a more fundamental question. Is a robust and principled approach to free speech a foundation for — or a threat to — racial justice?
To help shed light on this question, this episode will focus on what role the dynamic between censorship and free speech has played in maintaining and challenging racist and oppressive societies. The episode will use American slavery and segregation, British colonialism, and South African apartheid as case studies.
When 15-year-old Samson Cournane wrote a petition calling attention to patient-safety concerns at a local hospital, the hospital threatened to sue his mother for defamation.
A Michigan election official sparked controversy after the 2024 primary election when she stated she had banned campaign literature inside polling locations.
