New movement: ‘Common Good Constitutionalism’ challenges libertarian-minded conservatives’ view of free speech — First Amendment News 359
“Common Good Constitutionalism appears to be a fringe theory from the Opus Dei wing of the conservative movement. It is more than a little ironic that critics of substantive due process as a source of individual rights would embrace what they call an unwritten set of legal principles and moral norms as a source of governmental authority to impose their view of the common good. Like the critical race theorists on the left, they seem to read the Constitution as a policy document that can be bent to serve their political preferences.” — Robert Corn-Revere
At the center [of a new] debate [in conservative and libertarian circles is] Harvard law professor Adrian Vermeule, whose latest book served as the ostensible subject of [a recent] symposium. In conservative legal circles, Vermeule has become the most prominent proponent of “common good constitutionalism,” a controversial new theory that challenges many of the fundamental premises and principles of the conservative legal movement.
Prof. Adrian Vermeule
The cornerstone of Vermeule’s theory is the claim that “the central aim of the constitutional order is to promote good rule, not to ‘protect liberty’ as an end in itself” — or, in layman’s terms, that the Constitution empowers the government to pursue conservative political ends, even when those ends conflict with individual rights as most Americans understand them. In practice, Vermeule’s theory lends support to an idiosyncratic but far-reaching set of far-right objectives: outright bans on abortion and same-sex marriage, sweeping limits on freedom of expression and expanded authorities for the government to do everything from protecting the natural environment to prohibiting the sale of porn.
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Since it was published in February of this year, Common Good Constitutionalism has become a flash-point in a broader intra-conservative debate about the future of the conservative legal movement.
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Josh Hammer
[One] major target for the common good-oriented approach is the Court’s First Amendment jurisprudence, where both Josh Hammer and Vermeule openly reject the free speech absolutism that reigns among more libertarian-minded conservatives. Hammer pointed to two opinions by Justice Samuel Alito to illustrate what this approach would look like in practice. The first, Alito’s solo dissent in the 2010 case United States v. Stevens, argued in favor of upholding a law that made it illegal to sell videos depicting animal cruelty. The other, from the 2011 case Snyder v. Phelps, held that the First Amendment should not protect the speech of religious extremists who picketed the funeral of a dead Marine. In a similar vein, Hammer has endorsed Justice Clarence Thomas’s argument that the Court should revise the “actual malice” standard from the landmark 1964 ruling in New York Times Co. v. Sullivan to make it easier for public figures to sue publications for defamation.
In this Essay, we take stock of the debate over common good constitutionalism and the revival of the classical legal tradition. In doing so, we suggest that several of the most common critiques of that revival are based on serious misconceptions and tendentious, question-begging claims, especially for the superiority of originalism.
The past eighteen months or so have seen an outpouring of remarkable claims, from both originalist and progressive legal scholars, about the classical legal tradition and its emphasis on the common good. They include the following, or minor variants of the following:
Legal and constitutional interpretation in the classical tradition substitutes morality for law and reduces legal questions to all-things-considered moral decision-making from first principles.
The classical tradition ignores the text and has no respect for posited law.
An official oath to respect the Constitution and laws requires an originalist approach to constitutional interpretation.
The classical tradition licenses judges to rule as they see fit for the common good; common good constitutionalism is thus synonymous with judicial supremacy.
Alternatively, common good constitutionalism is synonymous with executive supremacy and an absence of checks and balances on executive power.
Common good constitutionalism has no respect for human rights.
Common good constitutionalism is fatally undermined by the fact that there is and will be disagreement between classical lawyers over the content of the natural law in hard cases.
SCOTUS grants cert. re: Federal ban on encouraging illegal immigration
The case is United States v. Hansen. The issue before the Court is whether the federal criminal prohibition against encouraging or inducing unlawful immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional on First Amendment overbreadth grounds.
Three years ago, the court agreed to take up this question in another case, United States v. Sineneng-Smith, but it did not resolve it. Instead, a unanimous court ruled that the U.S. Court of Appeals for the 9th Circuit had improperly injected the issue into the case.
Amy Howe
The question returns to the court in the case of Helaman Hansen, who was convicted under Section 1324(a)(1)(B)(i) for running a program that, in exchange for fees of up to $10,000, promised to help adult unauthorized immigrants become U.S. citizens through adoption. On appeal, he argued – and a panel of the 9th Circuit agreed – that the statute violates the First Amendment because it is so broad that it would also apply to speech protected by the Constitution – for example, a statement that merely encourages someone to stay in the United States. After the 9th Circuit declined to rehear the case, the federal government came to the Supreme Court, which agreed on Friday to weigh in.”
Amicus brief filed by 22 states in support of petitioner. In that brief, Arizona Deputy Solicitor General Linley Wilson argues:
Notably, all 50 States have enacted criminal laws that prohibit encouraging or inducing unlawful conduct. Here, the Ninth Circuit “failed to acknowledge the established criminal-law meanings of the terms ‘encourage’ and ‘induce.’” Pet. at 17. The States’ criminal codes are riddled with statutes employing those or similar terms. By refusing to recognize the criminal-law meaning of the terms Congress utilized in § 1324(a)(1)(A)(iv) and instead striking that statute down as facially overbroad, the Ninth Circuit created a roadmap for state and federal courts to weaponize the overbreadth doctrine to invalidate the States’ otherwise valid criminal statutes.
Obstruction of Congress charges raise First Amendment question
Writing in Politico, Josh Gerstein and Kyle Cheney observe:
Appeals court judges wrestled on Monday with a challenge to a key felony charge that prosecutors have wielded against hundreds of Jan. 6 defendants, weighing an issue that could upend hundreds of prosecutions connected to the attack on the Capitol.
A defense attorney for some of the Jan. 6 rioters argued that the way prosecutors have charged hundreds of defendants with felony obstruction — carrying a 20-year maximum sentence — could be deployed against run-of-the-mill peaceful protesters. But the judges disputed that contention, emphasizing that they viewed the Capitol attack as a unique event that lent itself to unique charging decisions.
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Nicholas Smith, who represents a slew of Jan. 6 defendants facing obstruction charges, repeatedly warned of the potential that the prosecutors’ theory could result in obstruction charges against more-routine protests on Capitol Hill, such as disturbances at confirmation hearings and outbursts in the congressional galleries. He drew his sharpest reaction when he referenced the teams of activists and lawyers who traveled to Florida after the 2000 election to intervene in the process.
Some of those who took part in the legal campaign to have George W. Bush declared the winner in Florida now occupy very high positions in the judicial system, including three Supreme Court justices.
FIRE report finds that nearly 88% of 486 American colleges restrict free speech
A new report by the Foundation for Individual Rights and Expression analyzed the speech codes of 486 American colleges and found that nearly 88% of them restrict free expression. FIRE’s Spotlight on Speech Codes 2023 rates America’s top colleges and universities based on the extent to which their policies restrict student speech.
Laura Beltz
“Colleges have nothing to gain and everything to lose by maintaining policies that restrict free expression,” said Laura Beltz, FIRE’s director of policy reform and the author of the report. “They waste time on investigations into protected speech and leave themselves vulnerable to litigation and attacks in the court of public opinion.”
94 colleges earn a “red light” rating: maintaining policies that clearly and substantially restrict free expression.
324 colleges earn a “yellow light” rating: maintaining policies that impose vague regulations on expression.
60 colleges earn a “green light” rating: maintaining policies that do not seriously imperil free expression.
8 colleges earn a “Warning” rating because they do not promise students free speech rights at all.
New scholarly article: Weiland on First Amendment metaphors
As cognitive linguists George Lakoff and Mark Johnson have shown, metaphors are words “we live by.” In law, they are words we govern by. The “marketplace of ideas,” introduced into the jurisprudential imagination just over a century ago by Justice Holmes dissenting in Abrams v. United States, persists as the central organizing metaphor for how judges, scholars, and the public understand the freedom of expression. It envisions a speech ecosystem where competition among ideas, refereed by a responsible press, results in truth winning out.
Morgan N. Weiland
But the marketplace metaphor is a relic. Today’s expressive ecosystem dramatically departs from the metaphor’s core assumptions, marked by information overload and replete with misinformation and lies proliferated by speech platforms unable or unwilling to act as “arbiters of truth.” These dynamics are better described by another First Amendment metaphor, “the free flow of information,” which has operated as a stealth metaphor: obscured by the ubiquitous marketplace metaphor, it has done enormous work within the doctrine without much critical notice. The metaphor’s logic privileges information over ideas, prioritizes content quantity over quality, and removes accountability from the system of free expression. In the end, truth is the casualty.
By analyzing every First Amendment opinion using the free flow of information metaphor, this Article unearths a libertarian theory of speech and press freedoms emerging in Supreme Court doctrine in the 1940s. Contrasting with the classical liberal theory supported by the marketplace metaphor, the libertarian theory undergirds a doctrinal expansion of who or what counts as a speaker or “the press,” a contraction of the state’s regulatory role, and a reconceptualization of speech as information instead of ideas. In the Speech Clause context, the free flow metaphor further illuminates the theoretical underpinnings of the doctrine’s neo-Lochner turn. In the Press Clause context, the metaphor undergirds the Court’s view of the press as an information conduit, responsible for maximizing information flow—a significant and overlooked narrowing of press responsibility as compared to the “checking” function that it played in the marketplace. In both contexts, the metaphor envisions a speech ecosystem without structures for accountability where listeners, who benefit by receiving more information, are responsible for sorting the wheat from the chaff. To underscore its normative weaknesses, this Article traces the theoretical overlap between the metaphor and information theory’s influential mathematical model of communication, developed just as the concept of free flow was taken up by the Court. Like the mathematical model, the metaphor conceives of free expression as an engineering problem: efficient information flow is paramount, meaning or ideas are irrelevant, and accountability is removed from the equation.
The free-flow metaphor underpins an approach to free expression that is untenable for democracy. Doctrinally, it supports theoretical developments in speech and press jurisprudence that are at odds with the classical liberal conceptualization of rights and responsibilities envisioned by the marketplace metaphor. Normatively, it constructs an impoverished expressive ecosystem devoid of goals like truth, democratic deliberation, or government accountability, and offers no alternative, affirmative vision of democracy. Because of the metaphor’s influence on constitutional law and speech platforms’ philosophy of free expression, this Article concludes with an entreaty to judges and scholars to craft a new First Amendment metaphor for us to live and govern by.
There’s something weird going on in First Amendment politics. Until very recently, it was conservatives who were most associated with, and responsible for, the deregulatory tilt of the First Amendment and its embrace of a privately owned and operated marketplace of ideas. Progressives, meanwhile, were the primary critics of the expansive discretion granted to powerful corporate actors under what one of us has called the increasingly dominant “laissez-faire conception of constitutional liberty.”
Prof. Evelyn Douek
But the rise of the power of social media platforms and the last half-decade of “techlash” have begun to upset these traditional alignments. In recent years, amid the constant controversies over platforms’ content moderation practices—that is to say, over the decisions platforms make about what speech to allow on their services—concern about the threat that private corporate power poses to freedom of speech has tended to be raised by conservatives. Meanwhile liberals—liberals!—have tended to be the ones defending the rights of these private actors to moderate content as they wish (albeit while also frequentlydemanding that the platforms do so more effectively).
These political realignments are playing out on two fronts and on two timescales: in the realm of ordinary politics and in the realm of judicial politics. In the realm of ordinary politics and media spectacle, Elon Musk’s deal to buy Twitter has become a locus of renewed public debate about the meaning of free speech in modern society. Musk has promised to undo many of Twitter’s content moderation policies [. . . .]. In response, as The New York Times put it, ‘conservatives celebrate, and progressives cringe.” Indeed, Republican Senator Ted Cruz called the deal “the biggest development for free speech in decades.” Musk’s agreement to purchase Twitter has been a saga made for the headlines. He was buying it, then maybe not buying it. He derided those who feared a more absolutist vision of ‘free speech,’ but also pledged to defeat the spam bots and comply with local laws (which often require censorship). He promised to transform Twitter into a private company, but also said that he will relist it in a few years. And who knows what else he will have said or done by the time you read this. Rarely do the ins and outs of a business acquisition involve so much drama and receive so much public attention.
ABSTRACT. In The Emergence of Neutrality, Jud Campbell provocatively argues that courts only recently embraced the importance of content neutrality as an underlying principle of First Amendment law. In this Response, I contest this claim and sketch out an alternative history of First Amendment neutrality. I argue that neutrality has always played an important role in free-speech law in the United States, but that its meaning has shifted over time. Rather than showing—as Campbell argues—that First Amendment law used to be organized around an ideal of toleration and only recently embraced a neutrality ideal, what the historical evidence instead reveals is a shift from a majoritarian to a functionalist and, later, a highly formalist conception of the government’s neutrality obligations. This is important to recognize because it suggests that those dissatisfied with the current doctrinal arrangement should not necessarily blame its problems on the judicial embrace of a neutrality ideal. The problem may instead be the kind of neutrality ideal that they have embraced.”
On March 19, 2022, Arizona State University’s Sandra Day O’Connor College of Law hosted a day-long symposium titled “Non-Governmental Restrictions on Free Speech.” The Symposium was funded by a gift from the Stanton Foundation, and was organized by Professors Ash Bhagwat (UC Davis), Vince Blasi (Columbia), Thomas Healy (Seton Hall), and Jim Weinstein (ASU). The Symposium explored contemporary free speech controversies that generally do not involve repression or censorship by a state actor, and therefore do not implicate the First Amendment.
Professor Danielle Keats Citron of the University of Virginia presented the Symposium’s keynote address, and was followed by four separate panels: ‘Social Restraints and Free Speech Theory,” “Restrictions on Campus Speech,’ ‘Private Employer Sanctions on Free Speech,’ and “Speech Regulation by Online Platforms.” In this issue of the Journal of Free Speech Law we publish the papers that resulted from the Symposium.
The protection of intimate privacy isn’t at odds with free expression. At times, we prioritize one value over the other, but, more often, intimate privacy is an essential precondition for self-expression. Intimate privacy allows us to experiment with ideas, identities, and love. It secures space for us to figure out who we are and whom we want to become. It frees us to forge close relationships. Intimate privacy enables us to trust others with our innermost thoughts, feelings, and past experiences so that we can come to know them, and they can come to know us. Mutual self-revelation is at the heart of love. The fight for intimate privacy is the fight for free speech.
This short essay highlights intimate privacy’s significance for free speech. I explore how intimate privacy violations undermine the ability to engage in self-expression and to forge close relationships. I end with a high-level overview of empirical studies that I have been conducting with Jonathon Penney and Alexis Shore. Our preliminary findings suggest that the protection of intimate privacy—both in law and in the policies of social media platforms—inculcates trust necessary for victims to speak.
This article examines how the right to freedom of expression in international human rights law has been a constant source of conflict and political power struggles since the adoption of the Universal Declaration of Human Rights (UDHR) in 1948. Applying both the UN arena as well as the Helsinki Process as institutional frameworks, the article examines how prohibitions against hate speech, incitement to hatred, blasphemy, and related legal restrictions have served as a recurrent source of conflict in international diplomacy and in the making of international free speech norms in the postwar period. From the drafting history of the UDHR and the subsequent International Covenant on Civil and Political Rights (ICCPR) to the Helsinki Final Act and contemporary UN resolutions, the article provides an overview and outlines some of the main conflicts and issues regarding the right to communicate freely about cultural, religious, and political issues in the postwar period.
Censorship and repression predate debates surrounding the prohibition of hate speech in international human rights law. And while authoritarian states are likely to use such methods to punish dissent regardless of international standards, this article nonetheless argues that obligations to ban specific categories of speech under human rights law provide formal legitimacy, or at least a façade of legitimacy, to authoritarian restrictions of free expression.
Paper proposals must be submitted by December 31, 2022, for full consideration and will be considered after the priority deadline on a rolling basis.
All proposals should include a summary of issues to be addressed, the proposed methodology, and the feasibility of a completed draft by June 2023 and final submission by September 2023. Voices for Liberty will notify those selected by January 31, 2023. Please find the selection criteria and submission guidelines on page 3 of this document.
Full Details:
The Liberty & Law Center at the Antonin Scalia Law School requests paper proposals for its initiative: Voices for Liberty: Free Speech, Civil Rights & Social Progress.
What role has freedom of speech played when it comes to the legal and social progress of groups that have been historically disadvantaged and/or socially marginalized? In the current public debate, some view freedom of speech as detrimental to minority groups, while others champion it as a necessary condition for protecting underrepresented voices. The former view is more often espoused in both the academy and the popular press. As a result, freedom of speech is frequently seen as a countervailing force in tension with civil rights. But is it?
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Application Process:
Paper proposals must be submitted by December 31, 2022, for full consideration and will be considered after the priority deadline on a rolling basis.
To submit a paper proposal for Voices for Liberty please email your application to VFLI@gmu.edu. All proposals are treated confidentially. Within the proposal, please include submitter information including: first and last name, position title, email, organization, and a brief bio. All proposals should include a summary of the issue to be addressed, the proposed methodology, and the feasibility of a completed draft by June 2023 and final submission by September 2023.
The Initiative will notify those selected by January 31, 2023. The Liberty & Law Center will offer substantial honoraria to paper authors.
“Since his takeover of Twitter, Elon Musk has insisted, over and over again, that one of his major goals for the massive social media platform is to protect free speech on the site. That’s a noble aspiration. The problem is that his behavior increasingly suggests either that he has no idea what that means, or, even worse, he does, and he’s just not being honest. Either way, Musk (and those who have somehow been persuaded that he knows what he’s talking about) could use a crash course in what does — and doesn’t — violate the First Amendment.” — Steven Vladeck
In the spring of 2021, federal officials began making public statements threatening tech companies with regulatory sanctions if they failed to police “misinformation.” Coincidentally, beginning around April 2021, Changizi, Senger, and Kotzin began experiencing censorship, including temporary suspensions, shadow bans, and even permanent loss of their accounts. Then, in March 2022, the surgeon general issued a “request for information” (RFI), demanding that tech companies turn over the identities of “misinformers” on a wide variety of platforms.
Ilya Shapiro
The three men sued the Department of Health and Human Services, arguing that, by coercing social media companies to censor so-called misinformation, the federal government violated their First Amendment rights.
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A federal district court in Ohio dismissed the lawsuit after finding that the plaintiffs could not demonstrate that what was going on with their accounts was tied to the government, since Twitter had engaged in such restrictions before any official “jawboning.”
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Since the district court’s ruling on May 5, 2022, new evidence has surfaced corroborating the theory that the government was driving Covid-related censorship. A whistleblower exposed Department of Homeland Security emails showing a campaign to pressure social media companies to censor purveyors of “misinformation” (including those who cast doubt on the efficacy of masks and vaccines), and a FOIA request recently turned up CDC emails demonstrating that agency’s use of the same tactics.
The Manhattan Institute, together with the Institute for Free Speech, has filed an amicus brief supporting the Changizi plaintiffs before the U.S. Court of Appeals for the Sixth Circuit. We argue that state action exists, and thus constitutional scrutiny attaches, when government threats—some not-so-loosely veiled—affect the decisions of private entities such that their actions effectively become those of the state. The same state action occurs when, in lieu of coercion, the government colludes with private actors.
YouTube: Maria Ressa on social media and free speech
This week, Stuart N. Brotman and John Palfrey discuss Brotman’s new book The First Amendment Lives On, a collection of conversations with free speech scholars and advocates. This conversation originally took place on November 7th, 2022 at the American Writers Museum and was recorded live.
Stuart N. Brotman is an American government policymaker; tenured university professor; management consultant; lawyer; author and editorial adviser; and non-profit organization executive. He has served in four Presidential Administrations on a bipartisan basis and has taught students from 42 countries in six separate disciplines–Communications, Journalism, Business, Law, International Relations, and Public Policy.
John Palfrey is President of the John D. and Catherine T. MacArthur Foundation, one of the nation’s largest philanthropies with assets of approximately $7 billion, and offices in Chicago, New Delhi, and Abuja, Nigeria. Palfrey is a well-respected educator, author, legal scholar, and innovator with expertise in how new media is changing learning, education, and other institutions.
This article is part of First Amendment News, an editorially independent publication edited by professor Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article's author(s) and may not reflect the opinions of FIRE or of professor Collins.
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