Prof. India Thusi: 'Reality porn is pornographic paid sex work that should be accorded First Amendment recognition' — FAN 317

A recent issue of the New York University Law Review contains a creative and thoughtful take on free speech in an article by Professor India Thusi of Indiana University Maurer School of Law. In it, the author argues that the “ease with which we can now record ordinary activities through mobile devices presents an opportunity to reexamine the boundary between prostitution and pornography. . . . The community-building and expressive aspects of paid sexual encounters online implicate both expressive and associative interests under the First Amendment. Courts should take these rights seriously and should recognize that technology may transform what would ordinarily be prostitution into protectable pornography.” Below is an abstract of Professor Thusi's article:

Prostitution is illegal while pornography is constitutionally protected. Modern technology, however, is complicating the relationship between prostitution and pornography. Recent technological advances make the creation and distribution of recorded material more accessible. Within our smart phones we carry agile distribution networks as well as the technical equipment required to produce low-budget films.

Today, sex workers may be paid to engage in sexual activities as part of performances that are recorded and broadcast to a public audience. No longer confined to the pornography industry, this form of sexual performance can be created by anyone with a cell phone and access to the internet. In addition, modern popular culture recognizes the expressive value of reality and ordinary life. Technological advances will only continue to make broadcasting and sharing everyday life possible, raising the possibility that there will be a growing audience for, and communities organized around, sexually expressive materials online.

This Article is the first to analyze this increasingly important and common phenomenon that it defines as reality porn. It argues that reality porn is pornographic paid sex work that should be accorded First Amendment recognition, notwithstanding the criminalization of the underlying act of prostitution. This Article redefines pornography and provides a framework for analyzing this sexual expression. As long as the conduct is consentable — both consented to in fact and consensual in nature — it should not be deprived of constitutional protection.

Koppelman on how Yale Law School 'disastrously mishandled' discrimination complaints

"[A]nti-racism work is important without embracing Yale’s ham-handed approach." — Andrew Koppelman

Last week’s issue of First Amendment News extended a public invitation to the Yale Law School’s administration and faculty to respond to the Law School’s handling of certain discrimination complaints. Individual private invitations were also emailed to a dozen faculty and administration members. No one responded. The invitation remains open regardless of one’s views on the matter. Meanwhile, below are excerpts from a recent op-ed by Professor Andrew Koppelman:

• Andrew Koppelman, "Yale Law needs to learn to watch its language," The Hill (Oct. 24)

This has been a weird dialogue of the deaf, a farce of incomprehension. The press coverage has not been immune. Two points particularly need clarification: the basis of the initial complaints, and the meaning of “racism.”

The students who complained were entitled to be concerned. Ruth Marcus of The Washington Post thought their complaints revealed “a grievance culture in which every slight, real or perceived, is greeted with outsize demands for disciplinary consequences.” But there is a long history of white college students holding parties that ridicule Black culture. Fried chicken is a frequent feature of those parties. In New Haven, the Popeye’s closest to Yale is at the dividing line between "Yale" New Haven and the Black New Haven that Yale students often avoid. The term “basic bitch” originated in rap music.

All this was a horrible coincidence. [Trent] Colbert made clear that he hadn’t known the racial coding of “trap house,” and didn’t even select the menu. Had this promptly been conveyed to the complainants, the problem might have evaporated.

Cosgrove and Eldik purported to believe him but nonetheless pressured him to apologize and composed a suggested email. Perhaps they honestly thought that, as they claimed, they were simply offering advice about preserving his reputation. The power differential transformed advice into bullying. I hope people on the left don’t need me to explain the idea of privileged people who are dangerously oblivious of their own power.

ACLU challenges Oklahoma's critical race theory ban

This from First Amendment Watch:

The ACLU and other civil rights organizations are suing the state of Oklahoma over a law that prohibits certain types of instruction around race and gender.

Filed on October 19th in the U.S. District Court for the Western District of Oklahoma against the state’s governor, attorney general, and more than a dozen top education officials, the suit alleges that the law violates students’ and educators’ First and 14th Amendment rights.

HB 1775, which took effect in July, “severely restricts discussions on race and gender in Oklahoma’s elementary, secondary, and higher education schools without any legitimate pedagogical justification, using language that is simultaneously sweeping and unclear,” the suit alleges.

“The Act’s vague, overbroad, and viewpoint discriminatory provisions leave Oklahoma educators with an impossible — and unconstitutional — choice: avoid topics related to race or sex in class materials and discussions or risk losing their teaching licenses for violating the law,” the complaint reads.

Oklahoma is one of five GOP-controlled states that have passed laws limiting how teachers can instruct around matters of race and gender. Iowa, New Hampshire, Tennessee, and Idaho have also passed similar laws.

→ Lead counsel for plaintiffs: Megan Lambert. ACLU Foundation of Oklahoma

→ Video clip here

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FIRE files lawsuit defending professor who criticized Pence & campus COVID response

This from FIRE:

• FIRE files lawsuit on behalf of Lora Burnett, a former Collin College professor, fired for tweets that criticized then-Vice President Mike Pence and the college’s leadership during the pandemic.
• In private text exchange with a Texas state legislator upset about Burnett’s tweets, the college president promised to ‘deal with it’ — then terminated her.

[. . .]

Former history professor Lora Burnett filed a lawsuit today against Collin College, its president, H. Neil Matkin, and other university officials for firing her for speaking out on important public issues. Represented by the Foundation for Individual Rights in Education, Burnett seeks to vindicate her First Amendment right to speak out as a private citizen on matters of public concern.

​​Collin College declined to renew Burnett’s contract on Feb. 25 after she publicly criticized former Vice President Mike Pence and the college president’s response to the COVID-19 pandemic.

“Professors like me shouldn’t lose our jobs just because we have opinions,” Burnett said. “In the classroom, my job is to teach the material and to hold open a space where students can freely express themselves and fully engage with the ideas we’re talking about. Outside the classroom, I have the right to express myself too. I have the right to fully engage with any public debate. That right is for all of us, not just for professors whose politics match up with their college administrators.”

During last October’s vice presidential debate, Burnett tweeted: “The moderator needs to talk over Mike Pence until he shuts his little demon mouth up.” The tweet was picked up by conservative media outlets highlighting faculty members’ reactions to the debate.

The tweet outraged Texas State Rep. Jeff Leach, who texted Matkin to ask if Burnett was “paid with taxpayer dollars.” Matkin responded that Burnett was “[a]lready on my radar” and he would “deal with it.”

Burnett landed on Matkin’s radar again in January when she criticized the college president’s response to the COVID-19 pandemic. Burnett challenged Matkin’s earlier assessment that the pandemic was “blown utterly out of proportion,” by adding commentary about a former Collin College professor’s death. She tweeted: “Another @collincollege professor has died of COVID.”

During this time, FIRE wrote repeated letters to Collin College advising the school of Burnett’s rights and reminding the college of its constitutional obligations. Public institutions like Collin College are bound by the First Amendment, and it is unconstitutional to terminate a faculty member based on her comments about matters of public concern.

Meanwhile, the college spent $14,000 on legal fees seeking to conceal the text exchange between Matkin and Leach from the public. The college lost that battle. Leach tweeted on Feb. 16 that Burnett’s termination was a “BIG WIN” — before Burnett had even been fired. When he learned that his announcement was premature, he tweeted an image of a ticking clock to indicate that her time as a Collin College professor was running out.

Nine days later, the college notified Burnett that her contract would not be renewed, citing “insubordination, making private personnel issues public that impair the college’s operations, and personal criticisms of co-workers, supervisors, and/or those who merely disagree with you.”

[. . .]

“It seems as though Collin College is surprised to learn that, like the rest of us, professors have thoughts on the issues up for public debate,” said FIRE attorney Joshua Bleisch. “The First Amendment ensures they can share those opinions, even if Collin College prefers they stay silent.”

JT Morris is serving as local counsel for the lawsuit.

→ Video clip here

Journal of Free Speech Law to host conversations with authors

This from Eugene Volokh over at The Volokh Conspiracy:

Another new book on Anthony Comstock

• Amy Sohn, "The Man Who Hated Women: Sex, Censorship, and Civil Liberties in the Gilded Age" (Farrar, Straus and Giroux, 2021)

The New York Times-bestselling author Amy Sohn presents a narrative history of Anthony Comstock, anti-vice activist and U.S. Postal Inspector, and the remarkable women who opposed his war on women’s rights at the turn of the twentieth century

Anthony Comstock, special agent to the U.S. Post Office, was one of the most important men in the lives of nineteenth-century women. His eponymous law, passed in 1873, penalized the mailing of contraception and obscenity with long sentences and steep fines. The word Comstockery came to connote repression and prudery.

Between 1873 and Comstock’s death in 1915, eight remarkable women were charged with violating state and federal Comstock laws. These “sex radicals” supported contraception, sexual education, gender equality, and women’s right to pleasure. They took on the fearsome censor in explicit, personal writing, seeking to redefine work, family, marriage, and love for a bold new era. In The Man Who Hated Women, Amy Sohn tells the overlooked story of their valiant attempts to fight Comstock in court and in the press. They were publishers, writers, and doctors, and they included the first woman presidential candidate, Victoria C. Woodhull; the virgin sexologist Ida C. Craddock; and the anarchist Emma Goldman. In their willingness to oppose a monomaniac who viewed reproductive rights as a threat to the American family, the sex radicals paved the way for second-wave feminism. Risking imprisonment and death, they redefined birth control access as a civil liberty.

The Man Who Hated Women brings these women’s stories to vivid life, recounting their personal and romantic travails alongside their political battles. Without them, there would be no Pill, no Planned Parenthood, no Roe v. Wade. This is the forgotten history of the women who waged war to control their bodies.

Related

• Robert Corn-Revere, "The Mind of the Censor and the Eye of the Beholder" (Cambridge University Press, Nov. 4, 2021)

Citron on online norms & what's wrong with them

• Danielle Keats Citron, "Cyber Mobs, Disinformation, and Death Videos: The Internet as It Is (and as It Should Be)," Michigan Law Review (2021)

Right now, it is cheap and easy to wreak havoc online and for that havoc to go viral. Platforms act rationally — some might say responsibly to their shareholders — when they tolerate abuse that earns them advertising revenue and costs them nothing in legal liability.

Combatting cyber-mob attacks must be a priority. Law should raise the cost of cyber-mob attacks. It is time for tech companies to tackle some of the negative externalities of their business model. Platforms should not enjoy immunity from liability for user-generated content unless they have earned that immunity with reasonable content-moderation practices. Education should play a role as well. As digital citizens, we need to do better.

New scholarly article on lawyers, lying and free speech

• Renee Knake Jefferson, "Lawyer Lies and Political Speech," Yale Law Journal / Forum (Oct. 24)

Lawyer lies designed to sabotage valid election results are not protected political speech under the First Amendment. Ethics rules governing candor and frivolous litigation require sanctions, if not disbarment. Moreover, the duty of candor should be extended from the courthouse to the public square when lawyer lies threaten our democracy.

So to Speak podcast on trigger warnings research

A consensus has emerged from a growing pile of scholarly research: Trigger warnings don’t work.

In this episode of So to Speak: The Free Speech Podcast, we are joined by Carleton College associate professors Amna Khalid and Jeffrey Snyder to explore what the latest research says about the efficacy of trigger warnings. We also discuss one of the more contentious debates surrounding academic freedom: the rising prevalence of so-called diversity, equity, and inclusion statements for college faculty job applications and evaluations.

YouTube: Tyler Dobbs — 'Does Free Speech Protect Blasphemy?'

Most Americans assume that free speech and associated First Amendment guarantees mean that the government cannot punish blasphemy. And many people assume that this has always been the case: that when the First Amendment was ratified, it was meant to prevent the government from enacting anti-blasphemy laws. Tyler Dobbs, HLS '22, argues that the founding generation took a quite different view. For founding-era Americans, prosecuting blasphemy was fundamentally compatible with free speech and religious liberty. A close examination of primary evidence from the eighteenth and nineteenth centuries shows that blasphemy was unprotected speech, like obscenity or libel, and could be punished as such. Originalists — champions of the Constitution's original meaning — need to take this evidence into account in explaining what the Constitution means today. This is a recording from October 14th, when Tyler Dobbs gave this lecture at Harvard's Fong Auditorium in Boylston Hall.

View video

More in the news

• Kyle Stucker, "First Amendment vs. public duty: Police social posts renew concerns about bias, solutions," USA Today (Oct. 26)
• "Vermont Law School can hide murals some find racially offensive, judge rules," Associated Press (Oct. 25)
• "First Amendment Lawsuit Against Savannah Mayor Ends With Permanent Injunction," The Georgia Virtue (Oct. 25)
• Eugene Volokh, "Filter Bubbles, Polarization, and Social Media Platform Speech Restrictions," The Volokh Conspiracy (Oct. 24)
• Alexis Gore, "UCF Policies Face Challenges Under First Amendment," Knight News (Oct. 24)
• Michael R. Sisak, "Judge won't bar press, public from Ghislaine Maxwell jury selection," Associated Press (Oct. 22)
• "Mont. news-media groups appeal ruling over closed GOP meeting," Associated Press (Oct. 21)
• Michael Powell, "M.I.T.’s Choice of Lecturer Ignited Criticism. So Did Its Decision to Cancel," The New York Times (Oct. 20)
• "A theater professor wasn’t sufficiently outraged about a list of names on a whiteboard. The college’s next act: probable termination," FIRE (Oct. 20)

2021-2022 SCOTUS term: Free expression & related cases

Review granted

• City of Austin, Texas v. Reagan National Advertising of Texas Inc.
• Federal Election Commission v. Ted Cruz for Senate
• Shurtleff v. Boston

Pending petitions

• Green v. Pierce County
• John K. MacIver Institute for Public Policy, Inc., et al. v. Evers
• Arlene’s Flowers Inc. v. Washington (petition for rehearing)
• 303 Creative LLC v. Elenis
• Lamoureux v. Montana
• Kennedy v. Bremerton School District
• Clear Channel Outdoor, LLC v. Raymond
• Project Veritas Action Fund v. Rollins

Review denied

• Dignity Health v. Minton
• 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 316: "Free speech controversy at Yale Law, faculty invited to respond”