Robert Post: ‘There is growing pessimism about the future of free speech in the United States’ — First Amendment News 407

Mild-mannered. Congenial. And always thought-provoking. 

When it comes to free speech and other constitutional topics, that is professor Robert Post’s calling card. He can be “prickly,” but in a salutary Socratic sense. You may agree with him (I have) or disagree with him (I have done that too), but he always pricks you to think. Any worthwhile understanding of free speech needs conceptual dissidents to prick us. 

Recently, I watched a YouTube video titled, “Virginia Law Review Symposium on Free Speech and Participatory Democracy.” It was a lively and illuminating exchange of ideas by several noted First Amendment scholars: Vincent Blasi, Steven Shiffrin, Eugene Volokh, Frederick Schauer, James Weinstein, and Robert C. Post — moderated by professor Lillian Bevier. It is well worth watching.

View video

Among other things, I was taken by several things Robert Post had to say about a “presumptive all-inclusive approach” to protecting speech. At one point in those recorded remarks he said, “We’ve made the First Amendment virtually unavoidable as an issue in most forms of legal regulation.” If true, “we’ve constitutionalized” almost everything.

When I wrote to Post to learn more, he directed me to his provocative yet thoughtful essay entitled, “The Unfortunate Consequences of a Misguided Free Speech Principle.” That essay is part of a forthcoming symposium in the academic journal Daedalus called “The Future of Free Speech,” edited by professors Lee Bollinger and Geoffrey Stone. Here are a few excerpts from that essay:

Pessimism about the future of free speech

There is growing pessimism about the future of free speech in the United States. This is surely a troubling state of affairs. But it can be cured only if we first correctly diagnose its causes. There is a widespread tendency to conceptualize the problem as one of free speech. We imagine that the crisis would be resolved if only we could speak more freely. The thesis of this essay is this diagnosis puts the cart before the horse. The difficulty we face is not one of free speech, but of politics. Our capacity to speak has been disrupted because our politics has become diseased. We misconceive the problem because American culture is obsessed with what has become known as the free speech principle. It is a principle that is widely misunderstood. Our misconceptions are as deep as they are consequential.

More speech is not always better

Whatever freedom of speech might signify, it does not mean that unrestrained expression is inherently desirable. It does not mean that more speech is always better. One can see this clearly if one imagines the limit case. Those who cannot stop talking, who cannot exercise self-control, suffer from narcissism; they do not exemplify the value of free speech. Unrestrained expression may be appropriate for patients in primal scream therapy, but scarcely anywhere else.

The problem with an ‘abstract free speech principle’

The difficulty with an abstract free speech principle is that it purports to set the value of speech, as well as the goods obtainable by speech, independently of the social context of speech.

[ . . . ]

By focusing abstractly on speech instead of on the concrete purpose of this practice, our theories of free speech encourage us to forget that the fundamental point of public discourse is the political legitimation of the state. Our public discourse is successful when it produces a healthy public opinion capable of making state power answerable to politics. Our public discourse is not successful merely because every speaker expresses his thoughts in an uninhibited way. Standard theories of free speech mistake means for ends.

American courts have ignored something basic 

The appropriate balance between freedom and restraint must always be determined by the social practice within which communication is embedded. Public discourse is no exception to this generalization. At the present time American courts have lost track of this basic insight. They have developed strict transubstantive First Amendment doctrines that restrict speech regulation regardless of its context.

[ . . . ]

One of the very great dangers hanging over the future of free speech in the United States is the present tendency of the Supreme Court to extend to all speech the protections properly due only to public discourse, and thus to use the First Amendment to impose a libertarian, deregulatory agenda on ordinary state social and economic regulations. In the long run, the only sound defense against such abuse is to conceptualize the value of free speech squarely in terms of the discrete social practices that speech constitutes.

The future of a free speech illusion

We cannot now speak to each other because something has already gone violently wrong with our political community, which is to say with our antecedent commitments to a common political destiny. To conceptualize this problem as one of free speech is to imagine that the cure is simply to encourage more speech. It is to fantasize that the ties that bind us together will somehow be refreshed merely because we speak to each other more freely. But this is an illusion, a cruel mirage cast by the allure of a free speech principle that has somehow floated free from the social practices in which it should be embedded.

[ . . . ]

Our country is now so fragile, our democratic future so precarious, that every such misstep is fraught with danger. It is imperative that we arrive at a clear and accurate diagnosis of the disease that each day further corrodes our precious polity. It is time to open our eyes.

To be sure, there is more to professor Post’s thoughts as expressed in his essay. I thus encourage readers to read and wrestle with it when published. Until then, the abbreviated conceptual pricks offered above must suffice.

SCOTUS denies review in X/Twitter case

• Adi Robertson, “Supreme Court rejects decade-old Twitter First Amendment case,” The Verve (Jan. 8)

The Supreme Court has declined a long-running legal challenge from X Corp., formerly Twitter, over whether it can publicly reveal US government demands for user data. X Corp. v. Garland was on a list of denied petitions released this morning. That leaves X with a March 2023 ruling that the First Amendment doesn’t protect Twitter from limits on reporting national security demands — a ruling civil liberties organizations say sets a disappointingly low bar for censorship.

Twitter filed its original suit in 2014, the year after whistleblower Edward Snowden revealed details of extensive secret US telecoms surveillance. In the wake of those disclosures, social networks won the option to report how many demands agencies like the Federal Bureau of Investigation had made, but — thanks to government nondisclosure requirements — only in extraordinarily broad ranges. Twitter sought to publish the exact number of requests it received within a six-month period, arguing that redactions demanded by the FBI overstepped the First Amendment.

SCOTUS denies review in campaign ‘slogan statute’ case — Clement counsel of record

“The case is profoundly important on multiple levels. The restrictions here target core political speech ‘at an absolutely critical point’ . . . and sweep broadly.” — Paul Clement

The case is Mazo v. Way. The issue raised in it was whether a state that permits political candidates to engage in core political speech on the ballot may restrict that speech on the basis of content and viewpoint without satisfying strict scrutiny.

Paul Clement, a seasoned high Court advocate with an impressive record in First Amendment and other cases, was the counsel of record for the Petitioners. Here is how Mr. Clement summarized the case:

The decision below allows New Jersey to regulate core political speech at the election’s critical moment, and to do so on the basis of content and viewpoint while insulating entrenched political machines from serious primary challenges. New Jersey allows candidates in primary elections to engage in political speech on the ballot via six-word slogans next to their names. New Jersey was not obligated to allow candidates to communicate directly with voters at the very moment they cast their ballots. But having done so for the express purpose of allowing candidates to distinguish themselves from their primary opponents, the state could not dictate content or skew the debate. Undeterred, the state prohibits candidates from referencing the name of any individual anywhere in the world (e.g., “Never Trump” or “Evict Putin From Ukraine”) or any New Jersey corporation (e.g., “Higher Taxes for Merck & JnJ”) absent written consent.

Entrenched political machines have long exploited this law by using political associations incorporated in New Jersey to signal which candidates enjoy machine support in the primary. Tellingly, New Jersey drops the consent requirement altogether on the general-election ballot. The Third Circuit upheld this glaring free-speech violation only by bypassing traditional First Amendment scrutiny in favor of the amorphous Anderson-Burdick balancing test.

Related

Some five years ago we profiled Paul Clement as “Mr. First Amendment in the Roberts Court.” Thereafter, there was a First Amendment Salon with Mr. Clement and Floyd Abrams (see First Amendment News 268).

On the docket: Free speech case to watch

• Kalvis Golde, “When do legal observers at protests get First Amendment protection?” SCOTUS blog (Dec. 26, 2023)

On August 19, 2015, police shot and killed 18-year-old Mansur Ball-Bey while searching a house in St. Louis, Missouri. Shortly after, a large protest broke out on the streets of the Fountain Park neighborhood where the shooting took place. In the crowd were two attorneys, Sarah Molina and Christina Vogel, who attended the demonstration wearing green hats identifying them as legal observers for the National Lawyers Guild, a nationwide progressive legal organization.

Police ordered the protesters to disperse. When many refused, the officers began firing tear gas into the crowd. Molina and Vogel left and walked down a side street to Molina’s home. Shortly after, a Ballistic Engineered Armored Response — or BEAR —Truck turned down the same street. Police lobbed tear-gas canisters from the BEAR towards the two attorneys, who were standing in Molina’s front yard. They sought shelter beside a neighbor’s home.

Molina and Vogel went to federal court, arguing that both the city and the police officers who operated and directed the BEAR had retaliated against them in violation of their constitutional rights to free speech and assembly under the First Amendment. A federal district court in Missouri ruled that Molina and Vogel’s claims could go to a jury, rejecting the officers’ argument that they were entitled to qualified immunity. But before the case could go to trial, the officers appealed.

In a divided ruling, the U.S. Court of Appeals for the 8th Circuit reversed the district court’s ruling. The court of appeals explained that wearing the hats would only be speech, and therefore protected by the First Amendment, if Molina and Vogel had intended to convey a particular viewpoint and there was a good chance that anyone who saw them would understand the message. Although wearing hats emblazoned with the phrase “National Lawyers Guild Legal Observer” was a “close call,” the 8th Circuit reasoned, the two lawyers are not entitled to First Amendment protection because “not everyone would have understood the pro-protest message they were trying to convey.” 

The case is Molina v. Book. The issues raised in the case are: (1) Whether words printed on clothing are pure speech, and thus presumptively entitled to First Amendment protection, or whether they are protected only if they convey a “particularized message;” (2) whether, in light of important new historical evidence, this court should reconsider the doctrine of qualified immunity; and (3) whether the court of appeals erred in holding that a First Amendment right to unobtrusively observe and record police performing their duties in public is not clearly established.

Institute for Free Speech report on frivolous lawsuits

• “Report: Most Americans Now Have Good Free Speech Protection against Frivolous Lawsuits,” Institute for Free Speech (Nov. 2)

State laws protecting against costly, meritless, speech-suppressing lawsuits are growing and improving nationwide, now covering 33 states plus the District of Columbia. For the first time, most Americans have good protection. Yet, many states still have weak laws or no laws protecting their citizens from such suits, putting those Americans’ rights to speak or publish at significant risk.

Those are the key takeaways from the 2023 Anti-SLAPP Report Card, just released by the Institute for Free Speech.

The report details and rates state-by-state legal protections against “SLAPP” suits, which stands for “strategic litigation against public participation.” Unscrupulous plaintiffs abuse the legal system by using SLAPPs to prevent speakers from exercising their First Amendment rights, suppressing, punishing, or chilling speech that the plaintiff doesn’t like. Such a litigant typically claims that the speech constitutes defamation, suing speakers to harass, silence, or force them to bear significant litigation costs.

Anti-SLAPP statutes provide protections against these suits, but the strength of those protections varies widely from state to state. Thankfully, the Institute’s new report shows a trend toward more and stronger anti-SLAPP laws. Top-line points in the report include:

• For the first time, over half of the American population resides in a jurisdiction with a good anti-SLAPP law, meaning a grade of “B” or better on the Institute’s rating scale. 
• 79% of the American population is now covered by an anti-SLAPP law, a record high. 
• Just since the 2022 report, ten states have improved their anti-SLAPP grades.
• In all, 18 states now have some form of “A” grade.
• Two states plus D.C. fall in the “B” range.
• Four states have “C” grades Yet, there is much work left to be done. Nine states still have a grade in the “D” range, while 17 states receive “F” grades for having no anti-SLAPP law.

One key catalyst for improvement has been the respected and nonpartisan Uniform Law Commission creating its model anti-SLAPP law, the Uniform Public Expression Protection Act (UPEPA), in 2020. This model law has already helped lead to excellent new or revised laws in six states since the 2022 report. 

“The progress we’ve seen in recent years is a welcome trend, but there are still too many states in which plaintiffs with deep pockets can threaten critics with financial ruin if they don’t shut up,” said Institute for Free Speech President David Keating, also one of the report’s co-authors, along with Helen Knowles-Gardner and Dan Greenberg. “A strong anti-SLAPP law is one of the best and easiest protections for free speech states can provide. Every state should have one and should make sure that its law covers as much speech on matters of public concern as possible.”

New book explores First Amendment cases in the Trump era

• Sonja Grover, “The Democratic Rule of Law on Trial,” Routledge (2022)

This book examines selected high-profile U.S. First Amendment cases occurring during the Trump era as a vehicle for exploring a possible fundamental commonality in understanding the democratic rule of law globally. In each of these cases, the adjudicating body’s analytical legal strategy is discussed in terms of how it reinforces or detracts from the democratic rule of law. It was and continues to be highly internationally anticipated as to what legal examples are being set by this established democracy when confronted by legal contests between the former Trump administration and those alleging their rights were somehow violated by the executive of that time. Thus, the book is instructive for an international audience on the essential role of the courts in protecting democracy through providing, where supported by the law and the facts, a remedy for the aggrieved comparatively powerless.

Forthcoming book on Mill and free speech

• Eric T. Kasper and Troy A. Kozma, “The Supreme Court and the Philosopher: How John Stuart Mill Shaped US Free Speech Protections,” Northern Illinois University Press (Forthcoming, April 15)

The Supreme Court and the Philosopher illustrates how the modern US Supreme Court has increasingly adopted a view of the constitutional right to the freedom of expression that is classically liberal in nature, reflecting John Stuart Mill's reasoning in On Liberty.

 A landmark treatise outlining the merits of limiting governmental and social power over the individual, On Liberty advocates for a maximum protection of human freedom. 

Proceeding case by case and covering a wide array of issues, such as campaign finance, offensive speech, symbolic speech, commercial speech, online expression, and false statements, Eric T. Kasper and Troy A. Kozma show how the Supreme Court justices have struck down numerous laws for infringing on the freedom of expression.

Kasper and Kozma demonstrate how the adoption of Mill's version of free speech began with Justice Oliver Wendell Holmes Jr. more than a century ago and expanded over time to become the prevailing position of the Court today. The authors argue that this embrace of Mill's rationale has led to an unmistakable reorientation in the Court's understanding of free expression jurisprudence.

The Supreme Court and the Philosopher is the first book to comprehensively explore how the political philosophy of Mill has influenced the highest court in the land. In targeting the underlying philosophical reasons that explain why the modern Supreme Court renders its First Amendment decisions, this book is particularly timely, as the issues of censorship and freedom of expression are debated in the public square today.

More in the news

• “Judge dismisses Notre Dame professor’s defamation lawsuit against student newspaper,” Free Speech Center (Jan. 9)
• Eugene Volokh, “Eighth Circuit Upholds Ban on Material Lies on Certain Employment Applications, When Speaker Intends to Cause Injury,” The Volokh Conspiracy (Jan. 8)
• Eugene Volokh, “Eighth Circuit Upholds Iowa Law Increasing Trespass Penalties When Trespasser Uses Recording Device,” The Volokh Conspiracy (Jan.8)
• “Newspaper Sues City for Police Records, Mayor Directs ‘Immediate Steps’ for Response,” First Amendment Watch (Jan. 8)
• “Big Oil is Weaponizing the First Amendment,” The Lever (Jan. 8)
• Charles J. Russo, “School board members could soon be blocked from blocking people − and deleting their comments − on social media,” The Free Speech Center (Jan. 5)
• Greg Wehner, “Pennsylvania man takes local officials to court for First Amendment right infringement over front yard sign,” Fox News (Dec. 13)
• Lynn Greenky, “Why university presidents find it hard to punish advocating genocide − college free speech codes are both more and less protective than the First Amendment,” The Conversation (Dec. 12)

2022-2023 SCOTUS term: Free expression and related cases

Review granted

• Vidal v. Elster (argued Nov. 1)
• O’Connor-Ratcliff v. Garnier (argued Oct. 31)
• Moody v. NetChoice, LLC / NetChoice, LLC v. Paxton / NetChoice, LLC v. Moody (to be argued Feb. 26)
• National Rifle Association of America v. Vullo

Pending petitions

• Molina v. Book
• Pierre v. Attorney Grievance Commission of Maryland
• Porter v. Martinez
• Brokamp v. James
• Porter v. Board of Trustees of North Carolina State University
• Alaska v. Alaska State Employees Association
• Speech First, Inc. v. Sands
• O’Handley v. Weber

State action

• Lindke v. Freed (argued Oct. 31)

Review denied

• X Corp. v. Garland
• Tingley v. Ferguson (Justice Kavanaugh would grant the petition for a writ of certiorari. Justice Thomas, dissenting from the denial of certiorari. (separate opinion) Justice Alito, dissenting from the denial of certiorari. (separate opinion)
• Jarrett v. Service Employees International Union Local 503, et al
• Sharpe v. Winterville Police Dept.
• Winterville Police Department v. Sharpe
• Stein v. People for the Ethical Treatment of Animals, Inc., et al.
• Blankenship v. NBCUniversal, LLC
• Center for Medical Progress v. National Abortion Federation
• Frese v. Formella
• Mazo v. Way

Free speech related

• Miller v. United States (pending) (statutory interpretation of 18 U.S.C. § 1512(c) advocacy, lobbying and protest in connection with congressional proceedings) // See also Fischer v. United States

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This article is part of First Amendment News, an editorially independent publication edited by 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 Mr. Collins.