Thoughts on realism and free speech: The ‘Wu Effect’ and the continuing liberal drift away from the First Amendment — First Amendment News 431

For free speech realists, there is a cautionary maxim that must forever remain on the lips of the living: Free speech for me but not for thee. Of course, that is the title of the late Nat Hentoff’s all-too-important book released some three decades ago. 

Hentoff’s point is a simple but critical one: We defend free speech when it suits us but deny it when it offends us. Ironically, the idealized purpose of the First Amendment was to upturn that all-too-human tendency. Yet even in its formative years, that Madisonian purpose was contravened with wild abandon as evidenced by the Sedition Act of 1798.  

If one is a realist (and not a starry-eyed idealist or a self-righteous hypocrite), one comprehends soon enough that the toleration envisioned by the First Amendment is an endless Sisyphean struggle. To be sure, this does not mean that the struggle is not worth the effort. Then again, a dollop of realism never hurts if only because it keeps us in check with why people act as they do.

The subtitle of Nat’s book said it all: “How the American Left and Right Relentlessly Censor Each Other.” The converse was also true: Conservatives (e.g., the Fox crowd) champion free speech when it suits them (e.g., attacking Tim Wu, a “Former Biden adviser”) yet they remain silent, or largely so, on matters such as FIRE’s recent petition to President Biden to posthumously pardon D.M. Bennett, a free speech victim of the Comstock Act. Meanwhile, liberals take strong issue with Donald Trump’s First Amendment record, yet MSNBC types either have relatively little to say about, or even support, some of the more recent gag orders placed on Trump. 

All of this brings me to Timothy Wu’s recent op-ed in The New York Times, “The First Amendment is out of Control.” It is yet the latest example of an ongoing liberal drift away from the First Amendment, perhaps best traceable to the Court’s campaign finance and commercial speech cases — the ones that drew the intellectual ire of free speech liberals such as the late C. Edwin Baker and Steven Shiffrin. That liberal shift came when there was a renewed conservative interest in free speech, especially when it came to money in politics and speech for profit. 

Then there is the modern ACLU which has experienced its own challenges in navigating the free speech waters: On the one hand, there was its libertarian role in the seminal campaign finance case, Buckley v. Valeo (1976). On the other hand, there was its defense of buffer zones around abortion clinics in the case of McCullen v. Coakley (2014), which it lost 9-0. (Let us not forget the anti-pornography campaign waged by Catharine MacKinnon and Andrea Dworkin, which attracted radical feminists and Puritan conservatives such as those affiliated with the Morality in the Media group.)  

To return to professor Wu, here is a liberal who envisions a certain kind of progressive free speech principle: 

The First Amendment was a tool that helped the underdog. But sometime in this century, the judiciary lost the plot. Judges have transmuted a constitutional provision meant to protect unpopular opinion into an all-purpose tool of legislative nullification that now mostly protects corporate interests.

In the same spirit, he adds:

In our era, the power of private entities has grown to rival that of nation-states. Most powerful are the Big Tech platforms, which in their cocoonlike encompassing of humanity have grown to control commerce and speech in ways that would make totalitarian states jealous. . .  . Free speech rights have been hijacked to suppress the sovereignty of humans in favor of the power of companies and machines.

The ‘Wu Effect’

In other words, when free speech conflicts with his liberal values, it need not be tolerated. While such a stance may “shock” First Amendment defenders, it would not surprise free speech realists who understand human nature even if they object to how it sometimes plays out. Speaking frankly: As long as free speech rulings continue to collide with other values championed by liberals, the “Wu Effect” will continue, be it about hate speech or corporate power, among other things.

Of course, the “Wu Effect” cuts both ways. After all, how many conservative media outlets or groups oppose those ever-growing attempts to remove books from public school libraries based on constitutionally suspect guidance? Or how many take exception to laws such as a Texas one that bars adults access to protected sexual materials? — the law was upheld by the conservative judges on the Fifth Circuit.  

Let us not speak falsely now. The “Wu Effect” represents a willingness to oppose free speech values when they clash with other values held dear, be they liberal or conservative. We champion free speech when it serves us and combat it when it threatens us. While the toleration demanded by First Amendment values is vital, it can also cut against the grain of human nature. Perhaps that’s why Justice Holmes (a realist even if a dark one) once said:

[O]ur Constitution . . . is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.    

Equally important, Holmes realized that experiments sometimes fail, and the old Civil War veteran was fine with that as evidenced by his dissent in Gitlow v. New York:

If, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.

In sum, and by way of a realist take: When it comes to experimenting with free speech, the “Wu Effect” renders one risk-averse, no matter what ideological flag they fly. Since self-interest typically overrides toleration, free speech advocates need to develop a sociology of free expression designed to encourage behavioral changes likely to foster toleration.   

New cert grant: Challenge to Texas verification law for access to sexual materials 

The case is Free Speech Coalition, Inc., et al., v. Paxton. The issue raised in the case is whether the court of appeals erred as a matter of law in applying rational-basis review, instead of strict scrutiny, to a law burdening adults’ access to protected speech. In his cert petition, Derek L. Shaffer (counsel of record) argues:

Americans hold a wide range of views about sexual content online. Some view it as offensive or indecent; for others, it is artistic, informative, or even essential to important parts of life. Consistent with the fundamental First Amendment principle that “esthetic and moral judgments about art and literature … are for the individual to make, not for the Government to decree,” this Court has long treated non-obscene sexual content as constitutionally protected. United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 818 (2000). And while the Court has recognized that legislatures may limit minors’ access to sexual material reasonably determined to be harmful to them, the Court has held repeatedly that a burden on adults’ access to that content “can stand only if it satisfies strict scrutiny. ” [. . . . ]

The decision below openly defies that precedent and “begs for resolution by the high court.” App. 163a (Higginbotham, J., dissenting). The law at issue, Texas H.B. 1181 (“the Act”), requires any website that publishes content one-third or more of which is “harmful to minors”—a broad category that includes virtually any salacious content—to verify the age of every user before permitting access. App. 171a. While purportedly seeking to limit minors’ access to online sexual content, the Act imposes significant burdens on adults’ access to constitutionally protected expression. Of central relevance here, it requires every user, including adults, to submit personally identifying information to access sensitive, intimate content over a medium—the Internet—that poses unique security and privacy concerns. The district court rightly applied strict scrutiny to the age-verification provision and entered a preliminary injunction after finding it likely would not meet that standard. App. 107a-136a. But a divided Fifth Circuit panel vacated that injunction, reasoning that the age-verification provision’s burdens on adults’ First Amendment rights are subject to only rational-basis review.

Related

• Amicus Brief of Foundation for Individual Rights and Expression (Robert Corn-Revere, counsel of record)

In a string of rulings issued a generation ago, this Court made clear—repeatedly—that when the government seeks to prevent minors from accessing lawful sexual content, “the means must be carefully tailored to achieve those ends.” Sable Commc’ns of Cal. v. FCC, 492 U.S. 115, 126 (1989). Imposing a “burden on adult speech is unacceptable,” this Court reasoned, “if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.” Reno v. ACLU, 521 U.S. 844, 874 (1997) [. . . .]

This Court’s conclusion was unmistakable: Statutory burdens on adult access to adult content must satisfy strict scrutiny. And that conclusion makes the same intuitive sense today as it did twenty years ago. After all, a statute singling out lawful sexual content is a content-based restriction on speech. As such, it is “presumed invalid” because of its “constant potential to be a repressive force in the lives and thoughts of a free people.” Ashcroft, 542 U.S. at 660. A content-based speech restriction poses such a grave threat to expressive rights that “it can stand only if it satisfies strict scrutiny.” Playboy, 529 U.S. at 813. 

But the Fifth Circuit disagrees. Contrary to this Court’s well-settled precedent—and in a sharp split with other circuits—a Fifth Circuit panel somehow held that a Texas law that significantly burdens adult access to lawful adult content warranted only rational-basis review. Relying on a strained reinvention of this Court’s ruling in Ginsberg v. New York, 390 U.S. 629 (1968), the panel effectively read Sable, Reno, Playboy, and Ashcroft out of existence. By wishing away the constitutional constraints established in those cases, the Fifth Circuit’s decision grants Texas a free hand to force adult Texans to show their papers and surrender their privacy simply to access content protected by the First Amendment.

Hasen on Moody v. NetChoice

• Richard L. Hasen, “The First Amendment Just Dodged an Enormous Bullet at the Supreme Court,” Slate (July 1)

To Justice Kagan, social media companies in moderating content were just like newspapers. She said that curating content is expressive activity protected by the First Amendment and that includes the decision to exclude content and that this principle is true even if most content is allowed and just a little bit is excluded. Further, when it comes to laws regulating speech, “the government cannot get its way just by asserting an interest in improving, or better balancing, the marketplace of ideas.” Were the rule otherwise, Kagan asserted, the platforms could be forced by Texas law to carry bad content including posts that “support Nazi ideology; advocate for terrorism; espouse racism, Islamophobia, or anti-Semitism; glorify rape or other gender-based violence; encourage teenage suicide and self-injury; discourage the use of vaccines; advise phony treatments for diseases; [and] advance false claims of election fraud.”

Moody might seem like an unremarkable decision, consistent with long-standing First Amendment principles. And indeed, in an amicus brief in the cases that I filed with political scientist Brendan Nyhan and journalism professor Amy Wilentz and co-authored with Nat Bach and his team at Manatt Phelps, we argued that Tornillo is the right analogy.

But in endorsing this view of the First Amendment, the majority brushed aside a major argument made by Justice Clarence Thomas in earlier cases and by First Amendment scholar Eugene Volokh that social media companies should be treated differently because they function like “common carriers,” such as the phone company. Just like Verizon cannot deny you a phone because of what you might say using it, the argument is that Facebook had to be open to everyone’s view.  

The court gives the argument the back of its hand, never even addressing it directly; Alito says the majority “brushes aside the argument without adequate consideration.” Thomas says the argument should still be pursued in the lower courts, but it’s squarely inconsistent with what the Kagan majority says in its dicta. Volokh too sees many unanswered questions and thinks there is still a chance for some parts of these laws to be upheld when the cases get back to the lower court.  

Related

• Eugene Volokh and Jane Bambauer, “Emergency Podcast: The Supreme Court’s Social Media Cases,” “Free Speech Unmuted,” Hoover Institution (July 3)

Corn-Revere on Moody v. NetChoice

• Robert Corn-Revere, “Here’s how the Supreme Court got the big free speech stuff right,” Fox News (July 8)

Justice Elena Kagan’s majority opinion in Moody v. NetChoice (decided with NetChoice v. Paxton), made clear that the First Amendment "does not go on leave when social media are involved."    

What does that mean? Kagan and a solid majority laid down the basic First Amendment principles that will govern the cases going forward in terms so plain that not even the Fifth Circuit can get it wrong the next time around.

[. . . .]

As FIRE put it in our amicus brief to the Supreme Court, the Fifth Circuit’s "error is so stark, so obvious, and so flamboyantly wrong," that Judge Leslie Southwick, who dissented, "was able to sum up the problem in eight words: ‘The majority’s perceived censorship is my perceived editing.’"

The court made clear, as it has in the past, that "whatever the challenges of applying the Constitution to ever-advancing technology, the basic principles" of the First Amendment "do not vary."   

Social media may be relatively new and novel media of communication, but "the main problem in this case – and the inquiry it calls for – is not new." Bottom line, the First Amendment bars the government from "tilting public debate in a preferred direction."

It was necessary to provide such direct guidance, Kagan explained, "to ensure that the facial analysis proceeds on the right path in the courts below" and that the "need is especially stark for the Fifth Circuit."  Otherwise, if she said nothing about the Fifth Circuit’s fundamental errors, "the court would presumably repeat them when it next considers NetChoice’s challenge."

Hunter Biden sues Fox News under New York’s revenge porn law

• “Hunter Biden Sues Fox News Over Explicit Images Featured in a Streaming Series,” First Amendment Watch (July 2)

Hunter Biden accused Fox News in a lawsuit of unlawfully publishing explicit images of him as part of a streaming series.

The president’s son filed the lawsuit Sunday in state court in Manhattan over images in “The Trial of Hunter Biden,” which debuted on the streaming service Fox Nation in 2022. The series features a “mock trial” of Hunter Biden on charges he has not faced and it includes images of Biden in the nude and engaged in sex acts, according to the lawsuit.

The lawsuit claims the dissemination of intimate images without his consent violated New York’s so-called revenge porn law.

“Fox published and disseminated these Intimate Images to its vast audience of millions as part of an entertainment program in order to humiliate, harass, annoy and alarm Mr. Biden and to tarnish his reputation,” according to the lawsuit.

A Fox News spokesperson called it an “entirely politically motivated lawsuit” that was “devoid of merit” in an emailed statement. The statement noted that attorneys for Biden sent them a letter demanding its removal from streaming platforms in April 2024.

“The program was removed within days of the letter, in an abundance of caution, but Hunter Biden is a public figure who has been the subject of multiple investigations and is now a convicted felon. Consistent with the First Amendment, Fox News has accurately covered the newsworthy events of Mr. Biden’s own making, and we look forward to vindicating our rights in court,” according to the emailed statement.

New scholarly article on 303 Creative v. Elenis

• R. George Wright and Chris Rowley, “Creative Jurisprudence: The Paradox of Free Speech Absolutism,” University of Colorado Law Review (2024)

Governments often seek to restrict speech on the basis of its content, navigating the ever-complex terrain between constitutional freedoms and regulatory interests. While the United States judiciary has historically endeavored to balance competing constitutional questions and government interests when scrutinizing content-based speech regulations, recent trends signify a troubling shift. The judiciary has recently embraced what this Article refers to as free speech absolutism, whereby it side-steps the longstanding, intricate process of balancing constitutional values and public interests, in favor of an unequivocal endorsement of speech rights. This simplified judicial strategy proceeds first with an acknowledgment of the paramount importance of free speech, then shuns any form of judicial scrutiny or balancing test, instead ruling categorically in favor of speech-claimants. Such a shift represents a departure from traditional First Amendment jurisprudence, effectively ignoring tests that weigh the right to free expression against other critical constitutional values, including equality, equal protection, and non-discrimination. 

This Article critically examines the choices by the judiciary, specifically the United States Supreme Court in 303 Creative v. Elenis, to adopt this free speech absolutist position. It documents the evolution of this trend, critiques its underpinnings, and proposes refinements that, if implemented, would help ensure the Court’s approach to content-based speech regulation is principled, sighted for valid government interests, and attuned to a necessary consideration of the broader spectrum of constitutional values. By doing so, it seeks to reinvigorate a more balanced and comprehensive judicial methodology that recognizes the multifaceted nature of constitutional rights and the im- importance of their equitable application. 

‘So to Speak’ podcast: FIRE’s review of last term  

• “The First Amendment at the Supreme Court,” FIRE (July 3)

The Supreme Court term is over. We review its First Amendment cases. Joining the show are FIRE Chief Counsel Bob Corn-Revere, FIRE General Counsel Ronnie London, and Institute for Justice Deputy Litigation Director Robert McNamara.

View video

In the news

• Matt Egan, “Columbia removes three deans from power for ‘very troubling’ antisemitic text messages,” CNN (July 8)
• Eugene Volokh, “Court Rejects Allegedly Anti-Zionist Professors' Claims That University Should Have Stopped Jewish Professors from Filing Religious Discrimination Complaints Against Them,” The Volokh Conspiracy (July 8)
• Travis Loller, “Judge says Nashville school shooter’s writings can’t be released as victims’ families have copyright,” Free Speech Center (July 8)
• Liesel Nygrad, “Bourne school board member fired for her TikToks loses First Amendment federal appeal,” Mass Live (July 7)
• Matt Lamb, “Chevron reversal could help this radio host defend his First Amendment rights,” Washington Examiner (July 5)
• Angel Eduardo and Ronnie London, “In a blockbuster First Amendment term, the Supreme Court got the big stuff right,” FIRE (July 5)
• Eugene Volokh, “Court Vacates ‘Stalking … Protective Order’ Entered Against Critic of Elected Official,” The Volokh Conspiracy (July 5)
• Gary D. Robertson, “Judge upholds North Carolina’s anti-rioting law, dismisses civil liberties suit,” Associated Press / Free Speech Center (July 2)

2023-2024 SCOTUS term: Free expression and related cases

Cases decided

• O’Connor-Ratcliff v. Garnier 
• Speech First, Inc. v. Sands (certiorari granted, judgment re the bias policy claims vacated, and case remanded to the Court of Appeals for the 4th Circuit with instructions to dismiss those claims as moot) (Thomas & Alito, dissenting)
• National Rifle Association of America v. Vullo 
• Vidal v. Elster
• Gonzalez v. Trevino (vacated and remanded, per curiam with Alito, Kavanaugh, and Jackson (joined by Sotomayor) concurring in separate opinions and Thomas dissenting)
• Murthy v Missouri (decided on Art. III standing grounds)
• Moody v. NetChoice, LLC & NetChoice, LLC v. Paxton 

Review granted

• Free Speech Coalition, Inc., et al., v. Paxton
• Vidal v. Elster (argued Nov. 1)
• O’Connor-Ratcliff v. Garnier (decided March 15, see below under “State Action”)
• Moody v. NetChoice, LLC & NetChoice, LLC v. Paxton  (argued: Feb. 26, 2024)
• National Rifle Association of America v. Vullo (argument: March 18, 2024)
• Murthy v Missouri (argument: March 18, 2024)
• Gonzalez v. Trevino (argued March 20, 2024)

Pending petitions

• Henderson v. Texas
• Murphy v. Schmitt
• Villarreal  v. Alaniz 
• In Re First Choice Women's Resource Centers, Inc.
• Pierre v. Attorney Grievance Commission of Maryland
• No on E, San Franciscans Opposing the Affordable Care Housing Production Act, et al. v. Chiu
• Pierre v. Attorney Grievance Commission of Maryland

State action

• Lindke v. Freed (Barrett, J., 9-0: “The state-action doctrine requires Lindke to show that Freed (1) had actual authority to speak on behalf of the State on a particular matter, and (2) purported to exercise that authority in the relevant posts. To the extent that this test differs from the one applied by the Sixth Circuit, we vacate its judgment and remand the case for further proceedings consistent with this opinion.”)
• O’Connor-Ratcliff v. Garnier (Per Curiam: 9-0: “We granted certiorari in this case and in Lindke v. Freed (2024), to resolve a Circuit split about how to identify state action in the context of public officials using social media. Because the approach that the Ninth Circuit applied is different from the one we have elaborated in Lindke, we vacate the judgment below and remand the case to the Ninth Circuit for further proceedings consistent with our opinion in that case.”)

Review denied

• O’Handley v. Weber
• Frank v. Lee
• Mckesson v. Doe (Separate statement by Sotomayor, J.)
• Brokamp v. James
• Griffin v. HM Florida-ORL (application for stay denied)
• M. C. v. Indiana Department of Child Services
• Spectrum et al v. Wendler
• Porter v. Martinez
• Molina v. Book
• Porter v. Board of Trustees of North Carolina State University
• NetChoice, LLC v. Moody
• Alaska v. Alaska State Employees Association
• 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) 
• Fischer v. United States (vacated and remanded, 6-3 per Roberts with Barrett, Sotomayor and Kagan dissenting: To prove a violation of §1512(c)(2), the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or other things used in an official proceeding, or attempted to do so.)

Last scheduled FAN

FAN 430: “Reflecting on the 2023-24 SCOTUS term: More bust than bang”

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 Mr. Collins.