Values Lady: give up your vows! The death of normative theories of free speech – First Amendment News 408

These days it’s clear that Thomas Emerson and his ideas of moving toward a “general theory of the First Amendment” have gone the way of phone booths. The notion of linking truth to some elevated First Amendment principle is absurd. Does anyone with a realist mind give even fleeting credence to John Milton’s 1644 claim in “Areopagitica” that truth might ultimately prevail in the marketplace? And if we are to be honest, does the notion of tolerating all kinds of speech in the service of helping to “shape the intellectual character of . . . society” not seem wildly bizarre?

The fact is, the “N” word in modern America’s free speech culture is “normative.”

I mean, in a culture where amusement, commerce, and technological advancements in communication govern the free speech workings of a culture, who can place any cerebral stock in the thinking of Milton and his followers?

Let us not speak falsely: “Equality” is no longer a “central principle” and the romantic ideal of thinking of free speech in terms of any prescriptive notion of “participatory democracy” is a foreign concept in today’s doctrinal realm.

Goodbye to Dr. Alexander Meiklejohn and his idealistic self-government/civic republican notions of freedom of expression. So too with Cass Sunstein’s Platonic call for a First Amendment rooted in “democratic deliberation” and C. Edwin Baker’s “self-realization” theory of the First Amendment that had no room for realizing the profits of commercial speech. Then there is Robert Bork’s constitutionally heretical plea for “neutral principles” to protect pure political speech to the exclusion of other categories of speech. 

Likewise, what are we to make of Vincent Blasi’s optimistic arguments about the “instrumental” value of protecting “expressive liberty” in the service of our “collective well-being, social as well as political”? Even theories of definitional or ad-hoc balancing have lost much of their staying power.

As Frederick Schauer opined some four decades ago: “what is analytically necessary for a satisfactory theory of the First Amendment is unattainable given the existing state of the world.” In that world where free speech is ever more presumptively protected, Holmes’ 1919 admonition that the First Amendment was not “intended to give immunity for every possible use of language” seems rather antiquated. Similarly, Lee Bollinger’s 1986 warning that there is a dangerous tendency to “understate the risks and harms of speech and to overstate its benefits” also seems archaic . . . and maybe even smacks of some censorial tendency.

Who can forget Voltaire’s bold declaration in favor of free speech? “I disapprove of what you say but I will defend to the death your right to say it.” (Spoiler alert: He never said that! What he said was: “What a fuss over an omelet.” Evelyn Beatrice Hall invented Voltaire’s famous quote.) Then again, when normative principles are cast aside, does it matter whether one of the paters of the Enlightenment actually said that?

To hell with all such high-heaven theories of free speech. Ours, after all, is an uninhibited doctrinal world where false speech flourishes, hate speech thrives, threatening expression surges, the money-is-speech principle proves politically profitable, and near-total toleration is the constitutional measure.

Meanwhile, Sisyphus savors his free speech freedom — oh, the joys of emancipation from norms!

New censorial vision of free speech takes hold on college campuses

• “Tension Between Free Speech and Inclusivity on College Campuses Simmers,” First Amendment Watch (Jan. 16)

On college campuses, a newer version of free speech is emerging as young generations redraw the line where expression crosses into harm. There’s a wave of students who have no tolerance for speech that marginalizes. They draw lines around language that leads to damage, either psychological or physical. Their judgments weigh the Constitution but also incorporate histories of privilege and oppression.

“We believe in a diverse set of thoughts,” says Kaleb Autman, a Black student at the University of Wisconsin whose group is demanding a zero-tolerance policy on hate speech. “But when your thought is predicated on the subjugation of me or my people, or to a generalized people, then we have problems.”

NEW GENERATION, EVOLVING IDEAS

A new understanding of free speech has been evolving on college campuses for years, marked by the introduction of safe spaces, trigger warnings and a rise in disruptive protests that silence speakers with offensive views. But the Israel-Hamas war and its rhetoric appear to be widening the fault lines and pushing students to demand that university leaders take a side between clashing versions of free speech.

It came to a head in December when leaders of three elite colleges were called to Congress to testify on campus antisemitism. With legalistic flourish, they took a stand for free expression as the Constitution and decades of case law define it, then faced weeks of backlash as opponents called them soft on antisemitism.

Forthcoming book condemns hate speech doctrine

• W. Wat Hopkins, “Hate Speech Is Not Free: The Case Against First Amendment Protection” (Rowman & Littlefield, Feb. 20)

Hate speech has been a societal problem for many years and has seen a resurgence recently alongside political divisiveness and technologies that ease and accelerate the spread of messages. Methods to protect individuals and groups from hate speech have eluded lawmakers as the call for restrictions or bans on such speech are confronted by claims of First Amendment protection. Problematic speech, the argument goes, should be confronted by more speech rather than by restriction.

Debate over the extent of First Amendment protection is based on two bodies of law—the practical, precedent determined by the Supreme Court, and the theoretical framework of First Amendment jurisprudence. In Hate Speech is Not Free: The Case Against Constitutional Protection, W. Wat Hopkins argues that the prevailing thought that hate is protected by both case law and theory is incorrect. 

Within the Supreme Court’s established hierarchy of speech protection, hate speech falls to the lowest level, deserving no protection as it does not advance ideas containing social value. Ultimately, the Supreme Court’s cases addressing protected and unprotected speech set forth a clear rationale for excommunicating hate speech from First Amendment protection.

Advance Praise

“An in-depth critique of hate speech and its proper place within First Amendment law and 21st century America is sorely needed. In this book, Wat Hopkins tackles the challenge with intellect and passion, offering compelling arguments and conclusions that significantly contribute to the debate on this vitality important issue.”

— Joseph Russomanno, Walter Cronkite School of Journalism and Mass Communication, Arizona State University

“Grounding his timely work in judicial opinions, academic scholarship and free-speech theory, Hopkins makes an engaging, well-researched and compelling argument why First Amendment protection for hate speech is wrongheaded. As he crisply encapsulates it, such destructive expression ‘is harmful, without value, and does not constitute ideas for First Amendment purposes.’”

— Clay Calvert, nonresident senior fellow, American Enterprise Institute

“What a lucid and compelling clarion call to the US Supreme Court: Unprotect hate speech. Hopkins’ book couldn't be more timely and relevant in the Internet 20th century. It cogently clarifies why and how hate speech has no place in First Amendment law. Hopkins’ incisive analysis of key caselaw and free speech theories is a scholarly tour de force.”

— Kyo Ho Youm, University of Oregon

Eleventh Circuit rules against DeSantis in suspension of state prosecutor case

• Alexandra Berzon and Ken Bensinger, “Appeals Court Finds DeSantis Violated Prosecutor’s First Amendment Rights,” The New York Times (Jan. 10)

Dealing a blow to Gov. Ron DeSantis of Florida, a federal court of appeals on Wednesday ruled that he had violated First Amendment protections when he suspended a progressive state prosecutor for political gain.

The ruling, by the U.S. Court of Appeals for the 11th Circuit, undercut Mr. DeSantis on an episode he has made a key credential in his presidential campaign. Mr. DeSantis forced Andrew Warren, a Democratic state attorney representing the Tampa area, out of office in August 2022 after he had spoken out against Republican policies on abortion and transgender rights.

On the campaign trail, Mr. DeSantis has used the suspension of Mr. Warren, who had been elected to his post twice, to illustrate his strong-arm approach to progressive public officials who push what he calls a “woke” agenda.

The court on Wednesday vacated a decision from a federal judge in Tallahassee in January 2023 not to reinstate Mr. Warren, who has fought the suspension in court, arguing that it violated his First Amendment right to free speech. Now, that judge must reconsider his ruling.

Related

• “Florida DA prevails (for the moment) in dispute with DeSantis,” PrawfsBlawg (Jan.14)

FIRE sides with ACLU in support of NRA in ‘informal censorship’ First Amendment case

• Joshua House, “FIRE sides with NRA, ACLU in First Amendment Supreme Court case,” FIRE (Jan. 16)

In a new friend-of-the-court filing, FIRE asks the Supreme Court to rule that government officials cannot censor protected speech by punishing speakers’ associates.

The First Amendment does not let officials punish people merely because they maintain or espouse certain views. Yet government censors are not so easily dissuaded. Officials often try to ban speech indirectly, threatening to impose costly investigations on speakers, punish their business associates, or remove legal protections. Is that constitutional? No, it is not.

This year, the Supreme Court will have a chance to reaffirm that the First Amendment bars informal or indirect censorship just as it does laws that restrict speech. 

The National Rifle Association sued New York state officials who, it alleges, threatened financial institutions that continued to do business with it. The officials did so, the NRA argues, because they disapproved of the NRA’s political message. After the United States Court of Appeals for the Second Circuit ruled for the government officials, the United States Supreme Court agreed to hear the case. The NRA is represented before the Court by the American Civil Liberties Union.

Today FIRE — joined by the National Coalition Against Censorship, the Rutherford Institute, and the First Amendment Lawyers Association — filed an amicus curiae (‘friend-of-the-court’) brief in support of the NRA. FIRE’s brief argues that the First Amendment’s formal legal protections count for little if public officials can evade them by simply couching their censorship demands as veiled threats and vague demands for cooperation. The facts alleged by the NRA demonstrate that New York officials were trying to indirectly censor speech that they could not punish directly.

Related

• National Rifle Association of America v. Vullo (Eugene Volokh, Counsel of Record)

Amicus brief filed in Second Circuit on behalf of Volokh in ‘vote-by-text’ case

• Eugene Volokh, “Amicus Brief Related to the Mackey ‘Vote-by-Text’ Meme Prosecution,” The Volokh Conspiracy (Jan. 16)

Russell B. Balikian & Cody M. Poplin (Gibson, Dunn & Crutcher LLP) just filed this brief on my behalf Friday; they drafted it based generally on some thoughts that I'd expressed in this 2021 Tablet article. Here's the substance of the brief, in case any of you folks are interested:

INTRODUCTION

The First Amendment likely tolerates narrow and clearly defined bans on disseminating knowing lies regarding election procedures—that is, false statements of fact (not opinion, humor, parody, hyperbole, or the like) made with actual malice regarding the time or place of an election, or the procedures one must follow to lawfully cast a valid vote. But Congress has not enacted any federal law that clearly criminalizes such conduct. While some states have passed legislation that comes close to the mark, Congress has debated and repeatedly failed to enact similar statutes. See infra, at 12-13.

Despite the absence of a federal statute specifically on point, the government prosecuted Douglass Mackey for posting messages on Twitter relating to the 2016 presidential election. To achieve that result, the government repurposed 18 U.S.C. § 241, a statute enacted in 1870 to target violence and intimidation by the Ku Klux Klan during Reconstruction. United States v. Price, 383 U.S. 787, 800-05 (1966). Section 241 does not specifically address false factual statements about the mechanics of voting, or even speech about elections. Instead, it broadly prohibits “conspir[ing] to injure, oppress, threaten, or intimidate any person … in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.” The district court nonetheless construed the term “injure” to encompass any “conduct that makes exercising the right to vote more difficult, or in some way prevents voters from exercising their right to vote.” United States v. Mackey, 652 F. Supp. 3d 309, 337 (E.D.N.Y. 2023). It held that Mackey had “fair warning” that this 1870 statute prohibited posting tweets suggesting that people could “vote by text.” 

First Amendment Watch launches Tuesday’s weekly Q&A series

• Susanna Granieri, “FIRE’s Will Creeley on Campus Speech Controversies Amid Israel-Hamas War,” First Amendment Watch (Jan. 16)

Since the beginning of the Israel-Hamas war on Oct. 7, colleges and universities across the country have been embroiled in conflict, with demonstrations from pro-Palestinian and pro-Israeli groups bringing tensions on campus to new heights. Some school leaders have been accused of failing to adequately protect their students from bigotry, highlighting conflicts between free speech principles and university codes of conduct.

Following a December congressional hearing, the presidents of Harvard University, the University of Pennsylvania and the Massachusetts Institute of Technology faced national backlash over their testimonies, in which they did not unequivocally state whether calls for the genocide of Jews would violate their universities’ codes of conduct. UPenn President Liz Magill resigned days after her testimony. Harvard President Claudine Gay also ultimately resigned from her post, after the controversy brought increased scrutiny to her academic record and accusations of plagiarism.

In an interview with First Amendment Watch, First Amendment expert Will Creeley, legal director at the Foundation for Individual Rights and Expression (FIRE), discussed the issues of law and ethics behind the controversy, outlined where the lines around protected speech on campus should be drawn, and argued that pushing unpopular or offensive speech underground could cause more harm than good. [interview follows]

The AI ‘George Carlin’ takes the virtual stage

• Michael Zee, “AI-Generated George Carlin Drops Comedy Special That Daughter Speaks Out Against: ‘No Machine Will Ever Replace His Genius’,” Variety (Jan. 10)

More than 15 years after his death, stand-up comedian George Carlin has been brought back to life in an artificial intelligence-generated special called “George Carlin: I’m Glad I’m Dead.” 

The hour-long special, which dropped on Tuesday, comes from Dudesy, a comedy AI that hosts a podcast and YouTube show with “Mad TV” alum Will Sasso and podcaster Chad Kultgen. 

“I just want to let you know very clearly that what you’re about to hear is not George Carlin. It’s my impersonation of George Carlin that I developed in the exact same way a human impressionist would,” Dudesy said at the beginning of the special. “I listened to all of George Carlin’s material and did my best to imitate his voice, cadence and attitude as well as the subject matter I think would have interested him today. So think of it like Andy Kaufman impersonating Elvis or like Will Ferrell impersonating George W. Bush.”

[ . . . ]

Kelly Carlin, the late stand-up comedian’s daughter, posted a statement on X/Twitter [. . .] regarding the AI-generated special. “My dad spent a lifetime perfecting his craft from his very human life, brain and imagination. No machine will ever replace his genius. These AI generated products are clever attempts at trying to recreate a mind that will never exist again,” she wrote. “Let’s let the artist’s work speak for itself. Humans are so afraid of the void that we can’t let what has fallen into it stay there.”

Forthcoming book on campaign finance disclosures

• Abby K. Wood, “Disclosing Campaign Financing,” Oxford Handbook of American Election (forthcoming)

Political committees must report the sources of their contributions and the recipients of their expenditures. Government agencies then make some of that information publicly available. Through intermediaries, voters can the use the campaign financing information to inform their votes. The Supreme Court has usually upheld campaign finance disclosure laws, but in doing so, it has carved out exceptions for certain groups. The jurisprudence has not evolved since Buckley v. Valeo. The court acknowledges that while disclosure might chill speech, its benefits tend to justify disclosure laws. Those benefits are listed as informational, anti-corruption, and enforcement benefits.

Disclosure’s information benefits are well-documented by scholars. Disclosure is politically popular among voters. However, it has opponents who claim it chills their speech because they fear harassment related to their political contributions. For some groups, particularly marginalized people who organize for unpopular policies, the risk of harassment may be serious. However, it has proved difficult for scholars to detect consistent and significant chilling in the campaign finance data or in survey experiments. 

In recent years, the opponents of disclosure have tended to come from more powerful groups in society, rather than marginalized groups. Simultaneously, a lower level of threat – even hypothetical threats – have satisfied the Supreme Court that a First Amendment problem may exist in various disclosure contexts. The current configuration of ideologies on the court and the votes they cast on cases could threaten campaign finance disclosure laws. The Court should proceed thoughtfully. Social science evidence published to date generally supports the continued use of campaign finance disclosures. Moreover, there remain several under-examined evidentiary issues in the jurisprudence.

More in the news

• “Trump Scowls as Jury is Picked to Decide How Much He Owes for Denying Sex Assault,” First Amendment Watch (Jan. 16)
• Tanner Stewart, “Escambia County Schools deny 'book banning' reports amid First Amendment lawsuit,” ABC 3 (Jan. 16)
• “How Martin Luther King put First Amendment freedoms into practice,” Free Speech Center (Jan. 15)
• Ilya Somin, “Martin Luther King on Civil Disobedience and Ethics of Resistance to State Authority,” The Volokh Conspiracy (Jan. 15)
• “VICTORY! University of Missouri clarifies policy forcing student journalists to name confidential sources,” FIRE (Jan. 12)
• Aaron Terr, “Reporter fired for moonlighting as a comedian just got his job back — but his joking days may be numbered,” FIRE (Jan.11)
• “Knight Institute and Public Interest Organizations Call on President Biden to Protect Journalists Reporting on the Israel-Gaza War,” Knight Institute (Jan. 10)

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

Previous regularly scheduled FAN

FAN 407: “Robert Post: ‘There is growing pessimism about the future of free speech in the United States’”

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.