Where have all the First Amendment absolutists gone? — First Amendment News 439

That was Justice Hugo Black’s constitutional creed, absolutely! It was a creed born in the cauldron of the words of the First Amendment: “Congress shall make no law” [emphasis added]. For the Alabama jurist, “no” meant “no.” In meaningful part, textual literalism was his interpretive touchstone. (Never mind that for Black and his textualist descendants, “Congress” also means the executive and judicial branches and the states too — so much for textual fidelity!) 

And then there was Alexander Meiklejohn, another “absolutist” — of sorts. Later, there was also Judge Robert Bork, yet another “absolutist” of sorts. 

In some ways, these “absolutists” and others were the heirs of John Milton (“Areopagitica,” 1644) and William Blackstone (“Commentaries,” 1769) who believed that when it came to liberty of the press there could be “no previous restraints” [emphasis added].

Of course, with all of these so-called free-expression absolutists, “no” was never an absolute “no.” There was always a fly in the conceptual ointment. Notably, there is much more flex room when it comes to interpretations of the other Bill of Rights Amendments — similar talk of constitutional absolutism is largely absent from interpretations of, say, the Fourth, Fifth, and Sixth Amendments. But if First Amendment absolutism is never really absolute, where does that leave things?

New life: Holmes and Brandeis 

With their various and ever-expansive treatments of the clear and present danger test, Justice Oliver Wendell Holmes (see his dissent in Abrams v. United States) and Justice Louis Brandeis (see his concurrence in Whitney v. California) breathed new life into the First Amendment and thereby set in motion a new and invigorated conception of the First Amendment. 

From outside to inside: Enter Justice Brennan

Both in the area of obscenity (see Roth v. United States) and defamation (see New York Times v. Sullivan), William J. Brennan Jr. took heretofore areas outside of First Amendment protection and provided them a real measure of constitutional shelter (though in different ways) within the sphere of the First Amendment. 

Presumptive absolutism and limited exceptions 

Under the tutelage of Chief Justice John Roberts, there was a measure of presumptive protection given to certain categories of speech, with the understanding that there were only a few defined areas of speech that were left unprotected and that the Court was not inclined to create any new exceptions (see, e.g., United States v. Stevens and Snyder v. Phelps). Of course, such presumed absolutism did not always carry the day (see Roberts’ majority opinions in Morse v. Frederick and Holder v. Humanitarian Law Project). 

Absolute-like tools: free speech defense doctrines

The trend to near-absolutism has been buttressed by doctrines such as strict scrutiny, content or viewpoint discrimination, vagueness or overbreadth, and certain categorical approaches. Then again, other doctrines such as the secondary effects doctrine typically cabin speech rights or the speech-conduct exception.

The move toward general approaches to quasi-absolutism

In the end real absolutism never existed, and never will, if only because reality requires some play in the conceptual joints. That said, the modern trend has been toward a near-absolutist approach, not so much as a general theory but by way of various approaches. Yet as this happens, the domain of “speech” expands exponentially so that claims for speech protection can encompass almost everything. If so, as that happens, the tendency to restrict speech will likely increase.

Publishers sue Florida over book bans

• Penguin Random House et al v. Gibson (Complaint: U.S. District Court of the Middle District of Florida — Orlando Division, Aug. 29)

Maya Angelou’s I Know Why the Caged Bird Sings, Ralph Ellison’s Invisible Man, Ernest Hemingway’s For Whom the Bell Tolls, Zora Neale Hurston’s Their Eyes Were Watching God, Aldous Huxley’s Brave New World, Toni Morrison’s The Bluest Eye, Leo Tolstoy’s Anna Karenina, Richard Wright’s Native Son, Kurt Vonnegut’s Slaughter-House Five, and Alice Walker’s The Color Purple are some of the many books that the State of Florida has required be removed from school libraries. These books are timeless classics, renowned for their literary value. Many of them have won awards or are bestsellers. They have been on the shelves of school libraries for years, and they are not remotely obscene. But Florida has required these books and others to be removed from school libraries under its broad, across-the-board, content-based mandates that forbid consideration of the books’ value. 

The First Amendment prohibits the suppression of “[s]peech that is neither obscene as to youths nor subject to some other legitimate proscription . . . solely to protect the young from ideas or images that a legislative body thinks unsuitable for them. In most circumstances, the values protected by the First Amendment are no less applicable when government seeks to control the flow of information to minors.” Erznoznik v. City of Jacksonville, 422 U.S. 205, 213-14 (1975).

The right to speak and the right to read are inextricably intertwined. Authors have the right to communicate their ideas to students without undue interference from the government. Students have a corresponding right to receive those ideas. Publishers and educators connect authors to students. If the State of Florida dislikes an author’s idea, it can offer a competing message. It cannot suppress the disfavored message. 

Section 1006.28 of the Florida Statutes, as amended by House Bill 1069, violates the First Amendment rights of publishers, authors, and students by forcing teachers, media specialists, and their school districts to remove books or face penalties, including loss of licensure. House Bill 1069 is attached as Exhibit A. 

Section 1006.28 requires the removal of fiction and non-fiction books alike, depriving Florida students from encountering books that portray and describe critical aspects of the human experience.

Related

• Jonathan Capehart, “Publishers sue Florida, alleging book bans violate 1st amendment rights,” MSNBC (Sept. 8)

First Amendment claim raised in Trump highway confrontation case

• J. David Goodman, “Trial Begins Over ‘Trump Train’ Encounter With 2020 Biden Campaign Bus,” The New York Times (Sept. 9)

Days before the 2020 election, supporters of President Donald J. Trump driving in vehicles festooned with flags as part of a so-called “Trump Train” surrounded a Biden-Harris campaign bus as it sped along a Texas interstate highway.

Images of the impromptu convoy of antagonists were memorable: a large bus decorated like a Biden campaign sign and, all around it, dozens of pickup trucks and sport utility vehicles with pro-Trump banners waving. Photos and videos provided a visual preview of the kinds of political confrontations that would culminate months later with an insurrection at the U.S. Capitol on Jan. 6, 2021.

Now those same images from Interstate 35 are being used as evidence in a federal civil trial that seeks to hold the Trump supporters responsible for assault and political intimidation tactics. Opening statements and testimony began on Monday.

[. . .]

Lawyers for the plaintiffs have argued that in organizing to harass and intimidate the campaign bus, the defendants violated state law and the federal Enforcement Act of 1871, also known as the Ku Klux Klan Act. The act, passed in response to racial and political violence, in part bans groups of two or more from conspiring “to prevent, by force, intimidation or threat, any citizen who is lawfully entitled to vote from giving his support or advocacy in a legal manner” to a candidate for president.

[. . .]

[The defendants argue] that their actions in driving alongside the bus in protest were protected by the First Amendment. They have denied driving recklessly and argued that the campaign staff member initiated the collision. They had sought to have the case dismissed before trial, arguing that the 1871 law did not apply in their case, but U.S. District Judge Robert Pitman denied that motion.

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Related

• Nadia Lathan, “Trial Begins Over Texas ‘Trump Train’ Highway Confrontation,” First Amendment Watch / Associated Press (Sept. 10)

Angel Eduardo on the Justice Department social media policies

• Angel Eduardo, “The Justice Department’s new social media policies look promising for free speech,” FIRE (Sept. 6)

On Aug. 9, FIRE published an analysis of the U.S. Department of Justice’s information-sharing efforts around what the agency calls “foreign malign influence threats to U.S. elections.” The information provided at the time didn’t shed as much light as we would have liked on the specifics regarding the DOJ’s interaction with social media companies, but what we were able to see appears to be a step in the right direction for preserving free speech online.

The DOJ did promise to release more information in the weeks following that report, and to the department’s credit, they’ve made good on it. In addition to releasing a summary of its standard operating procedures earlier in the summer, the DOJ has now outlined its overall strategy for engaging with social media on these particular threats. Combined, these releases allow us to see more clearly how the DOJ intends to engage with social media companies regarding “foreign malign influence” threats.

One very positive aspect is the DOJ’s explicit acknowledgment of and stated interest in preserving free speech. The DOJ says that sharing information with social media companies is “critical” to combating foreign malign influence threats, but the agency explicitly notes that they must protect First Amendment rights in the process: “As we work to counter those who seek to exploit online platforms and undermine our democracy, we must — and will — preserve the very freedoms at the core of that democracy.”

To this end, the policies explain that when sharing threat information with social media companies, the DOJ’s communications with the company should clearly communicate two critically important points:

• The DOJ is “not asking the company to take any action in response to the sharing of the information, and the company has no obligation to do so.”
• The DOJ “will not take any adverse action based on the company’s decision about whether or how to respond to the information being shared.”

Perhaps most importantly, the DOJ emphasizes transparency in its dealings with social media companies, and explicitly notes that all interactions are voluntary — something FIRE has long advocated for.

FIRE’s latest College Free Speech Rankings

• “Harvard, Columbia rank last in nonprofit's 2025 college free speech scorecard,” Fox News Digital (Sept. 9)

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Forthcoming Article: Strengthening the press under the Guarantee Clause

• Jacob Schriner-Briggs, “Guaranteeing the Press,” St. John's Law Review (Forthcoming, 2025)

A vibrant press is vital to meaningful self-government. Indeed, the indispensability of investigative journalism to democracy raises the stakes of the news industry’s ongoing collapse. Many of the country’s most prominent outlets are shedding jobs as local operations shutter entirely. The downstream effects of this market contraction frustrate the informed exercise of popular sovereignty. 

Because journalism is a public good in the economic sense, the state must intervene to provision it. To this end, scholars have generally endorsed one of two legal bases for government action. The first argues that the First Amendment can constitutionalize press-favoring market interventions. The second champions legislative action standing alone. Though both approaches have their conceptual merits, neither properly accounts for the reality of an aggrandized and deregulatory Supreme Court. All told, the Court would almost certainly reject the First Amendment arguments press reformers have made while potentially viewing even straightforward legislative action with hostility. More generally, the outsized role of the Court in our system of constitutional governance, much like the decline of journalism, works a harm to democratic self-determination. 

This Article connects these heretofore separate issues by arguing that the Guarantee Clause of Article IV offers a more promising constitutional basis for government intervention than the First Amendment. The Guarantee Clause commands the United States to provide each state a “Republican Form of Government.” Because the absence of a vibrant press hamstrings republican government, the Clause’s text contemplates the political concerns raised by journalism’s demise. The Clause also provides a grant of constitutional power that has long been interpreted and applied by Congress rather than the Court. This institutional settlement positions the Clause to not only empower press reformers but to resist the entrenchment of juristocracy. The health of democracy—of our republican form of government—would be well served by both.

New Article: Critical race theory classroom bans

• John Beaty, “Critical Race Theory in the Classroom: Iowa's Critical Race Theory Ban and the Limits of the First Amendment,” The Journal of Gender, Race and Justice (Feb. 28)

In 2019, Critical Race Theory (CRT) moved from the pages of law journals to the front page of the newspaper and became the centerpiece of a partisan political battle over the classroom. In response, several states have passed laws to ban CRT from the classroom. Iowa's CRT ban directly regulates speech about race in K-12 classrooms and one Iowa university has used it to limit speech about race in college classrooms. 

This Article argues that this kind of viewpoint discriminatory law would usually be facially unconstitutional. However, Iowa's CRT law regulates public school teachers and college professors, who exist in a First Amendment twilight zone created by the Supreme Court's employee speech jurisprudence. Even though teachers and professors are having their speech abridged, they cannot get into court on a First Amendment Theory. To fill in this gap, Courts faced with Iowa's CRT ban should clarify the protections for professors engaged in teaching and research and recognize a student's right to receive information. These solutions would put a stop to the current rash of politically motivated tinkering with the K-12 and University curriculum and allow the education system to grapple honestly with past injustice. 

More in the News

• Christian Britschgi, “The First Amendment Right To 'Greenmail' Developers,” Reason (Sept. 10)
• Jeffrey Collins, “A Federal Judge Tosses a Lawsuit Over the Ban on Recorded Inmate Interviews in South Carolina,” First Amendment Watch / Associated Press (Sept. 10)
• Matthew Petti, “The War on 'Foreign Influence' has Become a War on the First Amendment,” Reason (Sept. 9)
• Jack Greiner, “Court upholds Mich. school’s ban on ‘Let’s Go Brandon’ shirts,” Free Speech Center (Sept. 9)
• Eugene Volokh, “Court Lets Plaintiff Suing Over ‘Pro-Hamas Demonstrations at Northwestern’ Proceed Pseudonymously,” The Volokh Conspiracy (Sept. 9)
• “New Hampshire Residents Sue City of Nashua Over Discriminatory and Unconstitutional Flag Policy,” Institute for Free Speech (Sept. 9)
• Eugene Volokh, “Ruth Shalit Barrett's Defamation Lawsuit Against The Atlantic Survives in Part,” The Volokh Conspiracy (Sept. 9)

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 and 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 and NetChoice, LLC v. Paxton 

Pending petitions

• Henderson v. Texas
• Murphy v. Schmitt
• Villarreal v. Alaniz 
• No on E, San Franciscans Opposing the Affordable Care Housing Production Act, et al. v. Chiu

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

• In Re First Choice Women's Resource Centers, Inc.
• Pierre v. Attorney Grievance Commission of Maryland
• 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 (Judgment vacated, and case remanded) (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 438: “Phil Donahue: The man who brought robust talk to TV – an interview with Ken Paulson about the man and his legacy”

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.