X-man, champion of free speech? How absurd! — First Amendment News 396
“Despite his loud and frequent protestations, Elon Musk may be the worst ambassador for free speech in America.” — David French (The New York Times, Sept. 10)
Before I turn things over to my partially uninhibited self, let me call Nick Cave to the stand — if only to quote a rousingly uninhibited line he recently uttered in an UnHerd interview:
There is a [certain] . . . delight I get — that I got in the early days, that I get these days — which is . . . sorta fucking with people to some degree. There is something about . . . living outside the expectation of other people that is energizing.
Nick Cave and the Bad Seeds band performs at Faliro Sports Arena in Athens, Greece, in 2017. (bodrumsurf / Shutterstock.com)
Ah, yes . . . don’t you just love (or maybe you don’t?) that exhilarating willingness to break away from the herd and say something UnHerd of? For my money, there is a refreshing free speech side to Nick Cave — his willingness to get in our faces and shout out against the insanity that passes for normality. At a time when so much free speech claptrap is just that — people wrapping themselves and their partisan cause in that constitutional flag — it’s invigorating to have someone with a profound “fuck them all” attitude (please don’t pardon the language).
What has happened to the nonconformist side of today’s free speech crowd? So many are cabined in their ideological worlds that the very thought (and that is the word!) of leaving such confines is foreign to such insufferable closed-minded and pretentious types.
If you want more of Nick Cave, he’s on a concert tour (I just saw him in D.C. — fab!) and likewise has a new book out called “Faith, Hope and Carnage.”
All of which brings me to the X-Man — the antithesis of Nick Cave: Elon Musk.
He likes to brand himself as “a free speech absolutist.” Really? With smug self-assurance, he revels in saying that “if you go down the censorship route, it’s only a matter of time before censorship is turned upon you.” So he says! Last November, when Apple suspended some of its advertising revenue on the social media platform, he asked, “Do they hate free speech in America?”
Wow, such a modern-day John Stuart Mill.
WATCH: Elon Musk on free speech and healthy democracy
Well, if you clicked on that link you just heard with your own ears Elon Musk’s commitment to free speech. Amazing! So libertarian, so principled — and, yes, so ironic!
He’s the power man. He’s the don’t fuck with me man. He’s the X-man.
Elon Musk in 2023. (Frederic Legrand - COMEO / Shutterstock.com)
Yes, Elon has his occasional free-speech defenders. See, for example, X Corp. v. Bonta (E. Dist., Cal., Sept. 8, 2023) and Ashley Belanger, “X sues Calif. to avoid revealing how it makes ‘controversial’ content decisions,” ARS Technica (Sept. 8, 2023). Yet, even if it’s true that Elon defends free speech, it’s also true that he’s willing to do the censorial bidding of the likes of Turkey’s authoritarian President Recep Tayyip and India’s Narendra Modi’s right-wing government.
In Elon Musk’s mind he’s absolutely a free-speech absolutist. He’ll absolutely defend your right to speak out, as long as you don’t criticize him. If you do ... well ... then you’re out of luck.
Oh, and don’t overlook Musk’s threat to sue the Anti-Defamation League for — get this! — defamation. As Zack Beauchamp has explained, “Musk repeatedly blamed the Anti-Defamation League (ADL) for a 60 percent decline in the site’s revenue — alleging a coordinated effort by the group, which monitors extremism, to push advertisers away from Twitter after Musk purchased it last year.” Consider in this regard, ADL CEO Jonathan Greenblatt’s response:
It is profoundly disturbing that Elon Musk spent the weekend engaging with a highly toxic, antisemitic campaign on his platform — a campaign started by an unrepentant bigot that then was heavily promoted by individuals such as white supremacist Nick Fuentes, Christian nationalist Andrew Torba, conspiracy theorist Alex Jones and others. Finally, we saw the campaign manifest in the real world when masked men marched in Florida on Saturday brazenly waving flags adorned with swastikas and chanting “Ban the ADL.”
Jonathan Greenblatt
But to be clear, the real issue is neither ADL nor the threat of a frivolous lawsuit. This urgent matter is the safety of the Jewish people in the face of increasing, intensifying antisemitism. Musk is engaging with and elevating these antisemites at a time when ADL is tracking a surge of bomb threats and swatting attacks of synagogues and Jewish institutions, dramatic levels of antisemitic propaganda being littered throughout Jewish and non-Jewish residential communities, and extremists marching openly through the streets in Nazi gear. All of this is happening in a context of the highest number of antisemitic incidents that ADL has tracked in more than 40 years — and just two weeks away from the Jewish holidays of Rosh Hashanah and Yom Kippur.
Joshua Benton, “Elon Musk’s Anti-Semitic, Apartheid-Loving Grandfather,” The Atlantic (Sept. 20) (“The billionaire has described his grandfather as a risk-taking adventurer. A closer read of history reveals something much darker.”)
Let us not stop there since much more needs to be added to the X-man’s scorecard of censorship. Angel Eduardo, my editorial colleague, has a few things to enter into the record:
But don’t fret over such disturbing matters; pay no attention to that man behind the digital curtain. There are always two sides to everything, no?
Enter Fox News contributor Liz Peek, who has portrayed the X-man as a free speech hero:
Make no mistake, Musk’s ownership of Twitter is a game-changer. It has opened a portal between the American people and the truth that did not exist before. That is why he, and the company, are under attack. And that is why Musk must continue as CEO.
Indeed, the X-Man’s reign may well prove to be a free speech “game-changer,” but a change toward what? One answer to that question comes from his renowned biographer Walter Isaacson. “There's almost a demon mode of Elon Musk, where he turns really dark and that can really be very problematic,” Isaacson says. Still another answer — a powerful poetic one — comes from the great bard of our times, Bob Dylan: Elon Musk’s “riot squad is restless, they need somewhere to go.”
Nota bene: In all the above, I am not urging that either Musk or X should be governmentally censored. That said, I am happy to exercise my First Amendment right to criticize the way Musk runs his public speech business. See NAACP v. Claiborne Hardware Co. (1982).
Silencing scientific research
Rep. Jim Jordan in 2023. (lev radin / Shutterstock.com)
An escalating campaign, led by Rep. Jim Jordan (R-Ohio) and other Republicans, has cast a pall over programs that study political disinformation and the quality of medical information online.
Academics, universities and government agencies are overhauling or ending research programs designed to counter the spread of online misinformation amid a legal campaign from conservative politicians and activists who accuse them of colluding with tech companies to censor right-wing views.
The escalating campaign — led by Rep. Jim Jordan (R-Ohio) and other Republicans in Congress and state government — has cast a pall over programs that study not just political falsehoodsbut also the quality of medical information online.
Facing litigation,Stanford University officials are discussing howthey can continue tracking election-related misinformation through the Election Integrity Partnership (EIP), a prominent consortium that flagged social media conspiracies about voting in 2020 and 2022, several participants told The Washington Post. The coalition of disinformation researchers may shrink and also may stop communicating with X and Facebook about their findings.
The National Institutes of Health froze a $150 million program intended to advance the communication of medical information, citing regulatory and legal threats. Physicians told The Post that they had planned to use the grants to fund projects on noncontroversial topics such as nutritional guidelines and not just politically charged issues such as vaccinations that have been the focus of the conservativeallegations.
NIH officials sent a memo in July to some employees, warning them not to flag misleading social media posts to tech companies and to limit their communication with the public to answering medical questions.
‘Alarming’ findings — Congressional report on speech on college campuses
A congressional report released by the House of Representatives’ education committee [last] Thursday unveiled what they described as “alarming” findings regarding the state of free speech at America's higher education institutions.
The Freedom of Speech and Its Protection on College Campuses report outlined the House Education and the Workforce Committee findings of First Amendment violations on college campuses throughout the county and provided legislative suggestions to tackle what they described as “growing illiberalism in postsecondary education.”
The committee detailed dozens of examples of what congressional Republicans argue are instances of the “pervasive degradation of First Amendment rights on college campuses across the nation” executed by “political activists, woke faculty, and partisan administrators.” The report claims these administrators have “established a dangerous trend that threatens students’ constitutionally guaranteed rights and the college education model that should, at its very core, be an open marketplace for all ideas to be heard, free of political bias and agendas.”
A quote to quote
My job is not to make up anybody's mind but to make the agony of decision-making so intense that you can escape only by thinking.
While AI can make enforcement and adjudication more effective, potentially reduce discrimination, and make the drafting of contracts, briefs, laws, regulations, and court opinions faster and less costly, it also has serious implications for broad societal issues such as consumer protection; investor protection; false advertising; privacy; misinformation; and discrimination and civil rights.
The initiative will sponsor and promote new work on these topics by both faculty and students, hold conferences and symposia, and issue preliminary reports on emerging topics. A book by Bar-Gill and Sunstein on algorithms and consumer protection, developed at Harvard Law School, is slated to be one of the early products.
Knight First Amendment Institute on ‘Persuasion and Coercion’
This from Jameel Jaffer over at the Knight Institute:
Jameel Jaffer
One of the vital questions of the social media age, as the Fifth Circuitreminded us just recently, is what limits the Constitution imposes on the government’s power to cajole, persuade, or “jawbone” social media companies into suppressing what the government views as dangerous speech.
The question is hard because there are competing principles at play. On one hand, the government needs to be able to govern, and part of governing is using the “bully pulpit” to influence public opinion and the conduct of private citizens and businesses, including media organizations. It’s generally viewed as democratically legitimate, and certainly routine, for government officials to try to persuade newspapers to reconsider their editorial decisions—for example, to encourage newspapers to change the framing of particular stories, to add quotes from experts who are sympathetic to the government’s position, or even to forgo publication altogether. It’s of course absolutely essential that newspapers have the final say. (In the Pentagon Papers case, the Supreme Court recognized that the press must have the final say even when the government argues that national security is at stake.) But no one seriously questions the legitimacy of the government having its say, too.
But what if the government’s speech is so coercive that the people on the receiving end of it don’t really have the final say? In this scenario, the government’s jawboning becomes an informal means of censorship—made more pernicious by the fact that the coercion often takes place behind closed doors, beyond the reach of democratic accountability. The danger to public discourse here is real, and perhaps especially so with respect to public discourse on social media. Social media companies have every incentive to bow to pressure from public officials, because the speech they’re encouraged to suppress is usually not their own, and because resisting government pressure can provoke regulatory retaliation. Against this background, we need to be attentive to the risk that the government will use informal mechanisms to evade the First Amendment constraints that would apply if the government were relying on formal ones.
The question of how to draw the line between (permissible) government persuasion and (impermissible) government coercion is one the Knight Institute will take up at a convening in October, with a quite remarkable group of scholars, tech policy experts, and advocates. The group will include, among others, Enrique Armijo, Derek Bambauer, Jack Balkin, Hannah Bloch-Wehba, Evelyn Douek, Will Duffield, Michael Glennon, David Greene, Katie Harbath, Dean Jackson, Daphne Keller, Genevieve Lakier, Matt Perault, and Yoel Roth. The convening itself is closed, but the participants will be writing short pieces in advance.
The first one—by Ashutosh Bhagwat—is a lucid and provocative dissection of the Fifth Circuit’s “muddled” decision in Missouri v. Biden. You can read it here. We’ll be posting the others over the next few weeks.”
More from Knight Institute: Upcoming symposium on government-employee speech – call for papers
The Knight Institute invites submissions for a spring symposium, “Permission to Speak Freely? Managing Government Employee Speech in a Democracy,” to be held at Columbia University on April 5, 2024. The symposium, organized in partnership with the Institute’s Senior Visiting Research Scholar Sam Lebovic, will explore the law and politics of public employee speech. A more detailed discussion of the theme of the symposium is below, followed by logistical information for those who wish to participate.
Description and Aims
In our polarized, paranoid politics, the speech of public employees is fraught as perhaps never before. During the Trump presidency, much hope and fear was invested in the notion of a “deep state” with the capacity, depending on one’s preferences, to either maintain or derail the legitimacy of the federal government. Leaks and rumor and background briefings—always a central form of U.S. politics—became ever-more charged sites of conflict: the New York Times ran a symptomatically infamous op-ed in which one anonymous insider declared themselves to be the “the resistance.” The war over the regulatory and administrative state, meanwhile, directly implicates the rights and political activity of the civil service—particularly in those branches ostensibly committed to the neutral production of knowledge. Public sector unions, now a bulwark of the labor movement, are likewise under assault, on the grounds that union dues implicate the speech rights of nonmember employees. And the culture wars, playing out particularly over discussions of race and gender in the classroom, directly implicate the speech acts of educators—by far the largest class of public employees in the nation.
Each of these domains has been subject to considerable controversy, as well as deep debate in many fields of academic inquiry. But they have not been treated as instances of a broader problem: how a modern, bureaucratized democracy should manage the speech of its government employees. The issues are complex, requiring the balancing of competing democratic values: transparency v autonomy; delegation v supervision; objectivity v diversity; tolerance of debate and disagreement v the need to reach some form of functional consensus for collective governance to continue. They require parsing the intersection of First Amendment law, administrative law, labor law, democratic theory, and the brute science of American political contestation.
This symposium will bring together an interdisciplinary group of experts to explore these problems. The stakes are significant. There are some 22 million public employees in the U.S.—to determine their speech rights is to determine the speech rights of a population twice as large as the entire population of Cuba or Greece or Hungary or Israel. To think holistically about the problems and politics of public employee speech offers an opportunity to clarify normative and doctrinal problems in vexed subfields of the law: academic freedom; whistleblowing and transparency; public sector employment and unions.
Such a conversation also promises to be generative, to shed light on two deeper problems of U.S. democratic life. The first is the legitimacy crisis of the administrative state. Since at least the New Deal, those seeking to legitimize the U.S. state have done so by seeking to place the bureaucracy outside of politics—by appealing to the expertise and objectivity of the bureaucrat, and by establishing elaborate rules and procedures to ensure neutrality. As the ongoing assault on the regulatory state reveals, they have not succeeded in protecting the bureaucracy from accusations that it is an undemocratic, elitist threat to the liberties of ‘ordinary’ Americans; such efforts to ensure procedural neutrality may also have eroded the political capacity to substantively govern. Rethinking the political speech of public sector employees may help us rethink the relationships between objectivity, expertise, and democratic governance, and thus the normative foundations of the modern state itself.
Second, rethinking the politics of public employee speech may provide a space to imagine a more realistic and robust role for the First Amendment in modern democratic society. Our philosophies of free speech are, by and large, anachronistic, rooted in a set of classically liberal assumptions about the opinions of autonomous individuals, the exchange of ideas in so-called free markets, and the self-righting processes of unregulated systems. For the past half-century, this vision of the First Amendment has been taken up with particular force by the libertarian right, and turned into a tool to wage war on the very possibility of administrative governance. In reaction, progressives have begun to retreat from their former embrace of First Amendment speech rights.
A central challenge today, therefore, is to find a way to delineate a philosophy and doctrine for the First Amendment that maximally protects civil liberties without destabilizing the very possibility of collective governance. The question of public employee speech rights is a particularly promising place to seek such a philosophy. The questions involved automatically preclude thinking in straightforwardly individualistic terms of the sort favored by abstract, neoliberal theories of the First Amendment, or by the classical liberalism of contract law. They require thinking less about the value of speech-acts to the speaker, and more about the social value of speech and the public’s right to knowledge; less about “marketplaces of ideas” and more about collectively produced and managed spaces for expressive activity. Cracking the riddle of speech in the administrative state may thus provide new ways to think about the problem of contemporary First Amendment rights more generally.
We welcome papers that take up the law and politics of public employee speech from any angle. Papers that compare these issues across differing doctrinal domains, differing national traditions, or different time periods are particularly welcome, as are papers that seek to shed new light on the following themes:
1) Public employee speech doctrine
2) Educational and knowledge-producing institutions
3) Political expression, compelled speech, and unionization
Dates, Deadlines, and Logistics
If you are interested in participating in the symposium, please send us a 250-word abstract of your paper by November 15, 2023. The abstract should describe the central claim you intend to make in the paper and identify the main arguments you intend to offer in support of that claim. Please submit the abstract to research@knightcolumbia.org. We intend to review all of the abstracts by the end of November, with the goal of commissioning 6-12 papers of 8,000-12,000 words.
A brisk, practical defense of free speech in America's digital public square that calls on the courts to reject the censors' absolutism, enforce enduring First Amendment principles, and restore a vigorous and robust marketplace of ideas.
A vast censorship regime has smothered America's digital marketplace of ideas, squelching free speech on vital policy issues ranging from public health to electoral politics. Its supporters regard its benefits as morally and politically beyond question. They contend it's carried out by private social media platforms, not governmental authorities. And they insist their partnership is voluntary, not coerced.
In Free Speech and Turbulent Freedom, Michael J. Glennon offers a timely and incisive response. The censors are short-sighted, he argues. Quibbling over outdated distinctions misses the real threat — which is the fusion of public and private power into a modern-day cartel able to overleap longstanding constitutional safeguards. American democracy, he argues, rests on a decentralized marketplace of ideas independent of the government. In crisp, trenchant terms, Glennon shows how concrete practical concerns justify protecting admittedly harmful online speech — even speech that advocates violence or embraces hatred or apparent falsehood. The intellectual journey of Justice Oliver Wendell Holmes Jr. from absolutist to skeptic, he suggests, illuminates the value of political pluralism and the perils of the censors' delusory certitude.
To safely self-correct, democracy requires open channels of political communication. Glennon calls on the courts to unblock those channels—to measure such speech against enduring First Amendment precepts rather than pliable international norms—and to protect the speech interests not merely of the government and Big Tech, but of all participants in the marketplace of ideas. That includes what's often overlooked: Americans' right to hear. Without robust judicial protection, the specious attractions of censorship—and the absolutist certitude that drives it — will destroy America's marketplace of ideas and, with it, any hope of political self-renewal.
Forthcoming scholarly article on violent free speech and press metaphors
Today, our free speech marketplace is often overwhelming, confusing, and even dangerous. Threats, misdirection, and lies abound. Online firestorms lead to offline violence. This Article argues that the way we conceptualize free speech and the free press are partly to blame: our metaphors are hurting us.
The primary metaphor courts have used for a century to describe free speech—the marketplace of ideas—has been linked to violence since its inception. Originating in a case about espionage and revolution, in a dissent written by Oliver Wendell Holmes, a thrice-injured Civil War veteran, the marketplace has been described as a space where competition and force order the rungs on a ladder climbing toward truth. Power and violence are at home in the speech marketplace. Unsurprisingly, these same characteristics animate the defining metaphor for a key free speech institution: the press is a “watchdog.” In First Amendment law, the press’s role is to attack government for its misdeeds.
As linguists have shown, metaphors are not simply rhetorical icing. They shape human understanding and behavior—sometimes in dangerous ways. The marketplace and watchdog metaphors have this power, and with it they have helped to create a speech environment where violence can feel routine.
No easy fix exists for the violence in our public sphere. But new metaphors could help us reconceptualize the ways we communicate. This Article explains how.
One advocate was arrested and handcuffed for two hours after peacefully demonstrating in a public park. The Law & Religion Clinic at the University of Texas and FIRE are suing to protect the constitutional right to speak freely in public parks.
WATCH: Faraz Harsini (left) and Daraius Dubash (right) are suing the City of Houston for First Amendment violations.
With the beginning of the college academic year, those of us teaching this fall are drafting various course syllabi — seeing what might be worth revisiting, such as new readings that might be added.
But all too often, the upfront syllabus boilerplate sections are overlooked since they are cut and pasted from previous versions of the same course or similar ones. Unfortunately, a section dealing with free expression in the classroom is missing in many.
This is a more focused area than campus speech, which continues to attract national headlines as outside speakers from the right and left are disinvited or shouted down. The issue here is less about censorship — which may be referenced in a syllabus by linking to an established campuswide free-expression policy or the University of Chicago Principles adopted by dozens of universities — and more about self-censorship. The latter concern often is more difficult to identify since it involves an unwillingness to speak freely in light of actual or perceived consequences for doing so. Data and personal experience suggest this needs to be addressed head-on.
For example, the Heterodox Academy’s 2023 Campus Expression Survey asked more than 1,500 full-time college students from universities across the country about how reluctant they are to share their views on various topics in class and what variables are associated with students’ reluctance. Just over 58 percent of the respondents said they were reluctant to share their views on politics, race, sexual orientation, gender or religion in the classroom.
I concur with the observation of Nicole Barbaro, the organization’s director of communications and marketing.“This is a real problem that should concern all educators, especially across the social sciences, biological sciences and humanities where these topics are most likely to be central to academic research and discussions. If students are not comfortable talking about these topics in class — a space intended for exploring ideas, discussing research and critically thinking about problems — then our universities are, in part, failing at their intended purpose.”
Classroom self-censorship is a two-sided phenomenon. The Foundation for Individual Rights and Expression (FIRE) surveyed almost 1,500 college faculty members nationwide to dig deeper into the issue. Its data show that a third of faculty (34 percent) reported they self-censor on campus “fairly” or “very” often. According to FIRE, faculty members are more likely to self-censor today than during the Joseph McCarthy era of the 1950s.”
2022-2023 SCOTUS term: Free expression and related cases
Cases decided
303 Creative LLC v. Elenis (6-3 per Gorsuch for the majority and Sotomayor for the dissent: The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.)
Counterman v. Colorado(held: First Amendment violated — 4 votes per Kagan with Sotomayor concurring in part joined by Gorsuch in part. Thomas filed a dissent and Barrett also filed a dissent, in which Thomas joined). (“In this context, a recklessness standard — i.e., a showing that a person ‘consciously disregard[ed] a substantial [and unjustifiable] risk that [his] conduct will cause harm to another’ . . . — is the appropriate mens rea. Requiring purpose or knowledge would make it harder for States to counter true threats — with diminished returns for protected expression. The State prosecuted Counterman in accordance with an objective standard and did not have to show any awareness on Counterman’s part of his statements’ threatening character. That is a violation of the First Amendment.”)
Jack Daniel’s Properties, Inc. v. VIP Products LLC (9-0: held — When a defendant in a trademark suit uses the mark as a designation of source for its own goods or services — i.e., as a trademark — the threshold Rogers test for trademark infringement claims challenging so-called expressive works, see Rogers v. Grimaldi, does not apply, and the Lanham Act’s exclusion from liability for “[a]ny non-commercial use of a mark” does not shield parody, criticism, or commentary from a claim of trademark dilution.) (This is from footnote 1 of the majority opinion: “To be clear, when we refer to ‘the Rogers threshold test,’ we mean any threshold First Amendment filter.” Justice Kagan wrote the majority. Justice Sotomayor filed a concurring opinion, in which Justice Alito joined. Justice Gorsuch filed a concurring opinion, in which Justices Thomas and Barrett joined.)
United States v. Hansen(7-2: Title 8 U.S.C. § 1324(a)(1)(A)(iv) — which criminalizes “encouraging or inducing” illegal immigration — forbids only the purposeful solicitation and facilitation of specific acts known to violate federal law and is not unconstitutionally overbroad.)
U.S. v. Hernandez-Calvillo (cert. granted, judgment vacated, and case remanded to the U.S. Court of Appeals for the 10th Circuit for further consideration in light of United States v. Hansen) .
Klein v. Oregon Bureau of Labor and Industries (cert. granted, judgment vacated, and case remanded to the Court of Appeals of Oregon for further consideration in light of 303 Creative LLC v. Elenis).
Twitter v. Taamneh (held, 9-0 per Thomas, J.: SCOTUSblog: “Plaintiffs’ allegations that the social-media-company defendants aided and abetted ISIS in its terrorist attack on a nightclub in Istanbul, Turkey fail to state a claim under 18 U.S.C. § 2333(d)(2).”)
Section 230 immunity
Gonzalez v. Google (held, 9-0, per curiam, SCOTUSblog: “The 9th Circuit’s judgment — which held that plaintiffs’ complaint was barred by Section 230 of the Communications Decency Act — is vacated, and the case is remanded for reconsideration in light of the court’s decision in Twitter, Inc. v. Taamneh.”)
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.
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