Overlawyered gets a mention today in a New York Post editorial today, but the greater credit should go to Prof. Larry Tribe for his willingness to be swayed by the evidence on the Internal Revenue Service targeting controversy (earlier). In a Cato post largely adapted from previous coverage here, I note in a P.S.: “If word of the D.C. Circuit panel decision has not gotten around as widely as it should, one reason is that some major news organizations have still, nearly three weeks later, not seen fit to cover it.”
- New, much-anticipated documentary Can We Take a Joke? When Outrage and Comedy Collide [on demand, Greg Lukianoff] More on the fining of comedian Mike Ward by the Quebec Human Rights Tribunal [Guardian, earlier]
- “It is not ‘freedom of the press’ when newspapers and others are allowed to say and write whatever they want even if it is completely false!” [@donaldjtrump Sunday on Twitter] 25 years ago in my stump speech on lawsuit reform I criticized Trump for his use of legal threats to silence critics. More reportage on that history, a familiar topic around here [Frances S. Sellers, Washington Post, earlier here, etc.]
- Eighth Circuit: Nebraska regulators improperly retaliated against financial adviser over (inter alia) his criticism of Obama [Eugene Volokh]
- Nine senators (Boxer, Durbin, Franken, Markey, Reid, Sanders, Schumer, Warren, Whitehouse): we demand 22 right-of-center think tanks open their donation records to us [Carolina Journal]
- “Copyright infringer issues bogus DMCA over someone calling him out. Then denies all of it” [Mike Masnick, TechDirt]
- Lawsuit demanding R ratings on films with “tobacco imagery” deserves to be hit with SLAPP sanctions; “suing the MPAA to force censorship raises the stakes.” [WSJ Law Blog, Scott Greenfield]
“One week after Terrebonne Parish Sheriff Jerry Larpenter seized the computers and phones of a suspected online critic, angry residents came to the parish council to defend free speech rights and to question Parish President Gordon Dove for hiring an insurance agent who is at the heart of the controversy.” [David Hammer, WWL] Louisiana has a criminal libel law on the books and although its continued constitutionality is doubtful given a state supreme court ruling, it served as the basis for a judge to approve a search warrant for the raid on the home and electronic equipment of Houma police officer Wayne Anderson, suspected of being the pseudonymous author of the gadfly Esposedat blog, which has criticized Larpenter and other officials. “When Larpenter was asked whether there is a conflict in him investigating an alleged crime involving himself, he replied, ‘If you’re gonna lie about me and make it under a fictitious name, I’m gonna come after you.'” [WWL, first, second, third, fourth posts]
- As government’s grip tightens in Turkey, Erdogan begins rounding up journalists [New York Times, Jonathan Turley on aftermath of coup attempt]
- German court fines man $2,480 for comparing state politician’s IQ to that of “a piece of toast” [Deutsche Welle]
- University of Cape Town disinvites free speech hero and Cato fellow Flemming Rose, of Danish cartoons fame, prompting letters of protest from Nadine Strossen, Floyd Abrams, Kenan Malik [John Samples]
- “If it’s perceived by the victim, then it is” — adviser to London police on online insults as hate crime [Express] “Nottinghamshire police to count wolf-whistling in street as a hate crime” [Guardian, quoting three backers and no critics of idea]
- Maybe our state AGs could offer tips on punishing wrongful advocacy: campaigners in UK want to prosecute public figures for fraud in promoting Leave side in Brexit referendum [Business Insider on “Brexit Justice” effort]
- Meanwhile, here: prominent Harvard Law professor says “rule of law” and “First Amendment” are “almost entirely without content” [David Bernstein on views of Mark Tushnet]
The North Carolina Supreme Court has struck down as unconstitutional the state’s recently enacted so-called cyberbullying ban [Scott Greenfield] The court noted that the “statute criminalizes posting online ‘private, personal, or sexual information pertaining to a minor'” even though “these terms are not defined by the statute.” And the definition urged by the state would restrict a potentially wide range of discussion of “personal… information pertaining to a minor,” at least when proceeding from prohibited “intent to intimidate or torment.”
Earlier, New York’s highest court said the similar law in that state could not pass First Amendment muster. And a Eugene Volokh amicus brief challenges Maryland’s cyberbullying law, which I criticized at the time of its passage three years ago.
We earlier this year noted the New York City Human Rights Commission guidance directing that businesses may be fined if they do not use customers’ desired pronouns in relation to questions of gender, including preferred usages such as “ze” and “hir.” Now Eugene Volokh, who wrote about the earlier story, points out a recent Oregon settlement in which pronoun issues (the employee prefers to be called “they”) appeared to play an important part:
The school district agreed to settle the claim for $60,000 “as compensation for actual damages, emotional distress and attorney fees,” and with the district promising to “develop official guidance documents for administrators/staff that address working with transgender staff”; the documents, to be developed together with “TransActive and the District equity team,” will address, among other things, “pronoun usage.” “[V]iolations of the guidance will be grounds for discipline.”
But it is not at all clear, as Volokh notes, that it is respectful of co-workers’ rights to require them on pain of official discipline to employ “highly conspicuous, nonstandard usage.” Should instances of not doing so be defined as “harassment” or “discrimination,” they can bring with them serious legal consequences. Public employers such as school districts do have some legitimate managerial interests which can call for, e.g., standardizing forms of address in their workplace. On the other hand, novel pronoun coinages relating to gender are often praised as a way “to convey an idea about language and how language should be” — put more sharply, to convey particular ideological stances about issues of gender identity. We already know that under current interpretations of First Amendment law, government cannot require ordinary non-political employees on pain of dismissal to affirm propositions such as “Live Free Or Die” or the Pledge of Allegiance. A similar principle might extend — or? — to rules exacting affirmative ideological avowals of other sorts. More: Hans Bader, CEI.
“Should the legal system protect or punish the kind of inflammatory speech and drawings that prompted the assault on the Charlie Hebdo offices?” The U.S. Supreme Court in recent years has interpreted our First Amendment so as to ratify and strengthen protection for such speech; Europe, on the other hand, has moved toward punishing it, both from disapproval in itself and, increasingly, on the rationale that allowing it might lead to violence.
In a new Cato Policy Analysis, “Hate Speech Laws: Ratifying the Assassin’s Veto,” First Amendment litigator and Cato adjunct scholar Robert Corn-Revere defends America’s as the correct approach. Executive summary excerpt:
The United States Supreme Court has generally restricted government limits on speech. Some speech, however, does not receive protection, including expressions closely tied to violence. In the past, “fighting words” were judged unprotected by the First Amendment; the development of Court doctrine has largely eliminated this exception. American jurisprudence is based on the assumption that protections for freedom of expression will not long endure if they can be abandoned when the message is particularly repellant or its target especially sympathetic.
European law also protects freedom of expression, although in a less robust way than does U.S. law. Article 10 of the European Convention on Human Rights subjects freedom of speech to important limitations understood generally as “hate speech.” In contrast to the United States, officials may apply criminal or civil sanctions to prohibited political advocacy.
The United States faces a choice. Should it defend the right to offend, or opt instead to champion a right not to be offended? We have learned from hard experience in the United States that free expression cannot long survive without protecting outrageous and offensive speech.
Do you think Donald Trump is the first U.S. politico to menace publishers over bad coverage? Not even close. My new Cato piece cites a few examples from a depressingly long history. Plus: reprinted at Newsweek.
Bonus: Sen. Sherman Minton (D-Ind.) who put forth the remarkable proposal to make it “a crime to publish anything as a fact anything known to be false,” and who had led a Senate committee’s investigation of the Gannett newspaper chain over its (then) Republican-leaning politics, was later nominated by President Harry Truman to be an associate justice on the U.S. Supreme Court, where he served for seven years and became a leading exponent of judicial deference to the executive branch.
No, Sen. Thune (R-S.D.), a U.S. lawmaker shouldn’t be firing off a letter to Facebook insisting that it account for the alleged political slant of its judgment in selecting content. As for supposed victims of the practice, writes Amy Alkon, “if your news comes from the tiny trending bits on the sidebar of Facebook, you’re about as informed politically as my desk lamp, and I ask that you not vote.”
- How the courts came to extend First Amendment protection to art, music, movies, and other expression not originally classed as “press” or “speech” [new Mark Tushnet, Alan Chen, and Joseph Blocher book via Ronald Collins]
- Cato amicus: church enterprises should be eligible for recycling program on same terms as secular businesses [Ilya Shapiro and Jayme Weber]
- “A Political Attack On Free Speech And Privacy Thwarted — For Now” [George Leef, Forbes on AFP v. Harris, earlier] Bill filed by Rep. Peter Roskam would keep IRS from collecting names of donors to nonprofits [Center for Competitive Politics]
- Newly enacted Tennessee conscience exemption for psychological counselors and therapists avoids some of the dangers of compelled speech [Scott Shackford, Reason]
- Cook County Sheriff Thomas Dart, benchslapped by Judge Richard Posner after sending credit card companies letters urging them to cut off dealings with Backpage.com, now seeks Supreme Court certiorari review [Ronald Collins, earlier here, here, and here]
- One problem with that Mississippi law: it gives extra protection to some religious beliefs about sex and marriage but not others [Popehat; my guest appearance on Mike Slater show, San Diego’s KFMB]