Free speech roundup

  • Getting together to do a national We’re-Not-The-Enemy-Of-The-People Day might not play to the strengths of an independent press [Jack Shafer; New York Post on why it did join, and L.A. Times on why it didn’t] Kevin Williamson wishes that many in the institutional press were more than just fair-weather friends of free speech values [NRO]
  • ““Racial Ridicule” Is a Crime in Connecticut — and People Are Being Prosecuted” [Eugene Volokh]
  • “Can Fake News Be Regulated?” Federalist Society policy brief video with Thomas Arnold;
  • Once you get past the headline, Adam Liptak’s NYT account of First Amendment differences at the Supreme Court is well done [Roger Pilon]
  • Is Internet freedom failing? [Knight Institute symposium with Jack Goldsmith et al.] How does moderation actually work at leading social media firms? [Kate Klonick, Harvard Law Review]
  • The ABA’s Model Rule 8.4(g), in the name of combating harassment and discrimination, encourages states to regulate many expressions of speech and association by lawyers that have incidental professional implications. The Supreme Court in its recent NIFLA v. Becerra decision cast a shadow on that [Josh Blackman, Scott Greenfield]


  • RE: ABA Model Rule. Does anyone even think that bar authorities care what the law actually is? They’ll pass it, and it will have in terrorem effect.

    The judiciary never has been a fan of lawyers criticizing judges (i.e., government officials). Thus, it won’t be a leap for the judiciary to pass other speech restricting codes under the guise of professional conduct.

    Just last week, a judge in Florida harshly criticized a lawyer for doing his job regarding the publication of Nikolas Cruz’ educational history. Of course, the lawyer’s advice was completely correct,, and the judge was 100% wrong. Will the Florida Supreme Court see fit to discipline this judge? Nope, but if the lawyer called her a censor who does not know the law, he’d be in hot water.

    Two Terms ago, Justice Roberts authored an opinion about judicial advertising and the First Amendment. It was interesting to see his perspective, which seems to have come from quaint notions about the judiciary–notions that can, in actual practice, be at odds with reality.

  • Williamson’s article is worth a read.

    Perhaps, just perhaps, Trump is correct when he says that the press is the “enemy of the people” when it cheerleaded the criminalization of political speech at issue in Citizens United or when it pooh-poohed the transgressions of one Lois Lerner.

    Obviously, there are some optics issues for the president to be using those terms, but there should have been optics issues when Obama talked about Latinos hurting their enemies (or, for that matter, “typical white person”).

    Trump’s comments on so many things are a problem, but nothing that he has said or done is worse than anything that can be pointed to in the Obama Administration. I would argue that the appalling Gibson Guitar raid eclipses anything that Trump has done.

    • No, the great majority of the working press had nothing whatever to say about the criminalization of speech in Citizens United. Some or many editorial pages did take a wrong position, sometimes because a single editor, staffer or owner was misguided. To say that the reporting staff at those same papers therefore should be damned as enemies of the people makes about as much sense as saying that every reporter at the Wall Street Journal deserves to bask in partial credit when the editorial page publishes some correct bit of opinion.

      To avoid getting into these sorts of logical tangles, it helps to stop trying to defend the grossly indefensible.

      • Citizens United was but one example of press bias and cheerleading, and it wasn’t limited to the editorial pages. The press, as a whole, despises Trump, and the coverage reflects it. That’s life in a putatively free society, and I think that censorship is appalling. However, I don’t think that somehow Trump is this horrible person simply because he criticizes the press on harsh terms.

        Just imagine the press coverage if say the Colorado River or the Flint fiasco (which, thankfully does not appear to have caused health issues) had happened under Trump’s watch? Or the fawning coverage that would have come about had Obama had talks with Kim Jong Un?

        Or we can go further back in time–remember when Obama talked about American soldiers in Afghanistan “just” bombing villages and killing people. That was an appalling denigration of out war effort and unpatriotic in the extreme. Sarah Palin (who has her issues, no doubt) rightfully called Obama out on it. And what did the press do–it ran interference for Obama with bogus fact-checks on the issue. I am a military vet, and although I absolutely believe in the press’ right to publish out and out lies (Obama said what he said, and “just” has a meaning in the English language–in that context, it meant “only.”) You may think “enemy of the people” is too harsh–and I admit it has some rule by mob overtones that aren’t savory, but that ship sailed years ago (one example being the AIG bonuses, which Obama happily joined)–but so what, really?

  • Racial Ridicule: Volokh has an excellent take – the prosecutions are based not on advertisement, as the statute is written, but on ordinary street banter.

    A more correct prosecution under the statute could be founded on comedians who ridicule their own ethnicity and advertise their performances. Chris Rock for one; Aravind S A (Tamil); or Shazia Mirza, a Muslim woman of Pakistani heritage.
    Racial ridicule is a big chunk of their acts. And their ethnicites turn out in crowds to hear about themselves. Connecticut would shut the party down and arrest the speaker. Not really the feel-good result they intended when they wrote the code.