- Many elements of First Amendment doctrine are applicable not at all to private universities and only in substantially modified form to public campuses. True enough, but few go as far in arguing this as does Yale’s Robert Post [Vox, Erwin Chemerinsky response, Will Creeley (FIRE) response, Post response to Creeley]
- Rundown of shout-downs: state representative kept from speaking at Texas Southern’s Thurgood Marshall Law School [Caron/TaxProf, Greenfield] University of Oregon president’s annual state-of-university speech [Oregonian] Pro-Trump hecklers shout down California Attorney General, assembly majority leader at Whittier College [Adam Steinbaugh, FIRE] College Republicans disrupted at UC Santa Cruz, not for inviting someone controversial, just for being them [Celine Ryan/Campus Reform, John Sexton/HotAir]
- Threats of violence against journal editors are one way to get a retraction [Sara Hebel/Chronicle of Higher Education, Jerry Coyne, Oliver Traldi, Quillette (Bruce Gilley, “Case for Colonialism” paper)]
- “New policy authorizes University of Wisconsin to expel students for repeatedly disrupting speakers” [ABA Journal] Will the new rules themselves improperly restrict speech? [Howard Wasserman, Joe Cohn/FIRE first and second posts]
- Debate over proposal by Rep. Anthony Brown (D-Md.) to prohibit “hate speech” on campus [Andrew King vs. Chris Seaton, Simple Justice]
- Federal court agrees that Title IX does not oblige university to ban (now-defunct) student gossip anonymous messaging app Yik Yak [Adam Steinbaugh, FIRE]
Posts Tagged ‘free speech’
My new WSJ: will ACLU defend its own right to speak?
I’ve got a new opinion piece at the Wall Street Journal about the extraordinary recent happenings at William & Mary, part of the Virginia public university system, where activists associated with the Black Lives Matter movement shouted down the executive director of the American Civil Liberties Union of Virginia, Claire Gastañaga, at a scheduled talk where she was to deliver remarks on freedom of speech. Among the cries and chants heard: “ACLU, you protect Hitler, too,” “the oppressed are not impressed,” “the revolution will not uphold the Constitution,” and “liberalism is white supremacy.”
The follow-up was perhaps more disturbing still: after initially releasing a firm statement condemning the disruption, the ACLU of Virginia went back and removed much of the strongest language, acknowledging debate within its own ranks. In particular, it dropped language pointing out that the Constitution does not protect disruption (the so-called heckler’s veto) that prevents a speaker from speaking or audience members from hearing the speaker, and another passage pointing out that public campuses are subject to constitutional standards.
It’s enough (I argue) to remind you of Robert Frost’s quip about a liberal as someone too broadminded to take his own side in an argument. More seriously, it signals the continued erosion of the ACLU’s commitment to core speech and civil liberties issues, under pressure from a tide of activists who joined in its activities in pursuit of equality and social justice, not Bill of Rights issues. Further reading: Wendy Kaminer and followup.
Free speech roundup
- “I believe in the First Amendment” and FCC has no authority to revoke licenses over newscast content, says commission chairman Ajit Pai [Jacob Sullum/Reason, earlier]
- She stoops to censor: British Crown and her Wiltshire police are not amused by your tweets [Andrew Stuttaford, BBC via Helen Pluckrose on Twitter; earlier here, here, here, here, here, here, etc.] Hate speech laws will in practice be used by the politically powerful against dissenters and radicals, part 761 [Guardian on case of woman questioned by detectives over banner denouncing conservative ruling party in Northern Ireland]
- “Congress members threaten Twitter with regulation if it doesn’t suppress ‘racially divisive communications’ and ‘anti-American sentiments” [Eugene Volokh on bill introduced by Reps. Bonnie Watson Coleman (D-N.J.) and Emanuel Cleaver (D-Mo.)]
- On the old “shouting fire in a crowded theater” trope, read this whole thread and then you won’t have to catch up later [Popehat on Twitter] Neither “extremist” speech nor “fake news” can be defined and identified closely enough for regulation to work [Cato Daily Podcast with Flemming Rose and Caleb Brown]
- Encyclopedia of Libertarianism article on freedom of speech is by Alan Charles Kors;
- “Screen Actors Guild Tells Court There’s Nothing Unconstitutional About Curbing IMDB’s Publication Of Facts” [Tim Cushing, TechDirt; earlier here and here]
Trump: we’ll go after their broadcast licenses
“With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!” — @realdonaldtrump Wednesday morning. Later that day he tweeted, “Network news has become so partisan, distorted and fake that licenses must be challenged and, if appropriate, revoked. Not fair to public!”
As was quickly pointed out [AP], the chances are extremely remote that presidential wrath is actually going to cost any broadcasters their licenses (networks as such are not licensed, but their local affiliates are, including network-owned local stations). First Amendment attorney Floyd Abrams said that the threats could nonetheless have a chilling effect on coverage: “The threat, however unlikely, is one that broadcasters will have to take seriously.”
Note that the threat is utterly inconsistent with Trump’s having recently reappointed Ajit Pai to head the FCC. Had the chief executive seriously contemplated a drive against the broadcast licenses of his foes, as a 1960s-era president might have done, Washington is full of aspiring agency heads who would have served his ends better than free-marketeer Pai. Not for the first time, it would seem we have a President whose Twitter hand knows not what his signing hand is doing.
Matt Welch has already dug up a speech by Pai last month, as reported in Variety, that is to the point:
Pai said that he also sees “worrying signs” at the FCC, pointing to Twitter messages in which “people regularly demand that the FCC yank licenses from cable news channels like Fox News, MSNBC, or CNN because they disagree with the opinions expressed on those networks.”
“Setting aside the fact that the FCC doesn’t license cable channels, these demands are fundamentally at odds with our legal and cultural traditions,” Pai said.
John Samples reminds us of the bad bipartisan history of power plays aimed at broadcast speech, which didn’t work for Richard Nixon. David Harsanyi writes that “even if you’re not idealistic about free expression, it might be worth remembering that any laws or regulations you embrace to inhibit the speech of others, even fake-news anchors, can one day be turned on you.”
Of course, another theory one hears is that Trump doesn’t really mean it with his loose talk about curbing press freedom but is just, as it were, vice signaling.
Free speech roundup
- Internet companies aren’t the government and their actions don’t violate the First Amendment – but if we want a liberal society they should think hard before yanking connectivity from groups they politically despise [John Samples, Cato]
- An argument you may not have heard before: “The neurodiversity case for free speech” [Geoffrey Miller, Quillette]
- Prof. Joel Gora: over past decade “the Roberts Supreme Court may well have been the most speech-protective court in a generation, if not in our history.” [Steve Chapman]
- “Respecting Rights? Measuring the world’s blasphemy laws” [Joelle Fiss and Jocelyn Getgen Kestenbaum, U.S. Commission on International Religious Freedom report via Eugene Volokh]
- Michigan man appeals jury tampering conviction over “fully informed jury” leafleting outside courthouse [Jacob Sullum]
- New law school buzz over proposals to ban “atrocity speech,” seemingly defined to include speech that might touch off future atrocity [David J. Simon, Opinio Juris on Gregory Gordon’s Atrocity Speech Law] Revealingly, author says opposition to idea “is primarily of American origin — owing to a rabid free speech ethos flowing from libertarian impulses” [Gregory Gordon at Opinio Juris]
Regulating “fake news”
Legally penalizing the circulation of “fake news,” misinformation and faulty rumor, newly popular in Europe especially as regards social media, is not a new idea at all. It’s a very old one, which again and again results in governments’ enshrining their particular version of orthodoxy as truth [Jacob Mchangama, Quillette]
Free speech roundup
- “You Can’t Sue People for Being Mean to You, Bob” – ACLU brief in Robert Murray-John Oliver case. Or can he? [Lowering the Bar, Popehat]
- Eugene Volokh will keynote lunch and colleague Emily Ekins will describe results of a new survey on free speech at Cato’s inaugural conference on “The Future of the First Amendment,” that’s aside from my religious liberty panel [register or watch online]
- “Build the Wall” flyers in Washington, D.C. draw reaction: “Council member Brandon Todd has told residents to call 911 if they are handed one of the flyers.” [Liberty Unyielding]
- Is legal fate of Gawker chilling journalism about the rich and famous? [Margaret Sullivan, Washington Post, on coverage of R. Kelly story] Did ABC News really pay $177 million even after insurance reimbursement to settle pink slime case? [Jacob Gershman on Twitter citing SEC filing]
- Symposium with Richard Epstein, Heather Mac Donald, KC Johnson, John McWhorter, Jonathan Rauch, Adam White and many others: “Is Free Speech Under Threat in the United States?” [Commentary]
- Calls for a crackdown on bad guys’ political expression in 1950s and today, compared [Eugene Volokh]
Campus speech wars: the law school advantage
By demanding that students “imaginatively and sympathetically reconstruct the best argument on the other side,” a good legal education can help inoculate you against blinkered self-righteousness, which may be one reason why relatively few of the recent campus shout-downs and brawls have taken place at law schools. [Heather Gerken (dean, YLS), Time] And don’t miss John McWhorter on the essential theatricality of campus silencing, allyship, and privilege-shaming [via Conor Friedersdorf, The Atlantic]
Pronoun prescription in Canada
“Few Canadians realize how seriously these statutes infringe upon freedom of speech. The Ontario Human Rights Commission has stated, in the context of equivalent provisions in the Ontario Human Rights Code, that ‘refusing to refer to a trans person by their chosen name and a personal pronoun that matches their gender identity … will likely be discrimination when it takes place in a social area covered by the Code, including employment, housing and services like education.'” [Bruce Pardy, National Post] We noted the New York City Human Rights Commission’s similar guidance last year.
Privacy and the common law
More regulation and legislation to protect privacy from a snooping press? “The common law is able to deal more flexibly with the questions that arise,” says Hofstra law professor Irina Manta [Federalist Society video]