There’s dissent in the air — from the Left, the Right, and from Libertarian quarters, too. Everybody is getting ever more worked up about free speech in America.
Donald Trump wants to revive old defamation laws; some on the Left want to amend the First Amendment; some on the Right want the government to regulate violent movies and video games; many college administrators appear determined to abridge the First Amendment; college students gather en masse to silence speech that offends them; First Amendment scholars ask What’s Wrong with the First Amendment?; and Libertarians, well, they can never have enough free-speech freedom.
Make no mistake: the future of the First Amendment hangs in the balance as never before. This is no “the sky is falling” claim. Rather, it is an observation on our times. No, not like the late 18th century, or WWI, or the McCarthy Era. Not at all. But we are in a state of transition. Take heed: the goal lines are shifting.
Indicative of that shift is a headline over at Reason.com: “Trump’s Anti-Speech Agenda Gets a Boost From Lefty Lawyers and Academics.” Among other things, it is offered up as a sort of reply to something I posted last week: Professor Louis Seidman’s forthcoming Columbia Law Review article titled Can Free Speech Be Progressive? J.D. Tuccille authored the article. He is a former managing editor of Reason.com and current contributing editor. Here are some excerpts from his article:
- “We have an environment in which the president of the United States is dismissive of the free speech rights of his opponents, prominent constitutional scholars sniff at free speech unless it’s used by the “right” people for their favored goals, and the country’s leading civil liberties organization is suffering an internal revolt by staffers who oppose “rigid” support for free speech protections.”
- “[I]f you’re an academic with expertise in constitutional law, and you have months to watch a populist politician who commands the power of the presidency fulminate about punishing those who criticize him, what do you do? If you’re Georgetown Law’s Louis Michael Seidman, you suggest that the president might be on to something.”
- “In 2016, [Professor Seidman] wrote for the Nation, ‘Would the election of Donald Trump threaten the sanctity of the United States Constitution? We should be so lucky.’ In fact, Seidman has long been an advocate for dumping the Constitution and its protections in their entirety. He just thinks that Trump is the wrong vehicle.”
- “And Seidman isn’t alone in arguing from academia that free speech is overrated. His paper favorably quotes Laura Weinrib of the University of Chicago Law School, author of The Taming of Free Speech: America’s Civil Liberties Compromise. Weinrib complained in a Los Angeles Times op-ed last summer that “free speech has served to secure the political influence of wealthy donors,” while “labor’s strength has plummeted, and the Supreme Court is poised to recognize a 1st Amendment right of public sector employees to refuse to contribute to union expenses.”
- “Last fall, about 200 of the [ACLU’s] staff members signed a letter objecting to the groups’ ‘rigid stance’ on the First Amendment. The letter was characterized by former ACLU board member Michael Meyers as ‘a repudiation of free-speech principles.'”
- “[I]ntolerance has pretty clearly become a dominant theme at colleges, where the likes of Seidman and Weinrib teach that free speech is overrated and important primarily as a tool to be reserved for the right ideas.”
There is more, much more, but you’ll need to read the full article to discover what you missed.
Court Reporters’ assessments of arguments in California abortion-speech law case
Yesterday the Supreme Court heard oral arguments in National Institute of Family and Life Advocates v. Becerra.
Issue: Whether the disclosures required by the California Reproductive FACT Act violate the protections set forth in the free speech clause of the First Amendment, applicable to the states through the F Fourteenth Amendment.
Facts: This from Amy Howe over at SCOTUSblog: “The California legislature passed the law because it was worried that crisis pregnancy centers – nonprofit organizations, often affiliated with Christian groups, that are opposed to abortion – were posing as full-service reproductive health clinics and providing pregnant women with inaccurate or misleading information about their options. The act requires nonprofits that are licensed to provide medical services (such as pregnancy tests and ultrasound examinations) to post notices to inform their patients that free or low-cost abortions are available, while centers without such licenses – which try to support pregnant women by supplying them with diapers and formula, for example – must include disclaimers in their advertisements to make clear, in up to 13 languages, that their services do not include medical help.”
- Michael P. Farris argued on behalf of the Petitioners.
- Jeffrey B. Wall, Deputy Solicitor General, Department of Justice, argued on behalf of the United States, as amicus curiae, in support of neither party, and
- Joshua A. Klein, Deputy Solicitor General, California, argued on behalf of the Respondents
Commentators — Consensus: Justices skeptical of constitutionality of California law
- Adam Liptak (NYT): “A California law that requires ‘crisis pregnancy centers’ to provide information about abortion met a skeptical reception at Supreme Court arguments on Tuesday. . . . Some justices expressed frustration with the thin court record in the case, which arrived at the Supreme Court at an early stage in the proceedings. That left open the possibility that the justices could return the case to the lower courts for a full trial.”
- David Savage (L.A. Times): “The Supreme Court sounded ready Tuesday to strike down a California disclosure law that requires pregnancy centers — including those that are faith-based — to notify women that the state offers subsidies for abortion. . . . [M]ost of the justices took sharp issue with all or parts of the California law. They said it was unfairly targeted at the faith-based centers. Doctors and for-profit clinics were exempted from the law. . . . Tuesday’s case marked the third time in recent months that the justices weighed a conservative group’s claim that a liberal state law amounts to unconstitutional ‘compelled speech.'”
- Nina Totenberg (NPR): “Supreme Court justices on both sides of the ideological spectrum expressed skepticism about California’s ‘truth-in-advertising’ law requiring anti-abortion clinics to more fully disclose what they are.”
- Robert Barnes (Washington Post): “Supreme Court justices on Tuesday indicated that a California law requiring antiabortion pregnancy centers in California to notify women that the state provides free or low-cost health care, contraception services and abortion, could violate free speech rights. . . . [Justice Kennedy’s questions] were almost uniformly hostile to the law, and he was even short with other justices who seemed to defend it.”
- Op-ed, Robert McNamara & Paul Sherman, The Abortion Case That’s Really About the First Amendment, New York Times, March 20, 2018
EXCERPTS from aruments in California abortion-speech law case
JUSTICE KAGAN: “Would a requirement that [a non-medical] facility post a notice saying there actually are a lot of options and here’s how you can access them, would that be unconstitutional?” . . . .
JUSTICE ALITO: “What if there [was] a state law that required every doctor or facility that provides medical treatment for pregnant women to post a notice setting out the full range of options available to those women and where they might obtain services at no cost, if those — if those are available?” . . .
JUSTICE BREYER: “In law, as you well know, what is sauce for the goose is sauce for the gander. And so I think what’s bothering [with] these questions people, as it bothers me . . . — there are pro-choice states and there are pro-life states. All right? So, if a pro-life state can tell a doctor you have to tell people about adoption, why can’t a pro-choice state tell a doctor, a facility, whatever it is, you have to tell people about abortion?” . . . .
JUSTICE GORSUCH: “We don’t have a lot of evidence with respect to the nature of the burden that would be imposed by the 48-font requirement on all ads. There’s some evidence in the amicus briefs that it might be like a $9,000 a month tax for advertisements. But what do we do about the lack of a record here and whether we should wait for an as-applied challenge . . . .”
JUSTICE GINSBURG: “We don’t know what kind of adjustments might have been made because this case went off without any kind of an evidentiary hearing, as was pointed out.”
JUSTICE SOTOMAYOR: “The text of the page titled ‘Abortion’ says Fallbrook will educate clients about different abortion methods available, and describe in medical terms different abortion procedures. The website also says clients will be evaluated by nurses and that they follow all HIPAA regulations, which if they’re not a medical provider, they don’t have to follow HIPAA. wrong?” . . . .
JUSTICE SOTOMAYOR: “So if you’re giving people advice about pregnancy when you are not a licensed facility, please explain to me what is both misleading, incorrect, or suggestive in any way that a person has to do something like go to this doc — to a doctor, how is it doing anything other than telling people that, despite how the picture looks on the website, this is not a medical facility?”
JUSTICE KENNEDY: “What would happen if an unlicensed entity, unlicensed center, just had a billboard that said ‘Choose Life.’ Would they have to make the disclosure?” . . . .
CHIEF JUSTICE ROBERTS: “can [these facilities] be required to list services that they don’t provide but that may be provided elsewhere?” . . . .
JUSTICE BREYER: “So, in your view, family planning clinics do not have to tell any woman about abortion — adoption?”
JUSTICE BREYER: “There are millions of people in this country who have views on this subject that are absolutely opposed, one to the other. So that, to me, suggests the law should keep it as simple as possible. And that’s why sauce for the goose, sauce for the gander. I mean, if the law is permissible which says, Doctor, you must tell the woman about adoption, then why shouldn’t the law say, Family Planning Center, you must tell the woman about abortion? Sounds even-handed, sounds as if everybody in the same business is under the same rules.” . . . .
JUSTICE ALITO: “[T]o take a couple of examples: Journalists are professionals. So would they be subject to this standard? How about economists? How about climate scientists? How about a fortune teller? The Fourth Circuit said that a fortune teller is a — is a professional. How about somebody who writes an advice column for parents? I mean, wouldn’t we be getting into very dangerous territory if we do this?” . . . .
JUSTICE ALITO: “If you have a law that’s neutral on its face, but then it has a lot of crazy exemptions, and when you apply all the exemptions, what you’re left with is a very strange pattern and, gee, it turns out that just about the only clinics that are covered by this are pro-life clinics. Do you think it’s possible to infer intentional discrimination in that situation?” . . . .
JUSTICE ALITO: “Why does this apply only to clinics whose primary function is providing service to pregnant women?” . . . .
JUSTICE ALITO: [Why does the law] apply almost only to for — to non-profits and not for-profits? If the purpose is to get this information out to poor women, don’t you think there are examples of poor women who stumble into a for-profit facility? Wouldn’t it be beneficial for them to know that they could get treatment at no cost through the state?” . . .
JUSTICE KAGAN: “[W]e’re really concerned that there are low-income women, don’t have a lot of access to information, don’t realize what all their options are, want to make sure in general and across the board that they get the best information that’s available to them. Another way to think about what the problem is and how a statute like this comes about is more targeted. It’s to say there are these crisis pregnancy centers all over California and we know that women just go into them and they don’t realize what they are, and they’re being subject to being misled and we think that this is a terrible problem.” . . . .
JUSTICE GORSUCH: “Well, but if you’re trying to educate a class of — of persons about their rights, it’s — it’s pretty unusual to force a private speaker to do that for you under the First Amendment.”
JUSTICE SOTOMAYOR: “Mr. Klein, can we go back to the question Justice Kennedy asked the other side, which was for you to affirm or disaffirm that if one of these facilities wrote an ad that just said pro-life and put their name, it appears as if the law would require them to have the statement ‘This is not a medical facility” in 48-point font?'”
JUSTICE KAGAN: “[W]e have these general disclosure requirements, but we don’t really want to apply them generally, we just want to apply them to some speakers whose speech we don’t much like . . . .”
Amending Section 230 of the Communications Decency Act
- “In the first major change to Section 230 in years, Congress is voting this week to make Internet companies take a little more responsibility than they have for content on their sites. . . The Senate is expected to pass the bill as early as Wednesday, sending it to President Trump for his signature. The White House has supported the legislation.””And for the first time, after years of staunch defiance, the Internet Association came out in support of legislation to change Section 230 — shocking smaller Internet companies and digital-rights groups by breaking ranks.”
- Section 230 lives inside the Communications Decency Act of 1996, and it gives websites broad legal immunity: With some exceptions, online platforms can’t be sued for something posted by a user — and that remains true even if they act a little like publishers, by moderating posts or setting specific standards.”‘Section 230 is as important as the First Amendment to protecting free speech online, certainly here in the U.S.,’ says Emma Llanso, a free-expression advocate at the Center for Democracy and Technology.”
- “Section 230 is also tied to some of the worst stuff on the Internet, protecting sites when they host revenge porn, extremely gruesome videos or violent death threats. The broad leeway given to Internet companies represents ‘power without responsibility,’ Georgetown University law professor Rebecca Tushnet wrote in an oft-cited paper.
- “Danielle Citron, a University of Maryland law professor who authored the book Hate Crimes in Cyberspace, argues that responsibility is exactly what’s missing from the law.’Yes, let’s think about the consequences for speech,” she says, pointing to the flip side of the free-wheeling Internet. “There are countless individuals who are chased offline as a result of cyber mobs and harassment.'”
C.J. Roberts is Reshaping The First Amendment
Amelia Thomson-DeVeaux, writing for Five Thirty-Eight, has a new article on Chief Justice Roberts and the First Amendment. Here are some excerpts from her article:
“As of the end of the 2016 term, Roberts had written 34 percent of the free speech decisions the court has handed down since he joined its ranks, and 14 percent of his majority opinions were devoted to the topic. Even when he’s not writing for the majority, Roberts is rarely on the losing side: Out of the 38 free speech cases we counted, he voted with the minority only once.”
→ There is more and I urge readers to review the entire article.