Media Law Prof Blog

Inazu on First Amendment Scrutiny: Realigning First Amendment Doctrine Around Government Interests @JohnInazu @WUSTL @WashULaw @BrooklynLawRev

John D. Inazu, Washington University, St. Louis, School of Law, is publishing First Amendment Scrutiny: Realigning First Amendment Doctrine Around Government Interests in the Brooklyn Law Review. Here is the abstract.

This Article proposes a simpler way to frame judicial analysis of First Amendment claims: a government restriction on First Amendment expression or action must advance a compelling interest through narrowly tailored means and must not excessively burden the expression or action relative to the interest advanced. The test thus has three prongs: (1) compelling interest; (2) narrow tailoring; and (3) proportionality. Part I explores how current First Amendment doctrine too often minimizes or ignores a meaningful assessment of the government’s purported interest in limiting First Amendment liberties. Part II shows how First Amendment inquiry is further confused by threshold inquiries into coverage, categories, and content. Part III suggests how a uniform strict scrutiny test could better focus courts on government interests and related analyses. Part IV defends this test against possible objections. Taken seriously, a uniform strict scrutiny test could eliminate cumbersome doctrinal tests and detours that have emerged over the past sixty years. These tests and doctrines are not unprincipled or illogical. In most cases, they emerged out of tough cases and hard issues, with judges and scholars attempting to draw reasonable distinctions and sensible boundaries. But along the way, these approaches became bloated, unwieldy, and difficult to hold together. The result has been a great deal of confusion and head-scratching, including by lower courts attempting to apply Supreme Court precedent. Strict scrutiny shows why these tests and detours are neither necessary nor desirable for First Amendment analysis and how a more simplified analysis better protects our most important civil liberties.

Download the article from SSRN at the link.

Mayer on Nonprofits, Taxes, and Speech @NDLaw @LLSlawreview

Lloyd Hitoshi Mayer, Notre Dame Law School, is publishing Nonprofits, Taxes, and Speech in volume 56 of the Loyola of Los Angeles Law Review. Here is the abstract.

Federal tax law is of two minds when it comes to speech by nonprofits. The tax benefits provided to nonprofits are justified in significant part because they provide nonprofits great discretion in choosing the specific ends and means to pursue, thereby promoting diversity and pluralism. But current law withholds some of these tax benefits if a nonprofit engages in certain types of political speech. Legislators have also repeatedly, if unsuccessfully, sought to expand these political speech restrictions in various ways. And some commentators have proposed denying tax benefits to groups engaged in other types of disfavored speech, including hate speech and fake news. These latter proposals have recently become more prominent as additional facts come to light about the role of nonprofits in supporting white supremacy and in disseminating misleading information about COVID-19 treatments. This Article explores the existing and proposed limitations on speech by tax-exempt nonprofits given the constitutional restrictions on such limitations and the policy justifications for existing nonprofit tax benefits. It explains why the existing limits on political campaign intervention and lobbying by charities are both justified given the subsidy provided to charities and their supporters under existing federal tax law and constitutional given existing and longstanding case law. It further concludes that any expansion of these limits on charities to cover other types of speech, including hate speech and fake news, would be inconsistent with the existing broad definitions of the purposes that charities can pursue as well as, in some circumstances, constitutionally suspect. It also concludes that limits on speech by non-charitable tax-exempt nonprofits, including the existing limit on political campaign intervention for some of these nonprofits, is both unwise as a policy matter and, in some circumstances, constitutionally suspect given the lack of a subsidy for such speech by these nonprofits.

Download the article from SSRN at the link.

Tourkochoriti on Comparative Law and Philosophy of History: The Case of Free Speech in American and French Legal Thought @IoannaTourkocho @UniofGalwayLaw @CambridgeUP

Ioanna Tourkochoriti, Harvard Law School; National University of Ireland, Galway (NUIG) - School of Law; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law, is publishing Comparative Law and Philosophy of History: The Case of Free Speech in American and French Legal Thought in Comparative legal history, the Values, Purposes and Methods of Historical Comparison (Cambridge University Press, forthcoming 2023). Here is the abstract.

This chapter proposes to approach comparative rights jurisprudence from the perspective of philosophy of history. Focusing on the difference in the protection of speech in France and the US, it suggests that comparative history helps make sense of the formation of philosophical conceptions on the appropriate limits to free speech. Some philosophical ideas formed in response to historical facts led to the emergence of legal traditions. These traditions can help us understand the divergence in the protection of freedom of speech between France and the US. The central argument is that the balancing of freedom of speech and other values in France and the United States can be understood by reference to the role of the government and the understanding of liberty. The chapter aims to approach critically two different conceptions of republicanism and their significance for rights. The methodology that it follows is Gadamer’s hermeneutics. Gadamer describes human understanding as formed on the basis of prejudices. By that the means preliminary judgments. The chapter identifies some ideas which form the ex ante understanding of the jurists in a legal system concerning the necessity to protect one liberty over another. The difference in approach between France and the US indicates a profound difference which concerns the “imaginary institution” of society and the state on the two sides of the Atlantic.

Download the essay from SSRN at the link.

Burnworth on Making a Constitutional "Son of Sam" Law: Netflix's Booming True Crime Business @UMassAmherst @hastingsclq

Justin Burnworth, University of Massachusetts, Amherst, is publishing Making A Constitutional 'Son of Sam' Law: Netflix's Booming True Crime Business in volume 49 of the Hastings Constitutional Law Quarterly (2022). Here is the abstract.

We all heard the axiom "crime doesn't pay" growing up, but the ever growing true crime documentary market is proving otherwise. Giant media producers such as Netflix, HBO, and their competitors have made marketable crimes a worthwhile endeavor. Nearly 40 states have passed "Son of Sam" laws to prevent criminals from profiting from their crimes. However, the Supreme Court struck down New York's "Son of Sam" law in 1991 when they ruled that it violated the First Amendment and would allow the government to prevent books by Martin Luther King, Jr. and other pioneers of social justice. New York altered their law in an attempt to remedy its constitutional issues and other states copied their structure. A First Amendment battle is primed to make its way to the Supreme Court once again as high profile criminals, such as the fake heiress Anna Sorokin, have New York's revamped law standing between them and their exorbitant paydays. The states have put up a worthwhile fight, but the First Amendment is a difficult foe to vanquish. It simply is not possible to narrowly tailor a "Son of Sam" law to prevent criminals from profiting from their crimes without it potentially silencing key voices in invaluable social movements in the United States.

Download the article from SSRN at the link.

Nealy on the Social Sanctions on Speech

Thomas Nealy, Seton Hall Law School, is publishing Social Sanctions on Speech at 2 J. Free Speech L. 21 (2022). Here is the abstract.

Social sanctions on speech are ubiquitous. Every day, private actors respond to speech they dislike, disagree with, or find offensive with measures that impose a cost on speakers and thus potentially chill the expression of ideas. Some sanctions, such as criticism and condemnation, are mild and largely unobjectionable, while others, such as violence and vandalism, are severe and clearly unacceptable. Yet there are numerous sanctions in between these two poles and little agreement on which ones are compatible with the principle of free speech. In this essay, I provide a framework for thinking about social sanctions - and the phenomenon of “cancel culture” they are part of. I begin by explaining that social sanctions, in some form at least, are an inevitable and indispensable part of our free speech system. I then consider three possible criteria for distinguishing between permissible and impermissible sanctions - intent, effect, and means—and conclude that we should focus primarily on the means used to sanction. Finally, I argue that whether a particular social sanction is consistent with free speech depends on a balancing of its expressive value and its coerciveness, and I use this approach to plot a variety of social sanctions on the continuum from least to most troubling.

Download the article from SSRN at the link.

Tilley on The First Amendment and the Second Sex @CristinaTilley @arizlrev

Cristina Tilley, University of Iowa College of Law, is publishing The First Amendment and the Second Sex in volume 65 of the Arizona Law Review (2023). Here is the abstract.

Modern American law describes speech in stereotypically masculine terms: it is a “marketplace” where participants “joust” for dominance. Predictably, today’s speech jurisprudence can be hostile to the female voice, implicitly condoning gendered death threats, rape threats, doxing, and trolling as the necessary price of a vibrant national discourse. Unpredictably, the American Civil Liberties Union (“ACLU”) and its leading women drafted the blueprint for this modern speech edifice. The First Amendment and the Second Sex traces the ACLU campaign to dismantle a nineteenth-century speech regime that silenced some men while protecting many women. And it suggests that ACLU feminists—intent on securing full legal and cultural equality with men—were complicit in this effort because they scoffed at the domesticated version of womanhood shielded by protective speech torts like slander. This Article begins by surfacing the deep architecture of nineteenth-century life and law, with its bright boundaries between public and private. When speech regulation was commonplace and the First Amendment slept, public law was free to punish government criticism in the public sphere—a distinctly anti-democratic phenomenon. At the same time though, women in the private sphere targeted by domestic gossip had generous remedies in private law—a distinctly empowering phenomenon. It then shows how, throughout the twentieth century, the ACLU urged the Supreme Court to treat all law as public law and all life as public life. Across this new public terrain, the group argued, speech regulation should be replaced with self-help in the form of muscular counterspeech. ACLU luminaries on the distaff side joined this campaign, convinced that women were on the cusp of full public citizenship. Because this cultural turn would give women status to counterspeak, they were certain the protection of remedial speech torts would grow obsolete. Today it appears that the women of the ACLU fatally miscalculated. American law has adopted the premise that all can navigate the deregulated marketplace of ideas by marshaling ideas and intellect. But American culture clings to the preference for private womanhood, producing gendered consequences for female speech. Modern women who bring their ideas into the public sphere are just as likely to be refuted with attacks on their domestic status or sexuality as they are with intellectual rejoinders. Stripped of the private law that used to repel such threats, these women are left either to counterspeak in ways that aggravate their personal peril or to withdraw from the speech arena altogether. The Article contends the time has come to acknowledge the tax that speech law extracts from women, and to ask whether today’s expressive marketplace is fair or foul.

Download the article from SSRN at the link.

Kang On Against Political Speech @UNM_Law

John M. Kang, University of New Mexico School of Law, is publishing Against Political Speech in volume 22 of the Nevada Law Journal (2022). Here is the abstract.

The Supreme Court has dedicated itself to the proposition that political speech, more than any other category of speech, is deserving the highest protection. This Article argues that the Supreme Court’s heightened protection for political speech is unjustified. The Article is organized as follows. Part I summarizes how the Supreme Court has privileged political speech. Part I then identifies two arguments that have been enlisted by the Court and scholars to support the contention that political speech deserves the highest protection from the Constitution. The Article will explain why both arguments are unpersuasive. Even if scholars and the Supreme Court were able to defend their position that political speech deserved the highest protection, Part II will argue that the effort to afford special protection to political speech is nevertheless unfeasible. For “political” speech is much too difficult to define. Part III raises a different objection to the Court’s elevation of political speech. The heightened protection that the Court has granted to political speech frequently comes at the cost of two essential goods which are indispensable to society: civility and dignity. Part III argues that the Court has failed to justify why political speech should take precedence over these countervalues.

Download the article from SSRN at the link.

Student Press Law Center Accepting Applications For Legal Intern @SPLC

From Josh Moore, Assistant Director, Student Press Law Center:

 

The Student Press Law Center is accepting applications for a remote Summer 2023 legal intern. The internship is a terrific opportunity for law students interested in media law topics and the First Amendment and free press rights of journalists, and particularly student journalists.

Our paid legal internship is open to all U.S.-based law students who will have completed their first year of law school before the internship begins. The full-time internship will last 8 to 10 weeks and begin around May 29, though exact start and end dates are flexible.

The full posting, with information on how to apply, is here. Applications will be considered on a rolling basis but must be received by email no later than 11:59 p.m. eastern on March 20. Interested students are encouraged to apply early.

Please share this opportunity with any students who may be interested. Thank you!

Soucek and Chen on Misunderstanding Meriwether @BRSoucek @UCDavisLaw

Brian Soucek and Ryan Chen, both of the University of California, Davis, School of Law, have published Misunderstanding Meriwether as a forthcoming UC Davis Legal Studies Research Paper. Here is the abstract.

Meriwether v. Hartop is widely seen as one of the most important academic freedom and transgender rights cases of recent years. Whether praising it as a victory for free speech, or condemning it as a threat to educational equality, commentators across the political spectrum have agreed on one thing: the Sixth Circuit did something big when it held that professors at public universities have a First Amendment right to misgender their students in class. But contrary to popular belief, Meriwether held no such thing. In fact, the Sixth Circuit could not have held what nearly everyone believes, given the case’s procedural posture. Meriwether has been misunderstood, and this Article aims to put a halt to the false narrative that has emerged around Meriwether before its consequences continue to spread. Where previous work has explained why Meriwether’s holding is wrong, this Article delves into the complicated intersection of civil procedure and government employee speech claims to show why Meriwether’s holding is different, and far less important, than its foes and friends alike seem to think. In doing so, the Article also shows how a false legal narrative can develop, spreading from an opinion that encourages the mistake, to advocates and press who eagerly report it, to commentators, legislators, and courts each with reasons of their own for inflating the opinion’s importance, eroding gender identity protections along the way. This Article, finally, situates the widespread misunderstanding of Meriwether alongside other precedential mistakes and offers insight into how they might be counteracted before further distorting the law and threatening important equality rights.

Download the article from SSRN at the link.

Newly Published: Samantha Barbas: Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan (UC Press, 2023) @ucpress @UBSchoolofLaw

Newly published:

Samantha Barbas, University at Buffalo School of Law, Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan (University of California Press, 2023).   (Release date is 2/21). Here from the publisher's website is a description of the book's contents.

 

Actual Malice tells the full story of New York Times v. Sullivan, the dramatic case that grew out of segregationists' attempts to quash reporting on the civil rights movement. In its landmark 1964 decision, the Supreme Court held that a public official must prove "actual malice" or reckless disregard of the truth to win a libel lawsuit, providing critical protections for free speech and freedom of the press.

Drawing on previously unexplored sources, including the archives of the New York Times Company and civil rights leaders, Samantha Barbas tracks the saga behind one of the most important First Amendment rulings in history. She situates the case within the turbulent 1960s and the history of the press, alongside striking portraits of the lawyers, officials, judges, activists, editors, and journalists who brought and defended the case. As the Sullivan doctrine faces growing controversy, Actual Malice reminds us of the stakes of the case that shaped American reporting and public discourse as we know it.

Levi on Disinformation and the Defamation Renaissance @LiliLevi_UMLaw @MiamiLawSchool @URLawReview

Lili Levi, University of Miami School of Law, is publishing Disinformation and the Defamation Renaissance: A Misleading Promise of “Truth” in volume 57 of the University of Richmond Law Review (2023). Here is the abstract.

Today, defamation litigation is experiencing a renaissance, with progressives and conservatives, public officials and celebrities, corporations and high school students heading to the courthouse to use libel lawsuits as a social and political fix. Many of these suits reflect a powerful new rhetoric—reframing the goal of defamation law as fighting disinformation. Appeals to the need to combat falsity in public discourse have fueled efforts to reverse the Supreme Court’s press-protective constitutional limits on defamation law under the New York Times v. Sullivan framework. The anti-disinformation frame could tip the scales and generate a majority on the Court to dismantle almost 60 years of constitutionalized defamation law. The new anti-disinformation frame brings with it serious democratic costs without clear corresponding benefits. Defamation lawsuits cannot credibly stem the systemic tide of disinformation or predictably correct reputational harm, but they do threaten powerful chilling effects for the press, super-sized by our current socio-historical context. Especially as claims of disinformation drift away from political speech to economic and social matters, this as a distinct justification increasingly evaporates. Lest progressives too quickly rejoice over the apparent success of their disinformation claims against right-wing media, anti-disinformation defamation litigation presents an equal opportunity invitation—and conservative cases are already on track. The new disinformation frame for defamation suits offers an illusory distraction and further politicizes defamation. Instead, the Article suggests a shift of focus to the audience in order to advance the anti-disinformation project while returning defamation law to its traditional concern with individual reputation.

Download the article from SSRN at the link.

Tenzer on Destroying Defamation @ProfLGTenzer @HaubLawatPace

Leslie Y. Garfield Tenzer, Pace University School of Law, has published Destroying Defamation. Here is the abstract.

Fake News is destroying defamation. The recent proliferation of rushed journalism, online conspiracy theories, and claims that almost every news story is, in fact, “Face News” have created a desert of veracity. Widespread public skepticism about even the most mainstream Internet reporting means plaintiffs will have difficulty convincing jurors that third parties believed any reported statement to be true. Without such proof, it's almost impossible for a plaintiff to prove the elements of defamation. To establish defamation, a plaintiff must show that the defendant “published” to a third party a false statement, purporting to be fact, which caused reputational harm. Hyperbolic language or other indications that a statement was not meant to be taken seriously are not actionable. Today’s understanding that everything on the Internet is susceptible to manipulation is destroying defamation. This article explains the unforeseen consequence of labeling news as “fake.” The article begins with a historical review of Fake News, concluding with an understanding of the phenomenon in its current iteration. It follows with a discussion of the tort of defamation. It explores the uniqueness of proving online statements as libel or slander. It illustrates how plaintiffs bringing defamation claims for Internet statements will have difficulty persuading a judge that the message was factual and not merely hyperbole. Even if the judge finds a statement to be fact, allowing the issue to move to the jury, a plaintiff in today’s Fake News climate is unlikely to convince a jury that a reasonable person would find the statement defamatory. The abundance of fake news, the media’s rush to publish, and external attacks on credible journalism have created a problematization of truth among members of society. The potential for defamatory harm is minimal when the veracity of a news story is questionable. This paper argues that the presence of Fake News is a blight on this cause of action that threatens to erode defamation to the point of irrelevance.

Download the article from SSRN at the link.

Cohen-Almagor on Holocaust-Denial and the Abuse of Education @almagor35

Raphael Cohen-Almagor, Centre for Advanced Middle Eastern Studies; Middle East Study Centre; Woodrow Wilson International Center for Scholars; University of Hull, has published Holocaust Denial and the Abuse of Education in Festschrist Joerden (Joanna Długosz-Jóźwiak et al, eds., Europa-Universität Viadrina Frankfurt Oder, 2023).

This article is opened by explaining a specific type of hate speech: Holocaust denial. I will establish that Holocaust denial is a form of hate speech. The article is concerned with the expression of this idea by educators. I make some constructive distinctions that will help in crystallizing our treatment of teachers who are Holocaust deniers. Should we allow Holocaust deniers to teach in schools? I will attempt to answer this question through a close look at the Canadian experience in dealing with such educators. In this context, the article probes the leading case of James Keegstra. I will argue that hate mongers cannot assume the role of educators. Educating and preaching hate come one at the expense of the other. You can either educate or preach hate. You cannot do both.

Download the essay from SSRN at the link.

Happy Birthday, Newton Minow!

Happy birthday, Newton Minow! Born January 17, 1926.

 

Cowls and Ma on The "Internet's Town Square"? A Critical Discourse Analysis of Parler's Free Speech Imaginary @joshcowls

Josh Cowls and Cindy Ma, both of the University of Oxford, Oxford Internet Institute, have published The 'Internet's Town Square'? A Critical Discourse Analysis of Parler's Free Speech Imaginary.  Here is the abstract.

The discursive construction of sociotechnical imaginaries by the leaders of platform companies can help legitimize their platforms, shaping how they are perceived and ultimately regulated. Scholars have identified the construction of “future imaginaries” by leaders of large platform companies such as Meta—but do smaller platforms also seek to construct imaginaries, and if so, what form do they take? In this article we undertake a critical discourse analysis of public pronouncements by John Matze, co-founder and CEO of the fringe social media platform Parler. Parler gained significant popularity among right-wing users during 2020, before it was removed from Apple’s and Google’s app stores in January 2021 following the riot at the United States Capitol. Using van Leeuwen’s framework for discursive legitimation, we analyze a curated dataset of 186 news articles to identify the legitimating themes that Matze invoked in his discursive construction of Parler throughout 2020. We find that Matze foregrounded free expression, and with it the vision of Parler as a “town square,” to legitimate his fledging platform. However, this discursive construction must be understood in the context of Parler’s base of predominantly right-wing users, many of whom turned to Parler because of the perceived “bias” and “censorship” of mainstream platforms. We argue that, in contrast to the future imaginaries constructed for large platform companies like Meta, Matze’s discursive strategy constructed an imaginary that was fundamentally retrograde. We tie Parler’s backwards-looking free speech imaginary to efforts by far-right groups to justify and legitimate racist hate speech in increasingly platformized societies.

TGP v. Maricopa County

From Marc Randazza:

 

TGP v. MARICOPA

CASE DESCRIPTION:  In this case, Maricopa County had a tense relationship with The Gateway Pundit and its reporter, Jordan Conrad.  Prior reporting by Conrad and TGP led to the resignation of a Maricopa county official.  In the 2022 election, Maricopa County became the flashpoint for reporting on the election, and Maricopa decided to institute a “press pass” policy under the guise of claiming that it was to protect county officials.  However, Maricopa County used the vague press pass guidelines as a way to exclude TGP and Conradson, claiming that they were “biased” and were not “quality journalism.”   

TGP and Conradson sued in the District of Arizona, where Judge Tuchi denied a motion for injunctive relief, finding that the government’s actions were permissible under the First Amendment.  

TGP and Conradson appealed on an emergency basis to the 9th Circuit Court of Appeals, which immediately reversed on an emergency basis granting an injunction pending the outcome of the appeal, which it also expedited.  

A number of First Amendment and media organizations filed amicus briefs.  

The outcome is still pending.  

DOCS - 9th Circuit: 

1.  
2.  
3. TGP Emergency petition to 9th Circuit:
4. https://randazza.com/wp-content/uploads/Gateway-Injunction-Motion.pdf
5.  
6.  
7.  
8. Government Opposition to emergency petition:
9. https://randazza.com/wp-content/uploads/Gateway-Injunction-Opposition.pdf
10.  
11.  
12.  
13. TGP Reply:
    
    
14. https://randazza.com/wp-content/uploads/Gateway-Injunction-Reply.pdf
15.  
16.  
17.  
18. Order granting injunction pending appeal:
19. https://randazza.com/wp-content/uploads/Gateway-Pundit-CA9-Order.pdf
20.  
21.  
22.  
23. Opening Brief for Main Appeal: 
24. https://randazza.com/wp-content/uploads/TGP-Opening-Brief-CA9.pdf
25.  
26.  
27.  
28. Government Answering Brief - not yet filed
29.  
30.  
31.  
32.  
33. TGP Reply Brief - not yet filed 
34.  
35.  
36.  
37. AMICUS BRIEFS
38.  

1.  
2.  
3. St. Michael’s Media -
4. https://randazza.com/wp-content/uploads/TGP-Amicus-St.-Michaels.pdf
5.  

1.  
2.  
3. Conrad Communications -
4. https://randazza.com/wp-content/uploads/TGP-Amicus-Conrad-Communications.pdf
5.  

1.  
2.  
3. Stanton Foundation -
4. https://randazza.com/wp-content/uploads/TGP-Amicus-Stanton-Foundation.pdf
5.  

1.  
2.  
3. FIRE & the Brechner First Amendment Project -
4. https://randazza.com/wp-content/uploads/TGP-Amicus-1A-Project.pdf
5.  

1.  
2.  
3. The First Amendment Lawyers’ Association -
4. https://randazza.com/wp-content/uploads/TGP-Amicus-FALA.pdf
5.  

1.  
2.  
3. We the People -
4. https://randazza.com/wp-content/uploads/TGP-Amicus-We-the-People.pdf
5.  
6.  

DOCS - District Court:

1.  
2.  
3. Complaint -

• https://randazza.com/wp-content/uploads/Gateway-AZ-Complaint.pdf

1.  
2.  
3.  
4. Motion for TRO -

• https://randazza.com/wp-content/uploads/Gateway-AZ-TRO-Motion.pdf

1.  
2.  
3.  
4. Opposition -

• https://randazza.com/wp-content/uploads/017-Response-to-TRO-Motion.pdf

1.  
2.  
3.  
4. Transcript -
5. https://randazza.com/wp-content/uploads/Gateway-TRO-Transcript.pdf 
6.  
7.  
8.  
9. Order -
10. https://randazza.com/wp-content/uploads/Gateway-Order-re-TRO-Motion.pdf
11.  

PRESS: 

1.

AZ Central - Maricopa Can’t Block Gateway - https://archive.ph/ieR7U

2.

VOLOKH 

A.

Article - Amusing Passage … TRO

https://reason.com/volokh/2022/11/16/amusing-passage-from-gateway-pundits-motion-for-tro-to-get-press-credentials/

1. Article - Court Rules Against Press Pass - https://reason.com/volokh/2022/11/23/court-rules-against-the-gateway-pundit-in-request-for-press-pass/
2. Article - 9th Cir Orders Press Pass - https://reason.com/volokh/2022/12/06/ninth-circuit-orders-press-pass-for-the-gateway-pundit-pending-appeal/

Koppelman on The Emerging First Amendment Right to Mistreat Students @AndrewKoppelman @CaseWRsrvLRev

Andrew Koppelman, Northwestern University School of Law, is publishing The Emerging First Amendment Right to Mistreat Students in the Case Western Reserve Law Review. Here is the abstract.

Under the long-settled tradition of religious liberty, religious people may not demand a right to invade and direct the public sphere, to alter the delivery of state functions in order to force their views upon nonadherents. Yet in two prominent cases, Kennedy v. Bremerton in the Supreme Court and Meriwether v. Hartop in the Sixth Circuit, courts have held that publicly employed teachers may exercise their First Amendment rights of free speech and religion even when doing so mistreats students. In both cases, despite a long-established rule of deference to public employers’ need to control their own operations – and despite mighty efforts to accommodate difficult employees - public schools lost the capacity to protect students from misbehaving teachers. In each, the school proposed a solution that would give appropriate weight to each side’s most urgent interests. Not good enough, the court decreed: the religious side must be granted an absolute and uncompromising victory. It was oblivious to the countervailing interest. The language of privacy and autonomy was deployed to enable the religious to wield state authority and harm their students. These are only two cases. But they come from high federal courts, one from the Supreme Court, and their similarity of approach, and resemblance to other recent treatments of religious liberty by the Court, is a reasonable basis for alarm.

Download the article from SSRN at the link.

Rozenshtein and Sugarman on January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution @ARozenshtein @UofMNLawSchool @jedshug @FordhamLawNYC @ConstComm

Alan Z. Rozenshtein, University of Minnesota Law School, and Jed Handelsman Shugerman, Fordham Law School, are publishing January 6, Ambiguously Inciting Speech, and the Overt-Acts Solution in volume 37 of Constitutional Commentary (2023). Here is the abstract.

A prosecution of Donald Trump for his role in the January 6 attack on the Capitol would have to address whether the First Amendment protects the inflammatory remarks he made at the “Stop the Steal” rally. A prosecution based solely on the content of Trump’s speech—whether for incitement, insurrection, or obstruction—would face serious constitutional difficulties under Brandenburg v. Ohio’s dual requirements of intent and likely imminence. But a prosecution need not rely solely on the content of Trump’s speech. It can also look to Trump’s actions: his order to the remove the magnetometers from the entrances to the rally and his repeated attempts to join the crowd at the Capitol. This Article proposes a requirement of overt acts for the prosecution of ambiguously inciting speech. Trump’s overt acts offer a principled basis for criminal liability for Trump’s speech, while preserving Brandenburg’s prophylactic approach to protecting against the overcriminalization of speech. The prosecutorial use of overt acts also accords with historical practice going back to the Founding, when the Framers, influenced by prevolutionary English practice, required evidence of overt acts for the most serious of crimes: treason. In an age of increasing political polarization and violence, drawing a line between permitted and prohibited by our political officials is of the utmost importance. This essay is an attempt to make that line clearer.

Download the article from SSRN at the link.

Trouillard on Why Social Media Platforms Are Not Speakers @PaulineTrouilla @OhioStateTechLJ

Pauline Trouillard, Yale Law School, is publishing Social Media Platforms are not Speakers in the Ohio State Technology Law Journal. Here is the abstract.

Many authors have assumed that social media platforms make use of their own First Amendment rights when they moderate content and amplify messages written by others on their platforms. This vision relies on the fact that platforms should be seen as ‘speaking’ through their ranking decisions and their removal decisions. This is because companies – through their written software, built by their engineers – are said to communicate their editorial choices and predictions for users. This article argues, on the contrary, that social media platforms are not speakers, and more precisely that their recommendation and content moderation system is not speech for the purpose of the First Amendment. Building on a sociological theory of First Amendment coverage and taking into account the social context that surrounds interactions between social media platforms and users, this article seeks to debunk the ideas on which authors rely in claiming that social media platforms have First Amendment rights when they host and amplify content. It argues that such a claim is based on a misconception of what social media platforms do when they curate the content produced by their users and a misconception of the role of algorithms in that process. It first shows that in most cases, social media platforms are not comparable to editorial mediums such as magazines or parades. It then shows that in most cases, social media platforms cannot be seen as speaking through the algorithmic recommendation system. Finally, it offers the view of social media platforms as a technical medium that is integral to the forms of interaction that happen between users. If social media platforms are not speakers, they are still proprietary of the space they put at the disposal of their users. As such, the service they provide can be regulated through contract law and consumer law, as soon as the State does not target the interactions between users - that are covered by the First Amendment.

Download the article from SSRN at the link.

Tsesis on Incitement to Insurrection and the First Amendment @LoyolaLaw @WFULawReview

Alexander Tsesis, Loyola University Chicago School of Law, is publishing Incitement to Insurrection and the First Amendment in the Wake Forest Law Review (2022). Here is the abstract.

The free exchange of ideas, particularly in the political context, is critical to representative democracy. Intrinsic to the United States’ constitutionally mandated commitment to the open marketplace of ideas is the robust protection of unpopular, and sometimes even harmful, speech. Federal statute, however, criminalizes advocacy that incites insurrectionary action likely to undermine or overthrow the democratic order of the government. This Article is the first survey and critique of the multifaceted doctrinal complexity of prosecuting incitement to insurrection. The Supreme Court has long recognized that incitement to violence that poses an imminent threat of harm is not constitutionally protected. The simple imminence test, however, lacks adequate nuance to meet security needs that arise when political insurrection becomes a realistic possibility but does not yet pose an immediate threat. In place of current doctrine, the Article recommends a hybrid clear and imminent threat test for the prosecution of insurrectionary leaders who intentionally fire up mobs in order to gain or retain political offices through subterfuge, intimidation, threats, and brute force. It advocates that intentional dissemination of ideas likely to instigate violent, extra-constitutional efforts to overturn representative government should not be judged on immediacy. Instead, courts should review the context within which a speaker foments and incites followers to engage in insurrectionary conduct. This test strikes a balance between national security and First Amendment interests, safeguarding the expression of unpopular ideas while also preventing political leaders from using the First Amendment as a shield against criminal responsibility for inciting actions.

Download the article from SSRN at the link.