Category Archives: Free Speech

Hard Cases…

As I used to tell my students, cases rarely make it to the Supreme Court unless they’re difficult–unless there are persuasive arguments on both (or several) sides of the issue or issues involved. That admonition has actually become debatable as the current Court, dominated by religious “originalists,” has accepted cases that previous Courts wouldn’t have agreed to hear, but it remains largely true.

And hard cases, as the old legal precept warns, make bad law.

Which brings me to a First Amendment Free Speech case currently pending at the U.S. Supreme Court.

The question before the Court is the constitutionality of laws passed by Florida and Texas that restrict social media giants from removing certain political or controversial posts–in other words, from moderating the content posted to their platforms. As the Washington Post reported,

During almost four hours of argument Monday, the Supreme Court justices considered whether state governments can set the rules for how social media platforms curate content in a major First Amendment case with implications for the future of free speech online.

The laws being litigated are an effort to prevent social media companies from removing “conservative” viewpoints. The laws would impose strict limits on whether and when firms can block or take down content on their platforms.
At the heart of the matter is the issue highlighted by an exchange between Justice Alito and lawyer Paul Clement.
Justice Samuel Alito pressed NetChoice — a group representing the tech industry — to define the term “content moderation,” asking whether the term was “anything more than a euphemism for censorship.” “If the government’s doing it, then content moderation might be a euphemism for censorship,” said Paul Clement, an attorney representing NetChoice. “If a private party is doing it, content moderation is a euphemism for editorial discretion.”
I’ve frequently posted about Americans’ widespread lack of civic literacy–especially about censorship and freedom of speech. It is depressing how few citizens understand that the Bill of Rights is essentially a list of things that government is forbidden to do. Government is prohibited from dictating our beliefs, censoring our communications, searching or seizing us without probable cause, etc. Those restrictions do not apply to private actors, and for many years, courts have recognized the right of newspapers and other print media to decide what they will, and will not, print, in the exercise of their Free Speech rights.
Perhaps the most important question posed by the recent First Amendment challenges to Texas and Florida’s new social media laws is whether platforms exercise a constitutionally protected right to “editorial discretion” when they moderate speech. The platform’s central challenge to both laws is that their must-carry and transparency obligations infringe on that right by interfering with the platforms’ ability to pick and choose what speech they host on their sites. It’s the same right, they argue, that newspapers exercise when they pick and choose what speech appears in their pages.
In other words, whose First Amendment rights will we protect? Or to put it another way, does the First Amendment give all of us a right to have our opinions disseminated by the social media platform of our choice? Or, to ask that in a different way, if the First Amendment protects speech, does it also protect the right of powerful social media companies to suppress the speech of some number of people who use their platforms?
The Knight Foundation argues
The First Amendment is not concerned solely—or perhaps even primarily—with the maximization of speech per se. Instead, what it protects and facilitates is the kind of information ecosystem in which free speech values can flourish. Courts have recognized that protecting the right of speech intermediaries to choose what they do and do not publish—in other words, protecting their right to editorial discretion—is a necessary means of creating that kind of environment.
Most of us have concerns about the content moderation policies of these enormously influential and powerful sites. The question before the Court is–once again–who decides? Are those who run those sites entitled to decide what appears on them, or can government control their decisions?
Elon Musk’s takeover of Twitter (now ridiculous “X”) and his idiosyncratic definition of “free speech” has turned that site into a cesspool of anti-Semitism and conspiracy theories. The First Amendment currently gives him the right to make the site odious, just as Facebook has the right to remove racist and other objectionable posts. We the People decide which platforms we will patronize.
As I used to tell my students, the Bill of Rights addresses a deceptively simple question: who has the right to make this decision?
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Defining Free Speech

When I taught about the First Amendment’s Free Speech protections, I would sometimes ask students to differentiate between a person pontificating that “Someone should lead a revolt against the government,” and a person at the head of an angry crowd moving toward a government official and yelling “We’re coming for you.”

The first of those is protected speech–it’s the utterance of an opinion. We might dislike the opinion, we might find it infuriating (much like burning a flag, which is the expression of a similar opinion), but it is an opinion, and protected by the First Amendment. The second, however, is a threat. To the extent that words constitute a credible threat, they are not within the protection of the First Amendment. Granted, it isn’t always easy to tell the difference between an angry exhortation and a genuine threat, but legally, they are different.

A recent article in the New York Times considered the rise of anti-Semitic incidents on the nation’s campuses, and drew that distinction.

Free speech, open debate and heterodox views lie at the core of academic life. They are fundamental to educating future leaders to think and act morally. The reality on some college campuses today is the opposite: open intimidation of Jewish students. Mob harassment must not be confused with free speech.

Fareed Zakaria made much the same point in an essay in The Week.

I have strongly condemned the attacks of Oct. 7. I think that those who praise Hamas in any way are blind to the reality that it has been the principal opponent of a two-state solution to the Israeli-Palestinian question. But the question to grapple with is how to handle views that either side finds deeply offensive. And of course, speech and assembly are not the same as physical intimidation and harassment, which prevent civil discourse…

The basic argument for free speech… is that it is better to hear those you violently disagree with than to ban or silence them. That way, debate happens out in the open and points are matched with counterpoints. The alternative is to drive discourse into the shadows and gutters of political life where it festers, turns into conspiracy theories, and often erupts into violence.

David French –a noted expert on the First Amendment–underlined the point that– just as there are international rules that apply to shooting wars, there are constitutional rules that apply to our nation’s culture wars. As he explained, “applying those rules properly is one way that a continent-size, multi-faith, multicultural society peacefully perseveres through profound division.”

Our civilization is intended to be a rights-based liberal democracy, where people who possess diametrically opposed points of view cannot just survive but also thrive without compromising their most fundamental beliefs — so long as they don’t interfere with the rights of others.

As French reminds his readers, freedom of speech includes freedom to be offensive and provocative–even freedom to advocate violence, but not to “incite or produce” lawless action.

Under this construct, public support for Hamas — or public support for carpet bombing Gaza — is constitutionally protected, even if it’s gross and immoral, and public institutions that suppress such speech violate the First Amendment….

However,

The right to speak does not include a right to silence others. Putting up a poster is an act of protected speech. Tearing down that poster is not, even if the person destroying the poster is trying to make his or her own statement. Tearing down a poster is akin to shouting down a public speaker. Your protest cannot trump the speaker’s own right to free speech. The answer to a poster is another poster, not destroying the expression you hate, by tearing it down or defacing it any way…

The right to speak does not include a right to harass. This last concept is perhaps the most difficult to understand and apply consistently. The right to speak, as I said, absolutely includes a right to offend. The government cannot silence your speech simply because it makes people angry or upset…

This is a strict standard but certainly one that applies to threats and to acts of physical intimidation. If anti-harassment laws mean anything, they mean that students shouldn’t have to fear for their safety from fellow students simply because of their race, color or national origin. 

The prohibition of harassment includes actions prompted by antisemitism and Islamophobia that “detract from the victims’ educational experience.” 

I strongly recommend clicking through and reading French’s essay in its entirety, because it is an excellent primer on the constitutional interpretation and critical importance of  America’s Free Speech doctrine.

Bottom line: In America, people with defensible points of view express them through speech, not through vandalism, intimidation or thuggery. 

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Life, Liberty, Language

Depressing though it is, I have to give MAGA Republicans credit for their ability to (mis)use language–their talent for appropriating/twisting the usual meanings of words in ways that resonate with with Americans who–for whatever reason–don’t stop to unpack what is actually going on.

We’ve finally gotten to a place where most Americans do recognize that many of the people claiming to be “pro-life” are actually only pro-birth. To be genuinely pro-life would require support for feeding, clothing and educating the children who emerge from those wombs; it would require support for women’s health, and recognition that interventions needed to save pregnant women’s health and lives should be determined by doctors, not politicians.

And I won’t even address the inconsistencies of those “pro-life” zealots who favor the death penalty. (I once challenged a colleague who was pro-birth and pro-death penalty; his response was that criminals had “forfeited” their right to continue breathing…)

Now, of course, we have “Moms for Liberty.” Liberty is another one of those words that has taken a real beating from the crazed MAGA crowd; I was particularly fascinated by the lunatics who claimed that wearing a mask during a pandemic in order to protect their friends and neighbors from disease violated their rather peculiar definition of “liberty.” These were almost always the same people who want government to dictate women’s  reproduction and trans children’s choice of bathroom.

Let’s just say their definition of “liberty” is highly selective..

The most recent group to misuse the term is “Moms for Liberty,” and like most theocratic and autocratic folks, “Moms” misuse the terminology. Their real motto ought to be “Liberty for me but not for Thee.”

The Brookings Institution recently issued a report on those self-righteous moms. The report included the fact that the Indiana chapter had been in the news for featuring an Adolf Hitler quote in its newsletter.

That quote–which they hastily withdrew after considerable attention to it from local media–would seem to confirm the description of the group by the Southern Poverty Law Center, which identifies Moms for Liberty as a “far-right organization that engages in anti-student inclusion activities and self-identifies as part of the modern parental rights movement. The group grew out of opposition to public health regulations for COVID-19, opposes LGBTQ+ and racially inclusive school curriculum, and has advocated books bans.”

Moms for Liberty is an antigovernment organization founded in 2021 by former Florida school board members, Tiffany Justice and Tina Descovich. Current Sarasota County, Florida school board member, Bridget Ziegler, was also a co-founder. She has since left the group, leaving Justice and Descovich at the helm.

Moms for Liberty and its nationwide chapters combat what they consider the “woke indoctrination” of children by advocating for book bans in school libraries and endorsing candidates for public office that align with the group’s views. They also use their multiple social media platforms to target teachers and school officials, advocate for the abolition of the Department of Education, advance a conspiracy propaganda, and spread hateful imagery and rhetoric against the LGBTQ community.

SPLC followed that description with a list of quotes from members, and–assuming you can stomach the vitriol–you really have to read what the actual “moms for liberty” have to say. It’s incredibly hateful. They seem especially fixated on the notion that gender dysphoria exists, calling it a “mental illness,” but the animus extends far beyond gay children; one “mom for liberty” threatened to shoot a librarian. (I guess “liberty” doesn’t extend to our right to read books these fearless warriors disapprove of…)

SPLC reports that the “social media accounts and real-world activity of the national organization and its chapters” is filled with antigovernment and conspiracy propaganda, and especially with anti-LGBTQ and anti-gender identity diatribes. The group also opposes  inclusive curricula, and is firmly anti-public school. (In case you hadn’t noticed,  teachers’ unions are the devil’s handiwork…)

I began my professional life as a high-school English teacher, and I continue to believe that words have meanings–both connotations and definitions. Among the multitude of problems we face in our effort to create and maintain a government that functions properly and respects all of its increasingly diverse citizens, communication is key. And key to our ability to communicate is our use of accurate language.

I don’t know how “pro-life” people who don’t care about the lives of children once they’re born–or the lives of women experiencing dangerous pregnancies– define “pro life.”  I’m pretty sure “moms for liberty” haven’t the slightest notion what “liberty” actually means.

Along with everything else we need to do, Americans really need to reclaim the English language…

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Just WOW…

It appears that our fearless (okay, feckless) lawmakers have identified a dire threat to America and its children–librarians. The Washington Post recently reported on one of the current allegations–this one by Senator Mike Lee of Utah–

“The goal is to sexualize children — to provide minors with sexually explicit material … and then hide this content from the parents.”

The American Library Association is facing a partisan firefight unlike anything in its almost 150-year history. The once-uncontroversial organization, which says it is the world’s largest and oldest library association and which provides funding, training and tools to most of the country’s 123,000 libraries, has become entangled in the education culture wars — the raging debates over what and how to teach about race, sex and gender — culminating in Tuesday’s Senatorial name-check.

Lee isn’t alone. The increasingly insane Right is intent upon painting the ALA as a defender of pornographic literature for children. MAGA warriors insist that the nation’s libraries, including school libraries, are filled with sexually explicit, inappropriate texts.

Attacks on libraries are part and parcel of what Isaac Asimov called the “cult of ignorance,” a phenomenon that we see in contemporary dismissals of expertise as “elitism”and the cyclical eruptions of anti-intellectualism in the United States. Asimov’s famous quote probably says it best:

There is a cult of ignorance in the United States, and there always has been. The strain of anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that “my ignorance is just as good as your knowledge.”

America’s libraries are our intellectual gatekeepers, safeguarding our ability to access practical information as well as hard-won wisdom that has been built up over centuries. Attacking them is an attack on human intellectual progress–a declaration that, as Asimov aptly framed it, ignorance is just as good as knowledge.

We’ve been here before. In a speech in 2014, I argued that libraries as we know them are important protectors of what I call “the American Idea.” I spent six years as Executive Director of the Indiana Civil Liberties Union, and of all the lessons I learned during that time, the most profound was this: the future of western liberal democracy rests on the preservation of intellectual freedom.

That preservation, of course, is the library’s mission.

America’s Constitution is grounded in the Enlightenment concept of the individual as a rights-bearing, autonomous being. That concept is integral to our legal system; it is the foundation upon which our forbears erected the Bill of Rights. The Founders envisioned the good society as one composed of morally independent citizens whose rights in certain important circumstances “trumped” both the dictates of the state and the desires of the majority.….The First Amendment is really an integrated whole, protecting our individual right to receive and disseminate information and ideas, to consider arguments and theories, to form our own beliefs and craft our own consciences.  It answers the fundamental social question– who shall decide? — by vesting that authority in each individual, subject to and consistent with the equal rights of others.

Implicit in the First Amendment is the legal system’s concept of personal responsibility, the University’s commitment to academic freedom, the moral authority of the clergy, the independence of the media, and the legitimacy of the political process.

That exercise of personal responsibility requires untrammeled access to information. For that matter, protection of civil liberties of every kind depends upon  and requires intellectual freedom.

As I noted on this site back in April, the culture warriors out to terrorize Marian the Librarian are seeing considerable success. In an Urban Library Trauma study conducted in 2022, more than two-thirds of respondents reported encountering violent or aggressive behavior from patrons at their library.

Groups such as Moms for Liberty, No Left Turn in Education and Parents Defending Education aren’t the only ones fighting to remove books by Black and LGBTQ+ authors.  Proud Boys have taken to storming into Drag Queen Story Hour events, for instance, causing serious fear for patrons and librarians.

Lest we give these censors the benefit of the doubt, thinking they are identifying mostly trashy books, it’s instructive to consult the AIA’s annual list of the most frequently challenged books. They include Harper Lee’s To Kill a Mockingbird, John Steinbeck’s Of Mice and Men, and Toni Morrison’s The Bluest Eye.

Challenges are overwhelmingly aimed at books by or about LGBTQ+ people, and books critical of racism. (The most censored books of all times are 1984, The Adventures of Huckleberry Finn, The Catcher in the Rye, The Color Purple, The Great Gatsby, I Know Why the Caged Bird Sings and Lord of the Flies.)

The culture war isn’t “just” about democracy versus Christian Nationalism. It’s also about ignorance versus knowledge.

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A Cost/Benefit Analysis

Freedom of the press isn’t just implied in the First Amendment’s Free Speech clause, although that clause clearly extends to the media. According to historians, the country’s founders wanted to explicitly protect press information-gathering, because democratic processes depend on an informed electorate.

That understanding–that constitutional principle–is what makes a police raid on a Kansas newspaper so appalling. (When a reader first alerted me to this, I was certain there had to be more to the story–that the initial reports must have been wrong. I was the one who was wrong.)

As NPR has reported:

The small-town Kansas newspaper raided by police officers on Friday had been looking into allegations of misconduct against the local chief just months ago, according to the paper’s publisher, raising further concerns about the law enforcement officers’ motives.

The Marion, Kansas police department confiscated computers, cell phones and a range of other reporting materials from the office of the Marion County Record — the sole local paper in a small city of about 2,000 residents. Officers spent hours in the newsroom. It also seized material from one of its journalist’s homes. Eric Meyer, the publisher and co-owner of the newspaper, said his 98-year-old mother passed away the day after police raided her house, where Meyer was staying at the time. He said he believes the stress from the raid contributed to her death.

The background to the raid is particularly telling: the Record had conducted “routine background checks” just before police chief Gideon Cody took office. That “routine check” was evidently informed by anonymous tips the paper received after it ran a story about his candidacy for the police chief position.

Cody was sworn in as Chief in June, after retiring from the Kansas City Police Department in late April. Meyer was quoted as saying that “It was alarming, to say the least, the number of people who came forward, and some of the allegations they made were fairly serious. We were simply looking into the question.”

When a reporter asked Cody to comment on the allegations, Cody threatened to sue the paper, and the department stopped providing routine information to the newspaper. And then,

County magistrate judge Laura Viar signed a search warrant on Friday morning, authorizing the Marion police department to raid the Record. The warrant cites suspected “identity theft” of a local restaurant owner as the reason for the raid.

On Friday, just after the raid, the Record requested access to the probable cause affidavit — the document that would outline why the judge saw reason to authorize the raid — from the Marion County District Court.

But the court’s written response, reviewed by NPR, indicates that document may not exist.

There’s more, and it will undoubtedly all come out as other media outlets investigate the threat posed to press freedom by this episode. But what is especially troubling is that this bit of official thuggery comes at a time when local newspapers are disappearing. 

As an article in the Atlantic noted, local newspapers don’t just serve democracy–they also save tax dollars. The article cited a story in the Salt Lake Tribune, revealing that San Juan County, Utah, had paid a single law firm hundreds of thousands of dollars in lobbying fees. The story also reported that the firm had overcharged the county, the poorest in the state, by $109,500. Embarrassed, the firm paid the money back.

That one story retrieved for taxpayers a sum that was triple the reporter’s annual salary. As the author of the article noted, funding local news would more than pay for itself.

In addition to providing citizens with the information needed to make democracy work, in addition to the tax dollars saved when government is under the eye of media watchdogs, local newspaper reports feed community , especially in rural areas. A recent article from the Washington Post focused on that function.

At a time when hooligans have hijacked the national discourse with disinformation and paranoia, the Rappahannock News operates in a calmer place where the slow rhythms of rural life are newsworthy — and where, regardless of political views, its readers are unified by a powerful sense of community… 

Similar newspapers once bound together communities everywhere. A century ago, The Post, too, carried items on the humdrum comings and goings of local residents. Though the news became impersonal in big cities, community papers continued to be at the core of rural and small-town America.“

As a Local News Initiative official puts it, local news organizations are the glue that hold the community together. When there’s a void of local news, people revert to the blue and red echo chambers and national news sources that confirm their own belief sets, and it aggravates partisanship.”

That Kansas sheriff obviously doesn’t care.

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