First Amendment News 293: Genevieve Lakier to join Knight Institute as visiting research scholar

The Knight First Amendment Institute at Columbia University continues to expand its presence in the emerging world of free expression issues, both in public and quasi-public domains. In addition to its release of new essays and reports, the Institute continues to be involved in cutting-edge litigation.

Now, Jameel Jaffer and his colleagues at the Institute have brought a major free speech scholar over to their team, albeit as a visiting scholar. This from the Knight First Amendment Institute press release:

Genevieve Lakier, a professor of law at the University of Chicago, and evelyn douek, a lecturer and doctoral candidate at Harvard Law School, will join the Institute later this year as visiting research scholars. Their work with the Institute will focus on disinformation and the First Amendment, and on the regulation of speech on and by social media platforms, respectively.

“We’re thrilled to have the opportunity to work closely with these two brilliant scholars,” said Jameel Jaffer, the Knight Institute’s executive director. “Professor Lakier will help us interrogate some of the assumptions underlying contemporary free-speech discourse and doctrine; evelyn douek will help us better understand and respond to the influence that major social media companies have over our speech environment. We’re looking forward to having both scholars engaged in all aspects of the Institute’s work.”

Lakier will begin her term as Senior Visiting Research Scholar in September 2021 and spearhead an interdisciplinary inquiry into “Disinformation, Misinformation, and the First Amendment in the Mass Public Sphere.” One of the foundational assumptions of modern First Amendment law is that the best remedy for harmful speech—including harmfully false or misleading speech—is more speech. Lakier will explore whether this assumption can hold, given our contemporary, fragmented and highly polarized mass public sphere, and what can be done if not. During her tenure at the Institute, Lakier will bring together scholars from a range of disciplines to explore these issues in a series of workshops, culminating in a major symposium in the spring of 2022.

evelyn douek

evelyn douek will join the Institute as Associate Research Scholar this summer. She will write and organize events about questions related to content moderation by social media platforms and proposals for regulating big tech. She will also work closely with Institute staff to support and expand the research program.

“We’ve had the good fortune of having published both Professor Lakier’s and evelyn douek’s work as part of earlier Knight Institute research projects,” said Katy Glenn Bass, the Knight Institute’s research director. “I’m looking forward to deepening this engagement and expanding the reach and scope of the Institute’s research program with input from both of these incredibly talented scholars.”

“Raging debates over the problem of disinformation and misinformation in the mass public sphere have not yet engaged much with First Amendment doctrine and theory,” said Lakier. “I look forward to bringing First Amendment scholars into dialogue with media studies scholars, sociologists and historians, for an interdisciplinary exploration of the difficult question of how, as a democratic society, we should regulate lies.”

“I could not be more excited to join the Knight Institute, which works at the absolute cutting edge of the intersection of the First Amendment and technology, the topics I study, love, and criticize,” said douek. “I’ve closely followed the Institute’s work and impact, and can’t wait to get to participate in it.”

The Institute’s current Visiting Research Scholar is Ethan Zuckerman, Associate Professor of public policy, information, and communication at the University of Massachusetts at Amherst and Director of the Institute for Digital Public Infrastructure. Previous visiting scholars at the Institute include Amy Kapczynski, Professor of Law at Yale Law School; Jamal Greene, Dwight Professor of Law at Columbia Law School; and David Pozen, Charles Keller Beekman Professor of Law at Columbia Law School. More information about their projects is available here.

For more information, contact Lorraine Kenny: [email protected].

Court vacates judgment and dismisses Trump Twitter case

According to SCOTUSblog: “The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the U.S. Court of Appeals for the 2nd Circuit with instructions to dismiss the case as moot.” Thus ended the case of Trump v. Knight First Amendment Institute. Justice Clarence Thomas, nonetheless, weighed in with a long but lone concurrence. (More on this in a future issue of FAN.)

Response from Knight Institute:

“We’re pleased with what we were able to accomplish in this litigation—not just forcing President Trump to unblock our clients and dozens of others from his Twitter account, but also establishing a precedent that other courts have invoked to preclude other public officials from silencing their social media critics,” said Katie Fallow, Senior Staff Attorney at the Knight Institute, who argued the case before the district court. “Public officials’ social media accounts play an increasingly important role in our democracy. As multiple courts have now recognized, the public forum doctrine applies to these accounts in the same way that it applies to expressive forums offline.”

Related

• Eugene Volokh, “Justice Thomas Suggests Rethinking Legal Status of Digital Platforms,” The Volokh Conspiracy (April 5)

As I read it, Justice Thomas is not arguing that platforms are already generally common carriers or government actors under existing legal principles; that argument is quite a stretch, and his analysis seems to me to largely reject that argument, except perhaps when the platforms are restricting speech in response to government threats.

Eugene Volokh (UCLA Law)

Rather, he is anticipating what might be done through legislation, and whether new state laws that do treat platforms as common carriers (more or less) are going to be seen as blocked by the First Amendment or 47 U.S.C. § 230. (His analysis of the interests involved may also be relevant to whether such state laws violate the Dormant Commerce Clause.) That’s an issue the Court will likely have to deal with in coming years.

I also read Justice Thomas’s position here as somewhat tentative, and of course it’s far from clear that four other Justices will eventually go along with it. But I think the analysis is interesting and helpful to the debate on the subject. The opening symposium issue of our new faculty-edited Journal of Free Speech Law will be all about this general question; we expect the papers to be out around July, and I suspect Justice Thomas’s opinion will be heavily cited.

34 amicus briefs filed in off-campus speech case 

As the Justices prepare for the April 28 oral arguments in Mahanoy Area School District v. B.L., they have before them a variety of 34 amicus briefs. Some of the more notable briefs include:

• Brief of Petitioner Mahanoy Area School District (Lisa Blatt)
• Brief for Respondents (Witold J. Walczak with David Cole)

Amicus briefs 

• Brief amicus curiae of United States (Elizabeth Prelogar, acting SG)
• Amicus brief of Mary Beth Tinker & John Tinker (Robert Corn-Revere)
• Amicus brief of Jane Bambauer, Ashutosh Bhagwat, and Eugene Volokh (Stuart Banner)
• Brief amicus curiae of Pacific Legal Foundation, Cato Institute, and P.J. O’Rourke (Deborah Fetra)
• Amicus brief of Foundation for Individual Rights in Education, National Coalition Against Censorship, and Comic Book Legal Defense Fund (Darpana Sheth)

Paul Clement files cert. petition in access to information case 

• Boardman v. Inslee. The issue raised in the case is: “Whether a law that skews the debate over the value of public-sector unions and undermines public-sector employees’ opt-out rights by giving incumbent unions exclusive access to information necessary to communicate with public-sector employees is consistent with the First Amendment.”

New Utah Law blocks pornographic content

This from First Amendment Watch:

On March 23rd, Utah Governor Spencer Cox signed a bill aimed at limiting minors’ access to pornographic content.

House Bill 72 establishes that “beginning on January 1 of the year following the year this bill takes effect, a manufacturer shall manufacture a device that, when activated in the state, automatically enables a filter that…when enabled, prevents the user from accessing or downloading material that is harmful to minors.”

The new law is the latest move in an ongoing campaign by conservative lawmakers in the state to combat online pornography. Legislators have declared porn a “public health crisis,” and have mandated warning labels on print and online pornography.

While parents can remove the restrictions on filtered websites, critics have expressed concern that the legislation intrudes on free speech rights.

The ACLU of Utah, which opposed the rule, tweeted that it “infringes upon the general public’s First Amendment rights to freely access the internet.”

FIRE releases new modules for 2021 freshman orientation program

This from Azhar Majeed over at FIRE:

As the end of the current semester quickly approaches, FIRE is already thinking ahead to this fall’s freshman orientation season on America’s college campuses.

Together with our partners at NYU’s First Amendment Watch, we’re proud to release the latest modules and materials for our freshman orientation program on campus free speech. The program, which debuted in 2020, aims to help college administrators, leaders, and faculty teach incoming students about their free speech rights — as well as how to respect the freedom of expression and academic freedom of their fellow students and professors.

This year’s crop includes:

• A new module on students’ online speech rights and social media use;
• A new module discussing freedom of the student press;
• A “frequently asked questions” document;
• Perhaps most excitingly, a recommended list of summer readings (fiction and nonfiction) for incoming students.

TEXT

The mission of First Amendment watch “is to document threats to the First Amendment freedoms of speech, press, assembly, and petition, all rights that are critical to self-governance in a democratic society.”

As with last year’s inaugural run of orientation materials, we plan to release video versions of each of the new modules, for use in remote or hybrid first-year experience programs or as part ofuniversities’ First Amendment resources. The 2020 program featured six written modules and their video counterparts, all of which can be found on FIRE’s website and on YouTube, respectively.

This Friday: Brooklyn Law Review webinar symposium: ‘The Roberts Court & Free Speech’

The Roberts Court and Free Speech

John Roberts has been Chief Justice for nearly 16 years. Among the many doctrinal landmarks of his tenure has been the Court’s assertive approach to numerous free speech questions, including, among others, campaign finance and the methodology for upholding free speech claims. At the same time, in fields ranging from government employee speech to national security issues, the Court has been more accepting of government restrictions.

This Webinar symposium (with CLE credit) will examine the Roberts Court’s free speech record, by considering both the Court’s free speech expansionism and the status of speech the Court has left unprotected. It features prominent academic scholars and First Amendment practitioners who will share their knowledge about where the Court has been on free speech issues and their speculation about where it might go.

Friday, April 9, 2021 12:00 p.m. to 3:30 p.m.

Welcome Remarks

• Michael T. Cahill, President, Joseph Crea Dean, and Professor of Law, Brooklyn Law School

Introduction

• Geoffrey R. Stone

Session I: Overview: The Free Speech Record of the Roberts Court

Speakers

• Ronald K. L. Collins, Co-director of the History Book Festival and former Harold S. Shefelman Scholar, University of Washington Law School.
• David L. Hudson, Jr., Assistant Professor of Law, Belmont University College of Law

Commentators

• Floyd Abrams, Senior Counsel, Cahill Gordon & Reindel LLP
• Ellis Cose, Acclaimed author and journalist

Session II: First Amendment Expansionism and the Roberts Court

Speakers

• Robert Corn-Revere, Partner, Davis Wright Tremaine LLP
• Genevieve Lakier, Assistant Professor of Law, Herbert and Marjorie Fried Teaching Scholar, University of Chicago

Moderator

• Joel Gora, Professor of Law, Brooklyn Law School Break

Session III: Speech Left Unprotected by Roberts Court

Speakers

• Helen Norton, Professor and Ira C. Rothgerber, Jr. Chair in Constitutional Law, University of Colorado Law School
• Nadine Strossen, John Marshall Harlan II Professor of Law, Emerita, New York Law School

Moderator

• William D. Araiza, Stanley A. August Professor of Law, Brooklyn Law School

Session IV: Closing Observations

Speaker

• Erwin Chemerinsky, Dean; Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law

→ Register here.

Forthcoming book on subversive literature 

• Azar Nafisi, “Read Dangerously: The Subversive Power of Literature in Troubled Times” (Dey Street Books, March 8, 2022)

The New York Times bestselling author of Reading Lolita in Tehran returns with a guide to the power of literature in turbulent times, arming readers with a resistance reading list, ranging from James Baldwin to Zora Neale Hurston to Margaret Atwood.

What is the role of literature in an era when one political party wages continual war on writers and the press? What is the connection between political strife in our daily lives, and the way we meet our enemies on the page in fiction? How can literature, through its free exchange, affect politics?

In this galvanizing guide to resistance literature, Nafisi seeks to answer these questions. Drawing on her experiences as a woman and voracious reader living in the Islamic Republic of Iran, her life as an immigrant in the United States, and her role as literature professor in both countries, she crafts an argument for why, in a genuine democracy, we must engage with the enemy, and how literature can be a vehicle for doing so.

Structured as a series of letters to her father, Baba, who taught her as a child about how literature can rescue us in times of trauma, Nafisi explores the most probing questions of our time through the works of Toni Morrison, Salman Rushdie, James Baldwin, Margaret Atwood, and more.

Forthcoming book on the Koch Foundation & free speech 

• Ralph Wilson & Isaac Kamola, “Free Speech and Koch Money: Manufacturing a Campus Culture War” (Pluto Press, Nov. 20, 2021)

In recent years hundreds of high-profile ‘free speech’ incidents have rocked US college campuses. Milo Yiannopoulos, Ben Shapiro, Ann Coulter and other right-wing speakers have faced considerable protest, with many being disinvited from speaking. These incidents are widely circulated as examples of the academy’s intolerance towards conservative views. But this response is not the spontaneous outrage of the liberal colleges.

There is a darker element manufacturing the crisis, funded by political operatives, and designed to achieve specific political outcomes. If you follow the money, at the heart of the issue lies the infamous and ultra-libertarian Koch donor network. Grooming extremist celebrities, funding media platforms that promote these controversies, developing legal organisations to sue universities and corrupting legislators, the influence of the Koch network runs deep. We need to abandon the ‘campus free speech’ narrative and instead follow the money if we ever want to root out this dangerous network from our universities.

Four forthcoming scholarly articles

• Caroline Mala Corbin, “Government Speech and First Amendment Capture,” Virginia Law Review Online (forthcoming 2021)

Caroline Mala Corbin

Alarm regarding government speech is not new. In earlier decades, scholars worried that the government’s speech might monopolize a marketplace and drown out opposing viewpoints. But today, using a move I term “First Amendment capture,” the government need not be the loudest speaker because it can become the only speaker. First Amendment capture has been made possible by the Supreme Court’s developing government speech doctrine, which holds that government speech is not subject to the Free Speech Clause. Consequently, once speech is declared governmental, the government may censor viewpoints it does not like.

First Amendment capture—categorizing contested speech as government speech and then eliminating contrary viewpoints—is an increasingly frequent occurrence, and risks giving the government too much power to suppress those who would criticize it or blow the whistle on it. While one solution is to resist the government speech label, this Essay also proposes recognizing “mixed speech” as a potential means of curtailing the expansiveness of the government speech doctrine.

• Kaleb Byars, “An ‘Essential’ Solution: Reworking the Essential Facilities Doctrine to Address Big Tech’s Harm to the Marketplace of Ideas,” Mississippi Law Journal (forthcoming 2021)
• Rachel Moran, “Doing Away With Disorderly Conduct,” Boston College Law Review (forthcoming 2021)
• Kiel Brennan-Marquez & Douglas M. Spencer, “Temporal Buffer Zones: The Constitutional Case for Regulating Political Speech Immediately Prior to Elections,” Yale Law & Policy Review (forthcoming 2021)

YouTube: The limits of free speech & effects on free speech  

• “What are the limits of free speech?,” Big Think (Feb. 7)

The free speech debate typically happens at either end of a spectrum — people believe they should be able to say whatever they want, or they believe that certain things (e.g. hate speech) should be censored. Who is right, and who gets to decide?

While they acknowledge that speech is a powerful weapon that can cause infinite good and infinite harm, former ACLU president Nadine Strossen, sociologist Nicholas Christakis, author and skeptic Michael Shermer, and others agree that the principle should be defended for everyone, not just for those who share our views. “I’m not defending the Nazis,” says Strossen, “I’m defending a principle that is especially important for those of us who want to have the freedom to raise our voices, to protest the Nazis and everything they stand for.”

However, as Strossen and attorney Floyd Abrams point out, there have always been boundaries when it comes to free speech and the First Amendment. There are rules, established by the Supreme Court, meant to ensure that speech is not used to inflict “imminent, specific harm” on others.

• “Do Anti-discrimination Laws Push Employers to Restrict Free Speech?,” Federalist Society (March 5)

On March 5, 2021, the Federalist Society’s Delaware and Pittsburgh Lawyers Chapters co-hosted a discussion between Todd Zywicki and Walter Olson on anti-discrimination law and its affects on free speech in the workplace.

As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Featuring: Introduction: Ryan Costa, Assistant Unit Head, Defensive Litigation Unit, Delaware Department of Justice; The Federalist Society’s Delaware Lawyers Chapter – Walter Olson, Senior Fellow, Cato Institute – Prof. Todd Zywicki, George Mason University Foundation Professor of Law, George Mason University Antonin Scalia School of Law; Senior Fellow, Cato Institute.

More in the news 

• Eugene Volokh, “Some Rhetoric from the Rotenberg v. Politico Complaint,” The Volokh Conspiracy (April 5)
• Iris Samuels, “Mont. lawmakers target news media for being ‘slander machines’,” Associated Press (April 2)
• Sophie Cope & Adam Schwartz, “Tenth Circuit Misses Opportunity to Affirm the First Amendment Right to Record the Police,” Electronic Frontier Foundation (April 1)
• “Summer Zervos’ Defamation Suit Against Trump Moves Forward,” First Amendment Watch (March 31)
• “Virginia Parole Board Chair Seeks $7 Million in Defamation Lawsuit,” First Amendment Watch (March 31)
• Bennett Cyphers, “Google Is Testing Its Controversial New Ad Targeting Tech in Millions of Browsers. Here’s What We Know,” Electronic Frontier Foundation (March 30)

2020-2021 SCOTUS term: Free expression & related cases

Cases decided 

• Mckesson v. Doe (per curium, 7-1 with Thomas, J., dissenting) (judgment vacated and remanded to 5th Cir.)
• Facebook, Inc. v. Duguid (OA: Dec. 8, 2020) (Telephone Consumer Protection Act robocall case — decided on statutory grounds)

Cases argued

• Facebook, Inc. v. Duguid (OA: Dec. 8, 2020) (Telephone Consumer Protection Act robocall case)

• Fulton v. City of Philadelphia (OA: Nov. 4, 2020) (religious expression: free exercise & free speech claims)
• Carney v. Adams (OA: Oct. 5, 2020) (standing/judicial elections)

Cert. granted

• Mahanoy Area School District v. B.L.
• Thomas More Law Center v. Becerra 
• Americans for Prosperity Foundation v. Becerra

Pending petitions

• Boardman v. Inslee
• Thompson v. Marietta Education Association
• Hamilton v. Speight
• City of Austin, Texas v. Reagan National Advertising of Texas Inc.
• Houston Community College System v. Wilson
• Thompson v. DeWine
• Corn et al v. Mississippi Dept. of Public Safety (5th Cir. opinion)
• Stockman v. United States
• Institute for Free Speech v. Becerra
• Arlene’s Flowers Inc. v. Washington

Cert. denied

• Trump v. Knight First Amendment Institute
• Jack Daniel’s Properties Inc. v. VIP Products LLC
• Hurchalla v. Lake Point Phase
• Bruni v. City of Pittsburgh
• Hunt v. Board of Regents of the University of New Mexico
• Lieu v. Federal Election Commission
• City of Sacramento, California v. Mann
• Evans v. Sandy City, Utah
• Reisman v. Associated Faculties of the University of Maine
• Austin v. Illinois
• Living Essentials, LLC v. Washington

First Amendment-related 

• Rentberry, Inc. v. City of Seattle (cert. denied)
• Uzuegbunam & Bradford v. Preczewski, et al. (nominal damages and mootness in campus speech context) (cert. granted: 8-1 held Art. III claim not moot)
• National Association of Broadcasters v. Prometheus Radio Project (Re: Section 202(h) of the Telecommunications Act of 1996) (cert. granted & case argued)
• Federal Communications Commission v. Prometheus Radio Project (Re: FCC cross-ownership restrictions) (cert. granted & case argued)
• Retzlaff v. Van Dyke (state anti-SLAPP laws in federa how are you choose the time and then I may go downl diversity cases) (cert. denied)

Last scheduled FAN

• FAN 292: “‘Tis the season! More Trump-related defamation suits moving through the courts”

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