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free speech

“United Nations agencies are not constrained by the First Amendment,” which means the impending change is not happy news for the cause of free speech, notes Patrick at Popehat. More: The Economist.

The bill originated in a desire to control men’s accosting of women on the street, but according to Eugene Volokh it sweeps much more broadly than that: it exposes speakers to imprisonment even for written communication, not necessarily individually targeted, that is “evidently intended to express contempt for a person because of his gender, or that regards them as inferior, or reduces them to their sexual dimension, and which has the effect of violating someone’s dignity.” [Rik Torfs and Jogchum Vrielink via Volokh] Torfs and Vrielink point out a perhaps unexpected corollary, which could also restrict speech:

A logical side effect of making sexism illegal is that the simple act of accusing someone of being sexist, may amount to criminal defamation. Under Belgian law, as in many other legal systems, it is an offense to accuse someone of having committed crimes that they were not actually convicted for. Law is often a double-edged sword.

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Eighteen-year-old guys have been known to say stupid things online, especially when engaged in displays of flaming and one-upmanship. Criminal-sentence kind of stupid? “I guess what you post on Facebook matters,” says Justin Carter of San Antonio, jailed after an all-caps flourish about how he was ready to “shoot up a kindergarten.” [Dallas Observer]

P.S. A related Missouri story from last year.

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Once again, a law professor has stepped up to inform us that we need to join much of Europe in attaching legal penalties to hurtful speech. This time one patient refutation comes from Michael Moynihan [Daily Beast] The idea is about as fresh and new as sleeve garters, notes Jonathan Rauch [Volokh/WaPo] Further rebuttal from Ken at Popehat and Scott Greenfield.

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If a thin-skinned academic sues a magazine for criticizing him too harshly, and you find yourself hoping the magazine will get sued into bankruptcy because you disagree with its views, you might not want to claim for yourself the honorable word liberal [Damon Linker/The Week, Stephen Carter/Bloomberg, Eugene Volokh on role of libel insurance, earlier here, here, etc.]

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Free speech roundup

by Walter Olson on January 30, 2014

  • “Bloggers = Media for First Amendment Libel Law Purposes” [Obsidian Finance Corp. v. Cox; Volokh]
  • Co-workers’ taking of Lord’s name in vain is element in discrimination claim of religious harassment [Oregon; Ruder Ware]
  • “Michigan Court of Appeals Again Protects Anonymous Criticism” [Paul Alan Levy] Virginia by contrast adopts standard less protective of speech [same] Is D.C. lawyer attempting to unmask Wikipedia editor in defamation suit a “public figure?” [NLJ]
  • Judge Posner blasts class-action firm for supposed misconduct, law firm offers evidence to rebut that and proceeds to sue law firm McGuire Woods for allegedly misrepresenting facts of case at its prominent Class Action Countermeasures blog [Alison Frankel, Reuters]
  • “Lawyer says he will drop suit alleging website unfairly cast him as a ‘tree mutilator'” [ABA Journal (compares townspeople who criticized tree removal to "bullies,") Greenfield, Columbia (Mo.) Tribune]
  • “The victims are ‘too Christian’ to excite the Left, and ‘too foreign’ to excite the Right.” [Michael Brendan Dougherty, The Week, on Mideast persecution] “God may not have felt threatened, but his supporters did” [Nick Cohen on UK's Maajid Nawaz t-shirt controversy via @secularright, Ken at Popehat] Prison for “blasphemous” Facebook posting, in Greece, not Pakistan or Sudan [Guardian]
  • Defendants in Michael Mann’s lawsuit against critics seem to be getting standard “don’t write about getting sued” instructions from their lawyers, but that’s not easy advice to give Mark Steyn [SteynOnline, Jonathan Adler (Mann wins a round opening way to discovery]

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  • SCOTUS to hear case of Susan B. Anthony List v. Driehaus, First Amendment challenge to state laws regulating truth of political speech [IJ/Cato amicus cert brief]
  • Groups of law professors file amicus briefs in Halliburton Co. v. Erica P. John Fund, Inc. arguing that retreat from “fraud on the market” theory is consistent with modern scholarship on capital market efficiency [John Elwood] and sound statutory construction [Elwood, Bainbridge]
  • Behind the Michigan affirmative action plan in Schuette, including colorful background of litigant BAMN (“By Any Means Necessary”) [Gail Heriot, Federalist Society "Engage"]
  • Court dismisses Mulhall v. UNITE HERE (challenge to employer cooperation agreement with union as “thing of value”) as improvidently granted [Jack Goldsmith, On Labor, earlier]
  • Affordable Care Act saga has taken toll on rule of law [Timothy and Christina Sandefur, Regulation]
  • Lol-worthy new Twitter account, @clickbaitSCOTUS, with content like “The nine words no appellate advocate wants to read” [re: Madigan v. Levin]
  • Drug War vs. Constitution at Supreme Court, 1928: Drug War won by only one vote and you might not predict who wrote the most impassioned dissent [my Cato post]

In McCullen v. Coakley, the Supreme Court will reconsider its 2000 decision in Hill v. Colorado, which upheld a law prohibiting (among other things) leafleting and some other forms of peaceful protest within 100 feet of an abortion facility. (Massachusetts in 2007 passed a similar law which is now under challenge.) Noted civil libertarian Floyd Abrams, writing in the WSJ, sees the case as a straightforward one of supporting free speech for a position with which he happens to disagree. But the ACLU, Abrams notes, has changed its position between the earlier case and this one, and in a speech-unfriendly direction:

In a friend-of-the-court brief in Hill, the ACLU argued that because the Colorado statute “burdens substantially more speech than is necessary to accomplish the state’s goal,” the statute was facially unconstitutional. When the 2007 statute was proposed in Massachusetts, the Massachusetts ACLU opposed it, stating that “[i]f the message is unwelcome, as it often will be outside abortion clinics, the constitutionally appropriate response in a public forum is for the listener to walk away.”

But now that McCullen has reached the Supreme Court, both ACLU groups have switched sides. Their position, their brief states, has “evolved over time” and the Massachusetts law is, after all, constitutional on its face. Of course, the First Amendment has not changed in the 14 years between the filing of the ACLU briefs in Hill and McCullen; the ACLU has.

The old ACLU got it right.

P.S. More from Jonathan Adler. And the Cato Institute filed this amicus brief in the case of McCullen v. Coakley.

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Free speech roundup

by Walter Olson on December 19, 2013

  • After Rolling Stone interview comments on race in America, Bob Dylan hit with hate speech proceeding in… France? [Popehat]
  • “The Buckyballs Guy Is Suing the Feds Over Free Speech” [Bloomberg BusinessWeek]
  • “Reconsidering Citizens United as a Press Clause Case” [Michael McConnell, YLJ via Volokh] “Freedom for the Press — Protection for an Industry/Profession, or for All Users of a Technology?” [Eugene Volokh, more]
  • Liability for content posted by third parties? “Ex-cheerleader’s defamation suit puts Internet giants on edge” [CBS News]
  • Forced expression tramples freedom: Cato asks SCOTUS to review ruling against New Mexico wedding photographer [Ilya Shapiro, earlier here, etc.] Related: Mike Masnick questioning why the ACLU is on the wrong side, a topic I’ve covered here too;
  • “Three puzzling things about NYT v. Sullivan” [Len Niehoff, Communications Lawyer]
  • “Why can’t we admit we’re scared of Islamism?” [Nick Cohen, Spectator]

Banker: “It should be illegal to start bank runs by spreading mistaken alarms about deposit soundness.”

Ag guy: “It should be illegal to falsely impugn the safety of America’s food supply.”

Hollywood celeb: “It should be illegal to call somebody fat on TV.

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Authorities in Rugeley, Staffordshire, England, detained sandwich shop owner Neil Phillips for eight hours, searched his computer, fingerprinted him and swabbed him for DNA after a local elected official complained that Phillips had engaged in online jokes and comments on Facebook, including jokes about Nelson Mandela. [Birmingham Mail, The Star] Afterward, Phillips complained that the constabulary had “over-reacted massively”: “There was no hatred. What happened to freedom of speech?” Charles Cooke explains at NRO:

Well, the Public Order Act of 1986 happened to freedom of speech – in particular, Section 5, which makes it a crime in England for anyone ”with intent to cause a person harassment, alarm or distress” to

(a) [use] threatening, abusive or insulting words or behaviour, or disorderly behaviour, or (b) [display] any writing, sign or other visible representation which is threatening, abusive or insulting, thereby causing that or another person harassment, alarm or distress.

In other words, Section 5 allows anybody to have anybody else investigated for speaking. And they have. The arrests have run the gamut: from Muslims criticizing atheists to atheists criticizing Muslims….

Is it still legal for Britons to laugh at this Mark Steyn column?

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In cease-and-desist letters, the NSA and DHS have moved to squash satirical use of their insignia in connection with t-shirts and mugs saying things like “The NSA: The Only Part of Government That Actually Listens” [Paul Alan Levy]

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I was a guest this morning on John Gambling’s popular NYC morning show to discuss Free Speech Week, which Tim Lynch is covering all this week at the Cato blog (more). Items tagged “free speech” at Overlawyered are here. More: And now the podcast is up (6:18).

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Unthinkable here, one presumes. But the United Kingdom has no First Amendment, and a noisy lobby has been demanding press regulation to curb the periodic misconduct of the tabloids, made worse by what is perceived as the irresponsible and, well, unreliable (cf.: Rupert Murdoch) political stands and cultural practices of those papers. [Daily Telegraph and editorial ("unacceptable"), Andrew Gilligan ("Hacked Off is a campaign not just to tame the press, but to claim the country for the authoritarian Left.") and followup]

More: “NO” [The Spectator]

Free speech roundup

by Walter Olson on October 3, 2013

  • University of Montana professors who refuse Title IX training to be reported to federal government [FIRE, more, Missoulian] Professor yanked from public-university classroom over offensive out-of-class tweet [Popehat, Peter Bonilla/FIRE]
  • Preacher/historical fantasist/horrible human being Scott Lively has probably accomplished more actual evil in life than the picketers of the Westboro Baptist Church, yet it raises disturbing First Amendment questions to let him be sued in U.S. court for having urged foreign governments to be more oppressive [NBC News]
  • Speaking of wacky preachers, Florida sheriff says Terry Jones arrested for unlawful fuel transport and open gun carry, not because anyone disagreed with his speech [Orlando Sentinel, Volokh]
  • Critical speech annoys elected officials and that’s one reason we keep having to fight about campaign regulation [Barton Hinkle, Brad Smith on McCutcheon case, Ilya Shapiro on Susan B. Anthony List v. Driehaus]
  • Minnesota: “Ban on ‘Advis[ing or] Encourag[ing] … Another’ to Commit Suicide Violates First Amendment” [Eugene Volokh] Pennsylvania: “Crime to ‘Disparag[e]‘ an Under-18-Year-Old ‘With Intent to Harass’?” [same] Liking Facebook page presumptively protected speech [same] Veto override fails, so Missouri won’t enact proposed ban on publishing names of gun owners or concealed carry permit holders [same, followup]
  • Danish-Iranian artist convicted of “racism” after critical comments re: Muslim men [Copenhagen Post via @ClaudiaHajian]

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“… is to allow citizens to monitor government, not to allow government to monitor citizens.” — Center for Competitive Politics on Sen. Dick Durbin’s demand that private donors provide information about their involvement with the American Legislative Exchange Council, an organization for state legislators, and with the issue of “stand your ground” self-defense law.

Free speech roundup

by Walter Olson on August 21, 2013

  • Chicago-area bus company keeps menacing customer-critics with lawsuits [Coyote]
  • Some government officials want a say in who owns newspapers [Ira Stoll on Hartford Courant/Koch story] Using public apparatus to squelch political adversaries not exactly something new in America [David Beito on New Deal episodes]
  • Barbarity: “Saudi Court Condemns Editor to 600 Lashes With Breaks” [Bloomberg ("insulting Islam"), Volokh]
  • Scheme backed by many state AGs to roll back websites’ immunity for content posted by visitors “could singlehandedly cripple free speech online” [ACLU, earlier]
  • Attention enemies of Ken at Popehat: even if you can find your bus pass you’ll still need to withstand his cat squirt bottle [Popehat; another speech case there (censorious bell can't be unrung) and yet another (bogus DMCA notice)]
  • State law providing that persons with erased records are “deemed never to have been arrested” never meant to muzzle discussion of arrests [Eugene Volokh]
  • Nova Scotia: “cyberbullying legislation allows victims to sue” [CBC]

Sen. Dick Durbin (D-Ill.), a close ally of labor union and trial lawyer interests on Capitol Hill, is sending out hundreds of letters to groups linked to ALEC, the free-market group of state legislators that has occasionally involved itself in other issue areas like criminal and self-defense law, promising to shame those supporters at a public hearing for the notional link to the Trayvon Martin affair. (ALEC backed the passage of some state “stand-your-ground” laws, which as we have grown weary of repeating, did not form the basis for George Zimmerman’s successful claim of self-defense; a new Quinnipiac poll finds that American voters back “Stand Your Ground” laws by a 53-40 margin, so that campaign against these laws has evidently flopped badly)

Mostly these letters were designed to intimidate businesses that might support ALEC, but Durbin also sent one of the browbeating letters to the Cato Institute, which might have been a mistake. As related by colleague Ilya Shapiro:

Earlier this week, we received a letter from Durbin asking two questions (you’ll have to pardon the awkward grammar; this went out to hundreds of groups, so Durbin’s staff apparently had no time for proofing):

Has Cato Institute served as a member of ALEC or provided any funding to ALEC in 2013?

Does Cato Institute support the “stand your ground” legislation that was adopted as a national model and promoted by ALEC?

And, by the way, Durbin wants recipients of his polite inquiry to know, “I plan to convene a hearing of the Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights to examine ‘stand your ground’ laws, and I intend to include the responses to my letters in the hearing record. Therefore, please know that your response will be publicly available.”

Well, I’m proud to say that Cato isn’t going along with this charade. Our president John Allison has responded to Durbin with a letter that I’ll quote in its entirety:

Dear Senator Durbin:

Your letter of August 6, 2013 is an obvious effort to intimidate those organizations and individuals who may have been involved in any way with the American Legislative Exchange Council (ALEC).

While Cato is not intimidated because we are a think tank—whose express mission is to speak publicly to influence the climate of ideas—from my experience as a private-sector CEO, I know that business leaders will now hesitate to exercise their constitutional rights for fear of regulatory retribution.

Your letter thus represents a blatant violation of our First Amendment rights to freedom of speech and to petition the government for a redress of grievances. It is a continuation of the trend of the current administration and congressional leaders, such as yourself, to menace those who do not share your political beliefs—as evidenced by the multiple IRS abuses that have recently been exposed.

Your actions are a subtle but powerful form of government coercion.

We would be glad to provide a Cato scholar to testify at your hearing to discuss the unconstitutional abuse of power that your letter symbolizes.

Sincerely,

John Allison

The Wall Street Journal is on the issue today, and so is the Chicago Tribune, reproaching hometown Sen. Durbin for his propensity to “use the power of his high federal office as a cudgel against his enemies.” Incidentally, while Cato takes no official position so far as I know on “Stand Your Ground” laws, I have been active in discussing them: in the Orlando Sentinel, New York Times, Daily Caller, Bloomberg TV, Cato podcast and other places, and in many places here, including discussions of the campaign against ALEC here, here, here, and here (Paul Krugman at his most careless). Do you think I could ask the Senator to shame me by name at the hearing?

P.S. One of the rare occasions when my opinions diverge from Ira Stoll’s.

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