Do you oppose laws banning hateful expression? You might be one of those American “speech nuts,” akin to “gun nuts,” that so puzzle observers in places like Europe where they do things differently [via Greg Lukianoff, Kelefa Sanneh/New Yorker; pushback from Anthony Fisher/Reason, FIRE first and second posts]
- “Denver DA charges man with tampering for handing out jury nullification flyers” [Denver Post, earlier New York case covered here, here, here, etc.] More: Tim Lynch, Cato.
- Occupational licensure vs. the First Amendment: Texas regulators seek to shutter doc’s veterinary advice website [Ilya Shapiro, Cato]
- Fired for waving rebel flag? Unlikely to raise a First Amendment issue unless you work for the government, or it twisted your employer’s arm [Huntsville (Ala.) Times, Daniel Schwartz]
- “Twitter joke thieves are getting DMCA takedowns” [BoingBoing]
- A reminder of Gawker’s jaw-droppingly bad stuff on freedom of speech (“Arrest Climate Change Deniers”) [Coyote, related]
- Canadian lawyer/journalist Ezra Levant facing discipline proceeding “for being disrespectful towards a government agency” [Financial Post, earlier]
- “‘Shouting fire in a theater’: The life and times of constitutional law’s most enduring analogy” [Carlton Larson via Eugene Volokh, also Christopher Hitchens on the analogy]
- Eugene Volokh weighs in again on Oregon Sweet Cakes case, agrees with my view that agency’s order against Melissa and Aaron Klein’s speech is overbroad;
- Canada: “Ruling in Twitter harassment trial could have enormous fallout for free speech” [Christie Blatchford/National Post, earlier]
- Also in Canada: Law Society of Alberta cites controversial-speech veteran Ezra Levant, a lawyer, over column criticizing human rights commission [National Post]
- “Lawyer Can’t Unmask Anonymous Critic on Avvo, Court Rules” [Robert Ambrogi]
- “Couple ordered to pay $280K for ‘frivolous’ lawsuit against Hoboken bloggers, judge says” [Jersey Journal via @NJCivilJustice]
- Las Vegas lawyer’s libel suit provokes laughs but there’s a serious point at stake [Adam Steinbaugh, Popehat]
- “Freedom will not bow to bloody attacks”: legislature in Iceland repeals blasphemy law in response to Paris massacre [IB Times] But Charlie Hebdo itself, in Paris, says it will run no more prophet Muhammad cartoons [WaPo and more: Michael Moynihan, Politico Europe]
I write at Cato about the accomplishments of Ida Wells (1862-1931), who after being born into slavery in Mississippi became the leading voice documenting the horrors of lynch law in late nineteenth century America, as well as a free speech heroine (a mob in Memphis attacked and destroyed her printing press). Wells is also the subject of today’s Google Doodle. And as I learned from Nicholas Johnson’s post last year at Volokh, she was a notable figure in the history of the Second Amendment as well.
Readers who follow the battles over forfeiture law may recall the recent case in which a North Carolina convenience store owner from whom the government had seized $107,000 without any showing of wrongdoing decided to fight the case in the press as well as in court, backed by the Institute for Justice. Lyndon McLellan’s decision to go public with the dispute drew a menacing letter from a federal prosecutor about the publicity the case had been getting:
“Your client needs to resolve this or litigate it,” Mr. West wrote. “But publicity about it doesn’t help. It just ratchets up feelings in the agency.” He concluded with a settlement offer in which the government would keep half the money.
That case ended happily, but the problem is much broader: many individuals and businesses fear that if they seek out favorable media coverage about their battle with the government, the government will find a way to retaliate, either informally in settlement negotiations or by finding new charges to throw against them.
That such fears might not be without foundation is illustrated by last week’s widely publicized Oregon cake ruling, in which a Gresham, Oregon couple was ordered to pay $135,000 in emotional-distress damages for having refused to bake a cake for a lesbian couple’s commitment ceremony. Aside from the ruling’s other objectionable elements, the state labor commissioner ruled it “unlawful” for the couple to have given national media interviews in which they expressed sentiments like “we can see this becoming an issue and we have to stand firm.” Taking advantage of an exception in free speech law in which courts have found that the First Amendment does not protect declarations of future intent to engage in unlawful discrimination, the state argued – and its commissioner agreed – that the “stand firm” remark along with several similarly general comments rallying supporters were together “unlawful.”
Similarly today: Ken at Popehat.
- Reason subpoena: “There’s no case here, and the Justice Department knows it.” [Kevin O’Brien, Cleveland Plain Dealer, Mike Godwin/R Street Institute, earlier]
- “Judge: Arresting Man For Criticizing Alton Selectmen Was ‘Pure Censorship'” [New Hampshire Public Radio]
- Billboard images of women “smiling for no reason” are now disallowed on grounds of sexism in Berlin’s Kreuzberg-Friedrichshain district; also, “Adult women — featured alone or not — must not be shown ‘occupied in the household with pleasure.'” [Anthony Faiola, Washington Post]
- Free speech, trademark law intersect in NAACP suit over critical parody [Paul Alan Levy]
- Without leeway for anonymous campaign speech, it’ll be hard to oust the retaliation-happy likes of Joe Arpaio [Robert Robb, Arizona Republic via Coyote]
- Legal blogger in court: “Partial Victory In Patterico’s Free Speech Case Before Ninth Circuit” [Ken at Popehat]
- European court: website liable for reader comments [ArsTechnica UK, Stanford CIS, Article 19, Delfi AS v. Estonia]
- Weirdly, Europe is more willing to legislate against pro-ISIS views than openly to argue against them [Nick Cohen]
- City of Inglewood, Calif. sues for copyright infringement over videos by critic of Mayor Butts [CBS L.A., Volokh, Paul Alan Levy]
- “Department Of Justice Uses Grand Jury Subpoena To Identify Anonymous Commenters on a Silk Road Post at Reason.com” [Ken White/Popehat, Wired, Scott Greenfield]
- Bans on the singing of sectarian songs, as in the Scotland case mentioned here recently, are perhaps less surprisingly also a part of law in Northern Ireland [Belfast Telegraph, BBC] UK government “now arresting and even jailing people simply for speaking their minds” [Brendan O’Neill]
- Broad “coalition of free speech, web publishing, and civil liberties advocates” oppose provisions in anti-“trafficking” bill creating criminal liability for classified ad sites; Senate passes bill anyway by 99-0 margin [Elizabeth Nolan Brown; more from Brown on bill (“What, you mean grown women AREN’T being abducted into sex slavery at Hobby Lobby stores in Oklahoma?” — @mattwelch), yet more on trafficking-panic numbers]
- Group libel laws, though approved in the 1952 case Beauharnais v. Illinois, are now widely regarded as no longer good law, but a Montana prosecutor doesn’t seem aware of that [Volokh] No, let’s not redefine “incitement” so as to allow the banning of more speech [Volokh]
- Supreme Court’s ruling in Elonis, the “true threats on Facebook” case, was speech-protective but minimalist [Ilya Shapiro, Orin Kerr, Ken White, Eugene Volokh]
I joined guest host Michael Moynihan on Margaret Hoover’s Sirius XM talk show this week. You can listen here. We discussed the Laura Kipnis case and the federal push to make college disciplinary tribunals more pro-complainant (links here and here), as well as dangers to American public support for free speech (links here and here).
“Printing business has First Amendment and RFRA right to refuse to print gay pride festival T-shirts” [Eugene Volokh] The Lexington Human Rights Commission had ordered employee training for a t-shirt printer that had objected to printing messages it disagreed with, but a Kentucky trial court judge threw out the order citing both the First Amendment to the U.S. Constitution and Kentucky’s version of the Religious Freedom Restoration Act, here applicable to a corporation as defendant since it was an incorporated business that had been the target of the discrimination complaint. Compare the bake-my-cake cases, which have generally come out the other way. And see in the U.K., “Patrick Stewart backs bakery after ‘gay cake’ court battle”: Independent, Telegraph, Katherine Mangu-Ward/Reason.
Most depressing poll of the year? A majority of Democrats and 37% of Republicans say they favor banning so-called hate speech, which would squarely contradict the free speech jurisprudence of the U.S. Supreme Court and thus would implicitly at least call for rolling back the First Amendment to the Constitution. The YouGov numbers favoring such a ban have risen, perhaps influenced by confusion or worse in elite journalistic and academic circles [Edward Morrissey/Fiscal Times, Charles Cooke]
As Ken at Popehat notes in a piece on censors’ tropes: “In the US, ‘hate speech’ is an argumentative rhetorical category, not a legal one.” Related on recent controversies: Paul Berman, Tablet (“it was the Charlie staffers, and not Marine le Pen, whose arrival in New York stirred a protest.”); Art Spiegelman, Time; Mark Steyn (“‘There Is No More Molly.’ Or Luz.”); Erik Wemple, Washington Post (American media’s “crouch of cowardice and rationalization” after Garland attack).
More from commenter DensityDuck:
Given the modern attitude of “anything I don’t like should be illegal”, this isn’t surprising.
When Bradbury wrote “Fahrenheit 451?, he wasn’t suggesting that the government would censor ideas it didn’t like; in his story, it was the people themselves who called for censorship of bad, scary, offensive ideas. Someone who writes of microaggressions and triggers and hate speech would be the bad guys in F451.