- No, the “government can’t make you use ‘zhir’ or ‘ze’ in place of ‘she’ and ‘he'” [Josh Blackman, Washington Post; earlier on NYC human relations commission guidelines; Hans Bader/CEI on new D.C. rules along similar lines]
- Matt Welch on New York Attorney General Eric Schneiderman and the “casually authoritarian” movement to harass and legally penalize climate deniers [Reason] While styled as fraud probe, AGs’ climate denial investigation is essentially a SLAPP suit meant to silence advocacy [Ronald Bailey; letter from 13 attorneys general critical of probe] As one skirmish ends, expect wider war to continue, as Virgin Islands AG withdraws widely flayed subpoena against our friends at Competitive Enterprise Institute [John Sexton] Massachusetts Attorney General Maura Healey now chasing “right-leaning groups that have never received a penny from Exxon” including local political foe Beacon Hill Institute [Hans Bader/CEI] We’re the ones asking questions around here: AGs dodge public record/FOIA requests on probe [Chris Horner/Fox News]
- “N.Y. Senate passes bill banning funding for university student groups that ‘encourage’ ‘hate speech'” [Eugene Volokh]
- Licensing and other laws often restrict what members of professions and occupations can say, a problem that deserves more and better First Amendment scrutiny than it’s gotten [Timothy Sandefur, Regulation]
- Ninth Circuit will review ruling striking down Idaho ag-gag law [Baylen Linnekin on appellate amicus, Idaho Statesman, NPR last year]
- Ken White on why it’s okay to loathe Gawker and its actions but still see the danger in Thiel/Hogan episode [L.A. Times, related Dan McLaughlin, earlier]
“Should the legal system protect or punish the kind of inflammatory speech and drawings that prompted the assault on the Charlie Hebdo offices?” The U.S. Supreme Court in recent years has interpreted our First Amendment so as to ratify and strengthen protection for such speech; Europe, on the other hand, has moved toward punishing it, both from disapproval in itself and, increasingly, on the rationale that allowing it might lead to violence.
In a new Cato Policy Analysis, “Hate Speech Laws: Ratifying the Assassin’s Veto,” First Amendment litigator and Cato adjunct scholar Robert Corn-Revere defends America’s as the correct approach. Executive summary excerpt:
The United States Supreme Court has generally restricted government limits on speech. Some speech, however, does not receive protection, including expressions closely tied to violence. In the past, “fighting words” were judged unprotected by the First Amendment; the development of Court doctrine has largely eliminated this exception. American jurisprudence is based on the assumption that protections for freedom of expression will not long endure if they can be abandoned when the message is particularly repellant or its target especially sympathetic.
European law also protects freedom of expression, although in a less robust way than does U.S. law. Article 10 of the European Convention on Human Rights subjects freedom of speech to important limitations understood generally as “hate speech.” In contrast to the United States, officials may apply criminal or civil sanctions to prohibited political advocacy.
The United States faces a choice. Should it defend the right to offend, or opt instead to champion a right not to be offended? We have learned from hard experience in the United States that free expression cannot long survive without protecting outrageous and offensive speech.
- Tonight in New York City, Cato presents its Milton Friedman Award to Danish journalist Flemming Rose, a key figure in the [still-ongoing] Mohammed cartoons episode, and author of The Tyranny of Silence [David Boaz, Cato]
- Troubles in Turkey: journalists sentenced to two years in jail for reprinting Charlie Hebdo cover [Reuters, Reason] Erdogan’s campaign against foreign critics assumes extraterritorial reach with complaints against comedian in Germany and Geneva exhibit [Colin Cortbus/Popehat, Foreign Policy]
- Ya mad wee dafty: “Man faces hate crime charge in Scotland over dog’s ‘Nazi salute'” [Guardian]
- Publish a “wrong” map of India, face seven years in jail and a huge fine [Hindustan Times; “crore” = 10 million]
- United Kingdom man fined £500 for calling romantic rival “fat-bellied codhead. [Blackpool Gazette]
- Emulating USA tycoon D. Trump, China pressures finance analysts against negative forecasts [WSJ, Barron’s on the Marvin Roffman story, which I used to tell when giving speeches on my book The Litigation Explosion]
- Unbowed by terror: interview with heroic Danish editor Flemming Rose [Simon Cottee/The Atlantic]
- “If The Left Had Its Way On Citizens United, ‘Funny Or Die’ Would Not Be Allowed To Ridicule Trump” [Luke Wachob, Independent Journal]
- Justice Department considers push for law criminalizing support of domestic terror groups [Reuters] Per federally funded police-support center, possible indicators of “extremist and disaffected individuals” include display of “Don’t Tread on Me” flag [Jesse Walker, Reason]
- U.S. BigLaw firm Squire Patton Boggs represents Venezuela as it tries to shut down U.S.-published DolarToday for publishing data about inflation [Jim Wyss/Miami Herald, Cyrus Farivar/Ars Technica, earlier here, etc.]
- When scandal broke about IRS targeting of opposing groups, even President Obama talked about accountability. After press attention waned came refusal to press charges, whitewash, denial [Glenn Reynolds, USA Today]
- Bad, bad bar: behind recent rise in blasphemy prosecutions in Pakistan is a lawyers’ group [Reuters]
Denmark had allowed its old blasphemy law to fall into disuse, but now it’s reviving prosecutions by way of its ban on hate speech purportedly aimed at religious groups [Jacob Mchangama, Columbia U. Global Freedom of Expression & Information Jurisprudence Project]
Of the demands being made by protesters in the current wave of unrest on American campuses, some no doubt are well grounded and worth considering. Some of them, on the other hand, challenge academic freedom head on. Some would take control of curriculum and hiring out of the hands of faculty. Some would enforce conformity of thought. Some would attack the rights of dissenters. Some would merely gut the seriousness of the university.
Last night I did a long series of tweets drawing on a website which sympathetically compiles demands from campus protests — TheDemands.org — and noting some of the more troublesome instances:
- From Dartmouth: “All professors will be required to be trained in not only cultural competency but also the importance of social justice in their day-to-day work.”
- From Wesleyan: “An anonymous student reporting system for cases of bias, including microaggressions, perpetrated by faculty and staff.”
- From the University of North Carolina at Chapel Hill: “White professors must be discouraged from leading and teaching departments about demographics and societies colonized, massacred, or enslaved under white supremacy.”
- From Guilford College: “We suggest that every week a faculty member come forward and publicly admit their participation in racism inside the classroom via a letter to the editor” in the college paper.
- Uh-oh: “40% of Millennials OK with limiting speech offensive to minorities” [Pew Research, Cathy Young on Twitter (“OK, NOW can we stop the ‘naww, political correctness isn’t a threat to free speech, it’s just about courtesy’ spin?”)]
- Breezy but informative guide to why Schneiderman & Co. might hope to find, amid the general rule that the First Amendment protects business speech about public policy, an exception/ loophole for business speech about public policy when it affects securities [Matt Levine, Bloomberg View; earlier on climate speech investigations here, etc.]
- “Lawsplainer: How The Sixth Circuit Stood Up To Hecklers (And Cops)” [Popehat on Michigan case of Bible Believers v. Wayne County, Dearborn protesters threatened with arrest for “disorderly conduct” arising from prospect of violence against them]
- Discrimination law: “Can Office Depot be forced to print flyers that it disapproves of?” [Eugene Volokh; compare Hands On Originals case in Kentucky]
- Scary: UK’s Muslim Council calls for controls on UK press coverage of Islamic issues [Ben Flanagan, Al-Arabiya] Prominent Labour MP says he would have “no problem” with reintroducing blasphemy laws [National Secular Society]
- Cook County sheriff sent letterhead takedown demands to Backpage.com over sex ads, but Supreme Court has looked askance at informal you’d-better-not-publish-this pressure by government [Ilya Shapiro and Randal John Meyer, Cato]
- Portland, Ore. police department “encourages the reporting to law enforcement” of “offensive language used on social media” even when not illegal. It does? [Charles Cooke]
- Mizzou campus cops: if you witness “hateful and/or hurtful speech…call the police immediately” [Eugene Volokh, more (ACLU of Missouri says memo runs “counter to the First Amendment”); James Taranto; earlier on Missouri and Yale episodes]
- “Amherst Students Protest ‘Free Speech,’ Demand ‘Training’ for Offenders” [Katie Zavadski, Daily Beast; Eugene Volokh; Greg Lukianoff and Robert Shibley, New York Daily News; while Vox takes a more positive view of recent rounds of racial intimidation]
- “Dear Colleague” letter, other Obama administration actions encouraged university communities to redefine speech as assault or retaliation under Title IX [Samantha Harris via Katie Barrows, FIRE] More: Ramesh Ponnuru, Bloomberg;
- And now, Claremont-McKenna: it’s not going to take many ruined careers to reduce administrations to the intended compliance. [Claremont McKenna Forum, background on controversy via @adamsteinbaugh] Recommended editorial: “We dissent.” [Claremont Independent]
- Conor Friedersdorf responds with far more patience than I would have shown to a truly awful New Yorker piece claiming that campus free speech alarms are a mere cover for racism (Jelani Cobb: “Right-to-offend advocates [are] trafficking in the same sort of [Jim Crow-era] argument for the right to maintain subordination”) [Atlantic, Noah Rothman/Commentary, earlier episode suggesting New Yorker having its collective doubts whether there is too much free speech in America]
- “Protesters Demand Firing Of Tenured Vanderbilt Law Professor Over Publication Of Op-Ed” [TaxProf; Prof. Carol Swain wrote critically of Islam]
- Pro-liberty liberals have played a hero role in past outbreaks of campus insanity. Will that happen again this time? [Paul Horwitz]
- More: What happened in the Dartmouth library [Charlie Lundquist/The Tab, Alex Griswold/Mediaite, @Popehat (“although I generally support screaming obscenities at Ivy Leaguers this seems of questionable persuasiveness”)] And Columbia [Aaron Short, NY Post (students said to be “uneasy and fearful” over social pressure to join protests)]
- Those who want to protect American university life from mob intimidation, speak now or forever hold your peace [Conor Friedersdorf on Yale and Missouri incidents, Greg Lukianoff on Yale, Thom Lambert on Missouri; more on Missouri; John Samples/Cato] “Sorry, kids, the First Amendment does protect ‘hate speech'” [Michael McGough, L.A. Times]
- #ExxonKnew folks, please listen: “engaging in scientific research and public advocacy shouldn’t be crimes in a free country. Using the criminal law to shame and encumber companies that do so is a dangerous arrogation of power.” [Bloomberg View editorial, earlier here, etc.]
- Judge orders Facebook post taken down as campaign contribution improper under Colorado law; while target of enforcement was public charter school, logic of ruling could extend to entirely private entities as well [Megan Geuss, ArsTechnica]
- Did anyone really not see this coming? Hate speech laws give authorities powerful weapon with which to crack down on speech by critics and minorities [Elizabeth Nolan Brown, Reason, on Kenya]
- Cato amicus brief, Kentucky Court of Appeals: printers shouldn’t be forced to print gay-pride messages they don’t agree with [Ilya Shapiro/Cato, Eugene Volokh]
- “That’s not harassing, stalking, libeling or cyber bullying. That’s called reporting.” Florida Man offers to help with online reputation management but digs himself and client in further [Tim Cushing, TechDirt, background]
- Feminist lawprof we’ve met before attacks Internet-protecting Section 230, confusion ensues [Mike Masnick, TechDirt]
After the Feminist Majority Foundation promoted a Title IX complaint against the University of Mary Washington, primarily based on the public Virginia university’s failure to crack down harder on student use of the independent Yik Yak social media gossip platform, UMW President Richard Hurley in June wrote an unapologetic letter crisply refuting many of the group’s contentions. What do you think happened next? Sponsors amended their complaint to allege that Hurley’s letter itself constituted unlawful retaliation against persons invoking Title IX protection. “The [U.S. Department of Education’s] Office for Civil Rights announced its intent to investigate the university this month.” And now a group of 72 women’s and civil rights organizations, including the respectable American Association of University Women and Leadership Conference for Civil Rights, have “announced a campaign to enlist the federal government in pressuring colleges to protect students from harassment via anonymous social-media applications like Yik Yak.” [Eugene Volokh; Hans Bader; Chronicle of Higher Education; Fredericksburg, Va. Free Lance-Star (Hurley letter)] One thing’s for sure, someone is retaliating against something.
More: Eugene Volokh is out with a don’t-miss followup post analyzing the FMF complaints in much more depth, and noting that Hurley is being charged with retaliation for “engaging in normal public debate”:
Readers might recall the recent attempt to use Title IX to shut down critical speech as retaliation, in the Northwestern University / Prof. Laura Kipnis controversy…. This complaint is yet another such attempt.
The Feminist Majority Foundation, though a publisher of a magazine [Ms.], doesn’t seem to care much about the First Amendment rights of students, or of accused university officials. Its complaint goes far beyond constitutionally unprotected and rightly punishable speech, such as true threats of violence.
Instead, it faults the university for not stopping criticism of feminist arguments and feminist arguers, whether vulgar criticism or other criticism. It faults the university for speaking out, without vulgarities or epithets, in its own defense. And the premise of the complaint thus seems to be that one side of a debate has the right to speak — to condemn and to accuse — but the federal government should step in to stop the other side from responding.