Misinformation! Mchangama on 'Fearless Speech'! And words are (still) not violence!!!
Bringing you the latest free speech news (11/3/24)
Stories of the week
Tensions are high in the nation right now, which is why it’s even more important to remember the difference between words and actions. People get understandably heated in the final days of an election, but confusing words for weapons ensures violence. This is a recipe for disaster, particularly when six in 10 Americans fear post-Election Day violence.
Misinformation: A Flawed Concept (Quillette) by ERI’s very own
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Ultimately, the core problem with all legislative misinformation bills is that they inevitably position the government as the arbiter of truth. And, as anyone who has heard of George Orwell should know, that’s a terrible proposition—not only because the truth is often elusive, but because government officials have strong incentives to purge public discourse of opinions and narratives that challenge their hold on power.
Book Review: “Fearless Speech” Doesn’t Take First Amendment History Seriously (Reason, The Volokh Conspiracy) by FIRE Senior Fellow
Mary Anne Franks may offer what she calls a "different and bolder perspective on free speech," but her approach ultimately falls short in her stated goal of examining "power, harm, and history seriously." The First Amendment is not a foolproof guarantee against intolerance or injustice. However, it has repeatedly proven instrumental in advancing equality and restraining oppression—notably empowering civil rights activists, marginalized communities, and dissidents who transformed American society. Franks's critique overlooks these substantial achievements, casting the First Amendment as an enabler of injustice, when history shows it has often been a powerful tool for creating a more tolerant and just nation.
This week in FIRE’s blog
SHOCKING: 4 in 5 Americans think ‘words can be violence’
Gen-Zers were also more likely to say that words are violence, with only 12% of 18-24-year-olds rejecting the idea entirely. But seniors aren’t far behind, with 16% of those older than 65 saying it doesn’t describe their thoughts at all. Gen X is the most speech-supportive age group, with 32% of those between the ages of 45 and 52 completely rejecting the idea that words can be violence.
Free speech promises out of tune: Berklee College of Music indefinitely postpones event featuring Detransition Awareness by Dylynn Lasky
Five scary threats to free speech by David Volodzko
The First Amendment protects your right to trick or treat by Daniel Ortner
This week in ERI
This week on ‘So to Speak’
This week,
released an episode live-taped during the First Amendment Lawyers Association’s fall 2024 meeting (hosted at FIRE’s DC office) in which talked with Samir Jain, Andy Phillips, and about the legal questions surrounding free speech and AI.
‘Canceling’ in the news
My ‘Canceling’ co-author
recently launched her new podcast, “We Never Had This Conversation” brought to you by ’s Club Random Studios. Her first two episodes feature conversations with venture capitalist Vinod Kosla and entrepreneur & Forward party-founder Andrew Yang.
International free speech stories of the week
Australia bans Candace Owen from entering country due to antisemitism (The Jerusalem Post) by Mathilda Heller
[...] the Australian Jewish Association (AJC) criticized the decision, saying that while they did not support Owens' "bizarre antisemitic conspiracy theories," they saw the pan as a "flawed proposal" and one that went against Jewish values of free speech.
Influencer fine raises fears around free speech (Times of Malta) by James Cummings
68-Year-Old Fined €1000 for Offensive Tweet about Dutch Politician Sjoerd Sjoerdsma (Newsy Today)
London Calling: Ronnie’s First Amendment Roundup
FIRE has argued for nearly a decade that college and university (and other) use of the International Holocaust Remembrance Alliance’s “Working Definition of Antisemitism” threatens speech protected by the First Amendment – this week, a federal district court in Texas agreed. The case involves a challenge to a Texas executive order “relating to addressing … antisemitism in institutions of higher education” that requires (among other things) that they review and update their free speech polices to reflect a state statutory provision on “antisemitism” that references the IHRA definition. The court held “including the word ‘antisemitism’ in speech policies, perhaps in the context of protecting students from discrimination and harassment, is not inherently a First Amendment violation,” but “this specific definition of antisemitism is viewpoint discrimination.” That’s because the schools’ “speech policies do not leave ‘antisemitism’ open to constitutional definitions and interpretations,” but rather reference to the IHRA examples of “‘calling the State of Israel a racist endeavor’ and ‘drawing comparisons of contemporary Israeli policy to that of the Nazis’ as antisemitic” serves to “intertwine” the E.O. and IHRA definition, such that the school “policies make that speech punishable, thereby chilling it.” The court thus held plaintiffs will likely prevail on claims that university officials are chilling the exercise of First Amendment rights by promulgating and enforcing speech policies in compliance with the E.O. because “the characteristic of universities as an environment for vigorous debate is outcome determinative” given that the “policies chill a kind of expression that is a hallmark of university activity.” (The court held, however, it was “unable to grant the relief Plaintiffs request,” because the preliminary injunction sought was overbroad, even though “if Plaintiffs ultimately succeed, the Court will need to grant relief” later in the case.)
Podcast of the week
I was thrilled to be able to sit down with President Harroz at University of Oklahoma when I visited the campus and delivered a keynote speech for the school’s free speech week. This week “Conversations with the President” released the episode:
Thank you for providing the link to the back-and-forth between Professor Mchangama and Professor Franks re: "Fearless Speech"!
I think Professor Mchangama overlooks or diminishes the value in helping people better see the limits of the First Amendment. The limitations of the First Amendment's text have been abused historically (and they continue to be abused currently) by people in power (including legislators and judges (including today's SCOTUS majority)) to deny protection to disfavored viewpoints and disfavored people.
Too many seem to see the First Amendment as some sort of immaculate conception, as something akin to one of the Ten Commandments, i.e., akin to the word of God. In fact, it barely even reflects the words or thoughts of James Madison, who purportedly was its primary author.
Madison's words and thoughts were far more powerful, far more profound, far more encompassing than our anemic and emaciated First Amendment. Madison proposed starting the Bill of Rights with the following powerful “declaration” of the power and liberty of the people as THE sovereign power in every state and in our nation:
"That all power is originally vested in, and consequently derived from the people."
"That government is instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety."
"That the people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution."
Madison's proposed amendments to our Constitution included the following (and SCOTUS took much more than 100 years even start to catch up to Madison by invoking the First Amendment (SCOTUS still hasn't caught up in important respects)):
"The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed."
"The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable."
"The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the legislature by petitions, or remonstrances for redress of their grievances."
"No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases."
Madison also had much to say in defense of the constitutional restraints he proposed:
"It may be said [that Madison's proposed amendments] do no more than state the perfect equality of mankind; this to be sure is an absolute truth."
"The freedom of the press [expression] and rights of conscience [are the] choicest privileges of the people . . . . [So t]he people of many states, have thought it necessary to raise barriers against power in all forms and departments of government."
The proposed amendments will have "a salutary effect against the abuse of power. If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights."
Madison particularly forcefully defended and advocated the proposed amendment protecting minorities from majorities or other people in power in any state government or state majority:
The proposed restriction on state power "interdicts the abuse of certain powers in the state legislatures, some other provisions of equal if not greater importance than those already made [restricting federal power] . . . [including] that no state shall violate the equal right of conscience, freedom of the press [expression], or trial by jury in criminal cases; because it is proper that every government should be disarmed of powers which trench upon those particular rights. . . . [A]nd nothing can give a more sincere proof of the attachment [ ] to these great and important rights, than to [provide for] the security I have now proposed; because it must be admitted, on all hands, that the state governments are as liable to attack these invaluable privileges as the [federal] government is, and therefore ought to be as cautiously guarded against."
Another member of Congress noted that
"Mr. Madison Conceived this [restraint on the power of state officials] to be the most valuable amendment on the whole list; if there was any reason to restrain the government of the United States from infringing upon these essential rights, it was equally necessary that they should be secured against the state governments."
Anyone who thinks the First Amendment is some sort of perfect protection (or even particularly strong protection) for our freedom of thought, conscience, speech, press, assembly and petition must consider, at the very least, what its words actually say and do (what judges say they say and do), and contrast that with what Madison said that constitutional amendments securing our liberty and sovereignty should say and do.
After that, I'd really appreciate it if someone could explain to me how six SCOTUS justices in Dobbs can (consistent with the First Amendment) say that a tyranny of the majority in any state can have the power to impose their personal religious viewpoints on how other people live their lives. How, for example, (consistent with the First and Fifteenth Amendments) can a majority in any state force a woman or a couple into "involuntary servitude" based (often expressly, including even in the majority opinion in Dobbs) on the majority's religious beliefs by making and serving another person for some 18-19 years?
After that, I'd even more appreciate it if someone could explain to me how six SCOTUS justices in Dobbs can (consistent with the First Amendment) say (based expressly on religious beliefs) that a tyranny of the majority in any state can have the power to impose criminal penalties on medical professionals who would help women save their own lives.
The day before Dobbs, the same six SCOTUS justices issued N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). In Bruen, they invoked District of Columbia v. Heller, 554 U.S. 570 (2008):
In [Heller] the Court concluded that [our Constitution] protects the right to [ ] self-defense. [Clearly, the Second] Amendment codified a preexisting right and that this right was regarded at the time of the Amendment’s adoption as rooted in “‘the natural right of [ ] self-preservation.’” [ ] “[T]he inherent right of self-defense,” Heller explained, is “central to the Second Amendment right.”
How can it be that a woman has the right (secured by our Constitution) to take the life of another actual person (even an actual citizen) in self-defense or for self-preservation, but she has no right to take a life that manifestly is not a person, much less a citizen, in self-defense or for self-preservation if doing so would offend someone else's sense of religion or conscience?
If the First Amendment is so powerful, how can it be that any public servant (any judge or legislator) can presume or pretend to have the power to impose their own sense of religion or conscience on even one (much less a huge proportion) of the sovereign people of any state or this nation? If the First Amendment is so powerful, how can it be that so many public servants (including, e.g., Trump, Florida Gov. DeSantis and the Biden administration) dare to presume or pretend that they have the power to retaliate against speakers for the content of their speech and even their political viewpoints? How can it be that some of the most powerful people and publications in this country are so (rightfully) afraid of Trump that they won't even endorse his political opponent? How can gangs of federal judges dare to presume or pretend to have the power to discriminate against huge numbers of students expressly based on their mere association with certain universities (e.g., Stanford, Yale, Columbia)?
Re: Sanford handing out Constitutions, if people can hand out Chick Tracts, maybe it would be useful to hand out Cato pocket Constitutions.
Of course, you have to hand out candy, too.