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OpenMarket: Free Speech

  • CEI Joins Coalition Supporting Bill to Curb Abusive Lawsuits Targeting Free Speech

    February 2, 2016 2:39 PM

    Today, the Competitive Enterprise Institute joined seven other free market organizations in a coalition letter expressing our strong support for the SPEAK FREE Act, which would curtail frivolous lawsuits brought to chill protected speech and stifle criticism about matters of public concern. These lawsuits, known as “strategic lawsuits against public participation”—or SLAPPs—are brought by plaintiffs to punish speakers they dislike, even though the speech is protected by the First Amendment. Even though defendants in such cases usually prevail in court, they must still spend lots of time and money defending themselves through the litigation process.

    To combat SLAPPs, the SPEAK FREE Act would let defendants move to dismiss lawsuits targeting speech about matters of public concern unless the plaintiff can show the court that the suit is likely to succeed on its merits. The bill, which resembles anti-SLAPP laws that have been enacted by 28 states, would also empower defendants sued in state court to remove SLAPP lawsuits to federal court.

    You can read the coalition letter here.

  • State Attorney General Climate Change Investigations Are Unconstitutional

    January 27, 2016 1:36 PM

    Should government officials be able to cut off donations to groups because they employ people disparaged as “climate change deniers,” even if the group in question is a think tank that studies a wide range of topics, only a few of which relate to climate change at all, and the “denial” in question includes telling politically inconvenient truths about the cost of proposed climate change legislation? Only a single-issue zealot with ideological blinders and a contempt for the First Amendment would think so. 

    But that hasn’t stopped New York Attorney General Eric Schneiderman and California Attorney General Kamala Harris investigating Exxon, partly for making donations to think tanks like the American Enterprise Institute and groups like the American Legislative Exchange Council because these large organizations include a few people deemed “climate change deniers,” even though climate change has no relation to most of their activities. (I have been to many speeches and luncheons at AEI, and not a single one related to climate change or even energy or environmental policy.)

    The First Amendment has long been interpreted as protecting corporate lobbying and donations, even to groups that allegedly deceive the public about important issues. For example, in In re School Asbestos Litigation, 46 F.3d 1284 (3d Cir. 1994), a federal appeals court ruled that the maker of an asbestos product could not be held liable for joining and financially supporting a trade association for makers of asbestos products, even though the trade association allegedly “disseminated misleading information about the danger of asbestos in schools directly to” the plaintiffs, where “at least some” of the trade association’s “activities were constitutionally protected.”

    So even if being a “climate denier” were a crime (rather than constitutionally protected speech, as it in fact is), a donation to a non-profit that employs such a person would not be (especially given that a think tank like AEI also contains scholars whose positions on subjects like tax policy, labor law, property rights, and lawsuit abuse would be congenial to a corporation like Exxon).

    In any event, judging from Schneiderman’s own remarks, Exxon did not engage in any deception about the health risks of its products when used (the way asbestos makers were accused of doing, and the way the big tobacco companies in fact long did), much less speech unprotected by the First Amendment. What angers Schneiderman most appears to be political opposition to certain controversial environmental legislation, not deception or views at odds with sound science: He is upset that Exxon had the temerity to note that policies advocated by climate change activists have real world costs, and may not be politically viable.

  • The Misguided Attempt to Censor Yik Yak

    October 29, 2015 9:57 AM

    People often seek to restrict new means of communication in ways that would never be applied to older forms of communication, sometimes based on fear of new technologies or illogical rationales. A recent example is the demand by 72 left-wing women’s groups and civil-rights groups that the federal government force colleges to block access to the social media app Yik Yak. They claim such measures are required by the federal civil-rights laws Title IX and Title VI. They want colleges to ban a form of social media just because a few users make racist, sexist, or threatening comments on it.

    The fact that a few users make bigoted or even threatening comments is not sufficient reason to shut down an entire medium of communication. No one would advocate banning demonstrations just because a few demonstrators uttered racist or inappropriate comments. New modes of communication like Yik Yak should not be treated any differently or worse. As I explain at this link, if the federal government granted their demand to crack down on Yik Yak, it would flagrantly violate the First Amendment.

    The Supreme Court’s 1997 decision striking down an Internet decency law likened such sweeping censorship to “burning the house to roast the pig.” In The Washington Post, law professor Eugene Volokh correctly described these women’s groups as a “national coalition in favor of campus censorship.” 

  • CEI Issues Report on the Nation’s Six Worst State Attorneys General

    August 27, 2015 8:08 AM

    Today, CEI issued another of its periodic “worst state attorney general” lists, in a lengthy report explaining why those attorneys general received that dubious distinction. (Previous versions were issued in 2007 and 2010.) The Nation’s Worst State Attorneys General 2015 is now available.

    Pennsylvania’s recently indicted Kathleen Kane was rated the worst state attorney general. As the Huffington Post notes, “Almost half of Pennsylvania voters want Kathleen Kane, the state's embattled Democratic attorney general, to step down, according to a Quinnipiac University poll released Tuesday. Forty-nine percent said Kane, who is facing criminal charges relating to allegations she leaked information about a rival, should resign. Twenty-seven percent said she should remain in her position.” Fifty-four percent of Pennsylvania voters disapproved of her job performance, while 20 percent approve. Kane was indicted on August 6 for illegally leaking grand jury material and a subsequent cover-up. Kane is charged with perjury, official oppression, obstruction of justice, and contempt of court.

    State attorneys general are supposed to represent the interests of their clients, not their own. For attorneys general, that includes representing state agencies that are sued, defending state laws, and giving unbiased legal advice to state officials. But AGs are often self-seeking politicians who chafe at having to perform these duties rather than aggrandizing their own power. For many, it is tempting to use their office to enrich themselves or their trial lawyer friends, or to file lawsuits attacking political opponents or out-of-state businesses that have done nothing illegal, but have no redress at the polls.

    Past examples include former Texas attorney general Dan Morales, who was jailed for mail fraud and tax evasion related to Texas’s 1998 tobacco settlement; Alabama’s Richmond Flowers, who was sentenced to eight years in prison for conspiring to extort payments from companies; and Missouri’s William Webster, who was sentenced to two years in prison for rewarding lawyers who donated to his campaign with bigger settlements.

  • Obama Administration Pressures Colleges to Adopt Unconstitutional Speech Codes

    June 17, 2015 11:05 AM

    Under the Obama administration, the Education Department has pressured schools and colleges to restrict speech, including off campus speech, even when it is protected by the First Amendment, and is not severe and pervasive. It claims this is required by federal anti-discrimination laws such as Title IX and Title VI. It also expects colleges to investigate off-campus sexual misconduct by students, even though most federal appellate court rulings say schools have no such duty under Title IX. 

    As I recently noted in The Wall Street Journal, “the Education Department, where I used to work,” is

    pressuring colleges to adopt unconstitutional speech codes in the name of fighting sexual harassment. It has disregarded many court rulings in doing so.

    For example, the Education Department has wrongly ordered schools to regulate off-campus speech and conduct. That contributed to the harassment charges against Prof. Laura Kipnis, who was accused over a politically incorrect essay she wrote in the Chronicle of Higher Education and statements she made on Twitter. Court rulings like Roe v. Saint Louis University (2014) reject Title IX claims over off-campus conduct, but the Education Department ignores them. It also ignores court rulings like Klein v. Smith (1986) emphasizing that the First Amendment usually bars public schools from restricting off-campus speech. For example, the Education Department told schools to regulate comments “on the Internet” in an October 2010 letter. In 2014, it demanded that Harvard regulate off-campus conduct more.

    At Northwestern University, Professor Laura Kipnis was subjected to a bizarre Title IX investigation over an essay in the Chronicle titled “Sexual Paranoia Strikes Academe” (which hypersensitive students claimed offended them and constituted sexual harassment) and her subsequent statements defending herself on Twitter (which the students claimed constituted “retaliation” in violation of Title IX, even though she did not identify them by name). Kipnis was ultimately found not guilty.

    Although it eventually became clear that nothing Kipnis did violated Title IX, Northwestern probably felt obligated to subject Kipnis to that chilling, lengthy, and extensive investigation due to improper mandates issued by the Education Department’s Office for Civil Rights (OCR), which make it hard to summarily dismiss weak or baseless Title IX complaints.  

  • DOJ vs. Reason.com Commenters: How the Deck Is Stacked Against Anonymous Political Speech

    June 9, 2015 8:42 PM

    Our friends over at the Reason Foundation, a venerable libertarian think tank and publisher of Reason magazine, recently received a grand jury subpoena from a federal prosecutor in New York, reports Ken White at Popehat. The subpoena demands that Reason disclose “all identifying information” it has regarding six pseudonymous users who posted comments about the death and afterlife of a federal judge on Reason’s Hit & Run blog.

    These comments came in response to a May 31 Reason post by Nick Gillespie about the trial and sentencing of Ross Ulbricht, who was convicted in February of running an Internet-based narcotics and money laundering platform known as Silk Road. In late May, Judge Katherine Forrest, who sits on the U.S. District Court for the Southern District of New York, sentenced Ulbricht to life in prison. This sentence was met with mixed reactions, with many commentators criticizing Judge Forrest for handing down what they perceived as an exceedingly harsh sentence.

    A few Reason users, some of whom may have followed Reason’s extensive coverage of the fascinating trial, apparently found Ulbricht’s sentence especially infuriating. One commenter argued that “judges like these … should be taken out back and shot.” Another user, purporting to correct the preceding comment, wrote that “[i]t’s judges like these that will be taken out back and shot.” A follow-up comment suggested the use of a “wood chipper[],” so as not to “waste ammunition.” And a user expressed hope that “there is a special place in hell reserved for that horrible woman.”

    Within hours, the office of Preet Bharara, the U.S. Attorney for the Southern District of New York, sent Reason a subpoena for the commenters’ identifying information “in connection with an official criminal investigation of a suspected felony being conducted by a federal grand jury.” This doesn’t mean a grand jury actually asked about the commenters; instead, in federal criminal investigations, it’s typically up to the U.S. Attorney to decide when to issue a subpoena “on behalf” of a grand jury. See, e.g., United States v. Kleen Laundry & Cleaners, Inc.381 F. Supp. 519, 521 (E.D.N.Y. 1974). The subpoena demands from Reason information about the six users, including their email and Internet Protocol (IP) addresses—which, if disclosed, could enable the government to uncover the true identities of the commenters, perhaps after another round of subpoenas are sent to the users’ respective Internet Service Providers.

    Popehat’s Ken White is quite troubled by the government’s decision to issue this subpoena. Ilya Somin, writing at The Volokh Conspiracy, also objects to the subpoena. So do the Cato Institute’s Tim Lynch and Techdirt’s Mike Masnick, among many others.

    I too find it quite concerning. Even if this subpoena is valid under current law—more on that angle in a bit—the government made a serious mistake in seeking to force Reason to hand over information that could uncover the six commenters’ identities. Unless the Department of Justice is investigating a credible threat to Judge Forrest with some plausible connection to the Reason comments at issue, this subpoena will serve only to chill hyperbolic—but nonetheless protected—political speech by anonymous Internet commenters. And if Reason decides to stand up for its users’ rights, the resulting court battle will amount to a waste of federal law enforcement resources that could instead help bring actual criminals to justice, as Tim Lynch reminds us.

    To be sure, I have no problem with the feds seeking to locate and prosecute people who actually threaten to commit murder—which, if transmitted in interstate commerce, is a federal crime under 18 U.S.C. § 875. Threatening to kill a federal judge is especially problematic; assassinations of federal judges do happen from time to time. As such, it’s only natural that law enforcement takes such threats seriously.

    Yet, while the comments identified in the subpoena are undeniably vile, they’re also protected by the First Amendment, and rightly so. Hyperbolic political statements have a long history in the United States; for instance, Ken Shultz notes that Martin Luther King, Jr., once said that “[t]he hottest place in Hell is reserved for those who remain neutral in times of great moral conflict.” Sound familiar?

  • DOJ vs. Reason.com Commenters: When Everything Is Deemed a "Threat"

    June 9, 2015 3:20 PM

    The Supreme Court has said that true threats can be banned without violating the First Amendment, but that doesn’t mean that hyperbolic rants are unprotected just because they express a yearning for someone’s demise. That doesn’t make them a true threat. For example, the Supreme Court ruled on the issue in Watts v. United States (1969). Robert Watts, a young black man, stated during a protest in Washington, D.C.:

    I have already received my draft classification as 1-A and I have got to report for my physical this Monday morning. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. They are not going to make me kill my black brothers.

    The Supreme Court reversed his conviction for making threats, ruling that Watts’ statement was political hyperbole rather than a true threat. “We agree with [Watts] that his only offense here was ‘a kind of very crude offensive method of stating a political opposition to the President.’”

    But prosecutors sometimes confuse hyperbolic dissent with true threats. School officials are even worse. They equate even mild academic references to violent protests in the distant past with unprotected threats.

    For example, Oakton Community College (OCC) concluded that a one-sentence “May Day” email referencing the Haymarket Riot sent by a faculty member to several colleagues constituted a “true threat” to the college president. On May 1, Chester Kulis sent an email to OCC colleagues that read, “Have a happy MAY DAY when workers across the world celebrate their struggle for union rights and remember the Haymarket riot in Chicago.” Lawyers for the Chicago-area college argue that the email, which commemorated the riot, thus threatened violence.

    Similarly, federal prosecutors in the Southern District of New York are using a subpoena to identify anonymous commenters on a Silk Road post at Reason.com, notes First Amendment lawyer Ken White:

    The United States Department of Justice is using federal grand jury subpoenas to identify anonymous commenters engaged in typical internet bluster and hyperbole in connection with the Silk Road prosecution.  . . .Why is the government using its vast power to identify these obnoxious asshats, and not the other tens of thousands who plague the internet? Because these twerps mouthed off about a judge. . .. The subpoena commands Reason to provide the grand jury "any and all identifying information" Reason has about participants in what the subpoena calls a "chat."

    The "chat" in question is a comment thread on Nick Gillespie's May 31, 2015 article about Ross "Dread Pirate Roberts" Ulbricht's plea for leniency to the judge who would sentence him in the Silk Road prosecution. That plea, we know now, failed, as Ulbricht received a life sentence, with no possibility of parole.

    Several commenters on the post found the sentence unjust, and vented their feelings in a rough manner. The grand jury subpoena specifies their comments and demands that Reason.com produce any identifying information on them.

  • The "Draw Muhammad" Contest and the Futility of Trying to Correct Journalistic Mistakes about the Law

    May 6, 2015 2:03 PM

    ​Journalists often not only get the law wrong, but then have the audacity to smugly talk down to people who attempt to correct them (usually in a way that manifests a pro-regulatory slant). A classic example was CNN anchor Chris Cuomo’s statement, in the context of a “Draw Muhammad” contest in Garland, Texas, that “hate speech is excluded from protection. dont just say you love the constitution...read it.”

    Cuomo has seemingly never read the Constitution himself, despite having once attended law school. The Constitution doesn’t even contain the word “hate,” much less mention “hate speech” in the First Amendment. The Supreme Court has made clear over and over again that hate speech in public settings is protected by the First Amendment. As Twitchy observed, “in 2011, the Supreme Court ruled 8-1 in Snyder v. Phelps stating the always awful Westboro Baptist Church” – which vociferously hates gay people – “had the right to protest at the funerals of slain military members. In other words, hate speech is protected speech.” This is not a new legal principle. The Supreme Court invalidated a hate-speech ordinance in R.A.V. v. St. Paul (1992). Moreover, it has also ruled that a racist group couldn’t be charged more fees based on its racist message (Forsyth County v. Nationalist Movement), and that a racist Klan speech was protected speech (Brandenburg v. Ohio (1969).

    When this was pointed out to Cuomo, he justified his erroneous statement by citing the legally irrelevant “Chaplinsky case,” a case that said nothing about hate speech, but rather involved the judicially created “fighting words” exception to the Constitution. The “fighting words” exception seldom applies to hate speech, and requires face-to-face insults, not depictions of the prophet Mohammed, however inflammatory such depictions might be. As the Supreme Court explained in its Texas v. Johnson decision, which struck down attempts to ban flag burning, the fighting words exception doesn’t reach apply to even extremely inflammatory speech unless it involves a “direct personal insult or an invitation to exchange fisticuffs.” In response to a Jewish reader who attempted to correct his error, he argued that it wouldn’t cover speech in which someone would “call you something ugly for being Jewish.” But calling somebody something ugly, even in-person, is typically protected speech under the Supreme Court’s decisions in Gooding v. Wilson and Lewis v. City of New Orleans, which limited the reach of the fighting words doctrine to cover almost no speech.

    Running out of patience with Cuomo, the First Amendment and criminal-defense lawyer Ken White, also known as Popehat, called Cuomo “a disgrace to Fordham Law School, which only admitted you because of your famous father.” Popehat’s acerbic remark may reflect his frustration over widespread media myths about the scope of the First Amendment, such as a recent McClatchy news story that quoted a political science professor erroneously suggesting that the Mohammed cartoons in Texas might have be unprotected incitement of violence. In reality, the Supreme Court’s ruling in Hess v. Indiana made clear that such speech cannot be banned as “incitement,” since even inciteful speech retains its protection under the First Amendment unless it is intended to incite imminent lawless action.

  • Deceptive Discrimination Laws

    April 29, 2015 9:14 AM

    Discrimination may be bad for business, but that doesn’t mean laws banning discrimination are good for business. Often, these laws are like the proverbial Trojan Horse, applied by the courts in unexpected ways that are harmful to businesses, including employers who harbor no prejudice of any kind. For example, the Supreme Court interpreted a federal race and sex discrimination law (Title VII of the Civil Rights Act) as banning unintentional “disparate impact” (which is when a neutrally applied selection criterion weeds out more black than white applicants) even though that statute explicitly limited relief to cases where there was a showing that the employer had “intentionally engaged in or is intentionally engaging in an unlawful employment practice.” [See Griggs v. Duke Power Co. (1971); 42 U.S.C. 2000e-5(g).] The result of that case was to outlaw a wide array of useful, colorblind standardized tests.

    The Supreme Court also interpreted a statutory attorneys fees provision that was neutral on its face as instead mandating one-way fee-shifting, effectively entitling only prevailing plaintiffs to such fees (except in really extreme cases), not prevailing defendants, and entitling such plaintiffs to fees even if the employer had a reasonable, good-faith belief for taking the position it did. [See Christiansburg Garment Co. v. EEOC (1978).]

    Civil rights agencies and courts also impose emotional distress damages in discrimination cases that seem to be either grossly exaggerated, or insufficiently corroborated by objective evidence. For an example of the former, see the recent ruling by an administrative law judge in the Oregon Bureau of Labor and Industries, recommending “$135,000 in damages against Melissa and Aaron Klein, owners of Sweet Cakes by Melissa in Gresham, Ore., who had declined to cater a gay wedding on grounds of religious scruples [Oregonianearlier].” As is typical in administrative discrimination cases, the same agency is effectively serving as prosecutor, judge, and jury, which the Founding Fathers would have viewed as a violation of the constitutional separation of powers, as law professor Philip Hamburger has explained.

    $135,000 (or even a tenth that amount) is a grossly excessive emotional-distress damage award for a simple refusal to contract with a customer. Being rebuffed by a merchant is much less painful than losing your job, or even losing out on a promotion, and people wrongly fired from their jobs typically get less than $135,000 in emotional distress damages. The award is so ridiculously large that it seems to designed not to compensate, but to punish people for harboring archaic beliefs, with the lion’s share of the award being to punish the small business owners for their thought-crime, rather than make anyone whole.

  • University of California Dean: Academic Freedom Makes Students "Feel Unsafe"

    March 6, 2015 12:39 PM

    Recently, the dean of the School of Social Welfare at the University of California at Berkeley condemned a professor’s constitutionally protected remarks, including but not limited to his mention of black-on-black crime at a Black Lives Matter event. A complaint has also apparently been filed against the professor with the Office for the Prevention of Harassment and Discrimination.  

    Rather than defending academic freedom, Dean Jeffrey Edelson said “we deeply regret the reported incident” involving Steven Segal, a tenured professor, who has taught at Berkeley for more than 40 years and is world-renowned for his research on mental illness. Worse, the dean said that his remarks “made the classroom environment feel unsafe” for the complaining students. The dean reportedly set up a “shadow class” for students offended by the professor’s remarks: “Students in Segal’s class were offered an alternate section” with “a different professor.” 

    The University’s overreaction to Professor Segal’s speech was so absurd that a former head of the Education Department’s Office for Civil Rights told me that what occurred at the University of California “could just as easily be a Saturday Night Live skit.” 

    But it also sets a very bad precedent for academic freedom. Why are taxpayers paying to subsidize a school of social work whose officials exhibit so little common sense—and so much disdain for constitutional free speech guarantees?

    The federal appeals court with jurisdiction over the University of California has made clear that speech like Professor Segal’s cannot be banned even by labeling it as a threat to people on campus or the classroom environment. In Bauer v. Sampson, it held that a college professor's caricatures of a college president and satirical yearning for his death were protected by the First Amendment, even though the college declared it a violation of its policy against “workplace violence.” Similarly, the Ninth Circuit held that the First Amendment protected a professor’s racially charged emails about immigration, which offended Hispanic faculty, in Rodriguez v. Maricopa Community College District (2010), holding that such speech was protected by the First Amendment against a racial harassment lawsuit, even if the complainants perceived it as discriminatory or creating a racially “hostile environment.” 

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