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[A] decision in petitioners favor . . . would permit the First Amendment to supersede laws of general application that are important for our society to function, without advancing First Amendment goals. . . . Allowing 303 Creative to discriminate on the basis of the First Amendments protections would necessarily open the door to conflicts between such expressive interests and other laws of general application, unsettling the law in multiple ways.

Amicus brief filed on behalf of Vincent Blasi, Erwin Chemerinsky, Burt Neuborne, Robert Post, Kermit Roosevelt, Amanda Shanor, Geoffrey R. Stone and Laura Weinrib.

Justice Neil Gorsuchs majority opinion in 303 Creative LLC v. Elenis (2023) will live on in infamy in many liberal minds. This 6-3 opinion is one of the latest in a predictable line of conservative rulings designed to upend liberal precedents, this time those concerning LGBTQ rights. For example, consider what Laurence Tribe and Jeffrey B. Abramson said about the matter:

By twisting free speech into a license to discriminate, the [303 Creative] court has now carved out an exception from public accommodations law for businesses that recast their services in ways that highlight their expressive features. But the court offers no workable principle to cabin that exception in any meaningful way. . . . The hostility of a majority of justices to the2015 Supreme Court caseprotecting same-sex marriage is so open that, until they can followJustice Clarence Thomass call to overrule that decision, they are determined to strip same-sex couples of civil rights protections that other lawfully married couples enjoy.

303 Creative also marks yet another liberal breakaway from what was long thought to be one of the mainstays of liberal constitutionalism the free speech principle championed by the liberal likes of Brandeis and Brennan and hailed in the scholarly works of Emerson and Kalven. But those days are ending as more and more liberals view the Roberts Courts jurisprudence as a way, in Justice Elena Kagans dissenting words, of weaponizing the First Amendment.

More than 20 states, including New York and California, have anti-discrimination laws like Colorados. By creating a free speech carve-out from these laws, the courts ruling threatens to obliterate a vital tool in efforts to protect the L.G.B.T.Q. community at a time when it faces hatred and violence.

Aaron Tang, The New York Times (July 1)

See also: Ben Clements, The Roberts Court twisted the First Amendment into a tool of discrimination, The Hill (July 8).

For a supportive take on Justice Gorsuchs opinion, see: Darpana Sheth, Myth-busting reactions to the Supreme Courts decision in 303 Creative v. Elenis, FIRE (July 7).

See also: John Eastman and Anthony T. Caso, amicus brief filed in support of petitioners

If one had to pinpoint a time when the left began to lose faith in First Amendment free speech absolutism (or near absolutism), it might have been with the Nazis marching in Skokie cases (Village of Skokie v. National Socialist Party (Ill., 1978) and Collin v. Smith (7th Cir., 1978). That controversy certainly divided the ACLUs membership. See: When the Nazis Came to Skokie, Philippa Strum (1999).

If one had to pinpoint a time when the right began to gain faith in the First Amendment, it might have been with the commercial speech cases, especially ones such as 44 Liquormart v. Rhode Island (1996) (see e.g. Thomas, J., concurring). (Contrast C. Edwin Baker, The First Amendment and Commercial Speech, Indiana Law Journal (2009).) There were also cases such as Harris v. Quinn (2014) and Janus v. American Federation of State, County and Municipal Employees (2018) in which the First Amendment was used to disempower labor unions.

The left took its leave when the free speech principle trumped the anti-discrimination principle, and when libertarian values redefined the political power dynamic. By the same token, the right openly embraced the free speech principle when it served the interests of laissez-faire capitalism.

The equality principle of free speech (once championed in Police Dept. of the City of Chicago v. Mosley (1972)), has fallen on difficult times when one considers some of the First Amendment gay rights cases the Court has handed down: e.g., Boy Scouts of America v. Dale (2000), Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), and more recently 303 Creative LLC v. Elenis (2023) and Klein v. Oregon Bureau of Labor and Industries (2022). For many liberals, the First Amendment is a device by which conservative jurists can dismantle the Courts landmark LGBTQ rulings.

On the other side of the ideological divide and to conservatives delight the libertarian tenet of the First Amendment has done quite well when one considers certain commercial speech cases (e.g., Thompson v. Western States Medical Center (2002); and Sorrell v. IMS Health, Inc. (2011)) and virtually all the campaign finance cases (e.g., Citizens United v. FEC (2010); and McCutcheon v. FEC (2014). Here too, such rulings have been met with liberal outrage.

More, of course, needs to be said on the liberal abandonment and the conservative endorsement of 303 Creative-like rulings (both on the expression and religion sides), but that is the stuff of forthcoming posts so stay tuned! rklc

Related

That was the title of Susanna Granieris post over at First Amendment Watch. Here are a few excerpts:

A federal judge in Louisiana granted a preliminary injunction July 4 blocking the Biden administration and key government agencies from communicating with major social media platforms about user content the sites host a ruling which could result in major First Amendment implications.

Theorder, written by Judge Terry A. Doughty a Donald Trump appointee upends the governments efforts to curtail troublesome speech online. The mis- and disinformation on major platforms grew exponentially during the 2016 presidential election and the coronavirus pandemic, which led the government to regularly communicate its concerns with major social media platforms that hosted the speech of millions of Americans.

[ . . . ]

Judge Doughtys ruling raised concern among some First Amendment scholars. The opinion includes facts that raise serious constitutional questions,tweetedJameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University.But his order would insulate social media [companies] from criticism, not just coercion. He should narrow the order, or the appeals court should do it for him, he wrote.

[ . . . ]

Lyrissa Lidsky, First Amendment lawyer and professor at the University of Florida Levin College of Law, said it appears the government may have gone beyond jawboning to implicit coercion of social media companies as a way to censor disfavored content.

Some of that content may be disinformation, but the danger is that some of it is simply content the government doesnt like or finds embarrassing, she said. The litigation is important as a tool to uncover the extent to which the government is pressuring, and perhaps coercing, censorship by the social media companies that provide millions of us with access to the digital public square. However, Lidsky added, Judge Doughtys gag order on government actors may reach too far in response to the threat.

This from Eric Boehm over at Reason:

Whether [any] systemic pressure campaign amounts to a violation of Americans' free speech rights is something courts still have to decide. It's not a straightforward issue, as government officials also have a free speech right to communicate with moderators at social media companies. When and how that communication becomes an attempt at chilling free speechbacked by an implicit threat of state action if the social media companies don't complyare complex questions, and Tuesday's injunction is far from the final say in the matter.

This from Leah Litman and Laurence H. Tribe in Restricting the Government from Speaking to Tech Companies Will Spread Disinformation and Harm Democracy for Just Security (July 5):

While there are, in theory, interesting questions about when and how the government can try to jawbone private entities to remove speech from their platforms, this decision doesnt grapple with any of them . . .

Invoking the First Amendment, a single district court judge effectively issued a prior restraint on large swaths of speech, cutting short an essential dialogue between the government and social media companies about online speech and potentially lethal misinformation. Compounding that error, the district court crafted its injunction to apply to myriad high-ranking officials in the Biden administration, raising grave separation of powers concerns. And equally troubling is how the courts order, which prevents the government from even speaking with tech companies about their content moderation policies, deals a huge blow to vital government efforts to harden U.S. democracy against threats of misinformation.

Related

Of all the distortions and paranoia that Tucker Carlson promoted on his since-canceled Fox News program, one looms large: a conspiracy theory that an Arizona man working as a covert government agent incited the Jan. 6, 2021, assault on the Capitol to sabotage and discredit former President Donald J. Trump and his political movement.

Whats known about the man a two-time Trump voter namedRay Epps is that he took part in demonstrations in Washington that day and the night before . . .

Federal prosecutors have not charged Mr. Epps with a crime, focusing instead on the more than1,000 other demonstratorswho acted violently or were trespassing in the Capitol. The Justice Departments sprawling investigation into the attack remains open, however, and Mr. Epps could still be indicted.

Yet for more than 18 months, Mr. Carlson insisted that the lack of charges against Mr. Epps could mean only one thing: that he was being protected because he was a secret government agent. There was no rational explanation, Mr. Carlson told his audience, why this mysterious figure who helped stage-manage the insurrection had not been charged. He repeated Mr. Eppss name over and over in nearly 20 episodes imprinting it on the minds of his viewers.

[ . . . ]

Now lawyers representing Mr. Epps and his wife are proceeding with plans to sue Fox News for defamation. We informed Fox in March that if they did not issue a formal on-air apology that we would pursue all available avenues to protect the Eppses rights, said Michael Teter, a lawyer for Mr. Epps who sent the network acease-and-desistletter asking for an on-air apology and a retraction.

[S]tatements impugning the integrity of a judge may not be punished unless they are capable of being proved true or false; statements of opinion are protected by the First Amendment unless they imply a false assertion of fact.

Judge Alex Kozinski (1995)

This case [involving criticism of a judge] presents a textbook example of an opinion that is protected by the First Amendment . . .

Attorney Alex Kozinski, 2023, brief on behalf of Petitioner Pavone

The case is In the Matter of Benjamin Laurence Pavone (Cal., #S-279851). It is a bar discipline case that tests the limits of how far a lawyer can go in criticizing a judge. Petitioner, Benjamin Pavone, is being represented by retired Ninth Circuit Judge Alex Kozinski.

The issues raised in the case are:

Note: The Ninth Circuit Yagman majority opinion the Petitioner relies upon was authored by then-Judge Alex Kozinski. (Some of those who signed an amicus brief filed by American Jewish Congress-Pacific Southwest Region and Article 19 in support of the petitioner were: Ben Margolis, Erwin Chemerinsky, Susan R. Estrich, Barry A. Fisher, Catherine L. Fisk, Stanley Fleishman, Fred Okrand, Robert M. Ornstein, and Eugene Volokh.)

Here are a few excerpts from Kozinskis First Amendment arguments to the state high court:

First things first. The language just recounted from Petitioners opening and reply briefs is bad writing and poor advocacy. No one long in the business of persuading appellate courts believes youre likely to get very far hurling rotten vegetables at the decision-maker or the decision-maker's colleagues. Petitioners writing was not a persuasive legal argument calculated to obtain the fees he believed he deserved. Indeed, it may be the worst advocacy among the thousands of briefs counsel has read over the years.

But Petitioner was not charged with incompetence and he hurt only himself: As any reasonable person would have expected, the Court of Appeal rejected Petitioners argument and affirmed the denial of fees and costs, whereas a more temperate brief may have prevailed.

The question presented by this petition is whether casting doubt on the intellectual

integrity of a judicial officer, after disclosing the facts on which those doubts are based, may be the subject of disciplinary sanctions. The Ninth Circuit long ago held that, as a matter of First Amendment law, such conduct could not be grounds for discipline. (Standing Comm. on Discipline of U.S. Dist. Ct. for Cent. Dist. of California v. Yagman (9th Cir. 1995)).

Uvalde school district officials banned Adam Martinez from school property and school board meetings for two years.

Foundation for Individual Rights and Expression

The Uvalde school district has lifted its ban on a concerned parent after the Foundation for Individual Rights and Expression stood up for his right to speak out at school board meetings.

The Uvalde Consolidated Independent School DistrictbannedAdam Martinez, a father of two students, from district property for two years for questioning the qualifications of a recently hired school district police officer. In May, FIRE sent aletterthreatening to sue if the district did not lift the unconstitutional ban. Yesterday, the school districtconfirmedit is lifting the ban and Martinez is allowed on school property once again.

All Ive ever wanted was to speak my mind and be a voice for my community, said Martinez. Im thankful to FIRE for taking my case, and look forward to holding our local leaders accountable.

FIRE was ready and willing to sue to protect Mr. Martinezs First Amendment rights, said FIRE attorney Conor Fitzpatrick. Thankfully, the Uvalde school district backed down and lifted its unconstitutional ban.

The case of New York Times v. Sullivan set a vital standard in libel law. Could the clash between Fox News and Dominion Voting Systems dismantle itand at what cost?

The libel lawsuit filed in March 2021 by Dominion Voting Systems against Fox News, over the networks coverage of claims that the company had rigged the 2020 election, was settled this spring, but the case may soon become an artifact of a vanished era. In pretrial skirmishing, the two sides agreed on this much: the law of libel is governed by the Supreme Courts 1964 decision inNew York Timesv.Sullivan. In the last legal arguments before the jury was to be seated, Rodney A. Smolla, one of the lawyers for Dominion, calledSullivan the landmark decision that is the genesis for all of our modern First Amendment principles involving defamation law. Erin E. Murphy, a lawyer for Fox, likewise said that the principle governing the case starts inSullivan. But the emboldened conservative majority on the Supreme Court, having dispatchedRoev.Wadeto the dustbin of overruled precedents, may now targetSullivanfor the same treatment. Such a change would have fundamental consequences for both those who speak and those who are spoken about.

Its a fitting time, then, to take a fresh look atSullivan how it came about and what it means today. InActual Malice: Civil Rights and Freedom of the Press inNew York Timesv.Sullivan,Samantha Barbas, a professor at the University of Buffalo School of Law, tells the improbable story of the advertisement that gave rise to the case and the decision that Justice William J. Brennan ultimately wrote. Its a tale that has been told before notably in books by Anthony Lewis and Aimee Edmondson but Barbas has a distinctive and relevant argument.

Related

Thanks to the First Amendment, Americans enjoy a rare privilege: the constitutional right to lie. And although controversial, they should continue to enjoy this right.

When commentators and politicians discuss misinformation, they often repeat five words: "fire in a crowded theater." Though governments can, if they choose, attempt to ban harmful lies, propaganda, misinformation, and disinformation, how effective will their efforts really be? Can they punish someone for yelling "fire" in a crowded theater and would those lies then have any less impact? How do governments around the world respond to the spread of misinformation, and when should the US government protect the free speech of liars?

InLiar in a Crowded Theater, law professor Jeff Kosseff addresses the pervasiveness of lies, the legal protections they enjoy, the harm they cause, and how to combat them. From the COVID-19 pandemic to the 2016 and 2020 presidential elections and the January 6, 2021, insurrection on the Capitol building, Kosseff argues that even though lies can inflict huge damage, US law should continue to protect them.Liar in a Crowded Theaterexplores both the history of protected falsehoods and where to go from here.

Drawing on years of research and thousands of pages of court documents in dozens of cases from Alexander Hamilton's enduring defense of free speech to Eminem's victory in a lawsuit claiming that he stretched the truth in a 1999 song Kosseff illustrates not only why courts are reluctant to be the arbiters of truth but also why they're uniquely unsuited to that role. Rather than resorting to regulating speech and fining or jailing speakers, he proposes solutions that focus on minimizing the harms of misinformation. If we want to seriously address concerns about misinformation and other false speech, we must finally exit the crowded theater.

Last Constitution Day, we traced the origins of free speech in the United States from colonial America to the ratification of the Bill of Rights in 1791. In this episode, we jump forward to the antebellum period, where abolitionists such as Frederick Douglass, John Quincy Adams, William Lloyd Garrison, and Angelina Grimk? clashed with pro-slavery advocates over the monumental issue of slavery.

Journalist and author Damon Root, FIRE Senior Fellow Jacob Mchangama, and Washington and Lee University professor Lucas Morel join the show this week to explore how free speech and the free press became the essential tools in the abolitionists' campaign for freedom.

Cases decided

Review granted

Cert granted and case remanded

Pending petitions

State action

Qualified immunity

Immunity under Foreign Sovereign Immunities Act

Liability Anti-Terrorism Act

Section 230 immunity

Review denied

Previous FAN

FAN 385.1: Stephen Rohde, Devil's Advocate: Why is a prominent ethics professor defending John Eastman on First Amendment grounds?

This article is part ofFirst Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the articles author(s) and may not reflect the opinions of FIRE or of Mr. Collins.

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Abandoned love: The left's move away from the right's First Amendment First Amendment News 386 - Foundation for Individual Rights in Education