Speech Rights Research Articles

A Modest Exercise in Freedom

A Modest Exercise in Freedom Brian Morton (bio) Click for larger view View full resolution Illustration by Molly Crabapple [End Page 38] A tenacious commitment to freedom of expression is one of the best traditions of the democratic left. But the contemporary left–a big part of it, at any rate–has embraced the belief that unwelcome ideas and works of art cause harm, and that the proper responses to such harms are calls for retraction and apology, rather than refutation (in the case of political ideas) and more powerful art (in the case of aesthetic productions). When I was thinking about what I wanted to write here, I spent a few hours looking at the first five years of Dissent, from 1954 to 1959, and the last five years, from 2015 to 2020. What I found was a telling contrast. the first five of years of Dissent were filled with reminders of the importance of free expression. the last five years were not. The founders of Dissent were fiercely anticommunist, yet you'll find them repeatedly, heatedly, defending the free speech rights of Stalinists. I'll cite just one example. In an article about the state of liberalism in 1955, Irving Howe criticized Americans for Democratic Action for passing a resolution that supported "the right to advocate unpopular political proposals." Why would Howe have objected to this? He objected because the ADA had changed the wording of a previous draft, which supported "the right to advocate unpopular political proposals, including communist ideas." they'd taken out "including communist ideas." In other words, he was attacking them for the failure to explicitly affirm the free speech rights of communists. The early editors of Dissent, defending the free expression rights of a political group they loathed and feared, were in the tradition of Rosa Luxemburg, who said, "Freedom is always and exclusively the freedom of the one who thinks differently … all that is instructive, wholesome and purifying in political life depends on it." In the magazine's most recent five years, I found articles that touched on these questions, but I couldn't find any defenses of the freedom to think differently. Instead, I found articles like "the Free Speech Straw Man," which told us that speech can be "part of the problem or part of the solution," and that "each campus has to decide if regulating free speech is the best choice [End Page 39] for its own community." And "the Case for Safe Spaces," in which we learned that "all politics are about emotional well-being." And a book review that told us that a content-neutral defense of free expression is "more likely to aid the powerful than the … downtrodden." Contemporary skepticism about the idea of free expression seems to rest on two pillars. The first is a heightened sense of distress about an old reality: the reality that the powerful can take advantage of free expression more readily than the powerless can. The second is the startling ballooning of the idea of harm. Every affirmation of the importance of free expression that I know of, from Milton and Mill on down, comes with the important proviso that expression should be curtailed when it causes harm. What's new in our moment is that the notion of harm has been expanded to an extraordinary degree, along with the notion of speech as violence. It's true, of course, that the powerful can take advantage of freedom of expression more easily than the rest of us. But it's curious to draw the lesson from this that freedom of expression is a fig leaf for right-wing politics. the powerful can also more easily take advantage of the right to vote and the right to a fair trial. Are they fig leaves for right-wing politics too? It's precisely because the powerful can take advantage of these rights more easily that we need to do everything we can to bring about a culture with the rock-bottom belief that these rights and the ability to exercise them must be universal. If we're pressing for limitations on speech, we're ultimately pressing for limitations on our own. As...

Why Moral Rights of Free Speech for Business Corporations Cannot Be Justified

In this paper, I develop two philosophically suggestive arguments that the late Justice Stevens made in Citizens United against the idea that business corporations have free speech rights. First, (1) while business corporations conceived as real entities are capable of a thin agency conceptually sufficient for moral rights, I argue that they fail to clear important justificatory hurdles imposed by interest or choice theories of rights. Business corporations conceived as real entities lack any interest in their personal security; moreover, they are incapable of exercising innate powers of choice. Second, (2) I argue that the structure and functionally individualized purpose of a business corporation—to increase value for its shareholders—undermines the implicit joint commitment necessary to derive corporate rights of free speech from non-operative shareholder-member rights. Since one cannot transfer innate moral rights such as free speech, any exercise of this right on behalf of another must be limited in scope.

Gender Identity Ideology: The Totalitarian, Unconstitutional Takeover of America’s Public Schools

The seeds of totalitarian-style education are germinating in America’s schools. The dominant ideology that is sprouting is gender identity ideology. Through massive federal spending, state ownership claims over children, de facto denial of educational choice, curricular overhauls, new teacher “training” programs, inter alia, many of America’s schools have slowly become indoctrination factories for the belief that sex is fluid, that there are multiple genders, and that a person’s “sex assigned at birth” has nothing to do with a person’s so-called gender identity. This Article argues that totalitarian-style education—now manifesting in indoctrination in gender identity ideology—is fundamentally inconsistent with American ideals and constitutional principles. First, the Article surveys the educational systems and philosophies of three totalitarian states: Sparta, the Soviet Union, and Nazi Germany. Based on these surveys, the Article deduces five tenets of totalitarian education. After taking power, each totalitarian state consolidated all power over the education system in the central government and stripped all educational authority from outside influences. Second, children were viewed as property of the state, and the state became the primary influence upon children. Third, education at state-run schools was made compulsory from young ages. Fourth, the curriculum was highly controlled and intentionally ideological, constructed with the singular goal of molding children into uniform citizens who would serve the state’s ends. Fifth, teachers were controlled and required to instruct their pupils in the tenets of party ideology or risk termination or worse. Through this process, the State would destroy the individual and produce uniform citizens that would serve the interests of the state. The Article argues that each of these five principles is inconsistent with the Constitution. The Federal Government has limited powers and has no constitutional authority to control education. The Constitution recognizes the right of parents to care for their children and direct their children’s moral upbringing and education. States have no authority to force children to attend public schools. The First Amendment bars the state from submerging the individual by indoctrinating children in its preferred ideology. Public-school teachers are guaranteed First Amendment rights of speech and association, and therefore the state cannot force teachers to join a union, swear oath to an ideology, or terminate them for refusing to teach an ideology. Finally, the Article demonstrates that—despite the inconsistency—each of the five totalitarian principles is gaining ground in American institutions and schools with the goal of indoctrinating children in gender identity ideology. The Article concludes by urging parents to take control of their children’s education, whether by holding school boards and states accountable or removing their children from public schools altogether. Without such drastic action—and quick—the roots of totalitarianism will have spawned an oak too mighty to uproot.

Putting the Digital Services Act into Context: Bridging the Gap between EU Consumer Law and Platform Regulation

The proposed Digital Services Act (DSA) aims to place more responsibility on online platform operators to control information published by users on their websites. That is a welcome development in the light of scandals concerning fake news and the surreptitious influencing of voters through social media platforms. Cambridge Analytica was suspected of influencing the U.S. presidential elections and the Brexit referendum in 2016 through information posted on Facebook. Also, online marketplaces such as Amazon and Airbnb would be required to verify the identity of professional users on their platforms. This could significantly improve the quality of online platforms for users. Despite its selling points, however, the DSA proposal leaves a number of issues untouched. From a consumer law perspective, the proposal could have been more ambitious in particular with regard to effective remedies for misleading information or unsafe products. Instead, the spirit and approach advocated by the proposal seem focused on balancing the dissemination of ‘fake news’ and hate speech with the fundamental right of free speech. The regulation of online marketplaces and of debates in the public sphere are however two very different issues. It would perhaps have been better to regulate them separately, rather than to present a DSA proposal that is aimed at all types of platforms. As it is, we find that the proposal pays too little heed to the needs of economic actors, in particular consumers and small traders, in the platform economy. Should the proposal have gone further? In this short contribution, we discuss a number of points that we find are missing from the proposal or not sufficiently addressed. They are: the position of the DSA in relation to existing EU law (Part 2), the regulation of platform liability for unsafe products (Part 3), the protection of economic rights of platform users in particular in the light of consumer protection under the Unfair Commercial Practices Directive (UCPD) (Part 4), and the relation of the DSA to the protection of small traders on online platforms, in particular in the light of the EU’s 2019 platform-to-business (P2B) Regulation (Part 5).

Transparency and The First

In his book The First: How to Think About Hate Speech, Campus Speech, Religious Speech, Fake News, Post-Truth, and Donald Trump, Stanley Fish neatly reverses the polarity of rights-based claims that the public enjoys, under the First Amendment’s free speech and press rights, a right to government information. Transparency and free speech ideals are indeed related, he concedes, because they share a political vision and conceptual grounding in the notion that robust conceptions of free speech carry a commitment to increase the flow of information. But this is not a good thing, Fish argues—rather, the relationship between the two merely compounds a fundamental error and creates bad consequences. This brief review essay applauds Fish’s critique of both understandings of the First Amendment and in the process offers friendly amendments regarding the distinction between public and private speech, the statutory rights to information available under the federal Freedom of Information Act and other laws, and how the Trump presidency confounded everyone’s understanding of what transparency might mean.

Labor laws, free speech rights at play in student‐athlete activism

T he increased wave of student activism has forced colleges and universities to tackle a variety of social, legal, and communication challenges. Student‐athletes have played significant roles in marches and demonstrations; boycotts of practices and donor events; and demands to rename buildings, ban fight songs, remove campus monuments, and discipline coaching staff, noted Michael R. Phillips, Partner at McGuireWoods LLP.

Covid‐19: Where We Are, What Got Us Here, and Where We Are Likely to Be Going—A Review Essay*

Covid‐19: Where We Are, What Got Us Here, and Where We Are Likely to Be Going—A Review Essay*

Media Literacy for Elementary Education Students: Inquiry into Fake News

This work focuses on facilitating upper elementary students’ media literacy skills development. Students engage in authentic techniques to recognize and verify media content and sources. Relevant background topics follow this structure: (a) introduction including literature review and purpose, (b) brief history of fake news, (c) impacts of misleading information on society, and (d) how to moderate fake news. The final student inquiry adheres to the College, Career, and Civic Life (C3) Framework for Social Studies. Students investigate these questions: What is fake news? Why should I care? How can fake news affect people and institutions? Why does fake news affect our lives and societies? Interactive, current resources are included to activate students’ abilities to discern multiple fake news concepts and categories. Extra resources accentuate students’ debate skills regarding free speech rights versus media ambiguity. Recommendations for students’ public informed action solutions are discussed.

Scholarship Suppression: Theoretical Perspectives and Emerging Trends

This paper explores the suppression of ideas within an academic scholarship by academics, either by self-suppression or because of the efforts of other academics. Legal, moral, and social issues distinguishing freedom of speech, freedom of inquiry, and academic freedom are reviewed. How these freedoms and protections can come into tension is then explored by an analysis of denunciation mobs that exercise their legal free speech rights to call for punishing scholars who express ideas they disapprove of and condemn. When successful, these efforts, which constitute legally protected speech, will suppress certain ideas. Real-world examples over the past five years of academics that have been sanctioned or terminated for scholarship targeted by a denunciation mob are then explored.

The Right to Prompt Access to Guns in a Time of Unrest

Legitimate protests of police killings have led to greater levels of violence across the nation. As people have felt less secure, applications for gun licenses have surged. This essay reflects on this intertwining of the need for protest and the need for self-defense and thus the connection between the First and Second Amendments. It argues based on new evidence that James Madison, the key architect of the Constitution and the Bill of Rights, understood the First Amendment and Second Amendment similarly as protecting the individual's natural right to speak and the individual's natural right to self-defense respectively. The similar nature of the First and Second Amendments support making doctrinal analogies between them. The First Amendment helps judges gauge the strength of the public interest justification needed to set a natural right aside. It also can bring to bear a comprehensive body of neutral First Amendment principles to help guide a Second Amendment law that is still in its infancy and to which judges may not be as well-disposed because of professional and social position. This analogy can help answer a pressing Second Amendment issue arising from the unrest in the wake of legitimate protests. Some jurisdictions facing an upswing in violence have delayed the licenses for purchasing or carrying guns for more than month. While the First Amendment permits states to require licenses for demonstrations (for reasons of externalities that also underlie licensing requirements for guns), such licenses cannot be unreasonably delayed as that delay effectively undermines the right of free speech. Delays in licensing guns for self-defense during unrest would make the Second Amendment right of self-defense as ineffective as would delays in licensing for demonstrations to protest recent events.

The $12,000 Tweet: A Collision at the Intersection of Social Media and Copyright Law

The use of social media may be contributing to violations of copyright law and can create legal challenges for school districts trying to balance ease of communication and First Amendment freedom of speech rights against compliance with federal regulations. In this case, a district is threatened with a lawsuit for copyright violation when one of the employees retweets a trademarked phrase. The case explores how school districts monitor copyright law, issues surrounding social media accounts for teachers and other employees such as coaches, the district’s liability for what is shared on those accounts, professional development, and possible board and district responses.

Fixing the Johnson Amendment Without Totally Destroying It

The so-called Johnson Amendment is that portion of Section 501(c)(3) of the Internal Revenue Code that prohibits charities from intervening in electoral campaigns. Intervention has long been understood to include both contributing charitable funds to campaign coffers and communicating the charity's views about candidates' qualifications for office. The breadth of the Johnson Amendment potentially brings two important values into conflict: the government's interest in preventing tax-deductible contributions to be used for electoral purposes (called non-subvention) and the speech rights or interests of charities. For many years, the IRS has taken the position that the Johnson Amendment's prohibition on electoral communications includes the content of a religious leader's speech in an official religious service — a minister may not express support or opposition to a candidate from the pulpit. For at least as many years, some commentators and legislators have found this application of the Johnson Amendment especially problematic, since it implicates directly the freedom of houses of worship speech and religious exercise. These Johnson Amendment critics sought to provide some carve-out from the Johnson Amendment's general application to permit speech that includes ministers' pulpit speech without creating a massive loophole for the Johnson Amendment's general prohibition on campaign intervention. Other commentators have long argued that a limited carve-out for certain types of speech is not possible — that permitting any communication of the organization's views, even in pulpit speech, would provide a massive loophole in the overall treatment of campaign contributions and expenditures. This Article reviews the leading proposals to fix the Johnson Amendment, and finds them all lacking. It then proposes four types of modifications that could be used to properly balance the speech interests of charities (especially churches) with the government's interest in a level playing field for campaign expenditures (non-subvention). These proposed modifications include: (i) a non-incremental expenditure tax, (ii) a reporting regime, (iii) a disclosure regime, and (iv) a governance regime. The Article concludes that in order to properly balance non-subvention with speech interests of charities, a modification of the Johnson Amendment should include some version of all four types of interventions.

Defense Against the Dark Arts: Justice Jackson, Justice Kennedy and the No-Compelled-Speech Doctrine

According to Justice Anthony M. Kennedy, “The to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought. If this is so, and I believe it is, then the greatest threat to freedom, the darkest of the dark arts of government, occurs when the law compels persons to and thus commandeers their intellectual autonomy. And only a vibrant First Amendment is an adequate defense against this darkest of the dark arts. The purpose of this Article is to trace the Supreme Court's First Amendment jurisprudence protecting speaker autonomy and the right not to speak from its origins in the flag salute cases to the present. In particular, I will focus on two magnificent judicial opinions defending this fundamental free speech right, the majority opinion of Justice Jackson in West Virginia State Bd. Of Educ. v. Barnette, and the concurring opinion of Justice Kennedy in Nat 'I Inst. Of Family & Life Advocates v. Becerra (NIFLA). These two eloquent and powerful opinions are true landmarks of liberty, strong shields against authoritarian government and its tyrannical attempts to coerce ideological orthodoxy by compelling individuals to say things they wish not to say. In Justice Kennedy's case, his concurring opinion in NIFLA was issued near the end of his final Term on the Supreme Court, and thus it represents an exclamation point on his wonderful legacy of protecting freedom of thought and freedom of speech. Although these opinions are separated by seventy-five years, they share a common understanding of the importance of the First Amendment for the protection of intellectual autonomy from authoritarian officials and compelled ideological conformity.

Silencing and freedom of speech in UK higher education

Freedom of speech in universities is currently an issue of widespread concern and debate. Recent empirical findings in the UK shed some light on whether speech is unduly restricted in the university, but it suffers from two limitations. First, the results appear contradictory. Some studies show that the issue of free speech is overblown by media reportage, whilst others track serious concerns about free speech arising from certain university policies. Second, the findings exclude important issues concerning restrictions to speech on campus that fall outside the traditional debate around violations to free speech rights. This is particularly the case when certain voices are excluded from important policy conversations, and in issues around diversifying the curriculum. This article overcomes these two limitations by developing a novel conceptual framework within which to situate current debates concerning speech‐related matters in universities. It does so by developing a taxonomy around the concept of ‘silencing’. It then considers the current issue of speech matters in universities within this framework to determine whether, and to what extent, speech is indeed unduly restricted, and where this is a concern for free speech violations, and where it falls outside this issue.

Individual Sovereignty and Coproduction of Knowledge Governance

Common pooling of knowledge goods requires effective governance institutions to avoid over depletion or under provision. Following recent literature, this paper treats the institutions of knowledge goods governance as dually coproduced in provision and shared in consumption. I combine a notion of individual sovereignty from political economy with a scalar analysis of the knowledge content of goods exchanged within a community. Insofar as the economic value of goods depends on knowledge content, and less on physical expression, exchange acts are speech acts. Therefore, communities where individuals have high exchange rights also feature a high form of speech rights. In these contexts, agents contribute to governance as an outcome of their ordinary economic activity. Therefore, entrepreneurship within rules and entrepreneurship to alter rules are not distinct actions. The paper relies on a combination of constitutive and regulative rules within a community, as defined by economic and social rather than geographic or political boundaries. Individuals use sovereign exchange and speech acts to interact within given rules, and in doing so they also contribute to the coproduction of governance, acting at once as both economic and institutional entrepreneurs.

Transgendering Speech: Discussion of Farley and Kennedy’s “Transgender Embodiment as an Appeal to Thought”

ABSTRACT Farley and Kennedy’s incisive and challenging essay unpacking the controversy surrounding “rapid onset gender dysphoria” (ROGD) draws upon psychoanalysis to examine the complicated interplay among freedom of speech, truth, power, privilege, and transgender rights and desire. My response frames theirs within the intersecting gaps that psychoanalysis reveals—between materiality and gender, between materiality and speech, between speech and desire—in order both to highlight how freedom of speech and transgender issues are inevitably vulnerable to collision and to guide intervention: We must insistently pry open the seemingly seamless order between biology and gender, and between gendered desire and speech. Absent such dedicated intervention, I fear, the transgender subject will be left to bear this onto-ethical burden for all of us. We need to engender—and perhaps also to transgender—robust radically inclusive “spaces between” for all gendered subjects and for the disruptive, vibrational motions of desire, its freedom of speech.

Anti-LGBT Free Speech and Group Subordination

This Article is about the tension between liberty and equality. It examines this tension in the context of disputes over free speech and LGBT rights. In the modern Civil Rights Era, the social and legal climate has become increasingly intolerant of bullying, embraced liberal sexual and gender norms, and sought to institute formal equality for formerly disfavored groups. The conservative movement has responded in part by seeking refuge from progressive change in constitutional jurisprudence, articulating theories of both the First and Fourteenth Amendments to effectively protect the status quo. Because of a receptive Supreme Court, dominant conceptions of both equal protection and free speech are informed today by libertarian ideology, reflecting a commitment to limited government oversight and regulation. A libertarian view of the Constitution, however, ensures that meaningful liberty and equality exist not for everyone but only for some. To create a more equitable society, constitutional interpretation must more adequately balance libertarian interests in the exercise of individual rights—like free speech—with the need for governmental action to promote the public good and address group-based harms. This Article draws from the field of critical race theory to advocate for an antisubordination approach in mediating competing claims of equality and liberty. Unlike a libertarian free speech jurisprudence that treats all speakers and viewpoints as equally worthy of constitutional respect, an antisubordination approach to free speech is attentive to historical and contemporary modes of group- based oppression. Simply put, if the triumph of a free speech claim would enforce a status hierarchy that positions historically marginalized groups as inferior, that free speech claim should fail. The need to reconceptualize liberty and equality came into sharp relief in the Supreme Court’s 2020 decision in Bostock v. Clayton County. The Bostock Court held that Title VII prohibits discrimination against gay and transgender employees,but the majority concluded by expressing concern for religious and conservative dissenters. The Court suggested that constitutional and statutory principles of religious freedom and free speech might override antidiscrimination commands in appropriate cases. The jurisprudence that emerges from these developing cases will help determine the scope of equality, the breadth of First Amendment liberties, and the Constitution’s role in addressing inequity for all marginalized groups.

Liberdade de expressão e direito à honra: medindo atitudes e prevendo decisões

Os conflitos entre liberdade de expressão e direito à honra e à imagem no Brasil são regulados por meio de padrões vagos. Essa vagueza é muitas vezes defendida em nome de posições particularistas. No presente artigo, propomos uma escala que permite medir as atitudes que as pessoas têm a respeito desses conflitos. Ao longo de 4 estudos, desenvolvemos, validamos e aplicamos esse instrumento de pesquisa para testar hipóteses específicas. Nossos resultados mostram que a pontuação de cada respondente na escala exerce influência expressiva sobre as decisões tomadas por juristas e leigos em conflitos entre a liberdade de expressão e o direito à honra e à imagem (estudos 1 e 2). Ademais, as atitudes dos participantes nos estudos a respeito da liberdade de expressão e do direito à honra e à imagem se mantiveram relativamente estáveis ao longo do tempo (estudo 3). Finalmente, a influência exercida pelas posições prévias se mantém mesmo quando controlamos para as diferenças moralmente relevantes entre casos diferentes (estudo 4).

A Democratic View of Public Employee Speech Rights

The current law of public employee free speech rights amounts to a near-perfect storm of jurisprudential undesirability. The Supreme Court's imposition of a gate-keeping requirement that the speech have been made in one's role as citizen, and not in one's role as a government employee, has led to disturbing, and specifically, democracy-undermining results. The case law manages to combine murkiness with adverse impacts on the public accountability, openness, and transparency essential for genuine democracy. The cases commonly display ironic, paradoxical, deeply incongruous, and broadly counterintuitive reasoning and results. These outcomes indicate that the Court should revise its current approach to public employee speech so as to better protect democratic values.

CENSORSHIP IN INDIA VIS-À-VIS FREEDOM OF SPEECH: COMPARISON OF THE EXTENT OF CENSORSHIP LAWS IN INDIA AND ABROAD

With the current outrage at the arbitrary method of censorship applied by the board of film certification in India, it was pertinent to understand and take a closer look at the methods and principles which guide the method of censorship in India, this is also an attempt to understand why censorship is a vital tool to ensure peace and unity in India. The paper also looks at the past and present of censorship, in the form of how it came to be, why it came to be and also what role it plays in society today. In order to get a bigger picture of censorship an attempt has been made to understand censorship in the United States of America, which is a champion of democracy and also in the People’s Republic of China which uses censorship to shepherd its populace in the other direction. The effects both schools have on censorship have been explored in this paper. India being a mixture of both influences has the right to expression subject to certain instances and therefore must understand that even though the right of free speech is indeed a requirement in these times and places, but why censorship as a necessary evil as well in India.