Tag: Amendment

The Wall Street Journal recently published an op-ed by former Ninth Circuit Judge Alex Kozinski in which he, among other things, praises Vice President JD Vance’s recent speech in Munich about the evils of censorship in Europe — which included references to Kozinski’s birthplace, Romania. 

True to form, the Kozinski article was bold in ways certain to provoke criticism. Below are a few “fair use” excerpts:

JD Vance’s speech to the Munich Security Conference . . . mentioned the Romanian election twice and held it up as a cautionary tale of what can happen to societies that seek to coerce rather than persuade, suppress rather than debate.

Could American elections be canceled next? Some states came close in 2024 by attempting to remove from their ballots the candidate who eventually won the presidency. There was no uproar; the Supreme Court had to intervene. . . If enough panic is stirred up, canceling elections isn’t inconceivable.

Our legacy media have greeted Mr. Vance’s speech largely with disdain and horror. They are wrong. The speech is epic. It reminds Europeans and Americans that the values of the Enlightenment, as captured in our Constitution—not least the right to think, speak and debate freely—are the glue that binds us together. If we don’t defend those values, there isn’t much left worth defending. 

Related

Missouri Attorney General Andrew Bailey announced today that the United States District Court for the Western District of Louisiana granted his motion to block top officials in the federal government from continuing to violate the First Amendment rights of millions of Americans. The judge’s ruling is 155 pages long and includes 721 footnotes.

The judge had harsh words for the federal officials. He noted that this is “the most massive attack against free speech in United States’ history,” that the Biden administration has “blatantly ignored the First Amendment’s right to free speech,” and that the Biden administration “almost exclusively targeted conservative speech.”

Attorney General Bailey’s motion for preliminary injunction, which he filed with Louisiana Attorney General Jeff Landry, highlighted over 1,400 facts from more than 20,000 pages of evidence exposing the vast censorship enterprise coordinated across multiples [SIC] agencies within the federal government. [reversed on standing grounds in Murthy v. Missouri (2024)] 

SCOTUS denies review in ‘buffer zone’ abortion clinic protest cases 

The case is Coalition Life v. City of Carbondale (Paul Clement, counsel for Petitioner). Earlier this week the Court denied review, with Justice Thomas dissenting (and with Justice Alito voting to grant certiorari). In this case, the Justices were invited to reconsider and reverse Hill v. Colorado. 

Below are a few excerpts from Justice Thomas’ dissent:

It is unclear what, if anything, is left of Hill. As lower courts have aptly observed, Hill is “incompatible” with our more recent First Amendment precedents. Price v. Chicago, 915 F. 3d 1107, 1117 (CA7 2019) (opinion of Sykes, J., joined by Barrett, J.). Start with McCullen v. Coakley, 573 U. S. 464 (2014). There, this Court unanimously held unconstitutional a Massachusetts law that prohibited anyone from entering a 35-foot buffer zone around an abortion facility. Id., at 471– 472, 497. In doing so, the Court determined that the law was content neutral because—rather than targeting certain kinds of speech such as protest, education, and counseling—the law prohibited virtually any speech within the buffer zone. Id., at 479. The Court made clear, however, that the law “would be content based if it required ‘enforcement authorities’ to ‘examine the content of the message’” to determine whether the law applied. Ibid. That position is irreconcilable with Hill, which the Court did not even bother to cite.

Hill is likewise at odds with Reed v. Town of Gilbert, 576 U. S. 155 (2015). Reed involved a First Amendment challenge to a town’s sign code that regulated various categories of signs based on “the type of information they convey.” Id., at 159. Relying on Hill, the Ninth Circuit concluded that the sign code was content neutral, reasoning that the town “‘did not adopt its regulation of speech because it disagreed with the message conveyed’” and its “‘interests in regulat[ing] temporary signs are unrelated to the content of the sign.’” 576 U. S., at 162. That court then applied a lower level of scrutiny and upheld the code. Ibid. We reversed, holding that a speech regulation is content based—and thus “presumptively unconstitutional”—if it “draws distinctions based on the message a speaker conveys.” Id., at 163.

Our post-Reed decisions have firmly established Hill’s diminished status. In City of Austin, for example, the majority ran as far as it could from Hill, even though Hill was the one “case that could possibly validate the majority’s aberrant analysis” on the constitutionality of restrictions on bill-board advertising. 596 U. S., at 86, 102 (opinion of THOMAS, J.). The majority nonetheless insisted that any alleged similarity was “a straw man,” rejecting the notion that its opinion had “‘resuscitat[ed]’” Hill, and reminding readers that it did “not cite” the decision at all. 596 U. S., at 76. Our latest word on Hill—expressed in a majority opinion joined by five Members of this Court—is that the decision “distorted [our] First Amendment doctrines.” Dobbs, 597 U. S., at 287, and n. 65. If Hill’s foundation was “deeply shaken” before Dobbs, see Price, 915 F. 3d, at 1119, the Dobbs decision razed it.

[ . . . ]

Hill has been seriously undermined, if not completely eroded, and our refusal to provide clarity is an abdication of our judicial duty.

The Court also denied review in Turco v. City of Englewood, New Jersey (another abortion “buffer zone” case) (Justices Thomas and Alito voted to grant the petition).

Defendants’ motion to dismiss complaint in Iowa pollster ‘fraud’ case

The plaintiffs “can no more sue a newspaper pollster for diverted resources than a farmer could sue a TV weatherman for crop damage due to unexpected frost.”

Below are a few excerpts from the motion to dismiss in Trump v. Selzer (US Dist. Ct., S. Dist., Iowa, Case 4:24-cv-00449-RGE-WPK: Feb. 21) (Robert Corn-Revere, lead counsel for Defendants):

Introduction 

Plaintiffs’ claims are barred by the First Amendment and the Court should dismiss them with prejudice. In the United States there is no such thing as a claim for “fraudulent news.” No court in any jurisdiction has ever held such a cause of action might be valid, and few plaintiffs have ever attempted to bring such outlandish claims. Those who have were promptly dismissed. [citations]

There is good reason for this. History’s judgment repudiated the 1798 Sedition Act which prohibited “false, scandalous and malicious . . . writings against the government of the United States” or its president, and that fraught episode “first crystallized a national awareness of the central meaning of the First Amendment.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 273 (1964). Since then, courts at all levels have confirmed our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” id. at 270, holding that speech is presumptively protected unless it falls within one of a few limited and narrowly defined categories. United States v. Stevens, 559 U.S. 460, 468–70 (2010). Those categories do not include a general exception for “false speech,” United States v. Alvarez, 567 U.S. 709, 722 (2012). 

Plaintiffs seek to illegitimately expand them to include “fake news,” a tag line that may play well for some on the campaign trail but has no place in America’s constitutional jurisprudence. In this regard, civil damages, no less than criminal sanctions, cannot lie against protected speech. Snyder v. Phelps, 562 U.S. 443 (2011); Sullivan, 376 U.S. at 277. 

Even if such a cause of action existed, the Amended Complaint is fatally flawed on every level: Plaintiffs fail at the threshold to allege any recoverable damages, and do not state plausible claims, either on the law or on the facts as alleged. No court has ever accepted claims like these, and this Court should not be the first. 

[ . . . ]

Plaintiffs Illegitimately Seek to Create a New First Amendment Exception. 

Mr. Trump and his co-plaintiffs assume “false news” falls outside the First Amendment’s protection, but over 200 years of American free speech law and practice prove otherwise. 

“Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth—whether administered by judges, juries, or administrative officials—and especially one that puts the burden of proving truth on the speaker.” Id. at 271. 

As the Supreme Court recently explained, “[o]ur constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.” Alvarez, 567 U.S. at 723. 

“From 1791 to the present . . . the First Amendment has permitted restrictions upon the content of speech in a few limited areas, and has never include[d] a freedom to disregard these traditional limitations.” Stevens, 559 U.S. at 468 (cleaned up). These “historic and traditional categories long familiar to the bar” include obscenity, child pornography, defamation, fraud, incitement, fighting words, and speech integral to criminal activity. Id. (cleaned up) (collecting cases). Former Justice Souter observed that “[r]eviewing speech regulations under fairly strict categorical rules keeps the starch in the standards for those moments when the daily politics cries loudest for limiting what may be said.” Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 774 (1996) (Souter, J., concurring). Consequently, the Court steadfastly resists efforts to increase or expand the boundaries of these categories as “startling and dangerous” and has rejected any “freewheeling authority to declare new categories of speech outside the scope of the First Amendment.” Stevens, 559 U.S. at 470, 472. 

Plaintiffs try to shoehorn their claims into an existing category by calling the Iowa Poll “fake” and asserting actionable “fraud” occurred. But “in the famous words of Inigo Montoya from the movie The Princess Bride, ‘You keep using that word. I do not think it means what you think it means.’” [citation] As a matter of basic law, Plaintiffs’ allegations about polls and news stories they dislike have nothing to do with fraud. [reference] I.B. They also sprinkle the complaint with loose talk of “election interference,” [citation], although they stop short of including a separate claim on that basis, perhaps out of awareness that “no court has held that a scheme to rig an election itself constitutes money or property fraud.” [citation] 

Categories of unprotected speech are defined by precise legal tests, and Plaintiffs cannot stretch those boundaries to serve a political narrative. The Supreme Court routinely rejects attempts to broaden those limits based on assertions that the speech at issue is somehow “like” a recognized exception. See, e.g., Stevens, 559 U.S. at 470–71 (Other “descriptions are just that— descriptive. They do not set forth a test that may be applied as a general matter . . . .”); Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 793–96 (2011) (rejecting “attempt to shoehorn speech about violence into obscenity,” citing a lack of “longstanding tradition in this country” restricting such speech); Hustler Mag., Inc. v. Falwell, 485 U.S. 46, 55–56 (1988) (rejecting bid to leave “outrageous” speech unprotected because it “does not seem to us to be governed by any exception to the . . . First Amendment”); Alvarez, 567 U.S. at 721–22 (“The Government has not demonstrated that false statements . . . should constitute a new category of unprotected speech” based on a “tradition of proscription.”) (quotation omitted). 

Because the categories are governed by history and tradition, the Plaintiffs could not have chosen a worse candidate for inclusion than “fake news.” America’s first experience with prohibiting false news — the Sedition Act of 1798 — expired under its own terms, and all fines assessed under that misbegotten law were remitted. President Thomas Jefferson denounced it as an unconstitutional “nullity, as absolute and palpable as if Congress had ordered us to fall down and worship a golden image.” Sullivan, 376 U.S. at 272–76. While the Supreme Court never adjudicated the Sedition Act’s attempt to punish “false” writings about public officials, “the attack upon its validity has carried the day in the court of history,” defined “the central meaning of the First Amendment,” id., and conditioned “the fabric of jurisprudence woven across the years.” [citation] 

Plaintiffs’ quest to punish “fake news” not only ignores this history, it also fumbles the conceptual basis for unprotected speech categories, which the Court first described as speech “of slight social value.” Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). Here, Plaintiffs seek to create a new First Amendment exception for speech that has always received the highest level of constitutional protection — political speech and commentary. In a word, it just doesn’t fit. 

The Supreme Court has repeatedly reaffirmed that the First Amendment “‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.” Citizens United v. FEC, 558 U.S. 310, 339 (2010) (citation omitted). Speech about the political process is “at the core of our First Amendment freedoms,” Republican Party of Minn. v. White, 536 U.S. 765, 774 (2002), because a “major purpose” of the First Amendment was to protect “free discussion of . . . candidates.” Mills v. Alabama, 384 U.S. 214, 218 (1966). Accordingly, the “First Amendment affords the broadest protection” to “[d]iscussion of public issues and debate on” the political process. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 346 (1995) (citation omitted). Political polling is “speech protected by the First Amendment” both because it “requires a discussion between pollster and voter” and the resulting poll itself “is speech.” [citation]

The First Amendment accords speech in this area wide berth because “erroneous statement[s] [are] inevitable in free debate, and [they] must be protected if the freedoms of expression are to have the breathing space that they need to survive.” Sullivan, 376 U.S. at 271– 72 (cleaned up). Efforts to regulate “truth” in political commentary are thus presumptively unconstitutional and subject to strict scrutiny. [citations] Bottom line, political polls and news reports are not the stuff of which First Amendment exceptions are made. 

Related

The Associated Press sues Trump administration 

The Associated Press sued three Trump administration officials Friday over access to presidential events, citing freedom of speech in asking a federal judge to stop the 10-day blocking of its journalists.

[ . . . ]

The AP says its case is about an unconstitutional effort by the White House to control speech — in this case refusing to change its style from the Gulf of Mexico to the “Gulf of America,” as President Donald Trump did last month with an executive order. “The press and all people in the United States have the right to choose their own words and not be retaliated against by the government,” the AP said in its lawsuit, which names White House Chief of Staff Susan Wiles, Deputy Chief of Staff Taylor Budowich and Press Secretary Karoline Leavitt.

Emergency hearing request and motion in opposition 

• Associated Press v. Budowich (Dist. Ct., Dist. of Col., Feb. 21, (case No. 25-0532 (TNM)) (Jay Ward Brown, counsel for plaintiff))
• Associated Press v. Budowich (Dist. Ct., Dist. of Col., Feb. 24, (case No. 25-0532 (TNM)) (Edward R. Martin, Jr., US Atty., Defendants’ Opposition to Plaintiff’s Motion for a Temporary Restraining Order))

Related

Executive Watch

• Adam Gabbatt, “‘A true free-speech emergency’: alarm over Trump’s ‘chilling’ attacks on media,” The Guardian (Feb. 24)
• Colin Kalmbacher, “‘Textbook viewpoint-based discrimination’: Judge says Trump’s anti-DEI orders violate First Amendment and are ‘unconstitutionally vague’ — issues nationwide injunction,” Law & Crime (Feb. 22)
• Karoline Leavitt, “CPAC interview gives reaction to Associated Press lawsuit against Trump officials,” Palm Beach Post (Feb. 22) (see also: “Kaitlin Collins Questions Karoline Leavitt”)
• T. Scott Kelly, Nonnie L. Shivers, and Zachary V. Zagger, “Federal Court Preliminarily Blocks Key Parts of President Trump’s Orders Restricting DEI at Private Employers,” Ogletree Deakins (Feb. 22) (See also: National Urban League v. Trump (Feb. 19, case # 1:25-cv-00471))

View video

• Joseph A. Wulfsohn, “FBI Director Kash Patel tells media ‘bring it on’ in stern message after being sworn into office,” Fox News (Feb. 21)
• JT Morris and Will Creeley, “US Attorney Ed Martin’s bully tactics have no place in America,” FIRE (Feb. 21)
• David A. Graham, “The Free-Speech Phonies,” The Atlantic (Feb. 20)
• Zane McNeill, “Pentagon Schools Pull JD Vance’s Memoir Amid Trump-Era Book Purge,” Truthout (Feb. 20)
• Mark Hertsgaard and Kyle Pope, “The First Amendment vs. the Wannabe King,” The Nation (Feb. 20)
• Becca Monagham, “Elon Musk finds ‘new level of hypocrisy’ with two contradictory posts about free speech just hours apart,” indy100 (Feb. 18)
• Craig Aaron, “Free Speech Is Under Attack. Here’s What I Want Congress to Know,” The Free Press (Feb. 14)
• Joseph A. Wulfsohn and Brooke Singman, “Trump scores big legal win against Pulitzer Prize board members as lawsuit moves to discovery,” Fox News (Feb. 3)

Forthcoming scholarly article: Lakier & Douek on stalking and the First Amendment

In Counterman v. Colorado, the Supreme Court decided an imaginary case. It held that Billy Ray Counterman’s conviction could not stand because it did not meet the First Amendment requirements for prosecutions based on threats. But this is puzzling because Counterman was not in fact convicted for making threats. He was convicted of stalking, under a law that does not require that the defendant threaten anyone in order to be guilty of the crime. 

This Article argues that the Supreme Court’s confusion about the most basic facts of the case was not an aberration but instead reflects broader pathologies in First Amendment jurisprudence. These pathologies are a consequence of the impoverished view of the First Amendment’s boundaries depicted in the Court’s recent decisions, which suggest that the First Amendment’s doctrinal terrain can be described by a simple list of historically unprotected categories. 

This thin account of the First Amendment, and the doctrinal distortions it creates, are not inevitable, however. The Article argues for an alternative, more multi-dimensional approach to the question of the First Amendment’s boundaries — one that rests on a richer understanding of the traditions of speech regulation in the United States — and sketches out its implications for the law of stalking and, potentially, many other areas of free speech law. Courts do not need to deny the facts of the cases they adjudicate to craft a First Amendment jurisprudence that is doctrinally coherent, historically informed, and normatively desirable. 

‘So to Speak’ podcast: Corn-Revere and London on censorship at home and abroad

View video

From JD Vance’s free speech critique of Europe to the Trump administration barring the Associated Press from the Oval Office, free speech news is buzzing. General Counsel Ronnie London and Chief Counsel Bob Corn-Revere unpack the latest developments.

More in the News

• Greg Lukianoff, “AI regulation looms in the U.S., free speech crises in Europe, confiscated art in Texas, the ‘Coddling’ documentary turns one, & more!,” The Eternally Radical Idea (Feb. 23)
• Susanna Granieri, “FIRE’s Greg Greubel on a Student’s Right to Free Expression Online,” First Amendment Watch (Feb. 21)
• Cynthia Fleming Crawford, “Narrow Applicability Is Not the Same as Narrow Tailoring: Applying the First Amendment in First Choice Women’s Resource Centers v. Platkin,” The Federalist Society (Feb. 21)
• Kenneth Roth, “How do we defend free speech – without falling prey to extremism?” The Guardian (Feb. 21)
• Eric Heinze, “Censorship, abortion and the ‘threat within’: what a free speech expert thinks of J.D. Vance’s remarks to Europe,” The Conversation (Feb. 20)
• “Mississippi Judge Ordered Newspaper to Remove Editorial, Outraging Press Advocates,” Associated Press / First Amendment Watch (Feb. 20)
• Gwyneth K. Shaw, “Professor Urges Supreme Court to Correct Ruling That ‘Turns First Amendment Precedent on Its Head’,” UC Berkeley Law (Dec. 5)

2024-2025 SCOTUS term: Free expression and related cases

Cases decided 

• Villarreal v. Alaniz (Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
• Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)
• TikTok Inc. and ByteDance Ltd v. Garland (The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)

Review granted

Pending petitions 

Petitions denied

Last scheduled FAN

This article is part of First 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 article’s author(s) and may not reflect the opinions of FIRE or Mr. Collins.