Tag: SCOTUS

  • Eight free expression cases pending on SCOTUS docket — First Amendment News 455

    Eight free expression cases pending on SCOTUS docket — First Amendment News 455

    Thus far this term, the Supreme Court has rendered judgments in three free speech cases. In two of them, it vacated and remanded the matters for further consideration in light of Gonzalez v. Trevino (2024) (per curiam, First Amendment retaliation claims). In the other case, TikTok Inc. and ByteDance Ltd v. Garland, the Court rejected the First Amendment claim. 

    At this point, the following eight cases remain on the docket and involve everything from student speech to campaign financing to abortion clinic buffer zones and an occupational licensing case, among other things.

    The Eight Cases

    1. The university bias-response teams case

    Issue: Whether university bias-response teams — official entities that solicit anonymous reports of bias, track them, investigate them, ask to meet with the perpetrators, and threaten to refer students for formal discipline — objectively chill students’ speech under the First Amendment.

    Counsel for PetitionerJ. Michael Connolly of Consovoy McCarthy, former Director of the Free Speech Clinic at the Antonin Scalia Law School at George Mason University.

    2. The conversations between counselors and their clients case

    Issue: Whether a law that censors certain conversations between counselors and their clients based on the viewpoints expressed regulates conduct or violates the free speech clause of the First Amendment.

    Counsel for PetitionerJohn J. Bursch of the Alliance Defending Freedom.

    3. The public middle school that censored a T-shirt case

    Issue: Whether school officials may presume substantial disruption or a violation of the rights of others from a student’s silent, passive, and untargeted ideological speech simply because that speech relates to matters of personal identity, even when the speech responds to the school’s opposing views, actions, or policies. 

    Counsel for PetitionerJohn J. Bursch of Alliance Defending Freedom.

    4. The campaign limits on coordinated party expenditures case

    Issue: Whether the limits on coordinated party expenditures in 52 U.S.C. § 30116 violate the First Amendment, either on their face or as applied to party spending in connection with “party coordinated communications” as defined in 11 C.F.R. § 109.37.

    Counsel for PetitionerNoel J. Francisco of Jones Day, former Solicitor General.

    5. The occupational-licensing law case

    Issue: Whether, in an as-applied First Amendment challenge to an occupational-licensing law, the standard for determining whether the law regulates speech or regulates conduct is this Court’s traditional conduct-versus-speech dichotomy.

    Counsel for PetitionerSamuel B. Gedge of the Institute for Justice.

    6. The sidewalk abortion counseling case

    Issue: Whether the court should overrule Hill v. Colorado.

    Counsel for PetitionerPaul D. Clement of Clement & Murphy, also a former Solicitor General.

    7. Another sidewalk abortion counseling case

    Issue: Whether the court should overrule Hill v. Colorado.

    Counsel for PetitionerWalter M. Weber, senior counsel for the American Center for Law and Justice.

    8. The fee to speak to government officials about political issues case

    Issue: Whether — and if so, under what circumstances — the First Amendment permits the government to require ordinary citizens to register and pay a fee to communicate with their government representatives.

    Counsel for PetitionerKyle D. Hawkins of Lehotsky Keller Cohn, who served as a law clerk to Justice Samuel Alito.

    Revenge against political enemies: Executive tactic?

    In his first week in office, President Trump made clear that his promises to exact revenge on his perceived enemies were not empty campaign pledges — and that his retribution is intended not just to impose punishment for the past but also to intimidate anyone who might cross him in the future.

    By removing security protections from former officials facing credible death threats, he signaled that he was willing to impose potentially profound consequences on anyone he sees as having been insufficiently loyal. That included his former secretary of state, Mike Pompeo, and Dr. Anthony S. Fauci, who helped lead the pandemic response.

    Mr. Trump’s decision to try to scale back civil service protections was aimed at culling federal employees he believes slowed or blocked his first-term agenda and replacing them with loyalists.

    [ . . . ]

    [These and other measures taken] together . . . send a clear signal that Mr. Trump feels unconstrained about punishing the disloyal, that he is potentially willing to go further against his enemies than he had pledged on the campaign trail and that there will be a price for any opposition to come.

    Trump video clip


    WATCH VIDEO: Trump speech: ‘Bring back free speech to America’

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    Controlling academic freedom: Another Executive tactic?

    Will Creeley

    FIRE Legal Director Will Creeley

    “There’s kind of a multifront threat right now as to whether or not you can express views that are unpopular with the folks in the White House and executive agencies and continue to enjoy the protections of the First Amendment on academic freedom,” said Will Creeley, legal director of the Foundation for Individual Rights and Expression, which fights both left- and right-wing infringements on free speech.

    [ . . . ]

    Creeley, at the Foundation for Individual Rights and Expression, predicts that many state legislatures, local officials and university trustees are going to enlist, either out of enthusiasm or expediency, in the crusade to bring the academic left to heel. “I think you’ll see professors investigated and terminated. I think you’re going to see students punished, and I think you’re going to see a pre-emptive action on those fronts,” he said.

    Just look at what’s happened at Harvard this week. On Tuesday it announced that, as part of a lawsuit settlement, it would adopt a definition of antisemitism that includes some harsh criticisms of Israel and Zionism, such as holding Israel to a “double standard” and likening its policies to Nazism. Though Harvard claims that it still adheres to the First Amendment, under this definition a student or professor who accuses Israel of genocidal action in Gaza — as the Israeli American Holocaust scholar Omer Bartov has — might be subject to disciplinary action.

    Trump suit against Pulitzer board — Ballard Spahr for the defense

    Charles Tobin lawyer at Ballard Spahr

    Charles Tobin for the defense

    On Monday, the board that awards the Pulitzer Prizes — which Mr. Trump sued in Florida in 2022 for defamation — said that the case should be put on hold because, as Mr. Trump has argued in two other cases, a state court should not be permitted to exert control over a sitting president.

    “Defendants agree,” wrote the law firm representing the board, Ballard Spahr. “To avoid such constitutional conflicts, the court should stay this case until plaintiff’s term in office has concluded.”

    Mr. Trump’s lawsuit accuses the Pulitzer board of defaming him, in essence, by continuing to honor The New York Times and The Washington Post for their coverage of Russian interference in the 2016 presidential election. A state judge in Florida last year cleared the case to proceed toward trial.

    The Pulitzer board’s filing on Monday leaned heavily on statements the president’s legal team had made in other cases. One involved a suit filed in 2017 by Summer Zervos, a former contestant on “The Apprentice” reality show, who accused the president of unwanted sexual advances. Mr. Trump’s team argued that her suit should be thrown out or delayed because dealing with it — including by producing records during discovery or being forced to appear in court — would “disrupt and impair” Mr. Trump’s ability to do his job. (The suit was settled in 2021, after he was out of office.)

    Mr. Trump’s lawyers repeated that argument last week in a different case in Delaware, in which he and his social media company are defendants.

    Excerpt from Trump v. Members of the Pulitzer Prize Board

    [Motion to temporarily stay civil action]

    It is well-established that “a trial court has broad discretion to grant or deny a motion to stay a case pending before it.” Shake Consulting, LLC v. Suncruz Casinos, LLC, 781So. 2d 494, 495 (Fla. 4th DCA 2001) (affirming trial court’s entry of stay). For three reasons, the Court should exercise that discretion and stay this action until Plaintiff’s term in office has concluded.

    First, as Plaintiff himself has argued, and continues to argue, allowing a lawsuit to proceed in state court while a party to that action is the sitting President would invite irresolvable constitutional conflicts arising from the Supremacy Clause.

    Second, the grounds for staying this action are particularly strong because the prize-winning articles concern — and discovery will thus need to probe — Plaintiff’s official actions during his first term.

    Third, entering a stay will not prejudice Plaintiff, whereas denying a stay would pose constitutional issues both by stopping him from seeking to stay future civil litigation that may arise in state court during his presidency and by raising due process concerns for the Defendants.

    Attorneys for the Defendants 

    Nunes loses defamation case

    Nunes and his family’s farm can’t sufficiently show damages, so the court doesn’t have to reach any of the other elements of defamation.

    Related

    Protected expression: Elon Musk’s controversial salute


    WATCH VIDEO: Elon Musk appears to give fascist salute during Trump inauguration celebration.

    New scholarly article: Calo on holding social media accountable

    Professor Ryan Calo University of Washington School of Law

    Prof. Ryan Calo

    Plaintiffs are beginning to test the boundaries of tort law once again to fit social media. Seattle and other public-school districts recently sued TikTok, YouTube, and other platforms on the age-old theory of nuisance, arguing that these companies endanger public health by fostering a toxic online environment. When two boys died in a high-speed accident trying to trigger Snapchat’s “Speed Filter,” the Ninth Circuit allowed a cause of action to proceed against the company for negligent design. Snap could be held responsible for the “predictable consequences” of its irresponsible feature, the court reasoned, even though the “Speed Filter” always accompanied user-generated content. Washington election officials successfully sued Facebook, over its Section 230 objection, for failing to keep records on political ads in the state. The emphasis, again, was on Facebook’s own conduct around the ads, rather than the content of the ads themselves.

    There is an admittedly fine line between attributing third party content to the platform, which federal law forbids, and holding the platform accountable for foreseeable harms to people and communities, which tort law encourages. What did TikTok do wrong in Anderson? They did not film or upload a dangerous challenge video, and they cannot be held liable for hosting, distributing, or even recommending it. But has TikTok invested enough time and resources in protecting children on the platform, especially considering what the company knows about the toxic content that appears there?

    Should families like Nylah’s be able to rely upon TikTok’s own community guidelines, which pledge to “[r]estrict content that is not suitable for youth”? Such questions sound less in derivative liability as non- and misfeasance. Section 230 was meant to be a shield, not a shibboleth. Courts should be trying to thread this needle, rather than pretending Section 230 does not exist. Obviously wrong interpretations of Section 230, like the Third Circuit’s in Anderson v. TikTok, Inc., only set the law back.

    Forthcoming scholarly article on AI and free speech

    This paper challenges the assumption that courts should grant outputs from large generative AI models, such as GPT-4 and Gemini, First Amendment protections. We argue that because these models lack intentionality, their outputs do not constitute speech as understood in the context of established legal precedent, so there can be no speech to protect. Furthermore, if the model outputs are not speech, users cannot claim a First Amendment right to receive the outputs.

    We also argue that extending First Amendment rights to AI models would not serve the fundamental purposes of free speech, such as promoting a marketplace of ideas, facilitating self-governance, or fostering self-expression. In fact, granting First Amendment protections to AI models would be detrimental to society because it would hinder the government’s ability to regulate these powerful technologies effectively, potentially leading to the unchecked spread of misinformation and other harms.

    Freedom Forum’s new ad campaign

    Barbara Yolles, Ludwig CEO of LUDWIG+

    Barbara Yolles Ludwig, CEO of LUDWIG+

    LUDWIG+, a woman-owned brand actualization and business acceleration agency, is pleased to announce that they have been named as the creative agency for Freedom Forum’s new advertising campaign. Freedom Forum is the nation’s foremost nonpartisan advocate for First Amendment freedoms. As part of this collaboration, LUDWIG+ helped conceptualize and launch “Brought to You By the First Amendment,” a multichannel advertising campaign designed to drive awareness for the everyday freedoms made possible by the First Amendment.

    Today, Freedom Forum launched a dynamic and engaging digital experience with The Onion to further magnify the reach of this campaign. Combining The Onion’s satirical voice with Freedom Forum’s mission to foster First Amendment freedoms for all, this collaboration features onsite and social content strategically created and curated by LUDWIG+. The activation includes several articles published by The Onion that highlight First Amendment freedoms, as well as multiple digital infographics, videos and ad banners that showcase how freedom of speech is central to a thriving and diverse society.

    [ . . . ]

    “It’s an incredible honor to partner with Freedom Forum in championing our First Amendment freedoms and bringing the ‘Brought To You By the First Amendment’ campaign to life,” said Barbara Yolles Ludwig, Founder and CEO of LUDWIG+. “The First Amendment shapes our everyday lives — from the clothes we wear, the music we love, the books we cherish and the beliefs we hold. We look forward to bringing awareness to this paramount mission and the continued success of this campaign.”

    New Book: The Chicago canon on free inquiry

    A collection of texts that provide the foundation for the University of Chicago’s longstanding tradition of free expression, principles that are at the center of current debates within higher education and society more broadly.

    Cover of "The Chicago Canon on Free Inquiry and Expression" by Tony Banout

    Free inquiry and expression are hotly contested, both on campus and in social and political life. Since its founding in the late nineteenth century, the University of Chicago has been at the forefront of conversations around free speech and academic freedom in higher education. The University’s approach to free expression grew from a sterling reputation as a research university as well as a commitment to American pragmatism and democratic progress, all of which depended on what its first president referred to as the “complete freedom of speech on all subjects.” In 2015, more than 100 years later, then University provost and president J.D. Isaacs and Robert Zimmer echoed this commitment, releasing a statement by a faculty committee led by law professor Geoffrey R. Stone that has come to be known as the Chicago Principles, now adopted or endorsed by one hundred U.S. colleges and universities. These principles are just a part of the long-standing dialogue at the University of Chicago around freedom of expression — its meaning and limits. The Chicago Canon on Free Inquiry and Expression brings together exemplary documents — some published for the first time here — that explain and situate this ongoing conversation with an introductory essay that brings the tradition to light.

    Throughout waves of historical and societal challenges, this first principle of free expression has required rearticulation and new interpretations. The documents gathered here include, among others, William Rainey Harper’s “Freedom of Speech” (1900), the Kalven Committee’s report on the University’s role in political and social action (1967), and Geoffrey R. Stone’s “Free Speech on Campus: A Challenge of Our Times” (2016). Together, the writings of the canon reveal how the Chicago tradition is neither static nor stagnant, but a vibrant experiment; a lively struggle to understand, practice, and advance free inquiry and expression.

    At a time of nationwide campus speech debates, engaging with these texts and the questions they raise is essential to sustaining an environment of broad intellectual and ideological diversity. This book offers a blueprint for the future of higher education’s vital work and points to the civic value of free expression.

    ‘So to Speak’ Podcast: Interview with the editors of ‘The Chicago Canon’

    The University of Chicago is known for its commitment to free speech and academic freedom. Why are these values important to the university? Where do they originate? And how do they help administrators navigate conflicts and controversies?

    Tony Banout and Tom Ginsburg direct the University of Chicago’s Forum for Free Inquiry and Expression, which received a $100 million gift last year. They are also editors of “The Chicago Canon on Free Inquiry and Expression,” a new book that collects foundational texts that inform the university’s free speech tradition.


    WATCH VIDEO: “So to Speak” podcast on the Chicago Canon.

    More in the news

     

    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

    FAN 454: “Trump’s stated promise: ‘Stop all government censorship’ and his free speech Executive Order

    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.



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  • SCOTUS to hear Oklahoma religious charter school case

    SCOTUS to hear Oklahoma religious charter school case

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    The U.S. Supreme Court on Friday agreed to hear St. Isidore of Seville Catholic Virtual School v. Drummond, a case that could set precedent for religious schools’ access to public funds. 

    The case will determine whether a state violates the First Amendment’s Free Exercise Clause by excluding privately run religious schools from the state’s publicly funded charter school program. It will also decide whether a private religious school’s curriculum and practices are considered “state action” because the state funds the school’s free education.

    St. Isidore — which is to be run by the Archdiocese of Oklahoma City and the Diocese of Tulsa — was set to open for the 2024-25 school year as a virtual school, but did not do so due to the ongoing litigation around its constitutionality. Had it opened, it would have been the nation’s first religious charter school.

    The Oklahoma Statewide Virtual Charter School Board approved the school’s contract in 2023 in a 3-2 vote. At the time, board members acknowledged the decision to be controversial and said they expected litigation whichever way their vote went. 

    That contract was ultimately severed in August 2024 following an Oklahoma Supreme Court ruling that found the school would violate the state’s constitution and the First Amendment’s Establishment Clause. The contract could, however, be reinstated depending on the U.S. Supreme Court’s decision. 

    Justice Amy Coney Barrett plans to recuse herself from the case. No date has been set for oral arguments.

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  • SCOTUS to hear case on LGBTQ+ inclusive curriculum opt-outs

    SCOTUS to hear case on LGBTQ+ inclusive curriculum opt-outs

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    The U.S. Supreme Court announced Friday it will hear Mahmoud v. Taylor, a case that would determine whether school districts violate parents’ First Amendment religious rights when they don’t provide notice or a way to opt children out of curriculum related to gender and sexuality.

    The case was brought against Maryland’s Montgomery County Board of Education by a group of Christian and Muslim parents in reaction to a pre-K-5 LGBTQ+-inclusive language arts curriculum. With more than 159,000 students and 211 schools, Montgomery County Public Schools is Maryland’s largest school district.

    Though the school board initially offered parents a way to opt their children out of the curriculum, it later walked that policy back because “individual schools could not accommodate the growing number of opt out requests without causing significant disruptions to the classroom environment.” The board also attributed the reversal to the “unworkable burdens” that high opt-out volumes put on educators.

    In their Sept. 12 petition to the Supreme Court, the plaintiffs argued that parents’ ability to raise their children in accordance with their beliefs is particularly important for the pre-K-5 age group and particularly those with special needs “who are highly impressionable and instinctively trusting of authority figures like teachers.”

    The court is expected to hear the case in the spring.

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  • FIRE to SCOTUS: TikTok ban violates Americans’ First Amendment rights

    FIRE to SCOTUS: TikTok ban violates Americans’ First Amendment rights

    Earlier this month, the U.S. Court of Appeals for the D.C. Circuit found that the law to ban TikTok in the United States did not violate Americans’ First Amendment rights. Never before has Congress taken the extraordinary step of effectively banning a platform for communication, let alone one used by half the country.

    The First Amendment requires an explanation of why such a dramatic restriction of the right to speak and receive information is necessary, and compelling evidence to support it. The government failed to provide either.

    What little Congress did place on the public record includes statements from lawmakers raising diffuse concerns about national security and, more disturbingly, their desire to control the American public’s information diet in a way that strikes at the heart of the First Amendment. 

    Today, FIRE and a coalition of organizations filed an amicus brief urging the Supreme Court to reverse the decision.

    FIRE is proud to be joined by the following organizations and individuals for today’s brief:

    • The Institute for Justice
    • Reason Foundation
    • The Future of Free Speech
    • The Woodhull Freedom Foundation
    • The First Amendment Lawyers Association
    • Stop Child Predators
    • The Pelican Institute for Public Policy 
    • CJ Pearson

    Will Creeley, legal director at FIRE: “The government doesn’t have the power to pull the plug on TikTok without demonstrating exactly why such a dramatic step is absolutely necessary. It has failed to publicly lay out the case for cutting off an avenue of expression that 170 million of us use. The First Amendment requires a lot more than just the government’s say-so. Fifty years after the publication of the Pentagon Papers, Americans understand that invoking ‘national security’ doesn’t grant the government free rein to censor. By failing to properly hold the government to its constitutionally required burden of proof, the court’s decision erodes First Amendment rights now and in the future.”

    Jacob Mchangama, executive director of The Future of Free Speech and senior fellow at FIRE: “For decades, the United States has been the global gold standard for free speech protections. The unprecedented bipartisan push to effectively shut down TikTok — an online platform where millions exercise their right to free expression and access information — represents a troubling shift from this proud legacy. If enacted, this ban would make the U.S. the first free and open democracy to impose such sweeping restrictions, drawing uncomfortable parallels with authoritarian regimes like Somalia, Iran, and Afghanistan, which use similar measures to suppress dissent and control their populations. This is not just about a single app; it is a litmus test for the resilience of First Amendment principles in the digital age. The Supreme Court must ensure that Congress is held to the highest standard before permitting actions of such profound consequence. A TikTok ban risks setting a dangerous precedent that undermines the very freedoms distinguishing democracies from autocracies.”

    The D.C. Circuit’s decision justifies the Act’s sweeping censorship by invoking “free speech fundamentals.” In so doing, it confuses the First Amendment values at stake, and sacrifices our constitutional tradition of debate and dialogue for enforced silence. The D.C. Circuit’s misguided reasoning is sharply at odds with longstanding First Amendment precedent, violating the constitutional protections it claims to preserve. Instead of following the instructive example set by Taiwan, which has eschewed a blanket TikTok ban in favor of robust counterspeech, the D.C. Circuit’s logic echoes the authoritarianism of North Korea and Iran.

    READ THE FULL BRIEF BELOW

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  • Poor Harvard Numbers Show Impact of SCOTUS Affirmative Action Ruling

    Poor Harvard Numbers Show Impact of SCOTUS Affirmative Action Ruling

    No one feels like confirming nor denying how affirmative action’s death is destroying a sense of inclusion in higher ed.Emil Guillermo

    But make no mistake, the destruction is under way. 

    Harvard College sent out letters to its early admits, but hasn’t disclosed what the demographics are yet for this year. Waiting until all the admits are sent out in the Spring buys them time to make excuses. But Harvard Law has issued its numbers and the alarm bells should be going off. There were just 19 first year Black students, 3.4 percent of the Harvard Law school class, according to data from the American Bar Association, as reported by the New York Times. It’s the lowest number since the 1960s, a period when affirmative action and civil rights was much more in vogue. 

    Woke wasn’t considered a disease back then. People were interested in fighting racist segregation. Inclusion and diversity weren’t institutionalized notions back then. They were the values we hoped would take us out of the darkness. But compare this years 19 Harvard Law admits with the 43 admits from the previous year, and you see the wounds have been reopened. David Wilkins, a Harvard Law professor who has kept tabs on these matters told the Times it was related to the Supreme Court ruling, and its “chilling effect.”

    Since the 60s, the numbers have been around 50-70 a year. And then came this year’s 19. Hispanic students were also lower at 39, 6.9 percent of the class versus 63 students or 11 percent of the class in 2023.

    The big winners in the admissions at Harvard Law? Whites and Asian American students, the latter, the principal plaintiffs in the suit before the court last year.

    Now that we have diminished the game to numbers, the numbers don’t lie. When you can’t address the need of inclusion directly, we leave it up to chance. 

    This year at Harvard Law was not a good year. Harvard miscalculated by not settling with the anti-affirmative action SFAA front and going to court. But that allowed for a right-wing Supreme Court to set the precedent for all schools not just Harvard. Anti-affirmative action advocates will try to put a positive spin on the low numbers, saying it’s not as low as it sounds. They’ll talk about different recording standards set by the A.B.A. There’s also the issue of multi-race students, and those who decline to state. 

    But secretly opponents of affirmative action are gleeful. They got their way. Their court. And last November their president, elected by voters who believe that educational attainment, not race nor class, is the new dividing line in America. The less education the better. Who needs affirmative action?  Let that sink in academia.

    Consider the Harvard Law School numbers the first of many signs to come that will let us know just how fast we are an America in reverse.

    Emil Guillermo is a journalist, commentator, and former adjunct professor. 

     

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