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It is no mere academic matter if Georgetown Law succumbs to pressure to fire Ilya Shapiro over a pair of offensive tweets. The controversy surrounding conservative lawyer Ilya Shapiro’s future at Georgetown University Law Center threatens to turn academic freedom on its head. — David Cole ()

In the Trump era, keeping government out of the speech regulation business is likely to be more essential than ever. — David Cole ()

Despite its proud heritage and  of the First Amendment, there have been times when the modern ACLU was either equivocal or silent on certain free speech issues. Even so, free speech advocates had a strong and smart ally in , the ACLU’s national legal director from 2017 until this week, when . As ��֭����’s Executive Vice President Nico Perrino recently told The New York Times, Cole “falls within the lineage of the free speech advocates” at the ACLU that fought boldly for free speech freedoms.

Indeed. Although he stands tall and on his own feet, lingering within Cole is the fighting free speech DNA of the likes of , , , , and Ira Glasser. By that measure, he’s old school in a modern era.

Before he joined with the late  in briefing the landmark cases of Texas v. Johnson (1989) and U.S. v. Eichman (1990), Cole majored in English at Yale University and graduated in 1980. Before he argued NEA v. Finley (1998), he was a Yale Law School student, graduating in 1984, and then a law clerk to Third Circuit Judge  (1984-85). Long before Cole argued Holder v. Humanitarian Law Project (2010) with then-Solicitor General Elena Kagan on the other side, he was a staff attorney for the  from 1985 to 1990, and then taught at Georgetown Law School starting in 1994. Just prior to leaving for Georgetown Law, he successfully argued  (2024).

To be sure, in the course of his long career there was a time when he was on the “,” as in  (2018). But hell, even Justice Louis Brandeis had a dark moment as when he voted to sustain the conviction of Charlotte Whitney in 1927. (See Collins and Skover, “,” Supreme Court Review, 2005).

• The ACLU & the First Amendment: David Cole interviewed by Jess Bravin, First Amendment Salon (Dec. 8, 2016)

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In , then professor Cole was selected as the inaugural recipient of the Norman Dorsen Presidential Prize by the ACLU Foundation. High praise indeed — yet one wonders: Will the ACLU of today select a successor with the free speech spirit of Cole? Will it continue the free speech tradition that Cole so ably represented? Whatever the answer, one thing is certain: David Cole will be a difficult act to follow, if only because he revitalized a proud tradition that must always struggle to fight another day.

Other free speech cases argued or briefed by David Cole include:

• (2021)
•  (2002)
• (1999)
• (1998)
• (1995)
• (1992)
• (1992, European Court of Human Rights)
•  (1989)
• (1988)
• (1988)
• (1987)
• David Cole on the 'Material Support' Law and the Constitution, American Constitution Society (2011)

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Writings by David Cole on free speech

• “,” Yale Law Journal Forum (Jan. 29)
• “,” The New York Review (Feb. 15, 2022)
• “,” Basic Books, 2016 (revised paperback edition, 2017)
• “,” The New York Review (March 23, 2017)
• “,” The New York Review (Dec. 7, 2017)
• “” Capital University Law Review (2016)
• “,” The New York Review (Nov. 5, 2016)
• “What Should We Do About the Leakers?” in “,” Ed. Ronald Goldfarb (2015)
• “,” The New York Review (Feb. 6, 2014)
• “,” Harvard Law and Policy Review (2012)
• “,” Harvard Civil Rights-Civil Liberties Law Review (2003)
• “Criminalizing Speech: The Material Support Provision,” in Stewart A. Baker and John Kavanagh, eds., “” (2005)
• “Government-Funded Art and the First Amendment,” in Michael Kelly, ed., “” (Oxford University Press, 1998)
• “” University of Pennsylvania Law Review (1994)
• “,” Harvard Civil Rights-Civil Liberties Law Review (1994) (with William Eskridge)
• “,” Yale Law & Policy Review (1991)
• “,” Yale Law Journal (1986)

More in the news

• Josh Blackman, “,” The Volokh Conspiracy (July 15)
• Mike Vilensky, “,” Bloomberg Law (July 15)
• “,” First Amendment Watch (July 15)
• David Greene, “,” Electronic Frontier Foundation (July 13)
• Emily Nayyer, “Surveys reveal rising student and faculty concern about censorship, self-censorship post-October 7” FIRE(July 12)
• Dennis Hetzel, “,” Free Speech Center (July 9)

2023-2024 SCOTUS term: Free expression and related cases

Cases decided

•  
• (certiorari granted, judgment re: the bias policy claims vacated, and case remanded to the Court of Appeals for the 4th Circuit with instructions to dismiss those claims as moot) ()
•  
• (vacated and remanded, per curiam with Alito, Kavanaugh, and Jackson (joined by Sotomayor) concurring in separate opinions and Thomas dissenting)
• (decided on Art. III standing grounds)
•  and  

Review granted

• (argued Nov. 1)
• (decided March 15, see below under “State Action”)
•  and  (argued Feb. 26)
•  (argued March 18)
•  (argued March 18)
• (argued March 20)

Pending petitions

• Villarreal v. Alaniz 

State action

•  (Barrett, J., 9-0: “The state-action doctrine requires Lindke to show that Freed (1) had actual authority to speak on behalf of the State on a particular matter, and (2) purported to exercise that authority in the relevant posts. To the extent that this test differs from the one applied by the Sixth Circuit, we vacate its judgment and remand the case for further proceedings consistent with this opinion.”)
• (Per Curiam: 9-0: “We granted certiorari in this case and in Lindke v. Freed (2024), to resolve a Circuit split about how to identify state action in the context of public officials using social media. Because the approach that the Ninth Circuit applied is different from the one we have elaborated in Lindke, we vacate the judgment below and remand the case to the Ninth Circuit for further proceedings consistent with our opinion in that case.”)

Review denied

•  ( by Sotomayor, J.)
• (application for stay denied)
• (Justice Kavanaugh would grant the petition for a writ of certiorari. Justice Thomas, dissenting from the denial of certiorari. (separate ) Justice Alito, dissenting from the denial of certiorari. (separate ))

Free speech related

• (pending) (statutory interpretation of 18 U.S.C. §&�Բ�����;1512(c) advocacy, lobbying and protest in connection with congressional proceedings) 
• (vacated and remanded, 6-3 per Roberts with Barrett, Sotomayor and Kagan dissenting: To prove a violation of §1512(c)(2), the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or other things used in an official proceeding, or attempted to do so.)

Last scheduled FAN

FAN 431: “Thoughts on realism and free speech: The ‘Wu Effect’ and the continuing liberal drift away from the First Amendment”

This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIREas 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 FIREor Mr. Collins.