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What a constitutional spectacle: Two states, two trade associations, four lawyers, almost 300 briefs, nine Justices, and four hours of argument. The two First Amendment cases argued earlier this week were  and . The lawyers arguing those cases were Florida’s solicitor general Henry C. Whitaker, Texas Solicitor General Aaron Nielson, Paul D. Clement who represented the trade groups, and U.S. Solicitor General Elizabeth Prelogar who largely agreed with Clement. 

Here are a few revealing excerpts:

Regulating Content on Social Media Platforms 

Justice Sonia Sotomayor: “I have a problem with laws that are so broad that they stifle speech just on their face.”

Justice Ketanji Brown Jackson: “The law on its face is really broad,” Jackson said of the Florida measure. “To the extent the entire law goes, other lawful applications would go, too.”

Justice Elena Kagan: “[W]hy isn’t [it] . . . a classic First Amendment violation for the state to come in and say, we're not allowing . . . you to enforce those sorts of restrictions even though…it's like an editorial judgment, you're excluding particular kinds of speech?" 

Justice Brett Kavanaugh: “When the government censors, when the government excludes speech from the public square, that is obviously a violation of the First Amendment. When a private individual or private entity makes decisions about what to include and what to exclude, that's protected generally editorial discretion, even though you could view the private entity's decision to exclude something as ‘private censorship.’”

Chief Justice John G. Roberts: “The First Amendment restricts what the government can do, and what the government is doing here is saying, you must do this, you must carry these people; you've got to explain if you don't…[t]hat’s not the First Amendment.”

Justice Amy Coney Barret: “Florida’s law, so far as I can understand it, is very broad.”

Justice Samuel Alito, Re: social media’s content moderation policies: “Is it anything more than a euphemism for censorship? . . . So you say this is just like a newspaper, basically. It’s like The Miami Herald. And the states say no, this is like Western Union. It’s like a telegraph company. I look at this and I say it's really not like either of those. I don’t know how we can decide this case by jumping to one side or the other.”

Regulating the likes of Gmail, Venmo, Google, Uber and Etsy

Justice Samuel Alito: “Does Gmail have a First Amendment right to delete, let’s say, Tucker Carlson’s or Rachel Maddow’s Gmail accounts if they don’t agree with his or her viewpoints?”

Justice Elena Kagan: “When you’re running Venmo you’re not engaged in speech activities and so when a state says to you, ‘You know what, you have to serve everybody irrespective of whether you like their political opinions or not,’ then it seems you have a much less good argument.”

Section 230

Justice Amy Coney Barrett: “If what we say about this is that this is speech that’s entitled to First Amendment protection, I do think then that has Section 230 implications for another case. And so it’s always tricky to write an opinion when you know there might be landmines that would affect things later . . .&�Բ�����;“We have to look at the statute as a whole. We don’t have a lot of briefing on this. And this is a sprawling statute and it makes me a little bit nervous.”

Related

• Susanna Granieri, “,” First Amendment Watch (Feb. 27)
• Robert Corn-Revere, “The Supreme Court, Big Tech, and the dark art of politics,” FIRE(Feb. 22)

This term, the Supreme Court will decide a cluster of cases — the most consequential in my 40-year career practicing First Amendment law — that will markedly shape the relationship between the government and social media.

The two   cases, which the Supreme Court will hear on Monday, were brought by NetChoice, an internet industry group, after Florida and Texas passed laws regulating social media platforms’ content moderation practices. Together they will determine who controls the levers of content moderation on platforms like Facebook and X: the platforms themselves or state government.

The NetChoice cases should be easy for the nine justices to decide — the power should remain with the platforms 

[ . . . ]

Don’t let the newness of the medium and the culture war hysterics surrounding it fool you. The arguments at play here are as old as our country itself. And the conclusion, from the standpoint of the First Amendment, is clear: Allowing the government to control the platforms’ moderation choices is not a cure — it is the very disease the Framers sought to prevent. They would abhor the notion of giving state legislatures the power to settle partisan disputes about editorial policies. 

Giving state legislatures such power over social media platforms, to paraphrase , would be “like giving whiskey and car keys to teenage boys.” Nothing good can come of it.

Related

• filed by FIREin  (Corn-Revere, counsel of Record)

Lukianoff and Goldstein: Online censorship in the UK

• Greg Lukianoff and Adam Goldstein, “,” The Eternally Radical Idea (Feb. 27)

Thanks to our First Amendment, American victims of Cancel Culture are shielded from being arrested for their speech — but that’s not the case everywhere. In Britain, the story is quite different. During the age of Cancel Culture there, the number of speech-related arrests in Britain have reached astounding numbers.

In 2003, the United Kingdom passed the , Section 127 of which targets speech that “cause[s] annoyance, inconvenience, or needless anxiety to another” online, as well as posts that are “grossly offensive or of an indecent, obscene, or menacing manner.”

In practice, that provision has resulted in a startling number of arrests: . That far outstrips the number of arrests in the first Red Scare — in a country that has roughly half as many people as the United States did in 1920. This works out to roughly nine people a day arrested “for posting allegedly offensive messages online.”

Worse yet, British police track “non-crime hate incidents.” In essence, this means anyone who takes offense to someone’s speech about a protected characteristic can report the speaker to the police. Horrifyingly, guidance for police  that “the victim does not have to justify or provide evidence of their belief, and police officers and staff should not directly challenge this perception.”

From 2014 to 2019, almost 120,000 such incidents were cataloged across the U.K.

This is truly terrifying.

We should all be hugely grateful that our First Amendment protects us from that fate here — but let’s not forget that    America should follow the  in terms of speech codes. This must not happen, and the fallout in Britain is a perfect cautionary tale as to why.

Volokh and Bambauer on book bans

• Eugene Volokh, “” The Volokh Conspiracy (Feb. 26)

When public school libraries remove books based on the views expressed in the books, are they violating the First Amendment? What if the librarians stocking the shelves have a political agenda? It all comes down to a precedent called Pico, and Eugene and Jane disagree about which Supreme Court justices got the rule right.

View video

Florida passes ban on social media for kids

• &�Բ�����;“,” First Amendment Watch (Feb. 23)

Forthcoming to FAN: Stephen Rohde’s book review essay on hate speech

Coming soon: Stephen Rohde reviewing “” (2024) by W. Wat Hopkins. 

Abstract of “Hate Speech is Not Free”:

Hate speech has been a societal problem for many years and has seen a resurgence recently alongside political divisiveness and technologies that ease and accelerate the spread of messages. Methods to protect individuals and groups from hate speech have eluded lawmakers as the call for restrictions or bans on such speech are confronted by claims of First Amendment protection. Problematic speech, the argument goes, should be confronted by more speech rather than by restriction. 

Debate over the extent of First Amendment protection is based on two bodies of law—the practical, precedent determined by the Supreme Court, and the theoretical framework of First Amendment jurisprudence. In Hate Speech is Not Free: The Case Against Constitutional Protection, W. Wat Hopkins argues that the prevailing thought that hate is protected by both case law and theory is incorrect. 

Within the Supreme Court’s established hierarchy of speech protection, hate speech falls to the lowest level, deserving no protection as it does not advance ideas containing social value. Ultimately, the Supreme Court’s cases addressing protected and unprotected speech set forth a clear rationale for excommunicating hate speech from First Amendment protection.

New scholarly article on a First Amendment right to affirmative action

• Alexander Volokh, “,” SSRN (Feb. 15)

In the wake of FIRE for Fair Admissions, Inc. v. President & Fellows of Harvard College, affirmative-action proponents should pursue a First Amendment approach. Private universities, which are speaking associations that express themselves through the collective speech of faculty and students, may be able to assert an expressive-association right, based on Boy Scouts of America v. Dale, to choose their faculty and students. This theory has been recently strengthened by 303 Creative LLC v. Elenis.

I discuss various complexities and counterarguments: (1) Race is not different than sex or sexual orientation for purposes of the doctrine. (2) The market context may not matter, especially after 303 Creative. (3) The conditional-federal-funding context does give the government more power than a simple regulatory context: the government will still be able to induce race-neutrality by the threat of withdrawing federal funds. But the unconstitutional conditions doctrine precludes draconian penalties like withdrawing all funds from the entire institution based only on affirmative action in some units. (4) This theory doesn’t apply to public institutions. 

I also explore the potential flexibilities of this theory, based on recent litigation. The scope of the Boy Scouts exception might vary based on (1) what counts as substantial interference with expressive organizations, (2) what counts as a compelling governmental interest, and (3) most importantly, what it takes for activity to be expressive. Because the test for expressiveness relies largely on social expectations about what particular actions “mean,” there is some chance that behavior beyond the university context — like affirmative action in charitable donations — might be brought within the Boy Scouts exception.

NYRB point-counterpoint: Cole, Tribe, Lukianoff, and Cole (rejoinder)

It started with David Cole’s New York Review of Books essay titled “” (Feb. 8). The main focus of that essay was that “[c]onservatives often charge their opponents with ‘cancel culture,’ but the right poses as significant a threat to free speech as the left.” Building on that theme he started by discussing that infamous “congressional hearing on December 5 between Representative Elise Stefanik and the presidents of Harvard, the University of Pennsylvania, and the Massachusetts Institute of Technology [and noted how it] laid bare once again the fragility of our collective commitment to free speech.” In the process of a thoughtful critique of cancel culture, Cole, though by and large laudatory, took a few respectful swipes at Laurence Tribe (he “joined” Stefanik in denouncing the response of the presidents) and Greg Lukianoff (he “disputed the supposed assertion that ‘cancel culture began in 2013 and is worse today than ever before’”).

Against that backdrop, the March 7^th issue of the NYRB contains a full-page debate titled “.” This informative and nuanced exchange is well worth the read.

Here are a few excerpts:

Tribe

I did, indeed, describe the presidents’ failure to answer that simple yes-or-no question as “hesitant, formulaic, and bizarrely evasive.” Far from joining the congresswoman, however, I criticized Representative Stefanik’s hypocritical and opportunistic attack on universities; defended Harvard’s initial decision to resist what I described as dangerous outside meddling with academic freedom; and continue to lament Harvard’s ultimate decision to cave to the pressure from wealthy donors and politicians like Representative Stefanik.

I write not principally to correct this distortion of my views but to address the way the public debate over free speech on college campuses is in danger of being reduced to an oversimplified binary: either you are for college students feeling safe, or you are for virtually absolute freedom of speech. The current doctrinaire insistence that we cannot restrict speech unless it falls within previously recognized narrow exceptions such as the “incitement of violence,” “fighting words,” or “true threats” wrongly elevates free speech above all other freedoms—including the bedrock principle that every student should be free to access education without discrimination.

Lukianoff

Cole claims that Rikki [Schlott] and I “assert…that the past decade has seen repression of speech akin to or worse than that of the McCarthy era.” In fact, we only referenced McCarthyism (as the second Red Scare) three times in the book. First, to say that we believe cancel culture will be studied the same way we study the 1798 Sedition Act or the two Red Scares. Second, to point out that the Hollywood Red Scare only targeted about three hundred people, giving a sense of the comparative scale of cancel culture, which has seen more than one thousand attempts to cancel professors since 2014. In the third, we simply noted that an estimated one hundred professors were fired during the eleven years of McCarthyism/the Second Red Scare, whereas almost two hundred have been fired in the past nine and a half years of cancel culture.

[. . .]

Cole also disputed our supposed assertion that “cancel culture began in 2013 and is worse today than ever before,” but we’re always careful to say that cancel culture is the worst period of censorship since the First Amendment began to be strictly interpreted on campus, following a series of cases that ended in 1973. The state of free speech was far worse before that, and we never claim otherwise. But when the first generation who grew up with social media and smartphones hit college, which happened around 2014, a dramatic shift took place. I ran a more thorough response to Cole’s review in my Substack newsletter, “,” with several graphs and comprehensive data.

Cole

I’m sorry that Laurence Tribe, whom I deeply respect as one of the nation’s leading constitutional scholars, feels that I misrepresented him when I noted that “while Stefanik, a staunch Republican, led the charge, she was joined by many prominent liberals, including…Laurence Tribe.” But here’s what Tribe said, in his own words, on his Twitter page, retweeting with approval Stefanik’s attack on then Harvard President Claudine Gay: “I’m no fan of @RepStefanik but I’m with her here. Claudine Gay’s hesitant, formulaic, and bizarrely evasive answers were deeply troubling to me and many of my colleagues, students, and friends.” In my book, when you say “I’m with her,” you’ve “joined” her. 

[. . .]

[W]e appear to part company on two points. First, Tribe (with Stefanik) thinks that any statement calling for genocide of the Jews can be prohibited on campus, even if it is merely a stupid choice of words at a spirited rally. Would he say the same about calls for “intifada,” which Stefanik equated with calling for genocide? What about “from the river to the sea”? What about calls supporting the Israeli military offensive against Gaza, which has led to more than 25,000 deaths? Can all such speech be prohibited because it calls for violence, no matter how rhetorical and no matter how far removed from actual violence on campus? Where would Tribe draw the line? He doesn’t say.

Second, Tribe argues that while speech must be free in the classroom, it need not be free at other places on campus. With respect, I think that gets it backward. Speech is appropriately subject to much greater control in the classroom than on the campus lawn.

[. . .]

I also have tremendous respect for Greg Lukianoff and the work FIREhas done to protect speech on campus. As I wrote in my review, cancel culture is undoubtedly real; in fact, in both my ACLU and Georgetown capacities, I am actively engaged in trying to promote free speech on campus. So I share Lukianoff’s and his coauthor Rikki Schlott’s concern. But I question their claims that intolerance is worse today than in prior periods. Their comparison of cancel culture to McCarthyism fails to acknowledge the stark difference between a campaign of censorship coordinated and compelled by the government, carried out through criminal convictions, loyalty hearings, blacklists, and widespread political spying — ultimately directly affecting millions of Americans — and a private “culture” of intolerance on campuses.

Nor do the authors provide convincing evidence that campuses are substantially less tolerant today than in decades past. The fact that there are more conflicts and more complaints on today’s heterogeneous campuses does not mean that the more homogeneous campuses of the past were islands of tolerance. 

[. . .]

[Yes,] intolerance on campuses today is a real concern. But exaggerating the scope of the problem, much less likening it to periods of officially sanctioned state repression, is unnecessary to make the point.

Cato: Law profs. on SCOTUS 1A cases

•  Cato: “,” C-SPAN (Sept. 2023)

Constitution Day symposium in Washington, D.C., which examined the Supreme Court’s 2022-23 term, as well as upcoming cases in the 2023-24 term. Law professors from the University of Florida, the University of Mississippi, and the University of Baltimore examined the impact of recent cases decided in the Court. Among the cases discussed was 303 Creative LLC v. Elenis, which ruled that the First Amendment prohibits a Colorado anti-discrimination law from forcing a wedding website designer who opposes same-sex marriage to create content for gay and lesbian couples.

More in the news

• Morgan Trau, “,” Ohio Capital Journal (Feb. 28)
• Eugene Volokh, “,” The Volokh Conspiracy (Feb. 27)
• Eugene Volokh, “,” The Volokh Conspiracy (Feb. 27)
• “,” First Amendment Watch (Feb. 26)
• “,” First Amendment Watch (Feb. 23)
• “,” First Amendment Watch (Feb. 22)
• Jeff Amy, “,” Free Speech Center (Feb. 21)

2022-2023 SCOTUS term: Free expression and related cases

Cases Decided

• (Per Curiam: 7-1 with Thomas, J., dissenting: 

[W]e conclude that the Fifth Circuit should not have ventured into so uncertain an area of tort law — one laden with value judgments and fraught with implications for First Amendment rights— without first seeking guidance on potentially controlling Louisiana law from the Louisiana Supreme Court. We express no opinion on the propriety of the Fifth Circuit certifying or resolving on its own any other issues of state law that the parties may raise on remand. We therefore grant the petition for writ of certiorari, vacate the judgment of the United States Court of Appeals for the Fifth Circuit, and remand the case to that court for further proceedings consistent with this opinion.

Review granted

•  (argued Nov. 1)
•  (argued Oct. 31)
•  &   (argued: Feb. 26)
•  (argument: March 18)
•  (argument: March 18)

Pending petitions

State action

•  (argued Oct. 31)

Review 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) // See also 

Previous FAN

FAN 412: “Mary Anne Franks targets ‘antidemocratic, racist, misogynistic, and corporate self-interest speech’ in forthcoming book”

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.