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Get Well Shout-Out to Geoff Stone 

As some of you may have heard, recently had surgery and is home recovering. I know I speak for many in wishing Geoff a full recovery and an energetic return to his life in the law . . . and elsewhere.

Geoff: We need you to get well so that we can all continue to benefit from your many talents and hear you talk about your latest ideas and books — e.g., your forthcoming  (with David A. Strauss, Jan. 2020). So Geof, take heed: we’re rooting for you to return . . . even stronger than before!

So to Speak Podcast Transcript: Who Was Hayden C. Covington?

Here is the transcript of my interview with Nico Perrino for the So to Speak podcast. The podcast discusses a long law review I did on (the noted lawyer for the Jehovah’s Witnesses) for the Florida International University Law Review (2019).

Related

• FAN 210: Hayden Covington: The Lawyer Who Argued 44 Cases in the Supreme Court, Most of Them First Amendment Cases (April 24, 2019)

Shibley on Free Speech on College Campuses 

• Robert Shibley, Why the Supreme Court’s Davis standard is necessary to restore free speech to America’s college campuses: Part I, FIRE(Oct. 14, 2019)

Coming Soon: Fish on Free Speech

• Stanley Fish, "" (Atria/One Signal Publishers, Nov. 5, 2019) Abstract:

How does the First Amendment really work? Is it a principle or a value? What is hate speech and should it always be banned? Are we free to declare our religious beliefs in the public square? What role, if any, should companies like Facebook play in policing the exchange of thoughts, ideas, and opinions?

With clarity and power, Stanley Fish, “America’s most famous professor” (BookPage), explores these complex questions in The First. From the rise of fake news, to the role of tech companies in monitoring content (including the President’s tweets), to Colin Kaepernick’s kneeling protest, First Amendment controversies continue to dominate the news cycle. Across America, college campus administrators are being forced to balance free speech against demands for safe spaces and trigger warnings.

Ultimately, Fish argues, freedom of speech is a double-edged concept; it frees us from constraints, but it also frees us to say and do terrible things. Urgent and controversial, The First is sure to ruffle feathers, spark dialogue, and shine new light on one of America’s most cherished—and debated—constitutional rights.

Forthcoming Book

• Suzanne Nossel, "" (Dey Street Books, May 5, 2020) Abstract:

Online trolls and fascist chat groups. Controversies over campus lectures. Cancel culture versus censorship. The daily hazards and debates surrounding free speech dominate headlines and fuel social media storms. In an era where one tweet can launch—or end—your career, and where free speech is often invoked as a principle but rarely understood, learning to maneuver the fast-changing, treacherous landscape of public discourse has never been more urgent.

In Speak Free, Suzanne Nossel, a leading voice in support of free expression, delivers a vital, necessary guide to maintaining democratic debate that is open, free-wheeling but at the same time respectful of the rich diversity of backgrounds and opinions in a changing country. Centered on practical principles, Nossel’s primer equips readers with the tools needed to speak one’s mind in today’s diverse, digitized, and highly-divided society without resorting to curbs on free expression.

At a time when free speech is often pitted against other progressive axioms—namely diversity and equality—Speak Free presents a clear-eyed argument that the drive to create a more inclusive society need not, and must not, compromise robust protections for free speech. Nossel provides concrete guidance on how to reconcile these two sets of core values within universities, on social media, and in daily life.

Five New or Forthcoming Scholarly Articles

• Amélie Pia Heldt, , Hamline Law Review (2020) Abstract:

When Facebook and other social media sites announced in August 2018 they would ban extremist speakers such as conspiracy theorist Alex Jones for violating their rules against hate speech, reactions were strong. Either they would criticize that such measures were only a drop in the bucket with regards to toxic and harmful speech online, or they would despise Facebook & Co. for penalizing only right-wing speakers, hence censoring political opinions and joining some type of anti-conservative media conglomerate. This anecdote foremost begged the question: Should someone like Alex Jones be excluded from Facebook? And the question “should” includes the one of “may Facebook exclude users for publishing political opinions?”

As social media platforms take up more and more space in our daily lives, enabling not only individual and mass communication, but also offering payment and other services, there is still a need for a common understanding with regards to the social and communicative space they create in cyberspace. By common I mean on a global scale since this is the way most social media platforms operate or aim for (see Facebook’s mission statement: “bring the world closer together”). While in social science a new digital sphere was proclaimed and social media platforms can be categorized as “personal publics”, there is no such denomination in legal scholarship that is globally agreed upon. Public space can be defined as a free room between the state and society, as a space for freedom. Generally, it is where individuals are protected by their fundamental rights while operating in the public sphere. However, terms like forum, space, and sphere may not be used as synonyms in this discussion. Under the First Amendment, the public forum doctrine mainly serves the purposes of democracy and truth and could be perpetuated in communication services that promote direct dialogue between the state and citizens. But where and by whom is the public forum guaranteed in cyberspace?

The notion of the public space in cyberspace is central and it constantly evolves as platforms become broader in their services, hence it needs to be examined more closely. When looking at social media platforms we need to take into account how they moderate speech and subsequently how they influence social processes. If representative democracies are built on the grounds of deliberation, it is essential to safeguard the room for public discourse to actually happen. Are constitutional concepts for the analog space transferable into the digital? Should private actors such as social media platforms be bound by freedom of speech without being considered state actors? And, accordingly, create a new type of public forum?

The goal of this article is to provide answers to the questions mentioned. . . .

• Chad Flanders & Sean Oliverira, , UCLA Law Review (2019) Abstract:

The recent wave of popular and academic commentary on Masterpiece Cakeshop sounded a common theme: disappointment, even frustration. Masterpiece was held out as a case that was finally going to explain and resolve the conflicts between free expression, free exercise, and discrimination that were coming up again and again in the lower courts. But Justice Kennedy, the critical consensus went, avoided reaching many of the main First Amendment issues in the case and had instead ruled narrowly, giving us a prime example of"judicial minimalism:•

This assessment may be far too generous. In our short Article, we make the case that Masterpiece is a flawed decision because of its fundamental incompleteness, not its minimalism. Despite being held out as an opinion on religious liberty, Kennedy's decision is cursory on the baker's religious beliefs and how they have been burdened-a perhaps forgivable sin-but then simply omits any discussion of whether the state interest might outweigh the baker's religious freedom-a less forgivable sin.

The failure to do any balancing makes the religious liberty aspect in Masterpiece unfinished. Indeed, Masterpiece fails to follow the steps that Justice Kennedy himself had set out in his previous opinions on religious liberty. And this leads us to surmise that Masterpiece may not be a religious liberty decision at all, but one about the violation of the baker's due process rights. If this was the case, however, the correct resolution would be not a win for the baker, but a remand for a new hearing (as Justice Kennedy had himself suggested in other opinions): a procedural remedy for a procedural flaw .. But Kennedy doesn't take this route, either. In essence, Masterpiece is not a narrow or minimalist opinion, but rather a collection of false starts, none of which ofter much insight or illumination on the areas of law they purport to address.

• Shaakirrah Sanders, , Wake Forest Law Review (2019)
• Karen Pita Loor, , Seattle University Law Review (2019)
• Lackland Bloom, , Southern Methodist University Law Review (2019)

Citron to Testify before Congress on Tech Industry’s Legal Protections

and sexual nature, including “revenge porn”) and the ways it disproportionately harms women and members of marginalized groups, she’ll be joined by Reddit chief Steve Huffman, Katherine Oyama, Google's global head of intellectual property policy, and Corynne McSherry, the legal director of top privacy group the Electronic Frontier Foundation.

Citron will discuss a provision called Section 230 of the 1996 Communications Decency Act, which protects internet platforms from being sued over content posted by users and how it chooses to moderate those user-generated posts. Lawmakers across the aisle in both chambers have come to view Section 230 as a "sweetheart deal" that protects Big Tech from dealing with issues on their platforms including hate speech, terrorist content and disinformation. Using testimony from experts including Citron, lawmakers aim to explore whether online companies are appropriately using the tools they have — including protections Congress granted in Section 230 of the Communications Decency Act — to foster a healthier Internet.

Book in Defense of Free Speech Pulled by Publisher

As James Flynn  he is the victim of censorship by his former publisher.  "I recently completed a book defending free speech. Emerald Press scheduled it for publication but then decided not to proceed. Here’s what it said about the book in Emerald’s September 2019 catalog:  In Defense of Free Speech: The University as Censor Author James R. Flynn, University of Otago, New Zealand. . . . I was notified of Emerald’s decision not to proceed by Tony Roche, Emerald’s publishing director, in an email on 10th June:

I am contacting you in regard to your manuscript In Defense of Free Speech: The University as Censor. Emerald believes that its publication, in particular in the United Kingdom, would raise serious concerns. By the nature of its subject matter, the work addresses sensitive topics of race, religion, and gender. The challenging manner in which you handle these topics as author, particularly at the beginning of the work, whilst no doubt editorially powerful, increase the sensitivity and the risk of reaction and legal challenge. As a result, we have taken external legal advice on the contents of the manuscript and summarize our concerns below.

There are two main causes of concern for Emerald. Firstly, the work could be seen to incite racial hatred and stir up religious hatred under United Kingdom law. Clearly you have no intention of promoting racism but intent can be irrelevant. For example, one test is merely whether it is “likely” that racial hatred could be stirred up as a result of the work. This is a particular difficulty given modern means of digital media expression. The potential for circulation of the more controversial passages of the manuscript online, without the wider intellectual context of the work as a whole and to a very broad audience—in a manner beyond our control—represents a material legal risk for Emerald.

Secondly, there are many instances in the manuscript where the actions, conversations and behavior of identifiable individuals at specific named colleges are discussed in detail and at length in relation to controversial events. Given the sensitivity of the issues involved, there is both the potential for serious harm to Emerald’s reputation and the significant possibility of legal action. Substantial changes to the content and nature of the manuscript would need to be made, or Emerald would need to accept a high level of risk both reputational and legal. The practical costs and difficulty of managing any reputational or legal problems that did arise are of further concern to Emerald.

New & Notable from First Amendment Watch

• , First Amendment Watch (Oct. 14, 2019)
• , First Amendment Watch (Oct. 14, 2019)
• , First Amendment Watch (Oct. 10, 2019)

New & Notable from the Volokh Conspiracy 

• Eugene Volokh, , The Volokh Conspiracy (Oct. 15, 2019)
• Eugene Volokh, , The Volokh Conspiracy (Oct. 12, 2019)

News, Editorials & Op-eds

• Philip Klein, , Washington Examiner (Oct. 2, 2019)
• Sarah McLaughlin,, New York Daily News (Oct. 15, 2019)