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In the post-Anthony Comstock era, various groups on the political right and left have unabashedly embraced — and even championed — censorship. 

Whether it be about politics (e.g., communist literature) or sex (e.g., pornography), the rallying cry has been to protect the citizenry from the “evils” of certain ideas. Recently, PEN America pointed out that  have introduced bills to limit instruction about racism and sexism.

Consistent with that mindset,  is one of the latest national groups to advocate censorship regarding school curricula touching upon LGBT rights and racial justice history, among other things.

In principle, this campaign is an old story but with a new face. Moms for Liberty is simply continuing the time-honored tradition of perpetuating the very kind of censorship that the First Amendment stands to prevent. Here are just a few of their predecessors:

1. Citizens for Decent Literature: Campaign to rid the nation of “printed poison”

  was founded in 1956 in Cincinnati, Ohio, by the Catholic anti-pornography campaigner . Two years later, Keating testified before the House Judiciary Committee on mail-order pornography. He argued that porn was “capable of poisoning any mind at any age” and that it was also “part of the Communist conspiracy . . . .” He later served on the  (1969). 

Over time, CDL mailed millions of letters on behalf of its anti-pornography campaign and filed numerous amicus briefs in the Supreme Court. In the trade, as it were, Keating was known as “Mr. Clean.”

In 1963 CDL released a 26-minute anti-pornography film titled “Printed Poison.” 

View video

Thereafter, the group’s message won a ringing endorsement by talk-show host  in a PSA titled “.”

2. MacKinnon & Dworkin: Feminists against porn

Professor  and activist  set the world afire with a radical feminist anti-pornography campaign () energized by their widely noticed books such as:

• “Pornography: Men Possessing Women” (1981)
• “Intercourse” (1987) (AD)
• “Toward a Feminist Theory of the State” (1989)
• “Only Words” (1993)
• “Life and Death: Unapologetic Writings on the Continuing War Against Women” (1997)
• “In Harm’s Way: The Pornography Civil Rights Hearings” (1997)
• “Women’s Lives, Men’s Laws” (2005)

In the early 1980s, Dworkin and MacKinnon drafted an antipornography civil rights ordinance as an amendment to the Minneapolis city civil rights ordinance. The amendment defined pornography as a civil rights violation against women. If women successfully claimed harm from pornography, it allowed them to sue the producers and distributors for damages. In 1984, a version of the Minneapolis law passed in . In  the Seventh Circuit overturned that ordinance as violative of the First Amendment.

Two years later, Dworkin testified before Attorney General Edwin Meese’s  (the “Meese Commission”). Her testimony against pornography was praised and reprinted in the commission's .

In  (1992), Canada’s high court somewhat approvingly gave staying power to several of MacKinnon's views related to equality, hate propaganda, and pornography when it drew extensively from a brief she co-authored in a ruling against Manitoba pornography distributor Donald Butler.

3. Enter Moms for Liberty: The book banners

was launched in Florida in 2021. It was co-founded by “former school board members Tina Descovich and Tiffany Justice, and by then-current school board member Bridget Ziegler, the wife of Florida Republican Party Chairman Christian Ziegler. [The conservative group] began by campaigning against COVID-19 responses in schools such as mask and vaccine mandates.” 

Thereafter, the group expanded its mission by focusing on the way racism, religion, and LGBTQ topics are addressed in student reading materials. The group claims to have 285 chapters in 45 states.

As  by Odette Yousef for NPR:

More than two years into a conservative push against teaching about Black history, literature, and gender identity in public schools, the Southern Poverty Law Center has concluded that a dozen so-called "parental rights" groups behind the movement are extremist. 

The civil rights organization particularly focuses on the largest of these, the nonprofit Moms for Liberty, in its annual  report for 2022, saying that it advances an anti-student inclusion agenda. 

[ . . . ]

The SPLC report compares Moms for Liberty and similar organizations of today to pro-segregationist parent groups that flourished in the wake of the 1954 Supreme Court decision in Brown v. Board of Education. That decision forced schools across the U.S. to integrate, but it also gave fire to a movement to undermine public education. The report names, as examples, the Mothers' League of Central High School and the "Cheerleaders" of New Orleans, which were established to resist inclusiveness at schools during that earlier era.

See also “,” 60 Minutes (March 1) (Scott Pelley reports on the battle to ban 97 books in one South Carolina public school district and the role played by the national movement for “parental rights” inspired by Moms for Liberty.)

Related

Though highly critical of its censorial campaigns, last year FIREfiled an amicus brief in the U.S. Court of Appeals for the Eleventh Circuit in the case . In ��֭����’s brief in support of the appellant, FIRESenior Attorney JT Morris argued:

…members of Moms for Liberty sought to publicly criticize the Brevard County School Board for various policy decisions, including allowing students access to books Moms for Liberty members considered age-inappropriate; school masking policies during the COVID-19 pandemic; its treatment of an ex-teacher convicted for indecent exposure on school property; and even the Board’s conduct toward Moms for Liberty members during the meetings themselves. For their efforts, the School Board repeatedly cut off Moms for Liberty members, directed those members to avoid entire topics of debate because they were “inappropriate for children,” and in some cases forced members off the podium. In doing so, the School Board relied on viewpoint discriminatory, unreasonable, vague, and overbroad prohibitions against “abusive,” “personally directed,” and “obscene” comments.

[ . . . ]

When the members of the Brevard County School Board chose to run for public office, they signed up for criticism as part of the job. But when that criticism arrived, the School Board officials chose to censor Moms for Liberty members instead of answering them. The First Amendment requires elected officials to be thick-skinned. Accordingly, this Court should reverse and clarify that the First Amendment trumps decorum policies at public comment periods.

Millhiser on NRA cases soon to be argued before Supreme Court

• Ian Millhiser, “,” Vox (March 11)

The  will hear two cases on Monday, March 18, that are often referred to as “jawboning” cases — that is, cases where the government tried to pressure private companies into taking certain actions, but without actually using any of its coercive power.

On the surface, the two cases have many similarities. Both involve claims that the First Amendment imposes strict limits on the government’s ability to cajole, hector, or otherwise try to persuade private companies to act in a particular way. But these similarities are only an inch deep.

One case, known as , involves a . 

In National Rifle Association (NRA), New York’s top financial regulator brought a legitimate enforcement action against three insurance companies that did business with the NRA, and these companies agreed to pay a total of $13 million in fines. But then, while this completely benign enforcement action was underway, the same regulator issued a “” to all insurers who do business in the state, warning them to “continue evaluating and managing their risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations.”

This guidance was not permitted by the Constitution. A law enforcement agency cannot pressure companies to stop doing business with a political advocacy group that it disagrees with while it is also in the process of collecting millions of dollars in fines from some of those companies. Even though the financial regulator’s “guidance” did not explicitly threaten that more enforcement actions would follow if insurers kept doing lawful business with the NRA, a threat was implied by the regulator’s previous, multimillion-dollar action against insurers associated with the NRA.

The second case, meanwhile, is more fraught. In , the United States Court of Appeals for the Fifth Circuit — a  — issued a  that effectively forbids the federal government from communicating with social media companies about harmful content online.

[ . . . ]

Unlike the NRA case, the Fifth Circuit’s opinion in Murthy identified no examples of a government official taking coercive action against a social media company, nor did it identify any plausible threat to take such action. The right-wing court did, however, identify some cases where White House officials used unnecessarily strident language in an attempt to pressure social media companies to remove content.

Related

• Aaron Terr, “State AGs ignore First Amendment, lean on YouTube to remove label on abortion video,” FIRE(March 7)

Settlement agreement in Florida ‘don’t say gay’ case

• Mike Schneider, “,” Free Speech Center (March 12)

FIRE and teachers can discuss sexual orientation and gender identity in Florida classrooms, provided it’s not part of instruction, under a settlement reached on March 11 between Florida education officials and civil rights attorneys who had challenged a state law that critics dubbed “Don’t Say Gay.”

The settlement in the 11th U.S. Circuit Court of Appeals clarifies what is allowed in Florida classrooms following passage two years ago of the law prohibiting instruction on sexual orientation and gender identity in early grades. Opponents said the law had created confusion about whether teachers could identify themselves as LGBTQ+ or if they could have rainbow stickers in classrooms.

[ . . . ]

Under the terms of the settlement, the Florida Board of Education will send instructions to every school district saying the Florida law doesn’t prohibit discussing LGBTQ+ people, nor prevent anti-bullying rules on the basis of sexual orientation and gender identity, or disallow Gay-Straight Alliance groups. The settlement also spells out that the law is neutral — meaning what applies to LGBTQ+ people also applies to heterosexual people — and that it doesn’t apply to library books not being used for instruction in the classroom.

Related

• Curt Anderson, “,” Free Speech Center (March 6)

Strange quote of the week: Trump on Facebook — ‘enemy of the people’

“Without TikTok, you can make Facebook bigger, and I consider Facebook to be an enemy of the people,” Mr. Trump told NBC on Monday. . . . “I think Facebook has been very bad for our country, especially when it comes to elections,” Mr. Trump added. — Max Matza,  (March 11)

FIRE seeks emergency relief from high court over college ban on drag shows

• “Statement on ��֭����’s emergency SCOTUS petition in West Texas A&M lawsuit,” FIRE(March 4)

[T]he FIREfiled an emergency application asking the Supreme Court of the United States to immediately halt West Texas A&M University’s unconstitutional ban on drag performances ahead of our clients’ next annual show scheduled for March 22.

Whether it’s a fiery political speech, Bible study, or drag performance, the First Amendment protects student groups from public university administrators who want to silence speech simply because it offends them. Yet, that’s exactly what West Texas A&M University President Walter Wendler did last March, invoking his personal views to cancel student group Spectrum WT’s PG-13 drag show intended to raise funds and awareness for suicide prevention. Wendler declared “West Texas A&M will not host a drag show,” and stated he did not care that “the law of the land appears to require” him to let the show go on.

In short, Wendler imposed a viewpoint-driven prior restraint on speech — an intolerable First Amendment violation that should not have lasted a day, let alone a year. That is why ��֭���� sued on the students’ behalf last year, and appealed after the district court denied ��֭����’s request to stop the censorship at West Texas A&M.

SEC’s climate disclosure rule prompts First Amendment challenge

• Henry Engler, “,” Reuters (March 8)

The SEC’s climate rules, which were released on March 6, are out, and the opposition to them through the courts that use the First Amendment as the basis for litigation is still likely. 

Debate has intensified over whether the U.S. Securities and Exchange Commission’s (SEC) newly released climate disclosure rules might be derailed by First Amendment legal challenges. The focus on the First Amendment comes after industry groups  against California’s recent climate disclosure laws, arguing that the rules force companies to engage in “compelled speech” that is unconstitutional.

SEC chair Gary Gensler said in February that the regulator is taking account of court decisions over its past rulemaking in crafting its final regulation for climate disclosure. 

In particular, he noted a recent  that rejected the argument made by industry trade groups that the SEC’s stock buyback rule, established in May 2023, violated the First Amendment. The groups said the agency’s stock buyback rule, which required companies to report day-to-day share repurchase data once per quarter, violated the First Amendment by impermissibly compelling their speech.

Legal experts noted that the First Amendment has become the preferred tool for industry groups in recent cases when objecting to proposed regulations that are deemed “controversial.” In a note to clients, the law firm Cooley wrote: “The First Amendment claim is certainly one that we have seen used successfully in the past and are likely to see again.”

First Amendment Watch Q&A

• Susanna Granieri, “,” First Amendment Watch (March 12)

The raid of a newspaper office and the home of its owner and publisher in small town Kansas this past summer sparked nationwide outrage over its apparent violation of First Amendment protections for the freedom of the press.

The Marion Police Department confiscated computers and cell phones from The Marion County Record office and the home of its owner and publisher, Joan Meyer, who passed away the day after the raid. State authorities  in August that the newspaper was alleged to have illegally obtained personal information about a local business owner.

The raids are now thought to have been prompted by a complaint by local restaurant owner, Kari Newell, who accused the newspaper of illegally obtaining her driving record, which includes a 2008 drunk driving conviction.

But co-owner of the paper, Eric Meyer,  not only to the paper’s acquisition of this information, but to its coverage of local politics and the town’s then newly hired police chief, Gideon Cody, who  over backlash to the raids. [interview continued ]

Forthcoming scholarly article on algorithmic speech

• Mackenzie Austin and Max Levy, “,” Stanford Law Review (forthcoming, 2025)

Machine learning algorithms increasingly mediate our public discourse — from search engines to social media platforms to artificial intelligence companies. And as their influence on online speech swells, so do questions of whether and how the First Amendment may apply to their output. A growing chorus of scholars has expressed doubt over whether the output of machine learning algorithms is truly speech within the meaning of the First Amendment, but none have suggested a workable way to cleanly draw the line between speech and non-speech. 

This Article proposes a way to successfully draw that line based on a principle that we call “speech certainty” — the basic idea that speech is only speech if the speaker knows what he said when he said it. This idea is rooted in the text, history, and purpose of the First Amendment, and built into modern speech doctrines of editorial discretion and expressive conduct. If this bedrock principle has been overlooked, it is because, until now, all speech has been imbued with speech certainty. Articulating its existence was never necessary. But machine learning has changed that. Unlike traditional code, a close look at how machine learning algorithms work reveals that the programmers who create them can never be certain of their output. Because that output lacks speech certainty, it’s not the programmer’s speech. 

Accordingly, this Article contends that the output of machine learning algorithms isn’t entitled to First Amendment protection. With the Supreme Court signaling its intent to address unresolved questions of online speech, we are poised to enter a new era of First Amendment jurisprudence in the coming years. As we do, scholars, practicing attorneys, and judges can no longer ignore how the algorithms underlying online speech actually work - and how they have changed with the advent of machine learning. Without recognizing this paradigm shift in algorithmic speech, we risk sleepwalking into a radical departure from centuries of First Amendment jurisprudence. 

By failing to distinguish between traditional and machine learning algorithms, current consensus about algorithmic speech suggests that the Constitution should, for the first time in its history, protect speech that a speaker does not know he has said. Speech certainty provides a novel and principled approach to conceptualizing machine learning algorithms under existing First Amendment jurisprudence.

Related

• Collins and Skover, “” (Cambridge University Press, 2018)

Corn-Revere on Corn-Revere

• Robert Corn-Revere, “Ten questions to a media lawyer,” FIRE(March 11)

Renowned First Amendment attorney Robert Corn-Revere talks about his most memorable cases and what he sings at karaoke night.

This article was  in the October 2023 issue of the Media Law Resource’s MediaLawLetter and is republished here with permission.

1. How did you get interested in law and the First Amendment?

I was interested in law because I was a high school and college debater, and coached debate in graduate school. I became interested in the First Amendment as a reporter for a local newspaper and journalism student during the Watergate era. Combining those interests seemed like a natural progression, so by the time I started law school, I knew I wanted to find a way to practice First Amendment law. 

2. What was your first legal job? 

During law school, I got a job at a D.C. firm that was working on a cable TV law treatise, and they assigned me to draft an initial chapter on broadcast law. In addition to that, I was a summer associate, and then an associate, at Steptoe & Johnson.

[ . . . ]

4. What are some of your most memorable cases or experiences in media law? After four years at the FCC working for Commissioner (and then Chairman) Jim Quello (a memorable experience in many ways), I was back at a private firm trying to jump-start a First Amendment practice. During the holidays while on vacation, I received a call out of the blue where the voice on the other end said, “My name is Howard Shapiro and I am General Counsel of Playboy Enterprises. I desperately need your help.” 

That led to several years of litigation involving a First Amendment challenge to a provision of the Telecommunications Act of 1996, culminating in a victory in the Supreme Court. That was a busy time, as all the early challenges to Internet regulations were occurring at that time, and I had a hand in some of those formative cases as well. 

Then came the infamous “wardrobe malfunction” where I represented CBS, and a series of cases testing the limits of the FCC’s indecency rules. Last year, I worked on a case that successfully blocked an effort to ban books in Virginia Beach, VA, a case that was memorable on various levels now that book banning is back in vogue. 

And I have to include the successful campaign of then-New York Governor George Pataki to grant a posthumous pardon to comedian Lenny Bruce.

More in the news

• Eugene Volokh, “,” The Volokh Conspiracy (March 12)
• Christopher Coulter, “,” Fox News (March 11)
• Eugene Volokh, “,” The Volokh Conspiracy (March 11)
• “,” First Amendment Watch (March 8)
• “,” First Amendment Watch (March 8)
• “POLL: 69% of Americans believe country on wrong track on free speech,” FIRE(Feb. 27)

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 ex- press 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, 2024)
• (argument: March 18, 2024)
•  (argument: March 18, 2024)
• (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) ()

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  (argued April 16)

Previous regularly scheduled FAN

FAN 414: “Stephen Rohde, review essay: Is ‘hate speech’ free speech?”

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.