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— Daniel Anderl Judicial Security and Privacy Act of 2021

Last month, , the director of the Administrative Office of the U.S. Courts, issued a in support of the In that statement, she observed that:

vicious acts of violence against the judiciary, at home and at work, underscore the urgent need for immediate Congressional action to address the critical security needs of federal judges, court employees, those who protect our courthouses across the country, and the safety of the public at our nation’s courthouses. Following the tragic murder of Judge Salas’s son, the Judicial Conference of the United States, its Committee on Judicial Security, and the Administrative Office of the United States Courts immediately undertook a review of security procedures and requirements. Thereafter, the Judicial Conference of the United States adopted and delivered to Congress a comprehensive set of to improve judicial security. These included:

• Protect and maintain privacy of judges’ personally identifiable information (PII);
• Ensure improved USMS capability to provide security to the federal judiciary;
• Support funding for improved home security systems;
• Support funding for the U.S. Marshals Service for additional deputy U.S. Marshals;
• Support funding for upgrade of outside security cameras at U.S. Courthouses.

These provisions are addressed in S. 2340, The Daniel Anderl Judicial Security and Privacy Act of 2021, and related appropriations requests. . . .

S. 2340 is carefully crafted to respect the First Amendment right of the press to report on matters of public concern, and balances that right with an interest of the highest order – to protect the security of judges. The legislation recognizes and protects the press’s right to report on judicial malfeasance or other newsworthy information regarding federal judges and immediate family members or to investigate and inform on newsworthy matters. The bill is also narrowly tailored to further a compelling government interest - the safety of federal judges and the derivative ability of the judiciary to function.

Opposing the proposed law

• Editorial, "," Las Vegas Review-Journal (Jan. 2):

[T]ragedy motivated Judge Salas to push for passage of “Daniel’s Law,” which makes it a crime to publish the personal information of New Jersey judges and law enforcement officials. The proposal in the Garden State in November — and a similar proposal is making its way through Congress.

While obviously well-intentioned, there are serious free speech concerns about such legislation.

As Thomas Barry noted last week in The Wall Street Journal, the federal proposal could criminalize posting online even basic information about federal judges. Posters could be subject to lawsuits, as well as legal fees and court costs.

The bill carves out exceptions for certain forms of media — newspapers, TV, etc. — but such an arbitrary distinction is unlikely to survive a First Amendment challenge. Mr. Barry writes that the Supreme Court has repeatedly struck down laws that block the publication of true but sensitive information, arguing that such laws “seldom can satisfy constitutional standards.”

Professor Franks proposes amending the First Amendment 

• Mary Anne Franks, "," Boston Globe (2021):

Every person has the right to freedom of expression, association, peaceful assembly, and petition of the government for redress of grievances, consistent with the rights of others to the same and subject to responsibility for abuses. All conflicts of such rights shall be resolved in accordance with the principle of equality and dignity of all persons.

In her op-ed on the proposed change, University of Miami Law School Professor Mary Anne Franks argued that:

[m]aking such an edit to the First Amendment would provide stronger and fairer protections for the right of expression, including by acknowledging, as many state constitutions do, that every person remains responsible for abuses of that right. (Such a modification would, for example, help undo the damage caused by the Supreme Court’s decision in Citizens United and remove constitutional barriers to reasonable campaign-finance laws that promote democratic legitimacy.)

Parents' right to criticize school policies and officials at public meetings upheld

• "," Institute for Free Speech (Nov. 17, 2021)

A federal judge on Wednesday  a Pennsylvania school board to allow parents and community members to criticize school policies and officials by name at public meetings. The court cited abundant evidence in its that the Pennsbury School Board has abused its policies governing speech at meetings to discriminate against speakers based on their viewpoints. The ruling is an important step towards holding school boards everywhere accountable for their treatment of parents and citizens during public comment periods.

“Public speech at school board meetings is in fact protected by the First Amendment,” wrote Judge Pratter of the United States District Court for the Eastern District of Pennsylvania.

The court’s order prohibits the Pennsbury School Board from enforcing a variety of restrictions on speech at public meetings while the case proceeds, including bans on speech deemed “personally directed,” “personal attacks,” “abusive,” “verbally abusive,” “irrelevant,” “disruptive,” “offensive,” “inappropriate,” or “otherwise inappropriate.” It also orders the Board to stop requiring speakers to announce their home addresses before making remarks.

Those provisions of Pennsbury School Board Policy 903 and 922 were challenged in October in a federal lawsuit brought by four parents and community members who were repeatedly censored at school board meetings. They are represented in the case by attorneys from the Institute for Free Speech, a nonpartisan First Amendment advocacy group that defends political speech rights.

Related

• Eugene Volokh, "," The Volokh Conspiracy (Jan. 3)

Fallow & Corn-Revere: 'First Amendment Salon: On Censorship & the Ghost of Anthony Comstock'

View video

→ interviewing

Related

• Clay Calvert, ",” Journalism & Mass Communication Quarterly (2021)

Forthcoming book: Engelman & Shenkman on the history of Espionage Act

• Ralph Engelman & Carey Shenkman, "" (University of Illinois Press, Aug. 2022)

"Carey Shenkman and Ralph Engelman's study of the history, law, and implications of these recent abuses of the Espionage Act is needed urgently if we are to remain truly a democratic republic."— Daniel Ellsberg

A Century of Repression offers an unprecedented and panoramic history of the use of the Espionage Act of 1917 as the most important yet least understood law threatening freedom of the press in modern American history. It details government use of the Act to control information about U.S. military and foreign policy during the two World Wars, the Cold War, and the War on Terror. The Act has provided cover for the settling of political scores, illegal break-ins, and prosecutorial misconduct. The cases of Eugene Debs, John S. Service, Daniel Ellsberg, Chelsea Manning, Edward Snowden, and Julian Assange, among others, reveal the threat posed to whistleblowers, government critics, and journalists alike.

The treatment of the Act’s trajectory also offers new perspectives on American liberalism as well as the evolution of the FBI and the civil liberties movement in the twentieth and twenty-first centuries.

→ is a senior professor of journalism and communication studies at Long Island University, Brooklyn, and faculty coordinator of the George Polk Awards. He is the author of "Friendlyvision: Fred Friendly and the Rise and Fall of Television Journalism."

→  is a constitutional lawyer and litigator focusing on freedom of expression and transparency. He serves on the panel of experts of Columbia University’s Global Freedom of Expression Program.

Forthcoming book on Hugh Hefner's free speech & free press legacy

• Stuart N. Brotman, "" (University of Missouri Press, April 25, 2022)

Hugh M. Hefner’s legacy of enduring free speech and free press values is embodied in the Hugh M. Hefner First Amendment Awards, established in 1979, which honor leading First Amendment scholars and advocates. Hefner also had a lifelong interest in film censorship issues and supported teaching about them at the University of Southern California for 20 years. His deep commitment to these values was confirmed when the author was granted unrestricted access to over 3,000 personal scrapbooks, which Hefner had kept in order to track free speech and press issues during his lifetime.

The format of the book is an homage to the in-depth conversational interviews Hefner pioneered as the editor and publisher of Playboy magazine. Stuart Brotman conducted in-person conversations with eight persons who in their lifetimes have come to represent a “greatest generation” of free speech and free press scholars and advocates.

Dvoskin on online speech governance

• Brenda Dvoskin, "," Villanova Law Review (forthcoming 2022)

Giant social media companies wield oversized power over what gets communicated online. Yet, it remains unclear how to hold that power accountable to the public. In democracies, governments are limited in how much they can regulate speech directly, creating an obstacle for efforts to make online speech governance more democratic. Corporations are touting civil society consultations to try to regain trust in how they write their rules. Scholars and lawmakers, too, are looking to mandate increased reliance on civil society participation as a means to democratize private governance without involving governmental bodies.

These proposals often make two assumptions. One is that civil society participation operates outside the law, within the space that the First Amendment and Section 230 of the Communication Decency Act have carved out from the reach of courts and legislatures. The other is that if diverse civil society actors are involved, they will bring diverse viewpoints to bear in the shaping of policy outcomes.

Drawing on over 60 original interviews with civil society actors and company representatives, this Article shows that both prevailing assumptions about civil society participation in content moderation are wrong. First, the governance of online speech has been anything but lawless. Law has played a major role in constituting companies’ and civil society’s interests. Not only have advocates gravitated towards the legal frameworks that advance their interests, but available legal texts have constrained and expanded their imagination to formulate normative demands.

Second, civil society participation has had distributive effects among advocacy groups. Those who favor more restrictive online speech rules have been more effective advocates in the last few years than those who believe that restrictions on speech undermine freedom of expression. I cast doubt on the claim that this trend responds to a shift in social preferences over how to regulate freedom of expression. My analysis suggests instead that advocates interested in advancing more aggressive speech regulations have been more successful than their counterparts at mobilizing legal discourses and solidifying a lobbying agenda. The Article concludes with proposals to adjust and strengthen civil society participation as a democratizing tool.

Worlds and Niehoff on race and the First Amendment

• Solomon Furious Worlds & Len Niehoff, "," ABA Journal (Jan. 22, 2021)

This article provides summaries of law review articles and books that consider the complex relationship between racial justice and free speech. It seeks to assist law students, legal scholars, judges, and practitioners to think more deeply about the intersection between these critically important values. It describes scholarship that views these values as complementary, but also scholarship that views them as conflicting.

This article discusses a few pieces that reflect the traditional view—that the First Amendment has historically provided and continues to provide an essential tool in the pursuit of civil rights and in the advancement and empowerment of racial minorities. But it places much greater emphasis on recent works that take a substantially more critical view of First Amendment doctrine. This more recent scholarship argues that First Amendment doctrine rests on faulty assumptions about how the world actually works, that it amplifies the voices of those in power, and that racists have weaponized that doctrine against people of color in harmful and horrific ways.

We intentionally chose this balance. We worked from the assumption that the readers of this publication would already know (and probably subscribe to) the traditional view. We want to introduce new perspectives that challenge the orthodox paradigm and urge readers to ask themselves whether they really believe that First Amendment doctrine has gotten things right. It would be profoundly ironic if First Amendment lawyers, of all people, were unwilling to participate in some pointed and provocative competition in the marketplace of ideas.

These works certainly break no new ground insofar as they explore the connection between racial justice and free speech. As early as 1965, Harry Kalven wrote in his book The Negro and the First Amendment about how the civil rights movement had shaped First Amendment doctrine and how expressive liberty had promoted racial justice. But today’s scholarship explores fresh territory nevertheless.

In their 2017 book Free Speech on Campus, Erwin Chemerinsky and Howard Gilman noted that polls of college-age students showed that they no longer have the reverence for the First Amendment that prior generations embraced. The authors offered several explanations for this trend. Among them was that these students had not witnessed the important role that free expression played during the civil rights movement of the 1960s. Three years later, this once-sound assessment is almost certainly wrong.

In 2020, the slayings of George Floyd, Breonna Taylor, and Tony McDade shifted the ground underneath many of us. Their killings prompted massive demonstrations in the United States and around the world. Many people were already engaged in anti-racist movements sparked by prior killings of unarmed Black people. Suddenly, however, the role of protests in the struggle for racial justice had immediate relevance again and was no longer the stuff of history books, documentaries, and the dusty memories of Baby Boomers.

At the same time, the murders of Floyd, Taylor, and McDade called foundational questions about our social systems and structures. Over the summer following their deaths, cities saw months of continuous protests—some even had land seized by citizens frustrated by their government’s inaction. Law students across the country demanded that their schools facilitate more robust discussion of the ways in which our laws and legal system perpetuate white privilege and oppress people of color. In the view of these students, every component of our legal architecture must answer to this charge, and the First Amendment does not get a pass.

This article is divided into two parts. The first part, written primarily by Solomon Furious Worlds, looks at timely law review articles that have considered these issues. The second part, written primarily by Len Niehoff, looks at recent books that have done so. We end this unique project with a brief two-part personal afterword.

Forthcoming scholarly article on campus speech

• John Hasnas, "," Georgetown Journal of Law & Public Policy (forthcoming 2022)

New article on First Amendment and blasphemy 

• Tyler Dobbs, "," Harvard Law Review (2021)

This Note argues that none of the constitutional clauses currently thought to make anti-blasphemy laws unconstitutional — Free Exercise, Free Speech, Establishment — originally prohibited blasphemy prosecutions. In other words, the original public meaning of the First Amendment, whether in 1791 or in 1868, allowed for criminalizing blasphemy.

Part I shows that Americans from the Founding through Reconstruction understood free religious exercise as permitting the proscription of blasphemy. Part II explains how the public conceived of free speech in a way that excluded blasphemy from constitutional protection. And Part III illustrates that constitutional commitment to nonestablishment posed no barrier to punishing blasphemy.

Although an abundance of evidence — constitutions and statutes, trial and appellate cases, scholarly and popular commentary — indicates that anti-blasphemy laws are constitutional under the First Amendment’s original meaning, originalist writers tend to ignore this issue. Originalists should engage with this history: they should either explain why countervailing concerns overcome the original constitutional meaning or adopt a view of First Amendment jurisprudence that aligns with the original understanding.

More in the news

• Ben Fox, "," Associated Press (Jan. 4)
• Dara Kam, "," Yahoo News (Jan. 4)
• Eugene Volokh, "," The Volokh Conspiracy (Jan. 3)
• "," Associated Press (Dec. 29)
• "," First Amendment Watch (Dec. 17)
• Sabrina Conza, "Zionist and civil liberties groups join FIREin defending expressive rights of Duke FIRESupporting Israel chapter," FIRE(Dec. 17)
• "," First Amendment Watch (Dec. 15)
• Harry A. Jessell, "," TVNewsCheck (Dec. 8)

2021-2022 SCOTUS term: Free expression & related cases

Review granted

Pending petitions

Petition withdrawn 

• (petition for rehearing)

Review denied

• (First Amendment and qualified immunity)
• (First Amendment and qualified immunity)

Last FAN

• FAN 322: "Permissible political influence or impermissible bribery? Cert. petition in Roberson v. U.S. raises that question”