Category Archives: Free Speech

On Hamilton & Griffin on Rights: “The Anticlimax of Elonis v. United States”

I have a belated post about Elonis v. United States on Hamilton & Griffin on Rights. I’ve seldom felt so little enthusiasm for writing about a Supreme Court decision. The Court refused to decide any of the hard questions and left open the question of whether a recklessness standard will suffice — a question sure to create chaos in the lower courts, not to mention in the lives of those charged with crimes and those targeted by threatening speech.

This is one of the least helpful Supreme Court decisions I’ve seen in a long time. Why didn’t the Court just say whether either the statute or the First Amendment allows a showing of recklessness for conviction? Or not? Both positions are reasonable, and I think almost everyone would be fine with either outcome. (I would.)

Anita Bernstein: “Abuse and Harassment Diminish Free Speech”

Outstanding piece by Anita Bernstein (Brooklyn) in the Pace Law Review about something that so-called free speech absolutists too often forget: that abuse and harassment actually silence speech, and that if we care about speech we ought to care about the speech that abuse silences.

The article can be downloaded here, and here is the abstract:

Owen Fiss focused on “the robustness of public debate” to conclude on his last page: “The autonomy protected by the First Amendment and rightly enjoyed by individuals and the press is not an end in itself, as it might be in some moral code, but is rather a means to further the democratic values underlying the Bill of Rights.”

This article embraces the same values but more conservatively. Whereas Fiss defended state-sponsored coercion, I leave the government mostly outside the descriptions and arguments presented here. Scholars have sought to apply the law—of crimes, torts, intellectual property, and statutory allotments and immunities—as remedies for online abuse and harassment. A few states have modified their penal codes in this direction. I applaud many of these innovations but do not rely on them. They can be rejected for purposes of the thesis that I sketch in these pages.

Like writings that come before it, this article challenges the chestnut that freedom comes at the expense of another progressive good. Equality, to some writers; antisubordination, to others; “civil rights” also serves. In contending that free speech advances and supports these progressive goals, I step into big footprints—not just those of Owen Fiss but before him, inter alia, Harry Kalven, who argued when the sixties revolution was young that white speakers ought to thank “the Negro” and his civil rights struggle for enlargement of their First Amendment rights delivered to them by the Supreme Court. But my connection to free speech is more literal than what these great precedent-writings teach. Abuse and harassment pull valuable words out of the marketplace of ideas, I argue. They lessen the discourse.

Also following in the path of other writings, this article notes a few higher stakes present in online speech as contrasted with its lower-tech antecedents. Electronic discourse adds anonymity, amplification, and permanence; within this medium, these conditions reinforce each other. Think of a rock thick and opaque enough to hide behind, durable enough to intimidate, heavy enough to inflict a real blow.

Don’t stop there. Think also of a rock’s majesty and beauty. Opacity, durability, and weight are strengths as well as dangers. In this article, I advocate measures against abuse and harassment because (not “even though”) I cherish free speech.

Project for a future post, or perhaps an article: why the term “free speech absolutist” is incoherent, and misleading, and also just kind of dumb. I’m with Martha Nussbaum that no one is really a free speech absolutist. So at a minimum we need a more accurate description of those who call themselves free speech absolutists.

Justin Pidot on Wyoming’s Law Against Data Collection

My colleague Justin Pidot has a piece in Slate about a new law passed in Wyoming with troubling First Amendment implications, as well as many other constitutional problems. The law criminalizes collecting data on both public and private lands and providing it to the government. An excerpt from the piece: Continue reading

Street Harassment Exhaustion

I was harassed three times in a four block walk to get coffee this morning. For those who think street harassment is no big deal, here’s a transcript of the second-most offensive incident:

“Hey beautiful. Slow down. How about a smile? No smile? Why so unfriendly? Okay, you stuck up bitch. [now yelling at my back] STUCK UP CUNT.”

A few things. First, I don’t actually have the heart to memorialize the most offensive incident on my blog. I will say that it was disturbing enough that I took a different (longer) route on the return trip. Second, notice how quickly the perpetrator of the second most offensive incident went from “beautiful” to “stuck up cunt.” So the remarks aren’t really about me and my personal characteristics, per se, they’re about a guy feeling entitled to attention from a woman he’s never met and getting angry when that attention isn’t given.

And finally, of course this is distracting. I have a massive amount of work to do this morning and when I sat down to do it I could not concentrate right away. I would not make the claim that men are never harassed on the street — of course some are, particularly those who are gender-non-conforming or who have a visible disability or some other distinguishing characteristic. But empirical evidence shows that women get harassed a lot more often. Dealing with street harassment is frustrating and exhausting. It’s a tax on women’s participation in the workforce and in society more broadly.

If we actually read the First Amendment through the  lens of the Fourteenth Amendment in any kind of meaningful way (which, actually, we should, because of pretty basic canons of interpretation like “last in time” and tricky math concepts like 14 > 1) we’d recognize that inequality-reinforcing speech deserves regulation and punishment. Of course, we don’t do that in America. We prioritize the speech of some misogynist loser yelling at a woman on her way to the office over whatever that woman might say once she gets there. Or, perhaps more accurately, what she might say if she wasn’t distracted and exhausted from the daily grind of street harassment. There are speech interests on both sides of the street harassment debate, but First Amendment absolutists are hellbent on only seeing one of them.

Denver Post Op-Ed Opposing New Ag-Gag Bill in Colorado

My University of Denver colleague Justin Marceau and I wrote a column for the Denver Post opposing the new “ag-gag” bill proposed in Colorado. It’s a bill to silence whistleblowers masquerading as a bill to protect animals. Several other members of the constitutional law faculty at Denver also signed on to our piece, including Alan Chen, Laura Rovner, Justin Pidot, Ian Farrell, and Rebecca Aviel.

Colorado Baker Refuses to Make Anti-Gay Cake

I spoke with and 9News Denver about why a baker at Azucar bakery who was asked to make a cake featuring anti-gay commentary is entitled to refuse to make such a cake, and why this matter is distinguishable from the recent Masterpiece Cakeshop dispute in which the Colorado Civil Rights Commission found that the could not refuse to serve a same-sex couple.

I see a number of differences between the two cases. Most importantly, the baker at Azucar didn’t actually refuse to serve anyone. She told the prospective customer that she was happy to make the Bible-shaped cake he requested, and to sell him a frosting kit so that he could decorate the cake with the sentiments he requested, but that she would not do the decorating herself. This makes clear that she was not unwilling to serve him because of his religion. In fact, Azucar has a long history of serving Christian customers and making explicitly Christian-identified cakes, and the owner herself is Christian. But if the owner was forced to decorate the cake with a message in she opposed, it would actually violate her own free speech rights. The U.S. Supreme Court has a long tradition of striking down attempts by the government to compel speech, and this would be a clear example of such compulsion. Continue reading

The Reappropriate Podcast Episode 12: Free Speech and Online Threats

I really enjoyed my guest stint on the Reappropriate video podcast, hosted by Jenn of You can view the podcast on YouTube to hear my thoughts on the Supreme Court, judges and technology, free speech, online threats, subjective intent, the reasonable person, rap music, and much more.



Argument Recap: Elonis v. United States

The following post originally appeared on the blog “Hamilton and Griffin on Rights.” The owners of the blog have kindly allowed me to cross-post it here.

The year 2014 has raised many issues relating to offensive, harassing, and threatening Internet speech. In January, columnist Amanda Hess wrote a piece called “Why Women Aren’t Welcome on the Internet,” sparking a wide-ranging and still-ongoing conversation about online speech. The debate over Internet speech has extended to other areas. New York’s highest court considered and ultimately rejected a state cyberbullying statute as overbroad, in violation of the First Amendment. More than twenty states passed or are considering statutes criminalizing revenge porn. Meanwhile, intimate photos of celebrities were stolen, downloaded, and shared over and over. GamerGate led to intense online harassment of women involved in the video game industry, with serious consequences in the offline world—after receiving graphic anonymous threats, pop culture commentator Anita Sarkeesian cancelled a talk, while video game developer Brianna Wu had to leave her home for several days.

It’s fitting, then, that the Supreme Court should hear argument today in Elonis v United States, a case involving involving arguably threatening posts on Facebook. The Supreme Court has held that “true threats” may be criminalized consistent with the First Amendment, although it has not defined the term “true threats” with any precision. The issue Elonis presents is whether a person can be convicted of making true threats if a reasonable person would have perceived the statements as threatening, or whether, as Elonis argues, the government must also prove that the speaker subjectively intended to make a threat. Continue reading

Garden: “Meta Rights”

When are people not only guaranteed the protection of a particular constitutional right, but also notice of the existence of that right and/or help availing themselves of that constitutional right? Charlotte Garden (U Seattle; Litigation Director of Korematsu Center for Law & Equality) takes up this question in a great new piece, “Meta Rights,” just out in the Fordham Law Review. An excerpt from the abstract: Continue reading

Lakier: The Invention of Low Value Speech

I just finished reading this fascinating paper by Genevieve Lakier (U. Chicago Bigelow), which reveals that the concept of low-value speech (which receives only weak First Amendment protection) and high-value speech (which receives full First Amendment protection) is a historically-created myth. The reality is that, at the founding and through the nineteenth century, both categories were viewed as entitled to some protection and subject to some regulation. Continue reading