Archive | Freedom of Speech

They Judged the Cartoons, but Did Not Read the Book

This morning NPR ran a story on Yale University’s decision to force the Yale University Press to remove all depictions of the prophet Muhammed, including several controversial Danish cartoons, from Jytte Klausen’s book The Cartoons that Shook the World.  As had already been reported, the University’s decision was based, in part, on various outside experts on national security, terrorism, and Islam who beleived republication of the cartoons could spark further violence.  What I had not previously known, but NPR reported today, is that the experts consulted by Yale University were not asked to read the book, only to comment on the cartoons.

just a few weeks before publication, Yale University, which owns the Yale Press, mounted a second review. The university asked some 20 scholars, counterterrorism officials and national security experts to asses the risk of more violence if copies of the cartoons were included in the book.”It was fairly overwhelming that the people who knew the most about this kind of situation said ‘Don’t do it,’ that this was likely to provoke violence,” Yale Press director John Donatich said. . . .

The university told Yale Press to eliminate the cartoons from the book, along with all other images of Muhammad. And Klausen was told she’d have to sign a nondisclosure agreement if she wanted to read the experts’ comments. She declined to do so. But she says she was even more dismayed to learn that the panel had not read her book.

“My first reaction was that it was stunningly similar to what happened during the conflict itself,” said Klausen. “I disagreed with the experts’ advice. I felt that had the experts read my book, they would not have given the advice they produced.”

So we are clear: A prominent University censored content from a book based [...]

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From the Volokh Archives: Touchy Canadians

Originally posted Dec. 2003. Just came across it, and though it was worth reposting in light of recent controversies over hate speech prosecutions in Canada:

Some Canadians are rather touchy about criticism from Americans regarding freedom of speech in Canada. The irony of this touchiness is that the Canadian Supreme Court has based its free-speech jurisprudence, at least in the context of antidiscrimination concerns, in large part on the theories of left-wing American academics such as University of Michigan professor Catharine MacKinnon. The Canadian left has a penchant for importing left-wing ideas from the U.S. and elsewhere, adopting them as public policy, and then accusing anyone who objects of being “anti-Canadian” because these policies somehow define Canadian identity. I like Canada a lot myself, but I should hope that there is more to Canadian identity than national health insurance, gun control, and aggressive hate speech laws. [...]

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Supreme Court Blocks Washington State Officials From Disclosing Names of Anti-Same-Sex-Marriage Petition Signers,

with one Justice dissenting. So reports SCOTUSblog; I’ll post more when I learn more.

My post about Justice Kennedy’s similar action yesterday is here. For now, I continue to think that the Ninth Circuit’s decision overturning the district court’s preliminary injunction against release of the signatories’ names — and thus allowing the state to release the names — is correct, and I think the Supreme Court won’t even agree to reconsider the decision on the merits. But it makes sense that the Court would temporarily stay the opinion below, at least pending the state’s filing its arguments and possibly pending the Court’s considering the petition for certiorari (which in turn won’t come until after the Ninth Circuit announces its reasoning): Once the names are released, the attempt to enjoin the release will become moot, so it makes sense to take some time now to consider the matter on the merits.

Thanks to Rick Hasen (Election Law Blog) for the pointer.

UPDATE: Justice Stevens was the one dissenter, but he didn’t issue a written opinion explaining his vote (and neither did the majority). The order says,

The September 10, 2009 order of the United States District Court for the Western District of Washington, case No. C09-5456BHS, granting the motion for preliminary injunction shall remain in effect pending the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.

That makes sense, for the reasons I mentioned above — in order for the Court to even be able to consider the petition for certiorari, the names [...]

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Justice Kennedy Temporarily Stays Release of Names of People Who Signed the Washington Anti-Same-Sex Marriage Initiative

I can’t find the order online yet, but the AP so reports:

Kennedy’s ruling today temporarily blocks a federal appeals court ruling last week that ordered the release of the names. Kennedy said his order would remain in effect while he considers a request by a pro-marriage group that asked him to reverse the appeals court ruling.

The case involves Referendum 71, a ballot initiative that asks Washington voters to approve or reject the state’s so-called “everything but marriage” law, which grants registered domestic partners the same legal rights as married heterosexuals.

As I mentioned early this morning, I think that the Ninth Circuit’s decision overturning the district court’s preliminary injunction — and thus allowing the state to release the names of the signatories — is correct, and I think the Supreme Court won’t even agree to reconsider the decision on the merits. But it makes sense that Justice Kennedy would temporarily stay the opinion below, at least pending the state’s filing its arguments and possibly pending the Court’s considering the petition for certiorari (which in turn won’t come until after the Ninth Circuit announces its reasoning): Once the names are released, the attempt to enjoin the release will become moot, so it makes sense to take some time now to consider the matter on the merits.

Thanks to Richard Winger’s Ballot Access News blog for the pointer. [...]

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Ninth Circuit Overturns Preliminary Injunction Restraining Release of Names of Anti-Domestic-Partnership Petition Signers in Washington State:

The Ninth Circuit order states that “An opinion setting forth the reasons for the court’s reversal of the Preliminary Injunction Order shall be issued expeditiously and in due course,” so I can’t speak directly to the Ninth Circuit’s reasoning. But for reasons I mentioned when the release of the signers’ names was first enjoined, I think the injunction was mistaken: There is no First Amendment right to block the state from releasing the names:

I don’t think that secrecy of signatures is constitutionally mandated by the First Amendment, just as I don’t think that a secret ballot is constitutionally mandated by the First Amendment. True, the anonymous speech precedents bar the government from requiring that people sign their political statements. But political statements are just speech. Signing an initiative, referendum, or recall petition is a legally operative act — it helps achieve a particular result not just because of its persuasiveness, but because it is given legal effect by the state election law.

The government is surely entitled to require that people who want their signature to have such a legally operative effect must disclose their identities to the government. And I see no reason why the government might not then disclose those identities to the public, who after all are in charge of the government. To do that is to inform the people about who is taking legally operative steps to change the state’s laws (or the state’s elected representatives, in the case of a recall).

Informing the public about this might well deter such legally operative acts, though of course leaving people free simply to engage in persuasive speech, which can indeed generally be done anonymously rather than in legally significant signing of petitions. But I don’t think that deterrence is unconstitutional, especially since the legal significance

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“Pittsburgh-Area College Allows Student to Advocate for Concealed Carry on Campus, Abandons Repressive Policy”:

So reports the Foundation for Individual Rights in Education, discussing the case we blogged about in May. Here are some excerpts from FIRE’s summary; there are more details, and pointers to the relevant documents, here:

[A] student threatened with punishment for attempting to form a gun-rights group at Community College of Allegheny County (CCAC) is finally allowed to distribute pamphlets about the group on campus. The college has also rescinded its unconstitutional policy demanding “prior written approval” for “personal contact with individuals or groups related to non-sponsored college material or events.” … Christine Brashier, who wanted to form a chapter of Students for Concealed Carry on Campus (SCCC), was told that her pamphlets were unacceptable “solicitation” and that any further efforts would be considered “academic misconduct” ….

After FIRE took Brashier’s case public in May, generating national news coverage, CCAC attorney Mike Adams finally replied to FIRE. Adams assured FIRE that Brashier did not face any disciplinary action and that she did have the right to try to form a SCCC group, but he reported that CCAC would not budge from its unconstitutional policy of prior review of materials….

But, FIRE reports, the policy has finally been changed; “Michael J. Rinaldi, a FIRE Legal Network attorney in the Commercial Litigation Practice Group at Drinker Biddle & Reath LLP in Philadelphia, … successfully pressed CCAC to allow not only Brashier but all CCAC students to exercise their fundamental rights on campus.” Good work.

Disclosure: I will be a keynote speaker at FIRE’s Tenth Anniversary event this month, but my enthusiasm for FIRE’s work of course long preceded that invitation. [...]

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Globally Managing American Speech?

I read with great interest Eugene’s post below on the Obama administration, free speech, and human rights. As it happens, I’m trying to finish up a manuscript on the UN and “values” at this very moment, and so alas don’t have time to comment more than a few paragraphs about this. Here are a couple of observations that I don’t propose to defend here; I throw them out unsupported, and I’ll try to go back and add something else later.  Many of them are about the intellectual community of international law, which I take as relevant here in part because Eugene is trying to sort out what various international law experts say is or is not the import of the free speech drafts in the UN Human Rights Council; I think it matters to have a sense, even if it’s just my personal and idiosyncratic one, of the baseline of international law experts.  (I don’t promise that I have re-read this closely despite some aggressive characterizations here; I’m simply out of time.)

This whole process of “engagement” on an issue like free speech by the US at the HRC or anywhere else in the international system is a mistake from the beginning.  Among the many reasons is, first, that a process like that of the HRC is designed to lead to consensus, which in practice will mean some kind of compromise. But the whole point of freedom of speech under the First Amendment is that it is not open to compromise, and certainly not in the sense of elaborating standards from the outside for a sovereign people who govern themselves under a constitution.

Even to “engage” in the process, as a consequence, leads to tears no matter where it goes.  A compromise on the issue will inevitably mean that the [...]

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Is the Obama Administration Supporting Calls to Outlaw Supposed Hate Speech?

That’s what it looks like, with this Joint U.S./Egypt draft U.N. Human Rights Council resolution (dated Sept. 2009). The resolution generally seems to be an attempt to urge more protection for free speech throughout the world, and some praise it for that; moreover, it lacks the exception for “defamation of religion” that some Muslim countries have urged. It may therefore be a step forward for Egypt, and an attempt to urge a step forward for some other countries.

But I’m worried that it might be a step backward for our own constitutional rights, because of what seems to be the U.S. endorsement of the suppression of “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence” and possibly of “negative stereotyping of religions and racial groups.” I say “seems to be” because some of the language in the resolution is pretty slippery, and of course it’s always possible that I’m misunderstanding it. (It’s also possible that past U.S. Administrations have taken similar views before, which I would condemn as well.) Here, though, is my thinking (all emphases added by me):

1. Paragraph 4 of the draft resolution “expresses … concern that incidents of racial and religious intolerance, discrimination and related violence, as well as of negative stereotyping of religions and racial groups continue to rise around the world, and condemns, in this context, any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, and urges States to take effective measures, consistent with their international human rights obligations, to address and combat such incidents.”

2. Paragraph 6 likewise “[s]tresses that condemning and addressing, in accordance with international human rights obligations, including those regarding equal protection of the law, any advocacy of national, racial or religious hatred [...]

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Pro Bono Free Speech Case Headed to the Nebraska Supreme Court:

I’m delighted to say that the Nebraska Supreme Court has just agreed to review State v. Drahota (Neb. Ct. App. June 16), a case that I am litigating pro bono. We don’t have an oral argument date set yet, but it will probably be during the first week of November.  Here is my argument, from the 10-page petition for further review, on why the Nebraska Supreme Court should agree to hear the case; the argument on the merits — about why the Nebraska Supreme Court should reverse the decision below — will be quite similar, though of course not identical. Thanks again to Mayer Brown LLP (the firm with which I’m an academic affiliate) for providing support through their pro bono program; to Gene Summerlin of Ogborn, Summerlin & Ogborn for being pro bono local counsel; and, for their help as amici, to my coblogger David Post and the law professors who were willing to sign on to his amicus brief, to the Foundation for Individual Rights in Education, and to the ACLU of Nebraska.


In early 2006, Appellant Darren J. Drahota was a University of Nebraska student who had been in William Avery’s political science class. Avery was still a University professor, but had announced that he was running for the Nebraska Legislature.

Drahota e-mailed Avery on Jan. 27, 2006, which led to an exchange of 18 e-mails over two weeks. At least one of Drahota’s e-mails used epithets and personal insults of Avery, alongside political commentary. One of Avery’s e-mails used an epithet and an insult of Drahota as well, saying “I am tired of this shit” and saying Drahota “and the ‘Chicken Hawks’ in the Bush Administration” didn’t “have the guts” to join the military. At the end of the exchange, Avery e-mailed Drahota saying, “Please [...]

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Justice Brandeis

The New York Times has published two reviews of Mel Urofsky’s new biography of Louis Brandeis.  I haven’t seen the book yet, but Mel had sent me the page proofs of several chapters earlier this year, and they were great.

Whiles the parts of the book I read struck me as admiring but with appropriate cautionary notes, Brandeis hagiography otherwise appears alive and well.  In his review of the book,  Alan Dershowitz writes that “the First Amendment’s right of free expression, the Fourth Amendment’s right to privacy and the due process clause’s focus on personal liberty (rather than property) all owe their current vitality to the creative genius of Justice Brandeis.”

With some reservations (Brandeis’s view of the First Amendment was much more utilitarian, in the sense of supporting free speech because he thought it would lead to further Progressive reform, than modern, more libertarian-oriented doctrine), I’ll concede the First Amendment point.

But Brandeis was no great hero of the Fourth Amendment. Brandeis, of course, authored a famous dissent in the 5-4 decision in Olmstead v.  United States,  holding that the fourth amendment prohibits warrantless wiretapping.  But Brandeis was not a consistent advocate of a broad Fourth Amendment.  For example, in Carroll v. United States, 267 U.S. 132 (1925), the Supreme Court upheld a warrantless search of a car on suspicion of transporting alcohol.  The majority, including Justice Brandeis, concluded that automobiles are distinct from private dwellings for Fourth Amendment purposes.  Justice McReynolds, joined by Justice Sutherland, dissented.  More generally, the most consistent advocates of Fourth Amendment protections against the excesses of Prohibition enforcement came from several of the “conservative” Justices, especially Justice Pierce Butler, with Brandeis consistently voting in favor of the government.

When the liberal Warren Court chose to strictly enforce the Fourth Amendment, it naturally [...]

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