Monthly Archives: June 2017

If youre a lawyer arguing against free speech at the Supreme Court, be prepared to lose. Today the Court affirmed once again the Constitutions strong protections against governmental viewpoint discrimination, even when the viewpoint discrimination is directed against offensive speech. In Matal v. Tam, the Court considered the U.S. Patent and Trademark Offices refusalto register a trademark for a band called The Slants on the grounds that the name violated provisions of the Lanham Act that prohibited registering trademarks that disparage . . . or bring into contemp[t] or disrepute any persons, living or dead.

Given existing First Amendment jurisprudence, there would have been a constitutional earthquake if SCOTUShadnt ruled for Tam. The Court has long held that the Constitution protects all but the narrowest categories of speech. Yet timeand again, governments (including colleges)have tried to regulate offensive speech. Time and again, SCOTUShas defended free expression. Today was no exception.Writing for a unanimous Court, Justice Alito noted that the Patent and Trademark Office was essentially arguing that the Government has an interest in preventing speech expressing ideas that offend. His response was decisive:

[A]s we have explained, that idea strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought that we hate.

Quick, someone alert the snowflakes shouting down speeches on campus or rushing stages in New York. There is no constitutional exception for so-called hate speech. Indeed, governments are under an obligation to protect controversial expression. Every justice agrees.

The ruling is worth celebrating, but when law and culture diverge, culture tends to win. The law protects free speech as strongly as it ever has. The culture, however, is growing increasingly intolerant subjecting dissenters to shout-downs, reprisals, boycotts, shame campaigns, and disruptions. Some of this conductis legal (boycotts and public shaming), some isnt (shout-downs, riots, and disruptions), but all of it adds up to a society that increasingly views free speech as a dangerous threat, and not asone ofour constitutional republics most vital assets. Liberty is winning the important judicial battles, but it may well lose the all-important cultural war.

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Free Speech Wins (Again) at the Supreme Court - National Review

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Trumpkins Cry 'Free Speech' And Stab It in The Back Daily Beast Four Donald Trump supporters who claim to be hardcore free speech fundamentalists revealed themselves as opportunistic hypocrites when they repeatedly disrupted two New York City Shakespeare in the Park performances of Julius Caesar (which features ... Free-Speech Loving Hannity Adores Attacks On Shakespeare's Julius Caesar PlayNewsHounds (blog) all 109 news articles »

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Trumpkins Cry 'Free Speech' And Stab It in The Back - Daily Beast

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Fist of Etiquette|6.19.17 @ 4:30PM|#

The Supreme Court also agreed to hear a case on gerrymandering in Wisconsin.

Gerry's not gonna like this. Neither is the GOP, I assume.

|6.19.17 @ 4:34PM|#

JFree|6.19.17 @ 5:31PM|#

If the SC made the right decision, both parties would be the losers. Since they most likely won't make that decision, only the American people will be the losers.

Mithrandir|6.19.17 @ 4:30PM|#

Two important Supreme Court decisions came down today upholding citizens' free speech rights. Good stuff from the USSC today.

Fist of Etiquette|6.19.17 @ 4:31PM|#

...Russia is threatening to target aircraft flown by the U.S. and its allies over Syria.

Hey! The U.S. has dibs on No Fly.

Mithrandir|6.19.17 @ 4:32PM|#

Who's fucking idea were no-fly zones?

Citizen X - #6|6.19.17 @ 4:31PM|#

Two important Supreme Court decisions came down today upholding citizens' free speech rights.

Still bracing myself for the massive nutslap the universe is surely preparing in order that balance may be restored.

Rich|6.19.17 @ 4:41PM|#

Something like "hate" language is legally a separate category from "offensive" language?

Chipper Morning, Now #1|6.19.17 @ 4:43PM|#

Like beaver alarming mate of danger with loud slap, universe smack Citizen X scrotum with police abuse story.

Half-Virtue, Half-Vice|6.19.17 @ 4:43PM|#

What is the Trumpocalypse, chopped liver?

Citizen X - #6|6.19.17 @ 4:46PM|#

That's just some trifling shit that way too many people won't stop whining about.

Crusty Juggler - Elite|6.19.17 @ 4:32PM|#

Lena Dunham's dad taught her how to use a tampon

Citizen X - #6|6.19.17 @ 4:35PM|#

What a dreadful anecdote.

|6.19.17 @ 4:36PM|#

She's all dreary banality this chick.

Half-Virtue, Half-Vice|6.19.17 @ 4:38PM|#

I should have Lena Dunham sign my trash can.

BearOdinson|6.19.17 @ 4:41PM|#

Crusty, you have finally gone too far!!

This cannot stand, man. This aggression cannot stand!

Chipper Morning, Now #1|6.19.17 @ 4:47PM|#

Crusty always offers his penis as a tampon.

Chipper Morning, Now #1|6.19.17 @ 4:46PM|#

Still better than dreaming of being abducted by aliens and then waking up to a blood-soaked bed to the arrival of your menarche. This happened to someone I know.

The Last American Hero|6.19.17 @ 6:31PM|#

The anesthesia used by the Greys often causes people to assume those were dreams.

Fist of Etiquette|6.19.17 @ 4:47PM|#

If this were true, we'd have known about it long before now. Her first period? First anecdote, for sure. Sounds like instead she finally watched Armageddon.

Juice|6.19.17 @ 4:49PM|#

Yeah, she had NO IDEA what was happening.

BearOdinson|6.19.17 @ 4:52PM|#

Every fucking day I thank Freyr (the god of fertility) that I only have sons and no daughters!!

Fucking "misty-eyed"??

More like "Here is a piece of my shirt. Stuff it in there until we get home!"

|6.19.17 @ 5:47PM|#

More like "Here is a piece of my shirt. Stuff it in there until we get home!"

Fuck that! Shirts cost money. Unless you're going to bleed to death, rub dirt on it until it stops bleeding.

BearOdinson|6.19.17 @ 6:03PM|#

Do you have a newsletter I could subscribe to?

Unlabelable MJGreen|6.19.17 @ 5:05PM|#

Diane Reynolds (Paul.)|6.19.17 @ 5:12PM|#

Everything Lena believes or has experienced is a social construct.

Meh.|6.19.17 @ 5:17PM|#

So her dad taught her how to use a tampon, she molested her sister... I hate to ask what kind of a messed-up relationship she had with her mom, but I'm sure she'll tell us all soon!

|6.19.17 @ 5:40PM|#

Well, her dad specializes in crude "art" cartoons of naked women, mostly with really prominent hairy vaginas as the focal point.

Her mom could be totally normal, in other words, and all would still be explained.

Half-Virtue, Half-Vice|6.19.17 @ 4:32PM|#

After the United States downed a Syrian warplane, Russia is threatening to target aircraft flown by the U.S. and its allies over Syria.

Wouldn't it just be easier for Putin to call Trump's cell?

WakaWaka|6.19.17 @ 4:32PM|#

"Well, we have all those leaks, though"

Which have mostly blown-up spectacularly

Half-Virtue, Half-Vice|6.19.17 @ 4:33PM|#

A driver crashed into a police vehicle and died in Paris in what authorities believe was an attempted terrorist attack. Nobody else was injured.

No virgins for you!

BearOdinson|6.19.17 @ 4:42PM|#

If I get to Valhalla, I am going to laugh my ass off when I see that all those Islamist terrorsists who thought they were getting 72 virgins are nothing but target practice for the Einherjar!

PurityDiluting|6.19.17 @ 6:47PM|#

Or as Robin Williams once explained, it's a typo ... 72 Virginians are waiting to pummel the terrorists

Chipper Morning, Now #1|6.19.17 @ 4:48PM|#

Haha, imagine if the Soup Nazi is the gatekeeper in Muslim heaven.

Rich|6.19.17 @ 4:33PM|#

The court ruled that the federal government cannot reject trademarks just because they use "offensive" language.

Like "Fuck you!"?

Fist of Etiquette|6.19.17 @ 4:34PM|#

A driver crashed into a police vehicle and died in Paris in what authorities believe was an attempted terrorist attack. Nobody else was injured.

Vous avez eu un seul travail!

Illocust|6.19.17 @ 4:34PM|#

Wait, does this mean the redskins are no longer in danger of losing their trademark?

Rich|6.19.17 @ 4:35PM|#

The Last American Hero|6.19.17 @ 6:32PM|#

Half-Virtue, Half-Vice|6.19.17 @ 4:34PM|#

Seattle Police shot and killed a 30-year-old pregnant woman who had called police to report a robbery. Police said she drew a knife on them. Family members say she was struggling with mental health issues

Medals of courage incoming.

Zeb|6.19.17 @ 4:41PM|#

Don't bring a knife to a gunfight.

B.P.|6.19.17 @ 4:48PM|#

I think the gunfight traveled to the woman in this instance.

Crusty Juggler - Elite|6.19.17 @ 4:35PM|#

Tripping Up Trump

Ken White with a good read.

Fist of Etiquette|6.19.17 @ 4:35PM|#

Outgoing Rep. Jason Chaffetz (R-Utah) says he doesn't think President Donald Trump's administration is going to be any more transparent than Barack Obama's, and he's disappointed.

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Free Speech Wins Big at Supreme Court, Russia Threatens US over Syria, Possible Failed Terror Attack in Paris: PM ... - Reason (blog)

CommentaryAs mentioned here Saturday and Sunday, Commentary magazine recently published a big symposium on the question "Is Free Speech Under Threat in the United States?" I contributed a brief essay, as did a whole bunch of people who have written for Reason over the years. Here are links to their archives around these parts, in addition to some choice quotes from their Commentary commentaries:

Jonathan Rauch ("Free speech is always under threat, because it is not only the single most successful social idea in all of human history, it is also the single most counterintuitive"), Harvey Silverglate ("today's most potent attacks on speech are coming, ironically, from liberal-arts colleges"), Laura Kipnis ("Here I am, a left-wing feminist professor invited onto the pages of Commentary"), John Stossel ("On campus, the worst is over"), Richard A. Epstein, Cathy Young, Christina Hoff Sommers ("Silencing speech and forbidding debate is not an unfortunate by-product of intersectionalityit is a primary goal"), Jonah Goldberg ("God may have endowed us with a right to liberty, but he didn't give us all a taste for it"), and John McWhorter.

Additionally, many of these and other contributors to the symposium have been subject to Reason interviews, including Epstein, Silverglate, Stossel, Sommers, Goldberg, Ayaan Hirsi Ali, Kipnis, and Rauch, the latter two of which are embedded at the bottom of this post.

The symposium repeats many of the same themes, as the campus-centric excerpts above indicate. Many contributors noted the paradox between our widening legal speech freedoms (unanimously reinforced by the Supreme Court twice just today) and the shrinking intellectual support for the stuff. I for one was predictably inspired by Jonathan Rauch ("Every new generation of free-speech advocates will need to get up every morning and re-explain the case for free speech and open inquirytoday, tomorrow, and forever. That is our lot in life, and we just need to be cheerful about it"), and repulsed by Islam critic Pamela Geller ("The real question isn't whether free speech is under threat in the United States, but rather, whether it's irretrievably lost. Can we get it back? Not without war, I suspect").

But the biggest surprise argument I don't recall encountering before came from mega-bestselling author Michael J. Lewis, who argued that even a pro-First Amendment Supreme Court unwittingly harms the culture of free speech by taking too many issues out of the scrum of consequential public debate. Excerpt:

If free speech today is in headlong retreateverywhere threatened by regulation, organized harassment, and even violenceit is in part because our political culture allowed the practice of persuasive oratory to atrophy. The process began in 1973, an unforeseen side effect of Roe v. Wade. Legislators were delighted to learn that by relegating this divisive matter of public policy to the Supreme Court and adopting a merely symbolic position, they could sit all the more safely in their safe seats.

Since then, one crucial question of public policy after another has been punted out of the realm of politics and into the judicial. Issues that might have been debated with all the rhetorical agility of a Lincoln and a Douglas, and then subjected to a process of negotiation, compromise, and voting, have instead been settled by decree: e.g., Chevron, Kelo, Obergefell. The consequences for speech have been pernicious.[A] legislature that relegates its authority to judges and regulators will awaken to discover its oratorical culture has been stunted. When politicians, rather than seeking to convince and win over, prefer to project a studied and pleasant vagueness, debate withers into tedious defensive performance.

I suspect Lewis is exaggerating here, but his argument is intriguing.

After the jump, some relevant Reason interviews on free speech:

Laura Kipnis, from May 2017:

And Jonathan Rauch, from November 2013:

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Michael Lewis: The Supreme Court Has Harmed the Culture of Free Speech by Deciding Too Much Stuff - Reason (blog)

By Dan Jackson, Campus Reform

Sen. Bernie Sanders and Princeton University President Christopher Eisgruber both recently decried the intolerance toward free speech exhibited by liberal college students.

In a letter published in the latest edition of Princeton Alumni Weekly, Eisgruber begins by declaring that he emphatically endorses a 2015 faculty statement affirming Princetons institutional commitment to the broadest possible construction of free expression, but notes that the actual state of affairs on many campuses, including Princetons, is often hostile to that bedrock principle.

Many people worry about the state of campus speech today, and understandably so, he writes. Higher education has been embarrassed by appalling incidents such as the one at Middlebury College, where protesters shouted down Charles Murray and some physically assaulted him and his host, Professor Allison Stanger.

Princetons own Professor Peter Singer was interrupted repeatedly when he tried to speak with an audience at the University of Victoria in Canada, Eisgruber continues, but points out that instances of civility receive much less attention.

When Rick Santorum spoke at Princeton in April, for instance, he notes that students asked sharp, tough questions, and Santorum defended his position vigorously, rather than attempting to prevent the former senator and presidential candidate from speaking.

When the event ended, Eisgruber recounts, Santorum thanked Princetons students for being very polite and respectful, adding, This is what should happen on college campuses.

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Princeton Prez 'Embarrassed' By Students' Hatred Of Free Speech - Fox News

Isaac Smith. (Photo: Lori Cook, Athens News)

The debate over free speech on campus is no longer just part of the college and national conversation now its a federal matter.

The Senate Judiciary Committee is set to hold a hearing on free speech on college campuses Tuesday at 10:00 a.m. The hearing, entitled Free Speech 101: The Assault on the First Amendment on College Campuses, will host seven witnesses. The lineup includes businessmen, lawyers, college administrators and two students.

Zachary R. Wood and Isaac Smith are the two students who will be taking the floor to talk to the committee about free speech on their college campuses. Both students, active free speech advocates, can be expected to tell the Senate about their respective campus battles with free speech.

Zachary Wood is a rising senior at Williams College in Massachusetts. He is the current co-president of Uncomfortable Learning, a student group. According to the Williams College website, Uncomfortable Learning aims to increase the campus conversation around important political issues and especially to navigate unfamiliar viewpoints and perspectives. The group has brought speakers with a wide range of viewpoints to campus with the goal of exposing the student body to different ideas.

When the group invited Suzanne Venker, an anti-feminist, in 2015, the event was canceled for security concerns after Wood and other members started to receive an overwhelmingly negative backlash by other members of the student body.

When we say that a speaker should not come because of their views, were denying ourselves an opportunity to strengthen our own arguments, Wood wrote in an opinion piece for the Washington Post. He also argued that students were missing out on the opportunity to engage in a discussion with Venker.

The other student witness is Isaac Smith, a student at the University of Cincinnati College of Law, also experienced free speech challenges an undergraduate student at the Ohio University.

On his Facebook profile, Smith describes himself as a rising third-year student passionate about the First Amendment.

In 2014,Smith sued the University of Ohio after administrators at the university ordered him and his colleagues at Students Defending Students to stop wearing T-shirts with the slogan We get you off for free. Students Defending Students is a student organization that helps students with disciplinary infractions for free, according to the Foundation for Individual Rights in Education, where Smith is currently an intern.

Listen for Wood and Smith to discuss these incidents in their testimonies to the Senate Judiciary Committee.

The other witnesses are: Frederick Lawrence, Secretary and CEO of the Phi Beta Kappa Society Fanta Aw, interim president of campus life at American University Eugene Volokh, a professor at UCLA School of Law Richard Cohen, president of the Southern Poverty Law Center Floyd Abrams, a prominent First Amendment lawyer with at Cahill Gordon & Reindel LLP.

One of the most interesting testimonies may come from Aw, as American University has been the center of numerous protests regarding race this year. The most recent protest occurred when students found bananas hanging around the campus with string wrapped around the bananas to represent a noose just after the first black student body president took office.

The hearing will be streamed live Tuesday, June 20 at 10:00 am EST on the Judiciary Committees website.

Kellie Bancalari is a student at George Washington University and a USA TODAY College digital producer.

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2 students are testifying to the Senate about free speech on campus - USA TODAY

The U.S. Supreme Court handed down two notable victories for free-speech advocates on Monday as it nears the end of its current term. The two First Amendment cases came to the Court from starkly different circumstances, but the justices emphasized a similar theme in both rulings: Beware what the free-speech restrictions of today could be used to justify tomorrow.

In the first case, Matal v. Tam, the Court sided with an Asian-American rock band in Oregon named The Slants in a dispute with the U.S. Patent and Trademark Office. The PTO had denied band member Simon Tams application to register the groups name as a trademark, citing a provision in federal law that prohibits the office from recognizing those that disparage or bring into contempt or disrepute any persons, living or dead.

What an NYU Administrator Got Wrong About Campus Speech

Tam said his band was trying to reclaim and subvert the term slants, a racist and denigrating slur for Asians, in a method similar to how the LGBT community re-appropriated queer. When the PTO said the disparagement clause barred it from approving Tams application, he filed a lawsuit in federal court and claimed its refusal violated his right to free speech and expression. The Federal Circuit Court of Appeals sided with him and struck down the clause as a violation of the First Amendment.

The office tried to defend the disparagement clause on multiple grounds, including the argument that registering trademarks amounted to government speecha classification that isnt regulated by the First Amendment. The Court narrowly reached a similar conclusion two years ago in Walker v. Texas Sons of Confederate Veterans when it sided with the states Department of Motor Vehicles against a neo-Confederate group that sought license plates bearing Confederate insignia. But the justices rejected that argument Monday as nonsensical on its face.

If the federal registration of a trademark makes the mark government speech, the federal government is babbling prodigiously and incoherently, Justice Samuel Alito wrote in his opinion for the Court. It is saying many unseemly things. It is expressing contradictory views. It is unashamedly endorsing a vast array of commercial products and services. And it is providing Delphic advice to the consuming public.

The Courts ruling is likely to resolve a parallel legal battle over the Washington Redskins trademark in the teams favor. A PTO appeals board revoked six of the teams trademarks in 2014 for violating the disparagement clause in response to a petition filed by a group of young Native American activists, who told the board that the trademarks were racial slurs. The team filed a lawsuit shortly thereafter, but a federal district court upheld the boards decision.

With the clause struck down, the team will almost certainly win its challenge of that ruling in the Fourth Circuit Court of Appeals. Dan Snyder, the teams owner, told the Washingtonian he was thrilled by the Tam ruling. He had filed a brief with the court urging it to back The Slants position, while a group of Native American organizations and tribes had urged the Court to view the offensive trademarks as commercial speech, a category in which courts have given state and federal governments broader deference to regulate.

The justices strongly rejected that stance, citing its potential for abuse if applied to the disparagement clause. It is not an anti-discrimination clause; it is a happy-talk clause, Alito quipped. In one example, he argued that with leeway so expansive, the provision could one day be used to target trademarks that disparage sexists, racists, and homophobes instead of trademarks issued by those people themselves.

The commercial market is well stocked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates, he explained. If affixing the commercial label permits the suppression of any speech that may lead to political or social volatility, free speech would be endangered.

Anthony Kennedy echoed those themes in a concurring opinion in which he was joined by Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all, he wrote. The First Amendment does not entrust that power to the governments benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society. Accordingly, the justices sided with Tam and his band.

The plaintiff in the other free-speech case, Packingham v. North Carolina, was far less sympathetic. When he was a 21-year-old college student in 2002, Lester Packingham pled guilty to a sexual crime involving a 13-year-old girl. North Carolina law automatically required him to register in the states sex-offender database. Six years later, the state passed a law making it a felony for registered sex offenders to access a commercial social-networking site. The statute defined what falls under that definition with incredible breadth: Alito wrote in his concurring opinion that accessing Amazon, Walmart, and WebMD could violate the law.

In Packinghams case, the accessed website was closer to what the laws drafters seemed to have in mind. After winning a traffic-court dispute in 2010, he posted a celebratory remark on Facebook. Man God is Good! Packingham wrote. How about I got so much favor they dismissed the ticket before court even started? No fine, no court cost, no nothing spent. . . . . .Praise be to GOD, WOW! Thanks JESUS! A police officer saw the statement and arrested him for it; Packinghams lawyers say more than 1,000 other registrants have been charged and tried under the same provision.

The eight justices who heard his caseNeil Gorsuch didnt join the Court in time to participate in Packingham or Tamunanimously ruled in his favor and struck down the North Carolina statute in question. But they sharply differed in their style and approach to the underlying issues. Kennedy, for example, adopted the contemplative, nebulous tone he typically reserves for landmark decisions on abortion or LGBT rights.

While we now may be coming to the realization that the cyber age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be, he wrote for the Court. The forces and directions of the internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow.

From Kennedys perspective, this meant the Court should exercise extreme caution before limiting the First Amendments application to the internet, even when the restrictions target one of societys most universally loathed groups. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences, he explained. Even convicted criminalsand in some instances especially convicted criminalsmight receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.

Kennedys opinion drew some criticism from Alito, who concurred with the overall result but wrote separately because of his dissatisfaction with Kennedys undisciplined dicta, the formal term for the extraneous parts of a judges opinion that dont directly affect the case itself. The Court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks, Alito wrote, metonymously referring to Kennedy and his majority opinions sweeping language. Chief Justice John Roberts and Justice Clarence Thomas joined him.

But Alitos prodding appeared not to deter Kennedy from warning in broad terms about the inherent dangers of a censorious impulse, especially if it could one day be turned against even those with noble intentions to fight bigotry and crime. The nature of a revolution in thought can be that, in its early stages, even its participants may be unaware of it, he wrote, referring to the internets reshaping of human society. And when awareness comes, they still may be unable to know or foresee where its changes lead.

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The Supreme Court Offers a Warning on Free Speech - The Atlantic

NORTHAMPTON, Mass. (WWLP) Harvard has revoked acceptance letters from 10 incoming freshmen after discovering they used offensive speech online.

After finding the offensive posts on Facebook, Harvard said they will not tolerate racist remarks from their students. The university rescinded their acceptance offers in April, after discovering the students traded messages in a private Facebook group for incoming freshmen. The posts were often sexually explicit, and mocked Mexicans, the Holocaust, and child abuse.

Harvard students ouster over offensive posts stirs debate

While some argue that it is a matter of free speech, Northampton Attorney James Winston said that it could be categorized as hate speech if they used threatening terminology.

The more specific the speech is of an intended target, the more its going to be looked at as a serious threat and not be protected under free speech, Winston said.

Admissions experts say that the general rule of thumb for prospective college students is to not post anything- publicly or privately that they wouldnt want their grandmother to see.

Harvard said that they will rescind any acceptance letters if a student shows questionable moral behavior.

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Free speech or hate speech? 10 students kicked out of Harvard for postings - wwlp.com