Monthly Archives: February 2022

In May 2021, I published a list of Answers to 12 Bad Anti-Free Speech Arguments with our friends over at Areo. The great Nadine Strossen former president of the ACLU from 1991 to 2008, and one of the foremost experts on freedom of speech alive today saw the series and offered to provide her own answers to some important misconceptions about freedom of speech. My answers, when applicable, appear below hers.

Earlier in the series:

Assertion: Free speech is an outdated idea and its time for new thinking.

Nadine Strossen: New thinking is always timely about any topic, certainly including free speech. But that premise raises the following conundrum: Could we engage in any thinking particularly new thinking without free speech? As the Supreme Court observed in 2001, speech must be protected from the government because speech is the beginning of thought.

Freedom of speech has repeatedly been championed by succeeding new generations, in every kind of political system, and in every culture.

Far from being an outdated idea, free speech is instead a timeless idea, which has withstood constant counterarguments and repressive efforts, throughout history and around the world. Freedom of speech has repeatedly been championed by succeeding new generations, in every kind of political system, and in every culture. It is protected in the constitutions and other governing charters of countries worldwide, including those that were the most recently adopted. Freedom of speech is also enshrined as a fundamental, universal human right in the Universal Declaration of Human Rights and also the International Covenant on Civil and Political Rights, to which a full 178 countries are parties out of the 193 U.N. member states. Furthermore, freedom of speech is enshrined in the foundational regional human rights treaties for Europe, the Americas, and Africa (there is no comparable Asia-wide treaty). Notably, even governments that do not protect free speech in practice nonetheless feel the need to profess fidelity to it, in an effort to attain legitimacy in the eyes of the world, as well as their own citizens.

Also noteworthy as well as inspiring and heartbreaking is how many courageous human rights activists are willing to risk their safety and even lives for freedom of speech. In 1989, Irans Supreme Leader Ayatollah Khomeini issued a fatwa (an official Islamic law ruling) against author Salman Rushdie, decrying passages in Rushdies 1988 novel, The Satanic Verses, as blasphemous against Islam. The fatwa offered a large bounty to anyone who assassinated Rushdie, thus forcing him to go into hiding for nine years. Rushdie memorably responded to those who questioned the importance of the free speech that had both jeopardized and severely constrained his life: Free speech is the whole thing, the whole ball game. Free speech is life itself. More recently, speaking from his prison cell upon receiving the Nobel Peace Prize in 2010, Chinese human rights activist Liu Xiaobo eloquently described this precious freedom, for which he had sacrificed his physical liberty: Free expression is the foundation of human rights, the source of humanity, and the mother of truth.

Greg Lukianoff: First of all, censorship is a far older idea, as old as our species; free speech is comparatively the new kid on the block. As Nat Hentoff once wrote, quoting former Los Angeles Times editor Phil Kerby, Censorship is the strongest drive in human nature; sex is a weak second. See: Free Speech For MeBut Not For Thee, by Nat Hentoff. You can see arguments justifying censorship going back as far as written records exist. We can therefore assume that it goes back even further than that. Indeed, the founding myth of classicism is the execution of Socrates for his corrupting the youth and blasphemy, detailed in Jacob Mchangamas excellent new book, Free Speech: A History from Socrates to Social Media. Indeed blasphemy is one of the oldest arguments for censorship, right alongside lse-majest (insulting the ruler), treason, sedition, and libel.

While the ancient Greeks made a lot of arguments in favor of their recognized forms of free speech, it shouldnt come as a great surprise that freedom of speech wasnt as discussed and valued between the time of the fall of the democratic city-states and the advent of the printing press. After all, if you cant reach most people by any means, arguments for freedom of speech have very little practical meaning. But as soon as widespread dissemination of ideas was possible, advocates for freedom of the press cropped up everywhere.

Truly robust protection for freedom of speech was a long time in the making, and stood in stark contrast with older forces of conformity, conservatism, dogmatism, and religiosity. In other words, freedom of speech has mostly been the exception throughout history, and has only become both legally and culturally powerful, even in the United States, in the last century. Though the First Amendment was passed in 1791, it was not until 1925 that freedom of speech was strongly interpreted as having real meaning for the United States, and it was not until the late 1950s that this freedom was consistently protected. One thing that can be very frustrating to the first amendment defender is how often we hear age-old arguments being brought up as if they are new or innovative. Among the most frustrating is the assertion that speech is indistinguishable from violence because it either causes stress or psychological harm. (For more on this, read Part 1 of this very series.) This is a very old idea, and is arguably the moral intuition that undergirds cultures that emphasize the preservation of honor, and which prescribe that slights against ones honor should be dealt with by duels or honor-killings. Indeed 19th century slave owners including John C. Calhoun even argued that the arguments of abolitionists were offensive to their dignity.

One thing that can be very frustrating to the first amendment defender is how often we hear age-old arguments being brought up as if they are new or innovative.

The arguments for censorship are almost all extremely old, but many of the arguments for freedom of speech are new and constantly evolving. Despite his oft-misrepresented footnote mention of the paradox of tolerance (more on this in a future article), Karl Popper was an innovative thinker about freedom of speech, as was Lenny Bruce, and as is Jonathan Rauch, Jonathan Haidt, and the many people synthesizing free-speech arguments with law, history, and the latest psychological and sociological research. For a recent novel argument for freedom of speech, check out Amna Khalid and Jeffrey Snyders excellent Chronicle piece on inquiry as the telos of higher education. (For a broader list of books about free speech, check out my reading list.)

Another compelling argument in favor of free speech is how the establishment of norms of dissent in cockpits and operating rooms have led to dramatic improvements in the safety of both surgery and airline traffic.

Indeed, as we watch voices silenced in China, Russia, and Turkey, (see FIREs recent ad featuring NBA player, Turkish exile and outspoken free speech advocate, Enes Kanter Freedom) we are seeing this all repeat. On campus, however, it can be easy to miss that arguments for free speech are getting better, not worse, everyday. If free speech is such an obvious good and is particularly important to the discovery of new ideas, why does it seem to be in decline on college campuses, with over 530 professors facing cancellation since 2015? (See my article in the Washington Post with Adam Goldstein on the case of Professor Ilya Shapiro at Georgetown for some recent data.)

Its in part because, as Jonathan Haidt recognizes, a lack of viewpoint diversity can lead to morally homogenous communities that tend to see disagreement as threat. However, as Jonathan Rauch points out, viewpoint diversity and disagreement are necessary for progress to be made. Freedom of speech doesnt work if people are afraid to speak their mind or even play devils advocate.

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'New' justifications for censorship are never really new: Part 11 of answers to bad arguments against free speech from Nadine Strossen and Greg...

RIO DE JANEIRO, BRAZIL Since the Biden administration cannot impede upon the First Amendment, the Department of Homeland Security (DHS) has now published a terrorist advisory system bulletin warning of a heightened threat environment nationwide.

The wording on the DHS publication is so broad that it appears to include constitutionally protected free speech along with violent activity.

DHS alleges that there have been allegedly misleading reports about Covid-19 mandates or vaccines targeting alternative media.

Secretary of Homeland Security Alejandro Mayorkas stated the National Terrorism Advisory System Bulletin was fueled by multiple factors, including an online environment filled with false or misleading narratives and conspiracy theories, and other forms of mis- dis- and mal-information (MDM) introduced and/or amplified by foreign and domestic threat actors who seek to exacerbate societal friction to sow discord and undermine public trust in government institutions to encourage unrest, which could potentially inspire acts of violence.

The agency didnt actually say who is to blame for the suspected spread of misinformation or disinformation, whether foreign or domestic forces.

Mass casualty attacks and other acts of targeted violence conducted by lone offenders and small groups acting in furtherance of ideological beliefs and/or personal grievances pose an ongoing threat to the nation, the DHS went on to say while adding that some people are attempting to sow discord or undermine public trust in U.S. government institutions.

The bulletin claimed that some people are advocating violence towards key infrastructure, faith-based organizations such as churches or synagogues, colleges, government employees or buildings, as well as other targets.

The DHS claims that there have been deceptive narratives around Covid-19 mandates or vaccines and that certain people have exploited Covid-19 mandates or vaccines to launch attacks since 2020, as an example of important aspects that supposedly attribute to the elevated threat environment.

The agency didnt go into detail or provide any additional information to back up its claims. Online charges of electoral fraud were also mentioned by the DHS, but no further specifics or evidence were provided.

The agency said that foreign terrorist organizations and domestic threat actors continue to amplify pre-existing false or misleading narratives online to sow discord and undermine public trust in government institutions.

It said violent extremists, including the individual who recently launched an attack against the synagogue in Texas, highlight the continuing threat of violence based upon racial or religious motivations, as well as threats against faith-based organizations.

According to the advisory, the ISIS terrorist organization and its allies may issue public calls for retaliation due to the strike that recently killed ISIS leader Abu Ibrahim al-Hashimi al-Qurayshi. Al-Qurayshi was murdered during an operation in northern Syria, according to the Biden administration.

A recent risk to black institutions and universities across the United States was also included in the warning.

Domestic violent extremists have also viewed attacks against U.S. critical infrastructure as a means to create chaos and advance ideological goals, and have recently aspired to disrupt U.S. electric and communications critical infrastructure, including by spreading false or misleading narratives about 5G cellular technology, the bulletin continued.

Liberty Counsel Founder and Chairman Mat Staver said, The National Terrorism Advisory System Bulletin is the latest tactic by the Biden administration to trample on the First Amendment and bully law-abiding citizens. When did criticizing government institutions and policies regarding masking and vaccine mandates become a domestic terrorism threat? When did public assemblies alone become a threat?

The First Amendment guarantees freedom of religion, expression, assembly, and the right to petition the government. Freedom of speech is a fundamental right of every dissenting voice to freely voice or express their opinions and ideas. The First Amendment does not have a truth meter that the government must pre-approve.

The Founders considered free speech to be a natural right that was vital to the existence of a healthy republic. However, this administration apparently feels threatened by Americans who think for themselves and will not uncritically accept government propaganda and coercion.

The heightened risk warning will end on June 7, 2022, according to the Department of Homeland Security.

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Free speech labeled as terrorism threat by US Department of Homeland Security - The Rio Times

Tista' taqra bil-Malti.

Repubblika, The Daphne Caruana Galizia Foundation, PEN Malta, and SOS Malta will be holding a public conference on Freedom of Speech and the Protection of Journalists on Thursday 24 February 2022 between 9 am and 1 pm.

The aim of the conference is to evaluate proposals made since the Public Inquiry into the assassination of Daphne Caruana Galizia published its recommendations.

This evaluation, together with proposals that are made during the public conference, will be presented to the Committee of Experts appointed by the government to make specific recommendations on needed reforms.

The conference is open to anyone who wants journalists working in Malta to have the means, the protection, and the safeguards they need to work without hindrance or threats so as to ensure that every citizens right to be informed on what happens in their country is respected.

Journalists and human rights advocates, particularly activists concerned with free speech are being invited to attend and participate.

The meeting will be chaired by Claudia Taylor East and will include a presentation by Sarah Clarke from Article 19, among other speakers.

All those present will be given the opportunity to participate actively in the debate.

The Public Conference will meet at the Corinthia Palace Hotel in Attard.

People who wish to participate should register their interest by email torepubblika.events@gmail.comby not later than noon of 23 February (the day before the Conference).

The event is being organised with the support of the Embassy of the United States.

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Freedom of Speech conference to be held in Malta - Newsbook

Authors note: It is not my intention nor implication to accuse anyone of censorship, I just want to provide some snarky commentary about the First Amendment.

First and foremost, Im not a lawyer and Im not a journalist Im a photographer.

With that out of the way, Im sure most of the people reading this are aware that in the last week, The Battalion managed to unite TexAgs, Texas A&M Barstool, Old Row, TAMU Affirmations, TAMU Barbz, Leon ONeal Jr. and almost the entirety of Aggie Twitter. In case you missed that, I recommend you read any one of the numerous news stories published about the situation, though I am partial to our own. But, to give a brief summary, A&M administration demanded The Battalion stop printing, effective immediately, and was asked to make a decision to fall under university purview by the next semester or continue as a student organization without certain resources. Personally, Im not a huge fan of the ultimatum, but thats not what this opinion piece is about.

This piece is about the First Amendment, and my opinion is that Aggies online have been doing a really good job in demonstrating why the University of Texas is still home to the states premier law school. Ive seen many people on Twitter, Instagram and Reddit post about the First Amendment in the context of this situation with various levels of accuracy. Im no 1L, but I did pass Intro to Business Law, Constitutional Rights and Liberties and Communications Law. Im not claiming I have even taken the LSAT, and Im definitely not claiming I would pass the Bar Exam but Im pretty confident that I know more about the First Amendment than you do, genius.

Im drawing mostly from my communications law class, taught by David Donaldson, Class of 1973, who graduated from the only acceptable school an Aggie can go to in Austin: UT Law. He was a damn good professor who taught at UT and A&M, and Professor Donaldson, if youre reading this, please know I really enjoyed your class. If youre wondering why I feel this is worthy of note, just search David Donaldson Daily Mail meme.

He began his first lecture of the semester by reading the First Amendment out loud to us. That seems as good a place to start as any. Now obviously, I cant read it aloud to you, dear Batt reader, but please read it in your head the way you think someone who is a retired First Amendment lawyer and cowboy action shooting champion would:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The relevant part there is, or of the press. So, what does that actually mean, Congress shall make no law abridging the freedom of the press? The nine people who live in Washington, get paid to put on some drippy robes drippy means cool and listen to people who get paid even more money to argue about what it means, and over the last 230 years, they meet on Fridays to argue about things in a secret room and then they either agree or dont. Eventually, one of them writes down their opinion and at least four other people agree with them and write more opinions and it becomes the law.

But what do they argue about? The American legal system is a combination of precedent, history and tradition. American legal history, regarding the First Amendment, goes back far beyond 1789. We have to first understand why the First Amendment was written before we can even understand how it has been applied today.

Sir William Berkley, royal governor of Virginia in 1671, said this:

I thank God, we have not free schools nor printing; and I hope we shall not have these hundred years. For learning has brought disobedience, and heresy and sects into the world; and printing has divulged them and libels against the government. God keep us from both!

I think, regardless of your political beliefs, we can all probably agree what he said doesnt sound very American. Also, its not a typo, thats how they used to talk. His Majesty the King, much like some people today, could not stand criticism, so the British made it a crime called seditious libel. Anyone who made statements critical of the government could be thrown in jail.

In 1735, exactly that happened. A guy named John Peter Zenger published an article complaining about the local government, and for doing so, the local government threw him in jail. Zenger hired a lawyer named Andrew Hamilton no relation who argued while Zenger did indeed publish something that made the government look bad, it was true. So, why should it be a crime? The jury agreed and truth became an accepted defense to libel, and it remains so to this day. And everyone lived happily ever after, and nobody ever got mad at a journalist again.

The Famous Zenger Trial as it appeared in the book "Wall Street in History" in 1883.

Ha.

Tongue-in-cheek aside, it turns out, many people have gotten mad at journalists since then, and the Supreme Court has decided journalists are protected by the law, often. As long as they meet professional and ethical standards necessary to publish, journalists are supposed to be able to say whatever they want. Especially if its critical of the government.

Government censorship in professional journalism is supposed to be minimal. There are very few instances in which the government can censor the press. The only two real instances are in times of war or instances where the speech invites violence, see Neer v. Minnesota.

Since then, the Supreme Court has proven this barrier is extremely high, allowing The New York Times to publish classified documents during Richard Nixons administration. The administration attempted to exercise what is known as prior restraint and obtain a judicial order to prevent The New York Times from publishing what would go on to be known as the Pentagon Papers. In New York Times Co. v. United States, the Supreme Court found that just because The New York Times would likely embarrass the government, it doesnt put the nation in danger, ultimately ruling that The New York Times was protected under the First Amendment.

Criticizing authority is as much of an American pastime as baseball. Many Americans might think of that whole I disapprove of what you say, but I will defend to the death your right to say it, quote when they think about free speech in America funnily enough the spuriously attributed Voltaire and actual author Evelyn Beatrice Hall are French and English, respectively. But, like I said earlier, Im not a journalist. Im a photographer who works for a student newspaper, a student newspaper which is 60 years older than the AP Stylebook; a student newspaper at a state university where the university is the government. What has the Supreme Court decided that I get to say?

Well, heres where it gets tricky and it could take a judge, potentially a panel of judges, to decide specifically what I, as a member of The Battalion, am allowed to do. This comes as a result of the case Hazelwood School District v. Kuhlmeier. One of the many questions raised in Hazelwood is if school newspapers are considered a public forum. In First Amendment law, a public forum is simply a protected place in which speech happens. No restriction based on content may occur in a public forum. Specifically, the question raised in the case is whether school newspapers are limited public forums. Limited public forum is a jargon phrase for a category of public forum established in Perry Education Association v. Perry Educators Association, so anytime I refer to a public forum, I mean a limited public forum.

The majority opinion of Hazelwood, written by 1937 Heisman runner-up Justice Byron White, states that curriculum-based school newspapers where students contribute to the paper as a part of a class are not forums for student expression. He goes so far as to saypublic schools need not tolerate student speech that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school. Now, before you go and jump to conclusions, let the 1938 and 1940 NFL rushing yards leader finish.

University of Colorado Boulder Football great (and Supreme Court Justice) Byron 'Whizzer' White.

White adds, School facilities may be deemed to be public forums only if school authorities have by policy or by practice opened the facilities for indiscriminate use by the general public, or by some segment of the public, such as student organizations. By that ruling, as long as school newspapers are produced by students for no reason other than the fact that it is weirdly fun to stay up late making a newspaper, a state university cant censor the student papers content.

What if, as a few people online have argued, its an issue of quality, and the quality of The Battalion doesnt meet the level of an institution that is the prestigious farm school of Texas A&M, the world-class research university where we scream nonsense at midnight and worship a dog and where we embrace the fact that other schools call us a cult. What if we make a newspaper that is so bad, we sully that reputation?

Aside from the fact that by an actual quantitative metric, The Battalion is the sixth best college newspaper in the country, it wouldnt change anything. In a 2001 case before the United States Court of Appeals for the Sixth Circuit, Kincaid v. Gibson, school officials refused to allow a student-run yearbook to deliver their finished print because they thought the yearbook was of low quality and inappropriate. The court found that college students, believe it or not, are adults, and should be treated as such unless you write something like Bong Hits 4 Jesus. Thats a whole different story though, so youll have to look that one up on your own.

The judge who wrote the Kincaid opinion, R. Guy Cole Jr., did what I will describe as the legal equivalent of that unofficial yell Head Yell Leader Memo Salinas had to write a letter about last fall. He says calling something low quality is an issue of content. Ill just let him take it from here:

There is little if any difference between hiding from public view the words and pictures students use to portray their college experience, and forcing students to publish a state-sponsored script. In either case, the government alters student expression by obliterating it. We will not sanction a reading of the First Amendment that permits government officials to censor expression in a limited public forum in order to coerce speech that pleases the government.

Public universities are a hotbed for First Amendment issues. Thats why groups like Foundation for Individual Rights for Education publish rankings for how different universities compare when it comes to support for the First Amendment. In my research, I found a paragraph from Justice Anthony Kennedys majority opinion in Rosenberger v. University of Virginia, and while that situation in that case is not the situation in every other First Amendment case, I still feel it perfectly summarizes what the First Amendment means on college campuses:

The first danger to liberty lies in granting the state the power to examine publications to determine whether or not they are based on some ultimate idea and, if so, for the state to classify them. The second, and corollary, danger is to speech from the chilling of individual thought and expression. That danger is especially real in the university setting, where the state acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition.

In ancient Athens, and, as Europe entered into a new period of intellectual awakening, in places like Bologna, Oxford and Paris, universities began as voluntary and spontaneous assemblages or concourses for students to speak and to write and to learn. The quality and creative power of student intellectual life to this day remains a vital measure of a schools influence and attainment. For the university, by regulation, to cast disapproval on particular viewpoints of its students risks the suppression of free speech and creative inquiry in one of the vital centers for the nations intellectual life, its college and university campuses.

The Battalion is a student organization. Any student at A&M is welcome to apply to be a writer or photographer. But, as long as I have been a student here, faculty including the Texas A&M System chancellor have been welcomed as guest contributors.

The content of the newspaper should not be influenced by anyone other than current A&M students. It is the students who are supposed to write the stories, take the pictures and design the paper. It is ours to make, ours to screw up and ours to learn from. As the very first editors of The Battalion said in the inaugural edition, Boys this paper is yours. Make it something. Lend all your assistance possible. It is your duty, and should be your pleasure, to write something for every issue. The editors will endeavor to obtain most of the contributions from among you, and as it will prove beneficial in more than one way, you ought to be proud of the opportunity.

So, if youre a former student who has an issue with the content in The Batt, Im glad you feel like youre still in Aggieland, but youre not. You dont get a say in student life anymore, your time here is done. Its a college newspaper, for college students. Thats the purpose of our publication: a campus forum for current A&M students to enter their thoughts into the marketplace of ideas. So, current students, please contribute. Share your ideas and let the best idea win. Thats the whole point.

Robert OBrien is a political science redshirt senior and photo chief for The Battalion.

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Analysis: A photo chief's guide to the First Amendment - Texas A&M The Battalion

A Ukrainian lawmaker was left bloodied and disheveled on Friday after he was socked in the face and put in a headlock on live TV. The brawl erupted on the set of Savik Shusters Freedom of Speech talk show during a discussion about Russias aggression against Ukraine. With former Ukrainian prime minister Arseniy Yatsenyuk and ex-president Petro Poroshenko nearby, journalist Yuriy Butusov walked right up to Nestor Shufrych, a lawmaker with the pro-Russian party Opposition PlatformFor Life, and slapped him in the face. Shufrych then stood up to fight back and the two plunged to the ground before Butusov managed to get Shufrych in a headlock, all while horrified guests yelled, Stop! and Let him go! The two were eventually pulled apart and reappeared to continue the discussion, both looking as if theyd been mauled by a feral cat. Shufrych, who had sparked the ire of his fellow guests by refusing to condemn Vladimir Putin, accused Butusov of scratching like a girl.

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Pro-Russian Ukrainian Lawmaker Socked in the Face on Live TV - The Daily Beast