Category Archives: Free Speech

Floyd AbramsNew YorkThe writer, a First Amendment lawyer, is the author of The Soul of the First Amendment.

To the Editor:

You write, Many on the left refuse to acknowledge that cancel culture exists at all. That is correct. Cancel culture is a meme, not a reality. It is a right-wing talking point, and I am sorry to see that The Times has fallen for it.

Brian RoseBrooklyn

To the Editor:

Freedom of speech, as provided for in the First Amendment, is the cornerstone of our constitutional democracy. Its meaning and crucial importance to a free society have been and continue to be misunderstood and not sufficiently respected.

The First Amendment limits the power of any government agency to violate the right to generally express oneself, regardless of the content of the view or whether its offensive, politically incorrect or wrong. That means the government is prohibited from determining which views are permitted and which are not.

But the First Amendment does not limit the power of private, nongovernment actors. The private sector, including newspapers, private universities and businesses, have their own rights to free speech but sometimes improperly repress or punish the speech of their employees. The private sector should be encouraged to develop and enforce free expression policies that allow individuals in their employ to express views that are not job-related without fear of retaliation.

Historically, the struggle to achieve justice (e.g., civil rights, womens rights, the labor movement, L.G.B.T.Q.+) has always depended on the right to free speech. As John Lewis said, Without freedom of speech and the right to dissent, the civil rights movement would have been a bird without wings.

Norman SiegelIra GlasserNew YorkThe writers are former executive directors of the New York and American Civil Liberties Unions, respectively.

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Opinion | Is Free Speech Endangered? - The New York Times

Controversial legislation on free speech on English campuses has stalled in Parliament due to dwindling political support, some in the sector suggest, although the bills supporters and the Department for Education insist ministers remain committed to new laws.

The Higher Education (Freedom of Speech) Bill had its first reading in the House of Commons in May 2021. Committee stage for the bill concluded in September 2021, but there is still no date for the report stage to start, and the bill is still to be introduced to the House of Lords.

Following the recent announcement that the next session of Parliament will begin on 10 May, the bill, a Tory manifesto commitment, appears to have run out of time in the current parliamentary session. At the end of the 2019-21 session,five bills were carried over so there is technical scope for the bill to continue.For that to happen, a carry-over motion would need to be tabled and approved by the Commons before the end of the current session.

Universitiesarenervous about the potential impact of some of the bills provisions, which include the appointment of a free speech and academic freedom champion to the Office for Students board and enabling individuals to sue institutions for compensation over breaches of strengthened free speech duties.

One factor potentially impacting the bill is Gavin Williamsons sacking as education secretary and replacement by Nadhim Zahawi in September. That left Mr Williamsons former special adviser Iain Mansfield, the chief architect of the free speech bill, with a less influential DfE role as adviser to higher education minister Michelle Donelan.

Meanwhile, Munira Mirza, the former Spiked writer and critic of activist academics, resigned as head of policy in No 10 in February.

Diana Beech, chief executive of London Higher and a former policy adviser to Conservative universities ministers, said it was no surprise that the free speech bill has fallen down the list of the governments priorities and Ms Mirzas exit has left the bill without an obvious champion in the corridors of power.

Other issues on the DfE agenda such as lifelong loans ought to be seen as more of a vote winner than any measures reigniting accusations of culture wars for a government heading into a general election in just two years time, she added.

However, Nigel Biggar, Regius professor of moral and pastoral theology at the University of Oxford, chair of the Free Speech Union and a prominent advocate for the bill, said: The current stalling of the bill in the House of Commons is regrettable, but sources confirm that the government is committed to revive it in the autumn. It is vital for the promotion of liberal space on campus that it should.

Amid the failure of university authorities to defend staff against vexatious complaints, as well as the authoritarian rolling out of decolonisation policies, the bill would strengthen the arm of dissidents, he added.

A DfE spokesman said: The government remains committed to strengthening freedom of speech in higher education in line with its manifesto and passage of the Higher Education (Freedom of Speech) Bill will continue as soon as parliamentary time allows.

Nick Hillman, Higher Education Policy Institute director, said the bill does seem to have lost some of its momentum since Mr Williamsons exit. But he noted that Ms Donelan still talks about it, as in herspeech to the Conservative party spring conferencethis month.

So I wouldnt write its obituary yet, Mr Hillman said.

john.morgan@timeshighereducation.com

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England's campus free speech bill stalls - Times Higher Education

To the Editor:

Re Self-Censorship Is Stifling Campuses, by Emma Camp (Opinion guest essay, March 9):

I applaud Ms. Camps essay about the state of intellectual freedom (or the lack thereof) on college campuses in this country.

She accurately and perceptively criticizes the growing trend in academia to promote and enforce an inflexible social ideology that intimidates any student or professor who does not embrace it.

Colleges and universities, instead of being a fertile environment to question, learn and grow, are now teaching our children to be intolerant and judgmental, and to humiliate any who might disagree with the official perspective. And if you happen to be a professor who challenges this dogma, you face disgrace or even termination.

It is a sad state of affairs when our institutions of higher learning are embracing such a biased and disparaging environment that their students feel the need to censor their own thoughts and expressions on campus.

Zealotry serves no one well, regardless of where one sits on the political spectrum.

John M. SingerPortsmouth, N.H.

To the Editor:

I am exceedingly grateful to Emma Camp for expressing an unpopular opinion that must necessarily be harbored (cautiously, on the sly) by countless undergraduate and graduate students. The pressure to bow before majority opinion has indeed become increasingly burdensome.

We might well fear for the state of unbounded, undiluted intellectualism in America. Not only self-censorship, but also censorship from without coercion, intimidation and silencing threatens to transform our once eclectic nation into a tepid, homogeneous whole.

I implore my fellow students to comport themselves boldly and courageously in the face of this ever more fearful prospect. Do not permit your original, piquant ideas and opinions to be rejected out of hand; when enough iconoclasts stand bravely together, tyranny of the majority loses power. One grows tired of hearing the same hyperbolized viewpoints iterated and reiterated ad nauseam.

Collectively, let us attempt to provide balance and restore our fellow citizens to reason and open-mindedness.

Donna SandersNew YorkThe writer is a junior at Columbia University.

To the Editor:

I welcome Emma Camps plea for free speech, but it is important to remember that pressures to censor come from the political right as well as from the left.

With Floridas lawmakers passing a bill that forbids teaching about gender identity and sexual orientation in kindergarten through third grade, teachers and even young children will find they must suppress expression of any comments that offend conservative orthodoxy.

This leads to the stifling of alternative viewpoints, producing what public opinion scholars call a spiral of silence, a phenomenon in which people, fearing isolation or ostracism, decline to offer unpopular but legitimate views, spanning conservative political perspectives in University of Virginia classrooms to gender diversity in Florida elementary schools.

The ensuing silence and self-censorship offend the Enlightenment-based affirmation of free speech and tolerance that animated our greatest social philosophers.

As John Stuart Mill famously wrote, discussing problems bearing on opinion self-censorship, If the opinion is right, [people] are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.

Richard M. PerloffClevelandThe writer, a professor of communication and political science at Cleveland State University, is author of The Dynamics of Political Communication.

To the Editor:

Emma Camp describes experiencing a shift in the demeanor of other students when she raised issues that were disliked. I would hope that in such a situation the professor would say something like: I notice some discomfort with Ms. Camps position. Will one of you please respond. Come on. Speak up!

Then the professor should alternate between sides, commenting as appropriate to bring out the lessons to be learned. I would hope for a parallel reaction from the president and deans with the faculty in times of dissent.

The student newspaper could contribute by publishing both sides: pro on one side of the page and con on the other side. It is the responsibility of the faculty to keep the college safe for debate by encouraging and monitoring the process to keep discussions flowing and nondestructive.

Beth BartholomewSeattle

To the Editor:

To encourage free speech on campus, colleges should expand their existing prohibitions on harassment based on race, sex, etc. to prohibit all harassment, including that based on politics and ideology.

Too many people on and off campus seem to think they can make the world a better place by harassing people who disagree with them.

James G. RussellMidlothian, Va.

To the Editor:

As a lifelong teacher of argumentation and debating, I find myself in agreement with the frustration Emma Camp feels but disagree with the causes. Debate does not come naturally; it is something we have to practice and learn.

Human beings argue as a form of communication, but this is highly personal in its reach. Debate is for people we dont know. We can appreciate a beautiful image with others, but to paint it and hang it before a crowd is a different matter.

Universities across the United States have failed in their obligation to teach debating, which is as important as STEM in creating the thoughtful, intelligent people who will soon lead the world. Debate should be a general education requirement, as Ms. Camp aptly proves.

Stephen M. LlanoQueensThe writer is an associate professor of rhetoric in the communication studies department at St. Johns University.

To the Editor:

Emma Camp provides a clear description of one consequence of the recent culture wars and the passage of anti-woke legislation in multiple states, including mine.

What is also evident is that some professors lack the skill to conduct conversations that give all students space to express their views. Such classroom interaction is how we help students become analytical thinkers, develop appreciation for diverse perspectives and understand the complexity of so many issues.

Instead of letting students pile on one student and triggering self-censorship, educators at all levels need to give students opportunities to carefully consider alternative ideas and possible explanations for them. This is how we learn, how we mature and become effective decision makers.

Jill Lewis-SpectorSarasota, Fla.The writer is emerita professor of literacy education at New Jersey City University and past president of the International Literacy Association.

To the Editor:

I am a retired college professor and a Christian social conservative who values free speech and civil discourse. Emma Camps article speaks to both my head and my heart as she presents a defense of free speech on college campuses.

Although Ms. Camp and I probably disagree politically, I feel that she and I could discuss controversial issues, and each learn from our exchanges. Her discussion about self-censorship by college students and faculty resonates with me; college administrators must ensure that no one on campus must adhere to any particular ideology for fear of retribution.

John C. GardnerOnalaska, Wis.

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Opinion | Is Freedom of Thought Curbed on Campus? - The New York Times

The Details

Eligibility

Open to juniors and seniors in U.S. high schools, including home-schooled students, as well as U.S. citizens attending high school overseas. Additional questions regarding eligibility may be emailed to essaycontest@thefire.org.

Word Length

Students must submit an essay between 700 and 900 words on the provided topic below.

Deadline

FIRE must receive all entries by 11:59 EST, December 31, 2021. Winners will be announced by February 15, 2022.

Scholarship Prizes

One $10,000 first prize, one $5,000 second prize, three $1,000 third place prizes and four $500 prizes will be awarded.

Get to know us! The mission of FIRE is to defend and sustain individual rights at Americas colleges and universities. These rights include freedom of speech, legal equality, due process, religious liberty, and sanctity of consciencethe essential qualities of individual liberty and dignity. In addition to defending the rights of students and faculty, FIRE works to educate students and the general public on the necessity of free speech and its importance to a thriving democratic society.

The freedom of speech, enshrined in the First Amendment to the Constitution, is a foundational American right. Nowhere is that right more important than on our college campuses, where the free flow of ideas and the clash of opposing views advance knowledge and promote human progress. It is on our college campuses, however, where some of the most serious violations of free speech occur, and where students are regularly censored simply because their expression might offend others.

In a persuasive letter or essay, convince your peers that free speech is a better idea than censorship.

Your letter or essay must be between 700-900 words. We encourage you to draw from current events, historical examples, our free speech comic, other resources on FIREs website, and/or your own personal experiences.

Note: While there is no required format for your submission, many entrants use MLA guidelines. Successful entries will show an understanding of the importance of free speech and the pitfalls of censorship. You may use in-text citations, and do not need to include a References or Works Cited page. Essays that do not address the prompt question or fail to meet the word-count requirements will not be considered. View the essays of some of our past winners here!

Entering this essay contest constitutes agreement to having your name and essay published on FIREs website if you are selected as a winner. FIRE reserves the right to make minor edits to winning essays before publication on our website.

The contest will reopen in September 2022.

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Free Speech Essay Contest - FIRE

Free speech has been an experiment from the startor at least thats what Justice Oliver Wendell Holmes suggested nearly a century ago in his dissent inAbrams v. United States, one of the first decisions to interpret and shape the doctrine that would come to occupy a nearly sacred place in Americas national identity.

Since then, First Amendment jurisprudence has stirred America in novel ways, forcing deep introspection about democracy, society and human nature and sometimes straddling the political divide in unexpected fashion. In the past 100 years, free speech protections have ebbed and flowed alongside Americas fears and progress, adapting to changing norms but ultimately growing in reach.

And now, this piece of the American experiment faces a new set of challenges presented by the ever-expanding influence of technology as well as sharp debates over the governments role in shaping the public forum.

Thats why Geoffrey R. Stone, the Edward Levi Distinguished Service Professor at the University of Chicago Law School, and Lee Bollinger, the president of Columbia University, two of the countrys leading First Amendment scholars, brought together some of the nations most influential legal scholars in a new book to explore the evolutionand the futureof First Amendment doctrine in America.

The Free Speech Century(Oxford University Press)is a collection of 16 essays by Floyd Abrams, the legendary First Amendment lawyer; David Strauss, the University of Chicagos Gerald Ratner Distinguished Service Professor of Law;Albie Sachs, former justice of the Constitutional Court of South Africa; Tom Ginsburg, the University of Chicagos Leo Spitz Professor of International Law; Laura Weinrib, a University of Chicago Professor of Law; Cass Sunstein, a professor at Harvard Law School;and others.

Lee and I were law clerks together at the Supreme Court during the 1972 term, Stone said. I was with Justice Brennan and Lee was with Chief Justice Burger. We have both been writing, speaking and teaching about the First Amendment now for 45 years. This was a good time, we decided, to mark the 100th anniversary of the Supreme Courts first decision on the First Amendment with a volume that examines four basic themes: The Nature of First Amendment Jurisprudence,Major Critiques and Controversies over Current Doctrine,The International Impact of our First Amendment Jurisprudence,andthe Future of Free Speech in a World of Ever-Changing Technology. Our hope is that this volume will enlighten, inspire and challenge readers to think about the role of free speech in a free and democratic society.

Stone, JD71, has spent much of his career examining free speecha topic he first became passionate about as a University of Law School student.

TheUniversity has a long tradition of upholding freedom of expression. UChicagos influential 2015 report by the Committee on Freedom of Expression, which Stone chaired, became a model for colleges and universities across the country.

The collection takes on pressing issues, such as free expression on university campuses, hate speech, the regulation of political speechand the boundaries of free speech on social media, unpacking the ways in which these issues are shaping the norms of free expression.

One essay, for instance, explores how digital behemoths like Facebook, Twitter and Google became gatekeepers of free expressiona shift that contributor Emily Bell, a Columbia University journalism professor, writes leaves us at a dangerous point in democracy and freedom of the press. Her article examines foreign interference in the 2016 election and explores some of the questions that have emerged since, such as how to balance traditional ideas of a free press with the rights of citizens to hear accurate information in an information landscape that is now dominated by social media.

Technology, the editors write, has presented some of the most significant questions that courts, legal scholars, and the American public will face in the coming decades.

While vastly expanding the opportunities to participate in public discourse, contemporary means of communication have also arguably contributed to political polarization, foreign influence in our democracy, and the proliferation of fake news, Stone writes in the introduction. To what extent do these concerns pose new threats to our understanding of the freedom of speech, and of the press? To what extent do they call for serious reconsideration of some central doctrines and principles on which our current First Amendment jurisprudence is based?

In another essay, Strauss, an expert in constitutional law, examines the principles established in the 1971 Pentagon Papers case,New York Times Co. v. United States.The landmark ruling blocked an attempt at prior restraint by the Nixon administration, allowing theNew York TimesandWashington Postto publish a classified report that reporters had obtained about Americas role in Vietnam. The threat to national security wasnt sufficiently immediate or specific to warrant infringing on the papers right to publish, the Court said at the time.

But todays world is different, Strauss argues. It is easier to leak large amounts of sensitive informationand publication is no longer limited to a handful of media companies with strict ethical guidelines. Whats more, the ease with which information can be shareddigitally as opposed to carefully sneaking papers in batches from locked cabinets to a photocopier, as military analyst Daniel Ellsberg did when leaking the Pentagon Papersmeans that a larger number of people can act as leakers. That can include those who dont fully understand the information they are sharing, which many have argued was the case when former IT contractor Edward Snowden allegedly leaked millions of documents from the National Security Agency in 2013.

[T]he stakes are great on both sides, Strauss writes, and the world has changed in ways that make it important to rethink the way we deal with the problem.

Ultimately, the health of the First Amendment will depend on two things, Bollinger writes: a continued understanding that free speech plays a critical role in democratic societyand a recognition that the judicial branch doesnt claim sole responsibility for achieving that vision. The legislative and executive branches can support free speech as well.

Whats more, modern-day challenges do not have to result in an erosion of protections, Bollinger argues.

[O]ur most memorable and consequential decisions under the First Amendment have emerged in times of national crises, when passions are at their peak and when human behavior is on full display at its worst and at its best, in times of war and when momentous social movements are on the rise, he writes. Freedom of speech and the press taps into the most essential elements of lifehow we think, speak, communicate, and live within the polity. It is no wonder that we are drawn again and again into its world.

Adapted from an article that first appeared on the University of Chicago Law School website.

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What is the role of free speech in a Democratic society ...

Dominic Raab has disclosed proposals to replace Labours Human Rights Act with a British bill of rights which he believes will enable the principle of free speech to become a legal trump card.

Raab, the deputy prime minister and justice secretary, has argued that the plan will better protect the press in exposing wrongdoing and said he feared free speech was being whittled away by wokery and political correctness.

Raab told the Daily Mail that under plans being drawn up for the bill of rights, there would be only limited restrictions placed on the protections on free speech with checks to stop people abusing it to promote terrorism.

He said it would be given a different status in the pecking order of rights with the main ramifications expected to be on legal disputes.

Raab told the Daily Mail: We will still be clamping down on those who try and use either media or free speech to incite violence, to radicalise terrorists, or to threaten children. All of those safeguards will be in place.

But weve got to be able to strengthen free speech, the liberty that guards all of our other freedoms, and stop it being whittled away surreptitiously, sometimes without us really being conscious of it.

So it will have a different status in the pecking order of rights and I think that will go a long way to protecting this countrys freedom of speech and our history, which has always very strongly protected freedom of speech.

The proposals, currently out for consultation, are expected to be included in the Queens speech later this year.

The Human Rights Act (HRA) was introduced in 1998 to enable UK nationals to rely on rights contained in the European convention on human rights before the domestic courts.

Raab added: Effectively, free speech will be given what will amount to trump card status in a whole range of areas.

I feel very strongly that the parameters of free speech and democratic debate are being whittled away, whether by the privacy issue or whether its wokery and political correctness.

I worry about those parameters of free speech being narrowed.

In December, the government announced a consultation to revise the Human Rights Act.

It cited estimates that as many as 70 percent of successful human rights challenges are brought by foreign national offenders who cite a right to family life when appealing deportation orders.

The government said at the time that the plans will give the supreme court more ability to interpret human rights law in a UK context.

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Raab says UK bill of rights will stop free speech being 'whittled away by wokery' - The Guardian

Spotify will discontinue access to its streaming services in Russia in light of the countrys dramatic new restrictions on free speech.

In early March, the Russian parliament enacted a new law that criminalizes sharing what the government deems to be false information about Russias operations in Ukraine. The new restrictions also punish any speech that undermines the military, including describing the war in Ukraine using the word war.

Western news outlets including CNN, ABC and the BBC pulled their broadcasts and operations within Russia in response to the law, which can carry up to a 15-year prison sentence. While Spotify is primarily a music streaming platform, the company is increasingly investing in podcasts that incorporate politics and current events a direction thats already entangled it in a number of controversies.

Spotify has continued to believe that its critically important to try and keep our service operational in Russia to provide trusted, independent news and information in the region, a Spotify spokesperson told TechCrunch. Unfortunately, recently enacted legislation further restricting access to information, eliminating free expression and criminalizing certain types of news puts the safety of Spotifys employees and possibly even our listeners at risk.

After considering different paths, Spotify opted to fully suspend its service in Russia, a process that will be complete by early April after the company wraps up logistics related to the move. Spotify previously suspended premium subscriptions in Russia, though the free version of the app remained available.

As most of the world looks on in horror, the Kremlin continues to tighten its grip on the flow of information, falsely spinning its actions over the last month as a liberation effort rather than a bloody war of choice claiming civilian lives. That push and its accompanying legal crackdown pose serious risks for anyone within the country sharing a perspective on the invasion that is at odds with the Russian government.

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Spotify will suspend its services in Russia in light of free speech crackdown - TechCrunch

(Fargo, ND) --The First Amendment to the U.S. Constitution will be examined during The First: How to Think about Hate Speech, Campus Speech, Religious Speech, Fake News, and Post-Truth, an event scheduled Friday, April 1st, at noon in the NDSU Memorial Unions Anishinaabe Theater and viaZoom.

Stanley Fish, Davidson-Kahn Distinguished University Professor of Humanities and Law at Florida International University, will discuss such questions as:

Fish argues that freedom of speech is a double-edged concept it frees us from constraints, but it also frees us to say and do terrible things.

Fish previously taught at the University of California, Berkeley; Johns Hopkins University; Duke University; and the University of Illinois at Chicago, where he was the dean of the College of Liberal Arts and Sciences. He has received many honors and awards, including being named the Chicagoan of the Year for Culture. He is the author of several renowned books, including Winning Argument, How Milton Works, Theres No Such Thing as Free Speech: And Its a Good Thing, Too and How to Write a Sentence: And How to Read One. He is a former columnist for the New York Times and his articles have appeared in the Chronicle of Higher Education, Harpers, Esquire and the Atlantic.

Fish will sign copies of his book both before and after his presentation outside the NDSU Bookstore in the Memorial Union.

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International scholar to discuss free speech and first amendment at NDSU - AM 1100 The Flag WZFG

During President Trump's second impeachment trial, Seth Barrett Tillman and I wrote that elected officials, including the President, retained their First Amendment right to freedom of speech. (See here, here, here, and here.)We often quoted from Chief Justice Rehnquist's classic book about presidential impeachments,Grand Inquests. He observed that, during times of conflict, "[p]rovisions in the Constitution for judicial independence, or provisions guaranteeing freedom of speech to the President as well as others, suddenly appear as obstacles to the accomplishment of the greater good." Yet, some of our critics argued that elected officials had reduced First Amendment rights, and their speech was subject to the Pickering/Garcettiline of cases. In other words, elected officials would be treated in the same fashion as civil servants.

In Houston Community College v. Wilson, the Supreme Court reaffirmed that elected officials have free speech rights. Justice Gorsuch's unanimous majority opinion reflects this position--and it did not seem controversial at all.

First, the Court stated, directly, that elected officials retain their free speech rights. These accountable officials need to exercise those rights to fully represent their constituents.

First, Mr. Wilson was an elected official. In this country, we expect elected representatives to shoulder a degree of criticism about their public service from their constituents and their peersand to continue exercising their free speech rights when the criticism comes. As this Court has put it, "[w]hatever differences may exist about interpretations of the First Amendment, there is practically universal agreement" that it was adopted in part to "protect the free discussion of governmental affairs." Mills v. Alabama, 384 U. S. 214, 218 (1966). When individuals "consent to be a candidate for a public office conferred by the election of the people," they necessarily "pu[t] [their] character in issue, sofar as it may respect [their] fitness and qualifications forthe office." White v. Nicholls, 3 How. 266, 290 (1845).

Mills v. Alabama, the cited case, does not directly support the proposition that elected officials retain their free speech rights. But the Court stated the issue clearly: elected officials can "continue exercising their free speech rights when the criticism comes."

Second, Gorsuch expands on this reasoning. He explains that the elected members of the Houston Community College Board can use their free speech rights to censure Wilson, a fellow elected member:

Second, the only adverse action at issue before us is itself a form of speech from Mr. Wilson's colleagues that concerns the conduct of public office. The First Amendment surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy. But just as surely, it cannot be used as a weapon to silence other representatives seeking to do the same. The right to "examin[e] public characters and measures" through "free communication" may be no less than the "guardian of every other right." Madison's Report on the Virginia Resolutions (Jan. 7, 1800), in 17 Papers of James Madison 345 (D. Mat-tern, J. Stagg, J. Cross, & S. Perdue eds. 1991). And the role that elected officials play in that process "'makes it all the more imperative that they be allowed to freely express themselves.'" Republican Party of Minn. v. White, 536 U. S. 765, 781 (2002).

Again, the First Amendment protects the rights of politicians to criticize other politicians. Their speech is not subject to the ad-hoc balancing test from Pickering.

Gorsuch's analysis recognizes that elected officials are accountable to the electorate, and not a bureaucracy. Those elected officials are expected to receive public criticism. But more importantly, those elected officials retain their free speech rights to respond to public criticism.

Gorsuch stressed over and over again that the case concerned elected officials:

Given these features of Mr. Wilson's case, we do not see how the Board's censure could qualify as a materially adverse action consistent with our case law. The censure at issue before us was a form of speech by elected representatives. It concerned the public conduct of another elected representative. Everyone involved was an equal member of the same deliberative body.

These First Amendment rights are not diminished by entering elected office, as they perhaps would be by entering the civil service.

In January 2020, Tillman and I wrote:

As a general matter, we think it is a mistake to analogize the President, an elected official, to a full-time, permanent employee or civil servant. Elected public officials make policy; civil servants and other public employees carry out those policies. The case law permits the civil servants' speech to be muted so that the government-as-employer can carry out its policy goals. The goal is to ensure that elections remain meaningful, and that the government-as-employer can put forward its message, notwithstanding its employees who may take a different view. We do not suggest that thePickeringline of cases was correctly or incorrectly decided. Our point is more limited:Pickeringoffers civil servants some free speech protections, but it also allows the government-as-employer to impose some free speech limitations on its civil servants. Those free speech limitations make little or no sense when applied to elected officials.

I thinkHCC v. Wilson provides some support for our position.

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Houston Community College v. Wilson Reaffirms That Elected Officials Have Free Speech Rights - Reason

By adopting Democrats' strategy of attacking so-called dark money groups at this week's confirmation hearings for Supreme Court nominee Ketanji Brown Jackson, Republican senators are fueling efforts to undermine core First Amendment protections.

Sen. Chuck Grassley (RIowa), the top Republican on the Senate Judiciary Committee, denounced the "role of far-left dark money groups like Demand Justice" in his opening remarks. And he wasn't the only one to do so. Sen. Lindsey Graham (RS.C.) made vague references to "the most liberal people under the umbrella of Arabella." Prior to the hearing, Senate Minority Leader Mitch McConnell (RKy.) criticized the "dark money" being spent to "raise [Jackson's] profile."

Predictably, Sen. Sheldon Whitehouse (DR.I.) responded to Republicans' dark money fear mongering by suggesting that they support his legislation to "get rid of it." No one should take the bait.

Whitehouse is a sponsor of the DISCLOSE Act, a bill that Republicans in Congress, including all those quoted above, have thankfully opposed because it would force advocacy groups to publicly expose the names and addresses of their supporters. In today's polarized political environment, that would be a recipe for disaster. This legislation, which is regularly included in Democratic voting reform proposals, is a direct attack on the First Amendment right to associate privately.

The American Civil Liberties Union also recognizes the threat, with senior staff writing that these provisions "could directly interfere with the ability of many to engage in political speech about causes that they care about and that impact their lives by imposing new and onerous disclosure requirements on nonprofits committed to advancing those causes."

Armed with donor lists, powerful politicians in Congress could shift the target of their name-and-shame attacks from groups like Demand Justice and the Judicial Crisis Network to the individual Americans who support them. The result would be a loss of donations to groups that speak out, a chilling of political speech, and a shrinking of civil society.

Whitehouse's proposed "solution" would dramatically expand the federal government's power over political speech by redefining many communications about legislation and judicial nominations as "campaign-related" speech. True campaign speechwhich calls for the election or defeat of candidatesis already heavily regulated.

Under the DISCLOSE Act, however, a "campaign-related disbursement" would include "a Federal judicial nomination communication," which is defined as any paid communication effort "that is susceptible to no reasonable interpretation other than promoting, supporting, attacking, or opposing the nomination or Senate confirmation of an individual as a Federal judge or justice." Such communications "shall be treated as campaign-related disbursement[s] regardless of the intent of the person making the disbursement."

In plain English, the bill would transform speech about nominations into a regulated form of campaign speech, even if neither a candidate for office nor an election is mentioned. Organizations that trigger the "judicial nomination communication" regulations would have to submit donor lists to the Federal Election Commission, even though judicial nominations and confirmation processes are not elections.

These invasive and misleading disclosure mandates would thrust the judicial nomination process even further into the realm of partisan politics. Organizations that have always maintained a nonpartisan position and have never participated in elections would likely be unwilling to engage in speech that may trigger the bill's provisions. Nonprofits could fall silent because they prioritize their supporters' privacy over their ability to call on lawmakers to support or oppose a nomination.

Partisan campaign groups won't be scared away. They may be the only ones still willing to speak about nominees besides politicians and major media outlets, because they are already legally obligated to expose their donors and comply with other reporting requirements.

The difficulty of complying with those laws and the risks of navigating new, vague regulations will be enough to silence many small groups. Groups that do take on those burdens will likely suffer a loss of donations from Americans who fear retaliation for their beliefs or simply prefer not to be publicly associated with "campaign-related" speech.

The end goal of such legislation is to force any group that speaks about the government to operate like a political action committeeleaving people who support a cause to defend themselves against whatever harassment comes their way. Democrats in Congress have long used the "dark money" smear to avoid engaging with their critics and to gin up support for extreme new speech restrictions. Republican senators, in seeking to turn the tables, risk empowering a movement that puts everyone's First Amendment rights in danger.

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When They Attack 'Dark Money,' They're Really Attacking Free Speech - Reason