Category Archives: First Amendment theory

Breaking and Analysis: Supreme Court on 5-4 Vote Reinstates District Court Order Temporarily Barring Enforcement of Texas Social Media Law; Good News for the First Amendment and Bad News for Those Seeking Law to Replatform Trump

In an unusual 5-4 vote, the Supreme Court has vacated a so-far-unexplained order from the 5th Circuit that stayed enforcement of a Texas district court order barring Texas from enforcing its new social media law. Among other things, this Texas law, if enforceable, could well require large social media companies such as Twitter and Facebook to re-platform Donald Trump after he was deplatformed for encouraging the January 6 insurrection at the United States Capitol. The district court held the statute likely violated the First Amendment and a Fifth Circuit panel, offering no reason thus far, stayed that order. That stay would have allowed Texas to enforce its law pending the appeal of the case. As it stands now, Texas cannot enforce its law. But the 5th Circuit will eventually issue an opinion and allow Texas to enforce its law, and the issue will almost certainly be back before the Supreme Court. This is especially true because of last week’s contrary 11th Circuit opinion, striking down a similar Florida law as violating the First Amendment rights of the private platforms to decide what content should be included or excluded.

The majority (C.J. Roberts, and Justices Barrett, Breyer, Kavanaugh, and Sotomayor) did not give a reason for vacating the 5th Circuit stay. Justice Kagan dissented, probably not on grounds of the merits but her views on whether the Supreme Court should be getting involved in these major pending cases on the shadow docket rather than letting them work their way through the courts.

But Justice Alito wrote an opinion for himself, Justice Thomas, and Justice Gorsuch. In the opinion, Alito does not say that the law is in fact unconstitutional. He argues that the matter is uncertain, buying into the arguments advanced in the past by Justice Thomas, Eugene Volokh, and others, that social media companies can be regulated like “common carriers” (such as the phone company) and forced to carry speech that they do not like.

The argument is one that is audacious and shocking for those (like Justice Thomas, less so for a Justice like Alito) who have taken near absolutist positions on First Amendment rights in the past, especially on issues such as campaign finance laws. I write about this in great detail in my Cheap Speech book, and explained the point briefly in this Slate piece:

It would be bad enough if the Supreme Court simply applied outmoded libertarian thinking to today’s information cesspool, believing that the truth will inevitably rise to the top and give voters the tools they need for informed decisionmaking. But the court’s inconsistent thinking on the First Amendment could make things far worse.

Consider the decision of Facebook and Twitter to “deplatform” Trump after he helped inspire the violent insurrection at the U.S. Capitol on January 6, 2021. Meta, which owns Facebook, and Twitter are private companies that make decisions all the time about what content to include, exclude, promote, and demote. The First Amendment does not limit these private companies and they can regulate speech in ways the government could not do. These companies remove hate speech, pornography, and other objectionable content from their platforms all the time.

But Justice Clarence Thomas—yes, the same Justice Thomas who believes that virtually all campaign finance laws violate the First Amendment—recently went out of his way in a case not presenting the issue to raise support for new laws, such as one passed last year in Florida, that would require social media companies to carry the content of politicians they do not like, even if those politicians support election violence or undermine voter confidence in the integrity of the electoral process. Justice Thomas has suggested that social media platforms are like telephone companies that could be subject to “must carry” provisions and cannot discriminate among customers based upon their political views.

But social media companies are much closer to newspapers and TV stations than telephone companies. The former but not the latter curate content all the time, and they can decide who appears on the platform and how. Justice Thomas appears to believe in the freedom of FOX News or the Atlantic to create a coherent brand with a message, but not Twitter or Facebook.

It is hard not to conclude that Justice Thomas was motivated toward this anti-libertarian position requiring private companies to carry speech they would rather not include on their websites because doing so would favor Donald Trump and those like Trump.

The good news from today’s opinion is that it looks like there are 5 or 6 votes at least to reject the Texas law and to hold that just like newspapers can decide what content to include or exclude, social media companies can do so too. Whether Section 230 of the Communications Decency Act recognizes it or not, social media companies exercise editorial discretion all the time. They should not be forced as private actors to carry dangerous and anti-democratic speech. People who want such speech can easily find it on Trump’s “Truth Social” platform or elsewhere.

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January 21 Virtual Symposium for the First Amendment Law Review: “Election Speech and the First Amendment Symposium”

Very much looking forward to participating in this:

Our annual symposium is only a few weeks away!
It will be held virtually on January 21, 2022, from 9:00 AM – 3:45 PM. You can register for the symposium here. The link to the event will be provided upon registration.

Keynote Address by
FEC Commissioner, Shana M. Broussard, J.D.

Moderated by Professor Mary-Rose Papandrea, J.D.
UNC School of Law, Samuel Ashe Distinguished Professor of Constitutional Law

Professor Helen Norton, J.D.
Colorado University School of Law, University Distinguished Professor and Rothgerber Chair in Constitutional Law

Professor Martin Redish, J.D.
Northwestern University School of Law, Louis and Harriet Ancel Professor of Law and Public Policy

Professor Clay Calvert, J.D., Ph.D.,
University of Florida College of Journalism, Brechner Eminent Scholar in Mass Communication
Director, Marion B. Brechner First Amendment Project

Evan Ringle, J.D., Ph.D. Candidate
UNC Hussman School of Journalism & Media
UNC Center for Information Technology and Public Life – Research Lead, Regulation of Election-Related Speech

Professor William Marshall, J.D.
UNC School of Law, William Rand Kenan Jr. Distinguished Professor of Law

Moderated by Professor Michael GerhardtM.S., J.D.
UNC School of Law, Burton Craige Distinguished Professor of Jurisprudence

Professor Richard Hasen,
UC Irvine School of Law, Chancellor’s Professor of Law and Political Science
Co-Director, Fair Elections and Free Speech Center

Professor Ciara Torres-Spelliscy, J.D.
Stetson University, Professor of Law

Professor Leslie Kendrick, M.Phil, D.Phil, J.D.
University of Virginia School of Law, White Burkett Miller Professor of Law and Public Affairs
Director, Center for the First Amendment

Moderated by Professor David ArdiaM.S., J.D., L.L.M.
UNC School of Law, Reef C. Ivey II Excellence Fund Term Professor of Law
Co-Director of the Center for Media Law and Policy

Professor Jasmine McNealy, Ph.D.
University of Florida, Associate Professor, Department of Media Production, Management, and Technology
Associate Director, Marion B. Brechner First Amendment Project

Professor Brenda Reddix-Smalls, J.D., L.L.M.
North Carolina Central University School of Law, Professor of Law

Professor Robert Yablon, M.A., J.D.
University of Wisconsin School of Law, Associate Professor
Co-Director, State Democracy Research Initiative

Professor Neema Guliani, J.D.
Legislative Counsel, American Civil Liberties Union

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Political Conduct and the First Amendment

Now that I have finished a draft of a new Article, Political Conduct and the First Amendment, I am eager to join the conversation on the ELB. I couldn’t be more thankful to Rick for including me as part of the team. I am a devout reader of the blog and look forward to broadening the ongoing discussion in the election law community about how to improve both democratic governance and faith in democratic institutions.

In the meanwhile, like many of us, I have been wrestling with how to make sense of the Roberts Court’s indifference to voters and democracy. Political Conduct and the First Amendment is my take on the bigger picture:

Preview: The First Amendment’s primary constitutional role is to defend our nation’s commitment to the collective project of self-governance. Its provisions protect both speech and political conduct toward the end of securing vital channels for influencing public policymaking, demanding responsiveness, and ensuring accountability. Over time, however, the Supreme Court and scholars alike have gravitated to the speech clause, driven by the misconception that democracy is a product of political discussion, rather than political participation. The Court has thus reduced a multifaceted amendment protecting the political process writ large into a singular protection for free expression. The Article explains not only why this is a mistake, but how it negatively impacts our democracy. It proceeds to offer a more nuanced account of the First Amendment’s relationship to self-governance—one that vindicates a construction of the amendment that actually protects democracy in all its facets. The three main pillars of this new account are: protection for political conduct; recognition of a strong anti-entrenchment norm; and a better appreciation of the significance of drawing a distinction between the domain of governance and the domain of politics in First Amendment jurisprudence.

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The Big Lie and January 6

The Washington Post has an overview of where things currently stand with the House’s select committee investigating the January 6 insurrection. The Post says this committee’s investigation is supposed to be the “ultimate arbiter” of what happened that day. Maybe, but I think the DOJ investigation and, where appropriate, prosecutions are an important dimension to establishing both truth and accountability for the wrongdoing.

In this regard, I wonder about the applicability of a particular federal statute, 18 U.S.C. 371, to the Big Lie and what it led to on January 6. This is the statute that criminalizes fraud against the United States and which the Mueller probe used against Russian disinformation aiming to subvert America’s electoral processes. This type of use received federal-court approval, at least in principle, in U.S. v. Concord Management, 347 F.Supp.3d 38 (D.D.C. 2018).

Ordinarily, I’m very wary of efforts to criminalize political speech, but intentional dishonesty designed to subvert the official procedures of electoral democracy might be a justifiable exception. The goal of the Big Lie was, and continues to be, to prevent the United States and its government to get the benefit of the 2020 election according to its honest results. In particular, the “stop the steal” component of the Big Lie, seeking to disrupt the lawful process of the January 6 joint session of Congress, could be seen as intentional dishonesty aiming to defraud the United States of the proper functioning of the Electoral College procedures of the Twelfth Amendment and the Electoral Count Act.

The fact that Trump and his allies continue to perpetuate the Big Lie, including at his recent Arizona rally, weighs in my analysis of this issue. Insofar as the goal of the Big Lie, now six months after Biden’s inauguration, is to undermine the legitimacy of the Biden Administration in the minds of many Americans, and to make the functioning of government more difficult, one could argue that if the perpetrators of the Big Lie are being intentionally dishonest (knowing what they say to be untrue), then they are attempting to defraud the United States of the proper functioning of its lawful government.

There should be consequences forthe kind of Big Lie mendacity that Trump and his allies are inflicting on America. One reasonable question to pursue, it seems to me, is whether 18 U.S.C. 371 is an appropriate vehicle for the accountability that needs to occur. (Remember, in this context, that even if the bar to prosecuting political speech under the statute is extraordinarily high, the facts here still might warrant it. Trump has been been incessantly repeating the Big Lie despite knowing that his own Attorney General, Bill Barr, called it “bulls___.” This surely put Trump on notice of the falsity of the lies he was disseminating, and would seem to make his speech beyond the protection of the First Amendment according to the “reckless disregard of the truth” standard in the Court’s cases, including New York Times v. Sullivan and Garrison v. Louisiana. Also, the Alvarez “stolen valor” case distinguished fraud statutes from the scope of its holding and therefore offers no protection for potential prosecution of knowing or reckless dishonesty under a fraud statute, like 18 U.S.C. 371.)

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“The Supreme Court’s Increasingly Dim View of the News Media”

Adam Liptak for the NYT:

No other member of the Supreme Court joined Justice Thomas’s opinion urging it to revisit the foundational 1964 libel decision, and Judge Silberman’s dissent was widely criticized. J. Michael Luttig, a former federal appeals court judge who was on President George W. Bush’s short list of potential Supreme Court nominees, called the dissent shocking and dangerous in an opinion essay in The Washington Post last month.

But the negative views from the bench of the news media may not be outliers. A new study, to be published in The North Carolina Law Review, documents a broader trend at the Supreme Court. The study tracked every reference to the news media in the justices’ opinions since 1784 and found “a marked and previously undocumented uptick in negative depictions of the press by the U.S. Supreme Court.”

The study was not limited to cases concerning First Amendment rights. It took account of “all references to the press in its journalistic role, to the performance of commonly understood press functions or to the right of press freedom.” Many of these references were in passing comments in decisions on matters as varied as antitrust or criminal law.

“A generation ago, the court actively taught the public that the press was a check on government, a trustworthy source of accurate coverage, an entity to be specially protected from regulation and an institution with specific constitutional freedoms,” wrote the study’s authors, RonNell Andersen Jones, a law professor at the University of Utah, and Sonja R. West, a law professor at the University of Georgia. “Today, in contrast, it almost never speaks of the press, press freedom or press functions, and when it does, it is in an overwhelmingly less positive manner.”

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