I watched with great interest, great inspiration, and sometimes great horror the Democratic National Convention and Republican National Convention. The Presidential nominees, Hillary Clinton and Donald Trump, and their supporting speakers pitched opposite visions of how to make America great. Clinton focused on service to others, cooperation, and inclusiveness. Trump emphasized protection against international enemies, economic stability, and domestic law and order. Although Clinton’s message of “Stronger Together” is certainly more palatable than Trump’s divisive, alarmist rhetoric, I believe that it also undermines something fundamental that makes our country truly exceptional – individual rights.
Hillary Clinton has promised voters that, if elected, she will pursue a constitutional amendment to undo Citizens United v. FEC within her first 30 days in office. Citizens United, a controversial decision criticized by President Obama and opposed by both Republicans and Democrats, held that banning corporate expenditures on political speech endorsing candidates during an election is a First Amendment violation. Because I believe that the statute evaluated in Citizens United was unconstitutional, an amendment to the Constitution is the proper procedure for allowing greater restrictions on campaign expenditures. The content of this amendment is key to ensuring that it will be ratified, that it will be effective, and that it will not unduly censor political speech or disrupt our free speech paradigm.
Today is my last day as a Climenko Fellow at Harvard Law School. Tomorrow I leave Boston to become a professor at Ohio Northern Law School. As I tell my students, transitions are a good time to reflect on how far we have come.
President Obama’s tenure has seen an alarming uptick in incidents that compromise the delicate relationship between politics and law. Politicians and citizens of all political stripes have contributed to this uptick. Most recently, the efforts to recall Judge Aaron Persky based on his sentencing decision in a highly publicized sexual assault case demonstrate how identity politics and emotional outrage can dramatically undermine our respect for an independent judiciary.
Yesterday’s 108-page majority opinion upholding the Federal Communications Commission’s net neutrality rules devotes less than 10 pages to the First Amendment challenge. Judges Tatel and Srinivasan held, in validating the FCC’s net neutrality rules, that prohibiting Internet Service Providers from prioritizing certain Internet traffic does not violate the First Amendment. This limited First Amendment analysis is fitting. Companies like Time Warner do not make editorial judgments when providing Internet services and thus are not First Amendment speakers. However, the D.C. Circuit’s opinion has implications for other First Amendment interests – like Google’s right to control its algorithm or an agency’s power to revoke a communications provider’s free speech rights. The D.C. Circuit should have written its opinion more carefully so as to better protect and clarify First Amendment interests for future cases.
Presidential candidate Donald Trump has a widely known, albeit incoherent, stance on libel. Like many of Trump’s policy positions, his views on libel appear to be founded upon an angry shard of truth (newspapers should not allow bias or corporate concerns to pervert their reporting). But as with many of his policy positions, Trump’s views on libel fail to grasp the complexity of the problem, and expose his views as self-serving and hypocritical. Indeed, instead of making American great again, Trump’s views on libel threaten to undermine one of the things that makes America the greatest—our uniquely strong free speech protections.
In response to allegations that Facebook suppresses conservative news items in its “Trending” section, Senator John Thune has launched an inquiry into Facebook’s policies for determining which items Facebook links to as most newsworthy. Senator Thune, Chairman of the Committee on Commerce, Science, and Transportation, is requiring Facebook CEO Mark Zuckerburg to answer questions such as “how many stories have curators excluded that represented conservative viewpoints or topics of interest to conservatives?” Thune’s legitimate concern that Facebook is misleading the public into thinking that a neutral algorithm selects the “Trending Topics” is now outweighed by the graver First Amendment concern that the government is attempting to manipulate or suppress Facebook’s speech.
My article has been posted on the Columbia Law Review’s website. I am very receptive to all comments and feedback.
In March of 2007, Brad Delp, the legendary lead singer of the band Boston, committed suicide. Last November, Massachusetts’s highest court of appeals dismissed a defamation lawsuit by band member Donald Thomas Scholz, who claimed that the Boston Herald and Delp’s ex wife Micki falsely blamed Scholz for Delp’s suicide. Three days prior to the suicide, Scholz, a perfectionist who treated Delp and other band members harshly, had informed Delp that Fran Cosmo, another band member with the ability to cover Delp’s painfully difficult high notes, had been disinvited from Boston’s summer tour. Delp had been lamenting Scholz’s tight control over him and discussed suicide as a way to avoid disappointing Scholz and Boston’s fans. However, Delp also suffered from mental illness, and, just eight days prior to the suicide, Delp was caught secretly videotaping the bedroom where his fiance’s younger sister, Meg, lived with her boyfriend. This incident distressed Delp greatly, and both Meg and her sister Pam feared for Delp’s safety.
Because the exact reasons for Delp’s suicide are unknown, the Massachusetts Supreme Judicial Court held that statements about Delp’s motive were matters of speculation or interpretation, protected by the First Amendment from defamation lawsuits. The SJC also concluded that Herald headlines such as “Pal’s snub made Delp do it: Boston rocker’s ex-wife speaks,” are not reasonably interpreted as fact because readers do not expect newspaper headlines, especially those in entertainment news columns, to “include nuanced phrasing.” The SJC opinion, which confusingly interweaves the Massachusetts requirements for bringing a defamation action and the First Amendment protections that shield particular libel suits, glosses over significant questions such as how misleading headlines can be, how much responsibility newspapers have in ferreting out other causes in cases involving motive, and when the cause of someone’s suicide contains objectively verifiable facts. The Supreme Court, which has not reviewed a defamation case in 25 years, should use this case to clarify some important tensions in defamation law.
When I talk to students about free speech issues, one of the major objections to America’s conception of free speech is that it favors the rich and powerful, thus perpetuating the status quo. This is a fair and important objection. In this post, I will address the reasons that I ultimately find this objection conceptually and empirically unsatisfying. Each of these reasons deserves its own blog post, so I want to just begin this conversation by outlining my thoughts here.