First Amendment Lessons From France’s Burkini Ban Debacle

France made headlines (and waves) last month after its burkini bans yielded photographic evidence of police officers forcing women to take off clothing on public beaches.  Now, France’s highest administrative court (and other French judges) have begun invalidating these bans, instituted by 30 cities in France, that prohibit publicly wearing burkinis.  Yet French citizens are still threatening to call the police on women wearing burkinis —  swimwear, donned mostly by Muslim women, that covers everything but the face, hands, and feet.

In America, a ban on wearing religiously-affiliated clothing would be unlikely to succeed legislatively, and would certainly be invalidated judicially as both free speech and free exercise First Amendment violations. However, there are lessons we can learn from France’s struggles with the burkini ban as our First Amendment jurisprudence and free speech culture evolves.  France’s reasons for implementing the burkini ban are echoed across the political spectrum: in calls to censor pro-Trump chalkings on university campuses and in approval of police officer’s  denial of protection for football players who refuse to stand for the national anthem.  And France’s staunch secularism conflates state refusal to ban religious clothing with state endorsement of religion, just as some scholars and critics of our current First Amendment doctrine believe that the failure to ban particular speech is tantamount to approving of such speech.  In essence, France’s burkini ban debacle illustrates why attempts in this country to abridge speech some find offensive, un-American, or regressive are ultimately intolerant and misguided.  The existence of the ban also shows the importance of distinguishing between state action and private action in determining when our liberties are restricted.

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What Time Misses about the Free Speech Benefits of Internet Trolling

Time recently described the frequency and ferocity with which Internet users, often women, members of racial, ethnic, religious minorities, and members of the LGBT community, experience Internet trolling.  Speech, ranging from vitriolic personal attacks, to racial and religious slurs, to threats of rape, to the development of slang terms like “cucks” to describe male feminists, to disclosure of personal contact information, causes many Internet users to avoid certain topics or disengage from the Internet community or public life.  Internet trolling, according to the Time piece, is “the main tool of the alt-right” (famous for the men’s rights movement and anti-immigration views).  Trolling is used as a way to voice displeasure against an all-female Ghostbusters and to galvanize support for controversial views.

In many ways, this type of speech is contrary to the ideal of public discourse that is civil, well-informed, sophisticated, and inclusive of a diversity of perspectives.  In some cases, such as where the speech would cause reasonable fear for one’s immediate safety or would incite others to cause imminent physical harm, the speech loses its protection and becomes criminal behavior.  However, because of our free speech protections, most of the trolling speech, even truly horrendous speech that gets very close to the line of threatening or inciting, cannot be prohibited.  In essence, then, Time is arguing that our highly protective free speech doctrine can be counterproductive to social discourse and civic betterment.  But what the Time article misses is both the importance of allowing this speech as a matter of First Amendment doctrine and the importance of the speech itself as a matter of free speech values.

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Clinton, Trump, and What Makes America Great

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.

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Amending the Constitution to Undo Citizens United

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.

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Trump University, The Stanford Sexual Assault Case, and The Importance of an Independent Judiciary

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.

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A Modest Concern with the D.C. Circuit’s First Amendment Analysis in Net Neutrality Case

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.

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Trump’s Stance on Libel Would Make America Europe Again

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.

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Facebook’s “Trending Topics” and The First Amendment

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.

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