This year brought some tremendous changes in the landscape of First Amendment doctrine and free speech values. Below is a high/lowlight of this year’s free speech developments, updates on previous posts, and some projections for the future.
First, a newly relevant update on a post from 2016. I had predicted, in March of 2016, that the Florida Court of Appeals would overturn Hulk Hogan’s $140 million verdict against Gawker Media. This prediction was based on the fact that Hogan’s invasion of privacy claim should have been barred by Gawker’s First Amendment right to publish a video depicting, among other things, 10 seconds of sexual activity between Hulk Hogan and Heather Clem. Instead, Gawker filed for bankruptcy and dissolved, ultimately settling the case before any appeal.
Now, a new iteration of the privacy rights versus First Amendment issue has arisen in the Iowa Supreme Court, where an attorney, Jaysen McCleary, has obtained a temporary injunction against The Des Moines Register, blocking the newspaper from publishing records it had legally obtained about the attorney’s personal injury lawsuit against the City of Des Moines. This prior restraint flies in the face of Supreme Court cases such as Florida Star, and will hopefully be overturned. (Hold on: the restraint seems to have been lifted today!)
McCleary is claiming that he, too, is championing a constitutional right – the right to privacy. McCleary should know better. Constitutional privacy rights serve as protections against government action, not against newspapers. Invoking constitutional rights as relevant against private parties is a major mistake the people of Twitter made in 2017, but disheartening from an attorney.
Wrongheaded views about our constitutional culture pervaded on both the right and the left in 2017. Trump, who has called for stricter libel laws and falsely claimed that flag burners could have their citizenship revoked, became our 45th President. The Nazi-punch meme proliferated, based on the dangerous view that those who advocate (even peacefully) for reprehensible ideologies should be met with violence. The speech/conduct distinction, in both First Amendment doctrine and in our culture, is necessary for pluralism and for peaceful exchanges of ideas.
Destructive and disruptive protests abounded, with college campuses reacting in damaging ways to speakers they found intolerable — despite a public university’s obligation under the First Amendment to allow student groups to invite speakers, on the same terms, regardless of viewpoint. Much worse, at a rally in Charlottesville, a white supremacist killed anti-racism activist Heather Heyer. James Alex Fields, Jr., a self-described neo-Nazi, will be tried for first-degree murder for her tragic death.
My hope for 2018 is that, as a country, we realize that meeting speech with violence simply serves to escalate violence and bring more publicity to those who spread corrosive ideas. One benefit of President Trump’s shocking victory is that we are taking stock of where our institutions have gone wrong, so as to foment such antipathy towards our cherished values and institutions from certain members of society. Trump has often wrongly, and excessively, maligned the media, and conservatives take issue with aspects of the academy. Our newspapers and our academic institutions do lack sufficient intellectual diversity, and are often viewed as simply peddling a political agenda on readers and indoctrinating students.
I have some hope that those on the left recognize political diversity as a critical component of true diversity, and that intellectual honesty and truthful narrative, not social justice, becomes the primary mission of both our newspapers and our academic institutions. To solve our social problems, including a broken, polarized political culture, these institutions must arm people with the critical thinking skills and the facts to make decisions on their own. We need to stop misusing academic terms like “privilege” to shut down conversations based on the identity of the speaker. This term, which accurately describes important social phenomena, has hijacked our discourse in ways the academics who coined the term did not imagine.
Free speech culture has successfully worked to shed light on our sexual harassment problem, in comedy, politics, and the judiciary. The #metoo movement demonstrates how an open free speech culture and permissive First Amendment doctrine allows those without money or power to amplify their voices and foment social change. Women, and men, who have never before shared their stories of sexual assault, were empowered to do so, and it has effected material change. Football players and other professional athletes used their First Amendment rights to take a knee during the National Anthem in protest of police brutality against minorities.
Yesterday, prominent jurist Alex Kozinski retired, after several women, including former clerks, accused Judge Kozinski of serious sexual misconduct. This may be the right result, but I have some concerns with the ease with which we can destroy respected careers without any real adversarial process. Further, the lack of nuance and proportionality that often accompanies the dialog we are having on sexual harassment demonstrates what many have noticed is an increasing culture of outrage. Next month, I plan to blog about what actually constitutes sexual harassment. Simply cat-calling people on the street, or a stray unwanted sexual remark, is legally insufficient to hold an individual or employer legally responsible, especially because sexual harassment law intersects with pure, protected speech. We may wish to change the culture around, for example, cat-calling, but we cannot lose sight of the fact that it is legally protected for good reasons.
Masterpiece Cakeshop, the case that pits civil rights against First Amendment liberties, is thus fitting as the most prominent Supreme Court case argued in 2017. My hope is that the Supreme Court, which, during argument, gave this case and its implications the seriousness it deserves, draws a legal line that safeguards our liberty against being compelled to utter socially accepted messages without destroying civil rights law. In two other cases, Packingham v. North Carolina and Matal v. Tam, the Supreme Court this year vindicated the First Amendment right to access social media – even for child molesters – and to create disparaging trademarks.
The Supreme Court is overwhelmingly in favor of expansive First Amendment rights, even if our culture is increasingly skeptical of them. That may be a virtue. The point of the Bill of Rights is to protect fundamental rights that are socially and politically unpopular.
Finally, I want to thank some lawyer and law professor friends for this year’s truly amazing April Fools’ prank, where they convinced me that the New York Bar had initiated disciplinary proceedings against me. My hope is that fun pranks like this do not become seen as too socially unacceptable in the future (we can be tougher, as a culture, than we are). My prediction is that, in 2018, my prankster friends are going to have to do something spectacular if they want to launch a third successful April Fools’ joke against me.