ABSTRACT This paper will argue that non-institutional media such as bloggers should be accorded the same First Amendment protection as institutional media under libel laws. Supreme Court precedent supports making no distinction between the institutional and non-institutional media. The status of the plaintiff is relevant in libel actions, not the status of the defendant. Moreover, when bloggers disseminate information that is a matter of public concern, they are functioning as journalists. Many federal courts have adopted this functional approach when determining whether bloggers can be protected by shield laws. This paper argues that the same standard should apply to libel laws.
ABSTRACT Every year thousands of people challenge the contents of libraries and school curriculum. The exact number of these complaints is impossible to measure and most are likely verbal in nature and handled informally. Some, however, explode into public view. This article explores two battles in New Jersey over Fun Home: A Family Tragicomic by Alison Bechdel. In a dispute that began via email, emerged publicly through several local board of education hearings, spread to a neighboring school, and then traveled to the courts, the Fun Home dispute illustrates the conflict at play in the joints between free speech, parental rights, and public authority.
While all colleges and universities are challenged by questions about free expression in the current environment, private higher educational institutions do so without the constitutional mandate of their public counterparts. Some private colleges and universities have sought to independently affirm their commitment to free speech through statements of principle or purpose. This study explores those statements in an attempt to understand if – and how – free expression is presented as worth protecting in private higher education.
ABSTRACT We explore student attitudes toward freedom of speech on campus using a think-aloud method, in which students are exposed to source material on a subject and “think aloud” as they work through the controversies. We gain an in-depth picture of how students understand and make judgments about who should and should not be allowed to speak on campus. Utilizing the think-aloud method to examine various cases of invited speakers on campus, we learn that students have difficult times differentiating legal and political reasons for preventing certain campus speakers. We also find that students tend to be more restrictive than a civil libertarian might like, albeit in (usually) internally consistent and sympathetic ways. We conclude by suggesting interventions that could help students better understand the way First Amendment rights are typically adjudicated and balanced against other lofty goals.
This essay argues that recent controversies over conservative speakers on college campuses are an opaque vehicle for White supremacy. Revisiting Herbert Marcuse’s concept of repressive tolerance through the lens of Critical Race Theory, this essay sketches the features of repressive victimhood: the advancement of categorical minority status orchestrated to shield white people from charges of intolerance while reframing counterspeech as commensurate with overt bigotry.
ABSTRACT This article analyzes the legal discourse surrounding two armed anti-government confrontations – at Bunkerville, Nevada, in 2014, and the Malheur National Wildlife Refuge in Oregon in 2016 – to understand how the public makes sense of the relationship between First and Second Amendment rights. Using the concept of non-judicial precedents and drawing on legal scholarship following District of Columbia v. Heller (2008), we find that public meaning-making mirrors concerns raised by legal scholars about using First Amendment logics to understand Second Amendment rights, conflating the two in meaning and practice. Discourse surrounding these armed confrontations focused on whether guns were needed to protect speech rights, the rhetoric of patriotism, and the contested constitutional primacy of speech versus guns. We argue that this case study demonstrates the need for communication scholars to problematize the logics that intertwine the First and Second Amendments, especially as the nation confronts the normalization of the use of guns in political protest, conflict, and insurrection.
ABSTRACT During the past half-century, countless women have been victims of sexual harassment, groping, and rape. When the #MeToo Movement gained momentum in October 2017, women who had victimized began to speak out. If women who were victims of sexual predators had not originally reported being raped but came forward as part of the #MeToo movement two or three decades later and the perpetrators denied it (in essence, accusing the victims of lying), their only legal recourse has been to sue the sexual predators for defamation. The law of defamation is a double-edged sword, however, because if victims use social media platforms to “name and shame” the men who raped them, the perpetrators have also sued their alleged victims for libel. This discussion examines the effectiveness of turning to defamation law as a means of redressing grievances in #MeToo cases, and also applies critical legal theory to these cases. In other words, if there is pervasive structural inequity in the legal system, meaning that perpetrators are often wealthy and powerful men who can easily afford attorneys’ fees, can victims still prevail in court, or can wealthy and powerful perpetrators buy their victims’ silence with non-disclosure agreements?
For the past 100 years, the Supreme Court ruling in the case of Schenck v. United States, 249 U.S. 47, from 1919 has stood as a landmark case due to the Court’s creation of a “Clear and Present Danger” standard of freedom of speech. Through the vehicle of the Clear and Present Danger measure, the Court reconsidered that the degree of freedom for inflammatory rhetoric could be legally permissible until the point that realistic danger of harm or illegal action might occur. One century after this ruling, this paper examines the unprecedentedly divisive and uncivil public rhetoric of a US President, Donald J. Trump. Through a descriptive analysis summarizing the characteristics of President Trump’s rhetoric, we contend that Trump generates a level of dangerous Presidential communication not publicly expressed by previous Presidents that arguably could be considered to overstep the limits of free expression set forth by the courts.
Until the 1960s, governmental limits on speech and expression, particularly around issues of pornography and obscenity, were common. These restrictions were enacted to reinforce a set of standards that had broad support among the American people. Since the 1960s, we have seen a great expansion of the right to free speech and expression. Today, however, the libertarian consensus has fractured. The new censorship that favors regulating hate speech confronts the underlying premises of the old censorship. Rather than comparing and contrasting the libertarian position with the censorship of hate speech position, as is so often done, in this article, I will compare and contrast two pro-censorship positions, one group favoring the censorship of hate speech, the other favoring the censorship of pornography and obscenity. My purpose is not to advocate for censorship. Rather, my idea is to examine and explain the different rationales that exist in the two opposing approaches to censorship, to better judge the merits of censorship and free speech.
In The Free Speech Century, Bollinger and Stone gather some of the most influential First Amendment scholars to ruminate over 100 years of jurisprudence. Dialogues between the two editors bookend t...
ABSTRACT This essay suggests using harassment law as a mechanism for remedying defects in "true threat" and "viewpoint protection" language which places an undue burden of proof on those trying to quell hate speech on campuses. The essay reviews noted failures and their causes in "true threat" and "viewpoint protection" rulings. Currently, the First Amendment of the Constitution protects freedom of expression unless it presents "a clear and present danger," is treasonous, obscene, libelous or slanderous. The initial "clear and present danger" standard laid out by Justice Holmes in the Schenck decision has been refined in several cases to create an even heavier burden of proof. Currently, based particularly on the Brandenburg v. Ohio and Virginia v. Black rulings, to be prosecutable, speech must be a "true threat," which means person-specific, imminent, and possible. However, the Supreme Court has also protected hate speech by defining it as "viewpoint" in such case as Indiana v. Hess, Snyder v. Phelps, and Matal v. Tam. This essay concludes by exploring ways to circumvent the "true threat" and "viewpoint" standards by relying on harassment rulings and extending these precedents from the workplace to campus learning environments.
ABSTRACT This essay responds to the holding in National Institute of Family and Life Advocates (NIFLA) v. Becerra (2018), arguing that the signal contribution of the majority opinion is its attempt to move commercial speech further into the absolute realm of protected public discourse. In finding the California FACT Act to be unconstitutional, the 5–4 majority uses a fractured commercial speech standard to define NIFLA’s marketplace communications as protected ideological speech. In so doing, Justice Thomas, author of the majority opinion, considers only the state’s speech – its compelled disclosures – and does not assess the rhetorical properties of NIFLA’s commercial communications. But the majority concludes nevertheless that NIFLA’s speech is impervious to publicly interested legislation, despite well-documented evidence of misleading and harmful advertising. Ultimately, it is argued that the question of whether NIFLA’s right to free speech has been violated cannot be squarely addressed if the speech with which the state’s disclosures dialogue remains nebulous. NIFLA seems to undermine the longstanding conception of commercial speech as a form that legitimates both the interests of speakers and the informational interests of publics, with the latter sustained when necessary by governmental initiatives that enable informed choice-making by regulating deceptive information in commercial marketplaces.
Restrictions on assembly, all of which disproportionately target Black, Indigenous, and People of Color, demonstrate that the freedom to assemble depends on state-defined temporal, behavioral, and spatial boundaries of political practice. This essay analyzes how the migrant caravans organized by Pueblo Sin Fronteras (PSF) push against the state-derived boundaries on assembly. Specifically, it focuses on two tactics deployed by the caravans: (1) using the term caravan and caravana to describe border crossing, and (2) media practices that turned undocumented border crossing into border refusal. These tactics contested the nation-state sovereignty required to mark its jurisdiction, and thus, to decide on the correct place and form of politics. In the end, the essay argues that the caravan expanded what it means to freely assemble by turning undocumented migration into protest. Communication scholars should pay attention to this expansion because it illuminates alternate ways of being political that push against the legacy of nation-state sovereignty and colonization.
ABSTRACT In this paper, I look critically at a recent statement put out by NCA’s Executive Committee on hate speech. Rather than promoting diversity and civility, I contend that this statement distorts and diminishes our understanding of communication, ultimately impeding the rise of new diversities and possibilities.
The chief spokespersons for this more refined sentiment against persons and voices that are new and unfamiliar to the campus and intellectual discourse are not the purveyors of gutter hate speech. They are polite and polished colleagues. The code words of this backlash are words like merit, rigor, standards, qualifications, and excellence. Increasingly we hear those who are resisting change appropriating the language of freedom struggles. Words like intolerant, silencing, McCarthyism, censors, and orthodoxy are used to portray women and people of color as oppressors and to pretend the powerful have become powerless.
ABSTRACT Since their inception, social media spaces such as Facebook and Twitter have been legally considered private spaces that are not subject to the protections of the First Amendment. Rightly so, for (as many forget) the First Amendment applies to government actors, action, and public spaces, and the Internet is not one of those. However, in 2018, the Knight v. Trump ruling in favor of plaintiffs extended First Amendment protections via the public forum doctrine to those seeking access to (but who have been blocked from) participating in discussions on President Trump’s Twitter account. Numerous other similar cases across the country have found that public officials who use social media to communicate with constituents have established a designated public forum. They therefore cannot choose who is allowed into that space and who is not by blocking (disallowing access for) some members of the public, because this constitutes viewpoint discrimination. This decision is important in bringing forum doctrine into the technological age, and it opens important spaces for democratic deliberation. This article explains the specific requirements for a social media space to be considered a public forum from Knight v. Trump, describes related cases that are using it as a precedent, and explores the implications and unresolved issues related to this case.
When I began my academic study of the First Amendment about 20 years ago, the topics seemed pretty straightforward. The journal was then named Free Speech Yearbook, and took on some of the most con...
ABSTRACT Whiteness as an ideology is the default norm constituting the infrastructures of New Zealand’s polity. Built with the master’s tool of racism, the mechanics of free speech in Aotearoa, New Zealand is embedded in whiteness that holds fast to liberal expressions of free speech, while dehumanising and denigrating indigenous and minority coloured realities. New Zealand’s ambivalence towards legislative acknowledgement that Māori tribal nations did not cede sovereignty to a foreign land as confirmed in te- Tiriti o Waitangi, is an epic human rights violation that is the precursor to a litany of human rights violations upon Māori and minority groups that followed. Freedom of speech discourse has been utilised as an impenetrable shield to justify threatening, offensive and abusive attacks – both psychologically and physically upon indigenous and minority groups. Massey University’s pursuit of a te-Tiriti led university actioned the cancelling of a known public speaker that negatively targets and stereotypes Māori, leading to national outrage at the perceived denial of the right to freedom of speech. The effects of racist and dehumanising speech upon targeted groups was again missing from public discourse. We attempt to illuminate the marginalised realities of indigenous and minority groups on the flipside of free speech discourse.
ABSTRACT Edward Snowden’s revelations ignited public discourse on whistleblowing and whistleblower protection legislation. Given the polemics over whistleblower distinctions throughout mediated exchanges between US officials and the press, this manuscript constitutes a synchronic ideographic analysis of pertinent, recognized ideographs as they were operationalized in relation to whistleblowing within the Snowden discourse. While news media and the public agreed that Snowden operated as a whistleblower, the US government adamantly denied this classification. Instead, US officials manufactured a media trial, and in three distinct phases, purged whistleblowing from the public forum, rhetorically criminalized Snowden as a threat to national , and utilized whistleblowing as a means to propagate the war on and defend covert surveillance. These processes afforded US officials the ability to funnel whistleblowers through private channels, effectively neutralizing the public power of whistleblowers. It is argued that removing whistleblowers from the public forum, while packaged as a protective measure for whistleblowers, operates as a defensive measure for state officials and authoritarianism writ large as it disarms a democratic populace of a foundational tool of free speech and dissent.
This paper examines the use of colonial era laws to restrict free speech in Singapore, along with more recent laws that are meant to stifle criticism of the state. It draws a link between current statutes and colonial laws, showing that two of the fundamental decrees restricting free speech in Singapore originated from British colonialism. It concludes by pointing out that free speech does exist in Singapore in some respects, in that it remains the sole purview of the state which exercises free speech liberally but uses the Singaporean justice system to deny the same for its citizens.
