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Oh What a Horribly Speech-Restrictive Jurisprudence We Now Have:

A commentator on the criminal harassment thread writes something that I've often heard from others as well:

Blah blah blah. In a word in which campus speech codes and 'hate speech' are widely accepted jurisprudence, who cares? Freedom of Speech as you want to define it hasn't existed for decades.

Before we say that free speech talk is pointless because free speech law is so badly busted, let's make sure that we accurately describe current "jurisprudence":

1. There is no "hate speech" exception to the First Amendment. Some people have argued for such an exception, but it has not been accepted by the courts.

2. Campus speech codes (which generally means codes restricting university student speech) have been struck down by every court that has considered them, and there have been several. I agree that where they exist they can still have an improper deterrent effect, even if they're almost never enforced, and routinely struck down. But "widely accepted jurisprudence" treats them as unconstitutional. That's pretty much the best the courts can do now, given our current sensible standing rules that don't allow courts to strike down a speech code until a proper lawsuit is brought to throw it out.

3. I do think that hostile environment harassment law poses serious First Amendment problems. I think I've written more about this subject than anyone else. But for all its flaws, the jurisprudence in this area neither endorses campus speech codes nor a broad "hate speech" exception.

4. The phrase "Freedom of Speech as you want to define it" -- which I take it means broad free speech protection -- "hasn't existed for decades" suggests that there once were the Good Old Days of free speech, and now they're gone. But that's just not so. Speech today is probably on balance as broadly protected in the U.S. as ever, and more so than at nearly other time in the past. I've discussed this before as to speech on campus, but it's also true as to other kinds of speech. (For instance, I agree that limits on corporate speech around elections should be unconstitutional, and that cases upholding them are mistaken. But such limits have been around in one form or another since the early 1900s.)

So it's certainly perfectly proper to condemn speech restrictions that one sees as unconstitutional, or constitutional doctrines that one sees as unsound. But let's not despair of free speech protection based on an unsound description of what speech is actually protected by current legal rules.

EvilDave (mail):
Free speech for me, but not for thee
10.14.2008 7:47pm
krs:
Despite my best efforts, none of my comments has been sufficiently retarded to merit its own blog post in reesponse. Congratulations to Sk.
10.14.2008 7:50pm
Cornellian (mail):
Speech today is probably on balance as broadly protected in the U.S. as ever, and more so than at nearly other time in the past.

Oh come on, half the fun of commenting is being able to claim that the law is in a catastrophic downward spiral due to 1) activist judges or 2) right-wing takeover of the judiciary (pick one) which necessarily means the law must have been much better at some point in the past. Don't spoil our fun!
10.14.2008 8:03pm
Paul Milligan (mail):
Gene - in the earlier thread, you seem to posit the concept that slander and libel are somehow 'proected free speech', and I took you to mean that they should be subject only to private civil action, rather than government ( and thus the 1st Amendment tie-in ) criminal action. I disagree. That position gives overwhelming bias in favor of the libelors and slanderors ( given that the extreme expense of civil action, in both time and money, is beyond the reach of most ordinary people ).

I doubt you would take the same position about Party A punching Party B in the mouth ( although civl action is available, there is a criminal remedy as well ), although the damage done to the innocent by the slander can be as extreme or much more so.

If you slap me in the face, leaving only a red mark and some resentment on my part, you can be arrested. If you publish or speak false things about me that cost me my job, my reputation ( OK, let's pretend I HAD one ), my liveleyhood, my home, how should that be afforded lesser protection under law ? How should my only available remedy o that much greater life-changing harm be to go to some lawyer who opens the discussion saying 'I need a $ 10,000 retainer, and even if we win, don't count on getting a dime out of it ' ?
10.14.2008 8:20pm
Norman Bates (mail):
What about McCain-Feingold which, as Ann Coulter has so aptly pointed out, the Supreme Court has upheld as a political speech exception to the First Amendment's penumbric protection of pornography?
10.14.2008 8:41pm
Eugene Volokh (www):
Paul Milligan: Slander and libel aren't protected free speech; they can be punished under a law that is limited to false statements, and requires proof of falsehood (plus the requisite mental state, if appropriate). But the law I was condemning didn't require such proof, and let factfinders punish speakers regardless of whether the statements were false.

Norman Bates: As I said, restrictions on corporate campaign speech are old, and were upheld in Austin v. Michigan Chamber of Commerce (1990), as well as implicitly so in some earlier cases. I'd like to see a day in which such speech is protected by First Amendment jurisprudence -- but I don't think we've ever had such a jurisprudence so far.
10.14.2008 8:45pm
smitty1e:
@Norman Bates:
Irrespective of the content of the legislation, McCain-Feingold appears thus far to be a paddle for the warming of a "momma's boy's" bottom.
Would that legislative feedback such as this were more commonly available.
10.14.2008 8:46pm
J. Aldridge:
"Campus speech codes (which generally means codes restricting university student speech) have been struck down by every court that has considered them, and there have been several."

Under Warren Court precedent?
10.14.2008 9:13pm
Oren:
Eugene, are you discounting Wisconsin RTL v. FEC or do think that it represented the logical application of McConnell v. FEC? Honest question because it seem odd that you would mention restrictions of corporate campaign speech without reference to an opinion that, in my inexpert opinion, sets a rather high bar before government can restrict that speech.
10.14.2008 9:13pm
Bill Poser (mail) (www):
I agree entirely with Eugene as far as free speech in the US is concerned. I am, however, concerned about freedom of speech elsewhere in the world, where it is not doing very well. In Europe, there has even been a retrenchment. European "hate speech" laws are a bad development, as is the increasing pressure that Muslim countries are exerting for legislation against "defamation of religion", which I put in scare quotes since it is clear that they mean "criticism of Islam".

The danger to those in countries that are not the locus of such restrictions on freedom of speech is that they may create a friendly environment for it and may spread via international law and treaties.

The other area in which it seems to me that there are new dangers to freedom of speech is IP law, where copyright in particular is becoming increasingly problematic. I am very much in sympathy with Neil Netanel's work in this area. Although less important, I think that trademarking of generic and descriptive terms is an area that needs attention.
10.14.2008 9:22pm
Jim Miller (mail) (www):
What I found interesting in this post is two words: "on balance".

I take that to mean that we have had gains and losses for freedom of speech, but that Professor Volokh thinks we have had more gains than losses.

It would be useful for this discussion if he would give us more on how we have gained -- and how we have lost.


And I am going to make a follow-up argument that I fear Professor Volokh will reject -- even though he was the one who made me think of it (in an email years ago).

We have many restrictions on campaign finance. Sometimes those are used to restrict the freedom of individuals to speak out during campaigns. Professor Volokh may believe that, if tested, those restrictions would fail. But those tests often require substantial commitments of time or money. And so those affected by the restrictions may not challenge them because they do not have the resources, or do not want to spend enormous sums.

These effects may be less obvious to law professors, for whom such restrictions are interesting subjects for discussion and -- occasionally -- a chance to get in on a real case. But for those who aren't law professors, or wealthy enough to hire law professors, those restrictions are real deterrents to speech -- even though they may be unconstitutional.

For example, very few individuals could have withstood the attack on a Seattle area talk station, KVI. If I recall correctly, they had to spend tens of thousands of dollars to defend their right to speak about a state initiative. If a similar attack had been made on my web site, I would have had to surrender.

(Of course, if Professor Volokh would agree to defend me in free speech cases, without being paid, I might feel differently.)
10.14.2008 9:26pm
tsotha:
Bill Poser, along those lines I'm curious what your and Professor Volokh's opinions are on the Church of Scientology copyrighting religious documents as a way to prevent information about the group from circulating. Something we live with as a price of reasonable copyright law, or unconstitutional free speech abuse?
10.14.2008 9:33pm
Bill Poser (mail) (www):
tsotha:

Well, you'll get a more informed opinion from Professor Volokh, but in my view there needs to be a large public policy exception to copyright, under which publication of the Church of Scientology documents would fall. However rabidly fans may want access, the public doesn't really have a need to know about Harry Potter's next adventure, so there is no real loss to society in allowing Ms. Rowling to control the distribution of her work as she wishes, but there are very good reasons for the public to know about Scientology, and these should override the Church's property interest. I would like to see jurisprudence if not legislation that more clearly spells out both public policy and fair use rights.
10.14.2008 9:49pm
Oren:
Jim, while I'm sympathetic to the argument that challenging a law is costly, I don't think it's persuasive in this context. If the attorneys chose and vet their plaintiff carefully, they will establish a precedent that applies to everyone. Done right and it's only got to be done once.
10.14.2008 10:13pm
RPT (mail):
From a practical litigation perspective, California defamation law has been almost completely erased by the appellate decisions under the Anti-Slapp statute.
10.14.2008 10:17pm
Oren:

From a practical litigation perspective, California defamation law has been almost completely erased by the appellate decisions under the Anti-Slapp statute.


Well, they were bound to get something right eventually, if only by chance.
10.14.2008 10:21pm
Fub:
RPT wrote at 10.14.2008 9:17pm:
From a practical litigation perspective, California defamation law has been almost completely erased by the appellate decisions under the Anti-Slapp statute.
For hotheads and malicious plaintiffs, probably.

But basically all a plaintiff needs to do to prevail against an anti-SLAPP motion is to plead sufficient facts in his complaint to prevail without further discovery, or demonstrate in response to the defendant's anti-SLAPP motion that the speech was not in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue. See California Code of Civil Procedure Section 425.16.

I don't think that a complaint for an actual libel would be vulnerable to an anti-SLAPP motion.
10.14.2008 10:47pm
Gabriel McCall (mail):
Jim, while I'm sympathetic to the argument that challenging a law is costly, I don't think it's persuasive in this context. If the attorneys chose and vet their plaintiff carefully, they will establish a precedent that applies to everyone. Done right and it's only got to be done once.

Perhaps this argument is more persuasive to the carefully-chosen and -vetted plaintiff who's bearing the cost. Or are you suggesting that the careful attorneys generally do this without charging their client, in the interests of the public good?

"This is a slam dunk case, and once we win it this stupid law will be gone. But it's going to cost you, personally, X large sum of money to take a stand and put things right." You don't think that might have a bit of a chilling effect on your pool of potential plaintiffs?
10.14.2008 11:25pm
Oren:
Gabriel, this is precisely why most of the "good cases" are taken on by 3rd party interest groups. They have the money to pay the lawyers and the objectivity to wait around until they get the right challenge. See, e.g. Heller.
10.15.2008 11:17am
Sk (mail):
As the original poster of the blah blah blah post, I'll follow up.
As a non-lawyer, I freely admit to using the word 'jurisprudence' in what I now presume to have been the wrong way.


Your criminal jurisprudence post was titled:

"The Return of Criminal Libel, With Truth Not Being a Defense?"

Presumably this means that criminal libel was once a crime, it was then found not to be a crime, and today, it is returning as a crime. In other words, in freedom of speech terms, it was not protected, then it was protected, and today it is no longer protected. Sounds like a net 'loss' of freedom of speech (at least as compared to the middle 'it was protected' period).

((Note that it is thus odd for you to characterize my views: ("The phrase "Freedom of Speech as you want to define it" -- which I take it means broad free speech protection -- "hasn't existed for decades" suggests that there once were the Good Old Days of free speech, and now they're gone.") The whole point of your post was to observe that there was a 'Good Old Days' with respect to Criminal Libel, that is now at risk of going away in Ohio.)

Campus speech codes have not been upheld by the courts, but nevertheless, as you say, have an 'improper deterrent effect.'

You state that 'hostile environment harrassment law' poses serious first amendment problems.

"There is no 'hate speech' exception to the first amendment." I admit I am surprised by this. The concept of 'hate speech' is pretty widely accepted (amongst non-constitutional lawyers). It may have not advanced in constitutional law; it has unquestionably advanced in the common cultural consciousness of the country.

" I agree that limits on corporate speech around elections should be unconstitutional, and that cases upholding them are mistaken. But such limits have been around in one form or another since the early 1900s.)"
It sounds like, in your eyes, McCain-Feingold is a wash-bad for free speech, but balanced by limits on free speech that existed before McCain-Feingold (those were presumably cancelled when McCain-Feingold was passed. Otherwise, McCain-Feingold would have added to preexisting limits to free speech, right?)


To summarize your views;

Criminal Libel, according to your own post, is more limiting than it was before (that was the whole point of your post).

Campus Speech Codes have an improper deterrent effect.

Hostile Environment Harassment Law is unconstitutional.

Hate Speech is apparently not a freedom of speech issue (though I disagree with this-admittedly from personal experience: 'hate speech' is pretty widely culturally accepted-perhaps it merely has an 'improper deterrent effect').

McCain-Feingold is unconstitutional, but you believe doesn't add to free speech limits that existed before it passed (again, I disagree. It must have added something, and if its unconstitutional as you state, it must have added unconstitutional limits to free speech-unless, the day McCain-Feingold was passed, other corporate limits to free speech were simultaneously overthrown. Only then could the net 'free speech limits' balance out).

We could probably add the post from today, where a 15 year old girl is going to be labelled a sex offender for creating naked pictures of herself.

What balances all of this, to make you state that "Speech today is probably on balance as broadly protected in the U.S. as ever"?

Sk
10.15.2008 11:18am
Oren:
Sk, perhaps you are unaware of the more onerous restrictions on speech in the past? "Banned in Boston" isn't just a figment of our imagination.
10.15.2008 1:06pm
whit:
<blockquote>
"There is no 'hate speech' exception to the first amendment." I admit I am surprised by this. The concept of 'hate speech' is pretty widely accepted (amongst non-constitutional lawyers). It may have not advanced in constitutional law; it has unquestionably advanced in the common cultural consciousness of the country.

</blockquote>


you are confusing two things.

Yes, the concept of hate speech is pretty widely accepted.

The issue is that in the US, we believe that hate speech (like many other forms of objectionable speech) is constitutionally protected.

This distinguishes us from nearly every nation on earth. We recognize the righ of citizens to hear hate speech, to discuss it, to advocate hate, and to make their own determinations as to whether the theories behind it are correct or not.

But there is a huge distinction between recognizing that there is a thing we call hate speech, and CRIMINALIZING it.
10.15.2008 6:43pm
Oren:
Whit is on the right track -- the right response to hate speech is public opprobrium for and, in extreme cases total ostracizing of, the offender.
10.15.2008 6:45pm
geokstr:
I am not certain if I am reading this post correctly, but if you are saying that "free speech jurisprudence" is the only hindrance to free speech, you are sadly mistaken. We are about to see what happens when an admitted disciple of the Marxist Saul Alinsky gets the full force of government to play with. Alinsky is the creator of "community organizing". His book "Rules for Radicals" is basically just a tortured and twisted internally contradictory rationale for the ends-justifies-any-means-whatsoever school of politics. In it he advocates lying, cheating, stealing, intimidation, manipulation, coercion, threats of violence and anything else the "organizer" can get away with.

While Obama claims that he is not for the so-called "Fairness Doctrine", both Pelosi and Reid are on record in favor of it, and look for him to sign such legislation quickly after the inauguration. While he can still claim that the law does not limit speech per se, it certainly will have the effect of making it totally uneconomical for radio stations to have currently popular conservative talk shows when they would have to have equal time for liberals that no one will listen to and no sponsors will advertise on. They would also have to spend considerable resources documenting their compliance with th law if they wanted to continue political talk shows. The stations will quickly drop political programming, resulting in suppression of only conservative speech.

This will not cover the networks, cable TV, newspapers, news or any other kind of magazines. This will leave Fox as the only center-right medium, along with a few opinion magazines.

Look for something similar to the "Fairness Doctrine" to be passed to cover internet blogging, in a way that will only hamper right-wing blogs. Google, Yahoo, YouTube and other providers are already on board to suppress right wing internet ads and conservative blogs have reported being harassed and blocked outright by the providers.

Obama surrogates have already threatened conservative citizens groups placing anti-Obama ads with investigations of the personal lives of their donors. They even have attempted to have the IRS perform audits and question their tax status. Wait until they actually have the power of government behind them.

The Obama campaign has already directly made attempts to squelch speech by swamping the call-in lines to talk radio shows that had anti-Obama guests on. They have developed sophisticated "astro-turfing" online campaigns to spread malicious smears on the internet, and co-ordinated campaigns of left-wing trolls now routinely pop up on any conservative, moderate, or independent blog where even a hint of criticism of Obama or the slightest positive about Palin/McCain appears.

The point of all this is that you no longer have to pass laws that come right out and say - "I am limiting your speech". It is enough to intimidate your opponents into suppressing their own speech. When they have the entire Justice Department and the IRS behind them, you had better not say anything critical of Obama.

In Canada, they now have a vast series of kangaroo courts where leftists and Muslims can bring charges of "hate speech" against literally anyone that utters anything they perceive to be critical whatsoever about Islam. Mark Steyn and the magazine that published his excert from "America Alone" just went through a two year ordeal that cost them nearly a half million dollars for the crime of accurately quoting imams and ayatollahs about their plans to take over the West from the inside. The costs of the complainants are all covered by the government. There are no rules of evidence, no right to face your accuser, you have no presumption of innocence, and the commissioners are not real judges but are all left-wing political hack appointees who make up the rules as they go along.

The only reason they were just acquitted is that they had the resources to make a laughing stock out of the commissions themselves. However, until then, the commissions had a 100% "conviction" rate, because to defend yourself cost so much that all the prior defendants just gave in and settled. Commission investigators have been caught making racist postings under aliases and on hijacked IPs only to then use their own comments as proof of the racism of the blogs they posted on. One of the investigators has been the complainant in nearly every case, and he even has a name for his little game called "maximum disruption".

And the only ones being prosecuted, coincidentally, are conservatives, authors chronicling the Islamic threat, and Christians. One Christian pastor, Stephen Boisson, was found guilty of the heinous crime of writing an article mildy critical of homosexuality in a regional newspaper and quoting the bible's admonitions against it. He was fined, forced to make a written public apology, banned from saying anything critical of homosexuality in writing, in emails, on the internet, and even from the pulpit - for the rest of his life.

And the complainant was not even gay - he was a professional rabble-rouser who just felt "offended" by the pastor's article.

All this is a matter of public record.

If you think that can't happen here, think again. There are already fledgling "human rights commissions" in a number of states. One recently fined a Christian photographer $7,000 for refusing to take wedding photos for a lesbian couple, even though there were plenty of other photographers who were available. They were "offended", you see.
10.16.2008 2:04am
devil's advocate (mail):
So I'm wondering, in a bit of a threadjack -- but in this context it really is a VC free speech related question -- whether the chaste among us (certainly not including myself) would label geokstr's comment as evidence of Obama Derangement Syndrome.

Essentially, his thread makes the the allegation that an Obama presidency in concert with the Democratic Congress is likely to suppress right of center speech. Because Obama has denied this, is such speculation supposed to be uninformed flight of fancy, or reasonable assumption that he would never admit to such motives even while harboring them and while his campaign is actually carrying them into practice using the hecklers veto -- the enforce freedom of which is quite analogous to Eugene's citation in another thread of an early 19th century debate over the fairness doctrine in which an unnamed commentor (citation Eugene) attacked a proposal for a "right of reply" with regard to purported libel:


But suppose, what is very likely, that the defence be a more gross libel than the original publication, where is then the "reparation to the feelings and fame of the injured individual?" An act containing such a compulsory clause ought to be denominated an act to encourage and promote, not an act to restrain and suppress, the crime of libelling.



My problem with the whole derangement syndrome thing is really the diagnosis problem. I know when a post makes me cringe, but I really try to give it the extra mile to get to the commentor's point rather than apply some kind of bell curve to see whether his substantive arguments are outside the 95% confidence range (not to mention that that exercise tends to be a one-tailed analysis based on one's own prejudices, for all you statistics minded nerds).

If we exercise our freedom of association to take exception to comments outside a 'mainstream' as we see it, then public discourse will necessarily take the course of a social statistics distribution. Sure there are arguments about truth and misrepresentation and purported filters to decide when derangement syndrome is present, but I still think they ultimately boil down to POV, and that derangement syndrome is as overdiagnosed as ADD, or ADHD, or the popular explanation of the moment for why we can't all just get along.

Mind you that politeness is a different story, I tend to believe you catch more flies with honey, but cynical curmudgeons who are past that point don't necessarily have a disease.

Brian
10.16.2008 10:09am
devil's advocate (mail):
and not to evade the substance here


the right response to hate speech is public opprobrium for and, in extreme cases total ostracizing of, the offender.


Within reason, as to the means of opprobrium and ostracization I am in complete agreement. So, Oren (and Eugene) how do you react to these speech censoring "human rights commissions" that are at work right now in America. Forget the Canadian example, the lesbian photographer thing and....

...a similar example from RI where the owner of a Refrigeration Business who said to the companion of a customer when the two conversed repeatedly in spanish regarding the purchase something to the effect of 'I'd sure like to see your social security card' waas fined and forced to issue a public apology.

The 'findings' of the Human Rights Commission, with the loose evidentiary rules spoken of above, were more extensive as to his conduct, but even if you believe that he was seriously asking to see both their social security cards as a prerequisite to doing business and actually threatened citizen's arrest, none of that happened. they got their $18 worth of parts and he didn't arrest them, so we're talking about speech here.

This is kind of like the hostile work environment that Eugene has already criticized but it takes it to a disturbingly higher lever. There are plenty of competing refrigeration stores (the reason that this old line business closed, don't read the human rights complaint as having played a large part in that). This just doesn't strike me as labeling of drinking fountains for natives only.

(I tend to credit the more colloquial version which is to say that most of Richardson's comments were intended putatively and did not indicate any actual standard setting or requests precedential to willingness to engage in commercial exchange. I have bought refrigeration parts at this counter for 20 years, albeit that is not my mainline business so I'm in there for a few weeks in the spring most years and I was not a witness to this affair so I'm relying on 2nd hand recitations coupled with my knowledge of this individual. He is a grating, angry, cynical nativist, but last I looked that wasn't illegal - I'm thinking maybe I better look again.)

Brian
10.16.2008 10:33am
Richard Aubrey (mail):
Case in Michigan--I might recall the name eventually--where a sheriff's deputy overheard a woman mutter to her husband something on the order of why don't they (a couple of Hispanics) speak English.
She was prosecuted.
10.17.2008 11:21am
Richard Aubrey (mail):
Peggy Barton.
Original accusation was of offending. Then it turned out that, hearing speech like that, Hispanics might get violent. So she's inciting violence.

No free speech issue here. Just the chilling effect.
10.17.2008 11:37am