THE FIRST AMENDMENT 2018 ANNUAL UPDATE Geoffrey R. Stone Louis M. Seidman Cass R. Sunstein Mark V. Tushnet Pamela S. Karlan 1 Page 6. At the end of section 2 of the Note, add the following: For a lively account of the founding generation’s understanding of freedom of speech and of the press, see S. Solomon, Revolutionary Dissent (2016). Page 9. After the quote from John Stuart Mill, add the following: More than two centuries before Mill’s publication of On Liberty, John Milton offered somewhat similar observations about the freedom of speech in his Areopagitica (1644). Consider Blasi, A Reader’s Guide to John Milton’s Areopagitica, 1973 Sup. Ct. Rev. 273, 293, 298, in which Blasi explains that Milton maintained that freedom of inquiry requires “the liberty to know, to utter, and to argue freely.” Indeed, among the most important features of Milton’s argument “is the positive value he sees in confronting evil and dangerous ideas.” In his view, “the search for understanding would be much worse off were those ideas not to be available as foils and provocations and were authors and readers not seasoned by the experience of engaging them.” Page 13. After section 2(f) of the Note, add the following: g. M. Redish, The Adversary First Amendment 1-5 (2013): Those free speech theorists who have shaped democratic theories of free expression have almost universally viewed democracy [as] a cooperative pursuit in which individuals collectively “plan for the general welfare” or “forge a common will.” [A better understanding of democracy for First Amendment purposes] adopts a notion of representative governance built on the concept of adversary democracy. [Based] on the premise that democracy at its core involves a competition among adverse interests, [the deeper purpose of democracy should be understood] to guarantee individuals the opportunity to seek to affect the outcomes of collective decision making according to their own values and interests as they understand them. [A] valid democratic theory of the First Amendment must [therefore] be construed to reach all speech that allows individuals to discover their personal needs, interests, and goals – in government and in society at large – and to advocate and vote accordingly. Contrast this understanding of the First Amendment with those of Mieklejohn and Post in terms of the following question: Does the First Amendment protect commercial advertisements for toothpaste? 2 Page 15. After section d of the Note, add the following: (e) Free speech and cultural democracy. Consider Balkin, Cultural Democracy and the First Amendment, 110 Nw. U. L. Rev. 1053 (2016): Freedom of speech does more than protect democracy; it also promotes a democratic culture. [Although] the right to participate in culture [helps] to legitimate political self-governance, it transcends that purpose. Cultural democracy, and therefore cultural freedom, is a necessary component of a free society, even in countries that are not fully democratic or democratic at all. Moreover, a cultural theory of free speech offers a much more convincing explanation of why a great deal of expression that seems to have little to do with political self- government enjoys full First Amendment protection. [By] the end of the twentieth century, the political economy of communication had changed radically. In the age of the Internet, many of the assumptions that grounded Meiklejohn’s model have fallen away. Vastly more people can communicate to others: not merely to small groups, but to the general public; and not merely within the United States, but around the globe. [A] theory of free expression for the digital age [has] to make sense of—and value—the explosion of popular appropriation, combination, and creativity in popular discussion, art, and culture. Culture, which had often taken a backseat to politics in twentieth-century discussions of the foundations of the First Amendment, came to the forefront in the early twenty-first century. [By] protecting the right to participate in culture, freedom of speech also promotes the growth and spread of mores, opinions, values, art, and knowledge. Page 16. At the end of section 5 of the Note, add the following: In light of all this, how would you address the question whether Jackson Pollock’s paintings, Arnold Schoenberg’s music, and Lewis Carroll’s poem Jabberwocky are within the “freedom of speech” protected by the First Amendment? The Supreme Court has declared that all of these forms of expression are “unquestionably shielded” by the First Amendment. Does it make sense to conclude that “nonrepresentational art, instrumental music, and nonsense” are protected by the freedom of speech, “even though none involves what we typically think of as speech – the use of words to convey meaning”? M. Tushnet, A. Chen, & J. Blocher, Free Speech Beyond Words 1 (2017). See Hurley v. 3 Irish-American. Gay, Lesbian & Bisexual Group of Boston, Inc., 515 U.S. 557, 568- 69 (1969) infra page 490. Consider Kendrick, Use Your Words: On the “Speech” in “Freedom of Speech,” 116 Mich. L. Rev. 667, 668 (2018): “Freedom of speech” is clearly important in American society. But what is it? Is free speech implicated when a bakery denies service to a same-sex couple shopping for a wedding cake? Is it implicated when a town applies a zoning ordinance to a tattoo parlor?. Most people presented with the question would say that free speech has something to do with activities that we colloquially call speaking, and that these activities are important in some way. But when serving a cake is speech, an tattooing is speech, [we] might wonder whether we have strayed rather far from both the notion of “speech” as a phenomenon and from whatever it is that might made “freedom of speech” important as a legal, political, or moral right. This matters, [because] if freedom of speech is a basic human right, we ought to be able to articulate when it is implicated and when it is not. Page 35. At the end of section 7 of the Note, add the following: Consider L. Weinrib, The Taming of Free Speech 121-22 (2016): “The Holmes and Brandeis dissents in [Abrams] and the remaining wartime speech cases galvanized liberal support for free speech. [But there] were details to be worked out. [Many] of the strongest advocates for expressive freedom continued to harbor deep reservations about advancing their agenda in the courts. [Felix Frankfurter, for example,] worried about expanding judicial oversight of the political branches [and University of Chicago law professor Ernst Freund [criticized] the Supreme Court’s Espionage Act decisions for swapping an ‘arbitrary executive’ with ‘arbitrary judicial power.’ [As] a correspondent complained to [Harvard law professor Zechariah] Chafee in 1921, ‘It seems the hardest thing in the world to straighten out the honest conservative mind on this question of free speech.’” Page 35. After section 8 of the Note, add the following: 9. Free Speech and Labor Agitation. A central feature in the early battles over free speech in the United States involved disputes over labor agitation. In the early decades of the twentieth century, labor sympathizers turned bitterly against the courts for their refusal to recognize the free speech rights of labor. For an insightful telling of this story, see L. Weinrib, The Taming of Free Speech (2016). 4 Page 44. In section 2 of the Note, after the quote from Strauss, add the following: For the proposition that in some circumstances more speech does not help to not correct falsehoods, but only adds to polarization, see Glaeser & Sunstein, Does More Speech Correct Falsehoods?, 43 J. Leg. Stud. 65 (2014). Page 61. At the end of section 4 of the Note, add the following: d. Encouraging a suicide. Michelle Carter, a seventeen-year-old girl, sent a barrage of text message to her boyfriend, eighteen-year-old Conrad Roy, urging him to commit suicide. She wrote him, for example: “If this is the only way you think you’re gonna be happy, heaven will welcome you with open arms. You just need to do it.” And he did. Can Carter constitutionally be convicted of involuntary manslaughter? See Michelle Carter Is Guilty of Manslaughter in Texting Suicide Case, New York Times (June 16, 2017). Page 61. After section 5 of the Note, add the following: 6. Terrorism online. a. Consider C. Sunstein #republic 236-251 (2017): Terrorists and hate groups have long been communicating online, sometimes about conspiracies [and] formulas for making bombs. Members of such groups tend to communicate largely or mostly with one another, feeding various predilections. [According] to the FBI “[social] media is a critical tool for terror groups to exploit. [The] foreign terrorist now has direct access into the United States like never before.” [Terrorists’] uses of the Internet and social media for recruitment, inspiration, and radicalization have put increasing pressure on [governments] to disrupt their online activities. [Other] democratic countries have enacted legislation to control access to online content that promotes terrorism. Under French law, for example, the government can block Internet sites that incite terrorist attacks or publicly glorify them. There is no question that terrorist uses of social media will continue to adapt and evolve, and that it will endanger human lives. [Frequently what is involved is meeting dangerous speech with counterspeech, correcting the record or putting people on new paths. When the government uses counterspeech, it creates no constitutional issue. But the intensifying international focus on terrorism, and al-Qaeda and ISIL in particular, 5 poses a fresh challenge to the greatest American contribution to the theory and practice of free speech: the clear and present danger test. [It] is at least worth asking whether that test may be ripe for reconsideration.