Tag: free speech

Epic Win for First Amendment in Violent Videogame Case

The Supreme Court scored an epic win for the First Amendment in striking down California’s prohibition on selling violent videogames to minors. The law was both overly broad—sweeping in a wide variety of games based on no objective standard and no age-based gradations—and underinclusive—with no restrictions on other types of media. With a few strictly drawn exceptions for historically unprotected speech—obscenity, incitement, fighting words—government lacks the power to restrict expression simply because of its content. And a legislature cannot create new types of unprotected speech simply by weighing its purported social costs against its alleged value.

“Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat,” Justice Scalia points out in his majority opinion. “But these cultural and intellectual differences are not constitutional ones.”

Moreover, the Court, citing Cato’s amicus brief, described how each generation’s new media produces consternation from adults who want to avoid the “seduction of the innocent” (to borrow a phrase from the attack on comic books in the 1950s). In the 19th century, dime novels and “penny dreadfuls” were blamed for social ills and juvenile delinquency. Later, Congress held hearings on the cartoon menace, which prompted the comic book industry to voluntarily adopt a ratings system. Backlash against certain kinds of movies and music caused those respective industries also to adopt voluntary ratings systems. And the videogame industry too adopted an effective and responsive ratings system after congressional hearings in the early ‘90s. Not only is all this hand-wringing overwrought, but self-regulation and parental oversight have worked—evidence from the Federal Trade Commission shows that the voluntary ratings system works more effectively with videogames than with any other medium—and they avoid First Amendment thickets. Adding a level of governmental control, even if were constitutional, would be counterproductive.

Here’s the Court’s opinion in Brown v. Entertainment Merchants Association (Cato’s brief is cited on pages 9-10).

Defending Anonymous Speech

For some time now, the U.S. Supreme Court has placed little weight on the value of anonymous speech, especially in the campaign finance context. True, in McIntyre v. Ohio Elections Commission (1995), the Court struck down a state law prohibiting distributing anonymous campaign literature. But from Buckley v. Valeo (1976) onward, the Court has looked favorably on disclosure of campaign spending. Even Citizens United saw only one justice, Clarence Thomas, speak out in favor of anonymous speech.

Long-time First Amendment advocate Nat Hentoff raises some questions about limiting anonymous speech in this video. He praises Justice Thomas and recalls the importance of anonymous speech during the founding era.

Government Control of Language and Other Protocols

It might be tempting to laugh at France’s ban on words like “Facebook” and Twitter” in the media. France’s Conseil Supérieur de l’Audiovisuel recently ruled that specific references to these sites (in stories not about them) would violate a 1992 law banning “secret” advertising. The council was created in 1989 to ensure fairness in French audiovisual communications, such as in allocation of television time to political candidates, and to protect children from some types of programming.

Sure, laugh at the French. But not for too long. The United States has similarly busy-bodied regulators, who, for example, have primly regulated such advertising themselves. American regulators carefully oversee non-secret advertising, too. Our government nannies equal the French in usurping parents’ decisions about children’s access to media. And the Federal Communications Commission endlessly plays footsie with speech regulation.

In the United States, banning words seems too blatant an affront to our First Amendment, but the United States has a fairly lively “English only” movement. Somehow, regulating an entire communications protocol doesn’t have the same censorious stink.

So it is that our Federal Communications Commission asserts a right to regulate the delivery of Internet service. The protocols on which the Internet runs are communications protocols, remember. Withdraw private control of them and you’ve got a more thoroughgoing and insidious form of speech control: it may look like speech rights remain with the people, but government controls the medium over which the speech travels.

The government has sought to control protocols in the past and will continue to do so in the future. The “crypto wars,” in which government tried to control secure communications protocols, merely presage struggles of the future. Perhaps the next battle will be over BitCoin, an online currency that is resistant to surveillance and confiscation. In BitCoin, communications and value transfer are melded together. To protect us from the scourge of illegal drugs and the recently manufactured crime of “money laundering,” governments will almost certainly seek to bar us from trading with one another and transferring our wealth securely and privately.

So laugh at France. But don’t laugh too hard. Leave the smugness to them.

Due Process Stops at the Campus Gates?

People in the D.C. area maye be familiar with the tragic tale of Fairfax teacher Sean Lanigan, who was falsely accused of sexual molestation, resulting in termination and a destroyed reputation.  As pointed out by friend of Cato and Cato Supreme Court Review contributor Hans Bader, however, the Department of Education is pushing a policy that would allow for more Sean Lanigans, even in cases not involving anything close to rape or molestation:

If the U.S. Department of Education’s Office for Civil Rights has its way, more teachers like him will end up being fired even if they are acquitted by a jury of any wrongdoing.  It sent a letter to school officials on April 4 ordering them to lower the burden of proof they use when determining whether students or staff are guilty of sexual harassment or sexual assault.   According to the Department of Education’s demands, schools must find people guilty if there is a mere 51% chance that they are guilty – a so-called preponderance of the evidence standard.   So if an accused is found not guilty under a higher burden of proof – like the “beyond a reasonable doubt” standard that applies in criminal cases – the accused will still be subject to disciplinary action under the lower burden of proof dictated by the Education Department.

As Wendy Kaminer explains, the DoE would also like to strip the accused of their right to cross-examination:

Campus investigations and hearings involving harassment or rape charges are notoriously devoid of concern for the rights of students accused; “kangaroo courts” are common, and OCR ‘s letter seems unlikely to remedy them. Students accused of harassment should not be allowed to confront (or directly question) their accusers, according to OCR, because cross-examination of a complainant “may be traumatic or intimidating.” (Again, elevating the feelings of a complainant over the rights of an alleged perpetrator, who may have been falsely accused, reflects a presumption of guilt.) Students may be represented by counsel in disciplinary proceedings, at the discretion of the school, but counsel is not required, even when students risk being found guilty of sexual assaults (felonies pursuant to state penal laws) under permissive standards of proof used in civil cases, standards mandated by OCR.

Now, it is undoubtedly extraordinarily difficult for a rape victim to face her attacker, but lowering the standards under which someone is judged for that crime and not allowing the accused to question his accuser opens the door to using accusation as a weapon, just as in Lanigan’s case or that of the Duke lacrosse team.  Justice (what lawyers call “due process”) demands, among other things, that both accuser and accused have their day in court, and that there be a presumption of innocence.  It is no more just for an innocent person to be smeared and forever tarnished – if not convicted and imprisoned – than it is to let a guilty man go free.  Indeed, as Blackstone famously said, “Better that ten guilty persons escape than that one innocent suffer.” 

What’s more, as Foundation for Individual Rights in Education president Greg Lukianoff details, it’s not just accused rapists whose rights are prejudiced under the new OCR policy, but those who make bad jokes:

California State University–Monterey policies state that sexual harassment “may range from sexual innuendoes made at inappropriate times, perhaps in the guise of humor, to coerced sexual relations.” UC Berkeley lists “humor and jokes about sex in general that make someone feel uncomfortable” as harassment. Alabama State University lists “behavior that causes discomfort, embarrassment or emotional distress” in its harassment codes. Iowa State University states that harassment “can range from unwelcome sexual flirtations and inappropriate put-downs of individual persons or classes of people to serious physical abuses such as sexual assault.”

This disconnect between basic principles of free speech and due process creates what Lukianoff calls “a perfect storm for rights violations”:

By making it clear that OCR would be aggressively pursuing harassment claims, by mandating extensive changes to many universities’ due process protections, but not requiring universities to adopt a uniform standard for harassment, OCR has supercharged the power of existing campus speech codes. OCR could have done our nation’s colleges a favor if it required universities to adopt a uniform definition of harassment in the same breath as it required them to aggressively police it.

FIRE has done heroic work in protecting student rights, so you should really read all of Lukianoff’s indictment of the new policy. 

The Department of Education needs to rescind/clarify this mess.  Speech is not a crime, but even the rights of those accused of crimes should not be subordinated to misplaced compassion or political correctness.

Monday Links

  • Regulatory privilege is not consistent with competitive markets–that’s why Fannie Mae and Freddie Mac need reform.
  • Thank goodness the U.S. Supreme Court found that education tax credits are not consistent with the fictitious notion of a “tax expenditure.”
  • President Obama’s budget plan is not consistent with either his own deficit commission’s plan or the Constitution.
  • The modern “Executive State” is not consistent with Article II of the Constitution.
  • Cyberbullying laws are not consistent with the First Amendment and our concept of free speech:


Even University Presidents Are Bound by the Constitution

Few could imagine a more troubling free speech and due process case than that of Hayden Barnes. 

Barnes, a student at Valdosta State University in Georgia, peacefully protested the planned construction of a $30 million campus parking garage that was the pet project of university president Ronald Zaccari.  A “personally embarrassed” Zaccari did not take kindly to that criticism and endeavored to retaliate against Barnes — ignoring longstanding legal precedent, the Valdosta State University Student Handbook (a legally binding contract), and the counsel of fellow administrators.  Zaccari even ordered staff to look into Barnes’s academic records, his medical history, his religion, and his registration with the VSU Access Office!

The district court found that Barnes’s due process rights had indeed been violated and denied Zaccari qualified immunity from liability for his actions. Now on appeal, Cato joined a brief filed by the Foundation for Individual Rights in Education on behalf of 15 organizations arguing that qualified immunity is inappropriate here given Zaccari’s brazen violation of Barnes’s constitutional rights to free speech and due process.  As stated in the brief, the “desire of some administrators to censor unwanted, unpopular, or merely inconvenient speech on campus is matched by a willingness to seize upon developments in the law that grant them greater leeway to do so.”  The brief thus asks the Eleventh Circuit to affirm the denial of qualified immunity on both First Amendment and due process grounds.

First, the immense importance of constitutional rights on public university campus is due in no small part to the reluctance of school administrators to abide by clearly established law protecting student rights.  Second, Zaccari knew or should have known that his actions violated Barnes’ rights and were illegal retaliation against constitutionally protected speech. 

Qualified immunity is intended to protect public officials who sincerely believe their actions are reasonable and constitutional, not those who willfully and maliciously ignore well known law in a determined effort to deprive another of constitutional rights. A denial of qualified immunity here would vindicate those rights and reinforce school administrators’ obligation to protect and abide by them. 

The case of Barnes v. Zaccari will be heard by the Eleventh Circuit this spring or summer.  Thanks to legal associate Nicholas Mosvick for his help on the brief and with this post.

Free Speech Belongs on Campuses Too

Speaking of free speech, last night I had an Obamacare panel at Widener University, which is currently having its own little speech-related brouhaha.  (Getting there was a bit of a hassle because I was held up at the Wilmington Amtrak station by Vice President Biden’s entourage — but I didn’t end up in a closet, so I guess it could have been worse.)

There are strange things afoot at the tiny Delaware law school, specifically to tenured professor Lawrence Connell, who also happens to be the adviser to the school’s Federalist Society chapter. From the Foundation for Individual Rights in Education:

Widener University School of Law is attempting to fire longtime criminal law professor Lawrence Connell by charging him with dubious violations of the school’s harassment code, such as using the term “black folks” in class and using the names of law school Dean Linda L. Ammons and other law school colleagues as characters in class hypotheticals. Although a faculty panel has already recommended that Widener drop its “dismissal for cause” proceedings against Connell, administrators have reportedly induced students to issue further complaints under a new process that forces Connell to keep the details of the proceedings secret. Connell, who is represented by attorney Thomas S. Neuberger, also requested help from the Foundation for Individual Rights in Education (FIRE).

“Not only do the charges against Professor Connell appear to be either unsubstantiated or totally meritless, but even after the faculty refused to assent to his firing Widener has found a new, ‘confidential’ procedure to use against him,” FIRE President Greg Lukianoff said. “Professor Connell has already addressed the charges, but now he cannot publicly discuss the details of his prosecution out of fear of punishment for ‘retaliatory action’ if he reveals them.”

Although Widener is a private university, a faculty member receiving such treatment on dubious charges should raise some eyebrows in legal academia. If there is something to the charges, let them be aired in public. While this is not a constitutional issue, I’m sure the law school administration is well aware of the importance of both due process and intellectual freedom. To that end, either the professor should be afforded the dignity of defending himself to his accusers or this nonsense should be put to bed.

You can read more about the case here. Also, if the state of today’s law schools interests you, I cannot recommend strongly enough my colleague Walter Olson’s new book, Schools for Misrule: Legal Academia and an Overlawyered America.

Thanks to Jonathan Blanks for his help with this blogpost.