Over at the “So to Speak” podcast, Nico Perrino arranged to post audio of the recent First Amendment Salon’s exchange between the lead trial lawyers for Dominion and Fox. A video of that exchange also appears on The First Amendment Salon’s website as noted below.
On April 18, Fox News agreed to pay Dominion Voting Systems $787.5 million to settle a defamation lawsuit stemming from allegations of voter fraud in the 2020 presidential election. The historic settlement came just before the trial was set to begin in a case many saw as having significant First Amendment implications. In this exclusive conversation, attorneys for Fox and Dominion join First Amendment attorney Lee Levine to reflect on what led to the case, its outcome, and the arguments they would have made had the case gone to trial.
- Tom Clare is a founding partner of Clare Locke LLP and was counsel to Dominion. Dan Webb is co-executive chairman of Winston and Strawn and was counsel for Fox News.
- The conversation was organized and hosted by The First Amendment Salon on Tuesday, May 9. (Seth Berlin took the lead in organizing this salon.)
Protecting free speech in an AI world
- Richard Stengel, “The Case for Protecting AI-Generated Speech With the First Amendment,” Yahoo News (May 9)
The future of media and content will be bound up with generative AI in ways that we don’t yet know. AI itself is not human and cannot have constitutional rights, writes Cass Sunstein, just as a vacuum cleaner does not have constitutional rights. But it seems pretty clear that content created by generative AI probably has free speech protections. It is speech. It is speech that is created out of the raw material of human speech. It is created from code made by humans. It certainly contributes to the marketplace of ideas—it may well contribute too much. The modern Court has shown over and over that government cannot restrict speech because of its message, its subject matter, or its content. [See “Police Department v. Mosley”]
At the same time, it makes sense that government can restrict any AI speech that is traditionally not protected by the First Amendment: libel, criminal solicitation, false advertising, child pornography, and speech that leads to imminent lawless action. Such speech is unconstitutional, whether it is created by a human, an algorithm, or a toaster. The question is whether government can regulate AI to prevent unconstitutional speech.
- “Why this developer created a pro-First Amendment AI to counter ChatGPT,” Fox News (May 12)
- Jane R. Bambauer, “Negligent AI Speech: Some Thoughts About Duty,” Journal of Free Speech Law (forthcoming)
- Ronald K.L. Collins, “Artificial thinking in an age of artificial intelligence: Preliminary thoughts on the parameters of First Amendment jurisprudence,” FAN 374 (April 5, 2023)
- Ronald Collins and Ryne Weiss, “Censoring the technologies of free expression,” FIRE (Oct. 19, 2022)
- Alan Z. Rozenshtein, “ChatGPT and the First Amendment: Whose Rights Are We Talking About?” LawFare (April 4)
- Benjamin Wittes, “A Machine with First Amendment Rights,” LawFare (March 31)
- Hilda Kajbaf, “The First Amendment and Modern Technology: The Free Speech Clause and Chatbot Speech,” Hastings Constitutional Law Quarterly (2020)
- Nico Perrino, Alison Schary, Eugene Volokh, and David Greene, “‘So to Speak’ podcast transcript: Artificial intelligence: Is it protected by the First Amendment?” FIRE (Jan. 26)
- Ronald Collins and David Skover, “Robotica: Robotica: Speech Rights and Artificial Intelligence Robotica: Speech Rights and Artificial Intelligence” (Cambridge University Press, 2018)
- James B. Garvey, “Let’s Get Real: Weak Artificial Intelligence Has Free Speech Rights,” Fordham Law Review (2022)
- Michael R. Siebecker, “The Incompatibility of Artificial Intelligence and Citizens United,” Ohio State Law Journal (2022)
- Toni M. Massaro and Helen Norton, “Siri-ously? Free Speech Rights and Artificial Intelligence,” Northwestern University Law Review (2016)
YouTube: Are corporate plaintiffs using SLAPP laws to silence their critics?
- “Greenpeace USA Wins Free Speech Battle Against Canadian Logging Giant’s $100M SLAPP Lawsuit,” Democracy Now (May 4)
A judge in California has dismissed a seven-year $100 million lawsuit against Greenpeace USA that threatened the group’s existence. Canadian logging giant Resolute Forest Products sued Greenpeace in the United States and Canada for defamation after the group exposed the company’s irresponsible practices, part of a pattern of corporations attempting to use the burdens of the legal process to intimidate, exhaust and censor activists. Known as SLAPP (Strategic Lawsuits Against Public Participation) lawsuits, they are increasingly being used by the rich and powerful to silence critics.
We are joined by Deepa Padmanabha, deputy general counsel for Greenpeace USA, to discuss the organization’s legal victory, as well as the continued work of advocates to pass anti-SLAPP legislation and promote free speech. “We took on this fight not just for Greenpeace, but for everyone who dares speak truth to power, and we knew we had to win this both in the courtroom and for the movement,” says Padmanabha.
- Emily Hockett and Josh Lustig, “RCFP analyzes Florida legislation aimed at revisiting defamation law,” Reporters Committee (May 15)
New York AG sued over alleged confidential charitable donor records violations
- “Empire Center Sues New York Attorney General Letitia James Over Ongoing First Amendment Violations,” Empire Center (May 16)
The Empire Center for Public Policy and New Yorker’s Family Research Foundation (NYFRF) have sued Attorney General Letitia James over ongoing First Amendment violations at the Office of the Attorney General (OAG) connected to confidential charitable donor records.
In 2021, the Supreme Court of the United States ruled in AFP v. Bonta that requiring charitable organizations to disclose the identities of their large donors to a state attorney general’s office imposed “a widespread burden on donors’ associational rights.” On that basis, the Court found that donors’ First Amendment rights had been violated.
In a similar fashion, AG James is keeping donor information that her office improperly requested from charitable organizations. Specifically, the OAG has requested and received IRS Form 990, Schedule B from charitable organizations; this document contains donor names and amounts donated. This information has been the subject of at least one security breach that AG James has acknowledged. The issue first came to light in an August 2022 Politico article that revealed donor identities from a leaked filing bearing the Attorney General’s official stamp.
Ninth Circuit upholds restrictions on public employee speech
- Steven D. Schwinn, “Ninth Circuit Upholds Restrictions on Public Employee's Speech During Investigation,” Constitutional Law Prof Blog (May 12)
The Ninth Circuit ruled that a public agency did not violate the First Amendment when it prohibited an employee from speaking to coworkers on matters related to the employee’s alleged misconduct while an investigation was pending.
The case, Roberts v. Springfield Utility Board, arose when SUB initiated an investigation into Todd Roberts’s “dishonest related to [his] work attendance.” SUB prohibited Roberts from communicating with coworkers regarding the matter while the investigation proceeded. Roberts then sued, arguing that the restriction violated free speech.
The Ninth Circuit rejected the claim. The court ruled that SUB's restriction applied to speech that was not on a matter of public concern, and therefore Roberts didn't clear the first hurdle under Pickering v. Board of Education. The court noted that SUB's restriction permitted Roberts to communicate with coworkers on other matters, and allows his attorney to communicate with coworkers on matters related to the investigation.
FIRE threatens to sue Uvalde over alleged First Amendment violation
Mere months after the Uvalde school district suspended its entire police force for failing to effectively respond to a deadly shooting at an elementary school, school officials banned a concerned parent from school property — because he questioned the qualifications of a new police hire.
Today, the Foundation for Individual Rights and Expression demanded the Uvalde Consolidated Independent School District lift its ban against Adam Martinez, a father of two students in the district. The district banned Martinez from all district property for two years, including from school board meetings. FIRE’s letter to UCISD threatens litigation if the district does not lift the unconstitutional ban by May 22, 2023.
“My community counts on me to be their voice, but the district wants to shut me up,” said Martinez. “My fight has always been for the 21 people who no longer have a voice and for those who are too scared to speak up about social injustice.”
Nossel on free speech and inclusion
- “Can Free Speech and Inclusion Be Reconciled?” NYU School of Law (March 7)
Freedom of expression is a core value of the United States and other democratic countries. Yet in recent years, free speech has become a site of intense conflict when it intersects with issues of diversity and inclusion. Such clashes can be seen in discussions about safe spaces on university campuses, race and LGBTQ+ education in K-12 schools, and hate speech regulation on social media.
Suzanne Nossel, CEO of PEN America and author of Dare to Speak: Defending Free Speech for All, argues that we need not choose between protecting free speech and advancing diversity and inclusion. But how can these values be reconciled? What should governments, tech companies, and educational institutions do when free speech threatens feelings of inclusion among marginalized people? When does protesting cross the line into censorship? In an era of book bans and heightened political polarization, finding answers to these questions is as important as ever.
Suzanne Nossel held a wide-ranging conversation on these topics with Professor Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law and director of the Meltzer Center for Diversity, Inclusion, and Belonging.
This event is co-sponsored by the Birnbaum Women’s Leadership Network at NYU School of Law.
Forthcoming book: Ami Lai on free speech in universities
- Amy Lai, “In Defense of Free Speech in Universities: A Study of Three Jurisdictions,” University of Michigan Press (Sept. 2023)
In this book, Amy Lai examines the current free speech crisis in Western universities. She studies the origin, history, and importance of freedom of speech in the university setting, and addresses the relevance and pitfalls of political correctness and microaggressions on campuses, where laws on harassment, discrimination, and hate speech are already in place, along with other concepts that have gained currency in the free speech debate, including deplatforming, trigger warning, and safe space.
Looking at numerous free speech disputes in the United Kingdom, the United States, and Canada, the book argues for the equal application of the free speech principle to all expressions to facilitate respectful debates. All in all, it affirms that the right to free expression is a natural right essential to the pursuit of truth, democratic governance, and self-development, and this right is nowhere more important than in the university.
Forthcoming scholarly article: Gary Simson on Roberts Court’s ‘overprotection’ of free speech
- J. Simson, “The Roberts Court's Overprotection of Free Speech and the Perform Storm with Social Media,” Tennessee Law Review (forthcoming)
In this Article, I maintain that in recent years a broad, but unspoken, consensus has existed on the Supreme Court for deciding free speech cases with an almost insuperable presumption of unconstitutionality and that the result has been a system of freedom of expression that indefensibly and dangerously favors speech. If the Justices were simply putting a proverbial thumb on the scales in favor of free speech, that would not be particularly noteworthy. I make the much more controversial and novel claim here, however, that, across their ideological spectrum, the Justices routinely decide free speech cases in a way that greatly overvalues the harm to speakers from regulating speech or greatly undervalues the harm to society from not regulating it, or both. A fundamental change in the Court’s thinking about free speech issues is essential, and it is not the kind of change in thinking that can come about with one or two retirements on the Court.
To demonstrate the extreme nature of the Roberts Court’s free speech approach, I look closely in Parts II-IV at three cases in which the Justices were in broad agreement that a free speech claim should prevail – Snyder v. Phelps in 2011, United States v. Alvarez in 2012, and Mahanoy Area School District (MASD) v. B.L. in 2021. Snyder, Alvarez, and MASD are not the first cases anyone would name if asked to list the Roberts Court’s most important free speech decisions, but each offers a much better view of the Court’s approach at work than a high-profile case like Citizens United in which the Court divided along familiar ideological lines. The real story here is the striking breadth of agreement across the Court’s usual ideological divide and the exceptionally protective approach to free speech on which the Justices are so broadly agreed. In essence, all the Justices predicate their thinking in free speech cases on a baseline of protection that is perilously and unjustifiably high.
After discussing Snyder, Alvarez, and MASD, I turn to speech on social media to illustrate the urgency of the Court’s revising its free speech approach. In Part V, I underline the gravity of the dangers posed by speech on social media by focusing on two kinds of uses to which social media has all too often, and increasingly, been put: expressing and cultivating hatred and prejudice toward racial and other minorities; and deliberately misleading and confusing the public about matters of important public policy. I argue in Part VI that such dangers very likely must go unregulated unless and until the Court adopts a much more balanced free speech approach. Social media is a propagandist’s dream come true. Speakers have always wanted to get others to embrace and act upon their ideas. By enabling speakers to flood the marketplace, and bombard people repeatedly, with their ideas, social media gives speakers enormous power to make that happen. Properly understood, however, the First Amendment should not stop the government from standing in its way when vital state interests are at stake.
In last week’s issue of FAN, our link to Ryan Morrison was erroneous. The correct link is as set out below:
- Mazo v. New Jersey Secretary of State (3rd Cir., 2022) (Ryan Morrison of the Institute for Free Speech argued the case for the Appellants)
More in the news
- “FIRE statement on Florida’s expansion of the Stop WOKE Act,” FIRE (May 15)
- Susanna Granieri, “Disney Sues DeSantis Claiming Retaliation for Denouncing Florida’s ‘Don’t Say Gay’ Bill,” First Amendment Watch (May 15)
- Jack Birle, “Ron DeSantis calls Disney's First Amendment argument in lawsuit ‘ridiculous’,” Washington Examiner (May 15)
- Erica Goldberg, “Free speech used to be honored by both left and right — now shouting down opponents and banning disliked speech is a bipartisan cause,” The Free Speech Center (May 15)
- Paige Hubbard, “Proposed bill in the Texas House could change first amendment rights faces opposition,” CBS Austin (May 13) (see here also)
- Terry Tang, “Judge rejects Ariz. state Sen. Wendy Rogers’ restraining order against reporter,” The Free Speech Center (May 12)
- Dennis Hetzel, “W.Va. becomes 17th state to protect student journalists, advisers,” Free Speech Center (May 11)
2022-2023 SCOTUS term: Free expression and related cases
- O’Connor-Ratcliff v. Garnier
- 303 Creative LLC v. Elenis (argued Dec. 5)
- Jack Daniel’s Properties, Inc. v. VIP Products LLC (argued March 22)
- United States v. Hansen (argued, March 27) (Volokh commentary here)
- Counterman v. Colorado (argued, April 19)
- Mazo v. New Jersey Secretary of State
- Tingley v. Ferguson
- Frese v. Formella
- National Rifle Association of America v. Vullo
- Mobilize the Message v. Bonta
- Vidal v. Elster
- U.S. v. Hernandez-Calvillo
- Moody v. NetChoice, LLC
- NetChoice, LLC v. Moody
- Florida v. NetChoice
- Klein v. Oregon Bureau of Labor and Industries
- Novak v. City of Parma (cert. denied)
Immunity under Foreign Sovereign Immunities Act
- NSO Group Technologies Limited v. WhatsApp Inc. (cert. denied)
Liability Anti-Terrorism Act
- Twitter v. Taamneh (argued Feb. 22)
Section 230 immunity
- Gonzalez v. Google (argued Feb. 21)
This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article's author(s) and may not reflect the opinions of FIRE or of Mr. Collins.