First Amendment News 286: Resources on the First Amendment, the former president, the Senate impeachment trial and what lies ahead

Given the historical importance of the recent Senate impeachment trial, I thought it useful to have some record of the relevant documents, news stories, videos, and op-eds concerning the First Amendment arguments tendered by the House managers and the counsel for the former president along with what it might all portend for the future.

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“He riles up a mob, incites them, he inflames them and then, when they’re about to do the most lethal damage, turns away and is derelict in his duty. That’s the reason it’s vital — vital! — that he be convicted and personally disqualified from running.”

Laurence Tribe, Erin Burnett OutFront, CNN (Feb. 12)

“[T]he argument made by the House impeachment managers that the First Amendment does not apply to presidents or others who “attack our democracy” was precisely the argument made by Joseph McCarthy and his followers in the 1950s . . .”

Alan Dershowitz, The Hill (Feb. 4)

“Holding the president accountable for his words on Jan. 6, as part of that pattern, does not run afoul of the First Amendment. The House impeachment resolution reflects this.”

Anthony Romero, Executive Director, ACLU (Jan. 11)

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Rep. Jamie Raskin

Main documents 

The lawyers 

House lawyers

Former president’s lawyers

Symposium on ‘National Security, Whistleblowers & the First Amendment’ 

First Amendment Law Review symposium ad

Panel 1: “Classification and Access to National Security Information”

  • Margaret Kwoka, Professor of Law at University of Denver Sturm College of Law
  • David Pozen, Vice Dean for Intellectual Life and Charles KellerBeekman Professor of Law at Columbia Law School
  • Steven Vladeck, Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law

Panel 2: “The Press, Whistleblowers, and Government Information Leaks”

  • Heidi Kitrosser, Visiting Professor of Law at the Northwestern Pritzker School of Law
  • David McCraw, Senior Vice President and Deputy General Counsel at The New York Times Company
  • Mary-Rose Papandrea, Judge John J. Parker Distinguished Professor of Law & Associate Dean for Academic Affairs at University of North Carolina School of Law

Upcoming law review symposium on government speech

10 a.m., Welcoming Remarks
Vikram D. Amar, University of Illinois College of Law

10:05 a.m., Opening Keynote
Helen Norton, University of Colorado Law School

10:15 a.m., Panel I

Panelists:
Claudia E. Haupt and Wendy E. Parmet, Northeastern University School of Law
Kate Shaw, Cardozo School of Law
Danielle K. Citron, University of Virginia School of Law

Moderator:
Jason Mazzone, University of Illinois College of Law

11:30 a.m., Panel II

Panelists:
William Araiza, Brooklyn Law School
Mary-Rose Papandrea, UNC School of Law
Clifford Rosky, University of Utah S.J. Quinney College of Law
Alexander Tsesis, Loyola University Chicago School of Law

Moderator:
Jason Mazzone, University of Illinois College of Law

1 p.m., Panel III

Panelists:
Erwin Chemerinsky, UC Berkeley School of Law
Michael S. Kang, Northwestern Pritzker School of Law and Jacob Eisler, University of Southampton Law School
Ciara Torres-Spelliscy, Stetson University College of Law

Moderator:
Jason Mazzone, University of Illinois College of Law

For more information:
Yongli Yang
JD Candidate, Class of 2021
Managing Internet & Symposium Editor, University of Illinois Law Review, 2020-2021
University of Illinois

New scholarly article on First Amendment and incorporation doctrine 

The 20th century emergence of the incorporation doctrine is regarded as a critical development in constitutional law, but while issues related to the doctrine’s justification have been studied and debated for more than fifty years, the causes and mechanics of its advent have received relatively little academic attention. This Essay, part of a symposium on Judge Jeffrey Sutton’s recent book about state constitutional law, examines the doctrinal origins of incorporation, in an effort to help uncover why the incorporation doctrine emerged when it did and the way it did. It concludes that, for these purposes, incorporation is best understood as having three basic components, of which First Amendment incorporation predominated. It goes on to show how First Amendment incorporation drew in important ways from existing doctrine, including important strands of “Lochnerian” jurisprudence, and was structured in a way that in turn facilitated subsequent incorporation of criminal procedure protections. Finally, it notes that in its critical beginning moments, incorporation decisions did not consider, much less adjudicate, the kinds of issues that are today central to discussions of judicial federalism.

New scholarly article on Garcetti

So to Speak podcast: ‘The Fight for Free Speech’

In this episode of So to Speak: The Free Speech Podcast, we are joined by media lawyer Ian Rosenberg to discuss his new book, “The Fight for Free Speech: Ten Cases That Define Our First Amendment Freedoms.”

Rosenberg is assistant chief counsel at ABC, Inc., where he has provided pre-broadcast counsel for ABC News clients on libel, newsgathering, intellectual property, and FCC regulatory issues since 2003.

Related

Clear and Present Danger podcast on free speech and racial justice 

In May 2020, protests erupted all over the U.S. after a video emerged of a white police officer killing a black man named George Floyd. Millions took to the streets in support of racial justice under the rallying cry “Black Lives Matter.” Most protests were peaceful, but several cities experienced large-scale violence. Free speech was also affected in the process. A disturbing number of incidents of police brutality and excessive force against peaceful protesters and journalists were documented. President Trump accused a Black Lives Matter leader of “treason, sedition, insurrection” and labelled protestors as “terrorists.”

But demands for structural change also led to calls for de-platforming people whose views were deemed hostile to or even insufficiently supportive of racial justice. A Democratic data analyst named David Shor was fired after tweeting a study that showed that nonviolent black-led protests were more effective than violent ones in terms of securing voter support. In another instance, New York Times staffers protested that the newspaper put “Black @NYTimes staff in danger” by running a provocative op-ed by Republican Senator Tom Cotton, which argued for deploying the military to quell riots. The newsroom revolt led to opinion editor James Bennet resigning.

Academia was affected too. A letter signed by hundreds of Princeton faculty members, employees and students demanded a faculty committee be established to “oversee the investigation and discipline of racist behaviors, incidents, research, and publication” and write “Guidelines on what counts as racist.”

Social media companies came under intense pressure to take a more robust stand on “hate speech.”

The entrenchment of so-called “cancel culture” caused around 150, mostly liberal, writers and intellectuals to sign an open “Letter on Justice and Open Debate.” The letter argued against what the signers saw as “intolerance of opposing views, a vogue for public shaming and ostracism, and the tendency to dissolve complex policy issues in a blinding moral certainty.” The letter drew sharp criticism from many journalists, writers and intellectuals for being “tone-deaf,” “privileged,” “elitist” and detracting from or even hurting the struggle for racial justice.

Clear and Present danger podcast art

The wider debate often turned nasty — especially on social media — with loud voices on each side engaging in alarmist, bad faith arguments ascribing the worst intentions to their opponents. Many of those concerned about free speech warned of creeping totalitarianism imposed by “social justice warriors” run amok, intent on imposing a stifling orthodoxy of “wokeism.” Some confused vehement criticism of a person’s ideas with attempts to stifle that person’s speech. On the other hand, some racial justice activists outright denied the existence of “cancel culture” and failed to distinguish between vehement criticism of a person’s ideas and calling for that person to be sanctioned by an employer, publisher or university. Some even accused free speech defenders of being complicit in or actual defenders of white supremacy and compared words deemed racially insensitive with violence.

Underlying these debates is a more fundamental question. Is a robust and principled approach to free speech a foundation for — or a threat to — racial justice?

To help shed light on this question, this episode will focus on what role the dynamic between censorship and free speech has played in maintaining and challenging racist and oppressive societies. The episode will use American slavery and segregation, British colonialism, and South African apartheid as case studies.

More in the news

2020-2021 SCOTUS term: Free expression & related cases

Cases decided 

  • Mckesson v. Doe (per curium, 7-1 with Thomas, J., dissenting) (judgment vacated and remanded to 5th Cir.)

Cases argued

Cert. granted

Pending petitions

Cert. denied

First Amendment-related 

Last scheduled FAN

 

This article is part of First Amendment News, an editorially independent publication edited by Professor Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. Opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or of Professor Collins.

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