Rethinking Citizens United

This is the latest installment of a fascinating exchange of ideas at FIRE's First Amendment News. This installment was written by Ira Glasser, former Executive Director of the ACLU. This conversation was provoked by Florida's repeal of Disney's special tax status in response to Disney's criticism of Florida's Parental Rights in Education bill, misnamed the “Don’t Say Gay” law by many on the left.

I'm repeatedly struck by the ill-thought tactics of many people who try to mess with the First Amendment.  These tactics usually amount to "Free speech for me, but not for thee."  The First Amendment is a boomerang, however.  It is an equal-opportunity provision that doesn't (and shouldn't) care about who is speaking or the content of particular speech.  Your well-intended tweaks and restrictions of the First Amendment (here, in the form of Citizens United) can come back and hit you upside your head. What follows is an excerpt of Glasser's latest comment:

But two liberal law professors who had spent 12 years vigorously opposing the Citizens United decision — my longtime colleagues Burt Neuborne and Erwin Chemerinsky — leaped into the fray supporting the First Amendment right of the Disney corporation to express its views on that legislation and opposed the state’s attempt to retaliate. When I chided them for it in light of their long opposition to Citizens United, they responded with a blizzard of legal distinctions that, however interesting and important, were disconnected from the political realities that resulted in the broad law that Citizens United struck down, and unresponsive to my question.

Buried in that blizzard, however, was the answer to my question, almost as an aside: “Citizens United,” they now declare, “was rightly decided on its facts.”

Floyd Abrams then replied, saying he was startled to discover that they now said they believed that “Citizens United was rightly decided on its facts” because for 12 years, or ever since Citizens United was decided, they had vigorously and consistently criticized that decision as having been wrongly decided.

I, too, was startled. What had changed? Certainly, the facts of that case hadn’t changed since the case was decided. Moreover, if Burt and Erwin had ever before proclaimed that Citizens United had been rightly decided in the many public fora where they discussed that decision, I missed it, and apparently, Floyd Abrams did, too.

So if the facts of the case haven’t changed, what has?

We can only speculate.

But in any case, we now have two accomplished liberal law professors saying: 1) that Citizens United was rightly decided; and 2) that a business corporation like Disney has a First Amendment right to express its views on a contentious law.

I need to fall on the sword here too. I got caught up in the anti-Citizens United wave years ago and posted several regrettable posts (at this site) indicating positions I no longer hold.  The turning point for me was a very slow and careful read of the Citizens United opinion combined with sober consideration of impossible real world challenges we would have faced had Citizens United had been decided the opposite way.

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FIRE’s Advice to Elon Musk

I whole-heartedly agree with Greg Lukianoff's Advice to Elon Musk.

Dear Elon Musk,

My name is Greg Lukianoff. I’m the president of the Foundation for Individual Rights in Education (FIRE), a nonprofit nonpartisan organization. Since 1999, we have helped thousands of students and faculty members fight back when their free speech rights were threatened and have helped millions more through lawsuits and policy reforms. I am also the co-author of “The Coddling of the American Mind,” which investigates how a culture of safetyism and censorship harms individual mental health and American democracy. Since its early days, I have been excited about social media’s potential and concerned about its leaders’ efforts to mitigate its downsides by restricting free expression. I agree with Mark Zuckerberg’s 2020 statement that “Facebook,” or any other social media company, “shouldn’t be the arbiter of truth.” Yet leading technology and social media companies have begun to act in precisely this way. They implement vague content moderation policies, remove and censor accounts with little or no explanation, and arbitrarily attach warning labels to content.

It doesn’t have to be this way. With the right leadership operating from a foundation of intellectual humility, social media platforms can become models of the value of free expression, even helping generate knowledge that moves society forward. As Twitter’s owner, I hope you will encourage much-needed changes to the platform that will make it a positive force for free expression, interpersonal connection, and broader community understanding. And, in so doing, inspire leaders at other social media companies to do the same.

To that end, I hope you will consider the following:

-- Look to First Amendment law for guidance on implementing free speech-friendly policies. As a private company, Twitter is under no legal obligation to enforce First Amendment free speech standards. However, it makes great sense to voluntarily borrow their wisdom. First Amendment law is the longest-sustained meditation on how to protect free speech in the real world. This body of law, honed over the course of a century, can provide practical guidance and real-world precedents for managing the platform.

-- Eliminate viewpoint-discriminatory policies and practices. Viewpoint discrimination — singling out specific points of view for censorship while leaving others alone — is practically the definition of censorship. Banning or otherwise punishing speakers on the basis of their viewpoint not only chills speech but can intensify polarization. Twitter should craft policies that explicitly state that no one will be banned or otherwise penalized for merely expressing an opinion.

-- Use categories to clearly define sanctionable speech. American law takes a categorical approach to distinguishing protected and unprotected speech. The advantage of the categorical approach is that it limits the arbitrary censorship that can result from ad hoc balancing tests by limiting what can be banned to certain well-defined categories of unprotected speech. Categories of unprotected speech in the law include incitement to imminent lawless action, defamation, obscenity (essentially hard-core pornography), and true threats. Further, correcting a common misunderstanding, speech that is materially part of the commission of a crime is not protected. By reflecting categories of speech already existing in law, Twitter policies can be understood with clarity and enforced with consistency.

Knowing what people think — even if it’s troubling — is essential to understanding the world as it is and to deciding how to act within it. Unfortunately too many of today’s leaders — whether in education, at social media companies, or in the larger corporate and governmental world — preempt this process of understanding through censorship, believing they’re acting in the interest of either factual accuracy or emotional or psychological safety. Furthermore, they attempt to lead through confirmation, taking institutional positions on hotly contested issues, imposing a “correct” way to think.

Twitter can — and should — blaze a new trail, aspiring toward a positive vision of a freer and more constructive public conversation. It can do this by producing guidance and implementing structures that embrace institutional disconfirmation: an iterative process by which existing ideas, assumptions, and theories are revised through subtraction, eliminating what we decide is false to inch towards a “better approximation of the truth.” This process, which lies at the heart of the scientific revolution and underlies academic freedom today, encourages people to produce real knowledge that benefits us all.

I hope that you will use your influence at Twitter to preserve and prioritize humanity’s fundamental right to free expression, while guiding innovation in the direction of constructive and meaningful discussion.

Sincerely, Greg Lukianoff President and CEO, Foundation for Individual Rights in Education (FIRE)

Continue ReadingFIRE’s Advice to Elon Musk

Georgetown University’s Free Speech Problem

Modern minds, even sophisticated ones, increasingly struggle to recognize two completely orthogonal concepts: A) The content of speech (which we might disagree with or even find offensive) and B) the right to speak. That a large university purporting to uphold free and open inquiry (see comments) refuses to recognize this distinction and promptly act on it is an embarrassment.

FIRE's Headline: "Georgetown’s investigation of a single tweet taking longer than 12 round-trips to the moon." The money quote:

“It’s laughable that Georgetown Law’s administrators would need even one day to pore over a tweet,” said FIRE Executive Director Robert Shibley. “But if they’re determined to use their magnifying glasses on the tweet until they find something punishable, they’ll be investigating until their retirement.”
Here's Georgetown's policy strongly in favor of free speech.

Continue ReadingGeorgetown University’s Free Speech Problem

Two Versions of Free Speech

Tara Henley describes two versions of free speech citing to Jacob Mchangama's excellent new book. Henley's article is "Who gets to speak?If we want a free society – we must affirm freedom of speech for everyone, including Joe Rogan and the truckers." Here's an excerpt:

Danish lawyer Jacob Mchangama is set to publish his brilliant debut next week, Free Speech: A History from Socrates to Social Media. In it, the human-rights advocate chronicles “elite panics” of the past, which, he points out on Twitter, hold relevance for the current moment.

Elite panics involve an outbreak of angst among the wealthy and powerful — and they’ve been happening for millennia. And, while such outbursts can reflect real concerns, Mchangama writes in his book, “it is notable that they tend to erupt whenever the public sphere is expanded.” He goes on to explain: “Upon the introduction of new technology that gives access to those previously unheard, the traditional gatekeepers of public opinion fear that the newcomers will manipulate the masses through dangerous ideas, and propaganda, threatening the established social and political order.”

These conflicts, Mchangama notes, represent a clash between egalitarian and elitist conceptions of free speech. One sees free speech as a right for all; the other would have it be a privilege for those enlightened enough to use it properly.

Continue ReadingTwo Versions of Free Speech