Jonathan Turley Announced as a Keynote Speaker! FSF's 17th Annual Policy Conference on March 25!

Registration Now Open! First Keynote Speaker Announced! Jonathan Turley

Shapiro Chair for Public Interest Law, George Washington University Law School, and Fox News Media Contributor

 

Professor Turley is the author of the important timely new book, "The Indispensable Right: Free Speech in an Age of Rage."

 

WHAT: FSF's Seventeenth Annual Policy Conference

 

WHERE: National Press Club, Washington, DC

 

WHEN: Tuesday, March 25, 2025

 

The Free State Foundation will hold its Seventeenth Annual Policy Conference on March 25, 2025, at the National Press Club in Washington, DC. This annual conference is acknowledged to be one of the nation's premier law and policy events.

 

As always, a truly outstanding lineup of senior officials and prominent experts from the FCC and Congress, and from other government agencies, industry, academia, and think tanks will discuss and debate the most important communications and Internet policy issues of the day, as well as other topical law and policy issues involving free market competition, free speech, and the rule of law.

 

With a new Trump administration, a new Congress, and new leadership at the FCC, FTC, and other agencies, this promises to be one of the most impactful of FSF's annual conferences.

 

REGISTRATION IS COMPLIMENTARY, INCLUDING CONTINENTAL BREAKFAST AND LUNCH.

 

BUT YOU MUST REGISTER TO ATTEND.

REGISTER HERE!

 

#FSFConf17

TMT with Mike O'Rielly – Ep 12: First Amendment & Media Environment

Episode 12 of "TMT with Mike O'Rielly," a videocast featuring former FCC Commissioner and Adjunct Senior Fellow at the Free State Foundation Michael O'Rielly, was released on October 9. This episode, titled "The First Amendment and Today's Media Environment," features a conversation between Mr. O'Rielly and guest Richard T. Kaplar, President & CEO of the Media Institute. Their discussion includes topics such as media consolidation and media ownership rules, the Net Vitality 3.0 report on global Internet ecosystem leaders, and the Madison Project.

TMT with Mike O'Rielly - Ep 8: Recent First Amendment Cases at the Supreme Court

Episode 8 of "TMT with Mike O'Rielly," the ongoing videocast series featuring Michael O'Rielly, former FCC Commissioner and Adjunct Senior Fellow at the Free State Foundation, was released on July 24. In this episode, titled "Recent First Amendment Cases at the U.S. Supreme Court," Mr. O'Rielly is joined by guest Ilya Shapiro, Director of Constitutional Studies at the Manhattan Institute. 

Mr. Shapiro is the author of Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court.

Media Advisory: Supreme Court Wrongly Lets Stand the Government's Coercion of Social Media

Regarding the Supreme Court’s decision today in Murthy v. Missouri, Free State Foundation President Randolph May issued the following statement:

The majority opinion seems strained in holding that the states and individuals complaining about social media censorship lacked standing. And Justice Alito's dissenting opinion is convincing regarding the merits of the First Amendment claim. By virtue of its very detailed — and chilling — description of the government’s ongoing interactions with Facebook and other leading social media companies, Justice Alito shows that the Biden Administration crossed the line from offering its suggestions regarding the removal of speech it disfavored to threatening retribution if the disfavored speech was not removed. Private entities are free to carry or not carry whatever speech they choose, but when government actions rise to the level of entangled coercion of private entities that they did in this case, then the government violates the First Amendment by suppressing the free speech rights of those censored.

TMT with Mike O'Rielly - Ep 5: Madison Project & Pending SCOTUS First Amendment Cases

Episode 5 of TMT with Mike O'Rielly was released on June 19. The episode is entitled "The Madison Project & Pending SCOTUS First Amendment Cases," and it features a discussion with veteran constitutional litigator Floyd Abrams. Tune in to hear former FCC Commissioner and Free State Foundation Adjunct Senior Fellow Mike O'Rielly and Mr. Abrams talk about the mission of the Madison Project as well as recent and pending free speech decisions by the Supreme Court. 

The Gentle Art of Disagreeing

In my ongoing series of essays, "Thinking Clearly About Speaking Freely," now numbering nineteen, I've talked a lot about the need to recreate a Constitutional Culture as a way of combatting today's Cancel Culture.  For example, in the very last essay, I ended by declaring, "more than ever, Americans need to rekindle an appreciation of our Constitutional Culture, of which free speech has always been an integral part."

In that vein, I commend to you a wonderful essay - "The Gentle Art of Disagreeing " - published today in RealClear Politics.

In it, Richard Porter, a Republican and Christian, relates his long-standing friendship with Stephen, a Democrat and Jew. They both had Ivy League backgrounds and both were lawyers. But their politics and philosophical perspectives could not have been more different. Stephen passed away last month, and Mr. Porter doesn't reveal his last name.

As Mr. Porter says, they frequently debated vigorously, and then, proverbially, would just "agreed to disagree."

The essay is touching and instructive. What most interested me is the way that Mr. Porter casts his friendship with Stephen, and their ability to disagree agreeably, in the light of our nation's Constitutional Culture about which I have been writing.

Here are a few brief excerpts:

I embraced my admiration of him, instead of dwelling on our differences. We treated each other as we would each wish to be treated ourselves. We treated each other with the same brotherly love upon which the nation we love was founded.

Jefferson wrote the Declaration of Independence in the city of brotherly love: Philadelphia. Philos, the root of Philadelphia, is one of several Greek words for love. And Jefferson slyly built love into the Declaration.

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

And then, this in closing:

And loving our neighbor is the premise upon which our Creator endowed us with unalienable rights, including liberty – because loving others as ourselves governs and empowers the exercise of liberty.

Our nation was the first and is still the only nation founded on the premise of the equalizing power of brotherly love. Brotherly love informs the structure of our Republic and is amplified in the Bill of Rights –  such as the First Amendment rights to free speech and religion.

As hard as it may be in the face of deeply-held divisions and disagreements about politics and philosophical perspectives, "The Gentle Art of Disagreeing" is certainly worth reading. And thinking about. Now more than ever.

  

 

Jonathan Turley Comes to the Defense of Free Speech

The July 2022 issue of the Harvard Journal of Law & Public Policy features an incisive article by George Washington University Law Professor Jonathan Turley titled "Harm and Hegemony: The Decline of Free Speech in the United States." In his 132-page article, Professor Turley looks at the growing and regrettably successful anti-free speech movement spearheaded by academics, politicians, and major corporations – particularly "Big Tech" companies. He examines and critiques the rising anti-free speech movement's "harm principle" for rationalizing crass censorship and the suppression of opposing viewpoints in public venues – including universities and the Internet – where freedom of speech previously has been widely affirmed as good in itself and vital to a free society of free people.  

Professor Hurley proposes ways to protect free speech through legislation. He writes: "There is a role for the government in reinforcing traditional enclaves for the exercise of the freedom of expression in our society. Indeed, with the rise of massive private systems of censorship, free speech may now depend on the government more than at any time in our history." Regarding physical marketplaces, Professor Turley's recommendations include legislation to protect public political expression from violent threats and actions by third parties that intend to prevent their exercise of free speech by incentivizing engagement by state law enforcement – or perhaps by federal law enforcement in the event that local law enforcement fail to arrest or prosecute third parties that engage in such violence. 

As for virtual marketplaces, Professor Turley observes the significant extent to which online companies such as Facebook, Twitter, and YouTube (Google) have embraced suppression of speech on the Internet. According to Professor Turley: "The expansive view of harmful speech on the Internet has led to one of the largest censorship systems in history." This rings true for anyone who has been paying attention to the behavior of major social media platforms and it should be disturbing to anyone who has valued freedom of speech on the Internet. To address the problem of online censorship and overt bias by dominant social media platforms, he recommends legislation to recognize some form of public forum protections for users of those platforms –perhaps by tying legal immunity protections for content moderation to case law protecting speech from government restrictions or by establishing a basic viewpoint neutrality requirement.

Underlying Prof. Turley's thoughtful approach is a close reading of First Amendment decisions –such as Miami Herald Publishing Co. v. Tornillo (1974), Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995) Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (2006) – from which he draws a distinction between government improperly "compelling" private speakers to speak messages with which they disagree from government permissibly "coercing" free speech forums of content neutrality and protection. Writes Professor Turley: 

The focus should be on preserving neutral forums on the Internet such as social media sites rather than forcing companies to publish a balance of views. This is the difference between a focus on limiting viewpoint censorship and the compulsion of viewpoint expression.

Notably, in NetChoice, LLC v. Paxton (2022), the U.S. Court of Appeals for the Fifth Circuit deduced from Tornillo, Hurley, Rumsfeld, and several other First Amendment decisions the same basic distinction identified by Professor Turley. In NetChoice, the court wrote that "the State may not force a private speaker to speak someone else's message… [b]ut the State can regulate conduct in a way that requires that private entities to host, transmit, or otherwise facilitate speech." (Free State Foundation President Randolph May offered his view of the Fifth Circuit's decision in his September 28 Perspectives from FSF Scholars, "Thinking Clearly and Speaking Freely – Part 12: Shining a Spotlight on Big Tech's Section 230 Immunity.")

If the reading of First Amendment case law by Professor Turley and by the Fifth Circuit hold, federal or state legislation establishing public forum protections for users of major social media platforms likely will pass constitutional muster so long as social media platforms are not compelled to speak and legislation focuses on promoting the speech of their users. Indeed, the viability of the distinction between compelling and facilitating speech may come down to a future decision by the Supreme Court, should it end up reviewing the Fifth Circuit's decision in NetChoice and the Eleventh Circuit's decision regarding Florida's law regulating social media. 

Law professors should be among the first ranks in defending the First Amendment as well as the freedom to speak without bullying by angry mobs or social media companies. After all, their vocation vitally depends on the ability to freely speak and publish. One should hope and expect that years spent dedicated to the study of law would lead legal academics to treasure the freedom of speech as a pillar of American constitutionalism and as a blessing to the people of America. Yet genuine affirmations of the importance of freedom of speech and rebukes against censorship seem to be rare. Thankfully, Professor Turley has stepped up to call out the dangers from the anti-speech movement and posit some constructive proposals for protecting the freedom of speech. 

Reaction of FSF President Randolph May to Fifth Circuit’s Decision in NetChoice v. Paxton

Free State Foundation President Randolph May released the following statement regarding the Fifth Circuit’s decision in NetChoice v. Paxton regarding the Texas law prohibiting Big Tech social media censorship:

 

“I think the Fifth Circuit decision means that it is now more likely than not that the Supreme Court, if asked, will avail itself of the opportunity to consider whether the Texas law, and similar ones, violate the First Amendment. I’m not confident of which way the Court would rule in such a case, but I am confident that the Fifth Circuit’s opinion would not — and should not — be lightly dismissed. The Fifth Circuit’s treatment of the First Amendment jurisprudence was thorough. And it was pretty persuasive in explaining why Section 230, which provides that an online platform shall not be treated as a ‘publisher or speaker’ of any content provided by a user, undermines the platforms’ arguments for holding their censorship actions are the platforms' own protected speech. I think if and when the Texas law or a similar one gets to the Supreme Court, the immunity from liability enjoyed by the platforms under Section 230 is likely to play a determinative role — one not likely to be helpful to sustaining the platforms’ First Amendment arguments."

 

Justice Kavanaugh's US Telecom Dissent Could Govern Platform Speech

Slightly less than a month ago, in NetChoice v. Paxton, the Supreme Court restored a preliminary injunction that prevented Texas's social media common carriage law, HB20, from taking effect. I already wrote about Justice Alito's dissent in that case, and as I noted back then, the Supreme Court's 5-4 majority did not explain its reasoning. This time, I'm going to take a stab at guessing that reasoning, and my guess involves then-Judge Kavanaugh's dissent in US Telecom v. FCC (2017).

Justice Kavanaugh, a member of the NetChoice majority, possibly showed his cards years earlier while dissenting from the denial of en banc review as a D.C. Circuit Judge in US Telecom. In that case, Kavanaugh explained his belief that the First Amendment bars the imposition of "net neutrality" regulations, including prohibitions on blocking, throttling, and paid-prioritization, on broadband providers. Specifically, Kavanaugh relied on Turner Broadcasting System v. FCC (1997), which he interpreted as ruling that First Amendment protections for editorial discretion apply to modern communications services, even though Turner addressed cable television rather than broadband. Kavanaugh would have applied the editorial protection afforded to cable providers in Turner to broadband providers.

Here, of course, we deal with Internet service providers, not cable television operators. But Internet service providers and cable operators perform the same kinds of functions in their respective networks. Just like cable operators, Internet service providers deliver content to consumers. Internet service providers may not necessarily generate much content of their own, but they may decide what content they will transmit, just as cable operators decide what content they will transmit. Deciding whether and how to transmit ESPN and deciding whether and how to transmit ESPN.com are not meaningfully different for First Amendment purposes.

Then, and most relevant to guessing the Court's possible reasoning in NetChoice, Kavanaugh argued that, in order to overcome the "intermediate scrutiny" protection the First Amendment affords to editorial discretion, the government needed to make a credible finding that broadband providers had market power. The FCC's order adopting the net neutrality regulations did not do that. To show the consequences of that omission, Kavanaugh argued that, if that approach were adopted, Congress could impose similar regulations on Internet platforms such as Facebook, Google/YouTube, and Twitter, and even traditional publishers like the New York Times, without obstacle.

If market power need not be shown, the Government could regulate the editorial decisions of Facebook and Google, of MSNBC and Fox, of NYTimes.com and WSJ.com, of YouTube and Twitter. Can the Government really force Facebook and Google and all of those other entities to operate as common carriers? Can the Government really impose forced-carriage or equal-access obligations on YouTube and Twitter? If the Government’s theory in this case were accepted, then the answers would be yes. After all, if the Government could force Internet service providers to carry unwanted content even absent a showing of market power, then it could do the same to all those other entities as well. There is no principled distinction between this case and those hypothetical cases.

The underlying sentiment of Kavanaugh's "slippery slope" argument above is that there is something wrong with common carriage regulation of Internet platforms and traditional publishers. And the Court long ago ruled that something is indeed wrong with common carriage style regulation of newspapers in Miami Herald Publishing Co. v. Tornillo (1974).

Perhaps the Court's majority in NetChoice reached the same conclusion as Kavanaugh in US Telecom, relying on cases like Turner and Tornillo as an indication that NetChoice is likely to succeed on the merits of its case, which is one of the factors for granting a preliminary injunction.

For now, we do not know the Court's reasoning, but Kavanaugh's opinion in US Telecom is a good place to start guessing. And we also do not know, assuming the majority embraced Kavanaugh's reasoning, whether a majority of the Justices would do the same in the context of common carriage regulation of broadband service. As Justice Alito explained in his NetChoice dissent, the Court has taken different First Amendment approaches for different technologies.

But we do know that, as NetChoice continues to move through the courts, it will have broad implications on communications and First Amendment law.

Justice Alito's NetChoice v. Paxton Dissent Shows Openness to Platform Common Carriage

Justice Alito penned an emergency docket dissent last week in NetChoice v. Paxton  that may shed light on whether the Supreme Court would uphold common carriage or must-carry obligations for social media platforms. Alito, joined by Justices Gorsuch and Thomas, argued that the Court should not have restored a district court's preliminary injunction of Texas's HB20, which prevented social media platforms with over 50 million users from banning users and removing user-generated content on the basis of viewpoint.

While defending the law in a federal district court, Texas Attorney General Ken Paxton described HB20 as a form of common carriage regulation. The District Court enjoined HB20 for infringing on platforms' First Amendment right to editorial discretion. A Fifth Circuit panel stayed that decision, but the Supreme Court has now vacated that stay, restoring the preliminary injunction.

However, it is unclear why because the Court's 5-4 majority, which included a unique breakdown of Chief Justice Roberts and Justices Barrett, Breyer, Kavanaugh, and Sotomayor, did not explain its reasoning. Justice Kagan voted against restoring the preliminary injunction, but she did not join Justice Alito's dissent.

Image credit: Wikipedia user JoshEllie1234. No alterations made.

Justice Alito, applying the requirement that applicants for preliminary injunctions must be likely to succeed on the merits under existing law, argued that common carriage of social media is a novel issue unaddressed by precedent. Alito further explained that "[i]t is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies . . ." because while some cases have recognized a First Amendment right to editorial discretion, others have denied it.

The law before us is novel, as are applicants' business models. Applicants claim that §7 of HB20 interferes with their exercise of "editorial discretion," and they maintain that this interference violates their right "not to disseminate speech generated by others." Under some circumstances, we have recognized the right of organizations to refuse to host the speech of others. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557 (1995) (parade organizer); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974) (newspaper). But we have rejected such claims in other circumstances. For example, in PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980), we rejected the argument that the owner of a shopping mall had "a First Amendment right not to be forced by the State to use his property as a forum for the speech of others." And in Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 (1994), we declined to apply strict scrutiny to rules that "interfere[d] with cable operators' editorial discretion by compelling them to offer carriage to a certain minimum number of broadcast stations."

Alito also explained that Texas made arguments similar to those accepted by the Court in cases upholding common carriage or must-carry regulations.

First, Texas contends that §7 does not require social media platforms to host any particular message but only to refrain from discrimination against a user’s speech on the basis of "viewpoint," and in this respect the statute may be a permissible attempt to prevent "repression of [the freedom of speech] by private interests." Second, Texas argues that HB20 applies only to platforms that hold themselves out as "open to the public," and as neutral forums for the speech of others. These representations suggest that the covered social media platforms—like the cable operators in Turner—do not generally "'convey ideas or messages [that they have] endorsed.'" Third, since HB20 is limited to companies with "50 million active users in the United States,” Texas argues that the law applies to only those entities that possess some measure of common carrier-like market power and that this power gives them an "opportunity to shut out [disfavored] speakers."

Apart from the merits, Alito explained that the "procedural posture" of the case also warrants against granting a preliminary injunction.

In conclusion, Alito made clear that he has "not formed a definitive view on the novel legal questions that arise from Texas’s decision to address the 'changing social and economic' conditions it perceives." But the perceived novelty of the legal issues presented in this case, to Justices Alito, Gorsuch, and Thomas, warranted against a preliminary injunction.

Alito's dissent indicates that at least three justices are willing to entertain the legality of common carriage or must-carry regulations on social media platforms. And Justice Kagan, though she did not join Alito's dissent or write for herself, may likewise be open to the prospect. This case will be important to watch as the lower courts, and possibly the Supreme Court itself, address the merits in later stages.

Government's "Time, Place, and Manner" Authority Preserved by Supreme Court

Last week, the Supreme Court upheld regulatory distinctions between on-premise and off-premise roadway signs as lawful "content neutral" restrictions under the First Amendment in City of Austin v. Reagan National Advertising of Austin, LLC. This holding clarifies the Court's prior ruling in Reed v. Town of Gilbert, which held that viewpoint-based regulation of roadway signs violate the First Amendment.

City of Austin preserves government authority to restrict speech for reasons that do not relate to the underlying content of the message – so-called content-neutral "time, place, and manner" restrictions. Some courts and commentators had cited Reed v. Town of Gilbert to narrow government authority to implement such restrictions. A consensus had emerged that Town of Gilbert outlaws regulations that require government officials to read the potentially subjected speech to determine whether the regulation applies.



This is how my constitutional law professor taught me to read Town of Gilbert, and the Fifth Circuit opinion reversed in City of Austin likewise took this approach. The Fifth Circuit's opinion reasoned that, because a government official must read a roadway sign to determine whether the sign is on-premise or off-premise, Austin's sign code drawing distinctions on that basis was an unlawful "content-based" restriction.

But the Court disagreed with that simplistic "read the sign" test, noting that Austin's sign code did not discriminate based on the underlying message of the sign. All messages within the on-premises category faced the same regulations, and all messages within the off-premises category faced the same regulations. The only reason the regulator had to read the underlying message at all was to determine whether the sign was on- or off-premises, not what the message itself said. In other words, City of Austin involved a place restriction, which is not usually suspect under the First Amendment. This is a far-cry from the sign code that violated the First Amendment in Town of Gilbert, which would've applied different regulations to signs depending on whether their messages were "ideological" or "commercial," among other categories.

Justice Alito concurred in the outcome. Justices Thomas, Gorsuch, and Barrett dissented, arguing that the Fifth Circuit correctly applied Town of Gilbert by holding that the on-vs-off premises distinction is unconstitutional.

City of Austin appears to credit the crux of Justice Breyer's Town of Gilbert concurrence. Breyer concurred in the outcome but refused to join the majority opinion in Town of Gilbert because he believed the simplistic "read the sign" test would eliminate too much government regulatory authority over subjects that do not involve serious First Amendment concerns like protecting political speech.

Moving forward, it appears the Court will respect broader authority to implement time, place, and manner restrictions.

Thinking Clearly About Speaking Freely – Part 6 - Don't Miss Catholic Law's Inaugural Seigenthaler Debate

 

“If all of mankind minus one were of one opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind.” John Stuart Mill

 

*     *     * 

 

If you are concerned about the impact of today's raging Cancel Culture on the ability of Americans to speak freely on a wide range of subjects, including politics, culture, education, religion, race, and public health, then there is a good chance you are aware of Justice Clarence Thomas's concurring opinion last year in Biden v. Knight First Amendment Institute of Columbia University.

 

In a case involving President Donald Trump's control of his Twitter account, and his subsequent suspension from Twitter, Justice Thomas said this:

"Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties. We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms."

Justice Thomas says there is a “fair argument” that Google, Facebook, Twitter, and perhaps other online platforms could be deemed common carriers. If so, they then would incur an obligation to carry, without discrimination, all lawful content posted to their sites. In other words, the platforms would be required to operate, for purposes of carrying or hosting content, in a nondiscriminatory fashion like the telephone and telegraph companies long deemed common carriers. 

 

 

In Part 3 of this "Thinking Clearly About Speaking Freely Series," I explored Justice Thomas's suggestion that Internet platforms, or at least the dominant ones, should be considered common carriers (or public forums, an alternative suggestion). I did not advocate – at least not then – adoption of his suggestion, and I remain skeptical for the reasons I have articulated. Nevertheless, given my ongoing concern that Internet platforms censor too much lawful content that ought to remain within the realm of legitimate debate and widely available to the public, I know that Justice Thomas's suggestion is worthy of discussion by serious scholars in a forum expressly dedicated to respectful debate. 

 

That's why the Free State Foundation is proud to co-sponsor, with Catholic University's Columbus School of Law, the inaugural Seigenthaler Debate, named in honor of the late John L. Seigenthaler. The virtual debate will be held on February 16 at 7:00 p.m. Mr. Seigenthaler, founder of the First Amendment Center and an editor of the Tennessean and USA Today newspapers, was widely acclaimed as a staunch advocate of free speech and freedom of the press.

 

The debate topic: "Resolved: “Should Internet Platforms Be Treated Like Common Carriers?” Eugene Volokh, Professor of Law at UCLA and a member of the Free State Foundation's Board of Academic Advisors, will argue in favor the resolution, and Ash Bhagwat, Professor of Law at University of California at Davis, will argue against.

 

I'm very much looking forward to the debate, and here I don't want to say more about the merits of the opposing positions than I have already – except these brief prompts. On the one hand, the Internet platforms, including Facebook, Twitter, and Google, which most often are accused of prohibiting or restricting legitimate debate, are private companies, generally protected by the First Amendment from government compulsion or interference relating to their content moderation decisions or practices.

 

On the other hand, consider this: Former Twitter CEO Jack Dorsey referred in congressional testimony to Twitter as a “public square” and “a global town square” while emphasizing the importance of a “free and open exchange” of ideas on the site. In a March 2019 post, Facebook CEO Mark Zuckerberg described Facebook as the “digital equivalent of a town square.” Google’s @TeamYouTube proudly claims on Twitter that “YouTube is a platform for free expression of all sorts.”

 

The purpose of the Seigenthaler Debate is to "provide a collegial forum that fosters debate, dialogue, and study of First Amendment issues from all sides." As I have often said, the free speech values at the heart of the Founders’ First Amendment are central to our country’s Constitutional Culture, and the health of our democracy. These values should be nourished in the private sphere by individuals, businesses, institutions – including, not the least of which, educational institutions. Whatever other laws or public policy actions, if any, might be deemed proper to remedy the Cancel Culture's adverse effects, nurturing a robust Constitutional Culture that supports the free exchange of ideas is a crucial antidote.

 

That's the job of all of us. With that in mind, I do hope you will join me for the debate, "Resolved: “Internet Platforms are Common Carriers,” on February 16 at 7:00 p.m. Pertinent information with the registration link is here.

Colin Powell on Speaking Freely and Faith in America

 

It is not necessary to agree with everything that Colin Powell ever said or did to acknowledge that this soldier, statesman, and trailblazer was a true American hero. While mourning his passing, I celebrate his life, which has much to teach us about America and the never-ending task of realizing the ideals expressed in our founding guideposts, the Declaration of Independence and the Constitution.

 

Last week at the celebration of the Free State Foundation's Fifteenth Anniversary, I said that our think tank's mission "is to promote, through research and educational activities, understanding of free market, free speech, limited government, and rule of law principles and to advocate laws and policies true to these principles."

 

While much will be said and written in the coming days regarding General Powell's various contributions to our country, here I want to focus on one that is particularly relevant to our present moment, when "Cancel Culture" runs rampant throughout much of American society, chilling the ability to think clearly and speak freely.

 

In May 1994, Colin Powell delivered the Commencement Address at Howard University, and I commend it to you in its entirety. At the time of his speech, Howard was embroiled in a controversy regarding its decision to allow a Black writer and member of Nation of Islam to deliver a speech containing racist and anti-Semitic statements. Here is part of what General Powell said:

 

"I believe with all my heart that Howard must continue to serve as an institution of learning excellence where freedom of speech is strongly encouraged and rigorously protected.

 

That is at the very essence and heart of a great university and there is no doubt that Howard is a great university.

 

And freedom of speech means permitting the widest range of views to be presented, however controversial those views may be.

 

The First Amendment right of free speech is intended to protect the controversial and even the outrageous word, and not just comforting platitudes, too mundane to need protection.

 

Some say that by hosting controversial speakers who shock our sensibilities, Howard is in some way promoting or endorsing that message – not at all. Howard has helped put that message in perspective while protecting their right to be heard, so the message can be exposed to the full light of day for comment and criticism."

 

Isn't it a shame that now, more than a quarter century later, so many of those in our government, businesses, media, educational institutions, and elsewhere throughout society don't understand – or have the courage to stand up for – Colin Powell's ringing endorsement of freedom of speech, and why it matters if we are to remain a free society?

 

In recent months, I've written four pieces in a series called "Thinking Clearly and Speaking Freely," to consider the impact of the Cancel Culture and what can be done about it. Consistent with that part of the Free State Foundation's mission devoted to promoting free speech, we will continue to address this subject. But, today, you need go no further than studying – and taking to heart – Colin Powell's words from his Howard University commencement address.

 

Finally, in closing, General Powell also said this to the graduating students on that day in May 1994:

 

"Above all, never lose faith in America. Its faults are yours to fix, not to curse. America is a family: There may be differences and disputes within the family, but we must not allow the family to be broken into warring factions. From the diversity of our people, let us draw strength and not seek weakness.

 

Believe in America with all your heart and soul, with all of your mind. Remember, that it remains the "last, best hope of Earth." You are its inheritors and its future is today placed in your hands."

 

Like his call to protect free speech, General Powell's call to never lose faith in America –and the American family writ large – could not be timelier today.

 

Colin Powell, RIP. 

FCC Commissioner Brendan Carr Stands Up for Free Speech in Broadcasting

Freedom of speech is protected by the First Amendment to the U.S. Constitution. Importantly, free speech protections extend to speech about the conduct of public officials. Americans have the right to talk about and criticize their leaders. Supporters of free speech – including political free speech – should read FCC Commissioner Brendan Carr's May 10 statement bearing the subtitle: "FCC Must Stand up for Free Speech and Press Freedom by Dismissing Complaint Today." Commissioner Carr's statement comes in response to a formal complaint filed by the Office of the State's Attorney for Baltimore City, which complains about the tone and frequency of local broadcast journalists' stories about State's Attorney Marilyn Mosby. A link to the formal complaint is provided in Commissioner Carr's statement. 

It's not the role of the FCC to serve as selective speech police. And if the Commission were to try to go down that road, the First Amendment would forbid it. In April 2020, the FCC's Media Bureau and its now-former General Counsel Thomas Johnson issued an important letter defending broadcasters' free speech on matters of public interest. Free State Foundation President Randolph May interviewed Mr. Johnson about that letter and more in a May 2020 event with the Federalist Society, and the audio is available online.

So far, the newly-constituted FCC apparently has been silent on the State Attorney Office's speech complaint. Hopefully the Commission will follow Commissioner Carr's lead in respecting First Amendment free speech rights. 

Court Permanently Enjoins Enforcement of Maine's Cable-Only A La Carte Law

Pursuant to a court-approved agreement by the parties to a pending legal challenge, a Maine law that would have forced cable operators to unbundle the programming they offer to customers, but not rival distributors of multichannel programming, will not go into effect.

LD 832 states in its entirety that "[n]otwithstanding any provision in a franchise, a cable system operator shall offer subscribers the option of purchasing access to cable channels, or programs on cable channels, individually."

In the summer of 2019, Comcast of New Hampshire/Maine joined a group of cable programmers (Plaintiffs) to sue the Governor of Maine, the Attorney General, and a number of municipalities (Defendants) in the U.S. District Court of Maine.

Plaintiffs put forth three arguments in support of their request for declaratory and injunctive relief: (1) that LD 832 violates the First Amendment by singling out cable operators for disfavored treatment, (2) that it infringes upon Plaintiffs' constitutionally protected editorial discretion regarding how they choose to package programming, and (3) that it is preempted by Sections 544 and 556 of the Communications Act.

The District Court agreed with the first of these arguments and in December 2019 granted a preliminary injunction.

In "Maine's Cable Unbundling Law Violates the First Amendment," a July 2020 Perspectives from FSF Scholars, Free State Foundation President Randolph J. May and I took issue with the District Court's errant conclusion that cable operators' First Amendment protections, recognized by the Supreme Court in its 1994 Turner I decision, do not extend to the editorial decision to make (1) individual channels available to customers exclusively through tiers, and (2) individual programs available solely as part of channels.

In February 2021, the U.S. Court of Appeals for the First Circuit denied Defendants' appeal of the District Court's decision to grant a preliminary injunction, a development I described in a contemporaneous post to the FSF Blog.

In response, the parties agreed to put an end to their legal dispute, filing with the District Court a Joint Motion for Entry of Stipulated Final Judgment and Order for Declaratory and Permanent Injunctive Relief.

On April 23, the District Court issued an Order (1) declaring that LD 832 violates the First Amendment, and (2) permanently enjoining the Defendants from giving it effect.

Regrettably, the District Court's entry of this Order means that it will not have the opportunity to revisit its incorrect conclusion that the Maine law does not infringe cable operators' constitutionally protected editorial discretion with respect to the packaging of programming. Nor, for that matter, will Plaintiffs have the chance to develop the record more fully on the question of federal preemption.

Nevertheless, it certainly is welcome news that the saga of LD 832 has come to end.

Judge Silberman's Straight Talk on New York Times v. Sullivan and One-Sided Media

On April 8, Free State Foundation President Randolph May posted a blog bout Justice Clarence Thomas's concurring statement in Biden v. Knight First Amendment Institute at Columbia University. Justice Thomas's concurring statement is both intriguing and provocative. For another intriguing and provocative judicial opinion, look no further than Senior Judge Laurance Silberman's dissent in Tah v. Global Witness Publishing, Inc. 

 

The D.C. Circuit's decision in Tah was released on March 19. The court affirmed a dismissal of a defamation case for failing to plausibly allege actual malice. Senior Judge Silberman's partial dissent gets really interesting in Part III, in which he calls into question the legal standard for proving defamation of public figures that was created by the Supreme Court in New York Times v. Sullivan (1969): 

I am prompted to urge the overruling of New York Times v. Sullivan. Justice Thomas has already persuasively demonstrated that New York Times was a policy-driven decision masquerading as constitutional law. See McKee v. Cosby, 139 S. Ct. 675 (2019) (Thomas, J., concurring in denial of certiorari). The holding has no relation to the text, history, or structure of the Constitution, and it baldly constitutionalized an area of law refined over centuries of common law adjudication. See also Gertz v. Robert Welch, Inc., 418 U.S. 323, 380–88 (1974) (White, J., dissenting). As with the rest of the opinion, the actual malice requirement was simply cut from whole cloth. New York Times should be overruled on these grounds alone.  

The foregoing paragraph is only the warm-up, as Senior Judge Silberman has much more to say about the Supreme Court making up new legal standards and leveraging its institutional legitimacy to resist any subsequent careful re-evaluation of its precedents. 

 

Senior Judge Silberman's dissent gets more interesting still when he identifies the effects of New York Times v. Sullivan in increasing the power of one-sided professional mass media organizations. Here is his first paragraph dealing with those effects: 

As the case has subsequently been interpreted, it allows the press to cast false aspersions on public figures with near impunity. It would be one thing if this were a two-sided phenomenon. Cf. New York Times, 376 U.S. at 305 (Goldberg, J., concurring) (reasoning that the press will publish the responses of public officials to reports or accusations). But seeSuzanne Garment, The Culture of Mistrust in American Politics 74–75, 81–82 (1992) (noting that the press more often manufactures scandals involving political conservatives). The increased power of the press is so dangerous today because we are very close to one-party control of these institutions. Our court was once concerned about the institutional consolidation of the press leading to a "bland and homogenous" marketplace of ideas. See Hale v. FCC, 425 F.2d 556, 562 (D.C. Cir. 1970) (Tamm, J., concurring). It turns out that ideological consolidation of the press (helped along by economic consolidation) is the far greater threat. 

No blog summary can do justice to Senior Judge Silberman's dissent in Tah. Part III of his dissent deserves a full reading – and some pondering. 

First Circuit Affirms Preliminary Injunction Against Maine's Cable Unbundling Law

On Wednesday, the U.S. Court of Appeals for the First Circuit affirmed a lower court decision barring from going into effect video programming unbundling legislation in Maine that exclusively targets cable operators.

The Maine law (LD 832) requires cable operators to offer individual channels and programs on an a la carte basis. Satellite, Internet-based, and other competing providers of multichannel video programming services remain free to package content, and market it to consumers, however they choose.

Shortly after LD 832 became law in June 2019, Comcast of New Hampshire/Maine and a group of cable programmers sought declaratory and injunctive relief from the U.S. District Court in Maine.

The plaintiffs argued that the Maine law is preempted by federal law and runs afoul of the First Amendment in two ways. First, it singles out cable operators. Second, it infringes upon cable operators' protected editorial discretion regarding how they package programming.

In December 2019, the District Court in Maine granted a preliminary injunction solely on the basis that LD 832 improperly singles out cable operators. It rejected the preemption and editorial-discretion arguments. With respect to the latter, the court's decision hinged upon an inappropriately narrow interpretation of the U.S. Supreme Court's 1994 Turner I decision recognizing that First Amendment protections apply to cable operators' programming decisions.

As Free State Foundation President Randolph J. May and I explained in a July 2020 Perspectives from FSF Scholars, numerous Supreme Court decisions, including Turner II, make plain that cable operators' First Amendment protections do extend to decisions as to how content is packaged. We therefore expressed hope that the appellate court would take up this issue.

The First Circuit affirmed the District Court in Maine's grant of a preliminary injunction, but did so solely on the basis that LD 832 "constitutes a speaker-based regulation that 'singles out' cable operators' speech for special, disfavored treatment." Regrettably, it declined to consider whether the law also infringes cable operators' protected editorial discretion.

Maine must now decide if it wants to pursue the case further. If it does, one threshold issue that the District Court must decide is "whether additional, post-enactment evidence can be offered in support of the law." For as the First Circuit noted, "[t]he state candidly conceded at oral argument that, if the Act triggers the First Amendment at all, the existing record is insufficient to justify the law …."

A copy of the First Circuit decision is available here.