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For the term "westboro".
6

For the Love of Hate: Why We Have Little to Fear from the Westboro Baptist Church

The “marketplace of ideas” conception of free speech is deeply flawed, not least because it unjustifiably presumes a level playing field and equal access. It also gives rise to the notion that there is no harm in giving false ideas free run because the truth will win out in the end. This myth was debunked by none other than John Stuart Mill, often credited as the father of the marketplace model of free speech: “[T]he dictum that truth always triumphs over persecution is one of those pleasant falsehoods which men repeat after one another till they pass into commonplaces, but which all experience refutes. History teems with instances of truth put down by persecution.”

However, as the saying goes, even a stopped clock is right twice a day.  The naive – often disingenuously so – belief that “the true and sound will survive” while “the false and unsound will be vanquished” is occasionally vindicated, as it is in the case of the Westboro Baptist Church. The Church may have “won” in Snyder v. Phelps, but in a much more important sense, it has lost as spectacularly as any hateful group in recent history. One is hard pressed to find a group more universally hated across the ideological spectrum than the Westboro Baptist Church. Vocal critics of the Church include Bill O’Reilly, Sarah Palin, Michael Moore, and Jon Stewart. Numerous Christian organizations have condemned Westboro, as has the Ku Klux Klan (that’s right – the Ku Klux Klan finds Westboro’s practices too extreme). As of today, none of Westboro’s charmingly-named sites (godhatesfags.com, godhatesyou.com, priestsrapeboys.com, etc.) is accessible online, thanks to the efforts of either the hacking collective Anonymous or a self-proclaimed adversary of Anonymous who calls himself The Jester. Anonymous is currently under investigation for attacking MasterCard and Amazon on behalf of Wikileaks; The Jester claims responsibility for the cyber attack on Wikileaks last November. In other words, perhaps the most extraordinary thing about the Westboro Baptist Church is its ability to serve as a common target for groups who passionately disagree with and even hate each other.

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FAN 41 (First Amendment News) Three Harvard Law Review essays discuss Justice Breyer’s free speech jurisprudence

  • Judge Breyer has a unique zig-zag style. Ralph Nader (confirmation hearing statement, July 15, 1994)
  • I do not rest my conclusion upon a strict categorical analysis. – Justice Stephen Breyer (concurring in United States v. Alvarez, June 28, 2012)
  • The single most important area of Breyer’s work on the Court has been his opinions on the First Amendment, in which he has developed a unique and pathbreaking approach to issues of freedom of speech. — Paul Gewirtz (Yale Law Journal, 2006)
Justice Stephen Breyer

On the one hand . . . but then on the other

When it comes to free speech, he is darling of the Liberal Left . . . or some on the Left, or of some on the Left in the legal academy, or of those on the Left who abhor rulings such as Citizens United v. FEC (2010) and McCutcheon v. FEC (2014). To others, he is the Justice who got the First Amendment right (albeit in dissent) in cases such as Holder v. Humanitarian Law Project (2010) and Garcetti v. Ceballos (2006). Many of those same defenders shy away from their praise when it comes to opinions such as the one Justice Breyer authored in Randall v. Sorrell (2006).

In his pragmatist approach, one will readily discern the vernacular of ad hoc balancing, of  “competing constitutional concerns” or “First Amendment interests . . . on both sides of the legal equation.” Mindful of such concerns, he asks: Are the “restrictions on speech disproportionate when measured against their speech-related benefits”? And why? What is the purpose of such balancing? He responds: to “facilitate a conversation among ordinary citizens that will encourage their informed participation.” To that end, government may limit speech in the supposed service of “preserving a democratic order” or for the purpose of promoting and protecting  “collective speech.” In this way an others, and dating back to his 1997 concurrence in Turner Broadcasting System, Inc. v. FCC II, Stephen Breyer has set out to rewrite First Amendment jurisprudence.

In light of his two decades of service on the Supreme Court, I thought I would offer some background information on how the Justice has decided First Amendment free expression cases (29 are listed below), his thoughts on free speech generally, and how scholars and lawyers have viewed his jurisprudence in this area. A sketch of all of that is set out below by way of select references to various sources.

HLR Essays in Honor of Justice Breyer 

The November issue of the Harvard Law Review has a collection of essays in honor of Justice Stephen Breyer’s twenty years of service on  the United States Supreme Court. The following three essays concern the Justice’s free speech jurisprudence:

Let me pose a hypothetical

Let me pose a hypothetical: “Candidate Smith — we can only give him $2,600 — has a lot of supporters.”

Active Liberty: Justice Breyer on Free Speech

In his 2005 book, Active Liberty: Interpreting our Democratic Constitution, Justice Breyer devoted a chapter (pp. 39-55) to the question of free speech.

Roberts Court Era: Justice Breyer’s Majority or Plurality Opinions in Free Expression Cases

In what follows, S indicates that a majority of the Court sustained the First Amendment claimed whereas D means that it was denied.

Separate Opinions: Below is a list of separate opinions authored by Justice Breyer in free expression cases decided during the Roberts Court era:

a pensive moment

the pensive pragmatist

Justice Breyer’s Pre-Roberts Court Opinions: Selected Cases 

First Circuit Free Expression Opinions Read More

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Squaring Revenge Porn Criminal Statutes with First Amendment Protections

Yesterday, the New York Times editorial board endorsed the efforts of the Cyber Civil Rights Initiative to criminalize revenge porn. As the editorial board urged, states should follow the lead of New Jersey in crafting narrow statutes that prohibit the publication of nonconsensual pornography. Such efforts are indispensable for victims whose lives are upended by images they shared or permitted to be taken on the understanding that they would remain confidential. No one should be able to turn others into objects of pornography without their consent. Doing so ought to be a criminal act.

Professor Mary Anne Franks has been at the forefront of legislative efforts in New York, Wisconsin, and Maryland. Soon, I will be blogging about the work Franks and I have done with Maryland legislators. Now, I would like to shift our attention to the First Amendment. As free speech scholar Eugene Volokh has argued elsewhere, non-consensual pornography can be criminalized without transgressing First Amendment guarantees. Let me explain why from the vantage point of my book Hate 3.0 (forthcoming Harvard University Press) and an essay Franks and I are writing for the Wake Forest Law Review. Read More

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Torts, Bans, and Democratic Persuasion: A Reply to West, Fleming, and McClain (with help from Norton)

At the start of the symposium on When the State Speaks, Paul Horwitz praised much of the book’s argument and its conclusions, but he worried that public officials might push the state’s expressive powers in problematic directions. This sort of worry led him and Steve Calabresi to argue that the book is too strong in its conception of democratic persuasion. For example, they raise concerns about my argument that the tax privileges of 501(c)3 status should be extended only to groups that serve the public good.

I argue that the law already has a public good requirement for receiving tax privileges, but that the definition of “public good” is often vague and potentially arbitrary. The book defines the public good requirement in a more precise and consistent way that would be less open to abuse than the current standard. To serve the public good, groups should accept the ideal of freedom and equality for all citizens. A group that supports hatred of minorities and the curtailment of their rights should not receive public support in the form of tax privileges.

In this post I respond to scholars who are pushing me in the opposite direction from Paul and Steve. Robin West, James Fleming, and Linda McClain all agree with me that the state should promote an ideal of free and equal citizenship. Their arguments help to motivate a strong conception of democratic persuasion, in response to Paul’s and Steven’s concerns. However, West, Fleming, and McClain would allow types of democratic persuasion that are more activist than the book’s. Would their proposals risk violating free speech rights, and would they be consistent with my approach? Read More

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Hastings Law Journal, Issue 64.2 (January 2013)

Hastings Law Journal, Issue 64.2 (January 2013)

Articles
Plausibility and Disparate Impact
Joseph A. Seiner

Safe Harbors and the National Information Infrastructure
Nicholas W. Bramble

The Rhetoric of Choice: Restoring Healthcare to the Abortion Right
Yvonne Lindgren

Mass Incarceration at Sentencing
Anne R. Traum

The Death of the Public Figure Doctrine: How the Internet and the Westboro Baptist Church Spawned a Killer
Douglas B. McKechnie

Notes

Familial DNA Testing, House Bill 3361, and the Need for Federal Oversight
Dane C. Barca

Chance of Rain: Rethinking Circumstantial Evidence Jury Instructions
Eugenee M. Heeter

Hastings Law Journal Voir Dire

The Hastings Law Journal’s online companion, Voir Dire, is now accepting submissions.

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Democratic Values v. Virtues: Brettschneider on Ordered Liberty

How can a liberal democracy promote its central values, such as autonomy and non-discrimination, at the same time that it protects basic rights, such as free speech? One common view is that these two goals are incompatible. According to this view, free speech rights commit liberal democracy to “neutralism,” which prohibits favoring any values. Under a neutralist approach, liberal democracy cannot promote its core values of autonomy and non-discrimination. It has no role in encouraging responsibility and virtue among its citizens.

James Fleming and Linda McClain offer a powerful challenge to the neutralist view. They propose an account of “autonomy as responsibility” that reconciles the two goals of protecting rights and promoting a set of public values and virtues. Liberal democracy upholds the rights of citizens out of respect for their autonomy, or their ability to use their reason freely to choose their own ends. For citizens to be able to make decisions as autonomous agents, they must have the right to choose their religion, associations, and political positions. But it is also important in an autonomy respecting regime that the government cultivate and encourage good decision-making. It would be pointless to respect autonomy if no actual people exercised their autonomy well. The government thus has an obligation to promote the capacity of citizens to make better and more responsible decisions. The government, including the Supreme Court, should pursue the twin aims of protecting rights and promoting individual autonomy and responsibility. This view differs from perfectionist theories, which advance particular comprehensive doctrines, and neutralist accounts, which refuse to promote values altogether. Read More

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The Harm in “The Harm in Hate Speech”

Jeremy Waldron’s new book “The Harm in Hate Speech” has rightfully received a lot of attention. Professor Waldron’s book provides an important and multi-layered justification for what many refer to as “hate speech” regulations. These regulations, like the following example from the Danish Penal Code, prohibit statements “by which a group of people are threatened, insulted or degraded on account of their race, colour, national or ethnic origin . . . . ” Such regulations are antithetical to the American free speech paradigm, but exist in many other Western democracies.

Waldron believes that, in light of America’s uniquely speech protective history and jurisprudence, his arguments are unlikely to impact the law. I fear that he is wrong. His arguments are ingenious, and therefore quite dangerous. Former Justice John Paul Stevens and former judge, and current professor, Michael McConnell have excellently rebutted Waldron’s arguments in their reviews of his book. I’d like to add a few points of my own.

Like other scholars who seek stronger regulations against hate speech, Waldron connects his arguments to the values of equality enshrined in the Fourteenth Amendment. He argues that hate speech, and its appearance and tolerance in society, undermine certain groups’ senses of inclusion, security in their equal standing, and dignity. Because the Fourteenth Amendment was enacted after the First Amendment, it is tempting to argue that protection of inclusion and dignity supersedes free speech protections. Yet, there is no true conflict between the government’s inability to regulate pure speech and the requirement that the government apply its laws equally to everyone. Losing a sense of security in one’s equal standing is not the same as actually losing that standing.

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Initial Thoughts on the Stolen Valor case

Although most people are focusing on Chief Justice Roberts’ vote to uphold the healthcare law, it turns out the Chief also voted with the “liberals” today to strike down the Stolen Valor Act as violating the First Amendment.  This is an important First Amendment opinion with lots of points for discussion.

The Stolen Valor Act makes it a misdemeanor to “falsely represent oneself as a recipient of military honors.  The final vote from the Court was 6-3, but the six votes were spread between Justice Kennedy’s plurality opinion (joined by the Chief and Justices Ginsburg and Sotomayor) and Justice Breyer’s concurring opinion joined somewhat surprisingly by Justice Kagan (more on that in a minute). The dissent was written by Justice Alito, joined by Justices Scalia and Thomas.

I will just note a few things that captured my attention after a first read:

Reliance on the marketplace of ideas: Although Justice Kennedy spends a lot of time in his plurality opinion discussing how the current statute does not require prosecutors to demonstrate any material harm resulting from the false speech, he also notably places a lot of confidence in the marketplace of ideas to discredit false statements.  In particular, he relies heavily on the ability of counterspeech to flush out the truth.  In this case, Kennedy writes, the Government could easily post online a database listing those who have received military honors.  Justice Breyer’s concurring opinion also discussed the importance of the marketplace of ideas and encouraged the Government to embrace “information-disseminating devices” to correct the truth.

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Rules v. Standards Across Constitutional Rights

I’ll admit my bias: I desire for the law to be clear and elegant. In law school, I preferred rules over standards (this has relaxed somewhat with age). Part of what drew me to the legal academy was the opportunity to produce scholarship that closes logical loopholes in jurisprudence, unifies inconsistent doctrines, and harmonizes precedent. At the margins, I’d often rather the law be more clear than more “correct.”

This bias may stem from an innate personality attribute (some of us are foxes and some are hedgehogs), or a belief that clarity promotes the rule of law. It is also likely that my initial area of interest and scholarship, First Amendment law, influenced my approach. An abundance of fact-bound inquiries and totality of the circumstances tests would eviscerate the spirit of free speech protected by the Amendment. First Amendment law is not without its balancing, but most of us have internalized the idea that judges are not generally permitted to decide which speech of private citizens has value and which speech does not. The First Amendment reflects a deep fear that those in power will dictate community values. Clear rules are necessary to prevent corruption of the doctrine, and the slope is considered very slippery. These clear rules are what led eight Justices on the Supreme Court to decide that the Westboro Baptist Church has the right to spew their simultaneously incoherent and pointedly hateful message, and for the same eight Justices to hold that depictions of animal cruelty are protected speech. These rules are why we can burn the flag as symbolic speech.

In teaching Criminal Procedure, I have repeatedly been struck by the fact that this sort of clarity is sorely lacking from cases concerning restrictions on criminal prosecution. It’s easy to come up with hypos for Crim Pro, because it’s so often unclear how a new fact pattern will be decided by the Court. Do suspected terrorists deserve their Miranda rights? Surely, they do. Miranda was intended as a bright-line test for suspects receiving custodial interrogation. Yet, somehow, both Senator McCain and the Obama administration feel that the decidedly narrow public-safety exception to Miranda may apply to this entire class of people.

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Cyberbullying and the Cheese-Eating Surrender Monkeys

(This post is based on a talk I gave at the Seton Hall Legislative Journal’s symposium on Bullying and the Social Media Generation. Many thanks to Frank Pasquale, Marisa Hourdajian, and Michelle Newton for the invitation, and to Jane Yakowitz and Will Creeley for a great discussion!)

Introduction

New Jersey enacted the Anti-Bullying Bill of Rights (ABBR) in 2011, in part as a response to the tragic suicide of Tyler Clementi at Rutgers University. It is routinely lauded as the country’s broadest, most inclusive, and strongest anti-bullying law. That is not entirely a compliment. In this post, I make two core claims. First, the Anti-Bullying Bill of Rights has several aspects that are problematic from a First Amendment perspective – in particular, the overbreadth of its definition of prohibited conduct, the enforcement discretion afforded school personnel, and the risk of impingement upon religious and political freedoms. I argue that the legislation departs from established precedent on disruptions of the educational environment by regulating horizontal relations between students rather than vertical relations between students and the school as an institution / environment. Second, I believe we should be cautious about statutory regimes that enable government actors to sanction speech based on content. I suggest that it is difficult to distinguish, on a principled basis, between bullying (which is bad) and social sanctions that enforce norms (which are good). Moreover, anti-bullying laws risk displacing effective informal measures that emerge from peer production. Read More