The Courts

Washington Post: Is the legal standard for libel outdated? Sarah Palin could help answer.

By Genevieve Lakier

In recent years, an increasing number of influential voices have argued that perhaps the most famous First Amendment case in history might be wrong. This week, a federal court in Manhattan will begin a trial that could ultimately determine whether they’re right. The answer to that question has been billed as a pivotal moment in press freedom in the United States. But it is worth spending a moment to consider whether two words from a 58-year-old case should bear so much weight.

NiemanReports: An Insider Glimpse Into the Story of the Pentagon Papers Case

Stuart Brotman’s book, “The First Amendment Lives On: Conversations Commemorating Hugh M. Hefner’s Legacy of Enduring Free Speech and Free Press Values,” set for publication by the University of Missouri Press in April 2022, contains eight in-depth interviews with pioneers of free speech. The excerpt below features Brotman’s conversation with Floyd Abrams, [who] represented The New York Times during the Pentagon Papers case…

In conversation with Broton, Abrams discusses the behind-the-scenes decision-making involved in the case and the legal challenges The Times navigated before the court.

Free Expression

The Atlantic: What the Constitution Doesn’t Say

By George Thomas

Consider the First Amendment’s prohibition against “abridging the freedom of speech, or of the press.” What does that freedom entail, exactly? Does it prohibit Congress from preemptively blocking speech that it deems unprotected? What about punishing such speech after the fact? Does it allow an opposition party or private citizen to criticize the sitting government? This last question was the subject of a heated debate in the 1790s, less than a decade after the First Amendment was ratified. While there was ready agreement that the text protected the freedom of speech and of the press, there was profound disagreement on the scope of these freedoms.

At the time, most sitting Supreme Court justices held that the First Amendment allowed the government to punish speech that brought public officials or the government into disrepute. Presiding over the trial of a critic of President John Adams, Justice Samuel Chase argued that any political minority must “surrender up their judgment” once a government was selected, and that “private opinion must give way to public judgment, or there must be the end of government.” In contrast, James Madison argued that interpretations like Chase’s prohibited the “right of freely examining public characters and measures, and of free communication among the people … which has ever been justly deemed the only effectual guardian of every other right.” The disagreement between figures like Chase and Madison lay primarily in their disparate understanding of the logic of popular government, not in their literal reading of constitutional text. Their debate required using unwritten ideas to outline the substance and scope of “the freedom of speech, or of the press,” just as we have to outline the scope of “liberty” in the Fourteenth Amendment.

Online Speech Platforms

The American Conservative: Living Outside Our Bubbles

By Micah Meadowcroft

Social media do not contribute to political extremism by letting us sort into ideological silos; instead, they constantly expose us to people with beliefs and ways of life that appear to us as a threat…

We have not been siloed by 24 hour news and digital infotainment, but rather exposed incessantly to the reality of different types of people and alternative ways of living. Our communities and the social order we take for granted become at risk as, thanks to technology, we find ourselves unable to simply live apart from the other. For the other is now here, in our home, in our face, on our screen, all the time.

New York Times: Why I’ve Decided to Take My Podcast Off Spotify

By Roxane Gay

I would never support censorship. And because I am a writer, I know that language matters. There’s a difference between censorship and curation. When we are not free to express ourselves, when we can be thrown in jail or even lose our lives for speaking freely, that is censorship. When we say, as a society, that bigotry and misinformation are unacceptable, and that people who espouse those ideas don’t deserve access to significant platforms, that’s curation. We are expressing our taste and moral discernment, and saying what we find acceptable and what we do not.

Too many people believe that the right to free speech means the right to say whatever they want, wherever, whenever, on whatever platform they choose, without consequence. They want free speech to exist in a vacuum, free from context, free from criticism.

The States

Newsweek: Ohio Bill Could Make It Easier to Sue Social Media Companies Over Censorship

By Charlotte Trattner

A proposal in the Ohio Legislature could make it easier for individuals to sue social media platforms like Facebook, YouTube and Twitter if the companies remove content that expresses particular viewpoints.

The measure, introduced by Republican state Rep. Al Cutrona, targets what he and another state lawmaker, Rep. Scott Wiggam, say is a continual effort to quiet conservative stances and opinions. In contrast, opponents of the bill say it could lead to more harmful content such as extremism, conspiracy theories and spam messages getting through.

Similar bills were previously introduced and blocked by federal judges in Texas and Florida in 2021 after NetChoice, a public policy advocacy organization that promotes free speech, filed federal lawsuits against Texas and Florida officials over the proposed bills.

In all three states, both sides have used the First Amendment as the basis for arguments for and against the bill.

Reason (Volokh Conspiracy): Thomas Calls for Reconsidering New York Times v. Sullivan

By Eugene Volokh

The case is Mastandrea v. Snow, handed down yesterday; here’s an excerpt from Judge [Bradford] Thomas’s concurrence:

I concur because I am bound by the decision of New York Times v. Sullivan (1964).

But I agree with Justice Clarence Thomas, Justice Neil Gorsuch, Judge Lawrence Silberman, and others, that New York Times was wrongfully decided and was not grounded in the history or text of the First Amendment. Appellant and other public-figure defamation plaintiffs should not have to prove that the alleged defamation was made with the knowledge that it was false or with reckless disregard of the truth, as this is an “almost impossible” burden ….

New York Times has inflicted real injury on society: