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Saturday, April 01, 2023

More thoughts on the ideological divide on free speech

Three stories and cases that illustrate the ideological/political divides over free speech.

• The trial court in Dominion v. Fox denied summary judgment for Fox; granted summary judgment for Dominion on falsity, defamation per se, factual, and certain affirmative defenses (such as neutral report); and denied summary judgment for Dominion on actual malice. So the case goes to trial, but Dominion has to prove only malice and damages; everything else is established. I have focused on (and taught about) the process in this case--how unusual it is for a plaintiff to get SJ on its claim absent burden shifting. Courts do not lightly relieve plaintiffs of their burden of persuasion at trial.

On the substance, the case illustrates the strangeness of the right-wing desire to overrule New York Times. Were Dominion required to prove  negligence by a preponderance, the only issue at trial would be how much money Fox must pay Dominion. Does Fox somehow think that legal change will not blow up on them and similar outlets?

• We have the first judgment declaring invalid the latest right-wing obsession--prohibiting drag. Judge Thomas Parker (WD Tenn.) declared the law invalid as content- (and perhaps viewpoint-) based and granted a TRO prohibiting enforcement. By its terms, the goes beyond the existing obscene-as-to-minors law by singling-out OATM speech by drag performers. And its history (a valid consideration under Reed) shows the state enacted the law after its sponsor tried (only partially successfully) to stop a drag show as a public nuisance. I expect many cases to come out the same way.

When we learned RAV (which at that point was about six years old) in law school, a classmate criticized the case's principle. A viewpoint-based obscenity prohibition, he argued, was impossible--a law could not, for example, prohibit Democratic obscenity while allowing Republican obscenity because that political focus gives the expression SLAPS value and thus makes it non-obscene. Tennessee (and other) Republicans obsessed with non-sexual drag have shown us how it is possible.

• George Mason invited (apparently without student consultation) Virginia Governor Glenn Youngkin to give its commencement address. Some students objected, based on the policies Youngkin has pursued--including anti-trans and anti-race-in-educationstuff that DeSantis has tried in Florida to greater fanfare. FIRE and others have responded by, unsurprisingly, treating student objections as efforts at censorship. GMU President Gregory Washington echoed the platitudes by saying "'I don’t believe that we should silence the voices of those with whom we disagree, especially in this forum where there is no imminent threat present as a result of the disagreements.'" Instead, it was important to "giv[e] Youngkin a platform so students can not only hear his perspective, but also so conversations about differences can ensue."

I think we have reached Peak Preferred First Speaker. Because the only way to understand students as "censors" is if the invited First Speaker has an absolute right to speak and all others bear nothing more than an obligation (legal, moral, ethical, civic) to shut-the-fuck-up and listen.

FIRE and others object to the withdrawal of the invitation. But the objecting students must urge disinvitation as opposed to noninvitation because the university invited Youngkin unilaterally, before students had an opportunity to object. Suppose the university held a plebiscite on whether to invite Youngkin and the students vetoed the choice. I expect that FIRE, President Washington, and others would react the same way--the students are improperly denying the Governor of Virginia a platform to speak. If so, this is not about disinviting--this is about obligating everyone  to allow any First Speaker to be invited without objection and to listen to his perspectives. Alternatively, I cannot see a meaningful difference between objecting before or after the invitor (university administration) acts.

Moreover, this case is worse than the Duncan case. One can argue that "civil discourse" compels objectors to listen to the First Speaker and engage him (always politely) during Q&A (I doubt the position because the First Speaker need not engage with any student). But accepting that with Duncan or other open-forum speakers, Youngkin will not do a Q&A at graduation. So students are obligated, in Washington's words, to sit and hear his (and only his) perspective and maybe"conversations about differences can ensue" at some other undefined moment in time. Because I am sure

The final problem here is that graduation is supposed to celebrate the students and their accomplishments. So the rule is "shut-up-and-listen even if it casts a pall over a significant accomplishment." Or the rule is "avert your eyes by skipping your graduation." Either seems to be less about some theory of civil discourse and more about a duty to listen to those with power.

Other projects (especially the work on SB8) have captured my attention for the past 18 months, directing me away from exploring the first-speaker issue. I need to circle back to that project soon.

Posted by Howard Wasserman on April 1, 2023 at 11:56 AM in First Amendment, Howard Wasserman | Permalink


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