Lawsplainer: Why Flag Burning Matters, And How It Relates To Crush Videos

I have a question about flag burning.

I deserve this. I earned this. I've . . . done things. I am forsaken and abhorred by God.

Oh stop being so dramatic. I just want to ask why I should care.

What?

Look, I get that the Supreme Court ruled — twice — that flag burning is expression protected by the First Amendment. But we argue about controversial speech all the time, and politicians advocate for punishing protected speech all the time. Why should we care when Donald Trump oafs around about flag burning? Isn't it just noise?

Because the flag burning "controversy" goes directly to the structure and methodology of free speech analysis.

That sounds superficially profound without actually meaning anything.

Do you want to have this conversation or not?

Pffffft. Fine. What does flag burning have to do with free speech "structure" or "methodology"?

In free speech analysis, how you get to a conclusion often has much more long-lasting impact than the conclusion itself.

Our legal system runs on precedent. The significance of the precedent isn't "the Supreme Court said that flag burning is protected by the First Amendment." The significance of the precedent is "someone wants to punish this speech and we have to figure out whether or not it's protected by the First Amendment. Let's look at the logic and methods the Supreme Court used to resolve that question when flag burning was the issue, and then apply it here."

But the Supreme Court has decided lots of cases about the First Amendment. This is just one precedent, one example of a method of reaching a conclusion. What makes it particularly important?

The Supreme Court's flag burning cases are crucial — not because of how they analyze existing exceptions to the First Amendment, but because they address whether the government can create endless exceptions to the First Amendment.

Just like crush videos.

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Crush videos. You know, videos of women stomping on small helpless animals.

That's . . . that's a thing?

Of course it's a thing.

Ugh. What does that have to do with flag burning? Or the First Amendment?

Congress — having salved all of the nation's ills — passed a law banning crush videos. Because who wouldn't vote for someone who stands against hurting baby animals? The law made it a federal crime to create or sell depictions of animal cruelty in interstate commerce. In 2010, in United States v. Stevens,, the Supreme Court found that the statute violated the First Amendment.

That sounds pretty straightforward. Why is it significant?

It's significant because of the way the government defended the statute. The government's lead argument wasn't that crush videos were outside of First Amendment protection because they fell into an already-recognized exception, like defamation or obscenity or incitement. They argued that the Supreme Court should recognize a new categorical exception to First Amendment protection for animal cruelty, because animal cruelty is so awful. They also argued that courts can recognize new exceptions to the First Amendment by weighing the "value" of the targeted speech against the harm it threatens.

The Supreme Court — in an 8 to 1 decisionfirmly rejected those two arguments. First, the Court said, the historically recognized exceptions to First Amendment protection are well-established, and you can't just go around adding new ones:

“From 1791 to the present,” however, the First Amendment has “permitted restrictions upon the content of speech in a few limited areas,” and has never “include[d] a freedom to disregard these traditional limitations.” Id., at 382–383. These “historic and traditional categories long familiar to the bar,” Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd. , 502 U. S. 105, 127 (1991) ( Kennedy, J. , concurring in judgment)—including obscenity, Roth v. United States , 354 U. S. 476, 483 (1957) , defamation, Beauharnais v. Illinois , 343 U. S. 250, 254–255 (1952) , fraud, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. , 425 U. S. 748, 771 (1976) , incitement, Brandenburg v. Ohio , 395 U. S. 444, 447–449 (1969) ( per curiam ), and speech integral to criminal conduct, Giboney v. Empire Storage & Ice Co. , 336 U. S. 490, 498 (1949) —are “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire , 315 U. S. 568, 571–572 (1942) .

Second, the Court said, the government's proposed methodology — that the Court should identify new categorical exceptions by balancing, on a case-by-case basis, the value of speech against its harm — is antithetical to First Amendment analysis and dangerous:

The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” Brief for United States 8; see also id., at 12.

As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment ’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison , 1 Cranch 137, 178 (1803).

So: in 2010, the Supreme Court overwhelmingly and clearly rejected the idea that legislatures and courts can create new exceptions to the First Amendment based on how strongly they hate speech or how awful it is.

Okay. But I don't see what that has to do with flag burning.

The argument that flag burning is outside First Amendment protection relies on the same argument that the government made in Stevens — that the Supreme Court can, and should, recognize a special new exception to the First Amendment because burning the flag is so uniquely awful and represents such "low-value" speech.

Can't you justify a flag-burning prohibition under already existing historical exceptions to the First Amendment? What about fighting words, or incitement to riot?

You could justify some prosecutions of flag-burning on that basis under existing neutral laws, but not laws generally banning flag burning.

"Fighting words" — to the extent the doctrine still exists, which is doubtful —

What, what? It is?

–you'll have to wait for the first episode of the Popehat free speech podcast for that.

Anyway, at most fighting words allows the government to punish words directed at a particular person amounting to a challenge to an immediate physical fight. So, for instance, Paul Robert Cohen's jacket saying "Fuck the Draft" couldn't be fighting words because nobody could reasonably understand it as a direct personal challenge to them to fight. And in most cases, burning a flag isn't a direct challenge to a particular person to fight, which is why the Supreme Court said that it couldn't be treated as fighting words.

Could it be fighting words, hypothetically?

Sure! Say my neighbor Bob is a veteran and I knock on his door and when he opens it I'm burning a flag with a sign that says "I SPIT ON YOU BOB." That could probably be punished under the fighting words doctrine as a direct immediate challenge to a specific person likely to cause an immediate fight — if there was an existing statute prohibiting such challenges. But flag-burning statutes aren't limited to one-on-one confrontations like that. They seek to ban all flag burning.

Okay. But what about incitement? Isn't burning a flag incitement?

Colloquially it might be. But legally, it's not incitement outside of the protection of the First Amendment. The First Amendment protects speech that may make people so angry that they resort to violence — and thank God it does, because otherwise you could control speech by reacting violently to it.

No, incitement is only outside of the protection of the First Amendment when the incitement is intended to cause, and likely to cause, imminent lawless action. Maybe some people burning the flag intend to start a riot, and maybe in some situations a riot is likely. But most flag-burning statutes aren't that narrow — they ban flag burning whether the burner intends to incite a crowd to violence or not. That's why the Supreme Court rejected "incitement" as a rationale for flag burning laws.

Could you punish flag burning as incitement to riot?

Sure, you probably could, if you could prove that the flag burner intended to cause, and was likely to cause, imminent lawless action. You could do so under an existing incitement or disturbing the peace statute.

In 2005 members of Congress — including then-Senator Clinton — proposed a rather narrow flag-burning law limited to situations where the burner intended to cause and was likely to cause imminent violence. That would have met the strict test defining "incitement." It still would likely not have been constitutional, because it singled out for punishment one specific type of expression likely to cause a riot, and therefore was based on content. But that's a different post.

Okay. But you're not a Supreme Court Justice. Reasonable minds can differ on these things. Four justices dissented in both of the flag-burning cases. Can't you admit you may be wrong?

I'm wrong all the time. But my fundamental point is about how and why those justices dissented in Texas v. Johnson (the 1989 case striking down Texas' flag-burning law) and United States v. Eichman (the 1990 case striking down Congresses we-are-outraged Flag Protection Act of 1989).

Those dissents don't seriously advance either the fighting words theory or the incitement theory. Rather, they argue that the flag is unique and deserves unique protection — a new First Amendment exception.

Take Chief Justice Rehnquist's dissent in Johnson. It opens with a stirring history of the flag and its historical significance and emotional impact, and distinguishes it from other symbols like this:

The flag is not simply another "idea" or "point of view" competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence, regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.

Rehnquist does invoke the fighting words doctrine, but not to fit flag burning within it. Rather, he cites it for the proposition that courts can carve new exceptions out of the First Amendment based on a weighing of the value of the speech against its social harm — in other words, the exact argument the government made and the Court rejected in Stevens:

The Court could not, and did not, say that Chaplinsky's utterances were not expressive phrases — they clearly and succinctly conveyed an extremely low opinion of the addressee. The same may be said of Johnson's public burning of the flag in this case; it obviously did convey Johnson's bitter dislike of his country. But his act, like Chaplinsky's provocative words, conveyed nothing that could not have been conveyed and was not conveyed just as forcefully in a dozen different ways. As with "fighting words," so with flag burning, for purposes of the First Amendment: It is no essential part of any exposition of ideas, and [is] of such slight social value as a step to truth that any benefit that may be derived from [it] is clearly outweighed by the public interest in avoiding a probable breach of the peace.

Justice Stevens' dissent in both Johnson and Eichman is similar: he argues that the government has a compelling interest in protecting the flag from desecration and that such prohibition is acceptable because it will apply no matter what the intended message of flag-burning is:

These cases therefore come down to a question of judgment. Does the admittedly important interest in allowing every speaker to choose the method of expressing his or her ideas that he or she deems most effective and appropriate outweigh the societal interest in preserving the symbolic value of the flag? This question, in turn, involves three different judgments: (1) The importance of the individual interest in selecting the preferred means of communication; (2) the importance of the national symbol; and (3) the question whether tolerance of flag burning will enhance or tarnish that value. The opinions in Texas v. Johnson demonstrate that reasonable judges may differ with respect to each of these judgments.

This is the balancing test put in different terms — it still relies on a judgment that (a) this speech is harmful and (b) the speech is of low value because you could say the same thing other ways that are less harmful.

So what's your point?

The flag-burning cases are important, like the crush videos case was important, because they draw a crucial line between having a few strictly limited exceptions to the First Amendment, on the one hand, and having as many exceptions as we feel like having, on the other hand. Flag burning isn't speech that's uniquely valuable or important to protect. What's important is that we protect the principled method by which we determine which speech is protected and which isn't.

The argument that flag burning should be outside the First Amendment can be applied with equal force to just about anything — "hate speech," "cyber-bulling," "revenge porn," "pro-ISIS speech," or whatever the flavor of the month is. If think the majority was wrong in the flag burning cases, here's what you're saying: "the Supreme Court makes bad judgments, and I want to give that Supreme Court the power to decide, on a case-by-case basis, whether the harm of speech outweighs its value. I don't want the courts to be limited to established, well-defined categories outside of First Amendment protection."

But that's ridiculous.

You're damn right it is.

It's about nothing less than the rule of law.

Okay. Hey, aren't you just being a dupe for Trump by reacting to one of his tweets, when he's probably just trolling?

I write about the First Amendment. It would be ridiculous to stop just because Donald Trump raises the issue of the day. Prudence requires us to put Trumpisms in perspective; it shouldn't prevent us from continuing to articulate our core values and talk about the things that are important to us.

Lawsplainer: About Trump "Opening Up" Libel Laws

Donald Trump famously said he'd like to "open up" libel laws. How much should that concern you?

From my perspective — as a First Amendment advocate and an opponent of Trump — it should concern you as an attitude about speech, but not much as a policy agenda.

Let's start with what he said.

"One of the things I'm going to do if I win, and I hope we do and we're certainly leading. I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We're going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they're totally protected," Trump said.

I begin with the proposition that Trump is a bullshitter. The polite way to put that is that he says things that are not intended to be taken as factual statements. Was this one? Was it merely emotive? Did he think he could do this sort of thing? It's anybody's guess. My guess it that it was mostly bullshit — worrying in terms of his attitude towards free expression, but not a policy agenda.

Let's talk about the substance, such as it is.

Trump complains about the press being able to run "hit pieces" and purposely "negative and horrible and false" articles. Part of that is true and part is false. The press can absolutely run hit pieces and negative and horrible articles. We don't have sedition laws any more, and it's not illegal to be biased or "unfair" in a philosophical sense. Only false statements of fact can be defamatory. Arguments, characterizations, insults, and aspersions can't be, unless they are premised on explicit or implied false statements of fact.

When a public figure like Trump sues for defamation, they must prove that the defendant made a false statement with actual malice — that is, they must show that the statement was false and that the defendant either knew it was false or recklessly disregarded whether or not it was false. "Reckless disregard" means something like deliberately ignoring manifest signs that the statement was false. That's been the standard since New York Times v. Sullivan in 1964. Note that even under this standard, a media outlet that wrote a "purposely . . . false" statement of fact can be held liable. It's a difficult standard, but it can be done, as Rolling Stone found out this month.

So. There are two impediments to Trump and his sympathizers being able to sue whomever they want for "hit pieces" or "negative" and "horrible" statements. First, there's the requirement that defamation involve a statement of fact, not an opinion or insult. Second, there's the actual malice standard that applies to defamation claims against public figures.

Trump doesn't have a clear way to "open up" either one.

Defamation is a creature of state law, not federal law. When you sue someone for defamation, you do so under a statute or the common law of one of the states, not under federal law. You might sue in federal court if that court has jurisdiction (a tedious discussion I'll spare you today), but that doesn't make defamation law federal — you'd still be suing under state law. Federal law touches defamation law only to this extent: since 1964 both state and federal courts have applied First Amendment standards to defamation claims, and First Amendment law is often developed by federal courts. In addition, a few overarching federal laws limit state defamation law (for instance, Section 230 of the Communications Decency Act, which says that a service provider isn't liable for defamation based on what a user posts, and the SPEECH Act, which prevents enforcement of foreign libel judgments in U.S. courts unless those judgments comply with First Amendment standards).

As President, Trump will appoint federal judges, from the Supreme Court to the various Courts of Appeal to the trial judges on the many District Courts. But that's not a clear or easy path to "opening up" defamation law and changing either the actual malice standard or the requirement that defamation involve false statements of fact. The Supreme Court has supported the First Amendment very strongly in the last generation, particularly in comparison with other rights. The Court has repeatedly rejected recent attempts to create new exceptions to the First Amendment or to narrow it. Consider Snyder v. Phelps, in which the Supreme Court ruled 8-1 that Westboro Baptist Church protests at funerals were protected speech. That represented a firm refutation of the notion that speech could be limited because it is hurtful or offensive. Or consider the somewhat obscure but incredibly important United States v. Stevens, in which the Court — ruling 8-1 again — overturned a federal law against "crush videos" (don't ask) and sternly rebuked the government's position that courts can create new ad hoc exceptions to the First Amendment based on a weighing of the value of speech. Or consider Reed v. Town of Gilbert last year, in which the Court unanimously (though with some justices taking a different route) held the line on the idea that laws that restrict speech based on content are subject to strict scrutiny.

Unlike, say, Roe v. Wade, nobody's been trying to chip away at Sullivan for 52 years. It's not a matter of controversy or pushback or questioning in judicial decisions. Though it's been the subject of academic debate, even judges with philosophical and structural quarrels with Sullivan apply it without suggesting it is vulnerable. Take the late Justice Scalia, for example. Scalia thought Sullivan was wrongly decided, but routinely applied it and its progeny in cases like the ones above.1 You can go shopping for judicial candidates whose writings or decisions suggest they will overturn Roe v. Wade, but it would be extremely difficult to find ones who would reliably overturn Sullivan and its progeny. It's an outlying view — not chemtrail-level, but several firm strides in that direction. Nor is the distinction between fact and opinion controversial — at least not from conservatives. There's been some back and forth over whether opinion is absolutely protected (no) or whether it might be defamatory if it implies provably false facts (yes) but there's no conservative movement to make insults and hyperbole subject to defamation analysis. The closest anyone gets to that are liberal academics who want to reinterpret the First Amendment to allow prohibitions of "hate speech" and other "hurtful" words. It seems unlikely that Trump would appoint any of these.

In short, there's no big eager group of "overturn Sullivan" judges waiting in the wings to be sent to the Supreme Court. The few academics who argue that way are likely more extreme on other issues than Trump would want.

So: whether or not Trump really wants to "open up" defamation law, it's unlikely he can.

The statement remains concerning, though, because it displays a contempt towards First Amendment values and freedom of the press. It carelessly conflates false statements and negative coverage. It encourages the public to scorn First Amendment rights, and the public already does that enough already. It also likely encourages defamation litigation, which by its nature silences speech through the expense and stress of litigation even when the defendant prevails. For those, I condemn Trump.

The Corruption of "Speech Has Consequences"

As I've said before, free speech has consequences, and ought to. Put another way, you're not the only one with free speech. Other people might respond to your speech with their own speech, and you might not like it. Response speech might be unfair, intemperate, immoral, or disproportionate, just like your initial speech. It's irrational to judge one and not the other. As a popular cartoon suggests, your right to be a jackass and other people's right to overreact are equivalent.

But I've noticed that the mantra "free speech has consequences" is increasingly abused. People invoke it not to mean "free speech has social consequences in the form of other people exercising their free speech," but to mean "the government can impose official consequences on you for speech it doesn't like." That's a corruption of the idea, and is usually a false statement of law. Censors like to invoke it; they're lying to you.

This week's case in point: the University of Texas. The UT Young Conservatives of Texas — previously famed for stunts like a campus-wide "catch an illegal immigrant" game — recently held an affirmative action bake sale. That's a bake sale that charges people differently based on ethnicity and gender to make a somewhat belabored point about affirmative action policies. It's a hoary rhetorical device that is frequently met with attempts at censorship by academic imbeciles.

The UT community reaction was mixed. The student paper offered an editorial acknowledging that the protest was protected by the First Amendment. The administration acknowledged that it was protected speech and could not be punished. So far, so good. But students also petitioned their government to expel the UT Young Conservatives of Texas, and student government members supported it. Student government member Ashley Choi invoked the consequence trope:

University-wide Representative Ashley Choi, an author of the resolution, called on the assembly to set a precedent that incidents like the YCT affirmative action bake sale will not be tolerated.

“Freedom of speech has consequences,” Choi told the assembly. “That’s why we’re here today.”

Well, no. You're there today, Ms. Choi, because you're a silly totalitarian thug who is trying to invoke state power to punish speech you don't like. You're there because you disdain fundamental rights and civic values. You're there because you perceive, perhaps correctly, that you are ineffectual at persuasion and therefore must use force.

Proponents of the petition overtly believe that UT students ought to be prohibited from questioning affirmative action. Put another way, students like Choi believe that students shouldn't be allowed to question whether and how the school treats people differently based on the color of their skin.

“When [universities] don’t have concrete policy defining what constitutes a hate crime, a lot of the lines get blurred, and a lot of the racist, misogynistic, homophobic and transphobic incidents happening on campus are disguised as freedom of speech or academic freedom,” said Choi, an international relations and global studies senior. “Because of [this] a lot of organizations, especially Young Conservatives of Texas, have been getting away with this kind of racist disaster.”

Ms. Choi should be permitted to advocate for unconstitutional things. The consequences for her doing so should not be official — that is, she should not be expelled or punished by UT. The consequence should be social. She and her censorious ilk deserve our open contempt.

Thanks and Congrats To Dhillon Law Group For Important Pro-Bono Anti-SLAPP Win

I know I say it all the time, but here it is again: the system is broken, and only the generous community service of lawyers prevents people from getting ground up in it.

A few months ago I got a private request from a young woman sued for defamation. This was the core of the case: she made a sexual harassment complaint against another student after a brief relationship, and her school investigated it as required by Title IX and found in her favor. Days later, the fellow student sued her — not her university, but her — for defamation based on her participation in the school's investigation.

Most grad students can't afford modern litigation. I put out an immediate mini-Popehat Signal seeking pro bono help for her. Harmeet K. Dhillon and Krista L. Baughman of the Dhillon Law Group swiftly answered the call. The defendant stuck out her thumb hoping for a ride on the back of a turnip truck and wound up in a Porsche. Harmeet and Krista filed an anti-SLAPP motion, which they recently won, as they describe here.

In addition to being very significant for the defendant, it's a win that's very important for anti-SLAPP litigants in cases involving college administrative proceedings. California has an absolute privilege for statements made in the course of "official proceedings" — if you sue someone for slandering you during their testimony at a trial, for instance, the defendant can easily win an anti-SLAPP motion based on that privilege. This prevents a vast amount of harassing and retaliatory litigation. But until Harmeet and Krista successfully litigated this, no California court had expressly extended the "official proceeding" privilege to Title IX proceedings mandated by federal law. Now, thanks to their work, students can report conduct to school authorities without worrying that they will be drawn into frivolous but ruinous defamation litigation.

Many people are concerned that schools are conducting Title IX proceedings without adequate due process protections for the accused. This is a very legitimate complaint. But that wasn't the issue here. Here the plaintiff wasn't suing the school (with its money and lawyers) for disciplining him without due process. Rather, he was suing the individual complainant for defamation merely for reporting his behavior, forcing her to defend herself without the school in court. This was the absolutely right result, and consistent with other laws making reports of misconduct privileged from defamation suit. Absent this rule, whenever one college student accused another of some misconduct, the accused could retaliate with an expensive, stressful, all-encompassing lawsuit.

The case took a lot of work and some creative lawyering on a novel issue. Harmeet K. Dhillon and Krista L. Baughman did it for free. There's no guarantee they'll collect any fees even though they won the anti-SLAPP. But they did it because it was the right thing to do and because people like this defendant depend on people like them for justice, and they did an exceptionally good job at it. Please join me in applauding and thanking them.

California: No, You Can't Show That Civil War Painting At A State Fair. It Has a Confederate Flag In It.

You may have seen something about this already: a California state legislator's mother was offended when she saw novelty Confederate money bearing the Confederate flag in the gift shop at the State Capitol. Naturally her son proposed a new law, now in effect, banning the State of California from displaying or selling the Confederate Flag or items bearing its image.

This raises some questions right off the bat. Why is the gift shop in the State Capitol of California selling novelty Confederate money? Why do legislators think that personal annoyances are grounds for legislation?

But the worst was yet to come: California officials, including both Department of Agriculture bureaucrats and counsel from the Attorney General's Office, decided that the law means that an artist could not show his civil war painting at the Big Fresno Fair, which allows hundreds of artists to display their work at its cultural fine arts pavilion. Why? Because the Civil War painting — like many such paintings — included an image of the Confederate flag, and so allowing an artist to display it with all the other work at the state fair would mean the state was displaying it in violation of the law.

No, really.

The artist has sued, and I wrote a column for the Los Angeles Daily Journal explaining why he should win, which you can read here (it's an authorized reprint; the web article is behind a paywall).

In a world choked with really stupid bureaucratic decisions, this one is notable for its idiocy.

What It's Like For The Client Subjected To A Bogus And Retaliatory Investigation

By day, Bob Blaskiewicz is a college professor. By night, he's a skeptical blogger, using the critical thinking skills he teaches to interrogate public quackery. He's a long-term critic of Stanislaw Burzynski, a Houston researcher famous and infamous for experimental cancer "treatments." He helps run a blog critical of Burzynski's claims. (Long-time readers of Popehat might remember that a supporter of Burzynski named Marc Stephens attempted, to the best of his modest ability, to threaten me at length with criminal investigations and legal proceedings, which generated what for better or worse became the blog's catchphrase.)

Blaskiewicz is fighting the good fight for science and skepticism over woo and those who prey upon the desperate. That has consequences. In his case, it generated a bogus and malicious report to the FBI about him. Bob describes what it was like in a post (not to mention what it was like to have to put up with me). The result was obvious and (after the fact) appropriate — the FBI determined that the "threat" was obviously not one, but speech protected by the First Amendment. It's still regrettable that bad faith retaliatory reports to law enforcement can upend people's lives. It was a privilege to help out Bob, who has a lot of insight into the client experience:

[I was learning that a big part of a defense attorney’s job is keeping their clients from hurting themselves by acting out of panic.]

Read his post, it's worth it.

How The University of Chicago Could Have Done A Better Job Defending Free Speech

The University of Chicago made the news last week with a strongly worded letter defending academic freedom. The heart of it was this:

Our commitment to academic freedom means that we do not support so-called trigger warnings, we do not cancel invited speakers because their topics might prove controversial, and we do not condone the creation of intellectual ‘safe spaces’ where individuals can retreat from ideas and perspectives at odds with their own

Reactions were predictable. Critics of campus culture (usually, but not always, on the right) loved it; supporters of trigger warnings and safe spaces (usually, but not always, on the left) didn't.

I think it could have been better written. Here's how I would have framed the same paragraph.

Our commitment to academic freedom will govern our response to community concerns about course content and campus expression in general. The community should not expect us to require professors to give "trigger warnings," or to discipline them if they decline to do so. The community should not expect us to prohibit or "disinvite" speakers who offer controversial or offensive ideas. Members of the community should exercise their freedom of association to form groups with similar interests, goals, and values, but should not expect to transform classes or public spaces into "safe spaces" where expression they oppose is prohibited.

I like my version better for several reasons.

First, it's clearer that the University isn't telling professors how to teach their classes. It's unserious to say that you stand for academic freedom but then dictate to professors exactly how they can talk about their class content. I don't read the letter to say they are prohibiting professors from choosing to offer trigger warnings, but I think they could have been clearer. I personally find trigger warnings infantilizing in most academic circumstances, but I'm not the one teaching the class.

Second, I think my version offers a more honest and philosophically coherent approach to "safe spaces." As I have argued before, "safe spaces" are completely consistent with freedom of association when they represent a group of people coming together voluntarily to determine how they want to interact. They're a problem when people decide they have the right to intellectual manifest destiny — when they have a right to use safe spaces as a sword rather than a shield by telling others what they can say in public spaces like classes, quads, and dorms. "This club is a space for [group x]" does not threaten academic freedom or freedom of expression. "This campus/dorm/class/quad is a safe space and so this speaker/topic/speech should not be allowed" definitely is.

This is going to get me called (among other things) a pedant. Guilty, with an explanation. Pedantry on basic civic virtues is a good thing. Free speech legalism is a good thing. Rhetoric that blurs the nature of rights and encourages misunderstandings is bad — particularly when it comes from a university. If the University of Chicago believes — as many of us do — that the values of academic freedom and free speech are under assault, then it shouldn't encourage misunderstandings of those concepts just for the pleasure of rhetorically spiking the ball. If your proposition is that college kids should act like grown-ups, you can talk to them with a bit more complexity and accuracy.

Conservatives railing against "safe spaces" without nuance should remember that freedom of association — which conservatives are supposed to be fighting for — is about something very like safe spaces. You think college kids shouldn't be able to form their own "safe spaces" where they hear what they want? Fine. But remind me — why should campus Christian groups be able to control who can be officers based on sharing the groups' values? On the other hand, liberals insisting that this is all a talk-radio fabrication should take another look. The rhetoric of safe spaces is being used, widely and explicitly, as a justification for excluding contrary expression. These people — whether a small minority or not — believe that universities have an obligation to exclude views that they, subjectively, deem harmful. If you support that, you're not in favor of academic freedom or free speech.

In short, University of Chicago's letter was a little triumphalist, a little misleading, and a little too vague.

Gawker, Money, Speech, And Justice

Gawker delenda est.

Gawker has occasionally provided quality journalism and entertainment. That doesn't stop me from despising its amoral and repulsive ethos. Gawker's utter destruction produces a feeling of glee in my guts but disquiet in my heart. As I've written before, I'm not sure that the ruinous verdict against Gawker was just, I don't think that the amount of damages awarded was defensible, and I'm concerned that the result was a product of the brokenness of our legal system.

But observers seem eager to push the wrong message about that brokenness. The scary part of the story isn't that the occasional vengeful billionaire might break the system and overwhelm even a well-funded target with money. Such people exist, but getting sued by them is like getting hit by lightning. No, for most of us the scary part of the story is that our legal system is generally receptive to people abusing it to suppress speech. Money helps do that, but it's not necessary to do it. A hand-to-mouth lunatic with a dishonest contingency lawyer can ruin you and suppress your speech nearly as easily as a billionaire. Will you prevail against a malicious and frivolous defamation suit? Perhaps sooner if you're lucky enough to be in a state with a good anti-SLAPP statute. Or perhaps years later. Will you be one of the lucky handful who get pro bono help? Or will you be like almost everyone else, who has to spend tens or hundreds of thousands of dollars to protect your right to speak, or else abandon your right to speak because you can't afford to defend it?

The system isn't just broken for affluent publications targeted by billionaires. It's broken for everyone, and almost everyone else's speech is at much greater risk. Don't point to Peter Thiel as an exception. He's just a vivid and outlying expression of the rule.

Lawsplainer: No, Donald Trump's "Second Amendment" Comment Isn't Criminal

Donald Trump, against all advice and rumors of pivot, will continue to be Donald Trump. Today, at a rally, he uttered a line that some have taken as a suggestion that Hillary Clinton (or possibly judges) could or should be killed if they did not support Second Amendment rights:

At a rally here, Mr. Trump warned that it would be “a horrible day” if Mrs. Clinton were elected and got to appoint a tiebreaking Supreme Court justice.

“If she gets to pick her judges, nothing you can do, folks,” Mr. Trump said, as the crowd began to boo. He quickly added: “Although the Second Amendment people — maybe there is, I don’t know.”

Trump's staff quickly issued a press release saying that this comment was merely a reference to the vigorous political activism of Second Amendment fans, not to violence. I express no opinion about what Trump "meant": I think trying to parse his Joycean ramblings is usually pointless.

But let's say we choose to interpret this as Donald Trump suggesting that, if Clinton appoints judges hostile to the Second Amendment, she or the judges could be shot.

Is that a crime? Is it outside the protections of the First Amendment?

No, I'm confident that it isn't.

People are referring to this as a threat, but it's more like incitement. Under any interpretation Trump isn't saying he will shoot anyone; he's suggesting that someone else might — and perhaps implying that they should.

Attempts to punish incitement to violence are governed by the "clear and present danger" test articulated in Brandenburg v. Ohio. Brandenburg involved a Klan rally at which a speaker said "We're not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance [sic] taken." He was convicted under the Ohio Criminal Syndicalism statute for "advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform." In one of the most important First Amendment decisions of the last half-century, the Supreme Court overturned the conviction. "[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Thus, since the Klansman wasn't advocating imminent lawless action and likely to incite it, his words were protected by the First Amendment. By the same logic, Trump's comment is protected. It's conditional, it's directed to something that will happen (at the earliest) more than six months in the future, and it's not likely to produce action. I don't think this is a close call at all.

What if we stubbornly treat Trump's comment as a threat? Isn't it a federal crime to threaten a major presidential candidate?

Under the true threat doctrine, it's still protected by the First Amendment.

Consider the Supreme Court's ruling in Watts v. United States. At an anti-draft protest, Watts said he would resist the draft and that "If they ever make me carry a rifle the first man I want to get in my sights is L. B. J." He was convicted of threatening the President. The Supreme Court reversed the conviction. The court noted that the statement was made at a political rally and drew a laugh from the crowd. "We agree with petitioner that his only offense here was 'a kind of very crude offensive method of stating a political opposition to the President.' Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise."

Since Watts courts have grappled with whether the government must prove that a threat is just objectively threatening (meaning, a reasonable person would take it as an expression of intent to do harm) or also subjectively threatening (meaning, the speaker intended that it be taken that way), and that issue is not fully resolved. Thankfully we don't have to delve into the fetid swamp that is Donald Trump's subjective intent, because I don't think the objective test is anywhere close to being met. Like Watts, the statement was spoken at a political rally, and like Watts, it drew laughter, and like Watts, it was hypothetical and conditional. Moreover the "maybe there is, I don't know" softens it substantially. At most it's the sort of hyperbole that Watts protected. It's not anywhere close to the sort of extreme and specific statements that have been taken as threats in the political context, like the abortion provider "wanted" posters in Planned Parenthood v. American Coalition of Life Activists or the nutty white supremacist in United States v. Turner (both of which show how courts sometimes blur the lines between incitement and threats). Again, with respect to dissenters out there, I don't see this as a close call.

In America, under the First Amendment, I can say something like "if Donald Trump gets elected, someone should assassinate him for the good of the nation." That statement may be immoral, and destructive of the very American values it purports to defend, but unless it calls for imminent action or expresses an objectively credible intent to do harm, it's protected speech.

Lawsplainer: Are Milo's Faked Tweets Defamatory?

I'm not going to address the broad subject of Twitter banning the needy, cynical huckster Milo Yiannopoulos. It's been done, you know what I'd say, and I don't have much to add.

I'll address just one small piece of the story. Before he was banned, Yiannopoulos retweeted bigoted tweets fabricated to look like Leslie Jones had uttered them. The tweets were fake, and Yiannopoulos knew they were fake.

Was it defamatory for Yiannopoulos to circulate the faked tweets falsely attributing bigoted statements to Jones?

The answer: probably not, given Yiannopoulos' reputation.

Only false statements of fact can be defamatory. Satire, ridicule, and insults cannot. The faked tweets were intended as trolling and — to use the term extraordinarily generously — "satire", not as a factual claim that Jones had uttered the words. Could some people look at the fake tweets and assume they were real and that Jones actually said those things? Yes. But courts give very broad protection to satire, and protect it even when some people take it seriously. In determining whether a challenged statement should be taken as satire/ridicule/insult/hyperbole or as a statement of fact, courts look at how a reasonable audience familiar with the speaker and the context would take it. In other words, the relevant question is whether the speaker's target audience, informed about the circumstances surrounding the statement, would take the statement as an assertion of fact. I wrote about this in 2013 when I described a D.C. Circuit opinion rejecting a WorldNetDaily lawsuit against Esquire. Esquire's satire of Joseph Farah and Jerome Corsi was protected people readers familiar with Esquire would recognize their story as a parody, not as a news story. Similarly, readers familiar with Popehat would recognize that my accusing Farah and Corsi of sexual molestation of walruses was satire serving as an example of the doctrine, even if someone unfamiliar with Popehat or the case might take it seriously.

Here, a reasonable audience familiar with the context (Yiannopoulos trolling and attacking someone for clicks and attention, and playing to his hooting bigoted admirers) and with the speaker (Yiannopoulos as a hack troll, known for hyperbole and insult, whose followers often fake tweets as a means of ridicule) would likely not take the fake tweets as real, particularly when he fairly quickly followed up with a mock-surprised "you mean those aren't real?" wink to his fans.

I'm not saying that no court could find otherwise. I'm saying that's the most likely result, and probably the correct one under the law.

Remember: nobody needs free speech rights to protect admirable speech by people we like. It's designed to protect despised speech by people we hate. Yiannopoulos deserves contempt for monetizing bigotry, and his fans are loathsome, but his speech is protected.