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Over the past three years, state legislatures have introduced and passed hundreds of laws restricting speech on race and racism in public schools. Broadly classified as Anti-CRT laws, these bills aim to ban lessons derived from the tenets of critical race theory, which posits that race is a social construct embedded in legal systems and policies, creating systemic inequalities that should be evaluated to correct past and present racial injustices. The laws impose broad and often vague prohibitions on speech, mostly without reference to critical race theory.

In her paper (E)racing Speech in School, Francesca Procaccini, Assistant Professor of Law at Vanderbilt Law School, offers a First Amendment analysis of Anti-CRT laws. She finds that while the First Amendment may not protect teachers or parents opposed to such laws, it will often protect students rights to receive the information that Anti-CRT laws seek to chill.

The deeper and more provocative insight of these conclusions is that they rest on the same sound constitutional reasoning: that the First Amendment works to protect democratic governance and good citizenship, Procaccini writes.

Limits on Free Speech for Teachers

To protect democratic governance, the First Amendment permits reasonable regulations on speech of public-school teachers when speaking in their capacity as government employees. Without the authority to dictate what teachers teach, the task of public education would be inconsistent, arbitrary, and idiosyncratic, not to mention void of meaningful democratic oversight and accountability, she writes.

In the two-pronged test used to govern the free speech rights of teachers, courts must weigh whether the teacher is speaking as a citizen on a matter of public concern, and if so, is there no reasonable justification for treating that teachers speech rights differently from other citizens. In the case of teaching critical race theory (or not) as part of a schools designated curriculum, it is clear teachers dont satisfy either prong, she writes.

Limits on Free Speech for Parents

Generally, parents do not have a right under the free speech clause of the First Amendment to determine what their children hear or learn, writes Procaccini.

This lack of protection serves two purposes: 1) it ensures that no single parents has the power to veto school assessments or curricula, and 2) it enhances a childs protection to develop beyond the confines of their parents views and teachings, which is integral to the First Amendments protection of individual enlightenment, the paper explains. While the Supreme Court has not explicitly defined childrens speech rights as such, Procaccini points out that it has relied on children as future citizens to reject parental speech rights.

Students First Amendment Rights

The right to receive information is inherent in the First Amendments protection of political participation and democratic self-government, the paper argues. It is at its most salient when the government attempts to withhold or manipulate the free flow of information between citizens and where there is informational dependence between the speaker and listener.

In situations where a power asymmetry exists between the speaker and listener, the right to receive information is extremely important for democratic decision-making. This holds true in the teacher-student relationship. When the information at hand involves an education that is sensitive to issues of structural racism in our society, the paper states, it can factor into how children make informed choices. The Supreme Court has explicitly made this connection in Ambach v. Norwick.

Procaccini argues that this right to receive information in public school educations means the state may not prohibit the teaching and classroom discussion of information that is integral to learning to participate as an informed citizen in a pluralistic democracy, with exceptions for legitimate pedagogical concerns like age, demography, and resources. She uses this argument to craft the anti-orthodoxy rule, which holds that laws that prohibit all classroom instruction of age-appropriate critical race theory topics in public schools violate students First Amendment right to receive information.

Ensuring against the imposition of a state-sponsored political orthodoxy is integral to protecting the ability of citizens to meaningfully participate in democratic self-governance, the paper concludes. it is integral to their having the baseline knowledge, information, and communicative avenues to make informed political, economic, and social choices that shape our communities.

(E)Racing Speech in School is published in the Harvard Civil Rights-Civil Liberties Law Review.

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Do Anti-CRT Laws Violate the First Amendment? - Vanderbilt Law

THE INDISPENSABLE RIGHT: Free Speech in an Age of Rage, by Jonathan Turley

Conservative voices are being silenced. We know this because conservative voices are telling us so, insistently, on social media and cable news programs, in speeches by Supreme Court justices and on the grounds of the Manhattan Criminal Courthouse. Casual observation might suggest otherwise as does the data but it has become an article of faith on the right that conservative viewpoints are being systematically suppressed, even criminalized.

It is true that many college campuses are inhospitable, at best, to speakers including students who challenge progressive beliefs. The conservative indictment, however, is more sweeping than that. In The Indispensable Right, the law professor and Fox News commentator Jonathan Turley lays out the charges unsparingly, accusing the political left of amassing academic, corporate and government forces in a campaign to cripple the First Amendment. The censors have the upper hand, he argues: Rioters are tarred as insurrectionists, unorthodox opinions are expunged from social media, medical experts are pilloried for questioning Covid protocols. This, he intones, is the moment we have long feared would come.

The end of days, by Turleys accounting, was foretold at the start. The framers established the freedom of speech in absolute terms and then the original sin corrupted it by equating dissent with incitement in the Sedition Act of 1798, passed by Federalists in Congress and signed by John Adams.

Turley is hardly alone in depicting the act as a vindictive, partisan instrument or Thomas Jefferson as an inconstant champion of the free press. (A few prosecutions of the most eminent offenders would have a wholesome effect, he mused to an ally in 1803.) Neither is Turley the first to deplore the crackdowns on disloyal speech during times of national crisis, real or imagined.

Where he diverges from the consensus, and sharply, is in his portrayal of more than two centuries of free speech doctrine as a virtually unbroken betrayal of first principles. Free speech demands bright lines, Turley proclaims. In their place we have trade-offs and concessions.

The tests and distinctions of First Amendment law the heightened protection of political speech relative to low-value forms of expression like obscenity; the balancing of free speech with other interests like privacy or public safety are anathema to Turley. He views these as a cynical game, rationales for repression. The First Amendment, he says, is objective in its meaning and defines speech as he does: as an instrument of self-actualization. Free speech is not about perfecting democracy, he writes, it is about perfecting ourselves.

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Book Review: The Indispensable Right, by Jonathan Turley - The New York Times

It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness. Charles Dickens, A Tale of Two Cities (1859)

As spring draws to a close, the death earlier this season of a prominent Minnesotan recalls the landmark First Amendment litigation he sparked.

The decedent was Dan Cohen, a well-known Minneapolis public figure who passed away April 4at age 87. During his life, he was a major political figure: a member of the Minneapolis City Council, including serving as president of that body, as well as heading the citys Planning Commission, along with a couple of failed runs for mayor, separated by a 44 -year span in 1969 and again in 2013.

But it was his role as a litigant that led to his greatest renown as the prevailing party in long standing case titledCohen v. Cowles Media Co.,501 U. S. 663 (June 24, 1991) a dispute that spanned a decade and created a new and important law at the Supreme Court level and, for that matter, in Minnesota jurisprudence as well.

His passing a little over 10 weeks ago provides an opportune occasion to review his case, which was decided by the U.S. Supreme Court, 23 years ago this upcoming Monday.

The case, which generated four decisions in the Minnesota judicial system and one at the U.S. Supreme Court, came in the waning days of the 1982 gubernatorial campaign in which DFLer Rudy Perpich was seeking to regain the position, which he had held for a couple of years in the late 1970s. His running mate was Marlene Johnson, a St. Paul businesswoman and the first major party woman candidate for lieutenant governor.

Shortly before the Election Day (no early voting back then),Cohen, a Republican operative, leaked to a pair of reporters for the Star Tribunein Minneapolis and thePioneer Pressin St. Paul that Johnson had a previous minor record for shoplifting, which he documented to the reporters upon a promise that his anonymity would be maintained.

The reporters agreed, but their editors overrode their promises and decided to out Cohen for his role in the matter. The articles in the two dailies focused upon his role in leaking the information and his connection to the Republican candidacy of Wheelock Whitney, a prominent Twin Cities businessman from a well-known wealthy family.

The attack seemed to garner support for the Perpich ticket, which rolled to an easy victory, leading to eight years in office. That, in addition to his previous years in office, made him the states longest-serving governor before being defeated in 1990 by Republican Arne Carlson.

As for Cohen, litigation loomed, rather than politics. He sued the two newspapers in Hennepin County District Court, asserting a variety of claims, premised largely on breach of contract due to breaking the promise to maintain his anonymity, as well as fraud.

Cohen, skillfully represented by attorney Elliot Rothenberg triumphed at the trial court level, obtaining a $700,000 verdict, consisting of $200,000 for the breach of contract claim and $500,000, including punitive damages, on the fraud issue.

His damages stemmed, in part, from his claim that being outed as having leaked the material caused him to lose his joband other employment opportunities, a premise that the jury accepted in awarding him the large verdict.

The newspapers, alsorepresented by high-quality counsel, appealed the decision and obtained a pair of rulings in the Minnesota court system largely adverse to Cohen.

First, the Minnesota Court of Appeals, while upholding the claim for compensatory damage for breach of contract, reversed the fraud determination, tossing out the accompanying $500,000 punitive damages.Cohen v. Cowles Media Co.,445 N.W.2d 248 (Minn. App. 1989).

But the state Supreme Court went a step further. Affirming dismissal of the fraud claim, it held that the contract claim could not be pursued either, on grounds that a contract cause of action is inappropriate for this particular circumstance. 457 N.W.2d 199 (Minn. 1990).

That leftCohenwith a $200,000 award, including interest, for his breach-of-contract claim but remediless on the fraud claim and accompanying punitive damages.

But the case still had a lot of vitality to it, including two more Supreme Court decisions: one at the federal level and one here in Minnesota.

At the U.S. Supreme Court, the justices addressed a new issue that had not been tried, briefed, or argued before the State Supreme court: promissory estoppel. 501 U.S. 663 (1991). Addressing that issue, which had only been obliquely raised by a question posed during oral argument before the state Supreme Court, the U.S. Supreme Court, in a 5-4 ruling, questioned whether [the] First Amendment bars a promissory estoppel cause of action. The court, however, rejected the claim on grounds that enforcement of anonymity under the promissory estoppel theory would violate the First Amendment rights of the newspapers.

The majority decision, written by Justice Byron White, answered the question in the negative by pointing to a well-established line of decisions holding that generally applicable laws do not offend the First Amendment simply because their enforcement subjects the press to incidental effects on its ability to gather and report news. As Justice White further explained, there is no special immunity for the applicability of general laws [and the press has] no special privilege to invade the rights and interest of others.

That decision drew a dissent from Justice Harry Blackmun of Minnesota, joined by three others, expressing his concern that the effect of this decision is to punish the press, which he lamented was inappropriate because the First Amendment should protect the reporting of truthful information regarding a political campaign.

So, the decision, which was rendered on June 24, 1991, sent the case back to the Minnesota Supreme Court. After a seven-month gestation period, the court in Jan. 24, 1992, rendered a ruling upholding the same promissory estoppel claim that it previously had rejected. Justice John Simonett, writing for the court, addressed the novel legal issue of first impression presented by the case, which he framed as whether enforcement of the promise of anonymity is required to prevent an injustice. Feeling that neither side in this case clearly holds the higher moral ground, the justice from Little Falls, joined by all six of his colleagues, resolved the case on legal grounds that Cohen was entitled to a remedy to avoid an injustice.

That relief consisted of upholding the $200,000 damage award without remand or new trial since that amount that had already been determined by the Hennepin County jury, bringing to an end the nine-plus year confidentiality contretemps.

But Cohen, an accomplished writer, wasnt through; he told the absorbing tale of his litigation in a 2005 book, Anonymous Source: At War Against the Media.

Two decades before Cohens case concluded, another Cohen litigant made First Amendment history inCohen v. California, 403 U.S. 15 (1971).reh. denied, 404 U.S. 1876 (1971), decided on June 7, 1971, nearly 20 years to the day before the Cohen-Cowlescase.

This Cohen criminal controversy arose out of a disturbance of the peace charge against a 19 year-old department store worker who was observed wearing a jacket while walking in acorridor of a Los Angeles courthouse with the apparel adorned on the back with a profanity: Fuck the Draft. Convicted of violating the California disorderly conduct law, 485 of the state Penal Code, for offensive language, and sentenced to 30 days in jail, he argued to the Supreme Court that application of that measure violated his First Amendment right of freedom of expression, a position that, like the laterCohencase, was accepted by a five-member majority of the tribunal.

Writing for that quintet, Justice John Harlan, the courts most conservative member at the time, observed that the freedom of expression is powerful medicine whose objective is to remove government restrictions on freedom of expression. While recognizing the impropriety of the F word, which Cohens lawyer uttered during oral arguments, despite the discouragement from doing so by Chief Justice Warren Burger, Harlan threw out the conviction because the state did not present any specific and compelling reason to ban the word beyond a general tendency to disturb the peace, which was insufficient to sustain the charge notwithstanding the distasteful wording on the apparel.

The two Minnesota jurists, the chief justice and Harry Blackmun, both dissented, and were joined by Justice Hugo Black, an old/line free speech absolutist who had mellowed over the years, and Justice White, the author of the subsequentCohencase.

In dissent, Justice Blackmun deemed the youth to have engage in impermissible conduct, which lacked the protection accorded speech under the First Amendment.

Thus, bothCohenlitigants, the outed operative and the profane jacket wearer, each narrowly prevailed on different facets of First Amendment litigation.

But, wait,theresmore.

A prior Cohencase before the Supreme Court, addressed a different First Amendment issue on the topic of taxes. The case wasFlast v. Cohen,392 U.S. 83 (1968), which also incidentally was decided in June of the year, three years beforeCohen Iand 23 years beforeCohen II.

The case was a lawsuit by taxpayers challenging the expenditure of federal funds under the 1965 federal law that allowed funding of instruction and education materials for parochial schools. The challenges claimed that the expenditure of public funds violated the Establishment Clause of the First Amendment, which bars government support of religion, but in doing so they had to overcome a seemingly impenetrable barrier established by the Supreme Court inFrothingham v. Mellon,262 U.S. 447 (1922), which generally bars taxpayer lawsuits in federal courts. This Cohencase was brought against Wilbur Cohen, the commissioner of the Department of Health, Education & Welfare, who was in charge of distributing the funds, the carved-out exception to barring the taxpayer lawsuits.

In an 8-1 decision, written by Chief Justice Chief Justice Earl Warren, the court held that a taxpayer lawsuit can be maintained only in limited circumstances, establishing a two-prong test for allowing taxpayers to sue: (1) there must be a logical link to a precise constitutional infringement; and (2) a showing that the expenditure exceeds the taxing and spending authority under Article I, Section 8, of the U.S. Constitution, both of which were established in this case. Although the case nominally was decided on procedural grounds, the decision effectively proved to be a substantive one that permitted the taxpayers to prevail on their challenge.

This trio ofCohencases reflects various forms of First Amendment litigation and demonstrates how the Supreme Court can have a dickens of a time adjudicating them.

PERSPECTIVES POINTERS

Key quotes from threeCohencases:

Marshall H. Tanickis an attorney with the Twin Cities law firm ofMeyer Njus Tanick, PA.

RELATED: More Perspectives columns

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Perspectives: Tale of two Cohens: promissory and profane - Minnesota Lawyer

Home > SPJ News > SPJ urges Mississippi Supreme Court to overturn lower court order that threatens journalists First Amendment rights

SPJ urges Mississippi Supreme Court to overturn lower court order that threatens journalists First Amendment rights

CONTACT: Ashanti Blaize-Hopkins, SPJ National President, ashanti.blaize@gmail.com Kim Tsuyuki, SPJ Communications Specialist, ktsuyuki@hq.spj.org

INDIANAPOLIS The Society of Professional Journalists urges the Mississippi Supreme Court to overturn a lower court order against Mississippi Today that threatens the First Amendment rights of journalists and Mississippians.

SPJ is proud to stand up for journalists and journalism against those who try to silence them, said SPJ National President Ashanti Blaize-Hopkins. We urge the Mississippi Supreme Court to issue a ruling that, for the first time, expressly recognizes Mississippi journalists' right to protect their sources of information and their unpublished newsgathering materials.

In July 2023, former Mississippi Gov. Phil Bryant for defamation, in part over since-retracted remarks from its CEO, Mary Margaret White. Later, editor-in-chief Adam Ganucheau and reporter Anna Wolfe were added as defendants. Mississippi Today declined to turn over confidential information, including sources, citing reporters privilege. However, last month, a lower court issued an order stating that Mississippis appellate courts have never recognized reporters privilege, so the newsroom was given a deadline to turn over any information that related to confidential sources. Mississippi Today has appealed to the Mississippi Supreme Court.

In a state with such little government accountability, Mississippians routinely learn about the actions of their public officials only because of journalism like ours. If this court order is upheld, every Mississippian would stand to lose a fuller understanding of how some leaders truly operate when their doors are closed and they think no one is watching, says Ganucheau in an editors note on its website.

Cases such as this continue to serve as a reminder of why journalists need a federal shield law. Reporters privilege is a First Amendment right that is recognized by 40 states. In January, the House of Representatives unanimously passed the PRESS Act, which would shield journalists from having to disclose their sources except under limited circumstances. SPJ continues to urge the Senate to follow suit and pass the legislation quickly. Those who agree that the PRESS Act should be passed can call, write or message their senators, encouraging them to vote in favor of this important legislation.

We will always fight for the First Amendment and those who seek truth and report it, Blaize-Hopkins said. Without journalists, citizens are kept in the dark, giving those in power no accountability and freedom to abuse that power.

SPJ promotes the free flow of information vital to informing citizens; works to inspire and educate the next generation of journalists; and fights to protect First Amendment guarantees of freedom of speech and press. Support excellent journalism and fight for your right to know. Become a member, give to the Legal Defense Fund or give to the SPJ Foundation.

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SPJ urges Mississippi Supreme Court to overturn lower court order that threatens journalists' First Amendment rights - Society of Professional...

Across the nation, college students are taking up the cause of Israel and Palestine through protests. Beyond those engaged in honest debate over the Israel-Palestine conflict are hate-mongers: people who use this as an opportunity to spread antisemitism. My client, Accuracy in Media, has been busy exploring and documenting these issuesnot without a host of criticism thrown its way.

Recently, some elite college students have labeled Hamas liberation fighters and others imagine Israel to be a settler-colonial oppressor. Hard to imagine: the same Hamas that massacred babies and children is being compared to the likes of General Eisenhower. As Ezekiel Emanuel noted in the New York Times, some American colleges have failed to give students the ethical foundation and moral compass to recognize the basics of humanity. In such a moral vacuum, antisemitism is bound to proliferate.

Throughout American history, certain justice-seekers have stepped forward to expose prejudices and call attention to public wrongs using unorthodox techniques. In 1966, the NAACP of Mississippi moved forward to address racial inequity by proposing a set of demands and then later protesting and boycotting when they were denied. This eventually led to NAACP v. Claiborne Hardware Co. before the Supreme Courta significant First Amendment victory upholding the right of peaceful boycotting. And it was no less than the liberal lion, Justice Brandeis, who commented that publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman. Today, it is Accuracy in Media shining that righteous light of publicity on societys deep-seated prejudices.

Recently, some have levied criticism against Accuracy in Medias unorthodox efforts to expose ignorance and hate on Americas elite campuses. Through its investigative journalism program, Accuracy in Media has scoured college protests about the Israel-Palestine conflict. It has done the hard work to dig down and find the most hateful comments publicly issued by students and staff. It has also relied on very public proclamations issued by students in the plain light of day. And it has then taken a most necessary stepbringing public attention to those spreading hateful commentary. Some ask that Accuracy in Media be bashful about its findings about antisemitism. This would only be a disservice to tried-and-true journalism.

Others have inaccurately called Accuracy in Medias reporting doxingthat is, publishing private or identifying information about a particular individual on the internet [] with malicious intent. Some think of doxing as publishing already-available public information. But Accuracy in Media never does so with any intent to harm a person it reports about. Rather, it publishes to bring attention to statements subjects have made in public forums. Accuracy in Media often uses inexpensive mobile, digital billboards to bring attention to individuals it believes harbor dangerous antisemitic opinions. It also uses domain names to do the same. It does so using the same publicly available information anyone else can access. This just follows Justice Brandeis suggestion that publicity is the most effective means to address public prejudices. In a free society, if you elect to support hateful or ignorant positions you should also expect return commentary and attention. As First Amendment scholars are prone to comment, the answer to ignorant, hateful speech is more speechof the educational, enlightened variety.

Accuracy in Media takes a hard stance against real doxing or abusing the rights of any speaker. Indeed, the president of Accuracy in Media, Adam Guillette, has himself been the subject of real swatting and doxing attacks. But in todays upside-down world, Accuracy in Medias honest reporting is often confused with these forms of harassment. Let it be understood: Accuracy in Media respects all honest newsgathering and reporting. For those who seek to silence those who are honestly provocative, we share another message. Accuracy in Media will continue the work Justice Brandeis so heartily recommended as the best of disinfectants: shedding publicity on the ugly undercurrent of antisemitism on Americas campuses.

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Anti-Semitism and the First Amendment | | khq.com - KHQ Right Now