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Thus far this term, the Supreme Court has rendered judgments in three free speech cases. In two of them, it vacated and remanded the matters for further consideration in light of  (2024) (per curiam, First Amendment retaliation claims). In the other case, TikTok Inc. and ByteDance Ltd v. Garland, the Court rejected the First Amendment claim. 

At this point, the following eight cases remain on the docket and involve everything from student speech to campaign financing to abortion clinic buffer zones and an occupational licensing case, among other things.

The Eight Cases

1. The university bias-response teams case

Issue: Whether university bias-response teams — official entities that solicit anonymous reports of bias, track them, investigate them, ask to meet with the perpetrators, and threaten to refer students for formal discipline — objectively chill students’ speech under the First Amendment.

Counsel for Petitioner:  of Consovoy McCarthy, former Director of the Free Speech Clinic at the Antonin Scalia Law School at George Mason University.

2. The conversations between counselors and their clients case

Issue: Whether a law that censors certain conversations between counselors and their clients based on the viewpoints expressed regulates conduct or violates the free speech clause of the First Amendment.

Counsel for Petitioner:  of the Alliance Defending Freedom.

3. The public middle school that censored a T-shirt case

Issue: Whether school officials may presume substantial disruption or a violation of the rights of others from a student’s silent, passive, and untargeted ideological speech simply because that speech relates to matters of personal identity, even when the speech responds to the school’s opposing views, actions, or policies. 

Counsel for Petitioner:  of Alliance Defending Freedom.

4. The campaign limits on coordinated party expenditures case

Issue: Whether the limits on coordinated party expenditures in 52 U.S.C. § 30116 violate the First Amendment, either on their face or as applied to party spending in connection with “party coordinated communications” as defined in 11 C.F.R. § 109.37.

Counsel for Petitioner:  of Jones Day, former Solicitor General.

5. The occupational-licensing law case

Issue: Whether, in an as-applied First Amendment challenge to an occupational-licensing law, the standard for determining whether the law regulates speech or regulates conduct is this Court’s traditional conduct-versus-speech dichotomy.

Counsel for Petitioner:  of the Institute for Justice.

6. The sidewalk abortion counseling case

Issue: Whether the court should overrule Hill v. Colorado.

Counsel for Petitioner:  of Clement & Murphy, also a former Solicitor General.

7. Another sidewalk abortion counseling case

Issue: Whether the court should overrule Hill v. Colorado.

Counsel for Petitioner: , senior counsel for the American Center for Law and Justice.

8. The fee to speak to government officials about political issues case

Issue: Whether — and if so, under what circumstances — the First Amendment permits the government to require ordinary citizens to register and pay a fee to communicate with their government representatives.

Counsel for Petitioner:  of Lehotsky Keller Cohn, who served as a law clerk to Justice Samuel Alito.

Revenge against political enemies: Executive tactic?

• Mark Mazzetti, Jonathan Swan, Maggie Haberman, and Michael S. Schmidt, “,” The New York Times (Jan. 27)

In his first week in office, President Trump made clear that his promises to exact revenge on his perceived enemies were not empty campaign pledges — and that his retribution is intended not just to impose punishment for the past but also to intimidate anyone who might cross him in the future.

By  from former officials , he signaled that he was willing to impose potentially profound consequences on anyone he sees as having been insufficiently loyal. That included his former secretary of state, Mike Pompeo, and Dr. Anthony S. Fauci, who helped lead the pandemic response.

Mr. Trump’s decision to try to  was aimed at culling federal employees he believes slowed or blocked his first-term agenda and replacing them with loyalists.

[ . . . ]

[These and other measures taken] together . . . send a clear signal that Mr. Trump feels unconstrained about punishing the disloyal, that he is potentially willing to go further against his enemies than he had pledged on the campaign trail and that there will be a price for any opposition to come.

Trump video clip

• “,” ABC-7 (Chicago)

View video

Related

• John R. Vile, “,” Free Speech Center (Jan. 23)
• Kevin Rector, “,” The Los Angeles Times (Jan. 26)
• Jennifer L. Richter, Douglas I. Brandon, Steven A. Rowings, Virginia Hiner Antypas, Joseph S. Calascione, and Sharanya Sriram, “,” Akin (Jan. 27)
• Meredith Willse, “,’” York Dispatch (Jan. 28)

Controlling academic freedom: Another Executive tactic?

• Michele Goldberg, “,” The New York Times (Jan. 24)

“There’s kind of a multifront threat right now as to whether or not you can express views that are unpopular with the folks in the White House and executive agencies and continue to enjoy the protections of the First Amendment on academic freedom,” said Will Creeley, legal director of the ������ýapp�ٷ�, which fights both left- and right-wing infringements on free speech.

[ . . . ]

Creeley, at the ������ýapp�ٷ�, predicts that many state legislatures, local officials and university trustees are going to enlist, either out of enthusiasm or expediency, in the crusade to bring the academic left to heel. “I think you’ll see professors investigated and terminated. I think you’re going to see students punished, and I think you’re going to see a pre-emptive action on those fronts,” he said.

Just look at what’s happened at Harvard this week. On Tuesday it announced that, as part of a lawsuit settlement, it would adopt a definition of antisemitism that includes some harsh criticisms of Israel and Zionism, such as holding Israel to a “double standard” and likening its policies to Nazism. Though Harvard claims that it still adheres to the First Amendment, under this definition a student or professor who accuses Israel of genocidal action in Gaza — as the Israeli American Holocaust scholar Omer Bartov has — might be subject to disciplinary action.

Trump suit against Pulitzer board — Ballard Spahr for the defense

• David Enrich, “,” The New York Times (Jan. 27)

On Monday, the board that awards the Pulitzer Prizes — which Mr. Trump sued in Florida in 2022 for defamation — said that the case should be put on hold because, as Mr. Trump has argued in two other cases, a state court should not be permitted to exert control over a sitting president.

“Defendants agree,” wrote the law firm representing the board, Ballard Spahr. “To avoid such constitutional conflicts, the court should stay this case until plaintiff’s term in office has concluded.”

Mr. Trump’s lawsuit accuses the Pulitzer board of defaming him, in essence, by continuing to honor The New York Times and The Washington Post for their coverage of Russian interference in the 2016 presidential election. A state judge in Florida last year  to proceed toward trial.

The Pulitzer board’s  on Monday leaned heavily on statements the president’s legal team had made in other cases. One involved a suit filed in 2017 by Summer Zervos, a former contestant on “The Apprentice” reality show, who accused the president of unwanted sexual advances. Mr. Trump’s team argued that her suit should be thrown out or delayed because dealing with it — including by producing records during discovery or being forced to appear in court — would “disrupt and impair” Mr. Trump’s ability to do his job. (The suit was  in 2021, after he was out of office.)

Mr. Trump’s lawyers repeated that argument last week in a   in Delaware, in which he and his social media company are defendants.

Excerpt from Trump v. Members of the Pulitzer Prize Board

[Motion to temporarily stay civil action]

It is well-established that “a trial court has broad discretion to grant or deny a motion to stay a case pending before it.” Shake Consulting, LLC v. Suncruz Casinos, LLC, 781So. 2d 494, 495 (Fla. 4th DCA 2001) (affirming trial court’s entry of stay). For three reasons, the Court should exercise that discretion and stay this action until Plaintiff’s term in office has concluded.

First, as Plaintiff himself has argued, and continues to argue, allowing a lawsuit to proceed in state court while a party to that action is the sitting President would invite irresolvable constitutional conflicts arising from the Supremacy Clause.

Second, the grounds for staying this action are particularly strong because the prize-winning articles concern — and discovery will thus need to probe — Plaintiff’s official actions during his first term.

Third, entering a stay will not prejudice Plaintiff, whereas denying a stay would pose constitutional issues both by stopping him from seeking to stay future civil litigation that may arise in state court during his presidency and by raising due process concerns for the Defendants.

Attorneys for the Defendants 

• , , , and .

Nunes loses defamation case

• Eugene Volokh, “,” The Volokh Conspiracy (Jan. 28)

Nunes and his family's farm can’t sufficiently show damages, so the court doesn't have to reach any of the other elements of defamation.

Related

• Eugene Volokh, “,” The Volokh Conspiracy (Jan. 21)

Protected expression: Elon Musk’s controversial salute

View video

• Janna Brancolini, “,” The Daily Beast (Jan. 27)
• Katrin Bennhold, “,” The New York Times (Jan. 24)
• Zachary Basu, “,” Axios (Jan. 23)
• George Wright, “,” BBC News (Jan. 22)
• Bernard Condon, “,” Associated Press (Jan. 21)
• Pranshu Verma, Ellie Silverman, and Bryan Pietsch, “,” The Washington Post (Jan. 21)

New scholarly article: Calo on holding social media accountable

• Ryan Calo, “,” Harvard Law Review Blog (2024)

Plaintiffs are beginning to test the boundaries of tort law once again to fit social media. Seattle and other public-school districts  TikTok, YouTube, and other platforms on the age-old theory of , arguing that these companies endanger public health by fostering a toxic online environment. When two boys died in a high-speed accident trying to trigger Snapchat’s “Speed Filter,” the Ninth Circuit  against the company for negligent design. Snap could be held responsible for the “predictable consequences” of its irresponsible feature, the court reasoned, even though the “Speed Filter” always accompanied user-generated content. Washington election officials  Facebook, over its Section 230 objection, for failing to keep records on political ads in the state. The emphasis, again, was on Facebook’s own conduct around the ads, rather than the content of the ads themselves.

There is an admittedly fine line between attributing third party content to the platform, which federal law forbids, and holding the platform accountable for foreseeable harms to people and communities, which tort law encourages. What did TikTok do wrong in Anderson? They did not film or upload a dangerous challenge video, and they cannot be held liable for hosting, distributing, or even recommending it. But has TikTok invested enough time and resources in protecting children on the platform, especially considering what the company knows about the toxic content that appears there?

Should families like Nylah’s be able to rely upon TikTok’s own , which pledge to “[r]estrict content that is not suitable for youth”? Such questions sound less in derivative liability as non- and misfeasance. Section 230 was meant to be a shield, not a shibboleth. Courts should be trying to thread this needle, rather than pretending Section 230 does not exist. Obviously wrong interpretations of Section 230, like the Third Circuit’s in Anderson v. TikTok, Inc., only set the law back.

Forthcoming scholarly article on AI and free speech

• David Atkinson, Jena D. Hwang, and Jacob Morrison, “,” First Amendment Law Review (Sept. 27)

This paper challenges the assumption that courts should grant outputs from large generative AI models, such as GPT-4 and Gemini, First Amendment protections. We argue that because these models lack intentionality, their outputs do not constitute speech as understood in the context of established legal precedent, so there can be no speech to protect. Furthermore, if the model outputs are not speech, users cannot claim a First Amendment right to receive the outputs.

We also argue that extending First Amendment rights to AI models would not serve the fundamental purposes of free speech, such as promoting a marketplace of ideas, facilitating self-governance, or fostering self-expression. In fact, granting First Amendment protections to AI models would be detrimental to society because it would hinder the government’s ability to regulate these powerful technologies effectively, potentially leading to the unchecked spread of misinformation and other harms.

Freedom Forum’s new ad campaign

• “,” Yahoo! Finance (Jan. 28)

, a woman-owned brand actualization and business acceleration agency, is pleased to announce that they have been named as the creative agency for ’s new advertising campaign. Freedom Forum is the nation’s foremost nonpartisan advocate for First Amendment freedoms. As part of this collaboration, LUDWIG+ helped conceptualize and launch “Brought to You By the First Amendment,” a multichannel advertising campaign designed to drive awareness for the everyday freedoms made possible by the First Amendment.

Today, Freedom Forum launched a dynamic and engaging digital experience with  to further magnify the reach of this campaign. Combining The Onion's satirical voice with Freedom Forum's mission to foster First Amendment freedoms for all, this collaboration features onsite and social content strategically created and curated by LUDWIG+. The activation includes several articles published by The Onion that highlight First Amendment freedoms, as well as multiple digital infographics, videos and ad banners that showcase how freedom of speech is central to a thriving and diverse society.

[ . . . ]

“It's an incredible honor to partner with Freedom Forum in championing our First Amendment freedoms and bringing the 'Brought To You By the First Amendment' campaign to life,” said , Founder and CEO of LUDWIG+. “The First Amendment shapes our everyday lives — from the clothes we wear, the music we love, the books we cherish and the beliefs we hold. We look forward to bringing awareness to this paramount mission and the continued success of this campaign.”

New Book: The Chicago canon on free inquiry

• Tony Banout and Tom Ginsburg, editors, “,” University of Chicago Press (2024)

A collection of texts that provide the foundation for the University of Chicago’s longstanding tradition of free expression, principles that are at the center of current debates within higher education and society more broadly.

Free inquiry and expression are hotly contested, both on campus and in social and political life. Since its founding in the late nineteenth century, the University of Chicago has been at the forefront of conversations around free speech and academic freedom in higher education. The University’s approach to free expression grew from a sterling reputation as a research university as well as a commitment to American pragmatism and democratic progress, all of which depended on what its first president referred to as the “complete freedom of speech on all subjects.” In 2015, more than 100 years later, then University provost and president J.D. Isaacs and Robert Zimmer echoed this commitment, releasing a statement by a faculty committee led by law professor Geoffrey R. Stone that has come to be known as the Chicago Principles, now adopted or endorsed by one hundred U.S. colleges and universities. These principles are just a part of the long-standing dialogue at the University of Chicago around freedom of expression — its meaning and limits. The Chicago Canon on Free Inquiry and Expression brings together exemplary documents — some published for the first time here — that explain and situate this ongoing conversation with an introductory essay that brings the tradition to light.

Throughout waves of historical and societal challenges, this first principle of free expression has required rearticulation and new interpretations. The documents gathered here include, among others, William Rainey Harper’s “Freedom of Speech” (1900), the Kalven Committee’s report on the University’s role in political and social action (1967), and Geoffrey R. Stone’s “Free Speech on Campus: A Challenge of Our Times” (2016). Together, the writings of the canon reveal how the Chicago tradition is neither static nor stagnant, but a vibrant experiment; a lively struggle to understand, practice, and advance free inquiry and expression.

At a time of nationwide campus speech debates, engaging with these texts and the questions they raise is essential to sustaining an environment of broad intellectual and ideological diversity. This book offers a blueprint for the future of higher education’s vital work and points to the civic value of free expression.

‘So to Speak’ Podcast: Interview with the editors of ‘The Chicago Canon’

• “The Chicago Canon,” FIRE(Jan. 23)

The University of Chicago is known for its commitment to free speech and academic freedom. Why are these values important to the university? Where do they originate? And how do they help administrators navigate conflicts and controversies?

Tony Banout and Tom Ginsburg direct the University of Chicago’s , which  last year. They are also editors of “,” a new book that collects foundational texts that inform the university’s free speech tradition.

View video

More in the news

• “,” First Amendment Watch (Jan. 28)
• Eugene Volokh, “,” The Volokh Conspiracy (Jan. 28)
• “,” Reporters Committee (Jan. 27)
• Robby Soave, “,” Reason (Jan. 23)
• Ted Johnson, “,’” Deadline (Jan. 22)

2024-2025 SCOTUS term: Free expression and related cases

Cases decided

•  (Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U.S. ___ (2024) (per curiam))
•  (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U.S. ___ (2024) (per curiam).”)
• (The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)

Review granted

• (argued: Jan. 15)

Pending petitions 

Petitions denied

Last scheduled FAN

FAN 454: “Trump’s stated promise: ‘Stop all government censorship’ and his free speech Executive Order”

This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIREas part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIREor Mr. Collins.