The Supreme Court term is over. We review its First Amendment cases.

Joining the show are FIRE Chief Counsel Bob Corn-Revere, FIRE General Counsel Ronnie London, and Institute for Justice Deputy Litigation Director Robert McNamara.

Become a FIRE Member today and gain access to live monthly webinars where you can ask questions of FIRE staff. The next webinar is July 8 at 1 p.m. ET. We will take your questions about the Supreme Court term.

Timestamps

0:00 Intro

2:53 Moody v. NetChoice and NetChoice v. Paxton

31:02 NRA v. Vullo

46:57 Murthy v. Missouri

1:06:04 Gonzales v. Trevino

1:17:58 Vidal v. Elster

1:26:04 O’Connor-Ratcliff v. Garnier and Lindke v. Freed

1:34:00 Loper Bright Enterprises v. Raimondo (the Chevron deference case)

1:37:26 Free Speech Coalition v. Paxton (forthcoming SCOTUS case)

1:38:30 Outro

There is a movement afoot to restrict young people’s access to social media and pornography.

Critics of social media and online porn argue that they can be harmful to minors, and states across the country are taking up the cause, considering laws that would impose age-verification, curfews, parental opt-ins, and other restrictions.

Meanwhile, critics of the critics argue that the evidence of harm isn’t so conclusive and that many of the proposed restrictions violate core civil liberties such as privacy and free speech.

So, who’s right?

Clare Morell is a senior policy analyst at the Ethics and Public Policy Center and the author of the forthcoming book, “The Tech Exit: A Manifesto for Freeing Our Kids.”

Ari Cohn is free speech counsel at TechFreedom, a technology think tank.

Timestamps

0:00 Intro

2:17 The alleged harms of social media

11:31 Just another technological moral panic?

25:49 How is internet access currently restricted for minors?

41:17 The age verification problem

1:00:27 Assessing the First Amendment problems

1:07:21 Voluntary measures parents can take

1:25:30 Outro

Shownotes

Transcript

“The Anxious Generation: How the Great Rewiring of Childhood Is Causing an Epidemic of Mental Illness” by Jonathan Haidt

“Surgeon General: Why I’m Calling for a Warning Label on Social Media Platforms” by Vivek H. Murthy

It is said that censorship is the strongest drive in human nature — with sex being a weak second.

But what happens when these two primordial drives clash? Does censorship or sex win out?

Nadine Strossen is a professor emerita at New York Law School, a former president of the ACLU, and a senior fellow at FIRE. She is also the author of “Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights.” First released in 1995, the book was reissued this year with a new preface.

Mary Anne Franks is a law professor at George Washington University and the president and legislative and tech policy director of the Cyber Civil Rights Initiative. She is the author of “The Cult of the Constitution: Our Deadly Devotion to Guns and Free Speech” and the forthcoming “Fearless Speech: Breaking Free from the First Amendment.”

Show Notes:

Transcript

Timestamps

0:00 Intro

2:17 Defining pornography

7:20 Is porn protected by the First Amendment?

11:10 Revenge porn

22:05 Origins of “Defending Pornography”

25:06 Andrea Dworkin and Catharine MacKinnon

29:20 Can porn be consensual?

35:02 Dworkin/MacKinnon model legislation

52:20 Porn in Canada

56:07 Is it possible to ban porn?

1:03:26 College professor’s porn hobby

1:12:39 Outro

Did 26 words from an American law passed in 1996 create the internet?

Section 230 of the Communications Decency Act says that interactive websites and applications cannot be held legally liable for the content posted on their sites by their users.

Without the law, it’s likely Facebook, Amazon, Reddit, Yelp, and X wouldn’t exist — at least not in their current form.

But some say the law shields large tech companies from liability for enabling, or even amplifying, harmful content.

On today’s show, we discuss Section 230, recent efforts to reform it, and new proposals for content moderation on the internet.

Marshall Van Alstyne is a professor of information systems at Boston University.

Robert Corn-Revere is FIRE’s chief counsel.

Timestamps

0:00 Intro
3:52 The origins of Section 230?
6:40 Section 230’s “forgotten provision”
13:29 User vs. platform control over moderation
23:24 Harms allegedly enabled by Section 230
40:17 Solutions
46:03 Private market for moderation
1:02:42 Case study: Hunter Biden laptop story
1:09:19 “Duty of care” standard
1:17:49 The future of Section 230
1:20:35 Outro

Show Notes

- Show Transcript

- Hearing on a Legislative Proposal to Sunset Section 230 of the Communications Decency Act (May 22. 2024)

- “Platform Revolution” by Marshall Van Alstyne

- “The Mind of the Censor and the Eye of the Beholder” by Robert Corn-Revere

- “Protocols, Not Platforms: A Technological Approach to Free Speech” by Mike Masnick

- “Sunset of Section 230 Would Force Big Tech’s Hand” By Cathy McMorris Rodgers and Frank Pallone Jr.

- “Buy This Legislation or We’ll Kill the Internet” By Christopher Cox and Ron Wyden

- “Free Speech, Platforms & The Fake News Problem” (2021) by Marshall Van Alstyne

- “Free Speech and the Fake News Problem” (2023) by Marshall Van Alstyne

- “It’s Time to Update Section 230” by Michael D. Smith and Marshall Van Alstyne

“Now It's Harvard Business Review Getting Section 230 Very, Very Wrong” by Mike Masnick

The First Amendment forbids government censorship. Private institutions, on the other hand, are generally free to restrict speech.

How should we think about private censorship and its role within a liberal society?

On today’s episode, we’re joined by J.P. Messina, an assistant professor in the philosophy department at Purdue University and the author of the new book, “Private Censorship.”

Also on the show is Aaron Terr, FIRE’s director of public advocacy.

Timestamps

0:00 Introduction

3:10 The origin story of “Private Censorship”

8:29 How does FIRE figure out what to weigh in on?

12:04 Examples of private censorship

18:24 Regulating speech at work

22:21 Regulating speech on social media platforms

30:09 Is social media essentially a public utility?

35:50 Are internet service providers essentially public utilities?

44:43 Social media vs. ISPs

51:02 Censorship on search engines

59:47 Defining illiberalism outside of government censorship

1:16:06 Outro

Show Notes

Episode transcript

Packingham v. North Carolina (2017)

Cloudflare’s announcement regarding the Daily Stormer

On May 1, the U.S. House of Representatives passed the Antisemitism Awareness Act by a vote of 320 to 91. Proponents of the law say it is necessary to address anti-Semitic discrimination on college campuses. Opponents argue it threatens free speech.

Who’s right?

Kenneth Stern was the lead drafter of the definition of anti-Semitism used in the act. But he said the definition was never meant to punish speech. Rather, it was drafted to help data collectors write reports.

Stern is the director of the Bard Center for the Study of Hate. His most recent book is titled, “The Conflict Over the Conflict: The Israel/Palestine Campus Debate.”

Timestamps

0:00 Introduction

04:06 Introducing Ken Stern

7:59 Can hate speech codes work?

11:13 Off-campus hate speech codes

13:33 Drafting the International Holocaust Remembrance Alliance definition

21:53 How should administrators judge anti-Semitism without the IHRA definition?

27:29 Is there a rise in unlawful discrimination on campuses today?

40:20 Opposition to the Antisemitism Awareness Act

43:10 Defenses of the Antisemitism Awareness Act

51:34 Enshrinement of the IHRA definition of anti-Semitism in state laws

53:57 Is the IHRA definition internally consistent?

59:21 How will the Senate vote?

1:01:16 Outro

Show Notes

IHRA definition of anti-Semitism

The Antisemitism Awareness Act

Transcript

Host Nico Perrino joins his FIRE colleagues Will Creeley and Alex Morey to answer questions about the recent campus unrest and its First Amendment implications.

Timestamps

0:00 Introduction

0:41 What is FIRE?/campus unrest

5:44 What are the basic First Amendment principles for campus protest?

11:30 Student encampments

18:09 Exceptions to the First Amendment

29:01 Can administrators limit access to non-students/faculty?

34:13 Denying recognition to Students for Justice in Palestine

36:26 Were protesters at UT Austin doing anything illegal?

40:54 The USC valedictorian

45:09 What does “objectively offensive” mean? / Does Davis apply to colleges?

46:55 Is it illegal to protest too loudly?

50:03 What options do colleges have to moderate/address hate speech?

54:20 Does calling for genocide constitute bullying/harassment?

59:09 Wrapping up on the situation

Show Notes

“USC canceling valedictorian’s commencement speech looks like calculated censorship,” Alex Morey

“Emerson College: Conservative Student Group Investigated for Distributing ‘China Kinda Sus’ Stickers,” FIRE’s case files

“HATE: Why We Should Resist it With Free Speech, Not Censorship,” Nadine Strossen

“Defending My Enemy: American Nazis, the Skokie Case, and the Risks of Freedom,” Aryeh Neier (pdf)

“David Goldberger, lead attorney in ‘the Skokie case,’” “So to Speak” Ep. 118

Transcript

In America, hate speech is generally protected by the First Amendment.

But should it be?

Today’s guest is out with a new book, “Hate Speech is Not Free: The Case Against First Amendment Protection.”

W. Wat Hopkins is emeritus professor of communication at Virginia Tech, where he taught communication law and cyberspace law.

Transcript of Interview: https://www.thefire.org/research-learn/so-speak-podcast-transcript-should-first-amendment-protect-hate-speech

Timestamps

0:00 Introduction
5:34 Why write about hate speech?
8:50 Has the Supreme Court ruled on hate speech?
13:56 What speech falls outside First Amendment protection?
16:44 The history of the First Amendment
20:00 Fighting words and Chaplinsky v. New Hampshire (1942)
24:00 How does the Supreme Court determine what speech is protected?
35:24 Defining hate speech
38:54 Debating the value of hate speech
44:02 Defining hate speech (again)
50:30 Abuses of hate speech codes
1:00:10 Skokie
1:02:39 Current Supreme Court and hate speech
1:06:00 Outro

Show Notes
Scotland’s “Hate Crime and Public Order Act”
Matal v. Tam (2017)
Snyder v. Phelps (2011)
Brown v. Entertainment Merchants Association (2011)
United States v. Stevens (2010)
Virginia v. Black (2003)
R.A.V. v. City of St. Paul (1992)
National Socialist Party of America v. Village of Skokie (1977)
Police Department of Chicago v. Mosley (1972)
Beauharnais v. Illinois (1952)
Chaplinsky v. New Hampshire (1942)
“HATE: Why We Should Resist it With Free Speech, Not Censorship” by Nadine Strossen