This week, the National Constitution Center convened the 2024 National First Amendment Summit, in partnership with FIRE and NYU’s First Amendment Watch. America’s leading legal thinkers joined for a vigorous discussion on the state of free speech in America and around the globe, which included a keynote conversation with Jason Rezaian of The Washington Post. In this episode, we share two panels from the summit. “Free Speech on Campus Today” features Mary Anne Franks, author of the new book Fearless Speech: Breaking Free from the First Amendment; FIRE’s Vice President of Campus Advocacy Alex Morey; and Keith Whittington, author of You Can't Teach That!: The Battle over University Classrooms. “Free Speech In and Out of the Courts” features Nadine Strossen, author of Free Speech: What Everyone Needs to Know; Jonathan Turley, author of the new book The Indispensable Right: Free Speech in an Age of Rage; and Kenji Yoshino of NYU School of Law and Meta's Oversight Board.
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Today’s episode was produced by Tanaya Tauber, Lana Ulrich, Samson Mostashari, and Bill Pollock. It was engineered by Advanced Staging Productions, David Stotz, and Bill Pollock. Research was provided by Samson Mostashari, Cooper Smith, Gyuha Lee, Matthew Spero, and Yara Daraiseh.
Participants
Mary Anne Franks is the Eugene L. and Barbara A. Bernard Professor in Intellectual Property, Technology, and Civil Rights Law at the George Washington University Law School. She is also the president and legislative and tech policy director of the Cyber Civil Rights Initiative. She frequently advises legislators on various forms of technology-facilitated abuse and also several major technology platforms on privacy, free expression, and safety issues. She is the author of Fearless Speech: Breaking Free from the First Amendment.
Alex Morey is vice president of campus advocacy at FIRE, where she leads their Campus Rights Advocacy program. Her commentary is frequently featured by media outlets like The New York Times, the BBC, CNN, NPR, The Wall Street Journal, The Washington Post, The Hill, the Los Angeles Times, and Politico. She is also a member of the First Amendment Lawyers Association.
Keith Whittington is David Boies Professor of Law at Yale Law School. He is the author of You Can’t Teach That! The Battle Over University Classrooms, Speak Freely: Why Universities Must Defend Free Speech, as well as works on constitutional theory and law and politics. He serves as founding chair of the Academic Freedom Alliance’s Academic Committee and as a Hoover Institution Visiting Fellow. He blogs at the Volokh Conspiracy and hosts The Academic Freedom Podcast.
Nadine Strossen is the John Marshall Harlan II Professor of Law Emerita at New York Law School and past president of the American Civil Liberties Union. She is also a senior fellow with FIRE and serves on the advisory boards of the ACLU, Academic Freedom Alliance, Heterodox Academy, and the National Coalition Against Censorship. Her most recent books are HATE: Why We Should Resist It with Free Speech, Not Censorship and Free Speech: What Everyone Needs to Know. She is also the host and project consultant for the film series Free To Speak.
Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law, Director of the Environmental Law Advocacy Center, and executive director of the Project for Older Prisoners at the George Washington University Law School. He has served as counsel in some of the most notable cases in the last two decades and has testified before Congress over 100 times. His most recent book is The Indispensable Right: Free Speech in an Age of Rage.
Kenji Yoshino is the Chief Justice Earl Warren Professor of Constitutional Law at New York University School of Law and the director of the Meltzer Center for Diversity, Inclusion, and Belonging. He previously served as deputy dean at Yale Law School and has published four books, including his most recent (co-authored with David Glasgow), Say the Right Thing: How to Talk About Identity, Diversity and Justice. Yoshino currently serves on the oversight board for Meta.
Jeffrey Rosen is the president and CEO of the National Constitution Center. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic. His most recent book is The Pursuit of Happiness: How Classical Writers on Virtue Inspired the Lives of the Founders and Defined America.
Additional Resources
- 2024 National First Amendment Summit
- FIRE: Foundation for Individual Rights and Expression
- NYU’s First Amendment Watch
- Mary Ann Franks, Fearless Speech: Breaking Free from the First Amendment
- Keith Whittington, You Can’t Teach That!: The Battle over University Classrooms (2024)
- Nadine Strossen, Free Speech: What Everyone Needs to Know (2023)
- Jonathan Turley, The Indispensable Right: Free Speech in an Age of Rage (2024)
- Meta Oversight Board
Excerpt from Interview: Mary Anne Franks argues that the First Amendment often fails marginalized voices by protecting harmful speech over equitable discourse, especially in spaces like universities where quality ideas should take precedence.
Mary Anne Franks: UVA loves the First Amendment, and so much so that it gets ranked first in FIRE's rankings this year. UVA who sent out state troopers to their student protestors and to their faculty, had them beaten, had them pepper sprayed, decided they were going to no longer have tours that explained that Thomas Jefferson was an enslaver. That's the university that we're saying is at number one for college speech? That's a very unusual way to look at freedom of speech, I think. So when I talk about the problems with the First Amendment, I'm saying that when we hear a lot of First Amendment fundamentalists say things like, well, what would be the alternative? Aren't you worried that the next thing will happen is they're gonna go after the people you do like? What do we think is happening right now? When has it ever been true that we have actually protected the speech of people who were truly at the margins of society? The Nazis are not at the margin. They're right there at the center, right? When we're talking about the people who were always silenced, who were never protected by the First Amendment, that has always been the people arguing for racial justice, gender justice, other forms of justice, right?
Keep in mind all those great labor communist cases from the early parts of the 20th century, they all lost, right? It wasn't until the Nazi showed up that people started winning, and that's not a coincidence. So I think we have to stop telling ourselves this fairy tale, that there's this concern that if we do differently, this bad thing will happen. The bad thing is happening right now. The bad thing is happening just as the First Amendment is still there. It hasn't been knocked off of its pedestal. And Ron DeSantis says he loves the Chicago principles, he loves the First Amendment, and now he's loving the First Amendment so much that he is threatening channels in Florida to say, you can't run an abortion ad that I don't like, right? Ron DeSantis says, I love the First Amendment so much that I'm going to strip out certain topics from the curriculum.
I'm going to ban discussions of diversity, right? We've got a former president who's now running for president again, saying, I'm going to ban everything that I don't like. That's all happening right now. Protesters are not being protected, student demonstrators are not being protected. People who are speaking out in a way that is actually courageous are not being protected right now. It is a false promise to say, oh, protect all the Nazis, it'll protect everybody else too. No, it protects the Nazis and it doesn't protect the other people. That's the deal we're given. So if that's the deal we're given, my argument is we can do better than that. And we can do better than that first by saying, first of all, let's acknowledge that the First Amendment is limited for a reason. It's only about the government. It's one thing to say you don't want to put people in jail for having bad ideas, that's fine.
But for a university, for a college campus, that's just such a strange place to start. And I say that as a professor. If I in my classroom are saying, let's just talk about all the things that you're allowed to talk about that people can't be thrown in jail for, that's not a good classroom discussion. That's a boring discussion and probably a pretty chaotic one. College campuses, universities are unique places where you have opportunities to talk about interesting ideas, valuable ideas, yes, controversial ideas, but not just any idea. There's got to be some distinction made between what is actually quality versus just quantity. Those are the hard decisions that we can't avoid by simply backing up and saying, oh, first Amendment or Counter speech, or any of those other myths or any of those other cliches. They are hard questions where you have to take into account that you are a community that is trying to do something together.
Hopefully, it is trying to sift through history and politics and find something like truth and find something like democracy. Find something like equality. But if you're going to do that, you're going to have to have constant conflicts all the time. Conversations about what the rules of the classroom might be or the rules of the campus might be. Because in the absence of that, all you get is the most powerful people speaking all the time over everyone else. And so much so that if we think about just the context of journalism or think about freedom of expression around the globe, the United States rates 26 out of 161 countries for freedom of expression. 55 when it comes to press freedom out of 180. Why do we think that we're doing the best, or why do we think the First Amendment is working so well when the evidence all around us is telling us that we're actually failing?
Excerpt from Interview: Kenji Yoshino explains that Meta’s Oversight Board moderates hate speech and misinformation more strictly than government First Amendment standards, as Meta, a private actor, can balance speech against user safety without government-level restrictions.
Kenji Yoshino: I think where it gets more complicated from a kind of traditionalist First Amendment perspective are instances where we balance away the speech right and say that another value trumps. So the Holocaust denial case, Jeff, that you mentioned is a very good example of that, where we said, look, Holocaust denial is a form of hate speech, and so we are actually going to protect. We're gonna force the individual to take down the speech in order to protect the interests of Jewish individuals who are gonna be harmed by Holocaust denial. So my colleagues can correct me or disagree with me, but as I read First Amendment jurisprudence, mere falsity is not enough under the Alvarez case in 2012 to have something be unprotected by speech. But of course, this is not a governmental actor. This is what Mary Anne Franks was saying on the last panel. So, Meta has the capacity to weigh the First Amendment value against other values differently. And in this particular case, we weighed the, we said that Meta was right in order to take down the Holocaust denial.
Another example of this would be a trans flag case where there was a flag that was erected on a post and it was in Poland. The caption was, self-hanging curtains, spring cleanings. It's clearly a kind of urging trans people to kill themselves as we saw it so it came up under Meta's suicide and self-injury policy and under its hate speech policies as well and we said that that needed to go come down under Meta's hate speech policies that protect individuals based on gender identity. So in those two instances one about disinformation one about hate speech, Alvarez on the first amendment side with regards to misinformation and then cases like RAV and the hate speech side of the Collin's case Nazis get to March in Skokie or you get to burn a cross on your yard and that can't be sanctioned by the government. We chose differently from the ways in which the Supreme Court did. And in the pre-call with Nadine, whom I highly respect, there's a big question that I was happy to get agreement on from her, which is to say, and you can retract this. I'm not holding you to this. But she said, "I actually think private actors should have the running room to depart from First Amendment norms because they're not the government."
If we actually poke at that and say, why is it that private actors should get more running room in this area? I think it would have to do with things like the sanctions that are being imposed are less, like Meta cannot throw you in jail, or cannot sanction you in ways that governments can sanction you. And then alternatively, Meta as a private actor has speech interests of its own as Paul Clement argued in the NetChoice case before the Supreme Court, this is like, there's no perfect analogy to social media, frankly, but he said the social media platforms are like anthologists who are curating content. So it's a lot of content, but there is a curation involved and that's entitled to its own free speech interests. So to sum up, Meta Oversight Board is a kind of quasi kind of independent Tribunal that thinks about these thorny content moderation issues for the 3 billion plus users who are on Metas platforms. There's some good news for the First Amendment kind of enthusiast, with regard to the decisions that we've arrived at. And so far, as you look at the Middle East complications of abortion rights cases, that's very much traditional textbook First Amendment protection. But then other places, like in the domain of misinformation or in the domain of hate speech, we've departed from US canonical First Amendment doctrine by saying speech is less protected in these contexts than it would be in the US Supreme Court or a governmental actor involved.
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