“This freedom of communication is indispensable for the development and extension of scientific knowledge, a consideration of much practical import. In the first instance it must be guaranteed by law. But laws alone cannot secure freedom of expression; in order that every man may present his views without penalty, there must be a spirit of tolerance in the entire population. Such an ideal of external liberty can never be fully attained but must be sought unremittingly if scientific thought, and philosophical and creative thinking in general, are to be advanced as far as possible.”
— Albert Einstein, Ideas and Opinions, 1954
First things first
The First Amendment binds the government, so the government has gotten rather good at punishing speech without restricting it. In Florida, we read this week, the state wildlife commission ran its critics’ names through a restricted database. At West Point, civilian professors were made to ask permission before publishing. None of this required a censorship law. In 1785, Madison warned us “to take alarm at the first experiment on our liberties.” He understood too well that the men who overturned the liberties of Rome were ever careful to keep the Senate in session as they did so.
Florida wildlife officials pulls records on critics
Florida Fish and Wildlife Conservation Commission officials used a restricted government database to pull personal information on more than 20 environmental activists, accessing retired turtle farmer Jim Watt’s records 34 times even though the agency says he was never under criminal investigation.
“Public meetings exist so citizens can question, challenge, and sometimes anger the officials who exercise power over them,” writes Isabelle Brito. “That process breaks down when people have to wonder whether criticism will invite government scrutiny.”
Below the fold
Public employers have had to cough up $4 million and counting for firing workers over posts about Charlie Kirk, framing online backlash as workplace “disruption.”
A federal judge barred West Point from requiring civilian professors to get approval for outside speech.
A federal judge refused to block the firing of three Stars and Stripes staffers who were punished for defending the paper’s editorial independence, saying their speech was made as government employees, not private citizens.
Jimmy Kimmel says ABC will not broadcast his interview with Texas Democratic Senate candidate James Talarico because of FCC threats over political guest bookings, so the interview will instead appear on YouTube.
University of Washington will pay $600,000 to settle computer science professor Stuart Reges’ case after a court held the school violated his rights by punishing him for parodying an indigenous land acknowledgment.
Around the world
Australia’s most senior public servants are urging the government to stop politicians from editing and sharing clips of parliamentary hearings on social media, arguing that viral excerpts can expose officials to “harmful” comments. As Sarah McLaughlin explains, “Ridiculing bureaucrats who make and enforce public policy, and are often well-paid in the process, is not a subversion of the democratic process. It is a component of it.”
By the numbers
261 schools, 63,000 students, one major trend. This week, FIRE released its annual College Free Speech Rankings. Chicago takes first for the third time in seven years. NYU takes last, with Washington, Texas State, Northeastern, and Rutgers–New Brunswick keeping it company at the bottom. The national average is the best score in seven years, but still a D-. That’s 121 Fs against 24 schools managing a C or better. UC Davis is the comeback kid, going from 252 to 24, the biggest jump of the year. Harvard also came roaring back, from 245 to 71.
Worth a listen
The Blessings of Liberty explores constitutional history, Supreme Court debates, and the “American Idea,” hosted by bestselling author and constitutional scholar Jeffrey Rosen.
In this episode, award-winning journalist Damon Root joins to discuss his most recent book, Emancipation War: The Fall of Slavery and the Coming of the Thirteenth Amendment. In Emancipation War, Root chronicles the wide-ranging movement against slavery — consisting of white and Black visionaries operating both inside and outside the halls of power, fighting both on and off the battlefield — that made the Constitution’s antislavery Thirteenth Amendment possible.
So to Speak takes an uncensored look at the world of free expression through the law, philosophy, and stories that define free speech — hosted by FIRE’s Nico Perrino.
In this episode, Nico explores the First Amendment’s original meaning and what originalism can — and can’t — tell us about its free speech clause. Joining to discuss are Stanford Law professor Jud Campbell, author of Natural Rights and the First Amendment, and NYU professor of journalism Stephen Solomon, the founding editor of First Amendment Watch and the author of Revolutionary Dissent.
Today in history with Sheridan Macy
On Sept. 13, 1977, ABC premiered Soap, a prime-time send-up of daytime soaps that took on homosexuality, religion, organized crime, cults, mental illness, and race. A leaked ABC memo flagged the worrying bits: an openly gay character with a football-player boyfriend, a priest who wanted to swap communion wafers for Oreos, and an affair with a Jesuit that produced a pregnancy and an exorcism.
Religious groups mobilized before anyone had seen an episode. The Catholic Church, led by the L.A. archdiocese, called for a boycott, warning the show was “probably one of the most effective arguments for government censorship of TV that has yet come along.” The Southern Baptist Convention’s Sunday School Board dumped 2,500 shares of ABC stock. A coalition aimed a letter-writing campaign at ABC and its advertisers, arguing television was “primarily a family medium.” One ABC vice president found his 11-year-old had been assigned a protest letter as homework. Advertisers fled, ad rates fell, promotion was scrapped, and 18 of 195 affiliates refused to air it. But the controversy actually sold the show, and it ran four seasons to strong reviews and solid ratings. Episode one carried the first “Viewer Discretion Advised” warning in U.S. network history, but the warning was gone by season two.
In the comments
Ink and opinion
Thank you for including that link to one of Professor Jud Campbell's 2017 articles. Please note that an earlier 2017 article is even more important to highlight: Professor Campbell's “Republicanism and Natural Rights at the Founding,” reviewing a book by Randy Barnett, “Our Republican Constitution: Securing the Liberty and Sovereignty of We The People.”
The 2017 article for which you provided a link said nothing about the sovereignty of the people except to imply that it was the "intellectual foundation" of the "social-contract theory," i.e., the (false) theory that our Constitution is a mere social contract. For support, Professor Campbell cited his other earlier article, Republicanism and Natural Rights at the Founding. That earlier article highlights how Professor Campbell apparently failed (at least in 2017) to grasp the extremely important and fundamental concept of sovereignty of the people. That concept is crucial to understanding the true nature of our First Amendment rights and freedoms.
Professor Campbell did provide valuable insights about crucial sources. He highlighted that James Madison addressed the sovereignty of the people (but he overlooked Madison's crucial Report of 1800). He also repeatedly highlighted that James Wilson repeatedly addressed (in a crucial opinion as a SCOTUS justice, as well as in law lectures) the sovereignty of the people. But his references to Madison and Wilson were almost all red herrings, even if unintentionally so.
Professor Campbell highlighted that Wilson highlighted an idea with powerful implications for adjudications today ostensibly under the First Amendment. Two years before the Declaration of Independence, Wilson highlighted that sovereignty is a right. Moreover, he highlighted that sovereignty is a right that is inextricably intertwined with the right to happiness. "The right of sovereignty is that of commanding finally - but [solely] in order to procure real felicity; for if this end is not obtained, sovereignty ceases to be a legitimate authority." James Wilson in Considerations on the Nature and Extent of the Legislative Authority of the British Parliament (1774).
Professor Campbell also correctly highlighted Wilson's crucial opinion as a SCOTUS Justice in Chisholm v. Georgia in 1793. But Professor Campbell did grave injustice to Justice Wilson. Wilson's opinion was very, very far from tying the sovereignty of the people to social-contract theory. Wilson clarified how the sovereignty of the people was founded on principles that Locke had clarified about 100 years earlier. Locke clarified that the sovereign power is the power to make the law. The People in our Constitution established our sovereignty not by contract, but by law, exactly as Locke described.
The first and last words of the People in our original Constitution established our sovereignty. As Justice Wilson expressly emphasized in Chisholm, the first words of our Constitution introduce American citizens and necessarily identify them as sovereigns. “We the People” did “ordain and establish” our “Constitution” and our “Union” to “secure the Blessings of Liberty to ourselves.” Those were our first words as one people. They were our first words as one nation. The foregoing words and Article VII showed exactly how the people functioned as the supreme legislative body (and the only legislative body) for the U.S. from June 21, 1788 until early April 1789. "[T]he Establishment of this Constitution" was accomplished by "[t]he Ratification of the Conventions” (specially chosen by the people of each state for that particular purpose) “of nine States."
Article VI further highlighted exactly how the people functioned as the supreme legislative body (and the only legislative body) for the U.S. from June 21, 1788 until early April 1789. Our "Constitution" immediately became "the supreme Law of the Land;" all "the Judges in every State" in the Union immediately became "bound thereby;" and all state legislators and "all executive and judicial Officers" (including not only all judges, but also all lawyers) of all "States" in the Union immediately were required to publicly acknowledge "by Oath or Affirmation" that they were "bound" to "support this Constitution."
For more elaboration on the foregoing, please consider "Why Is the First Amendment First? Locke Is the Key" (https://blackcollarcrime.substack.com/p/why-is-the-first-amendment-first?r=30ufvh&utm_campaign=post-expanded-share&utm_medium=web).
Why would anyone who supports our freedom of expression and communication say anything like this? "The First Amendment binds the government, so the government has gotten rather good at punishing speech without restricting it." How can anyone think that punishing speech isn't a form of restriction? Pretty much (if not actually) every federal criminal statute (probably every state criminal law, too) expressly prescribes punishment for particular conduct. Could anyone really believe that isn't meant to restrict conduct?
In his crucial Report of 1800 (explaining how our First Amendment rights and freedoms flow from the sovereignty of the people), James Madison expressly emphasized that our Constitution necessarily prohibits both prior restraint and subsequent punishment of expression and communication.
We must consider these issues with "a reverence for our constitution, in the true character in which it issued from the sovereign authority of the people." "The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind; and at no time perhaps more necessary than at the present."
"In the United States," only "[t]he people, not the government, possess absolute [actual or supreme] sovereignty." "Hence in the United States, the great and essential rights of the people are secured against legislative, as well as against executive [and judicial] ambition. They are secured, not by laws paramount to prerogative; but by constitutions paramount to laws. This security of the freedom of the press, requires that it should be exempt, not only from previous restraint by the executive, as in Great Britain; but from legislative restraint also; and this exemption, to be effectual, must be an exemption, not only from the previous inspection of licensers, but from the subsequent penalty of laws."