First Amendment Monday (on a Tuesday)

"People conflate being exposed to ideas with harassment."

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It’s censor v. censor, as politicians, academics, and journalists from left to right fight over who gets to block whose free speech.

Plus: David and Sarah reconsider their comments about the alleged Alito leak.

Show Notes:

–Novoa v. Diaz

–Villarreal v. Laredo, Texas

–Reason Magazine on the stakes of Villarreal’s lawsuit

–David’s piece on the meaning of religious freedom

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Comments (71)
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  1. Avatar photo
    Kimbaukusfitzgibbon

    Interesting thank you. What about the 1st amendment rights of teachers in public high schools teaching classes for college credit? These have 2 forms. One a college somehow approved the class taught in the high school and gives the student credit at their college, and the other is when the student is taught the AP curriculum at the high school and takes the AP exam which colleges usually give credit for scores in certain ranges. Can you see how different these classes are going to be from an actual college class in areas such as AP US Government and Politics if these high school teachers are restricted by a bill such as the one in Florida?

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    Adamlevick

    Hi Sarah and David, did you two ever discuss the Eighth Circuit's upholding of Arkansas's BDS law? If so, which podcast? Thanks.

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  3. Taylor Whisman

    Thank you. I appreciate the hard work you put into these podcasts. You discuss the legal implications and the reasoning behind these cases in a way that helps me to understand them beyond a superficial level. Before finding the Dispatch and AO, law and politics seemed like nothing more than circus stunts and conspiracy theories. You two help me stay grounded. Much gratitude.

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  4. Chris Taylor

    I do NOT believe Sarah was a B student….do not. Her paper regarding President Reagan should have received a good grade because of the elements. It likely was not due to lack of strong argument, must have been the professor.

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  5. Caroline Grace Brothers

    Hi! I'm a long-time listener and first-time commenter. I'm also one of the co-authors of the Institute for Justice's amicus brief in Villarreal v. City of Laredo and IJ's cert petition in Novak v. Parma ("the Onion case"). I really enjoyed the podcast, and was excited to hear the discussion of both of these important cases together since we argued in Novak that Judge Ho's great panel opinion in Villarreal created a circuit split on the interaction of qualified immunity and the First Amendment that needs to be resolved.

    I thought I'd chime in to add to the discussion of the First Amendment "dumpster fire." I'd argue that things are so confused largely because of qualified immunity. As David mentioned, First Amendment jurisprudence is stable; it's obvious, for example, that the First Amendment protects Priscilla Villarreal's right to ask government officials questions and Anthony Novak's right to make a parody Facebook account of his local police department. But qualified immunity provides an end run around these protections. The hairsplitting that usually happens when courts decide whether those particular rights have been "clearly established" in the same circumstances typically lets government officials who violate First Amendment rights avoid accountability. Worse, courts regularly skip past the first step of the QI analysis--whether the plaintiff's right was violated--to decide only whether the right was clearly established. So the law on these constitutional rights isn't being developed (or clearly established for the next case). In Judge Willett's words, "Heads government wins, tails plaintiff loses."

    Anyway, if you're interested in diving deeper into the Fifth Circuit's First Amendment vs. QI dumpster fire (who wouldn't be?), I’d recommend following another IJ case, Bailey v. Iles. We're appealing a Louisiana district court's grant of qualified immunity to an officer who arrested our client, Waylon Bailey, under Louisiana's terrorism law. Mr. Bailey’s crime? Posting a COVID zombie joke--complete with emojis and a reference to Brad Pitt in World War Z--on Facebook. Wildly, the district court applied the long-discredited WWI-era "clear and present danger" test to hold that Mr. Bailey's joke was not protected speech at all in the "climate of fear" created by COVID. More info on the case here: https://ij.org/case/bailey-v-iles/.

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    Ondrarenee

    I love this episode. There's so much ideological inconsistency out there when it comes to the 1st ammendment.

    You guys have helped me take some more time to consider the shoe being on the other foot in these scenarios. Being a trans person myself, I think about cases like the cake shop and the web designer and wonder, "how would I feel if I was compelled by law to make a website or write a song about how gender non-conforming people are evil?" I would be disgusted with myself if I had to create something like that.

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  7. C.Webb

    (I have not listened to this episode yet so my questions may be answered)

    I'm wondering if David and Sarah could do some more on the marriage law that just passed the Senate. It seems that some are saying that there are egregious holes in the law that will allow an "open season" on religious institutions and others (like David) who say the opposite. Is there anything to the argument that there are such gaps in the law? Or is it just fear mongering?

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  8. Dpickard178

    Sarah's story about her faux chicken sexer uncle reminded me of a long ago (1978) but long-remembered piece in Texas Monthly about bad Lone Star jobs (I was studying law at Southern Methodist and, tho a Rhode Islander, became very fond of irreverent TM, as a break from the majesty of the law). Chicken Sexer certainly made the grade of s----- jobs. And yes, including the unceremonious toss of the doomed "boys" into a garbage bag. Amazingly, I found an archived copy. https://www.texasmonthly.com/news-politics/bad-jobs/

    Love AO!

    Dana

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    1. Dengura

      I grew up on a Southern California egg farm in the 50’s and 60’s. We had 25,000 in our backyard. Every few months 5000 day-old chicks would be delivered, and if there were three roosters among the brood, that would be remarkable. I would accompany my parents to the nursery, and see thousands of fertile eggs rotating on a vertically mounting conveyer belt, sort of like a small oval Ferris wheel, in front of carefully controlled heaters. I would ask the chicken sexer — they were all Japanese, and in retrospect they might have been detained in the camps during the war — how he knew whether the bird was male or female. He shrugged, “I just know.”

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  9. Marty.T.Hubbard

    Sarah, do you realize you mix your bullet point numbering? You start with A. and then follow with 2. I've noticed this in multiple episodes. Just an observation.

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    Kim

    David, any thoughts on what you would have done in Rob’s place? I listened to the NYT’s Podcast on this, and Rob seems to be remorseful for his past political conduct.

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