“the Republican appointed Chris Rufo, the architect of the 2021 moral panic over “critical race theory,” to the board of a public liberal arts school in Florida. As Rufo told New York Times columnist Michelle Goldberg, his goal — and the goal of several other DeSantis appointees to the New College of Florida’s board — is to transform New College, a liberal bastion in the South, into something more like Hillsdale College, a conservative school in Michigan with close ties to former President Donald Trump.
The one positive thing that can be said about this appointment is that it is, at least, legal — something that cannot be said about many of the governor’s attempts to sic the government on institutions he deems too liberal. DeSantis isn’t just determined to use his public office to suppress dissenting voices and promote his own reactionary views; he’s also quite willing to thumb his nose at the Constitution in order to do so.
Indeed, DeSantis often seems to revel in his contempt for the First Amendment, even fundraising off of it. Shortly before DeSantis signed unconstitutional legislation punishing the Walt Disney Company for criticizing one of his policies, the governor sent a fundraising email to supporters touting the fact that he was doing so. The company, DeSantis said, was being punished after it “tried to attack me to advance their woke agenda.”
DeSantis signed legislation imposing speech codes on university professors, as well as legislation attempting to seize control of content moderation at sites such as YouTube, Twitter, and Facebook. He attacks classroom teachers with vague, unconstitutional laws stigmatizing LGBTQ people. His administration threatens drag performers with criminal charges.
In his victory speech shortly after winning reelection in his increasingly conservative state, DeSantis pledged to “fight the woke in the legislature,” “fight the woke in the schools,” and to “fight the woke in the corporations.”
One of his lawyers later clarified that the word “woke” means “the belief there are systemic injustices in American society and the need to address them.”
As a constitutional matter, a governor is allowed to give speeches arguing that the United States is somehow miraculously immune from systemic injustice. He may sign legislation repealing programs intended to cure these injustices. He may appoint officials to public school boards that share his belief that the US is immune to these injustices. And he may even enact policies that help perpetuate these injustices, assuming that those policies violate neither the state nor federal constitution.
But DeSantis goes much further. He wields the government’s sovereign powers to sanction speech he does not like, and to punish institutions that criticize him. DeSantis, in other words, does not seem content to simply enact policies that hew to a right-wing economic or social vision. He wishes to use the sovereign powers of government to shape public discourse itself — punishing some ideas, rewarding others, and conscripting public schools and universities into his culture war.
To be fair, DeSantis is hardly unique among Republican state governors in this regard — Texas Gov. Greg Abbott (R), for example, signed legislation targeting social media companies that is even more aggressive than Florida’s. But DeSantis is also widely viewed as a leading contender for the GOP presidential nomination in 2024, so he is uniquely positioned to take his speech war national if elected president.”
“Among other provisions, FOSTA created the new federal crime of owning, managing, or operating an “interactive computer service” with “the intent to promote or facilitate the prostitution of another person.”
In court last week, U.S. attorneys still clung to the argument that FOSTA merely targets illegal conduct, not protected speech.
The government has “essentially made a single argument, which is that FOSTA is essentially just an aiding and abetting statute, despite the language that it uses—it doesn’t use the terms and abetting—and as a result of that, it’s constitutional,” explains Greene. And last week in court, “they got a lot of pushback against that from at least two of the judges,” he says.
“In my mind, it’s not an aiding-and-abetting law. We know how to write ’em when we want to,” Harry Edwards, one of the three judges on the panel, said during the hearing. “This doesn’t look like anything that I understand to be an aiding-and-abetting law.”
“That immediately tells me the government’s got great concern that the statute, as actually written, has problems—so let’s make it something that it’s not,” Edwards continued. He characterized U.S. attorneys’ reasoning as “let’s call it aiding and abetting, and maybe we can cause the court to believe that the reach of the statute is limited because we’ve called it something that it’s not.””
…
“Greene and his team argue that FOSTA violates the First Amendment “because it’s overbroad [and] can apply to a substantial amount of protected speech,” he explains. “And that’s principally because the language that it uses includes not just things that are in themselves the commission of illegal acts of sex trafficking or prostitution.” Rather, “it uses language like ‘promote or facilitate the prostitution of another person’ without being clear on what that means.”
The language of FOSTA “can be reasonably read to include protected [speech]—and not just protected speech, but speech that’s really highly important, like providing harm reduction, health and safety information to sex workers, to advocating on particular sex workers’ behalf, to advocating for decriminalization, and things like that,” Greene says.
During last week’s hearing, Judge Patricia Millett pushed back on the government’s claims that FOSTA didn’t criminalize advocating for legal prostitution.
“If someone actively promotes on their website the legalization of prostitution … how is that not [promoting prostitution]?” she asked.”
“While college campuses are chock full of particularly mind-numbing misunderstandings of the First Amendment—from students and administration alike—the example that takes the cake this year comes from Yale Law School, where student activists disrupted a Federalist Society event discussing civil liberties.
As Foundation for Individual Rights and Expression (FIRE) attorney Zach Greenberg wrote, “Protesters banged on walls, stomped on the ground, chanted ‘Fuck you FedSoc,’ and screamed at the panelists…. The cacophony persisted for the majority of the event, and though panelists struggled to project their voices over the noise, the audience remained largely unable to hear them.”
The activists’ actions comprised a “heckler’s veto”—a form of unprotected speech where the heckler prevents someone from exercising their free speech rights by physically preventing them from being heard. However, the activists didn’t seem to care. When students were told their actions violated Yale’s free expression policies, a chorus of students insisted that “This is free speech.””
“The erroneous idea comes from the 1919 case Schenk v. United States. The case concerned whether distributing anti-draft pamphlets could lead to a conviction under the Espionage Act—and had nothing to do with fires or theaters.
In his opinion, Justice Oliver Wendell Holmes wrote that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” However, this idea was introduced as an analogy, meant to illustrate that, as Trevor Timm wrote in The Atlantic in 2012, “the First Amendment is not absolute. It is what lawyers call dictum, a justice’s ancillary opinion that doesn’t directly involve the facts of the case and has no binding authority.” The phrase, though an oft-repeated axiom in debates about the First Amendment, is simply not the law of the land now, nor has it ever been—something made all the more apparent when Schenk v. United States was largely overturned in 1969 by Brandenburg v. Ohio.
“Anyone who says ‘you can’t shout fire! in a crowded theatre’ is showing that they don’t know much about the principles of free speech, or free speech law—or history,” Foundation for Individual Rights and Expression President Greg Lukianoff wrote in 2021. “This old canard, a favorite reference of censorship apologists, needs to be retired. It’s repeatedly and inappropriately used to justify speech limitations.””
“As much as Durbin may dislike hateful speech or speech that spreads conspiracy theories, they are both generally protected by the First Amendment.”
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“Durbin had plenty of reason to be troubled by these developments—the mass-tweeting of hateful language is concerning, and so too is such a powerful figure seemingly fooled by an online hoax—he was mistaken when asserting that Musk’s tweet was somehow not covered “by free speech.””
“Florida Gov. Ron DeSantis, a leading presidential contender, is skilled at appealing to Republicans who resent the censorious self-righteousness of woke progressives. But instead of defending free inquiry and open debate, DeSantis seems bent on fighting intolerance with intolerance.
When he signed the Individual Freedom Act (IFA) last April, DeSantis bragged that it would “prevent discriminatory instruction in the workplace,” striking a blow against “the far-left woke agenda.” But as a federal judge explained last week, the law’s restrictions on employee training blatantly violate the First Amendment.
The IFA expanded Florida’s definition of “unlawful employment practices” to include “any required activity” that promotes one or more of eight forbidden concepts. Some of those ideas are plainly illiberal (e.g., linking moral status to race) or patently silly (e.g., viewing virtues such as excellence, hard work, and fairness as white supremacist constructs), while others are ambiguous or debatable (e.g., the notion that “members of one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex, or national origin”).
Whatever you think of those ideas, the government has no business decreeing whether and how they can be discussed in private workplaces. Yet that is what the IFA does: It allows discussion “in an objective manner without endorsement of the concepts” while forbidding speech that “espouses, promotes, advances, [or] inculcates” them.
As U.S. District Judge Mark Walker noted when he issued a preliminary injunction against those restrictions, they amount to “a naked viewpoint-based regulation on speech,” which is presumptively unconstitutional. “Under our constitutional scheme,” Walker observed, “the ‘remedy’ for repugnant speech ‘is more speech, not enforced silence.'”
DeSantis argued that the IFA aims to prevent a “hostile work environment” created by ideas that might discomfit employees. Walker thought that was a stretch because that term encompasses speech only when it is “both objectively and subjectively offensive and when it is sufficiently severe or pervasive”—requirements that provide “shelter for core protected speech.”
More to the point, conservatives have long criticized discrimination claims based on an allegedly hostile work environment precisely because they can transform otherwise protected speech into illegal “harassment.” Yet DeSantis is not only defending that concept; he is extending it to cover even a single “required activity” that “espouses” ideas he does not like.”