March 15, 2023

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This is the Daily Media Update published by the Institute for Free Speech. For press inquiries, please contact [email protected].

In the News

Reason (Volokh Conspiracy): Beauty Pageants Have First Amendment Right to Limit Contestants to "Natural Born Females": No Rehearing En Banc

By Eugene Volokh

.....The order, which appears not to be accompanied by any dissents from denial of rehearing en banc (or concurrences in the denial) is here...

Here's the key part of the Nov. 2 panel majority opinion, in Green v. Miss United States of America LLC (Judge Lawrence VanDyke, joined by Judge Carlos Bea, with Judge Susan Graber dissenting):

"Anita Green, who self-identifies as 'an openly transgender female,' sued the Miss United States of America pageant, alleging that the Pageant's 'natural born female' eligibility requirement violates the Oregon Public Accommodations Act ('OPAA'). The district court granted the Pageant's motion for summary judgment, holding that the First Amendment protects the Pageant's expressive association rights to exclude a person who would impact the group's ability to express its views.

We conclude that the district court was correct to grant the Pageant's motion for summary judgment, but reach this conclusion not under the First Amendment's protection of freedom of association but rather under the First Amendment's protection against compelled speech…."

Note that my UCLA Amicus Brief Clinic students and I filed a brief in this case on behalf of the Libertarian Law Council and the Institute for Free Speech.

Biden Administration

Washington Times: Biden administration tries to criminalize speech

By Jonathon Paul Hauenschild

.....The Senate Judiciary Committee recently grilled Attorney General Merrick Garland over a wide range of issues, including the FBI’s targeting of traditional Catholics and the treatment of pro-life activists, while ignoring violence against crisis pregnancy centers.

Likewise, the House Committee on the Weaponization of the Federal Government heard testimony from journalists Matt Taibbi and Michael Shellenberger. Evident from the questioning of congressional Republicans is that the Department of Justice and the intelligence agencies have invaded territory protected by the First Amendment.

This belief is not far from the truth, as the Biden administration has tried to broadly reframe certain political speech as inciting violence or encouraging domestic extremism since 2022, at the latest.

Free Expression

Washington Free Beacon: Student Activists Target Stanford Law School Dean in Revolt Over Her Apology

By Aaron Sibarium

.....Hundreds of Stanford student activists on Monday lined the hallways to protest the law school’s dean, Jenny Martinez, for apologizing to Fifth Circuit appellate judge Kyle Duncan, whom the activists shouted down last week.

The embattled dean arrived to the classroom where she teaches constitutional law to find a whiteboard covered inch to inch in fliers attacking Duncan and defending those who disrupted him, according to photos of the room and multiple eyewitness accounts. The fliers parroted the argument, made by student activists, that the heckler’s veto is a form of free speech...

The protest followed a flurry of open letters from student activists, who spent much of the weekend berating Martinez after she and Stanford University president Marc Tessier-Lavigne issued a formal apology to Duncan condemning the students who disrupted his talk and the administrators who stood by silently and watched them do so...

The majority of Martinez’s class—approximately 50 students out of the 60 enrolled—participated in the protest themselves, two students in the class said. The few who didn’t join the protesters received the same stare down as their professor as they hurried through the makeshift walk of shame.

Popehat Report: Hating Everyone Everywhere All At Once At Stanford

By Ken White

.....Everyone in this story makes me angry.

Judge Duncan is...also part of a pathetic culture of conservative victimology and free-speech hucksterism. The American right is trumpeting a purported concern for freedom of speech, based mostly on cries of “cancel culture” and gripes about how other people are using their free speech and association, while campaigning vigorously to use government force to limit speech they don’t like. The Federalist Society is complicit, off the bench and on it...

Associate Dean Steinbach and her ilk are campaigning to undermine free speech legal and social norms, striving to make someone’s subjective reaction to speech an unquestionable justification for suppressing it. Academic freedom is under state assault and she’s busily undermining it and telling students they have a right to shut people up...

And students. Students think that they should be able to dictate which speakers their peers invite, who can speak, what they can say, and who can listen. They’re not satisfied with the most free-speech-exceptionalist system in the world that lets them respond to speech by assembling, protesting, and reviling people of authority like Judge Duncan. They demand the right not just to speak, but to control the speech of others. That’s straight-up thuggish, an aspiration born of a fascist soul. These are law students. They are training to express themselves for a living. If their view is “we can’t respond to awful speech, we can only stop it from happening,” then they’re going to be terrible lawyers.

Law students also persist in imagining that they invented the world. They believe they discovered that free speech laws and norms protect awful speech and awful people.

Candidates and Campaigns

New York Times: In Wisconsin, Liberals Barrage Conservative Court Candidate With Attack Ads

By Reid J. Epstein

.....But Justice Kelly, who sat on the [Wisconsin Supreme Court] before losing re-election in 2020, appears unfazed. He told supporters on Sunday in northwest Wisconsin that help was on the way from unidentified outside groups in his race against Janet Protasiewicz, a liberal Milwaukee County judge opposing him in the April 4 election.

“Because there are nationwide organizations that care about the rule of law, about the constitutional order, and they are spending to promote our campaign, you should start seeing the effects of them this coming week,” Justice Kelly told a gathering of the Northland Freedom Alliance in Webster, Wis. “Right now, it’s kind of wall-to-wall Janet. And I object to that. There, I’m told the cavalry is on the way. And so hopefully, they’ll have some good and smart and true ads.” …

The court election is formally a nonpartisan contest, but there is little mystery about where the candidates stand politically. The bulk of Judge Protasiewicz’s campaign money has come from the Democratic Party of Wisconsin, which can transfer unlimited amounts under state law...

In the last three weeks, the Protasiewicz campaign has spent $9.1 million on television advertising, and outside groups supporting her have spent $2.03 million, according to AdImpact, a media-tracking firm.

The imbalance on Wisconsin’s television airwaves is even greater than the spending figures suggest.

Because the Protasiewicz campaign is able to buy television advertising at about one-third the rate of independent expenditure groups, she alone has broadcast more than three times as many TV advertisements in Wisconsin as the pro-Kelly groups combined, according to AdImpact’s data.

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