Ken White is a First Amendment litigator and criminal defense attorney at Brown White & Osborn LLP in Los...
While the idea of free speech seems straightforward enough, its execution can be a little messy. Current events especially have underscored the complexity of what is protected by law and what is a punishable offense. Luckily, there are First Amendment lawyers that can answer our questions.
In this episode of Make No Law, the First Amendment Podcast by Popehat.com, host Ken White answers common questions his listeners have about freedom of speech and the First Amendment. He addresses the misleading claim that “hate speech is not free speech,”, explains the case that challenged President Trump’s ability to block people on Twitter, and talks about how anti-SLAPP statutes work. Ken also takes advantage of the opportunity to discuss yelling on the internet and the constitutional right to petition the government.
Make No Law: The First Amendment Podcast
Bonus: The Mailbag Episode
Ken White: Hi. Ken White here, your host on the podcast Make no Law: The First Amendment Podcast from popehat.com and the Legal Talk Network.
This is a different kind of episode, instead of analyzing a Supreme Court case about the First Amendment, we are going to dip into the Make no Law mailbag and answer a few of your questions.
To help me with this, I am very happy to introduce my Executive Producer, Laurence Colletti. After receiving his JD and MBA, Laurence went into consulting and solo practice with an emphasis in general business and commercial real estate. He has a very strong passion for web-based media with a particular interest in podcasting and video. Laurence leverages his legal background against that passion to help bring sophisticated relevant content to Legal Talk Network podcasts all over the country.
You can follow him on Twitter @LaurenceEsq. Welcome to the show Laurence.
Laurence Colletti: Thanks for having me on Ken.
Ken White: I am glad you are here. What kind of listener mail do you have for me today?
Laurence Colletti: Well, it looks like a mixed mailbag there Ken. So, our first one is from Justin. He writes us, I am a new listener and I hope you can talk about hate speech as free speech. I have recently seen friends and acquaintances arguing hate speech should not be protected speech on principle, even though understanding jurisprudence as the opposite.
Are there any principles in which this is possible?
Ken White: Well, it’s a good question Laurence and Justin and it comes up a lot. It comes up a lot because a lot of people have heard this slogan hate speech is not free speech. And the thing about it is it’s more a statement about how people feel the law should be than a statement of the law. In the United States at least it’s not true. A lot of the things that we might call hate speech are free speech.
The first thing you need to know Justin is that there is no clear legal definition of what hate speech is in American law. It’s mostly a philosophical category or a political one. A wide variety of speech might be classified as hate speech by some people. But hate speech itself is not a category outside the First Amendment. There is no general hate speech exception to the First Amendment.
As you have probably heard on our podcast, there are a number of traditional established exceptions to the First Amendment; things like obscenity, threats, incitement, speech that is inherent in a crime, things like that. There is no exception like that for hate speech.
Now, some things that you could call hate speech might fall into a traditional exception to the First Amendment. So for instance, a yelled threat against a minority at say a rally for white supremacist might be a true threat. That is it might be the type of threat where a reasonable person would think it’s an expression of genuine intent to do harm and then it would be outside the First Amendment as a true threat. But it would be that because it satisfies an already established test for true threats, not because of the subject matter, not because it’s bigoted or hateful.
Similarly, at that imagined white nationalist rally, people might shout things that could be incitement outside the First Amendment. Someone could shout let’s go get those guys over there, and if it meets the constitutional test for incitement, if it’s intended to produce and likely to produce imminent lawless action, then it can be punished. But again, it’s punished because it meets a traditional test for something outside the First Amendment, not because it’s hate speech, not because of its subject matter.
So for now hate speech, as we call it, is often free speech and there is no principle under current law under which it can just be banned because it’s hateful, because it’s bigoted.
The Supreme Court is pretty clear, as we have discussed recently, that it’s not creating new categories of exceptions to the First Amendment, and that speech being very offensive is not a reason to ban it, unless it falls into one of those established historical categories.
So that’s the answer Justin.
Laurence Colletti: Hey Ken, I have a quick follow-up on that. I mean how does that relate to hate crimes?
Ken White: That’s a great question. So a lot of people say well, hate crime, isn’t that just a sort of hate speech? A hate crime is a crime where the motivation for it is treated as a sentencing enhancement. So in other words, in many jurisdictions it is a more serious crime to attack somebody based on their race or religion than it is just to attack them and some people argue that that reflects an unconstitutional focus on someone’s beliefs.
The general response to that is that we have always punished motives in punishing crime and that’s not understood to be a violation of freedom of speech or freedom of thought.
So for instance, it’s well-established you can punish people more harshly for attacking police officers than civilians because of a social judgment that’s more dangerous to society.
You punish some types of murder more harshly when it’s lying in wait, when it’s poisoning, when it’s a part of a robbery, all these things where we think it’s more dangerous and therefore we punish it more harshly.
And plenty of laws involve punishing people for bad intent. When you steal something, the government has to prove your intent was to permanently deprive someone of it, and many white-collar crimes involve a requirement of proving bad intent.
So the official legal answer is that the reason is you have to show an underlying crime and the hate part is really a sentencing enhancement. Some people still view that as unconstitutional, but that’s not the prevailing legal view.
Laurence Colletti: All right, so back to the mailbag, here’s a common question that we get Ken asking about the president, President Trump and Twitter. So a few months ago a court ruled that President Trump violated the First Amendment when he blocked certain people on Twitter and then it ordered him subsequently to unblock them. I get a lot of emails about that.
So what was that case about and isn’t Twitter a private platform anyway?
Ken White: Great question. And yes, this has gotten a lot of press and a lot of bad press, in the sense that it’s left people without a clear idea of what’s going on and left people thinking, wait a minute, so does that mean Twitter can’t ban me, does that mean YouTube can’t take down my videos. No, it doesn’t mean that.
So here’s what’s going on in the case. A organization, a free speech organization called the Knight First Amendment Institute at Columbia University sued President Trump and a number of members of the administration and they argued that Trump and his members of the administration were violating the First Amendment by blocking people on Twitter.
Now, for people who don’t use a lot of Twitter, when you are on Twitter, you can follow different people, whether they are nobodies or the President of the United States and you can see what they post there and you can post responses to particular people.
If someone blocks you, that means that you can no longer see what they post and you can no longer respond to them, unless you do some trickery, like coming up with a new account or going through a anonymous web browser or something like that.
The argument from the Knight First Amendment Institute was that President Trump was violating the First Amendment rights of these people, their rights to petition the government and to participate in a public forum.
The response from the administration was no, we are not. Twitter is a private platform. The Constitution, as we know, only applies to state action, to government action. President Trump is merely using a private platform, like anyone else might, and that’s not government action.
The court disagreed and how the court got there is a little complicated but worth knowing about. So the court said that the President, first of all, could mute people. It’s well-established that the government doesn’t have to talk to you. It might have to let you make your case, it might have to listen to you, but it doesn’t have to respond. So government people are free to mute you, so they don’t see what you are saying.
But the court said the President has to unblock people. The President cannot block people on Twitter because that does violate their First Amendment rights. But the ruling was very narrow. The court emphasized this. That Twitter is a private platform and the First Amendment only protects you from government censorship, not private censorship.
So this case isn’t about telling Twitter to do anything. You can’t cite it to get Twitter to unban you. You can’t cite it to demand that YouTube put your videos back. Twitter itself is not what’s called a public forum for First Amendment purposes.
The court emphasized that the key to what it was talking about was government control. The nature of a public forum where you have First Amendment rights is government control of that forum. A privately controlled space is not a public forum.
So you might ask well, how do you get there from here? How do you get to a public forum if we are on Twitter, which is controlled by Twitter, a private company?
Well, it has to do with something called a designated public forum. So a classic public forum, just called a public forum, is a place that historically has always been traditionally open to speech, open to public speech, like the town commons, a public park, the sidewalk, it’s always a public place, it’s always a place where the court is going to treat it as a public forum where the government can’t suppress your speech.
But the government can also do something else. It can create what’s called a designated public forum. It can create a place for free speech, and once it does that, it cannot then start calling out who can or can’t speak there.
What the court said here was that the President and other members of the administration had created a digital designated public forum, a virtual designated public forum, and what that space was, was not all of Twitter, what it was, was the space after each of the President’s tweets, so that when the President tweeted that created a space, a digital space where you could respond to him, where you could do a response to his tweet, where you could argue with the other people responding to him and he created this by participating on Twitter.
And what the court said was that was like a designated public forum, not space, not all of Twitter, just that part that the President was controlling by creating this opportunity to respond to him there.
You know Laurence, the best analogy here to help people understand what’s going on might be when the government hires out a private hall or venue to put on a public event.
So if the government put on an event for the public, not a private event, but an open to the public event at say, it rented out a local stadium or a local VFW hall or a local theater, then that would be a designated public forum. The government would not be able to say okay, at this public event we are only letting in Republicans or we are only letting in Democrats or we are only letting in white people or whatever it is, because they would have created a designated public forum for those purposes for the time they rented the hall and they could not discriminate based on viewpoint, just as they can’t discriminate based on viewpoint by say kicking everyone who is against war or for higher taxes off the sidewalks.
So like that here the President has created a limited digital, really imaginary designated public forum by tweeting, that’s bound up in the opportunity to respond to him. And what the court said is that by tweeting on public issues the President created the space that he cannot then just foreclose to people. And so the court ordered the President and some other members of the administration to stop blocking people on Twitter.
Now, could the President block some people if he went through some sort of due process? Probably so, if someone was just screaming obscenities at him on Twitter, and it’s a little bizarre to think about what kind of due process you would need to block someone on Twitter, it’s a little surreal.
But the bottom line is this. Yes, the President and other public figures are now limited in their ability to absolutely block people on Twitter. That ruling might mean that they also can’t do the equivalent of blocking people on other social media. But this ruling absolutely does not mean that Twitter or Facebook or YouTube or any of these things are now public forums for general purposes or that you or I or anyone else can force them to leave our content up. It’s a very narrow ruling and it only applies to the extent that a government actor is controlling part of the space on social media.
Laurence Colletti: That’s really interesting. The designated public forum part, I am kind of wondering what the limits of that might be. So for example, President Trump is not going to be the American President forever and so at some point when he steps down from the presidency, do those same rules apply to his Twitter platform?
Ken White: No, because then he will no longer be a state actor and he can block people to his heart’s content. It’s only people who are state actors and who are using the social media for official purposes who would be limited.
So there are some politicians out there who have private Twitter accounts that don’t use Twitter or Facebook or spaces like that to make public official announcements; the President does, he even labels them as official announcement sometimes and that was the key here.
But if you have some Senator that posts baby pictures and comments about going for ice cream and things like that on Twitter and nothing else, they are probably not limited in blocking people.
Laurence Colletti: It’s interesting. So, back to the designated public forum there, does this apply to say his house in Mar-a-Lago, I mean, as we know the presidents in modern time they can work remotely from their homes and obviously our President Bush is Crawford, Texas, I think that I — I can’t remember what he called it, but that was the ranch he used to work at some times.
And so, to the degree they are using their own private residence that belongs to them of which they pay taxes for to do government business, does this also apply as a designated public forum? Are they allowed to keep certain political dissidents out?
Ken White: Well, it depends on whether they’re throwing it open as a designated public forum. So, if President Trump started something where every third Sunday Mar-a-Lago would be open to anyone and anyone could come in and shake his hand and talk to him, then that might become a designated public forum, and he would be prohibited when he did that throwing it open to everybody from discriminating against certain people. I don’t think that would ever happen, but that’s the type of thing you would have to do to turn it into a designated public forum.
And that’s what he did on Twitter by engaging in this dialogue, out in the open, where people could respond to him.
Laurence Colletti: Well, that’s well said, Ken. I’m still confused but really interesting.
Ken White: Well, I always hope to make people slightly less confused.
Laurence Colletti: All right, so go to our next question, it’s about SLAPP, S-L-A-P-P, for those less informed about the issue and I would include myself in those ranks, and so, Ken, SLAPP, SLAPP suits, SLAPP motions, anti-SLAPP, what is that all about, what does it have to do with the First Amendment?
Ken White: Well, thanks, Laurence, and that’s a good one, and we do get a lot of mail about that, and we’ve seen a lot of SLAPP motions in the news. For instance, President Trump’s ongoing litigation with adult actress Stormy Daniels. There have been a couple of anti-SLAPP motions and we’ve seen them in other cases involving celebrities.
Laurence, a SLAPP stands for Strategic Lawsuit Against Public Participation, that’s a term someone came up with in the 1980s. The basic idea was this, that bad people, bad actors would file lawsuits not because of their merit but in order to shut people up who are inconvenient.
The classic example was property developers. There was a problem particularly in states like California where a property developer would want to create a new development in some area and the neighbors or environmentalists or someone nearby wouldn’t like it and they would start circulating petitions and having meetings and going to Town councils and things like that and raising a fuss and really speaking out against this development.
Sometimes the developers would sue them. They would claim that they were restraining trade that they were committing defamation, they were interfering with their contracts and all this sort of thing, really for purely First Amendment petitioning the government and other types of behavior.
So, people realized that it’s not just enough to eventually win in a lawsuit like this. If you have to somehow dig into your pocket and find the money to defend one of these lawsuits and eventually win down the road because it’s bogus, you’re never going to engage in that public activity. It’s so expensive, it’s so stressful, it’s ruinous to people’s lives.
And so, what California did was to come up with a special type of law to protect people from these SLAPP suits, these Strategic Lawsuits Against Public Participation. They passed the first what’s called anti-SLAPP statute, and this is what it does.
An anti-SLAPP statute and a number of states have them, gives a special tool for people to use when they’ve been hit with a lawsuit like this. So, when you’re in a civil lawsuit, there are limited opportunities to ask the judge to just dismiss it because it’s bogus and those opportunities are strictly limited in time and number and in the type of arguments you can make.
An anti-SLAPP law gives you a special motion that you can make, a special argument to make, and the argument is, this is a bogus lawsuit that’s being brought against me based on my protected speech.
The benefits of it are these. If you file one and you win you convince the court, yes, this is a bogus lawsuit filed to suppress protected speech, then your attorney’s fees get paid. So, not only do you win and it’s not a Pyrrhic victory but it also deters people from filing bogus suits against speech. It also lets you do things that you normally can’t do in a motion to dismiss.
So, Laurence, let’s say that you sued me tomorrow here in Los Angeles, hopefully you won’t, and you said in your lawsuit, Ken defamed me on his blog post, and I’ve been harmed and really nothing else.
Normally, under the normal rules of Civil Procedure, all I could do at this stage in the case, is attack that taking as true your allegations. I would have to attack it saying, well, he didn’t give enough detail or the things he admitted aren’t tort, that’s not defamation. But I couldn’t get behind it, I couldn’t argue with the premise, I couldn’t even give the judge here, here is the blog post he is talking about. And that makes it very hard to defeat at that early stage. You can just engage in generalities and force me to incur a huge amount of attorney’s fees.
One of the things an anti-SLAPP motion does, is it allows me to get behind the allegations. So what I can do is say, judge, Laurence has sued me for defamation over a blog post. Here is the blog post, look at it, this shows what I actually said, and as you can see, that’s not defamatory because it’s all opinion or something like that.
That’s a common scenario where someone has sued someone, maybe a business has sued over a bad review, and they’ve concealed in the lawsuit that they are really mad about an opinion and in the anti-SLAPP motion, you’re able to point out to the judge here. Here’s the thing he’s complaining about, look at it, it’s only opinion and then you win.
So, that’s why an anti-SLAPP statute is such a good tool and so helpful when people are trying to suppress speech through bogus lawsuits. So, I would say about a fourth, a quarter of the states in the United States have decent anti-SLAPP statutes. Many states don’t have one or have an inferior one that doesn’t reach very far. But in the states that have one, it is much more risky to file a bogus case attacking somebody’s speech and there’s a great chance, if you’re the victim of one of those lawsuits to file this motion and get your attorney’s fees paid and really win; as opposed to suffering through a lawsuit for years and winding up, winning but winning and being broke from the attorney’s fees.
Laurence Colletti: All right, well, thank you for that, Ken.
Ken White: Do we have another one?
Laurence Colletti: We have one more and this is about yelling on the Internet, which as you know, is an issue near and dear to your heart. And it comes to us via Scott, he’s on Twitter, he’s from anywhere USA. And he writes to us and asks, what does it really mean to petition the government for a redress of grievances? Is this only meant to address civil courts, I mean my politicians are all bought and sold and have no interest in listening of my grievances, so I’m left with yelling on the Internet.
Ken White: Now, let’s not put down yelling on the Internet, that’s what a great number of people do it all day. It’s nearly their religion, and you don’t want to be mean to religion on this show.
So, Scott is asking about the constitutional Right to Petition the Government. It’s the last right listed in the First Amendment, the Right to Petition the Government for the Redress of Grievances. And a lot of the time, the things that it protects are also protected by the Free Speech Clause and so you don’t really see nearly as much analysis of it as you do with the Free Speech Clause.
So, if I pick it outside Congress on the sidewalk that will often be treated as a free speech issue and analyze that way. But the Right to Petition the Government means that I have the right to ask any part of the government whether it’s Congress or an agency or the courts or the president, tell them what I want and ask them to do something about it.
That can mean anything from a letter, a petition, a telegram, a poll, even a lawsuit, and what the Right to Petition the Government means is that I cannot be punished for doing that. I cannot be retaliated against for asking the government for something, asking for satisfaction on some issue.
Now, you could be punished if your petition violates something else. If it goes beyond the First Amendment under an established exception. So, if I send Congress a letter demanding that I wanted to be named the Governor of California or else I will go there and shoot somebody, well, that’s a true threat, and so that’s not protected.
But, if I petition Congress and tell them they ought to dissolve because they’re worthless and they don’t get anything done, they can’t retaliate against me for that. That is Classic First Amendment Petitioning.
It’s important to remember, the government isn’t required to listen or respond. They just have to let it happen, they can’t block you from doing it and they can’t punish you for doing it.
So to go back a couple of minutes back to our talking about that Trump matter on Twitter and Trump wasn’t required to respond to all the people who tweeted him, and in fact, he could mute them so he didn’t have to read it. He just couldn’t stop them from doing it or attack them for doing it.
So, the Right to Petition the Government often doubles up with free speech protections, and so, you don’t see much analysis of it. There are a few interesting areas where it pops up and actually protects rights. One is, access to courts so a lot of the time when people pass laws trying to restrict the type of lawsuits that can be filed, putting up higher fees to file a lawsuit without some sort of exception for people who are impoverished or otherwise blocking people from using the courts, that’s a right to petition issue, and so that Clause, the Petition Clause will come into play.
Another interesting area comes into play is in labor law. So, you might know that under the National Labor Relations Act, there’s a number of things that an employer can’t do to attack or deter or get rid of a labor union, okay. But, they can always sue a union if they think the union has violated their rights.
And for a while, unions argued, okay, this lawsuit is a labor law violation because you’re using a lawsuit to try to intimidate us or try to get rid of the union and what the court said is, well, that may be but there’s a constitutional right in play. The employer has a right to petition the government including filing this lawsuit that you think is anti-union.
So, no, the lawsuit is not a violation of labor law, it can’t be because it’s protected by that clause. It’s the same thing of all places in Antitrust Law. So, Antitrust Law prohibits companies from engaging in all sorts of anti-competitive conduct, from all sorts of skullduggery intended to thwart and screw over and harass and deter their competitors from effectively competing.
And for a while, some competitors used to say, hey, you were over there lobbying them this town not to do business with us. You were talking this department of the government trying to get them to investigate us, and that’s unfair, that’s anti-competitive. And what the court said is, no, that’s petitioning.
So, even if it is anti-competitive in a way, even if the purpose and intent behind it is to suppress your competitors in the market because it’s expressed through something that’s protected by the Constitution, through petitioning the government, then it is protected, it is not an antitrust violation. And that’s something called the Noerr-Pennington doctrine.
So where the Petition Clause winds up happening the most, what winds up happening the most influence is anytime someone says that you’re violating some statute by talking to the government on your own behalf and whenever someone tries to make that argument, there may be a petition issue.
Laurence Colletti: So, what you’re telling us, Ken, is that the government is limited when it asks its citizens to get off its lawn.
Ken White: Yeah, very much so. They get to stay on the lawn but the government can shut the windows and turn up the music and not listen to you.
Laurence Colletti: Well, we’re all out of questions here, The Mailbag Episode there, Ken.
Ken White: Well, thanks for joining me on this, Laurence, but since I have you here I’d like to take the opportunity to ask what else is going on with Legal Talk Network.
For the benefit of our listeners, Legal Talk Network is a podcast network. It’s the one that this show runs on and it’s for legal professionals and law students and people interested in law.
It’s got a lot of great shows from well-known organizations, everything from the American Bar Association and the ABA Journal to Law Student Podcasts and a podcast by the very popular legal blog, Above the Law. We have over 20 podcasts on a wide range of things often with very interesting guests like everyone from Marcia Clark, who prosecuted O.J. Simpson to the general counsel from companies like Verizon and Google.
So, Laurence, is there anything new and interesting going on, on Legal Talk Network, right now?
Laurence Colletti: Well, thanks for asking, Ken, and just for our audience out there, I can guarantee that we did not pay Ken any actual money to say that. So — but thanks for asking. We have 29 shows on the network now, just a recent launch with the State Bar of Texas, a brand-new podcast with them hosted by Rocky Dhir, covering issues not just germane to the practice of law in Texas but also to lawyers everywhere.
So, if you haven’t had an opportunity to check out that show, definitely give it a gander there. And then, I’m also proud to announce that ABA Law Student Podcast is coming back from its brief hiatus there.
The brand-new class the students are going to be taking over as host and we’re looking forward to the issues that they cover on their show in this upcoming school year. Also, we have Planet Lex from the Northwestern Pritzker School of Law. They are a media partner of ours and that show is also coming out of its brief hiatus.
Dean Rodriguez, who many of you have heard on the air is stepping down. His tenure as Dean is over and he is going to be traveling around to do some work at Stanford, but if you are a Dean Rodriguez fan out there, he’s going to be coming back to a show of ours. I’m not at liberty to say yet because the paperwork is still drying there and once he comes back, we’ll make a big announcement in Twitter.
And then, I think one last thing, Ken, we’re going to be covering some conferences coming up. We just recently covered the ABA Annual Meeting from Chicago, Illinois, but we’re getting ramped up to cover Clio and for those of you out there, small practitioners and solos, if you’re using Clio, you should definitely check out their conference, but if you can’t make it down there in New Orleans this year, tune in. we’ll be covering that event as best we can.
Ken White: And you go, you travel across the country to a lot of these legal conferences, don’t you, Lawrence?
Lawrence: Yeah, we do, we travel quite a bit actually. This year, especially, we just got back from ILTA. We travel a lot obviously with the American Bar Association, but yeah, if there’s an event that crops up there, we’ll definitely try to get out there and cover it.
Ken White: Yeah, all the conferences I’ve gone to, there’s been an enormous amount of drinking. So, I should probably, actually listen to some of the podcasts to find out what actually happens at them, during the actual legal sessions.
Laurence Colletti: Well, in terms of the drinking, I can neither confirm nor deny.
Ken White: Very good. So, thank you all of you for listening to Make No Law from popehat.com and the Legal Talk Network.
If you liked what you heard today, please remember to rate us in Apple Podcasts and follow us on Twitter or Facebook.
Thanks to our producer, Kate Nutting, our Executive Producer and guest, Laurence Colletti, and last but not least, audio engineer, Adam Lockwood.
We will be back next time with a regular episode. See you then.
Laurence Colletti: I’m still confused but really interesting.
Ken White: Well, I always hope to make people slightly less confused.
Laurence Colletti: All right, so go to our next question. It’s about SLAPP for those less informed about the issue and I would include myself in those ranks, and so, Ken, SLAPP, SLAPP suits, SLAPP motions, anti-SLAPP, what is that all about and what does it have to do with the First Amendment?
Ken White: Well, thanks, Laurence, and that’s a good one and we do get a lot of mail about that.
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