Note: The following text is a transcription of the enrolled original of the Joint Resolution of Congress proposing the Bill of Rights, which is on permanent display in the Rotunda at the National Archives Museum. The spelling and punctuation reflects the original.

On September 25, 1789, the First Congress of the United States proposed 12 amendments to the Constitution. The 1789 Joint Resolution of Congress proposing the amendments is on display in the Rotunda in the National Archives Museum. Ten of the proposed 12 amendments were ratified by three-fourths of the state legislatures on December 15, 1791. The ratified Articles (Articles 312) constitute the first 10 amendments of the Constitution, or the U.S. Bill of Rights. In 1992, 203 years after it was proposed, Article 2 was ratified as the 27th Amendment to the Constitution. Article 1 was never ratified.

Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

Article the first... After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

Article the second... No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

Article the third... Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Article the fourth... A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Article the fifth... No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Article the sixth... The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article the seventh... No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Article the eighth... In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Article the ninth... In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Article the tenth... Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Article the eleventh... The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Article the twelfth... The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

ATTEST,

Frederick Augustus Muhlenberg, Speaker of the House of RepresentativesJohn Adams, Vice-President of the United States, and President of the SenateJohn Beckley, Clerk of the House of Representatives.Sam. A Otis Secretary of the Senate

Amendments 11-27

Note: The following text is a transcription of the first ten amendments to the Constitution in their original form. These amendments were ratified December 15, 1791, and form what is known as the "Bill of Rights."

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Amendments 11-27

Note: The capitalization and punctuation in this version is from the enrolled original of the Joint Resolution of Congress proposing the Bill of Rights, which is on permanent display in the Rotunda of the National Archives Building, Washington, D.C.

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The Bill of Rights: A Transcription | National Archives

The courts have ruled that profanity can be regulated by government under certain circumstances consistent with the First Amendment. Here, a sign on GRTC Transit System Bus 84 in Richmond, Virginia reminds passengers that uttering profanities or obscenities on buses is prohibited conduct. (Photo by Taber Andrew Bain, Creative Commons by 2.0)

Under modern First Amendment jurisprudence profanity cannot categorically be banned but can be regulated in many situations.

Historically, profane words were considered blasphemous and punishable. In 1942, Justice Francis W. Murphy assumed this position in his famous passage from the fighting words decision of Chaplinsky v. New Hampshire: There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or fighting words.

Nearly 30 years later the Supreme Court ruled that an individual could not be convicted under a local disturbing the peace law when he wore a jacket bearing the words Fuck the Draft into a California courthouse. In Cohen v. California (1971), Justice John Marshall Harlan II reasoned that while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one mans vulgarity is anothers lyric. Harlan warned that governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views. Cohen stands for the principle that profane words, in themselves, cannot be banned under the First Amendment.

Profanity can be regulated, however, under certain circumstances consistent with the First Amendment. Profane rants that cross the line into direct face-to-face personal insults or fighting words are not protected by the First Amendment. Similarly, Watts v. United States (1969) established that profanity spoken as part of a true threat does not receive constitutional protection. Likewise, under Bethel School District No. 403 v. Fraser (1986), public school officials can punish students for profane speech. The government can also regulate profanity that qualifies as indecent speech in the broadcast medium, as the Supreme Court explained in Federal Communications Commission v. Pacifica Foundation (1978).

Some states still have laws on the books that criminalize the speaking of profanity. For example, Michigan until December 2015 had a statute that read: Any person who shall use any indecent, immoral, obscene, vulgar or insulting language in the presence or hearing of any woman or child shall be guilty of a misdemeanor. A state appeals court determined the law unconstitutionally vague in the case of a cussing canoeist in People v. Boomer (Mich. App. 2002). The law was repealed in 2015.

North Carolina has a law on its book that prohibits cursing on public highways. The statute provides: If any person shall, on any public road or highway and in the hearing of two or more persons, in a loud and boisterous manner, use indecent or profane language, he shall be guilty of a Class 3 misdemeanor.

In 2016, the 4th U.S. Circuit Court of Appeals upheld a South Carolina law that prohibited profanity near a church or school. In the case, Johnson v. Quattlebaum, the appeals court determined that the law was not too broad or vague, because it only prohibited unprotected fighting words and only applied to speech that was within hearing distance.

David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment entitledFreedom of Speech: Understanding the First Amendment(Now You Know Media, 2018). He also is the author of many First Amendment books, includingThe First Amendment: Freedom of Speech(Thomson Reuters, 2012) andFreedom of Speech: Documents Decoded(ABC-CLIO, 2017).This article was originally published in 2009 and last updated in August 2019.

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Profanity | The First Amendment Encyclopedia

Professor Derrick Bell of the University of Washington Law School shown in his office January 30, 1980. His philosophical writings in the 1970s and early 1980s led to the development of the critical race theory. (AP Photo, used with permission from The Associated Press)

Critical race theory (CRT) is a movement that challenges the ability of conventional legal strategies to deliver social and economic justice and specifically calls for legal approaches that take into consideration race as a nexus of American life.

The movement champions many of the same concerns as the civil rights movement but places those concerns within a broader economic and historical context. It often elevates the equality principles of the Fourteenth Amendment above the liberty principles of the First Amendment.

CRT has its underpinnings in the philosophical writings of Derrick Bell in the 1970s and early 1980s. It was born out of the realization by legal scholars, lawyers, and activists that many of the advances of the civil rights era had stopped and in some circumstances were being reversed.

Early on, legal scholars, including Bell, Alan Freemen, and Richard Delgado, began developing alternative legal theories and frameworks for combating racial inequality. Their approaches combined various other theoretical positions, among them critical legal studies, critical theory, feminist theory, postmodernism, and cultural studies.

Some of the basic tenets of CRT rest on the belief that racism is a fundamental part of American society, not simply an aberration that can be easily corrected by law; that any given culture constructs its own social reality in its own self-interest, and in the United States this means that minorities interests are subservient to the systems self-interest; and that the current system, built by and for white elites, will tolerate and encourage racial progress for minorities only if this promotes the majoritys self-interest.

In 1989 CRT became a unified movement at the first annual Workshop on Critical Race Theory. Other notable scholars from the original movement include Kimberle Crenshaw, Angela Harris, Charles Lawrence, Mari Matsuda, and Patricia Williams. Today CRT has expanded beyond its legal studies foundations into the fields of education, political science, American studies, and ethnic studies. It also has produced several offshoots, including critical white studies, Latino critical race studies, Asian American critical race studies, American Indian critical race studies, and critical queer studies.

CRT scholars have critiqued many of the assumptions that they believe constitute the ideology of the First Amendment. For example, instead of helping to achieve healthy and robust debate, the First Amendment actually serves to preserve the inequities of the status quo; there can be no such thing as an objective or content neutral interpretation in law in general or of the First Amendment in particular; some speech should be viewed in terms of the harm it causes, rather than all speech being valued on the basis of it being speech; and there is no equality in freedom of speech.

In terms of the First Amendment, the primary battlefield for CRT has been hate speech regulation. No one legal definition exists for hate speech, but it generally refers to abusive language specifically attacking a person or persons based on their race, color, religion, ethnic group, gender, or sexual orientation.

Hate speech is currently still protected by the First Amendment. CRT scholars have critiqued this protection and the ideology driving it. Early on, these scholars focused primarily on the question of hate speech codes on college campuses and later moved on to review laws and court opinions concerning the broader societal regulation of hate speech.

In general, these scholars argue that there is no societal value in protecting speech that targets already oppressed groups. They also question the logic of using the First Amendment to protect speech that not only has no social value, but also is socially and psychologically damaging to minority groups.

Perhaps the most well known and certainly the most prolific CRT scholar on hate speech is Richard Delgado, a founding member of the CRT movement who began publishing on hate speech in the early 1980s. On CRTs connection to the First Amendment, Delgado states, Until now, the following argument has been determinative: the First Amendment condemns that; therefore it is wrong. We are raising the possibility that the correct argument may sometimes be: the First Amendment condemns that, therefore the First Amendment (or the way we understand it) is wrong (Delgado 1994: 173). He questions the old axiom that the answer to disfavored speech is more speech, noting that power relationships might make it difficult or impossible for members of socially disempowered groups to respond to certain types of speech.

Following the Supreme Courts ruling in R.A.V. v. St. Paul (1992), which seemingly closed the door on hate speech regulation, Delgado continued to publish extensively on the legality and necessity of hate speech regulation.Relying heavily on social scientific data, Delgado outlined the harm caused by racist speech and developed a tort action for racial insults that he believes could pass First Amendment scrutiny.

Mari Matsuda and Charles Lawrence are two more early CRT proponents of hate speech regulation. Matsuda suggested the creation of a legal doctrine to limit hate speech in cases where the message is one of racial inferiority, the message is directed against a historically oppressed group, and the message is persecutorial, hateful, and degrading.

Lawrence contends that the way in which scholars and jurists enter the hate speech debate makes heroes out of bigots and fans the flames of racial violence (Lawrence 1990: 438). According to him, hate speech violates the Fourteenth Amendment. He has pushed for the establishment of hate speech regulations that will further enhance the role of the First Amendment in society, while still adhering to the principles of the Fourteenth Amendment.

This article was originally published in 2009. Chris Demaske is an associate professor of communication at the University of Washington Tacoma. Her research explores issues of power associated with free speech and free press and has covered topics including hate speech, academic freedom, and Internet pornography.

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Critical Race Theory | The First Amendment Encyclopedia

"The First Amendment protects students, and student associations, from censorship by college administrators," said Mike Dean, Executive Director of LeadMN. "This lawsuit is necessary to protect students' right to speak, and to hold leaders accountable for illegal efforts to silence dissent."

Read LeadMN's complaint filed with the Court here:https://drive.google.com/file/d/1Ys3jDHHPcU7ykefnZVXnZQIwiJbQ-dNd/view?usp=sharing

LeadMN has consistently advocated for the students it represents, regardless of whether its positions were popular with the Board of Trustees. In recent years, students were concerned about the rapidly rising cost of Minnesota State college tuition. LeadMN's student leaders advocated for a tuition freeze with Minnesota's elected leaders and the Legislature responded by freezing college tuition. This defense of students frustrated Trustees and Minnesota State's Chancellor.

In 2021, student representatives voted to approve a budget that would empower LeadMN to better represent and advocate for students. By state law, Minnesota State is obligated to collects the funds LeadMN requires for these efforts. Student representatives voted to set LeadMN's student fee at the same level Trustees had approved three years earlier for the student association representing university students.

Instead of collecting the fees approved through the student-led budget process, Trustees and the Chancellor worked covertly to generate opposition to LeadMN's proposed fee from College administrators, employee unions, and others with no proper role in decisions regarding LeadMN's funding. Trustees conferred outside of public meetings, through text and chat messages, expressing their desire to retaliate in response to LeadMN's views and speech. At the end of this process, Trustees simply blocked LeadMN's proposed fee. Trustees apparently believe they have the right to refuse funding for speech, for any reason, without ever disclosing why.

"It is unconstitutional for government leaders to wield unchecked discretion to stifle dissent or retaliate against speech they don't like," said Sam Diehl, attorney representing LeadMN. "LeadMN merely desires to be part of Minnesota's public discourse, not litigate. However, Trustees' illegal conduct has forced LeadMN to seek relief from the Court."

LeadMN will seek an injunction barring Trustees from violating the First Amendment as soon as the Court's schedule allows the motion to be heard.

About LeadMNLeadMNrepresents the 100,000 students attending Minnesota's public two-year community and technical colleges. The statewide student association is recognized by the Minnesota State system as the official voice of two-year students on Minnesota's 47 community and technical college campuses. Learn more at https://www.leadmn.org/

SOURCE LeadMN

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STUDENTS SUE BOARD OF TRUSTEES OVER FIRST AMENDMENT VIOLATIONS - PR Newswire

In the wake of the 2020election, the machinery of disinformation began spreading the Big Lie that a massive and coordinated electoral fraud campaign led to President Trumps defeat. Some of this disinformation came from his legal team as well as the president himself, and these false claims wereamplifiedand spread by far-right broadcasts on networks such as One America News Network (OAN) and Fox News. While politician Sarah Palin recently failed in a defamation suit against theNew York Times, a company called Dominion Voting Systems Inc. may well succeed in its defamation suit against these two news organizations.

Each news organization trained its sights on Dominion Voting Systems Inc., a manufacturer of voting machines used in 28states. The accusations were so vile and repetitive that Dominion filed defamation suits against Fox, OAN, and attorney Sidney Powell, a member of Trumps legal team, among others. In the suit against Fox, Dominionstatedthat [i]f this case does not rise to the level of defamation by a broadcaster, then nothing does." In its filing on OAN, the complaintargued, OAN helped create and cultivate an alternate reality where up is down, pigs have wings, and Dominion engaged in a colossal fraud to steal the presidency from Donald Trump by rigging the vote.

After the 2020election, Powell alleged that Dominions voting machines were unreliable, hacked, or flipped votes. When she tried to get the Dominions defamation case dismissed, the district court ruled against her, stating, Powell contends that no reasonable person could conclude that her statements were statements of fact because they concern the 2020presidential election, which was both bitter and controversial. . . . It is true that courts recognize the value in some level of imaginative expression or rhetorical hyperbole in our public debate. But it is simply not the law that provably false statements cannot be actionable if made in the context of an election.

These suits test the reach of the First Amendment and the extent to which lies are considered protected speech. The Supreme Court has determined that published lies or inaccuracies are entitled to at least some First Amendment protection in many instances as the price of facilitating political debate and deliberation in our democracy. The Court also decided, however, that when actual malice is present, that protective coverage no longer extends. Is the Big Lie protected by the First Amendment? Or do the actions of the press and the presidents lawyers meet the actual malice standard?

The outcome of these suits may signal whether the Supreme Court is ready to overturn precedent and put tighter reins on speech or if it will offer a new set of guidelines to determine when election lies are unconstitutional and punishable by law.

Because some of Dominions defamation suits are against the press, they raise the issue of whether the actual malice standard from the landmark 1964case ofNew York Times v. Sullivanshould remain in place.

Sullivanwas a case where a public safety commissioner in Alabama, L.B. Sullivan, took offense to an ad in theNew York Timesthat was raising money for Martin Luther King Jr. and other civil rights leaders. The ad contained some factual errors that Sullivan claimed defamed him. He sued and won a $500,000judgment against theNew York Timesin lower courts. The Supreme Courtreversedthe decision, calling it constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct.

This case created the actual malice standard, whichstates, [t]he constitutional guarantees require . . . a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malicethat is, with knowledge that it was false or with reckless disregard of whether it was false or not. This was adeparturefrom the common law tradition, which had previously provided defamed individuals a greater ability to sue the press and win.

The rationale for the Courts decision in support of broader protection for freedom of the press including the freedom to publish errors and inaccuracies was that it consider[ed] this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.Sullivanprovides protection so that the press need not censor its critiques of elected and appointed government officials.

ThoughSullivanensured that the press could criticize those in political power, the Supreme Courtexpandedthe actual malice standard topublic figuresas well. While determining who qualifies as a public official is reasonably straightforward, public figure is inherently subjective and depends on how well-known a particular plaintiff is.

The Supreme Court did make clear that private individuals (non-public figures and non-government officials) were not covered by the actual malice standard in part because it was so much harder for a private, non-famous individual to get their good name back after it was defamed. As the Supreme Court noted inGertz v. Robert Welch, Inc., private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery. Thus, the Court left the rules for defamation of private individuals up to the 50states. And it made clear that someone experiencing 15minutes of fame did not mean that they were a public figure. As the Supreme Court explains inWolston v. Readers Digest, [a] private individual is not automatically transformed into a public figure just by becoming involved in or associated with a matter that attracts public attention.

There were criticisms of the actual malice standard from the beginning. In theirconcurrenceinSullivan, Justices Hugo Black and William Douglas warned that malice was an elusive, abstract concept, hard to prove and hard to disprove. The requirement that malice be proved provides at best an evanescent protection for the right to critically discuss public affairs and certainly does not measure up to the sturdy safeguard embodied in the First Amendment.

In the past few years, Justices Clarence Thomas and Neil Gorsuch have raised questions about whetherSullivans actual malice standard should persist in cases where public figures have their reputations tarnished by lies in the press. Thomas raised some eyebrows when he wrote a concurring opinion from a denial of certiorari inMcKee v. Cosby, a case in which a woman who accused entertainer Bill Cosby of sexual assault was deemed to be a limited public figure and consequently lost her defamation case because she could not satisfy the high actual malice standard. He went on to argue that New York Times [v. Sullivan] and the Courts decisions extending it were policy-driven decisions masquerading as constitutional law.

In 2021, Gorsuch joined Thomas criticism inBerisha v. Lawson, in which the Supreme Court declined to hear a case where the plaintiff sued an author for defamation based on his characterization in the authors book. Gorsuch wonders aloud, [a]sSullivansactual malice standard has come to apply in our new world, its hard not to ask whether it now even cut[s] against the very values underlying the decision.

Dominion is suing OAN and Fox News in separatesuitsfor repeatedly airing claims like the ones articulated above by Ms. Powell. Dominionssuit against OANis particularly stark in its allegations:

To capitalize on the interest its target audience had in the false Dominion narrative, OAN effectively deputized its Chief White House Correspondent, Chanel Rion, as an in-house spokesperson for all Dominion-related content. After priming its viewers with a steady diet of post-election programming falsely claiming Dominion rigged the 2020election, OAN and Rion began producing an entire line of programming exclusively devoted to defaming Dominion, descriptively named Dominion-izing the Vote, which branded OANs disinformation and defamation campaign against Dominion into a single catchy phrase that is now synonymous with fraudulently flipping votes.

The complaint alsoallegesthat in February 2021, months after the 2020election, OAN enlisted MyPillow CEO Mike Lindell to broadcast a series of multi-hour-long documentaries spreading disinformation about Dominion. Lindell falsely claimed that Dominion was behind the biggest cyber-attack in history, and that Lindell had absolute proof. Thus, OAN was tainting Dominions brand through its constant leveling of conspiracy theories against the company.

Dominion argued in its suit that OAN met the high burden of showing actual malice, statingthat OANs defamatory statements were accompanied with malice, wantonness, and a conscious desire to cause injury. OANs efforts to dismiss this suit are stillpending.

While Foxs actions were slightly less egregious than OANs behavior, Foxs considerably larger audience conceivably did more damage to Dominions reputation. As Dominionallegedin its complaint for defamation, [t]hese lies transformed Dominion into a household name. As a result of Foxs orchestrated defamatory campaign, Dominions employees, from its software engineers to its founder and chief executive officer, have been repeatedly harassed. Some have even received death threats. And of course, Dominions business has suffered enormous and irreparable economic harm.

Dominion tried to get Fox to correct its erroneous statements in real time by sending written rebuttals to false claims made by the network and its on-air personalities. As Dominionallegedin its complaint: even after Fox was put on specific written notice of the facts, it stuck to the inherently improbable and demonstrably false preconceived narrative and continued broadcasting the lies of facially unreliable sourceswhich were embraced by Foxs own on-air personalitiesbecause the lies were good for Foxs business. While Fox corrected the record with regards toSmartmatic, a different voting machine company, Fox did not relent on the matter of Dominion voting machines.

When the issue reached the courts, a Delaware state judge in theDominion v. Foxcase rejected all of Foxs First Amendment arguments and denied Foxs motion to dismiss the case. Fox attempted to argue that, as press, it was immunized from liability for defamation if what they were reporting was newsworthy. But this did not convince the judge, whoconcluded, [t]he United States Supreme Court has attempted to strike a balance between First Amendment freedoms and viable claims for defamation [and] declined to endorse per se protected categories like newsworthiness.

The courtnoted[t]he Complaint supports the reasonable inference that Fox either (i) knew its statements about Dominions role in election fraud were false or (ii) had a high degree of awareness that the statements were false. Moreover, the court found that the Complaint alleges facts that Fox made the challenged statements with knowledge of their falsity or with reckless disregard of their truth. The courtconcludedthat it could infer that Fox intended to avoid the truth.

Dominions billion dollar suits againstFoxand OAN raise a host of thorny questions: Should suits against the press for defamation be easier to win? Should statements about public figures and public officials be held to the same standard as statements about private citizens? Should a corporation like Dominion be deemed a public figure for libel purposes?

These questions seem destined to reach the Supreme Court in one form or another, as demonstrated in the recentlydismissedlibel suit brought by former Alaska governor and vice presidential candidate Sarah Palin against theNew York Times.

On the one hand, the ability of the free press to report on ongoing events will involve innocent errors. On the other, defamatory misstatements about persons or companies can do far more financial and reputational damage today than they could in 1964given the reach of cable news and internet audiences. The series of outrageous claims about Dominions voting machines could well make new case law and provide the Supreme Court a chance to articulate which types of lies about elections areactionable.

Dominions suits point to the direct harm to democracy that disinformation can cause. AsNPRreported, Dominions court filing alleges that Fox recklessly disregarded the truth and that some of its viewers believed the channels narrative with such fervor that they took the fight from social media to the United States Capitol and at rallies across the country to #StopTheSteal, inflicting violence, terror, and death along the way. And moreover, [t]he lies did not simply harm Dominion, the companys lawsuit says. They harmed democracy. They harmed the idea of credible elections. They harmed a once-unshakeable faith in democratic and peaceful transfers of power. In other words, the small-d democratic stakes could hardly be higher in these defamation cases about a voting machine company in the 2020election.

Link:

Dominion Voting's Libel Suits, the First Amendment, and Actual Malice - brennancenter.org

Palin is expected to continue her fight, but given that the judge and jury sided with The Times, her appeal has been characterized as an uphill battle. What different strategies and/or new evidence would her legal team need to introduce to succeed in the court of appeals?

Ironically, a loss may have been exactly what Palin was going for. The judge and jury almost certainly got the result correct under the protective standard of Sullivan, which protects reporting about public figures unless journalists are reckless or intentionally wrong in their reporting. But judges and scholars are increasingly questioning whether Sullivans standard is too protective, and Palin could not have appealed a victory. She needed a loss in order to appeal up the chain of the courts, with hope of getting to the Supreme Court.

If she were to make it to the Supreme Court, how would you characterize Palins chances?

At least two of the current justices, Clarence Thomas and Neil Gorsuch, have indicated that they believe Sullivan should be overturned. Their point is that with the expansion of modern news, Sullivan is too protective of falsehood. I am not sure, however, where Palin could find three more votes to reverse Sullivan. One vulnerable aspect of the law is that the protective standard applies to reporting about any public figure, even those who do not intentionally thrust themselves into the public eye. (Justice Elena Kagan even made such a point in a law review article before she was on the court.) That is not Palin. I think the chance of overturning, or limiting Sullivan is higher in a case in which the plaintiff is more of an I-just-got-caught-up-in-a-public-controversy kind of person.

Some observers and commentators have expressed concern that any Supreme Court change to the Sullivan precedent would have significant detrimental effects on press freedoms. How would you characterize those prospective changes and their respective impact?

Compared to other modern democracies, our standards for libel are much more protective of journalists. There is little doubt that when Sullivan was decided, it was a crucial decision that led to a robust, vibrant journalistic culture. One prominent First Amendment scholar said at the time that Sullivan was occasion for dancing in the streets. But also true is that the Sullivan standard does not deter carelessnessonly recklessness or worseon the part of journalists. When I teach Sullivan, my students and I discuss how a legal rule that under-deters carelessness will increase the amount of carelessness in the system. And more carelessness leads to more falsehoods. In the end, it comes down to a choice between (1) a legal framework that protects journalists at the cost of more falsehoods or (2) a framework that restricts journalists but has fewer falsehoods.

Critics of the outcome have cited that there were no repercussions for James Bennet, who wrongly accused Palin of inciting the murders of six people, and his false accusation was then widely distributed through the papers multiple channels. Why should Sullivan allow this to happen without any penalties for the author? Are the protections for journalists afforded by Sullivan too broad and do they need to be revised?I am of the mind that a good amount of our free speech jurisprudence could use some updating. We in the United States have more protections of speech than any other country at any time in history. I would, for example, rethink the level of constitutional protections provided for corporate speakers, for campaign expenditures, and for violent or injurious speech, among other things. And I do think that reasonable people can disagree about the proper level of protection afforded journalists, especially since journalists now include everyone from reporters at The New York Times to social media influencers on TikTok. We live in a world created in part by Sullivan: a vibrant, pulsing world of news and commentary bombarding us constantlymuch of which contains falsehoods.

Phil Gloudemans | University Communications | March 2022

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Palin v. the First Amendment: what next? - Boston College