Tag: First Amendment

An Antidote to Conservative Gloom on Campus Free Speech


FIRE President and CEO Greg Lukianoff is in National Review this week with a rather simple message for conservatives: There are actually a lot of things we can feel good about regarding the state of free expression on college campuses today.

The welfare of campus discourse is not perfect, of course, and its easy to sense that the issue is only getting worse–especially as free speech on campus gets no shortage of media exposure. The playing field has also changed in other fundamental ways. College students today are more aligned against free speech than they were ten or even five years ago, for reasons Greg and Jonathan Haidt expound on at length in their bestselling book The Coddling of the American Mind.


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Andrew Doyle is the man behind satirical Twitter account Titania McGrath – a radical intersectionalist, feminist, and slam poet, who is constantly telling people how oppressed she is – and author of Woke: A Guide to Social Justice. He and Bridget have a fascinating and important conversation about the dangers of taking art and comedy literally, […]

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The Absolute Right to Choose Your Own Pronouns

I believe both in the right of individuals to express their personal pronoun preferences and in the right of other individuals to ignore them. It’s the same right in each case: the right of freedom of expression and it’s a right I hold dear. I understand that some folks in the trans movement would like to tell other people which words they can and can’t use. I don’t approve of that, because I really do believe in freedom of expression: the same freedom that lets a guy put on a dress and say “I’m a woman” lets me chuckle and say, “yeah, no. But let’s agree to disagree.” Live and let live. I know there are some men who like to dress up like women; there always have been. And I know there are people who are deeply confused about who and what they are. That’s too bad, but hardly new: troubled people have always been with us. What is new, and what I can’t abide, is this insistence that I go along with their fantasy. Everywhere else we disagree in this wonderful country, we stop short of telling other people to use our words, to profess our beliefs. We let people think differently, and we tolerate their expression of their ideas, of their differences, even if we find them odd, off-putting, or offensive. I believe that people are born either male or female and stay that way their whole lives, regardless of what they wear or what treatments they get. I think the trans movement is a silly often destructive fad and a way for people to avoid the stress of living up to their sex in a confused and sometimes challenging cultural climate. But, as I said, I respect the right, if not necessarily the choices, of people to express themselves as they wish, while retaining my own right to choose the pronouns I’ll use when referring to them. We don’t have to agree. We can just tolerate each other. I’m okay with that.

Nick Sandmann Lawsuit against WAPO for $250 Million and Clarence Thomas’ Solo Opinion


Two stories have intersected making for intriguing discussions about the First Amendment as well as the laws against defamation.

The first story is the defamation lawsuit of Nick Sandmann against the Washington Post for $250 million. WaPo’s coverage of the confrontation between Sandman and a Native American man exploded into a national story and was fed by the inflammatory and reckless coverage by WaPo and other media outlets. Sandmann’s lawyer, Lin Wood, said, “Nick Sandmann was perceived as an easy target. He is 16. Inexcusable on every level.”

I suspect that the attorney will also include information on the threats, intimidation, and harassment that Sandmann went through, which included his family leaving their home for security reasons, explaining how the extreme coverage endangered all those involved. The lawsuit claims that. . .

. . . the Washington Post ‘ignored the truth and falsely accused Nicholas of, among other things, ‘accost[ing]’ Phillips by ‘suddenly swarm[ing]’ him in a ‘threaten[ing]’ and ‘physically intimidat[ing]’ manner.’

The timing of this story is fascinating, given the solo opinion that Supreme Court Justice Clarence Thomas issued on February 19:

Thomas said the court made a mistake in 1964 when it set a high barrier for public officials to sue the press for defaming them with a false story. That was later expanded to include famous individuals and people who inject themselves into big news stories.

In essence, public officials must show the publishers knew the report was false or otherwise displayed a “reckless disregard” for the truth.

Thomas argued that the framers of the Constitution did not intend such protection when they adopted the 1st Amendment, which forbids ‘abridging the freedom of speech or of the press.’

Justice Thomas clearly didn’t have support on the record from his colleagues.

Still, we can wonder whether his statement will influence the conduct of the Sandmann case, given the freedoms that the press has abused in recent years, I appreciate Lin Wood’s understatement about the lawsuit:

All members of the mainstream and social media mob of bullies who recklessly and viciously attacked Nick would be well-served to read it carefully.

I hope Sandmann is successful.

It’s time to hold the reckless press accountable.

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Daniel DiSalvo joins City Journal editor Brian Anderson to discuss the impact of last year’s Supreme Court decision in Janus v. ASFCME, in which the Court ruled that public-sector unions’ mandatory “agency fees” were unconstitutional under the First Amendment. Unions provide an important source of financial support for politicians—primarily Democrats—around the country. In a new report for the Manhattan Institute, DiSalvo finds that […]

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Formidable to Tyrants Only


The title comes from the Declaration of Independence. Third on the list of grievances, Ol’ Tommy J. has this to say:

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

We are represented in the legislature albeit (as I’ve been known to argue) poorly. And although we’re taxed at levels that’d make our forefathers choke we can’t be said to be taxed without representation. This particular situation isn’t one I’m arguing today. I’m considering what else might fall in the category “a right inestimable to them and formidable to tyrants only.”

Rights Such as the Freedom of Speech

It used to be that we generally agreed on free speech; that you could say what you wanted while broadly acknowledging some exceptions. The arguments were all about where the lines ought to be drawn. Giving secrets to enemies in wartime is obviously bad, but maybe the current classification system is too onerous. At what point does a threatening statement transition from being generally free speech to ‘fighting words’? Is the best way to tell what’s pornography just to show it to a supreme court judge and ask him?

These days though we’ve got people who are demanding a broad new exception to the principle of free speech. Anything that gives offense in one of several categories, which categories to be determined at a later date. Never mind the blatant disregard for causality that prosecuting ex post facto crimes implies the question of offense is inherently nebulous. On top of all that the intersectional determination of who exactly is allowed to take offense contradicts one of the self-evident truths stated earlier in the declaration, to wit that all men are created equal. As an aside you’ll note that Thomas Jefferson himself is guilty of a hate crime for failing to include other genders in that statement. Dig him up and hang him!

The Difference Between Law and Custom

You may take it as read that I’m against any sort of codification of hate speech into law. The problem, however, is that any such codification is currently redundant. The Twitter mob will take your job, and friends and relatives will no longer speak to you because of your wrongthink. At that point, custom has decreed you anathema and anything the law might do is extra. The consequence, therefore, is that any solution, if such a problem will admit to a solution, must not merely address questions of law but also be resilient to the Twitter mob.

Indeed, the biggest social media bullies of them all are the corporations behind it; Twitter and Facebook taking it upon themselves to gently correct the misguided thoughts of people who had the temerity to use their programs. Who would have thought the people who built the biggest gossip networks in the world would also want to put themselves up as the world’s biggest moral scolds? But a moment’s consideration indicates the futility of using law to constrain the corporations. Supposing it’s a law that has any bite at all on them, any law that would constrain them would also constrain anyone else from any number of harmless activities.

Let me explain. Google street view takes a picture of your house. Legal. They take seven million pictures of every house from here to Tipperary (and it’s a long way to Tipperary) and put it all together so that anyone in the world can go traipsing down your street and see anything that’s publicly visible. That might be an invasion of privacy. Supposing that passed a law making it illegal to take photographs of other people’s houses. You can bet your britches that Google will manage to deal with it and ordinary dorks who just happen to take a picture which partly shows someone’s house in the background will be guilty of trespassing that law.

The Tyranny Inherent in Censorship

Let’s swing us back to the question of free speech. The First Amendment only constrains the government; it doesn’t apply to private entities. There’s a problem with that line of thinking though; it gets things backward. The First Amendment isn’t correct because it’s in the Constitution; it’s in the Constitution because it’s correct. It’s one of those unalienable rights Jefferson mentioned. (You’ll note that his famous list was only three “among these rights”.)

Whether or not we have a legal duty to respect the free speech we have a moral obligation to respect it in others. That doesn’t mean you have to let every jackanape out there talk on their cell phone in a movie theater, but it does require a certain respect for other’s political opinions, however asinine they might be. In the past the ACLU had this correct; you have to let the Nazis march.

Today the argument is that saying these things can be painful. And to be honest it is; words can be more painful than physical injury. The thing is, generally, the words that really hurt aren’t the political opinions. It’s not people who think you’re wrong; it’s people who betray you in personal things. It’s uncomfortable having people disagree with you but anyone who’s grown up has learned to deal with that pain.

The people who shun you for having the wrong opinions, the corporations that set themselves up as the moral arbiters, the college students who riot rather than have someone they dislike speak, what exactly are they afraid of? The answer is that it’s not a question of fear, it’s a question of power. “Formidable to tyrants only.” Maybe these people don’t think they’re setting themselves up as tyrants, but that’s the inevitable result. You can’t assume the authority to determine what people are and aren’t allowed to say without necessarily making yourself a tyrant.

What, Therefore, Is to be Done?

There’s a tendency in this kind of article to describe a problem and end it by prescribing your miracle tonic to solve that problem. I don’t know that I believe that this sort of problem actually has a solution. Nevertheless, here are a couple ways I’ve thought about to address it:

We can use the power of the government to break up Google, we need riot police to stop speakers from being intimidated out of college events, we need laws to regulate what people can say on Twitter… wait, wasn’t that what we were fighting against? I’m very wary about using government power to solve any problem because of all the ways it can go wrong. Not the least of which is setting up a tyranny worse than the one we’re trying to escape. Let’s see what other options are out there.

We can wait for the culture to change. This isn’t as stupid as it sounds; Mankind has the natural disposition to assume that everything will stay the same forever (when it isn’t actively getting worse). That’s not necessarily true. Things change; perhaps enough NPC types will find themselves disavowed by their comrades that the left will do some serious soul-searching and move away from that strategy. Perhaps we’ll devolve into a bloody civil war and questions about who controls Google searches will seem charmingly quaint. Perhaps companies will learn that firing people at the first sign of Twitter outrage won’t save them. Perhaps we have far less control over events than we think we do, and we should avoid any compromises that lead to deleterious side effects without affecting the root problem.

We can outcompete them. Build a better Facebook that won’t go all book-burny. You know, because we can totally trust our institutions to maintain the noble ideals under which they were founded. I’m also not that confident that we could set up a better search algorithm than Google.

We can go around them entirely. Imagine a decentralized store of information; something that everyone can read and write to, but which no one can alter. No chance to ignore stories that someone thinks important, no chance of shutting anyone up that disagrees with you. On the plus side, that means that no one can censor it and that everyone has an equal chance at the information. On the minus side, no one can censor it and everyone has equal access to the information. Remember the word ‘censor’ comes from the Roman political office with that name, dedicated to protecting public morality. If no one has the ability to remove information then people can write all the worst dregs of the internet to it and there’s nothing we could do.

Right now I’m on the ‘wait until the world turns’ plan, with updates as events warrant. I don’t think that it’s particularly likely that today’s censors, now that they’ve snorted the joys of tyranny, are likely to wean themselves off of it willingly. I’ll keep on trying to change the world in my small way, mindful of the fact that the fate of the world is not mine to decide. If you’ve got any better ideas I’d love to hear ’em.

FIRE report: 9 out of 10 Universities (Still) Restrict Free Speech


For more than a decade now, the Foundation for Individual Rights in Education (FIRE) has published its Spotlight on Speech Codes report, an annual survey of speech policies at hundreds of universities across the United States. Yesterday, we unveiled our latest report.

I’ll start with the good news. First, the percentage of universities receiving FIRE’s worst, “red-light” rating, has fallen to its lowest ever, at 28.5%. Compare this to our first report, when three quarters of all universities bore this distinction. Second, the number of schools receiving our “green-light” rating, meaning that their policies, as written, are fully consistent with the First Amendment’s requirements. This year, 42 such institutions can claim the honor.

Now for the less-good news: A decisive majority of institutions (61%) receive FIRE’s “yellow-light” rating. This is better than a red-light rating in that the policies on paper are not plainly unconstitutional as written. However, the rating means that their policies as written are too vague to pass First Amendment muster, and could easily be abused to unconstitutional ends. (Both public and private universities are included in the report; while private institutions are not bound by the First Amendment, they often make robust free speech promises, and we assess them accordingly.) This means that, even with the significant policy improvements many universities have made in recent years, 90% of the schools in the survey still fail to live up to their free speech obligations in their policies.

There’s much more to take away from FIRE’s report; our press release announcing the report is here, and you can view the full copy of the report here.

Professor Files Lawsuit Against University Requirement to Use Transgender Labels


Professor Nicholas Meriwether has finally had enough.

In June 2018, a warning was put in this professor’s personnel file because he refused to refer to a transgender student, who was biologically male and called himself Alena Breuning, with female personal pronouns.

But Ms. Bruening demanded to be referred to as “Miss” and “she” in accordance with the student’s gender identity, filing a complaint against her professor earlier this year for not accommodating her wishes.

Shawnee State University, a public school in Ohio, requires its staff to refer to a transgender student by his or her preferred gender pronouns.

In spite of the Shawnee State University’s policy, Professor Meriwether, who is an evangelical Christian, filed a lawsuit with the help of the Alliance Defending Freedom. They are arguing that his First Amendment rights are being violated. The school and Prof. Meriwether have tried to negotiate a resolution to this issue, but have fallen short of working it out.

In protesting the professor’s lawsuit, another publication, Think Progress, discounts his legal team’s claims as an effort to “discredit the legitimacy of transgender identities”:

They brazenly assert that ‘the concept of gender identity is entirely subjective and fluid,’ that ‘the number of potential gender identities is infinite (with over one hundred different options currently available),’ and that ‘the number of potential pronouns has likewise multiplied in recent years.’ It further claims that “some sources say” a person’s gender identity can be ‘affected by mood swings’ or ‘change depending on which friend you’re with.’

The publication describes Professor Meriwether’s communication style with students:

Meriwether, as it turns out, is very particular about how he communicates with students in his class. Deploying a formal Socratic method, Meriwether always addresses students using formal titles (Mr./Ms./Mrs./Miss) and ‘sir’ or ‘ma’am.’ He believes this is an ‘important pedagogical tool’ to foster ‘an atmosphere of seriousness and mutual respect.’

We have to find a way to encourage and support not only professors in universities, but all conservatives who find these demands unconstitutional and oppressive. Pushing back against these obscene demands is the only way to stop this country from being swallowed up by the Progressive agenda.

In the close of their article, Think Progress made the following comment:

ADF appears to hope that Meriwether’s case will be a vehicle for them to impose a double standard that justifies discrimination against transgender people that wouldn’t otherwise be tolerated against other groups. ADF attorney Tyson Langhofer said in a statement, ‘This isn’t just about a pronoun; this is about endorsing an ideology.’

That is false. It’s about respecting people for who they are.

It’s too bad that respect doesn’t go both ways.

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Welcome to the Harvard Lunch Club Political Podcast for August 28, 2018 it is the End of Trump edition of the show, number 189!!! This week is a special show because our guest is my esteemed editor from the Boston Globe, the editorial page editor Marjorie Pritchard. As noted by NPR host David Greene: An […]

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David French of National Review and Greg Corombos of Radio America take on three heavy topics, starting with Colorado baker Jack Phillips now having a powerful case of discrimination against the Colorado Civil Rights Commission after the commission ruled Phillips had violated the rights of a transgender lawyer for not customizing a cake for their […]

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Richard Epstein on Classical Liberalism, the Administrative State, Free Speech, and Silicon Valley Regulation


For this week’s Big Ideas with Ben Weingarten podcast, I had legendary classical liberal legal theorist and longtime professor at University of Chicago Law School and now at NYU Law — and prodigious Ricochet podcaster Professor Richard Epstein on the podcast to discuss among other things:

  • The role that Professor Epstein’s famous book, “Takings” played in Justice Clarence Thomas’ confirmation hearing — and then-Senator Joe Biden’s hectoring
  • Professor Epstein’s groundbreaking theories on private property rights, eminent domain and the Takings and Commerce Clauses
  • The practical argument against progressivism
  • Whether we should deconstruct the administrative state, and if so how to do it
  • The danger to free speech emanating from college campuses in a world of microaggressions, trigger warnings, de-platforming
  • The folly of regulating Silicon Valley social media companies
  • Classical liberalism versus socialism and libertarianism

You can find the episode on iTunes, everywhere else podcasts are found or download the episode directly here.

If you like what you hear, please do share with friends and family, and subscribe to the podcast, rate and review it if you are so inclined.

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Richard Epstein explores the Supreme Court’s ruling in the case of a Colorado baker who refused to make a cake for a gay marriage ceremony, critiques the judicial style of Anthony Kennedy, and explains how anti-discrimination laws have expanded beyond a useful scope.

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Jim Geraghty of National Review and Greg Corombos of Radio America cheer the Supreme Court’s ruling in favor of a Christian baker who was sued for not customizing a wedding cake for a same-sex ceremony but note the ruling focused on this particular case rather than broader issues of conscience and religious liberty. They also cringe […]

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Twitter is having a field day with this image, so I thought I’d see what the Ricochetti can come up with. Have at it.  Background info, via Reuters. 

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My Encounter with Gun Control Fanatics


We had been seated for only a few minutes at the Grille, the restaurant in our gated community. Suddenly I saw my husband’s eyes open, then roll, as he shook his head in disgust. He was looking behind me, and as I turned around, I saw a couple sitting down at a table for two. Standing in front of their table for all to see was a white sign with the large letters “AR IS FOR WAR.” We live in a 55+ community, so the man was no youngster. His hair was grey, as was his wife’s, and he was wearing a distinctive military cap on his head, although I couldn’t read what it said.

We called our waiter over, who is a very nice young man, and said this was not the place for a political statement. He said he couldn’t do anything, but said he would let the manager know. After several minutes, the manager didn’t appear, so my husband lost his patience and went to fetch her. She told him she didn’t realize it was a political sign. Right. Several minutes later she appeared at the table with the sign, chatted, and left. Nothing else was done.

I could see that my husband was working up a head of steam; neither of us could let go of the couple’s insistence on making what we considered to be an offensive political statement. I finally told my husband that I was going over to see what kind of statement they thought they were making. I saw that the man was a Seabee from his hat, and said my husband was a Vietnam War vet. The conversation went somewhat like this:

Me: What’s your intention in displaying the sign here?

Them: We just returned from the march in Orlando and we’re displaying the sign for the kids. After all the kids were leading the march and needed our support.

Me: Ah, yes, the gun control march; you know that outside organizations are supplying money and coordination for them.

The conversation went downhill from there.

Me: The second amendment allows the right to bear arms.

Them: The second amendment only allows the right to form a militia. And this doesn’t have to do with the second amendment anyway.

Me: You are not well-informed.

Them: Oh, you must watch too much Fox News. How would you feel if someone wore a MAGA hat?

Me: I’d be fine except hats shouldn’t be worn indoors. And a hat is not comparable to a 3’x4’ sign.

Them: The kid in Parkland could have been stopped if he hadn’t had an assault rifle.

Me: Seriously? A person with a pistol and enough scared people could have done the same thing.

Them: I used an assault weapon (really) in the military and people don’t need them.

As I anticipated, we kept interrupting and talking over each other. Our voices were raised a little, but we both confessed we were hard of hearing. I finally walked away in disgust.

Someone may say the discussion was a waste of time. But it wasn’t for me.

I learned a lot. These folks confirmed for me that some gun control folks are uninformed (and these people owned guns); they are governed by emotion (it’s for the kids); they believe the propaganda of the left; they aren’t interested in civil discussion (although I wasn’t very helpful in making that happen).

This exchange gave me the opportunity to stand up not only for truth and the second amendment, but I stood up for me and my husband and everyone who believes in the Constitution. (I was relieved that my husband didn’t join me in the discussion because it would have gotten more vocal.) I also stood up for freedom and for our country.

I plan to write to the restaurant management. They should have a policy regarding this kind of behavior. In these times, it could happen again. The next time I may not be so nice.

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Richard Epstein looks at Janus v. AFSCME, a Supreme Court case out of Illinois with the potential to dramatically reduce the power of public sector unions.

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Transgender Tragedy Continues


Transgender student Nicole Maines listens during a hearing before the Maine Supreme Court. A lawsuit accuses a school district of breaking a state law in 2007 when it stopped letting Nicole Maines use the girls’ bathroom and required to her use a staff bathroom after a student’s grandfather complained. Maines was born a boy.

Last week the American Civil Liberties Union sued Alabama state officials in a federal district court on behalf of three transgender individuals. The plaintiffs all suffer from gender dysphoria: Darcy Corbitt and Destiny Clark are men but want to obtain Alabama driver’s licenses that describe them as female; John Doe is female but seeks to change her driver’s license to one identifying her as male.

In this latest court case, the ACLU is challenging the constitutionality of Alabama’s Driver License Policy Order No. 63, which requires that a person either submit an amended birth certificate or “a letter from the physician that performed the reassignment procedure.”

To this onlooker, Alabama is trying to ensure that changing one’s gender on a driver’s license is not done frivolously, but is the result of a life-changing commitment to the person’s changed gender identification. The ACLU says, however, that the state of Alabama is violating the Equal Protection Clause of the US Constitution, because only transgender people are targeted; it also accuses the state of insisting “…gender is determined solely by the appearance of external genitals at the time of birth unless modified through certain surgical procedures….”

This lawsuit reminds us that there are several tragedies that have emerged due to the way that transgenderism is being addressed in our culture; those tragedies are unfolding for the transgender person, for the individual citizen and for society at large.

Citizens of the US, to begin, are being forced to accept and acknowledge the people who identify as transgender. In the cited article, Margot Cleveland explains the expectations that transgender individuals have for the greater population:

The government also cannot force citizens to endorse the view that sex is ‘assigned’ at birth, that sex is mutable, or that sex can be changed. The government cannot force citizens to convey an ideological message that a transgender person is a sex other than his or her biological sex—a message with which many vehemently disagree. And a state cannot require its citizens to say something is true that they know is false or endorse a government message about sex perception with which they strongly disagree.

Yet that is exactly what the ACLU seeks to do in its lawsuit against Alabama, arguing ‘a person’s gender identity is what determines the gender a person lives as, and how the person should be recognized for all social and legal purposes.’

Essentially the ACLU is telling the country how we must think, feel, and act. One could argue that the First Amendment protects us from that kind of demand.

An even worse tragedy is taking place regarding the transgender population. Schools and the medical community are complicit in convincing vulnerable students that gender fluidity is normal, even though there are many questions about gender confusion:

Then again, compelling juvenile minds to believe they understand complicated medical conditions that psychiatrists themselves still have not resolved is par for the course. If public schools have succeeded at anything over the last 60 years, they have painfully revealed that they can convince impressionable minds of many things that are just untrue. But so long as students graduate feeling good about their dismal knowledge, subpar reading levels, and their politically correct indoctrination in to absurdity, who cares about reality?

And finally, the worst tragedy is seen in the steps taken to “cure” this disorder. The data regarding the people who have taken steps to change their gender is alarming:

  1. “90 percent of these diverse patients had at least one other significant form of psychopathology” reported Case Western Reserve University’s Department of Psychiatry in a study of transgender outcomes at their clinic. In other words, 90 percent of the patients were suffering from a mental illness that gender surgery did not alleviate.
  2. 61 percent of the patients treated for cross-gender identification (359 people) had other psychiatric disorders and illnesses, notably personality, mood, dissociative, and psychotic disorders according to a 2003 Dutch survey of board-certified Dutch psychiatrists.
  3. A 2013 University of Louisville survey of 351 transgender individuals found that the rates of depression and anxiety symptoms within the study “far surpass the rates of those for the general population.” About half had depressive symptoms and more than 40 percent had symptoms of anxiety.

What are we doing? Are we perpetuating a myth in the name of progressive propaganda and social justice? Is there no way to stop the assaults on our children, our citizens, on these suffering people who see themselves as incomplete, and on society as a whole?

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Richard Epstein reviews how the new film The Post portrays the Supreme Court’s free speech jurisprudence in the Pentagon Papers case.

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YouTube and PragerU’s Lawsuit: The Case for Prager


I didn’t want to duplicate anything that had been was written already. It took a while but I read all the comments on Should Conservatives Sue Private Media Companies.

I think people are looking at this the wrong way. Yes, YouTube is a private company, but that isn’t the only consideration at play. Like everyone else, I don’t buy the public forum argument against viewpoint discrimination, unless there’s relevant state law in California on the matter (which was alluded to) or unless there’s evidence that YouTube is using its near monopoly in a way that unfairly stifles competition and violates antitrust law. However, the question isn’t, “did YouTube violate the First Amendment?” The First Amendment case is just one argument PragerU makes in their brief (and the question is about suing).

There’s a second argument that I think should win.

YouTube is a business, but so are all the YouTubers who activate the advertising option for their content. YouTube original videos are a minuscule fraction of the whole — and a lot of that is behind a paywall on YouTube Red. YouTube is a dual-function service. The original function was just hosting videos. The second feature hadn’t been added in ’05 when they only existed because connection speeds were too low to send people video files of the cute thing your cat does or your baby crawling.

In ’07 YouTube allowed private individuals (as opposed to the media companies they contracted with before) to get ad revenue for their content. They’re operating a market. They connect advertisers with content. Through the parent company, AdSense can match specific criteria sought by advertisers. The most desirable content (from channels with more subscribers and the right audience demographics) gets “auctioned” with virtual bidding.

Individually YouTube calls the content creators their “partners,” and collectively they call them the “YouTube community.” Every YouTuber has a contract with YouTube, which is essentially letting them set up a stall at a market in exchange for a share of whatever they sell. YouTube says that their market is open to everyone and they promote free expression. Their contract specifies that certain content is banned and that other content will be hosted but won’t be put on the advertising market.

As a private business they can set up whatever rules they want for what videos they use — or they can act as publishers without hard and fast rules who exercise editorial judgment. They can’t arbitrarily violate the rules that they created to govern whether the people contracting with them can access their market. And PragerU is arguing they aren’t being arbitrary at all, but instead are doing it deliberately to harm the business interests of people whom they don’t like (because of their politics) when they have explicitly said that they won’t do that to the people who contract with them.


I want to be perfectly clear about what my position is. I think the First Amendment argument is spurious, but for a variety of reasons its inclusion was quite clever. If this were the entirety of the PragerU case, it would be analogous to the compelled speech “bake me a cake” argument,’but after reading the complaint itself, I am on Prager’s side. Their other (and I suspect their only serious) argument is the one that you commonly hear from right of center YouTubers: their ability to access the market which YouTube runs is blocked in a way that is a violation of YouTube’s stated policies and which prevents them from earning money.

This isn’t like the bakery case; it’s like the apple farm case (see here). There’s a way that this is worse. Imagine if instead of being a market in a liberal town, it was in a moderate town, and the stated policy was to accept any local produce for sale unless it was spoiled — and then the farmer was excluded based on his beliefs. That would damage his business and he should sue and in such circumstances win damages. If YouTube is going to prevent content creators from doing business in their market (many have switched entirely to Patreon rather than abandon their channels which aren’t generating income) they must stop being deceptive about it. You can’t lie to business partners just because you’re afraid of the bad PR from being honest with the public!

Don’t side with YouTube because Prager’s lawsuit uses a disingenuous First Amendment argument to get media attention. Side with the YouTube content creators demanding transparency because you believe in free and fair competition.