Author: Howard Wasserman

An excellent post from Ken White on “free speech culture” (defined as a “social norm that discourages me from calling for that person to be fired, shunned, or otherwise socially sanctioned, or criticized to a degree that is, by some poorly defined measure, excessive”) and its contribution to the current “unprecedented” wave of official government censorship. White hits two key points.

First is how free-speech culture contributes to the preferred first speaker problem, by imposing obligations on those who respond to speech but not on the chosen “First Speaker” (a term White coined and one I have been toying with for an article for two years).

Second–and the great insight of the piece–is how free-speech culture conflates defense of free speech with defense of the content of speech, producing what he calls “moral sociopathy:”

When the American Civil Liberties Union fought successfully for the rights of Nazis to march at Skokie, they did not convene a public meeting to ask the Nazis to explain why the Jews were so bad, and they did not portray the Nazis as heroic warriors for free expression. That would have been unserious: the Nazis, given their way, would have suppressed many people’s speech. Rather, the ACLU’s stance was that the First Amendment doesn’t permit censoring the Nazis however repugnant they are.

The “free speech culture” ethos, by contrast, has a tendency to go well beyond arguing that awful bigoted totalitarian people shouldn’t be officially censored or fired. Rather, it encourages treating people as “free speech heroes” so long as they are struggling for their own right to speak, irrespective of what they would do to other people’s right to speak. It also has a habit of apologia. It tends to drift defensively from “we shouldn’t call for people to be fired for saying awful things” to “actually what they say is not that awful.”

White distinguishes the ACLU’s approach to the Nazis in Skokie (using the First Amendment to defend the right of Nazis to march) from FIRE’s approach to Amy Wax (hosting Wax on its podcast to give her an opportunity to explain and defend her views). Another reason for me to doubt FIRE.

White does not mention Charlie Kirk in his post. But Kirk exemplifies the point–he achieved the status of free speech “hero” or “warrior” in the way White describes and decries. Kirk pushed his offensive views through speech and demanded protection for that speech and his right to speak. Celebrations of Kirk’s life have descended into that sociopathy–ignoring and seeking to censor criticism (and even discussion or mention) of his actual views and their moral value (or lack thereof).

One pithy and one long thought on TylenolGate.

First, Donald Trump’s brain is stuck in the 1980s. His obsession with tariffs and trade imbalances reflects what he remembers about competition with Japan over cars and electronics during that era. So how much of his recent ramblings about Tylenol reflect his memory of the Tylenol murders and his simplistic understanding that Tylenol is bad.

Second, we do not know what harm will follow from the ramblings around Tylenol, vaccines, and autism, specifically whether a substantial number of pregnant people will stop using Tylenol (“fight like hell not to take it”¹) and suffer as a result. But it presents a side problem for public health: Who pushes back on less-than-accurate science when government leaders and the governmental public-health apparatus spouts and begins to support the less-than-accurate science?

One obvious answer is Johnson & Johnson, the manufacturer of Tylenol. Might it launch a campaign touting the drug’s benefits and the fact that major medical groups say the product is safe for use during pregnancy and no studies support otherwise?

This would present an interesting study for corporate and commercial speech. Arguments for First Amendment protection begin from the premise that there is no reason to exclude a powerful, wealthy, knowledgeable, motivated voice from public discussions of matters of public import simply because the voice takes the corporate form or acts with a profit motive. And more so when the government otherwise provides the dominant voice on one side of the discussion. J&J can and wants to reach a broader audience to counter the government than medical groups or scientific experts speaking on their own. The case also shows the difficulties of identifying commercial speech as a category. A series of ads about the safety of the product–within a live public-health debate over that product’s safety governed (arguably) by official misinformation–would appear political, designed to do more than propose a commercial transaction. That should not change because that voice has a profit motive (it wants people to buy its product) compared with a panel of doctors. Courts try to separate the commercial from non-commercial aspects of the speech, but that is not easy to do–“Tylenol is safe during pregnancy” is political in the moment but inextricably linked to J&J’s desire for people to buy Tylenol.

This also would provide an interesting test for the political valence as to corporate and political speech–a test all sides almost certainly will fail. The left would celebrate the effort as an important counterweight to the insanity of the Trump/Kennedy HHS–a corporation speaking and advertising for the public good. The right would decry it, likely calling on the FTC (and some Red State agencies, likely in Texas) to go after Johnson & Johnson for consumer fraud. That is, the ordinary political alignment on speech would flip because of the content of the speech. See, corporate and commercial speech–it’s just like all other types of speech.

1. Against whom? Does Trump thing doctors prescribe Tylenol? Does he believe they force it on patients? Or is he simply urging pregnant people to deal with their pain and fever as the cost of giving birth, the way they suffer for their future child? The first two are moronic; the latter is typical. ↩︎

FIRE has released its 2026 College Free Speech Rankings. FIU is 53, despite being in a state that limits what professors can teach and write and tried to ban SJP from campus. Northwestern is 120, Wesleyan 127, and Bryn Mawr (where my wife went) does not make the list.

I had toyed with the idea of teaming with a quantitative researcher to question the methodology and the usefulness of the study. Ryan Enos (Harvard) took a shot in the Chronicle of Higher Ed in 2024, describing many problems (low response rates, the absence of meaning behind the numbers, strange weighting of numbers). FIRE responded with a letter to the editor insisting, essentially, that numbers don’t lie. Which is non-responsive to the complaint that numbers can be true but meaningless.

University of Florida stripped Jeffrey Harrison of emeritus status. Here is the initial post:

There is a lot of commentary about Charlie Kirk. It’s not that complicated. He was a evil person spounting [sic] all kinds of hateful messages. I did not want him to die. I reserve that wish for Trump. But let’s face it, even members of the Gestapo and guards at the concentration camps had children. That does not make them heros [sic], nor does it make Charlie Kirk someone to be admire.

When that blew up, he posted this:

I am getting a lot of hateful commentary about a recent post in which I did not want Charlie Kirk to die but it would be fine with me if Trump did. The latter sentiment i have seen on Facebook scores of times. This avalanche of hate came after someone reposted my original post on X. This leads me to ask if X has gone over, even more than Facebook, to Trumpers?

UF announced the loss of emeritus status on Friday.

The comments (and thanks to the Florida Phoenix for quoting the posts) are telling because–again–the only piece that could basically warrant sanction has nothing to do with Kirk. Offering negative, hyperbolic opinion about the dead does not create a sufficient disruption to warrant employment sanctions. Only wishing death on Trump comes close to the line and I doubt it crosses it. So whatever censorship wave targeted anti-Kirk comments has morphed into targeting people who criticize dear leader.

The nice question is how we understand emeritus status. Do academic freedom and First Amendment protections continue to apply, as they would have when Harrison held an active job and tenure?

I will close with a link to Eric Segall’s new post highlighting (in a very Segallian way) how precarious things seem right now.

Stephen Cody is a councilman in Palmetto Bay, Florida (the location of my son’s high scholl). Following a social-media post about Kirk’s murder, Cody faces censure, calls to resign, a threatened recall, and suggestions that Gov. DeSantis remove him from office. The NYT story features every trope, problem, mistake, constitutional stupidity, and defect from the Kirk fallout and media coverage of the fallout.

Let us count:

• Horrible media coverage. The story does not reveal the content of Cody’s post until the eleventh and twelfth paragraphs. Prior to describing the post, the story describes, in vivid detail, community reactions to the post and that Cody had apologized and removed the post. It lets a bunch of adjectives–“vile” and “abnormal and dangerous”–do the work, without telling the reader what is being described and why.

• Kimmel as distraction. Before describing what Cody said, the piece spent three paragraphs on what Jimmy Kimmel said, describing it as a “higher profile” example. But that is the problem. The attack on free speech is bigger, more widespread, and more harmful than Kimmel. And people such as Cody or the various teachers and professors need more help and resources to fight back. Tell those stories in detail.

• Using Kirk’s Words in Clearly Protected Speech. Cody’s post quoted Kirk–“It’s worth it to have a cost of, unfortunately, some gun deaths every single year so that we can have the Second Amendment to protect our other God given rights”–then added “Charlie Kirk is a fitting sacrifice to our Lords: Smith & Wesson. Hallowed be their names.”

This is clearly constitutional in general. A fair reading should see Cody’s addition not as celebrating Kirk’s death but as noting the irony of someone who accepted (if not celebrated) gun violence as an acceptable cost becoming a victim of gun violence. And the religious imagery–which one person highlighted as a criticism–matched Kirk’s reference to God-given rights. I think that fair reading should survive Pickering.

• Free Speech, but: From Marsha Matson, a council member and a former lecturer at University of Miami. “I will defend the First Amendment to the end” (sounds serious), but “as a public officer and elected representative of our community, there’s a higher standard for him than a private citizen. And that is to be constrained, to be responsible and not pop off with his cockamamie ideas.”

This gets it backwards. The First Amendment prevents government from defining defining what is “cockamamie” and taking action against those who espouse such ideas. All the Kirk defenders refusing to describe his actual ideas (beyond “debate me, bro”) clearly believe it does not matter, that everything is fair game and nothing is “cockamamie.”

And the rest is nonsense. Public officers need not be “constrained” or “responsible” when speaking as citizens on matters of public concern., subject to genuine disruption of their jobs. And an elected representative is subject to the ultimate check–the electorate.

• Free Speech Procedure. Because Cody is an elected official, this will play out differently than the 100s of other cases. The council censured Cody; whether doing so over protected speech raises First Amendment concerns, censure constitutes an immune legislative function. The First Amendment does not prevent voters from targeting an elected official over protected speech, whether in pushing him to resign, recalling him, or voting him out of office next election.

The interesting piece involves the governor’s power to suspend local officers. Two Republican members of Congress–Carlos Gimenez (whose district includes Palmetto Bay) and Randy Fine (who is a general gadfly) have urged Gov. DeSantis to exercise that power to ensure “confidence Floridians have in their government.” That power requires “malfeasance,” “misfeasance” or “neglect of duty.”

DeSantis has tried this before, removing two Democratic “reform prosecutors” over statements related to enforcement plans and priorities. It has not gone well, running into First Amendment walls even as to elected officials. The Times quotes Tony Alfieri of UM that DeSantis has the power to suspend Cody over the posts but that it would be an “alarming” use of the power (I imagine Tony said a lot more than this–this is what made the cut).

But the Eleventh Circuit seems to disagree in a November 2024 decision involving one prosecutor, Andrew Warren. (Warren lost reelection in 2024, so the Eleventh Circuit dismissed the action as moot, vacating its prior ruling). But here is the conclusion of Judge Newsom’s concurrence in that November ruling:

Bottom line: The Supreme Court has made clear—for reasons that cut to the core of our representative democracy—that the First Amendment safeguards elected officials’ right to express their views on salient political issues. Whatever one thinks of Warren’s particular views about abortion, he is no less entitled to that protection.

The First Amendment is an inconvenient thing. It protects expression that some find wrongheaded, or offensive, or even ridiculous. But for the same reason that the government can’t muzzle so-called “conservative” speech under the guise of preventing on-campus “harassment,” see Speech First, Inc. v. Cartwright, 32 F.4th 1110 (11th Cir. 2022), the state can’t exercise its coercive power to censor so-called “woke” speech with which it disagrees. What’s good for mine is (whether I like it or not) good for thine

Hard to believe the same is not true for statements that have nothing to do with the elected official’s job.

Judge Merryday (M.D. Fla.) sua sponte struck the absurd complaint in Trump’s absurd $ 15 billion lawsuit against the Times over its endorsement of Kamala Harris. The court called out Trump’s attorneys for filing an 85-page, 156-paragraph complaint for a simple two-count defamation action, larded with “many, often repetitive, and laudatory (toward President Trump) but superfluous allegations,” “persistently alleged in abundant, florid, and enervating detail.” The court granted leave to amend, but limited the complaint to 40 pages.

Many are celebrating this as the latest lower-court repudiation of Trump’s censorship efforts. I want to tap the brakes a bit.

I applaud the judge for using an available weapon to stop pleading-as-press-release. And, as with so much from Trump’s lawyers, this takes it to another level because the extraneous nonsense is intended less for the public than for Trump as audience-of-one. I wish more judges would do this. And I suppose Merryday took the step in this case because everyone is watching. And perhaps he wanted to signal his views on the merits of the pleading, hoping the attorneys will give up the ghost.

On the other hand, the order gets it wrong under (what I would argue) the best understanding of the Federal Rules. It discusses the purposes of Rule 8 and how the complaint fails to provide a short and plain statement of the claim. But Rule 12(f) does not enforce Rule 8; it targets “redundant, immaterial, impertinent, or scandalous matter.” That would cover much of the extraneous crap the attorneys included, but based on the language of Rule 12(f), not Rule 8. The remedy should be to strike the improper allegations while leaving the rest of the pleading in place (rather than striking the entire document). Although perhaps it makes sense in this case to place the onus on the plaintiff to separate the wheat from the chaff, given that the latter comprises most of the pleading. Alternatively, the court could use Rule 12(e), because the complaint is “so vague or ambiguous that the party cannot reasonably prepare a response;” this has come to cover “prolix” pleadings that include extraneous information. The plaintiff must file a complete new, less-vague pleading, again by dropping the extraneous nonsense that makes the complaint impossible to understand.

Rule 8 or the short-and-plain-statement requirement remains irrelevant to either mechanism, which relies on a distinct standard. The discussion of Rule 8, while funny (“hey, short means short”), is beside the point.

Moreover, if the pleading is as bad as the court suggests (it is), it might have brought Rule 11 into play. The obvious effort to stroke Trump’s ego with unnecessary and irrelevant detail could constitute an improper purpose, as well as increasing the cost and burden to the defendants in attempting to respond. Courts refuse to drop that hammer on lawyers who refuse to say no to Trump and who abuse the legal system on his behalf.

Update: One more thing: There is an argument (someone on the Civ Pro Prof Listserv suggested it) that this move plays into Trump’s hands, by giving the appearance (to those who do no know the law) of (yet another) judge out to get Trump. And the court could have waited for the inevitable 12(b)(6) motion and dismissed at that point, rather than reaching out. A fair point, although I doubt it matters to Trump’s most fervent supporters.

As the assault on free speech continues apace, I want to use my inaugural post at our new home to hit some random points.

• Conservatives/Republican officials should not be allowed, with the aid of the media, to reframe this as comeuppance for left “cancel culture” or the left being hoisted on its own cancel-culture petard.

One obvious difference involves the nature of the conduct. During the past two weeks, state and federal governments have taken or compelled private action against speakers. By contrast, much of what was decried from the left involved private actions (shout-downs, protests, calls for deplatforming or silencing, criticism) that themselves constitute some form of Brandeisian “more speech.”

More importantly, the two groups supposedly come from distinct value systems. Some on the left traded free speech for other values, such as equality–recall talk of how those in power used free speech as a weapon of oppression, as a way to subject historically disadvantaged groups to hateful speech and thus prevent them from becoming equal participants in the community. Free-speech activists argued against the position (and warned of its consequences), but it formed a coherent view. Conservatives and Republicans, on the other hand, pitched themselves as the “party of free speech,” committed to the independent value of free speech and freedom for the thought we hate. Anyone paying attention (not the media) knew this was nonsense, but they succeeded in making everyone believe they adhered to a principled belief in free speech regardless of content or viewpoint. The events of the past eight months reveal the lie and the past two weeks intensify that–conservatives are not committed to free speech; they are committed to freedom for the speech and speakers they like and have no compunction about silencing those they do not like for engaging in what they define as speech beyond the pale (with a different location for the pale).

This thus should not be “both sides do it,” where Republicans pretend to adhere to different ideals and to reject what the left (supposedly) does, then engage in the same behavior as tit-for-tat.

• As the title of the post suggests, those on the right now utter the infamous phrase “I believe in free speech, but” that reveals the person does not, in fact, believe in free speech. Recent buts include: “but trans people are a virus and cancer” (Cong. Ronny Jackson); “but you are not entitled to hold a public job, especially teaching children” (Ron DeSantis and many others)l “but not vile comments” (Clemson after firing or suspending multiple employees); “but not threats, glorification of violence, or behavior that undermines the mission of our state institutions” (Clemson again, getting 2/3 wrong); “but broadcasters have a license and privilege, not a right” (several GOP members of Congress); “but they cannot use the license to go after Trump” (Trump); “but they cannot say mostly negative stuff” (Trump again) . You get the idea.

• The Jimmy Kimmel suspension may be a curse or blessing, depending on how this plays out. It may draw attention to the problem, prompting the public to respond and push back against these efforts. But it also may suck-up all the attention, distracting from dozens of education employees and others who have suffered and continue to suffer adverse employment actions. If the story becomes about one wealthy-and-powerful entertainer and a dispute with the federal government over a broadcast license, it ceases to be about a broad pattern of government or government-influenced censorship causing ordinary people to suffer life-changing infringement of their speech.

• I have said this before, but it is worth repeating: It is essential that the news media quote–not simply characterize–the speech that gets people targeted. I had to wade through multiple articles to see what Kimmel said (turns out it was less about Kirk than about Trump’s reaction to Kirk). In the great majority of cases, it is constitutionally protected and the Pickering balance will favor the teacher. Even celebrations of Kirk’s death might be ok, especially spoken by a college professor (where academic freedom kicks in). That is lost if the stories do not get beyond describing posts as “celebrating” Kirk’s death.

• Eugene Volokh argues that the ACLU made a politically smart move in representing the NRA in Vullo. Not only did it reenforce the ACLU’s real commitment to speech (which had gotten lost over the years), but it created “a staple of arguments against similarly coercive actions by the Trump Administration.” I love precedents that come to aid the other side of the political divide–consider how liberals used Rosenberger to challenge efforts to prohibit LGTBQ+ campus groups. (I wonder if there is a paper in there somewhere). But Eugene makes a further point–the ACLU and David Cole were smart to be take the case and to be the one to create the precedent.

• One more thing I had been looking for: Will Saletan at The Bulwark offers a list of some things Charlie Kirk said over his career, many of which fit the categories that Republicans have declared out of bands and seek to punish.

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