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As a comedian, I’ve watched the lanes of speech narrow over the course of my career. The people behind cancel culture are basically deploying weaponized censorship. And they're not censoring things because they're offended. They're censoring things because there's a currency that comes with saying you're offended.

Jimmy Failla, “”

These are cancel culture times: the times that test the spirit of uninhibited comedians. Be it race or religion, gender or politics, culture or “cultural appropriation,” it is so easy to offend so many on so many topics — and so often! Virtually no topic is safe when the PC (today, we might say “woke”) police are patrolling anything that may offend anyone at any time. And while conservatives are quick to condemn such canceling, their “commitment” to free speech can be just as relaxed (or nonexistent) when anyone mocks their “orange-colored Jesus” or their jurist who is subservient to an uncontrollable, flag-waving spouse. 

Comedians who trade in anything deemed offensive risk blowback that can affect their livelihood, though the censorial reason is rarely revealed.

“[Because] of the extreme left and P.C. crap . . . people [are] worrying so much about offending other people.” — 

Case in point:

First Ave: Don’t platform transphobe Dave Chappelle!

Dave Chappelle has a record of being dangerous to trans people, and First Avenue has a duty to protect the community. Chappelle’s actions uphold a violent heteronormative culture and directly violate First Avenue's code of conduct. If staff and guests are held to this standard, performers should be too.

Display my name and comment on this petition. — 

Subsequent Headline: “” (2022)

It seems these days being a stand-up comedian is no laughing matter. And no one knows that better than .

On Wednesday, Minneapolis' First Avenue  the comic's show, citing public outcry.

“We believe in the diverse voices and the freedom of artistic expression, but in honoring that, we lost sight of the impact this would have," First Avenue said in a . "We know there are some who will not agree with this decision; you are welcome to send feedback.”

Dave Chappelle T-shirt purchased by Ron Collins at a Dave Chappelle show in New York City
Dave Chappelle T-shirt, purchased by yours truly, at a Dave Chappelle show in New York City. No one was harmed.

2024 Headline: “”

Move over, Jerry. Julia Louis-Dreyfus has entered the chat.

Last month, comedian Jerry Seinfeld sparked  online when he told the New Yorker in an  that he felt there isn’t any “funny stuff” to watch on TV anymore, complaining that it was “the result of the extreme left and P.C. crap, and people worrying so much about offending other people.”

Asked to respond to her former “Seinfeld” co-star’s much-talked-about comments during a recent  with the New York Times, Louis-Dreyfus replied thoughtfully, saying “I believe being aware of certain sensitivities is not a bad thing.”

“If you look back on comedy and drama both, let’s say 30 years ago, through the lens of today, you might find bits and pieces that don’t age well,” she said.

[. . .]

Political correctness, she later said, “insofar as it equates to tolerance, is obviously fantastic.” She added that she still reserves the right to “boo anyone who says anything that offends me, while also respecting their right to free speech.”

“I think it’s just good to be vigilant,” she added.

Question: 

Should the cultural norms for comedy clubs be different from those of the public at large? If so, why? If not, why not? Why, as a matter of a cultural norm, should we expect more free expression in a comedy club than, say, in a public park? Do such venues speak to the idea that certain venues, by their very nature, invite greater freedom — and those who enter them should know that?

Related

  • “,” Index on Censorship (2023)

I think it's important to continue to hold a mirror up to society; one of the best ways we do that is through comedy. If we start to handpick words and label them as not worthy of saying out loud then we are not only squashing the First Amendment principles but also taking away people’s right to decide how they actually feel about things. 

–&Բ;

Comedian Jimmy Failla on cancel culture, censorship

  • Jimmy Failla, “” (Broadside Books, Jan. 30)
Cancel Culture Dictionary: An A to Z Guide to Winning the War on Fun

You may know Jimmy Failla as the best-dressed man in cable news. A force multiplier of positive energy on the radio who sounds like he gets paid in Tequila and Tide Pods. But he’s also a former New York City Taxi Driver who’s spent countless hours conversing with people from all over this planet and several planets you’ve never heard of.  It’s those chats with hobbits, hookers, and time travelers that fill The Cancel Culture Dictionary with the unique perspective and savage self-awareness we need to escape the outrage era society is stuck in. 

Let’s face it. Life in this country was WAY better before the Smart Phone came along and made us infinitely dumber. Social Media has turned our “shining city on a hill” into a Real Housewives episode on Bravo where every day is a constant catfight about politics. Weaponized censorship and runaway speech policing have left many people unable to tell the difference between a comedian and a criminal. Although to be fair, sometimes they’re the same, in Bill Cosby’s case. 

But if there’s one thing we can all be sure of, it’s that spending the past 10 years with our faces glued to our phones has made us crankier, crazier, and much fatter, despite what the Instagram Filters show you.

This book is a collection of naughty jokes and nutty people whose stories guide us to a world where we don’t spend all day slugging it out on Twitter, X, or whatever dumb name Elon Musk gives it next time he gets stoned. No, it's not an actual dictionary, although the author should probably spend more time reading one. Think of it as a ridiculous roadmap to a time where life didn’t revolve around the Republican Party and the Democratic Party because we were all too focused on The Keg Party. And unlike other works devoted to the cancel craze, we'll show how the people who lost the most with each celebrity firing were everyday Americans who had nothing to do with it.

Cancel Culture and the outrage era have dragged us all into a war on fun. But this book is not a call to arms, girlfriend. If anything, it’s a call to chill the f**k out. 

So hop in, shut the door, and don’t waste time fiddling with the seatbelt. The way we’re about to drive, it can’t help you anyway. 

Related

  • Jessica Levinson, “‘,” MSNBC (June 10) 

Fiona Harvey, the apparent inspiration for the character Martha in the Netflix series “Baby Reindeer,” has sued Netflix and comedian Richard Gadd, the writer, director and star of the series, for portraying Martha as a character who stalks and sexually assaults Donny, the main character who’s based on Gadd. Netflix describes the series as “a true story.”

  • Miles Klee, “,” Rolling Stone (April 29)
  • Mac Engel, “,” Fort Worth Star-Telegram (May 18)

Video: ‘Can We Take a Joke?’
WATCH: "Can We Take a Joke?" Official Trailer (2016)

Comedy and free speech — from Lenny Bruce onward

SCOTUSblog video interview with Missouri solicitor general on government influence on social media

  • Nate Mowry, “,” SCOTUSblog (May 18)

In this video, Nate Mowry interviews Missouri Solicitor General Josh Divine. Divine represents his state and several individual challengers, who argue that the federal government’s efforts to influence content moderation by social media platforms violate the First Amendment.

Case before the Court: 
WATCH: Murthy v. Missouri Inverview for SCOTUSblog

Fifth Circuit: Public library’s book removals violate First Amendment — 17 removed, 8 returned

  • (5th Cir., June 6) (per Wiener, J., with Southwick, J., concurring in part and concurring in the judgment in part and Duncan, J., dissenting):

Plaintiffs-Appellees, seven patrons of the Llano County library system (“Plaintiffs”), brought this suit against Defendants-Appellants Llano County, the members of the County’s Commissioners Court, the County’s library system director, and the library board (collectively, “Defendants”). Plaintiffs claim that Defendants violated their First Amendment right to access information and ideas by removing seventeen books based on their contents and messages. 

The district court granted Plaintiffs’ request for a preliminary injunction, requiring Defendants to return “all print books that were removed because of their viewpoint or content” and enjoining Defendants from “removing any books . . . for any reason during the pendency of this action.” Defendants appeal.

For the reasons to follow, we MODIFY the language of the injunction to ensure its proper scope, but otherwise AFFIRM.

[. . .]

The library is under the general supervision of the County’s Commissioners Court, which is led by Judge Ron Cunningham.

[. . .]

[I]n response to [certain added] complaints, Cunningham directed Milum to immediately pull all books from the shelves that “depict any type of sexual activity or questionable nudity.” That direction came via a forwarded email that Cunningham had received from a constituent named Bonnie Wallace. Wallace had sent Cunningham a list of books in the Llano County library system that appeared on Texas Representative Matt Krause’s list of objectionable material, referring to the books as “pornographic filth. ” After receiving that list (“the Wallace list”) from Cunningham, Milum pulled the books from the shelves, allegedly to “weed” them based on the traditional MUSTIE factors. Milum testified that she would not have pulled the books had it not been for her receipt of the Wallace list. In fact, she had pulled no other books for review during that time period. By the end of 2021, seventeen books—all on the Wallace List—had been removed from the Llano County library system entirely. Loosely grouped, those books are: 

• Seven “butt and fart” books, with titles like I Broke My Butt! and Larry the Farting Leprechaun; 

• Four young adult books touching on sexuality and homosexuality, such as Gabi, a Girl in Pieces; 

•&Բ;Being Jazz: My Life as a (Transgender) Teen and Freakboy, both centering on gender identity and dysphoria; 

•&Բ;Caste and They Called Themselves the K.K.K., two books about the history of racism in the United States; 

• Well-known picture book, In the Night Kitchen by Maurice Sendak, which contains cartoon drawings of a naked child; and 

•&Բ;It’s Perfectly Normal: Changing Bodies, Growing Up, Sex and Sexual Health.

[. . .]

Plaintiffs, seven patrons of the library, brought this suit, alleging that Defendants removed the seventeen books because they disagreed with the books’ content, in violation of the First Amendment. Plaintiffs sought a preliminary injunction requiring, among other things, that Defendants replace the seventeen books.

[. . .]

The dissent accuses us of becoming the “Library Police,” citing a story by author Stephen King. But King, a well-known free speech activist, would surely be horrified to see how his words are being twisted in service of censorship. Per King: “As a nation, we’ve been through too many fights to preserve our rights of free thought to let them go just because some prude with a highlighter doesn’t approve of them.” Defendants and their highlighters are the true library police. Government actors may not remove books from a public library with the intent to deprive patrons of access to ideas with which they disagree. Because that is apparently what occurred in Llano County, Plaintiffs have demonstrated a likelihood of success on the merits of their First Amendment claim, as well as the remaining factors required for preliminary injunctive relief. The district court’s order is AFFIRMED, except that we MODIFY the district court’s injunction to state: IT IS ORDERED THAT:

1. Within twenty-four hours of the issuance of the mandate, Defendants shall return the following books to the publicly visible and accessible shelves of the Llano County Libraries: 

a. Caste: The Origins of Our Discontent by Isabel Wilkerson; 

b. Called Themselves the K.K.K: The Birth of an American Terrorist Group by Susan Campbell Bartoletti; 

c. Spinning by Tillie Walden; 

d. Being Jazz: My Life as a (Transgender) Teen by Jazz Jennings; 

e. Shine by Lauren Myracle; 

f. Under the Moon: A Catwoman Tale by Lauren Myracle; 

g. Gabi, a Girl in Pieces by Isabel Quintero; and 

h. Freakboy by Kristin Elizabeth Clark. 

2. Immediately after returning the books to the Libraries as ordered in 1. above, Defendants shall update all Llano County Library Service’s catalogs to reflect that those books are available for checkout.

3. Defendants are hereby enjoined from removing any books from the Llano County Library Service’s publicly visible and accessible shelves and/or searchable catalog without first providing Plaintiffs with documentation of (a) the individual who decided to remove or conceal the books, and (b) the reason or reasons for that removal or concealment.

New scholarly article: LoMonte and Mitchell on campus free speech and free rent

  • Frank LoMonte and Conner Mitchell, “” SSRN (June 6)
Frank LoMonte
Frank LoMonte

As the COVID-19 pandemic hit college campuses, attention turned to the communal housing units that became both risk centers for transmission as well as refuges for quarantine. The public predictably had questions: How many residents of campus housing are sick with COVID? Are colleges taking adequate precautions to limit the spread of disease? The people in the best position to answer those questions – the student employees who reside in campus housing as “resident assistants” or “resident advisers” (RAs, for short) – often were forbidden from doing so. 

At Louisiana State University, where some 250 RAs resigned citing concerns over COVID-19 safeguards during fall 2020, one unnamed RA was quoted saying that RAs are prohibited from speaking even to the student newspaper. And at Maryland’s Frostburg State University, school officials tried to silence RAs who spoke out against COVID policies by threatening to cite “attitude issues” on their evaluations. “Gag rules” that forbid RAs from discussing their work with the press and public are pervasive throughout higher education. 

But at public institutions governed by the First Amendment, those rules almost certainly are illegal. Every court that has been asked to consider a facial challenge to a don’t-talk-to-the-press workplace rule over the past half-century has found those rules unlawful. This article analyzes the disconnect between First Amendment principles that protect both employees and students at public universities, versus what campus rulemakers are telling student employees. Much has been written about free-speech controversies on college campuses in recent years, but no scholarly attention has been paid to the rights of students who draw a university paycheck. 

This article attempts to fill that gap, spotlighting a glaring instance in which colleges’ stated commitment to free speech is sacrificed to their reputational concerns. Using freedom-of-information requests, the authors gathered handbooks from 56 public universities nationwide to gauge how their regulation of student employee speech comports with First Amendment case law. Nearly half of those rulebooks contained constitutionally questionable restrictions on student employees – and even that figure almost certainly understates the problem, since “unwritten restrictions” are prevalent in the campus workplace.

There is obvious public interest in knowing whether state employees feel safe doing their jobs, and whether government agencies are being truthful about their public-health protocols. When workplace policies forbid sharing information learned on the job, public awareness suffers. The authors observe that – regardless of whether RAs are considered “students” or “employees” for First Amendment purposes – rules that forbid discussing their work are legally unenforceable and ill-advised public policy. 

Universities have ways of protecting legitimately confidential information short of gagging student housing employees entirely – and when a more narrow alternative would do the job just as well, the First Amendment requires taking that route. Because the RA/university relationship is such a coercive one, the article concludes, it is important for university policies to clearly protect student employees’ ability to speak about issues of public concern, and for courts to hold universities accountable when their policies fall short.

Soon-to-be-released book on combating disinformation

  • Elaine Kamarck and Darrell M. West, “,” (Brookings, forthcoming Aug. 27)
Lies that Kill: A Citizen's Guide to Disinformation

Disinformation made possible by rapid advances in cheap, digital technology, and promoted by organized networks, thrives in the toxic political environment that exists within the United States and around the world. In Lies that Kill, two noted experts take readers inside the world of disinformation campaigns to show concerned citizens how to recognize disinformation, understand it, and protect themselves and others. 

Using case studies of elections, climate change, public health, race, war, and governance, Elaine Kamarck and Darrell West demonstrate in plain language how our political, social, and economic environment makes disinformation believable to large numbers of people. 

Karmarck and West argue that we are not doomed to live in an apocalyptic, post-truth world but instead can take actions that are consistent with long-held free speech values. Citizen education can go a long way towards making us more discerning consumers of online materials and we can reduce disinformation risks through digital literacy programs, regulation, legislation, and negotiation with other countries.

‘So to Speak’ podcast on Section 230

Did 26 words from an American law passed in 1996 create the internet?

 says that interactive websites and applications cannot be held legally liable for the content posted on their sites by their users. Without the law, it's likely Facebook, Amazon, Reddit, Yelp, and X wouldn't exist -- at least not in their current form. But some say the law shields large tech companies from liability for enabling, or even amplifying, harmful content.

On today's show, we discuss Section 230, recent efforts to reform it, and new proposals for content moderation on the internet.

Marshall Van Alstyne is a professor of information systems at Boston University.

Robert Corn-Revere is FIRE's chief counsel.

FIRE celebrates 25 years by honoring ‘25 Faces of Free Speech’

Group collage of the 25 Faces of Free Speech

For 25 years, ݮƵAPP has worked to keep the flame of First Amendment freedoms burning bright. Since our founding in 1999, we’ve managed to win pivotal victories, publish cutting-edge research, and educate countless Americans on their fundamental rights. And in recent years, we’ve protected these rights wherever they’re violated, both on campus and off. 

In celebration of how far we've come, we're shining a spotlight on 25 individuals who embody free speech values — even when the going gets tough. Their stories remind us that as often as speech comes under threat, it prevails because of the bravery of those who refuse to be silenced. We hope they inspire you, as they inspire us, to fight on.

More in the news

2023-2024 SCOTUS term: Free expression and related cases

Cases Decided

  •  
  • (certiorari granted, judgment re the bias policy claims vacated, and case remanded to the Court of Appeals for the 4th Circuit with instructions to dismiss those claims as moot) ()

Review granted

  • (argued Nov. 1)
  • (decided March 15, see below under “State Action”)
  •  and  (argued Feb. 26)
  • (argued March 18)
  •  (argued March 18)
  • (argued March 20)

Pending petitions

State action

  •  (Barrett, J., 9-0: “The state-action doctrine requires Lindke to show that Freed (1) had actual authority to speak on behalf of the State on a particular matter, and (2) purported to exercise that authority in the relevant posts. To the extent that this test differs from the one applied by the Sixth Circuit, we vacate its judgment and remand the case for further proceedings consistent with this opinion.”)
  • (Per Curiam: 9-0: “We granted certiorari in this case and in Lindke v. Freed (2024), to resolve a Circuit split about how to identify state action in the context of public officials using social media. Because the approach that the Ninth Circuit applied is different from the one we have elaborated in Lindke, we vacate the judgment below and remand the case to the Ninth Circuit for further proceedings consistent with our opinion in that case.”)

Review denied

  •  ( by Sotomayor, J.)
  • (application for stay denied)
  • (Justice Kavanaugh would grant the petition for a writ of certiorari. Justice Thomas, dissenting from the denial of certiorari. (separate ) Justice Alito, dissenting from the denial of certiorari. (separate ))

Free speech related

  • (pending) (statutory interpretation of 18 U.S.C. §&Բ;1512(c) advocacy, lobbying and protest in connection with congressional proceedings) // See also  (argued April 16)

Last scheduled FAN

FAN 426: “Paul Clement hopes to file cert. petition calling on SCOTUS to overrule abortion buffer zone case”

This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by ݮƵAPP as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of ݮƵAPP or Mr. Collins.

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