Analyzing Indictment of James Comey for "86 47" Post; reason, The Volokh Conspiracy, April 28, 2026

EUGENE VOLOKH, reason, The Volokh Conspiracy; Analyzing Indictment of James Comey for "86 47" Post

 "I think this prosecution is unjustified, and will get thrown out. Let me quickly analyze why."

Only the First Amendment Can Protect Students, Campuses and Speech; The New York Times, September 6, 2024

Cass R. Sunstein , The New York Times; Only the First Amendment Can Protect Students, Campuses and Speech

"To answer those questions, we should turn to the First Amendment of the U.S. Constitution, which states that Congress “shall make no law … abridging the freedom of speech.” Those words provide the right foundation for forging a new consensus about the scope and importance of free speech in higher education.

As a rallying cry, that consensus should endorse the greatest sentence ever written by a Supreme Court justice. In 1943, Justice Robert H. Jackson wrote, “Compulsory unification of opinion achieves only the unanimity of the graveyard.”

It is true that private colleges and universities, unlike public ones, are not subject to the First Amendment, which applies only to public officials and institutions. If Harvard, Stanford, Baylor, Vanderbilt, Pomona or Colby wants to restrict speech, the First Amendment does not stand in their way.

Still, most institutions of higher learning, large or small, would do well to commit themselves to following the First Amendment of their own accord.

First Amendment doctrine, developed over the centuries, provides excellent guidance."

On the Next Docket: How the First Amendment Applies to Social Media; New York Times, 6/30/14

Adam Liptak, New York Times; On the Next Docket: How the First Amendment Applies to Social Media:

"Mr. Elonis was convicted under a federal law that makes it a crime to communicate “any threat to injure the person of another.” The sentence was 44 months.

The case is one of many recent prosecutions “for alleged threats conveyed on new media, including Facebook, YouTube and Twitter,” according to a brief supporting Mr. Elonis from several First Amendment groups.

In urging the Supreme Court not to hear Mr. Elonis’s case, the Justice Department said his intent should make no difference. A perceived threat creates “fear and disruption,” the brief said, “regardless of whether the speaker subjectively intended the statement to be innocuous.”

Mr. Elonis’s lawyers did not deny that their approach would allow some statements with “undesirable effects.” But they said the First Amendment should tolerate those effects rather than “imprisoning a person for negligently misjudging how others would construe his words.”

The First Amendment does not protect all speech. There are exceptions for libel, incitement, obscenity and fighting words, and one for “true threats,” which is at issue in Mr. Elonis’s case."