Freedom of speech, the First Amendment, and the Josh Hawley book Simon and Schuster doesn't want you to read!

The good senator has never read the 1st amendment.

I’m pretty sure sometime at Yale Law, or while clerking for Justice Roberts, Senator Hawley has read not only the first amendment, but the whole constitution, and lots of the relevant case law.
I’m not prepared to dismiss his legal challenge out of hand.

Every lawyer on Twitter is.

I am. He’s full of shit here.

I should clarify: he’s read the first amendment, but he’s being a dishonest prick here.

So you think a book publisher should potentially be forced to publish Hawley’s book even if they didn’t break their contract with him by cancelling it? Would they also be forced to publish my book?

As someone pointed out on Twitter, “only approved speech can be published” sounds like the actual business model of publishing. No publisher publishes anything they don’t want to publish.

There is no legal challenge. There is empty bluster on Twitter.

Simon & Schuster deciding against publishing the book violates the 1st amendment how? They aren’t the government they can do as they please.

Don’t be obtuse. Yes, Hawley most certainly knows how the First Amendment works. No, he has absolutely no case against Simon and Schuster on First Amendment grounds. The First Amendment has literally no bearing on a contract between two private individuals.

Hawley doesn’t care: he’s grandstanding. What’s going to happen is that Hawley is going to get a settlement from the publisher for breaking the contract (unless the contract has some super-specific morals clause.)

Hawley is going to spin that settlement to his followers as a great ground-breaking victory for MAGA, and not the normal thing that happens in a mundane breach-of-contract case where one side decided breach was better than fulfillment, something that happens a million times a day. His followers, neither knowing nor caring about contract law, will eat it up.

Hawley and his followers are colluding to manufacture their own reality with earth-shattering stakes out of what is by legal standards a very dull contract breach. And you’re buying into it.

IANAL, but I make a point of reading SCOTUS case or two a year, and I’ll happily debate the law with my fellow non lawyers here or on twitter. But when a really smart lawyers like say @Sharpe tell me I"m wrong. I listen to them. Expertise matters, whether in science, business, law, or game development.
Josh Hawley, is expert on the law, and we know that because you generally don’t graduate from Yale law school without being pretty damn knowledgeable, and you certainly don’t get to be clerk at the appellate court much less the Supreme Court without being one.

Hawley isn’t you average joe who screams my 1st amendment rights are being violated with no idea what he is talking about.

Hawley has contract with his publisher, which none of us have read, and almost certainly has language about cancelation clauses. Most of the folks on twitter saying he is full of shit aren’t lawyer. Popehat being the main exception.

I find it hypocritical for us to bitch about the MAGA folks disrepecting experts and then do the same thing.
Experts are wrong a lot, but they are generally wrong less than lay people. In argument, about the law, I know which camp I fall in and which camp Josh Hawley falls in.

What you’re saying is that this is a contract dispute. That’s different from suggesting it’s a first amendment dispute.

Also, someone being smart or not doesn’t stop them from being willing to say anything to pander to a specific crowd, which is exactly what he’s doing now and why he objected to the vote tallies last night.

Hawley has zero grounds on the 1st amendment. He’s just trying to score cheap political points.

Two of them are First Amendment lawyers.
Well three actually with Greenfield.


Four.

Hawley knows the law, but the law is irrelevant. He’s playing a puppet show for Trumpsters.

It still wouldn’t be a violation of the 1st amendment if they breached the contract.

No, he’s a performative lawyer who knows better who manages to sucker the gullible into believing his schtick.

Had no idea you were in that number.

I’m saying I don’t have enough facts to make categorical statement that he is wrong. I’d take even money bet that S&S will end up canceling the deal and pay what ever is the typical cancelation contract. But I wouldn’t take a 2-1 or greater odds bet.

Ari Cohn is a first amendment lawyer also, right?

Correct! Instead he’s an elected politician who screams about his 1st Amendment rights being violated when he knows exactly what he’s talking about, but his legal training has taken a back seat to his politics.

-Tom

EDIT: Gah, @triggercut did what I was trying to do, but better.

Yes. Ken, Ari, Andrew all first amendment lawyers, iirc. Greenfield I think is more criminal stuff, but he also does First Amendment stuff, it gets murky, especially with lawyers with Greenfield’s level of experience.

Bennett disappeared from social media, so I lost one of them, but I’m guessing he would agree with them, since him and Greenfield tend to be fairly similar and Bennett was regarded as one of the top First Amendment lawyers that exists.

Legal Eagle is, iirc, a contract lawyer, so… he should be aware of that aspect as well.

And those are basically all the lawyers I follow. I’m sure others exist. Doucette didn’t jump in, but that’s not his specialty.

Expertise matters is absolutely true, but credibility also matters. I know very little about first amendment law or publishing contract law so I won’t comment there. BUT I do know a LOT about litigating issues of credibility, with several hundred cross-examinations worth of experience and an uncounted number of pages of textual analysis in my career, so let me look at the Hawley statements from that viewpoint.

The very first thing I look at when analyzing the credibility of a statement is whether it is self serving. It is the simplest criteria, and probably the most common. And Hawley’s statement here is clearly self serving in that it defends himself and also attacks his opponents. So that’s a strike against the credibility of this statement.

The second thing to look at is “secondary gain” - does the deception/fraud provide other benefits to the person making the false statement? In this case, there’s a huge amount of political secondary gain: appealing to Hawley’s followers, appearing “tough”, trying to present himself as being for FREEDOM, etc. So that’s a second strike against the credibility of the statement.

Next, I look at the bigger picture: what is the person’s track record of credibility? With Hawley, there is extensive evidence: tons of posts and speeches endorsing and/or promulgating false statements by Trump and others including Trump’s BS about the elections as recently as yesterday in the Capitol building. So his credibility in general is looking pretty bad.

Then I look at the most subjective thing of all: character. (Many folks seize on character as the first criteria but I consider it the least reliable and relegate it to the bottom of the list. However, it does still matter.) Hawley’s character as displayed in public is pretty clear: he likes to grandstand, as we saw with the Capitol votes; he’s well known for political stunts; and he’s frequently “performative” (although most politicians are, but still, in his case, it’s pretty bad.)

So when you look at the several different criteria of credibility, Hawley’s statements look… poor. Very poor. Like so poor as to be near-zero credibility. If I were cross-examining him under oath I would (legally and rhetorically) gut him like a fish. I say that with unironic braggadocio. Over-confident punk-asses like him make poor witnesses, when they are really under oath in court.