Protecting Free Speech with Shelby Emmett

I recently sat down with Shelby Emmett, the Director of the Center to Protect Free Speech at the American Legislative Exchange Council (ALEC, for short). Shelby, and the Center to Protect Free speech are based in Arlington, VA.

When it comes to changing policies, ALEC is an interesting organization to look at. It is the country’s largest voluntary membership organization of state lawmakers, it is a 501(c)3 policy think tank, and it has a 501(c)4 affiliate—ALEC Action. The Center falls squarely under the 501(c)3 part of the organization.

To learn more about the work that ALEC, and the Center to Free Speech, do you can visit the links above, or check out their social media feeds.

Facebook: American Legislative Exchange Council

Twitter: @ALEC_states

Shelby Emmett’s Twitter: @SpartanShelby




Today’s Senate Public Safety Committee Informational Hearing on the recent rise of violence at protests struck at the heart of one the most difficult questions California, and the nation, has had to deal with this year: How do we balance the need to protect our constitutional rights to free speech and assembly – even speech that some people find repugnant – with the need to protect public safety when protests turn violent? It featured testimony from the law enforcement officials and organizations that help develop hate crime training for law enforcement officers.

While the protests and violence in Charlottesville immediately come to mind, it’s an issue that’s plagued California recently as well. A few notable instances in California are the violent protests at UC Berkeley in February in opposition to an event featuring Milo Yiannopoulos and a clash between neo-Nazis and protesters at the State Capitol in Sacramento that left 10 injured.

Testimony from the law enforcement officials at the hearing focused on how they’ve modified and modernized their training and tactics to allow them to identify bad actors and pull them out of a situation while protecting a group of protesters right to protest while also preventing violence, either entirely or at least preventing violence from escalating.

Today’s informational hearing also provided a great example of the California Legislature’s committee process at work. The information gathered by lawmakers today will be crucial in the upcoming year as they go forward crafting legislation to help law enforcement officials more quickly deescalate potentially violent protests while protecting everybody’s right to free speech.

For more on committees, and their role in the California lawmaking process, please listen to Erinn Ryberg’s podcast on committees below. And for a refresher on hate speech, please also check out Leslie Gielow Jacob’s earlier post on the topic, as well as her podcast on hate speech – which I’ve also included below.

Legislative Committees

Hate Speech



Hate Speech

The First Amendment prohibits the President or Congress from taking away the NFL’s tax deduction because the league permits players to engage in political protest.

The President tweeted this morning, “Why is the NFL getting massive tax breaks while at the same time disrespecting our Anthem, Flag and Country? Change tax law!”

Last month, Republican Congress Member Matt Gaetz said the same thing in a press release announcing his sponsorship of a bill to remove professional sports leagues’ tax exemption.  According to Gaetz, “[N]owhere in the Constitution does it say that Americans are required to subsidize disrespect for America.”

Both comments fail to acknowledge a fundamental constitutional limit on government action.  The very essence of the First Amendment’s right to speak is protection from government censorship, meaning penalties imposed because the government broadly, or a particular government official, disagrees with the idea expressed.  The prototype of speech most highly protected is speech critical of the government because citizens must hear and understand all points of view to form the opinions that allow them to participate meaningfully in our democracy.

The Constitution grants the President, and Congress, the power to do many, many things.  And many of these things make it more difficult for people to listen and to speak.  Taxes on paper and ink make books more expensive.  Tax deductions for charitable and religious organizations allow them to direct the money saved toward spreading their messages.  But purpose matters.   There is no question that Congress may change tax law to remove the NFL’s tax exemption, or that the President may publicly urge Congress to do so.  But Congress may not remove the tax exemption for the purpose of penalizing the NFL for tolerating its players’ political speech.

To be sure, proving the unconstitutional “purpose” of a large body like Congress is more difficult than proving the President’s unconstitutional purpose for an executive action through use of his own statements as evidence, as courts held with the second travel ban.  Nevertheless, these statements by public officials, combined with the largely “symbolic” effect of removing the limited tax exemption, provide a base of evidence to support a lawsuit, defended against with tax dollars, should Congress act soon to change a tax law that many people might well agree, as an economic or tax policy matter, makes no sense.




Hate Speech

Yesterday, the California State Senate Committee on the Judiciary held its first hearing on “Combating Hate While Protecting the Constitution.” The Senate Committee heard testimony from constitutional scholar and dean of the University of California, Berkeley School of Law, Erwin Chemerinsky, and from Joanna Mendelson with the Anti-Defamation League’s Center on Extremism. Ben Shapiro, a conservative commenter and former editor at Breitbart, was invited to give testimony by the Republican members of the committee, but was not given a spot on the panel. Shapiro gave public comment instead.

You can read a recap of the hearing by Taryn Luna in the Sacramento Bee’s Capitol Alert. You can also watch the full committee hearing on The California Channel. There will be a second hearing on this topic by the Senate Public Safety Committee on October 18.

Want to learn more? Check out our In Brief podcasts.