A Northwestern University professors op-ed in the Los Angeles Times is disturbing - not only in its conclusions, but also its assumptions. Sociologist Laura Beth Nielsen calls for restrictions on hate speech, because she contends that speech is violence.

We are currently seeing the results of confusing speech and political violence. Its not pretty.

As a sociologist and legal scholar, I struggle to explain the boundaries of free speech to undergraduates. Despite the 1st Amendment - I tell my students - local, state, and federal laws limit all kinds of speech, Nielsen writes. We regulate advertising, obscenity, slander, libel, and inciting lawless action to name just a few. My students nod along until we get to racist and sexist speech. Some cant grasp why, if we restrict so many forms of speech, we dont also restrict hate speech.

Shes only partially right there; government doesnt regulate libel, for example, but victims can win compensation from perpetrators in a civil action. Incitement to violence is certainly restricted, but advertisings relationship with the First Amendment is more complicated.

But the real problem with Nielsens piece is her assumptions.

In fact, empirical data suggest that frequent verbal harassment can lead to various negative consequences, she writes. Racist hate speech has been linked to cigarette smoking, high blood pressure, anxiety, depression and post-traumatic stress disorder, and requires complex coping strategies These negative physical and mental health outcomes - which embody the historical roots of race and gender oppression - mean that hate speech is not just speech. Hate speech is doing something.

Certainly, harassment is bad. And in many cases, its already illegal. There are remedies in place. But the fundamental truth here is that words are not actions.

The U.S. Supreme Court has time and again reaffirmed the freedom of speech - and ruled that hate speech is covered.

For the purposes of the First Amendment, there is no difference between free speech and hate speech. Ideas and opinions that progressive students and professors find offensive or hateful are just as protected by the Bill of Rights as anti-Trump slogans chanted at a campus protest, writes John Daniel Danielson for The Federalist.

The reason is simple. Once Congress can start banning hate speech, then unpopular political opinions will become illegal.

As Danielson points out, By hate speech, they mean ideas and opinions that run afoul of progressive pieties. Do you believe abortion is the taking of human life? Thats hate speech Concerned about illegal immigration? Believe in the right to bear arms? Support President Donald Trump? All hate speech.

And of course that could be turned against the left. Their ideas and values easily could be labeled hate speech. Think of black lives matter.

Were in the midst of a great confusion in our society. Political violence - from punching Nazis to attacking protestors to shooting conservative members of Congress - seems to be on the rise.

We must get back to the belief that ideas are to be countered with better ideas, not with violence. Words have consequences, but we cant ban them just because we dont like them.

Excerpt from:

Tyler Morning Telegraph - Editorial: First Amendment affirms that ... - Tyler Morning Telegraph

Ned Snow is a professor of law at the University of South Carolina School of Law.

In Matal v. Tam (formerly called Lee v. Tam), the Supreme Court ruled unconstitutional the disparagement clause of the Lanham Act, which prevents registration of marks that employ disparaging names. The linchpin of its opinion is the conclusion that the disparagement clause constitutes viewpoint discrimination. Secondarily, the court relies on the argument that the disparagement clause does not support the governments interest in regulating speech. As I explain below, these arguments are unconvincing. Finally, the court articulates a broader policy concern of upholding restrictions that directly suppress speech in the commercial marketplace. That concern, I argue, is unfounded for the disparagement clause.

Viewpoint discrimination

Viewpoint discrimination is simple to understand (although sometimes difficult to apply): It occurs when the government prohibits a particular view or takes a position rather than prohibiting a general category or subject matter of speech. At first blush, the disparagement clause seems to prohibit only a general category of speech rather than a particular viewpoint: The clause does not adopt a position, indiscriminately applying to all hate speech, regardless of which person or institution a mark might disparage. Yet the court sees it differently. Justice Samuel Alito explains that a prohibition of all disparaging views is still a prohibition of viewpoints. In his words: Giving offense is a viewpoint. And Justice Anthony Kennedy further explains: To prohibit all sides from criticizing their opponents makes a law more viewpoint based, not less so. Apparently, then, prohibiting all positions on a subject matter is just as viewpoint discriminatory as prohibiting only one. End of case, or so it would seem.

But this rationale is troubling. It calls into question other fundamental provisions of the Lanham Act. The Lanham Act prohibits registration of marks that both provide truthful information and make subjective assertions about their products. More specifically, the Lanham Act prohibits registration of marks that are generic descriptions of goods, that are specific descriptions of characteristics of goods, that are surnames (even of the source), and that indicate the geographic origin of a good. (Some of these types of marks may gain trademark protection over time and through an expensive showing of secondary meaning, but for purposes of viewpoint-discrimination analysis, the fact that they are denied in the absence of these circumstances is all that matters.) In short, the Lanham Act specifically prohibits applicants from telling truthful information and making claims about a good or its source. Are these provisions of the Lanham Act viewpoint discriminatory? According to Alitos reasoning, it would seem so: Telling the truth is a viewpoint a viewpoint, incidentally, that is much more central to the purpose of the First Amendment than is hate speech. And according to Kennedys reasoning: [t]o prohibit all sides from [making claims about their products] makes a law more viewpoint based, not less so, suggesting that a blanket prohibition of descriptive truths is viewpoint discriminatory. According to the reasoning of the Tam court, the Lanham Acts provisions that bar registration for truthful content would seem viewpoint discriminatory.

Consider also the Lanham Acts prohibition of government symbols. Section 2 of the Lanham Act bars trademark protection for any mark that [c]onsists of or comprises the flag or coat of arms or other insignia of the United States, or of any State or municipality, or of any foreign nation, or any simulation thereof. Last time I checked, preventing someone from expressing his patriotism by displaying the United States flag constituted an abridgement of free speech. Under the courts reasoning, the Lanham Acts prohibition of trademark registration for government symbols would be viewpoint discriminatory.

How, then, is a prohibition against disparaging speech any more viewpoint discriminatory than the other prohibitions in the Lanham Act? Stated differently, what principle dictates the viewpoint distinction between the disparagement clause and the other criteria for trademark eligibility? I dont see it. The disparagement clause cannot be viewpoint discriminatory for the simple reason that if it were, it would imply the viewpoint-discriminatory nature of other fundamental registration criteria.

Limited public forum

Why does it matter whether the discrimination is based on viewpoint or subject matter? Alito explains that if the discrimination were not viewpoint based, it might be justified under the limited-public-forum doctrine. Congress has created a public forum the trademark registration system to facilitate private speech, and as a result, the trademark system appears to constitute a limited public forum. In such a metaphysical forum, Congress may impose content-based restrictions that are viewpoint neutral, to the extent that the restrictions support the purpose of the forum. The disparagement clause, then, would be permissible to the extent that it supports the purpose of the trademark system, which I address below in discussing commercial-speech regulation.

Commercial speech regulation

Tellingly, Alito does not rely solely on viewpoint discrimination to condemn the disparagement clause. He analyzes the clause under the test for commercial-speech regulation. Key to this analysis is the government interest in regulating speech. Stated another way: What is it about the context of trademark law that would justify Congress in withholding registration from a disparaging mark? One interest is the orderly flow of commerce. That seems reasonable, given that hate speech does tend to interfere with people engaging in commercial transactions. Alito, however, argues that the statute is not narrowly tailored to this interest, so as to prevent only the sort of invidious discrimination that would disrupt commerce. That is debatable. Arguably, the court could interpret the disparagement clause narrowly, to avoid an unconstitutional interpretation.

Putting aside the orderly-flow-of-commerce interest, the court failed to recognize another important government interest underlying the disparagement clause: the interest in facilitating a peaceful society among citizens of disparate backgrounds and beliefs. A system of commerce that invites all to participate is integral to the fabric of a peaceful society. Religion, ideology and political party all yield to the commercial transaction of buyer and seller cooperating. Disparaging marks threaten this benefit of commerce. Disparaging marks work against universal cooperation in the marketplace. They facilitate an environment of exclusion. They promote disrespect rather than cooperation. Commercial offers for sale, which are supposed to facilitate universal cooperation, become a means to promote disrespect towards others. Simply put, disparaging marks contravene the critically important social benefit of a commercial system. Preventing those marks serves the underlying and broad purpose of commerce generally.

Thus, I am doubtful about the doctrinal underpinnings of the Tam decision. Its rationale for viewpoint discrimination appears weak when compared with the Lanham Acts other discriminatory criteria for trademark registration. Similarly, the disparagement clause appears justifiable as a commercial-speech regulation because it supports the governments interest in facilitating universal participation in the commercial marketplace.

Speech suppression in the commercial marketplace

All this being said, the court does raise an understandable concern. Alito frankly voices that concern:

The commercial market is well stocked with merchandise that disparages prominent figures and groups, and the line between commercial and non-commercial speech is not always clear, as this case illustrates. If affixing the commercial label permits the suppression of any speech that may lead to political or social volatility, free speech would be endangered.

It would seem, then, that the court is fearful that protected and valuable speech could be suppressed merely by labeling it as commercial. What if Congress passed a law that prohibited any critical speech in commercial print? Would the commercial nature of the speech justify such broad content-based regulation? First is a ban on disparaging trademarks, and next is a ban on The New York Times. Loudly the court opines that commerciality does not justify prohibitions on speech that permeates public life in this particular instance, trademarks.

This concern makes sense to a point. Certainly we must avoid suppressing ideas in the name of facilitating commerciality. Unconstitutional speech suppression might arise were Congress to withhold money, impose a fine or affix criminal penalties in response to speech content. But none of these acts of speech suppression is present here. Indeed, according to the court, the benefit of trademark registration is not the same as a cash subsidy or its equivalent. The benefit of registration lies entirely in the commercial realm, thereby limiting the influence of the disparagement clause to that commercial realm. For that matter, withholding registration does not prevent financial success in the commercial marketplace. Even without registration, a disparaging mark can still serve as a trademark. It can still identify source. And owners of disparaging marks can still fully participate in the commercial marketplace. So although a disparaging mark would lack the commercial benefit of registration, that mark could still succeed both financially and philosophically in the marketplace of ideas. Speech suppression is not occurring here.

In sum, Congress should be able to reward civility in commercial discourse. A society can both appreciate the value of contrary and even hateful ideas and at the same time reward commercial speakers who choose to engage civilly. There is neither suppression nor viewpoint discrimination when the people choose to reward civil discourse in commercial transactions.

Posted in Matal v. Tam, Symposium on the court's ruling in Matal v. Tam, Featured

Recommended Citation: Ned Snow, Symposium: The First Amendment silences trademark, SCOTUSblog (Jun. 20, 2017, 12:43 PM), http://www.scotusblog.com/2017/06/symposium-first-amendment-silences-trademark/

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Symposium: The First Amendment silences trademark - SCOTUSblog (blog)

That's it. That's the entirety of our Constitution's First Amendment, the central animus of our American way of life that gets dragged out every time someone's banned from Twitter.

There's a lot going on in those few sentences, and it's important to know when and how it applies to common situations -- and, equally as important, when it doesn't.

Let's look at some common First Amendment arguments; illuminated and debunked by a constitutional expert.

If it's a private institution, it's probably not a First Amendment issue.

If it's a public institution, the lines can get blurry.

"If you invite someone to speak on your campus and are a public university, you have to respect their First Amendment rights," Nott says. That doesn't mean you can't put regulations on a speech, like dictating the time, place, venue and suggestions for subject matter. It just means you can't do so in a way that discriminates against a certain point of view.

If students protesting play a hand in moving or canceling a speaker, that presents a different free speech challenge.

"If a speaker were to take legal action for being blocked from speaking, they can't do it against the students. You can't take constitutional action against a group of private citizens," she adds.

Such a complaint would have to go against the school, for allowing the constitutional breach to happen.

This is not a First Amendment issue though plenty of people think it is.

This scenario illustrates one of the biggest misconceptions people have about the First Amendment. Bottom line: It protects you from the government punishing or censoring or oppressing your speech. It doesn't apply to private organizations. "So if, say, Twitter decides to ban you, you'd be a bit out of luck," Nott says. "You can't make a First Amendment claim in court."

However, while it's not unconstitutional, if private platforms outright ban certain types of protected speech, it sets an uncomfortable precedent for the values of free speech.

If you work for a private company, it's probably not a First Amendment issue.

"It's the company's right to discipline their employees' speech," Nott says.

If you're a government employee, it's complicated.

Institutions like police departments, public schools and local government branches can't restrict employee's free speech rights, but they do need to assure that such speech doesn't keep the employee from doing their job. It's definitely a balancing act, and the rise of social media has made it harder for such institutions to regulate their employee's speech in a constitutional manner.

Definitely a First Amendment issue.

But, like pretty much everything in law, there are exceptions and nuances.

"It's definitely unconstitutional, unless you are trying to incite people to violence with your speech," Nott says. Even then, it needs to be a true threat -- one that has immediacy and some sort of actual intent.

It's a private company, so it's not a First Amendment issue.

There's that refrain again: Private companies, like social media sites, can do whatever they want.

But regulating conversations and posts online is a delicate balance for social media giants like Facebook.

"That says, if you are an internet company and you have some way for people to post or leave comments, you are not liable for what they do," Nott says. This covers things like obscenity, violence and threats.

The problem is, this protection often butts up against the enforcement of basic community standards.

"Facebook is under enormous pressure to take down, not just violent and illegal content, but fake news," Nott says. "And the more it starts to play editor for its own site, the more likely it is to lose that Section 230 protection."

This is a First Amendment issue, at the very least in spirit.

"Symbolic speech is protected by the constitution," Nott says. "In essence, you have the right to not speak. You have the right to silence."

In theory, a private employer could require you to stand for the anthem or say the Pledge of Allegiance, but such a requirement may run afoul of the Civil Rights Act. Even in schools, where there have been some cases of students being singled out for sitting or kneeling for the anthem, it would be hard to provide justification for punishment.

"This is an act of political speech, the most protected type of speech," Nott says. "It's completely not disruptive because it's silent." Plus, it is buttressed by court cases that have decided there is no requirement to salute the flag.

A First Amendment issue -- usually.

You are fully within your rights to record the police doing their job in public. And if you get arrested while doing so, your constitutional rights are being violated.

This is, unless you were doing something unlawful at the time of your arrest.

In a heated situation with police, that can also become a gray area. Physical assault or threats could obviously get you arrested, but what about if you were just yelling at the police while recording, say, to get them to stop an act or to pay attention?

"That's tough," Nott says. "If you were disturbing the peace, you can get arrested for that, or for other things. But the bottom line is it's not a crime to record police activities in a public space."

If it's a student publication, it's a First Amendment issue.

Nott points to a landmark Supreme Court cases from 1969 that has acted as a standard for cases involving free speech at public universities and colleges. That's Tinker v. Des Moines Independent Community School District, which you can read more about below.

Another case, Bazaar v. Fortune from 1973, helps tailor these guidelines to the student press by stating that schools cannot act as "private publishers" just because they fund a student publication or program. In other words, they can't punish the publication -- whether it be through student firings, budget cuts or withdrawals or a ban -- just for printing or broadcasting something they don't like.

Now, a gentle reminder that this is just for PUBLIC schools. All together now: Private institutions can (usually) do what they want!

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The First Amendment doesn't guarantee you the rights you ...

From todays opinion by Justice Samuel Alito (for four justices) in Matal v. Tam, the Slants case:

[The idea that the government may restrict] speech expressing ideas that offend strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought that we hate.

Justice Anthony Kennedy wrote separately, also for four justices, but on this point the opinions agreed:

A law found to discriminate based on viewpoint is an egregious form of content discrimination, which is presumptively unconstitutional. A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the governments benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.

And the justices made clear that speech that some view as racially offensive is protected not just against outright prohibition but also against lesser restrictions. In Matal, the government refused to register The Slants as a bands trademark, on the ground that the name might be seen as demeaning to Asian Americans. The government wasnt trying to forbid the band from using the mark; it was just denying it certain protections that trademarks get against unauthorized use by third parties. But even in this sort of program, the court held, viewpoint discrimination including against allegedly racially offensive viewpoints is unconstitutional. And this no-viewpoint-discrimination principle has long been seen as applying to exclusion of speakers from universities, denial of tax exemptions to nonprofits, and much more.

(Justice Neil Gorsuch wasnt on the court when the case was argued, so only eight justices participated.)

Asian-American dance rock band The Slants talk about their Supreme Court case, including a supporter they'd rather not have: Dan Snyder. (Gillian Brockell,Jesse Rosten/The Washington Post)

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Supreme Court unanimously reaffirms: There is no hate speech ...

Documentarian Brian Knappenberger took a keen interest in the lawsuit Hulk Hogan brought against Gawker. Not because of the tawdry details, though there were plenty of those: The wrestler sued the media company for invasion of privacy over a sex tape it published in 2012 featuring him and the wife of his friend Bubba the Love Sponge Clem.

Knappenberger was more interested in what the trial meant for the First Amendment. As soon as the jury sided with Hogan and put Gawker on the hook for an astounding $140million the filmmaker knew he had to get to work on his next movie.

Of course, that was long before he realized how much deeper the story went. It was before the revelation that Peter Thiel, a wealthy entrepreneur with a grudge, bankrolled the lawsuit that put Gawker out of business; before Thiel supported Donald Trump for president; and before Trump, who promised during his campaign to open up our libel laws, became leader of the free world.

Sometimes documentaries come along at the ideal moment. Chalk it up to luck or a futurists understanding of the zeitgeist, but Knappenbergers Nobody Speak: Trials of the Free Press is right on time as it begins streaming on Netflix on Friday. Its a crucial moment to consider what it means for the First Amendment, not to mention society, that a billionaire with a bone to pick could use his money to get the legal system to do his bidding.

Thiel had despised Gawker ever since it published a story about him in 2007 with the title Peter Thiel is totally gay, people. And he wasnt alone. Gawker had a well-earned bad reputation. A pioneer of online journalism, the company prized speed over fact-checking and became infamous for its questionable news judgment and snarky, cavalier attitude. Its Gawker Stalker feature was the tip of the iceberg, raising privacy concerns with its crowdsourced map that tracked the movements of celebrities.

But Gawker also broke legitimate stories, including one about the many women who had accused Bill Cosby of sexual assault.

As legendary lawyer and First Amendment advocate Floyd Abrams puts it in the movie: We dont get to pick and choose what sorts of publications are permissible.

And yet, Thiel did. He didnt see his court case as a threat to the First Amendment, he explained, because he didnt view Gawker as a journalistic enterprise. The co-founder of PayPal (and an early Facebook investor) declared putting Gawker out of business his most philanthropic deed. He maintained that the company was a singularly sociopathic bully.

But thats an absurd thing to say in a media environment in which Alex Jones basically says Sandy Hook didnt happen, Knappenberger said in a recent interview, referring to the conspiracy-theory-spewing Infowars radio host, who also spread lies about Pizzagate. Gawker is singularly sociopathic for posting this tape of a public person who had bragged about his sex life? Its not necessarily tasteful, but its certainly not sociopathic.

Nobody Speak shows that the Hogan-Gawker case is only one piece of a worrisome trend. In Nevada, for example, another moneyed magnate and Republican donor, Sheldon Adelson, secretly paid $140million to buy the Las Vegas Review-Journal a newspaper that had been critical of him in the past. Adelson, like the man he supported for president, has a history of suing journalists who write unflattering stories about him.

The wealthiest citizens clearly exert outsize power in our society, which becomes more problematic as the gap between the haves and have-nots continues to widen. The Fourth Estates job is to hold the powerful accountable, and yet the distrust of institutions especially the news media puts free speech in a precarious spot.

Technology and other factors like inequality are shifting and changing the ground we walk on, said Knappenberger, whose films The Internets Own Boy and We Are Legion: The Story of the Hacktivists also deal with technology and society. The way those forces are rubbing up against what you might think of as traditional values freedom of speech and democracy and acquisition of power and money that stuff is really shifting, and I dont think we quite know where its going.

Knappenberger said he could tell at the time that what was happening with Hogan and Gawker was connected to what was happening on the campaign trail.

Trump was always in this film from the beginning, he said. There was a palpable hatred of the media in the courtroom. The judge on the case, Jeb Bush appointee Pamela Campbell, had no sympathy for Gawker. Nor, apparently, did the jury.

Theres legitimate criticism, Knappenberger said of journalism. That its too corporatized or too cozy with power. For too long, [journalists] traded softball stories for access, and people are starting to call bulls---.

But the director is heartened by the response to the new presidency as reporters have been energized by a hunt for scoops that has led to seemingly nonstop breaking-news bombshells.

Meanwhile, Trumps ability to change libel laws appears to be limited, despite a menacing tweet after a New York Times story he didnt like.

That doesnt make the threat against free speech and real facts any less real. Lets not forget what happened in that Florida courtroom.

This became something much, much bigger, and it does point to something critical at the heart of whats going on right now, Knappenberger said. If money is leveraged against civil liberties and speech, what else is important? Its not that thats the only important thing. Its that how do you care about anything else? How do you tackle anything else without speech?

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A movie about Hulk Hogan's court case shows how the First ... - Washington Post

The Detroit News 11:04 p.m. ET June 22, 2017

The court ruling upholds the principle that the First Amendment protects even hateful speech.(Photo: J. Scott Applewhite / AP)

Americans shouldnt need constant reminding that under the First Amendment, they can say what they want, when they want and to whom they want, no matter how hateful or offensive.

And yet as longstanding as is that principle, the U.S. Supreme Court had to affirm it again this week when it ruled unanimously that an Asian rock band could trademark its name the Slants even though it is a derogatory term sometimes used to demean Asians.

The U.S. Patent and Trademark Office had denied the bands request to register and protect its name, deeming it amounted to hate speech. The office similarly stripped the Washington Redskins football team of its trademark because it is offensive to Native Americans.

The courts ruling basically upheld the principle that all speech, including hateful speech, is protected by the First Amendment and should not be restricted.

Thats the right call. The obvious danger of allowing the federal government to be the arbiter of free speech is that restrictions are easily manipulated to suit political agendas.

And offensiveness is very much in the ear they beholder. What shocks one person may not faze another.

The idea that the government may restrict speech expressing ideas that offend strikes at the heart of the First Amendment, Justice Samuel Alito wrote. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought that we hate.

Alitos opinion provides important clarification for the so-called disparagement clause of federal law, which forbids registration of a trademark that may disparage ... persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute.

Thats an overly broad carve-out that, again, relies on subjective interpretations influenceable by the regulators own experiences and biases.

Its not the appropriate role of the government, according to Justice Anthony Kennedy.

A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all, Kennedy wrote in concurrence. The First Amendment does not entrust that power to the governments benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.

There are, of course, marketplace consequences when speech oversteps societal norms and broadly offends. Products can be boycotted and individuals shunned. Thats the appropriate regulator.

This court has been a good friend to the First Amendment at a time when there are many who would shred it to stifle dissent and control the national political debate.

That the Slants opinion came on an 8-0 vote is a powerful affirmation of the foundational right of free speech and its sacred role in a democratic society.

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Editorial: Court shores up First Amendment - The Detroit News

On May 30, Rep. Darrell Issas San Diego County constituents saw a different side of the nine-term member of Congress.

Angry at peaceful protesters outside his district office building in Vista, California, the congressman took to the roof to express his frustration. Looking down upon the protesters, he phoned a local newspaper reporter to explain he was on the roof because the protesters wouldnt speak to him and blamed the reporter for being in cahoots with the protesters. On Twitter, however, Issa said he spent his morning talking to constituents and then popped upstairs to photograph them from the roof.

While Issas behavior was erratic, it isnt the most concerning aspect to this story. No member of Congress likes to see protests outside his window, but he should vocally defend protesters First Amendment right to do so. But Issas silence has been deafening, even though the city of Vista is trying very hard to crack down on the protests.

For the past few months, Ellen Montanari has organized weekly protests outside Issas office to voice concerns over Issas public policies, including Issas vote to repeal Obamacare. These days, people are eager to express their dissatisfaction with Issas performance and Montanaris protests have given them a platform to do it. So every Tuesday, the protesters show up for an hour-long peaceful rally outside of Issas office, and the city of Vista has taken notice.

Until recently, the protesters gathered on the public sidewalk next to his office building to exercise their First Amendment rights. But under the terms of the citys most recent permit, which is issued in 30-day increments, they have been relegated to a dirt path on the opposite side of the road. Taking direct aim at Montanari, the permit also makes her financially responsible for the behavior of all the protesters who show up.

The actions taken by the city are unconstitutional. The Supreme Court has ruled repeatedly that public sidewalks are one of the places where our First Amendment rights are at their most robust. A government restriction on sidewalk protests can be justified only by the most compelling and fact-based need and that reason can never include the government's desire that a protest be less visible or less critical.

Our First Amendment freedoms ensure that anger and political disagreement dont fester into violence.

On June 1, the ACLU of San Diego and Imperial Counties issued a letter to the city of Vista seeking the removal of the unconstitutional restrictions in the permit granted to Ellen Montanari. In our letter, we made it clear that the city cannot ban protest from a public sidewalk or make Ms. Montanari responsible for the conduct of others. We also explained to the city that it cannot bill protesters for any law enforcement response and reminded it cannot ban the use of bullhorns or microphones by protesters. The ACLUs letter is now under review by the city attorney.

Contempt for the First Amendment, however, isnt confined to Vista. Since the election, 22 state legislatures have considered 31 anti-protest bills. Fourteen have been defeated, but 10 are pending and seven have passed including laws in South Dakota and Tennessee against blocking streets during demonstrations.

But the United States commitment to the First Amendment has been on the decline since before the election.

In July 2016, Maina Kiai, the United Nations special rapporteur on the rights to freedom of peaceful assembly and of association, undertook an official mission to the U.S. to assess our countrys commitment to freedom of assembly and protest. When he completed his trip, he observed that Americans have good reason to be angry and frustrated at the moment.

But he then went on to explain that its our First Amendment freedoms that ensure that anger and political disagreement dont fester into violence. And it is at times like these when robust promotion of assembly and association rights are needed most, he said. These rights give people a peaceful avenue to speak out, engage in dialogue with their fellow citizens and authorities, air their grievances and hopefully settle them.

The local officials of Vista, California, should heed Kiais words and stop trying to block Ms. Montanari and other peaceful protesters from exercising the very rights that have made America an example to the world for over two centuries. And we should all hope Darrell Issa can find his way down from the roof and assure his constituents that he believes they have a right to protest even when hes the target.

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It's Time for Congressman Issa to Come Down From the Roof and ... - ACLU (blog)

As we have noted several times before, American Family Radios Bryan Fischer holds an utterly incoherent view of the First Amendment that allows him to at times insist that it only applies to Congress while, at other times, insisting that it applies to all sorts of other government entities, depending solely on which side of an issue he supports.

Whenever Fischer wants to defend some possible violation of the Establishment Clause, he insists that the First Amendment only applies to Congress, but when he wants to complain about what he sees as a possible violation of the Free Exercise Clause, he insists that the First Amendment applies to all sorts of entities.

Fischer did so again yesterday when he posted a column blasting a federal judge who ruled that a cross in Pensacola, Florida, must be removed because it violates the First Amendment:

Pensacola couldnt violate the First Amendment even if it tried.

The First Amendment was not written by the Founders to restrain any entity other than Congress. The very first word in the First Amendment makes this abundantly clear. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

Now the First Amendment has never been amended. It still means exactly what it meant when the Founders wrote it. Only Congress can violate the First Amendment. It is constitutionally impossible for cities like Pensacola to violate the First Amendment since it wasnt even written to restrain them.

Fischers view regarding the reach of the First Amendment in this case, of course, directly contradicts the view he espoused in response to the case of Kelvin Cochran, who was fired from his position as fire chief in Atlanta a few years ago for distributing to employees a self-published book he had written that included attacks on homosexuality.

In that case, Fischer wrote a column titled Atlanta Mayor Shreds Entire First Amendment to Dump Fire Chief in which he blasted the city for violating the First Amendment:

In this process, Cochran has been stripped of every right that is cherished and protected under the First Amendment. His freedom of religion, gone. His freedom of speech, gone. His freedom of the press, gone. His freedom of association, gone. When I say that homosexuality is the enemy of freedom, the First Amendment, and virtually the entire Constitution, this is what Im talking about.

Cochran is considering legal action, as well he should. Either the First Amendment means what it says, in which case Cochran has an unassailable legal argument, or the Constitution doesnt mean anything at all.

Fischer, it seems, wants to have it both ways. When it suits his right-wing political agenda, he fumes that Christians are supposedly being stripped of every right that is cherished and protected under the First Amendment by one city, but when it comes to the issue of a cross on public land, he insists that a city cannot possibly violate the First Amendment even if it tried because the First Amendment does not apply to any entity other than Congress.

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Bryan Fischer Can't Make Up His Mind About The Reach Of The First Amendment - Right Wing Watch

The internet has become so essential to American public discourse that saying so is almost trite now. Members of Congress regularly use social media to engage with constituents. The President has turned Twitter into one of his primary modes of communication. It was only a matter of time before the U.S. Supreme Court got its turn to sing the praises of social media.

In Packingham v. North Carolina, the Supreme Court unanimously struck down a North Carolina criminal law that made it a felony for registered sex offenders to access social networking and other websites. In doing so, however, the Court took a stepperhaps a bigger step than some intendedtoward guaranteeing a constitutional right under the First Amendment to access the internet.

Packingham involved a 2008 North Carolina statute that made it a felony for a registered sex offender to access a commercial social networking website that is known to allow minors. The law defined a commercial social networking website with four requirements: (1) the operator of the website had to earn revenue through fees or advertisements; (2) the website had to allow for social introductions between people; (3) the website must allow users to create widely available personal profiles or pages; and (4) the site must give users a mechanism of communicating with each other, such as through a chat room or message board. Though the law carved out a few exceptions, it created a broad enough stick that the state of North Carolina had already prosecuted over a thousand people for violating it.

Nearly a decade after Packingham was convicted for a sex crime and registered as a sex offender, he posted on Facebook about how excited he was to have gotten a traffic ticket dismissed. A member of the local law enforcement noticed the post, and the state charged Packingham with violating the North Carolina law without alleging he had contacted a minor or committed any other illicit acts on the internet. The trial court denied Packinghams First Amendment challenge to the statute, and he was ultimately convicted for violating the statute. North Carolinas intermediate Court of Appeals agreed with Packingham and struck down the statute. But the North Carolina Supreme Court reversed, finding the law to be carefully tailored to avoid violating the freedom of speech.

In an 8-0 decision, the Supreme Court on June 19 reversed the North Carolina Supreme Court and struck down the North Carolina law as unconstitutional.

Writing for five justices, Justice Anthony Kennedy kicked off his opinion with an analogy. Within First Amendment law, there is a basic rule that a street or a park is a quintessential forum for the exercise of speech. And what is the equivalent forum of today? The answer is clear, Justice Kennedy put forward: It is cyberspace. . . . and social media in particular.

The majority spent a good portion of its opinion highlighting the centrality of the internet to First Amendment activities and modern life. It noted that websites like Facebook, LinkedIn and Twitter collectively have billions of users, each of whom engages in multiple First Amendment-protected activities: debating religion and politics, sharing photographs, advertising and finding jobs, and reaching out to elected officials. Justice Kennedy went on to describe the Cyber Age as a revolution of historic proportions, acknowledging what lawyers working in this field have taken to heart: courts must be conscious that what they say today might be obsolete tomorrow.

The majority held that the North Carolina statute impermissibly burdened more speech than necessary in order to further its purposethe protection of children against recidivist sexual predators. Even though the Packingham majority acknowledged that North Carolinas goal was extremely important, it also found that the laws prohibitions were unprecedented in scope and thus could not stand. Social media sites allow for the communication of ideas and knowledge; they are the modern public square. Cutting individuals off from these important spaces prevents them from exercising their First Amendment rights. Furthermore, convicted criminals might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.

Writing for three members of the Court, Justice Samuel Alito concurred in the conclusion that the North Carolina law was overbroad and thus unconstitutional, but was hesitant to support the majoritys undisciplined . . . musings that seem to equate the entirety of the internet with public streets and parks. After all, Justice Alitos concurrence notes, there are clear distinctions between parks and cyberspace: from differences in the ability for parents to monitor their children, to differences in the amount of anonymity each space offers. And Justice Alito expressed concern that some may read the majoritys broad language as a prohibition on any and all attempts to pass laws addressing child sexual exploitation online or other efforts to regulate access to the internet.

At root, Justice Alitos concurrence took issue with the improper tailoring of the North Carolina law. Its vague language would prevent registered sex offenders from accessing, for example, Amazon, The Washington Post or WebMD. By categorically blocking access to these sites, the North Carolina law goes well beyond its intended means and runs afoul of the First Amendment.

The Courts Packingham decision is one of the first cases to seriously hint at the idea that access to online forums of expression is a protected right. Heavily relying on an amicus brief by the Electronic Frontier Foundation, Justice Kennedys opinion highlights the importance of the internet as a marketplace of ideas, and its central role in promoting associational rights of persons in a free society. The Packingham decision casts serious doubt on the constitutionality of state and federal statutes, regulations and interpretations, which may impose broad limitations on access to the internet, particularly where the restriction is based on a persons continuing status or in the absence of an adjudication. Packingham may ultimately prove to be a powerful doctrinal weapon that internet-based companies can wield against laws and regulations that limit access to their services.

An important question that Packingham leaves unanswered, however, is what level of constitutional scrutiny applies to content-neutral regulations affecting access to the modern internet. All eight justices agreed that the North Caroline statute, given its overbreadth, would fail under any level of scrutiny under First Amendment jurisprudence. But the majoritys opinion gives little guidance for lawmakers that want to take steps to deter online predation on what type of statute would withstand a First Amendment challenge.

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Supreme Court Declares First Amendment Interest in Access to Social Networks - Lexology (registration)

What can powerless, concerned citizens do in response to President Trump's move to withdraw the United States from the Paris Climate Agreement?

Here's a pretty good answer from Sen. Sheldon Whitehouse, D-R.I.:

If you haven't joined an environmental group, join one. If your voice needs to be heard, get active. If you are a big corporation with good climate policies that has shied away from engaging politically, it's time to engage.

Taken from his official statement on the withdrawal, Whitehouse describes exactly the type of activity the First Amendment was written to protect. When government takes action that citizens find objectionable, the First Amendment protects their right to organize, petition, and speak out. In other words, it protects the right to "get active."

Unfortunately, Whitehouse has spent his political career promoting efforts to hamper just this sort of civic engagement.

He uses the megaphone that comes with his position of power to rail against the rights of advocacy groups that choose to respect the privacy of their donors. And he supports bills that would cripple all but the most well-funded groups.

Whitehouse has introduced the so-called "DISCLOSE Act" multiple times now. DISCLOSE is a contrived acronym for "Democracy Is Strengthened by Casting Light on Spending in Elections."

Whitehouse and his allies say this bill would increase transparency. But the "light" that would be cast would not shine on those in power, such as senators. We wouldn't know anything about what groups or persons he meets with behind closed doors.

Rather, the bill targets citizen groups that seek to hold those in power accountable. Whitehouse would like us to believe that the legitimate interest in government transparency necessitates exposing the personal information of private citizens who choose to join groups and advocate for social change.

Disclosing the names, addresses, occupations, and employers of citizens who give to advocacy groups exposes people to potential intimidation and harassment. So if his bill became law, fewer are likely to want to join an environmental group. The loss of privacy increases the costs of civic engagement.

The laws drive up compliance costs for groups too. Disclosure laws are very complex. They require groups to file frequent, detailed reports to government agencies. To stay in compliance, groups must hire expensive lawyers and spend resources on exhaustive record-keeping. As a result, Whitehouse is promoting laws that would directly hinder citizens' willingness and ability to "get active."

The DISCLOSE Act is just one part of Whitehouse's endless crusade against the free speech rights of groups he likes to call "dark money" organizations. The pejorative term "dark money" refers to money spent on speech by groups that do not have to publicly report the private information of their donors to the government.

One such "dark money" group is the Sierra Club. Among the most well-known environmental advocacy groups in the nation, it is presumably one of the groups Whitehouse would encourage concerned citizens to join.

The Sierra Club explicitly offers to protect the privacy of its donors, including corporate donors. So, it clearly has supporters who desire anonymity and with good reason. Surely, some of those supporters would choose not to donate if they no longer had this option.

Whitehouse's call for increased political engagement from corporations highlights his apparent myopic view that the First Amendment only applies to advocacy he agrees with as well.

Whitehouse makes no attempt to hide his animus toward corporate political speech. He has repeatedly co-sponsored a constitutional amendment that, among other abominations it would do to the First Amendment, seeks to grant Congress unlimited power to prohibit any corporate entity from spending money on political speech.

No word on whether he favors an exception for corporations with "good" policies on climate change.

It is heartening to see that Whitehouse is now encouraging citizens (and corporations) to engage in political speech instead of yet again attempting to silence opposing viewpoints.

His statement demonstrates that he does indeed understand the value of First Amendment-protected advocacy. However, the statement is also an example of the far too common tendency among many politicians to view only friendly advocacy as legitimate.

The First Amendment protects the right of every American to privately support an environmental group. It also supports the right of every corporation to speak in opposition to the president's actions regarding climate policy.

But Whitehouse must realize that the First Amendment also protects the right of citizens, nonprofit groups, and corporations to engage in political speech he opposes. In the end, his anti-speech objectives will harm the First Amendment rights of his allies as much as his opponents.

Alex Baiocco is a Communications Fellow at the Center for Competitive Politics in Alexandria, Virginia.

If you would like to write an op-ed for the Washington Examiner, please read ourguidelines on submissions here.

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Sen. Sheldon Whitehouse is a hypocrite on the First Amendment - Washington Examiner

Michelle Carter's involuntary manslaughter conviction on Friday for sending texts urging her then-boyfriend to commit suicide may be a First Amendment violation, according to experts on free speech.

In announcing his decision, Massachusetts Juvenile Court Judge Lawrence Moniz described Carter's behavior three years ago, when she was 17 years old, as "reckless." Her then-boyfriend, Conrad Roy, was 18 years old when he died in July 2014 of carbon monoxide poisoning after locking himself in his truck following the texts from Carter, including one telling him to get back in the car when he got out. Before his death, Roy had searched online for ways to commit suicide, a digital forensic analyst testified in the trial, and he had a history of previous suicide attempts, according to The New York Times.

Carter's case is the first of its kind in which someone has been convicted of manslaughter for using his or her words, First Amendment experts told ABC News.

Involuntary manslaughter is defined as an unintentional killing resulting from recklessness or criminal negligence.

Here's what experts had to say about the ruling and the First Amendment:

Under the First Amendment, speech cannot be criminalized, except in situations where the speech itself is a crime, such as hate speech or solicitation, Longwood, Florida-based First Amendment attorney Lawrence Walters told ABC News. Walters added that the prosecutors in Carter's case essentially tried to criminalize her words and speech.

Walters said that while "there's no question" that the speech used in Carter's texts was "abhorrent," there's no statute that says you can't encourage someone to commit suicide.

"The First Amendment is there to protect vile and repugnant speech," he said.

The ACLU said in a statement that Carter's conviction "exceeds the limits" of criminal law and "violates free speech protections by the Massachusetts and U.S. Constitutions."

"Mr. Roy's death is a terrible tragedy, but it is not a reason to stretch the boundaries of our criminal laws or abandon the protections of our constitution," said Matthew Segal, legal director of the ACLU of Massachusetts.

Massachusetts does not have a law making it illegal for someone to encourage or persuade an individual to commit suicide, Segal added.

Prosecutors argued that Carter was reckless when she told Roy to get back in the vehicle, saying that Roy didn't want to die, and therefore Carter caused his death.

Marc John Randazza, free speech attorney and president of the First Amendment Lawyers Association, disagreed with the ACLU, saying that the First Amendment "does not simply say that if words are involved, you cannot be held responsible for their consequences."

"That's not how it works," he said. "If that's how it works, how would we ever have the crime of extortion? Extortion is always made of words unless you're really good at inferring what you're gonna do to someone."

Randazza cited the 1969 Supreme Court decision in Brandenburg v. Ohio, which states that speech can be prohibited if it is directed at inciting or producing imminent lawless action" and if it is likely to incite or produce such action.

Randazza said that if there is "clear and present danger of imminent lawless action, and you incite that action, and you know that your incitement will cause that action, you can be held liable for that."

He added that Carter's case isn't different from standing next to a suicidal person on a bridge and encouraging them to jump.

Another issue with Carter's conviction is that prosecutors may have taken her texts out of context by not taking every text into consideration, said First Amendment attorney Jennifer Kinsley, a law professor at Northern Kentucky University.

Kinsley said she read through all of the texts Carter sent to Roy and that their meanings were "all over the place."

"In previous texts, she was encouraging the young man to get help and seek counseling and to not commit suicide," she said. "I think the messages that were used to convict her were pulled out of context."

Speech is to be taken into consideration as a whole, Kinsley said, adding that she believes that was not done in Carter's case.

"This is a very dangerous case in terms of the right of free speech," she said.

Randazza feels that Carter "obviously had no idea how to deal with mental health issues" and speculated that she became "exasperated," which led her to encourage Roy to get back in the truck.

Carter's conviction could have a "very disturbing" and "chilling effect" on free speech, Walters said.

"A condition like this will scare people from speaking their mind -- having a conversation or robust debate -- out of fear that their words will encourage someone to commit criminal behavior," Walters said.

Walters called the ruling a "slippery slope" that may encourage prosecutors and law enforcement to apply laws across the country to criminalize speech.

The ACLU said that if the conviction is "allowed to stand," it could impede "important and worthwhile end-of-life discussions between loved ones across the Commonwealth."

Rather than the historical categorization of the First Amendment, which looks at the speech itself, courts may be trending toward a harm-based interpretation of the First Amendment, which is about how someone may feel when hearing speech, Kinsley said.

Even in cases of slander, the "categories have never been defined by the feeling of the listener," she added.

Carter's case could also have an effect on how cyberbullying on social media is dealt with in the future, Randazza said.

"In the social media age, we are seeing cases like this -- where the emotional harm of the person is being used to define the extent of free speech protection," Kinsley said.

If someone were to commit suicide as a result of online bullying, prosecutors may try to "shoe-in" on the person who did the cyberbullying for manslaughter, Randazza said.

Carter maintained her innocence throughout her trial, and her lawyers argued that Roy was on the "path to take his own life for years."

Both Walters and Kinsey said it is likely that the ruling will be reversed on appeal.

"If the traditional First Amendment analysis is applied, the case should be reversed," Walters said.

"It's a pretty clear First Amendment violation for this young woman to be convicted," Kinsley said.

ABC News' Emily Shapiro contributed to this report.

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Can words kill? Guilty verdict in texting suicide trial raises questions - ABC News

Yesterday, U.S. Senator Ted Cruz (R-TX) participated in a Senate Judiciary Committee hearing today titled Free Speech 101: The Assault on the First Amendment on College Campuses.

During his opening remarks he offered a passionate defense of the First Amendment which you can watch below:

Below is the transcript of his remarks:

Thank you Mr. Chairman and thank you for holding this very important hearing. Free speech matters. Diversity matters. Diversity of peoples backgrounds, but also diversity of thought. Diversity of ideas. Universities are meant to be a challenging environment for young people to encounter ideas theyve never seen, theyve never imagined, and that they might passionately disagree with. If universities become homogenizing institutions that are focused on inculcating and indoctrinating, rather than challenging, we will lose what makes universities great.

The First Amendment is not about opinions you agree with. Its not about opinions that are right and reasonable. The First Amendment is about opinions that you passionately disagree with and the right of others to express them. Its tragic, what is happening at so many American universities where college administrators and faculties have become complicit in functioning essentially as speech police, deciding what speech is permissible and what speech isnt. You see violent protests the senior Senator from California referred to. In acting effectively, a hecklers veto, where violent thugs come in and say, This particular speaker I disagree what he or she has to say and therefore I will threaten physical violence if the speech is allowed to happen. And far too many colleges and universities quietly roll over and say, Okay, with the threat of violence, we will effectively reward the violent criminals and muzzle the First Amendment.

I saw a recent study from the Knight Foundation that said a majority of college students believe the climate on their campus has prevented people from saying what they believe out of fear of giving offense. What an indictment of our university system. And what does it say about what you think about your own ideas? If ideas are strong, if ideas are right, you dont need to muzzle the opposition. You should welcome the opposition. When you see college faculties and administers being complicit or active players in silencing those with opposing views, what they are saying is they are afraid. They are afraid that their ideas cannot stand the dialectic, cannot stand opposition, cannot stand facts or reasoning or anything on the other side, and it is only through force and power that their ideas can be accepted.

I am one who agrees with John Stewart Mill the best solution for bad ideas, for bad speech, is more speech and better ideas. Are there people with obnoxious ideas in the world? Absolutely. The Nazis are grotesque, and repulsive, and evil. And under out constitution they have a right to speak and the rest of us have a moral obligation to denounce what they say. The Ku Klux Klan are a bunch of racist, bigoted thugs, who have a right to express their views. And we have an obligation then to confront those views which are weak, poisonous, and wrong, and confront them with truth. We dont need to use brute force to silence them because truth is far more powerful than force. This is an important hearing. I thank the witnesses for being here and I thank the chairman for hosting.

Shane Vander Hart is the founder and editor-in-chief of Caffeinated Thoughts. He is also the President of 4:15 Communications, LLC, a social media & communications consulting/management firm. Prior to this Shane spent 20 years in youth ministry serving in church, parachurch, and school settings. He has also served as an interim pastor and is a sought after speaker and pulpit fill-in. Shane has been married to his wife Cheryl since 1993 and they have three kids. Shane and his family reside near Des Moines, IA.

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Ted Cruz: The First Amendment is not about opinions you agree with. - Caffeinated Thoughts

When Zachary Wood arrived at Williams College his freshman year, he had high hopes for an academic environment that challenged his views. Now going into his senior year, Wood says he has faced backlash from students and administrators for inviting controversial speakers to campus.

Wood appeared before the Senate Judiciary Committee on Tuesday, part of a panel discussing free speech on college campuses.

Wood describes himself as a liberal Democrat, but he brought provocative speakers representing diversepolitical ideologies to campus. He wanted to expose students to ideas they disagree with.

One such speaker invitation prompted the Williams College administration to cancel the event and revise the campus speaker policies.

Wood said this was impermissible, undemocratic, and antithetical to the intellectual character of the college

Williams College is not alone in disinviting speakers. The Foundation for Individual Rights in Education (FIRE) has tracked attempts to disinvite college speakers since 2000. It documented an upward trend. In 2016, FIRE recorded 43 incidents in which students or administrators attempted to cancel a planned speech.

Senator Ted Cruz lambasted college administrators for acting as speech police.

If universities become homogenizing institutions that are focused on inculcating and indoctrinating rather than challenging, we will lose what makes universities great, Cruz said.

The issue of disinviting speakers gained national attention in February when violent protests broke out at the University of California, Berkeley in response to a scheduled talk by alt-right provocateur Milo Yiannopoulos.

More recently, Berkeley cancelled a talk by commentator Ann Coulter amid more threats of protest.

Ranking Democrat Sen. Dianne Feinstein pointed to these violent demonstrations as justification for college administrators cancelling speeches. The senator from California said university police forces often do not have the training and resources needed to handle these situations.

Feinstein argued that Berkeley has a right to protect its students from demonstrations once they become acts of violence.

While there was consensus among panel members on the importance of free speech on campus, the issue came to the application of that right in practice.

UCLA Law professor Eugene Volokh said it was important to punish violent protesters to ensure that they dont continue to disrupt speeches. He said this will sometimes require bringing in more law enforcement.

If you violate the law and by this I mean laws against vandalism, laws against violence, laws against physically shouting people down, then in that case you will be punished rather than having your goals be achieved, Volokh said.

Feinstein pushed back on the suggestion of more law enforcement to control college protests. She asked whether any lessons were learned fromthe 1970 Kent State shooting, in which Ohio National Guardsmen shotand killed four students and injured nine others.

Frederick Lawrence, secretary and CEO of the Phi Beta Kappa Society, said colleges must start with a strong presumption in favor of the speech but make judgements based on the circumstances. As a former president of Brandeis University, Lawrence said it is greatly exaggerated to expect colleges to have the resources to deal with all types of violent protests.

Lawrence said that no matter the speakers beliefs, colleges should find ways to host the event. He suggested making speeches private events if needed, closed to people outside the university community.

Over the past few months, several states have taken up the issue of free speech on campus. A bill passed the North Carolina House in April that would ensure public universities be open to all speakers. It also would require sanctions on protesters who disrupt events.

Panelist Floyd Abrams, a prominent First Amendment lawyer, said he was apprehensive about state legislatures getting too close to the university campuses. Abrams said state legislatures should not dictate what colleges can teach or cannot teach.

On the federal level, a bipartisan resolution calling for the protection of free speech was introduced in the U.S. House of Representatives in May. If passed, the resolution would condemn university free speech zones and restrictive speech codes. The Senate does not have any similar legislation.

Calling himself a small government guy, Sen. Ben Sasse said he wants to see as little of this adjudicated by coercion and power and possible. The Nebraska senator and former college president called on college administrators to defend free speech on their campuses.

Following the hearing Sen. John Kennedy agreed with Sasse, making clear to reporters that federal intervention was not needed to solve the problem.

I dont want the government to have to come in and say this is acceptable and this isnt, Kennedy said. I want a university president to do his job and to have the guts to do it. And if he cant do it he ought to quit.

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Balancing the First Amendment and Students' Safety - Roll Call

On Monday in Packingham v. North Carolina,the justices unanimously (minus Gorsuch) voted to invalidate a North Carolina statute making it a felony for a registered sex offender to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages. But Justice Alito, joined by Roberts and Thomas, concurred only in the judgment. All eight Justices agreed that the statute wasnt sufficiently tailored. Both opinions emphasized the possible application of the statute to Amazon.com, washingtonpost.com, and webmd.com.

So where did the opinions differ? The central disagreement between the two opinions is how judges applying the First Amendment should respond to the changing nature of cyberspace. From the majority:

While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. The forces and directions of the Internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow.

This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.

And from the concurrence:

The Court is correct that we should be cautious in applying our free speech precedents to the internet. Ante, at 6. Cyberspace is different from the physical world, and if it is true, as the Court believes, that we cannot appreciate yet the full dimensions and vast potential of the Cyber Age, ibid., we should proceed circumspectly, taking one step at a time. It is regrettable that the Court has not heeded its own admonition of caution.

The majoritys point that that what [courts] say today might be obsolete tomorrow is an important one that I discussed in the Internet context almost 20(!) years ago in Stepping into the Same River Twice: Rapidly Changing Facts and the Appellate Process.

But I want here to highlight a slightly different point. When it comes to changing phenomena (like cyberspace), what is the best default position with respect to the First Amendment? Should judges err on the side of starchy application of free speech tests, or a more flexible approach? This are not new questions. For instance, back in 1996, in Denver Area Education Telecommunications Consortium, Inc. v. FCC, the Supreme Court considered regulation of indecency on public access and leased access channels. Justice Souter wrote a concurrence suggesting that, in the fast-changing world of telecommunications, judges should heed the admonition First, do no harm. Justice Kennedy responded: Justice Souter recommends to the Court the precept, First, do no harm. The question, though, is whether the harm is in sustaining the law or striking it down. As I noted in a different article, the injunction [f]irst, do no harm provides little guidance unless we can identify what the do no harm position is.

In Mondays case, Justice Kennedys majority opinion, consistent with his concurrence in Denver Area and his First Amendment jurisprudence more generally, treats broad and rigorous application of First Amendment tests as the do no harm position in the ever-changing world of cyberspace. Justice Alitos concurrence wants a default that takes smaller steps and gives judges (and thus legislatures) more flexibility. Obviously there is no ineluctable answer here. But, once again, baselines are doing a lot of work.

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What is the 'do no harm' position on the First Amendment in cyberspace? - Washington Post

Progressive hysterics highlight the beauty of the First Amendment

American free speech is a wonderful thing, even when the speech is stupid

Free speech is indeed the great American right; our freedom of speech regime is perhaps the most liberated in the world. It is exceedingly difficult to get in trouble for saying something in America. This is a good thing.

Its a good thing even when the speech in question is irritating, hateful or profoundly stupid. Such was the case recently at the University of Georgia, where the colleges Young Democrats called for the beheading of congressional Republicans. The group of students was actually playing off of a professors earlier call for the firing-squad execution of Republicans. Both the professor and the students were demanding that Republicans be killed due to their efforts to repeal Obamacare and replace it with Trumpcare. (It seems to be an accepted part of the American political order that the Left, when confronted with politics they dont like, will often quickly and happily resort to violence or the threat of violence.)

There are several ways to look at this incident. On the one hand, this is simply an instance of childish political hysterics, something the American body politic must deal with every time theres a Republican in the White House. On the other hand this kind of thing could be an indication of a much more deep-seated political dysfunction, a sign that liberals are increasingly incapable of operating within the bounds of normal, healthy, rational political discourse.

But more broadlyand more importantlywe might look at this stupid dust-up as a key indicator of the free state of American speech and expression. The level of protection that speech is afforded in this country is frankly astonishing, not just compared to the tyrannies and tinpot dictator republics across the globe but even when stacked up against the relatively enlightened countries of Western Europe and the member states of the British Commonwealth. When a university professor and a group of college students can espouse this kind of reprehensible rhetoric free from the fear of prosecution, it says something special about our country (even as it says something rather dismal about the state of progressive politics).

Our college campuses, of course, have in recent years become hotbeds of censorship and anti-free-speech agitation, though such efforts have primarily been directed atconservativespeech: if a right-wing professor or a group of College Republicans had made these comments, you can be assured that the Office of Civil Rights would be mounting several investigations into the matter, and the campus mobs would have instituted a 24-hour vigil against the offenders. Culturally and sometimes legally, free speech is often a one-way street at American universities, and that is a disgrace. But in the country at large, we are more or less entirely free to speak our minds. And that is a blessing.

MORE: Berkeley op-ed: safety of marginalized more important than free speech

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Progressive hysterics highlight the beauty of the First Amendment - The College Fix

David Jadon 2:39 p.m. ET June 20, 2017

David Jadon(Photo: CONTRIBUTED PHOTO)

After more than a month of bad decisions, Indian River County School administrators finally have displayed some smarts. It took an honors student's steadfast belief in the First Amendment, and worldwide attention, to make it happen.

That honors student J.P. Krause, a top student, rising seniorand the winner of the vote for Vero Beach High School's senior class presidency never knew what hit him. His classmates in hisAdvanced PlacementU.S. History class asked him to give a speech in support of his campaign, and his teacher encouraged him to do so. He gave a lighthearted, 2016 presidential campaign-inspired, 90-second speech, and his classmates laughed.

Krause said he was for liberty while his opponent was for higher taxes. He said he was opposed to the rival high school Sebastian River, and his opposing candidate was for it. Krause proposed building a wall between the two schools and making the other school pay for it. Joy Behar of "The View" later said on national television that J.P.'s off-the-cuff speech was "smart."

MORE |Superintendent overturns principal's call on Vero Beach High School class election

"Smart" Behar had that right. Indeed, the very next day after the speech the day of the election Krause represented Vero Beach High in a national academic competition. He came in 10th individually while his Vero Beach team came in third nationally.

Smart.

Unfortunately, Krause had no idea trouble was afoot back at home. School administrators had learned of his campaign speech and decided it amounted to harassment. Of course, Krause had not harassed anyone in the speech, and anyone who saw the videoand knew Krauseknew he didn't and wouldn't have done so.

The principal disqualified Krause from the officeKrausewon fair and square, and punished him to boot. To add insult to injury, the principal decided the campaign speech should be entered into Krause's permanent disciplinary record as harassment.

Not so smart.

Laurence Reisman: Trump effect puts international spotlight on Indian River County school issue

When Larry Reisman of this newspaper heard about Krause, he wrote about the unfairness of the situation. Reisman called attention to the fact that Krausehad First Amendment rights the school did not consider. Pacific Legal Foundation, for whom I am working as a summer clerk, then got wind of it. Pacific Legal represents individuals and businesses when the government violates their constitutional rights. Punishing Krause for his humorous campaign speech clearly violated Krause's First Amendment rights.

Our Founding Fathers did not design the First Amendment to protect feelings. While under certain circumstances schools have the right to punish or censor student speech, this case did not fit those circumstances. Courts have ruled that school policies that go too far to censor speech are unconstitutional. So it is here.

A classmate had recorded the speech; the video demonstrated beyond dispute the school had wronged Krause.

Within days, the entire world had seen the video. Those on the left side of the aisle, including Whoopi Goldberg and Behar on "The View," and those on the right, including "Fox & Friends" and National Review, all sided with Krause. So did Univision, the New York Daily News and the London Daily Mail. The world took his side because reasonable people on the left, right and center know the First Amendment provides the bedrock for all of our freedoms.

The global attention finally caused some smarts at the local schoolhouse.

Sadly, this local uproar exemplifies a broader phenomenon across the country, where different viewpoints are censored or restricted by both college and high school administrators. The Founding Fathers and First Amendment scholars have recognized the importance of the "marketplace of ideas." Without it, free speech cannot truly exist.

Upon entering college, campuses greet students with free speech zones, oppressive speech regulations, banned speakers, safe spaces and censorship.Once the epicenter of discussion, debate and learning, campuses have become segregated intellectually, no longer challenging students to stand up, speak and engage civilly with one another.

Americans of all political stripes must speak up to put a stop to this nonsense.

J.P. Krause did nothing wrong. To the contrary, he is a champion of the First Amendment, standing up for his right to speak when so many others would bow down. Vero Beach High School should be proud of its new senior class president. The rest of the world is.

David Jadon, a summer law clerk at Pacific Legal Foundation, is a rising third-year law student at the University of Florida College of Law. Pacific Legal Foundation is representing J.P. Krause free of charge in his dispute with the Indian River County School Board.

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Guest column: National debate leads to First Amendment smarts at Vero Beach High School - TCPalm

Be careful not to skim over potential First Amendment challenges to commercial speech regulations in labeling cases. By whey of example, the Eleventh Circuit recently found that the actions of the Florida Commissioner of Agriculture and the Chief of the Florida Bureau of Dairy Industry violated Ocheesee Creamery LLCs First Amendment rights related to the labeling of its products.Ocheesee Creamery LLC v. Putnam, 851 F.3d 1228 (11th Cir. 2017).

Ocheesee Creamery is a dairy company that produces milk and other dairy products. One such product is an all-natural, additive-free 100% skim milk, which Ocheesee Creamery labels as skim milk on the product packaging.

Florida law restricts the sale of milk and other milk products not classified as Grade A products. A Grade A designation requires that any vitamin A that is lost or removed from a product during the skimming process be replaced. Because Ocheesees product did not qualify for this Grade A designation, the state of Florida notified Ocheesee that its all-natural skim milk did not meet the definition of milk and, thus, Ocheesee could only sell this product if it was labeled as imitation skim milk. Ocheesee refused since the only ingredient in its product was, in fact, skim milk. Ocheesee also refused to add vitamin A back into its all-natural product. Ocheesee Creamery filed a lawsuit challenging this restriction in the Northern District of Florida, which found in favor of the State.

On appeal, the Eleventh Circuit applied the Supreme Courts test for evaluating restrictions on commercial speech, which was set forth inCentral Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980). UnderCentral Hudson, a court considering a restriction on commercial speech must first determine whether the speech is protected under the First Amendment. The First Amendment protects commercial speech unless it 1) concerns unlawful activity or 2) is false or inherently misleading. The Eleventh Circuit found that neither of these exceptions applied to Ocheesee in this case.

First, the Eleventh Circuit held that Ocheesees use of the term skim milk on its product label was not unlawful because the states position was that under Florida law Ocheesee could call its product skim milk as long as the label also indicated that the product was imitation milk. Second, the Eleventh Circuit held that Ocheesees use of the term skim milk was not inherently misleadingor even, according to the Court, potentially misleadingbecause it was a statement of objective fact. As a result, the Court concluded, Ocheesees commercial speech on its all-natural skim milk label was constitutionally protected.

The Court then proceeded to applyCentral Hudsonsthree-pronged intermediate scrutiny test. Under this test, the Court must determine: 1) whether the asserted governmental interest is substantial; 2) whether the regulation directly advances the governmental interest asserted; and 3) whether it is not more extensive than is necessary to serve that interest.

The Eleventh Circuit focused its analysis on the third prong of the test, finding that Floridas restriction is clearly more extensive than necessary to achieve its goals. The Eleventh Circuit noted that there had been extensive negotiations between Ocheesee and the State concerning the language used on Ocheesees all-natural skim milk label, and pointed out that numerous less burdensome alternatives existed and were discussed by the State and the Creamery during negotiations that would have involved additional disclosure without banning the term skim milk. Consequently, the Court concluded that the restriction was more extensive than necessary to achieve the goals of preventing deception and ensuring adequate nutritional standards. The Court thus concluded that Floridas restriction of Ocheesees commercial speech violated the First Amendment and vacated the district courts grant of summary judgment in favor of the State.

The Eleventh Circuits decision offers some reassurance to companies that the First Amendment provides some protection for objectively truthful descriptions of their products, even in the face of restrictions imposed by various state labeling laws, although this protection continues to be balanced against the state interests served by these laws.

2017 Proskauer Rose LLP.

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Eleventh Circuit Does Not Skim Over First Amendment Concerns in Labeling Milk - The National Law Review

PARSIPPANY Council President Louis Valori continued tointerrupt Bill Brennan during a public session regarding the Township Budget on Thursday, June 8.

Mr. Valori as well as Township Attorney John Inglesino keptinterrupting Mr. Brennan during his comments regarding the budget, and how Inglesino and Mayor James Barberio are a pair of criminals. He contents there is a Criminal Conspiracy going on.

Mr. Brennan said Your are violating my constitutional right tofree speech, you dont like the content of my speech, and you are calling me names, you areallegedly that Iam an embarrassment. Yes, you said I should behave myself. This is the third time youinterrupted me. You know what, I am speaking my mind in an open public forum. Now you are passing notes back and forth and interrupting me. May I have my three minutes? May I have my three minutes? So you are telling me that I dont get my three minutes? You were able to interrupt me the whole time. I didnt get to finish what I had to say. I am not putting the mic down. I insist that if I violated a law, I would be charged. I have three minutes. Iam not goingvoluntarily I am not disrupting the meeting. I wasdisrupted the three minutes which I was given to speak. I was given three minutes to speak. Am I under arrest? Yes, and I want to go on the record before I leave that I did not get my three minutes, I was interruptedrepeatedly. I will take this up in a Civil Suit with this municipality.

Mr. Brennan was escorted from the Council Chambers by two Parsippany Police Officers that were on duty during the Council Meeting.

Requests for comments from Mayor James Barberio, Council President Louis Valori, Council Vice President Robert Peluso and Councilman Carifi and dePierro went unanswered.

Editors Note: The video is only a segment where Brennan speaks. The complete video of the Council Meeting of Thursday, June 7 can be seen by clicking here.

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Parsippany welcomes another lawsuit; Council President Valori violates First Amendment Rights of Public Speaker - Parsippany Focus

The federal government has violated the First Amendment by refusing to register trademarks that officials consider disparaging, the Supreme Court ruled unanimously Monday in a decision that provides a boost to the Washington Redskins efforts to hang on to the teams controversial name.

The ruling came in a case that involved an Asian American rock group called the Slants, which tried to register the bands name in 2011. The band was turned down by the U.S. Patent and Trademark Office because of a law against registering trademarks that are likely to disparage people or groups.

In a ruling against the government, the court said the disparagement clause of the federal trademark law was not constitutional, even though it was written evenhandedly, prohibiting trademarks that insult any group.

This provision violates the Free Speech Clause of the First Amendment, Justice Samuel A. Alito Jr. wrote in a section of the opinion supported by all participating justices. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.

[Will bands First Amendment argument resonate with Supreme Court?]

The ruling and a second one Monday that struck down a North Carolina law restricting registered sex offenders from social-media sites bolsters the reputation of the Supreme Court as protector of First Amendment rights.

At a time when some have claimed that speech may and should be regulated or censored if it is offensive, hurtful, or dangerous, the justices firm insistence that governments may not silence messages they dislike is noteworthy and important, Notre Dame law professor Richard W. Garnett said in a statement.

Redskins owner Daniel Snyder was more succinct in a statement: I am THRILLED. Hail to the Redskins. The team was not involved in the case at hand, although the court several times mentioned an amicus brief filed by the Redskins.

The case centered on the 1946 Lanham Act, which in part prohibits registration of a trademark that may disparage ... persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.

But the founder of the Slants, Simon Tam, said the point of the bands name is just the opposite an attempt to reclaim a slur and use it as a badge of pride.

In a Facebook post after the decision, Tam wrote: After an excruciating legal battle that has spanned nearly eight years, were beyond humbled and thrilled to have won this case at the Supreme Court. This journey has always been much bigger than our band: its been about the rights of all marginalized communities to determine whats best for ourselves.

Tam lost in the first legal rounds. But then a majority of the U.S. Court of Appeals for the Federal Circuit said the law violates the First Amendments guarantee of free speech. The government may not penalize private speech merely because it disapproves of the message it conveys, a majority of that court found.

(Jorge Ribas/The Washington Post)

Free-speech advocates had supported the Slants, and the courts decision seemed likely from the oral arguments.

But some ethnic and minority groups worried about what kinds of trademarks the government would now be forced to register. It seems this decision will indeed open the floodgates to applications for all sorts of potentially offensive and hateful marks, said Lisa Simpson, an intellectual-property lawyer in New York.

While unified on the bottom line, the two groups of justices wrote separate opinions in support of the ruling.

Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought we hate, Alito wrote in part of the opinion, joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Stephen G. Breyer.

Justice Anthony M. Kennedy wrote a concurring opinion that was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all, Kennedy wrote.

The Slants were not happy to be associated with the Redskins band members oppose the team mascot but the band and the team have argued that the law was unevenly applied and gave too much control to the government.

The Supreme Court vindicated the teams position that the First Amendment blocks the government from denying or cancelling a trademark registration based on the governments opinion, Lisa Blatt, a lawyer representing the Redskins, said in a statement.

The teams trademark registration was canceled in 2014 after decades of use. The team asked a district judge in Virginia to overturn the cancellation and was refused. The case is now in the U.S. Court of Appeals for the 4th Circuit in Richmond, awaiting the Slants decision.

The Native Americans challenging the team were disappointed, said their attorney Jesse Witten.

Nothing in the opinion undermines the decision of the [Patent and Trademark Office appeal board] or the District Court that the term redskin disparages Native Americans, Wittens statement read.

Justice Neil M. Gorsuch did not take part in Matal v. Tam.

The court showed no hesitation in striking down the North Carolina law, which was meant to keep registered sex offenders off social networks and websites that could bring them into contact with potential targets.

Kennedy said the law was far too broad, enacting a prohibition unprecedented in the scope of First Amendment speech it burdens.

By prohibiting sex offenders from using those websites, with one broad stroke North Carolina bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge, Kennedy wrote.

Lester Gerard Packingham is one of about 1,000 people prosecuted under the law. As a 21-year-old in 2002, he had sex with a 13-year-old girl and pleaded guilty to taking indecent liberties with a child. As a registered sex offender, he was prohibited from gaining access to commercial social-networking sites.

But in 2010, he celebrated the dismissal of a traffic ticket on his Facebook profile:

No fine, no court cost, no nothing spent. ... Praise be to GOD, WOW! Thanks JESUS.

One North Carolina court struck down the law and his conviction, but the state Supreme Court reversed, saying the law was carefully tailored to meet the states goals.

None of the justices agreed with that. A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more, Kennedy wrote. He was joined fully in his opinion by the courts liberals: Ginsburg, Breyer, Sotomayor and Kagan.

Gorsuch did not take part in the case.

The rest of the court agreed North Carolinas law could not stand. But Alito said Kennedy had gone too far in his musings and risked sending the message that states are largely powerless to restrict even the most dangerous sexual predators from visiting any internet sites.

He was joined by Roberts and Thomas in that concurring opinion.

The case is Packingham v. North Carolina.

Ian Shapira contributed to this report.

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Supreme Court: Rejecting trademarks that 'disparage' others violates the First Amendment - Washington Post

Mondays decision indicates that Justice Anthony Kennedy, pictured above, is moving in the right direction on the issues at the heart of partisan gerrymandering.

Jonathan Ernst/Reuters

On Monday morning, the Supreme Court agreed to hear Gill v. Whitford, a blockbuster case that could curb partisan gerrymandering throughout the United States. Shortly thereafter, the justices handed down two excellent decisions bolstering the First Amendments free speech protections for sex offenders and derogatory trademarks. While the link between these two rulings and Whitford isnt obvious at first glance, it seems possible that both decisions could strengthen the gerrymandering plaintiffs central argumentand help to end extreme partisan redistricting for good.

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

The first ruling, Matal v. Tam, involves a dance-rock band called the Slants that sought to trademark its name. Simon Tam, the founding member, chose the name precisely because of its offensive history, hoping to reclaim the term. (He and his fellow band members are Asian American.) But the Patent and Trademark Office refused to register the name, citing a federal law that bars the registration of trademarks that could disparage or bring into contemp[t] or disrepute any persons, living or dead, institutions, beliefs, or national symbols. (The same rule spurred the revocation of the Redskins trademark.)

Every justice agreed that the anti-disparagement law ran afoul of the First Amendment. They split, however, on the question of why, exactly, the rule violates the freedom of speech. Justice Samuel Alito, joined by Chief Justice John Roberts as well as Justices Clarence Thomas and Stephen Breyer, applied the somewhat lenient test for commercial speech, which requires that a law be narrowly drawn to further a substantial interest. The trademark rule, Alito wrote, is ridiculously broad: It could apply to such theoretical trademarks as Down with homophobes (disparaging beliefs) and James Buchanan was a disastrous president (disparaging a person, living or dead). The law, then, is not an anti-discrimination clause, Alito concluded. It is a happy-talk clause, one that is far too sweeping to survive constitutional scrutiny.

Justice Anthony Kennedy perceived even more insidious censorship at play. In a concurrence joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, Kennedy wrote that the measure in question constitutes viewpoint discriminationan egregious form of speech suppression that is presumptively unconstitutional. Under the First Amendment, Kennedy explained, the government may not singl[e]out a subset of messages for disfavor based on the views expressed, even when the message is conveyed in the commercial context. The anti-disparagement rule does exactly that, punishing an individual who wishes to trademark a name that the government finds offensive. This is the essence of viewpoint discrimination, Kennedy declared, and it cannot comport with the First Amendment.

A similar rift opened up between the justices in the second free speech case of the day, Packingham v. North Carolinaanother unanimous ruling with split opinions. (Justice Neil Gorsuch did not participate in either case, as oral arguments came before he was confirmed.) Packingham involved a North Carolina law that prohibited registered sex offenders from accessing any social media website, including Facebook, LinkedIn, and Twitter. The language of the statute is so sweeping that it also barred access to websites with commenting features such as Amazon and even the Washington Post. In essence, the law excludes sex offenders from the internet. North Carolina has used it to prosecute more than 1,000 people.

Kennedy, joined by all four liberals, subjected the law to intermediate scrutiny, asking whether it burden[s] substantially more speech than is necessary to further the governments legitimate interests. He easily found that it did. The Cyber Age is a revolution of historic proportions, Kennedy wrote, and social media users engage in a wide array of protected First Amendment activity on topics as diverse as human thought. Our interactions on the internet alter how we think, express ourselves, and define who we want to be; to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. The North Carolina law therefore suppresses too much expression and is thus in contravention of the Constitution.

In his ode to social media, Kennedy proclaimed that the internet has become the modern public square, the 21st-century equivalent to those public streets and parks where the Framers hoped Americans would speak and listen, and then, after reflection, speak and listen once more. (Kennedys prose remains distinctive as ever.) In a concurrence, Alito, joined by Roberts and Thomas, rejected Kennedys public square theory as loose, undisciplined, and unnecessary rhetoric that elides differences between cyberspace and the physical world. The three conservatives agreed that the North Carolina law swept too far but insisted that Kennedys opinion granted sex offenders a dangerous amount of freedom on the web.

So: What do these casesboth correctly decided, in my viewhave to do with gerrymandering?

To start, its important to view gerrymandering through a free speech lens, one developed by Kennedy himself in 2004. When the government draws districts designed to dilute votes cast on behalf of the minority party, it punishes voters on the basis of expression and association. To create an effective gerrymander, the state classifies individuals by their affiliation with political partiesa fundamental free speech activitythen diminishes their ability to elect their preferred representatives. Supporters of the minority party can still cast ballots. But because of their political views, their votes are essentially meaningless.

Districts designed to dilute votes for the minority party punish voters on the basis of expression and association.

Kennedy has called this a burden on representational rights. Its also something much simpler: viewpoint discrimination. In performing a partisan gerrymander, the government penalizes people who express support for a disfavored partymuch like, in Tam, the government penalizes those who wish to trademark a disfavored phrase. Both state actions punish individuals on the basis of their viewpoints: If you back the minority party, your vote wont matter; if you give your band an offensive name, you cant trademark it. And even though neither action qualifies as outright censorship, both restrict the public expression of ideas that the First Amendment is meant to protect.

Packingham also includes a subtler gift to the Whitford plaintiffs. In an aside, Kennedy compared the North Carolina law unfavorably to a Tennessee measure that bars campaigning within 100 feet of a polling place. Unlike the North Carolina law, Kennedy explained, the Tennessee statute was enacted to protect another fundamental rightthe right to vote.

Perhaps this passage is just more loose rhetoricbut I doubt it. Fundamental rights receive heightened protection under the Constitution. And although most Americans would probably agree that voting is a fundamental right, the Supreme Court has been cagey about saying so and inconsistent in safeguarding it. When the court upheld a voter ID law in 2008, for example, six justices paid lip service to the right to vote even as they shredded it; only the dissenting justices noted that the right is fundamental under the Constitution. Similarly, when the courts conservatives gutted the Voting Rights Act in 2013, they did not call the right to vote fundamental. Instead, they celebrated the fundamental principle of equal sovereignty, an archaic and discredited states rights doctrine. The upshot of that decision seemed to be that states rights are fundamental but voting rights are not.

Kennedy voted to uphold the voter ID law and kneecap the Voting Rights Act. But the justice is always evolving, and his aside in Packingham reads to me like a renewed commitment to the franchise set in the free speech context. If so, thats terrific news for opponents of partisan gerrymandering. Such gerrymandering limits an individuals fundamental right to vote (by making her vote useless) on the basis of her viewpoint (that is, her support for a political party). In effect, the practice attaches unconstitutional conditions to both voting rights and free speech, putting many voters in a quandary: They can either muffle their political viewpoints and cast meaningful ballots or express their political viewpoints and cast meaningless ballots. The Constitution does not permit states to punish individuals for exercising their rights in this manner.

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America remains the world champion of free speech, an honorific I would not grant America in any other realm other than $$$$. More...

Unfortunately, these tea leaves do not indicate inevitable doom for partisan gerrymandering. Kennedy recently indicated concern about judicial intervention into the redistricting process, and in the past he has questioned whether courts can accurately gauge which gerrymanders go too far. The Whitford challengers believe they have the right tool to measure partisan gerrymanders, a mathematical formula called the efficiency gap. Nobody yet knows if Kennedy will agree, and the justice has sent mixed signalsits worth noting that he joined the courts conservatives in voting to stay the lower court decision in Whitford while the justices consider the case. (The court had ordered Wisconsin to redraw its maps.)

Still, Mondays decision indicates that Kennedy and the court are, at the very least, moving in the right direction on the issues at the heart of partisan gerrymandering. Free expression and association arent really free if the government can punish you for your viewpoint by ensuring your ballot doesnt matter; the right to vote isnt fundamental if it can be diluted on the basis of political affiliation. The basic First Amendment principles Kennedy espoused on Monday explain why the court may well curtail partisan gerrymandering next term. In fact, they explain why the Constitution demands nothing less.

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Does partisan gerrymandering violate the First Amendment? - Slate Magazine