Not too long ago, I was speaking to an audience at a prominent and highly regarded law school. I was gratified by the sight of this audience: about an equal number of women and men, and a rainbow of different ethnicitiesBlack, Hispanic, Asian.

It was the kind of audience I never saw decades earlier when I was still heading the ACLU and we were fighting to end what had been the historical exclusion of women and people of color at law schools and universities.

The subject we were discussing was speech rights and whether it was ever appropriate, much less constitutional, to prohibit speech because its content was bigoted or hateful.

I was surprised to learn that many in the audience self-identified as progressives and believed that it was both desirable and constitutional to ban what they called hate speech because, they claimed, such speech was a barrier to social justice, to ending the layers of prejudice against women and people of color that had resulted, and still results, in invidious discrimination and subjugation.

I certainly had no quarrel with their passion to end such discrimination and subjugation: I had spent most of my adult life fighting to do just that, and agreed that although much progress had been made, we were still far away from the day when we could declare that fight definitively won.

But I was baffled and surprised that so many in the audience believed that the right to freedom of speech and the cause of social justice were antagonists, and that in order to help attain social justice it was necessary to tolerate, indeed to advocate, bans on speech.

For me, social justice and freedom of speech were not antagonists, but crucial allies that depended on each other.

Historically in the United States, every fight for social justice began with free speech, and depended on the right to speech to initiate and sustain their movement.

In the early years of the 20th century, for example, the nascent labor movement critically requiredand often in the early days did not enjoythe right to meet, to leaflet, to demonstrate, to picket in order to convert their powerlessness into success against oppressive employers.

During the same period, the movement to end lynching of Black people, by courageous advocates like Ida B. Wells, totally depended upon freedom of speech and the right to publish and spread the word about the epidemic of lynchings in the land, and to gather and build opposition to it.

In 1916, Margaret Sanger, the founder of Planned Parenthood, was arrested in New York City nearly every week for distributing informational leaflets on birth control to women victimized and, yes, enslaved by unwanted pregnancies. The beginning of the reproductive rights movement required freedom of speech the way a new plant requires water and sunlight.

The beginning of the reproductive rights movement required freedom of speech the way a new plant requires water and sunlight.

And of course in our own time, the civil rights movement that finally resulted in laws that ended the dominion of Jim Crow in hotels and restaurants and swimming pools and public toilets, on juries and in employment and housing and voting, could not have flourished or succeeded without the First Amendment to protect their efforts to call attention to the abuses of skin-color exclusions and build the support needed to end them.

When in 1955, Rosa Parks sat down in a seat reserved for whites on a bus in Montgomery, Alabama, and a then-unknown young Baptist minister named Martin Luther King, Jr. stood up to support her by organizing a boycott of those buses, none of that would have been possible without the protection of the First Amendment.

And the same was true of the countless other demonstrations, sit-ins and marches during the years that followed, including the one across the Selma bridge that helped build support for the Voting Rights Act of 1965.

That is why the hero of that march in Selma, the recently departed and much revered John Lewis, was a fierce advocate for freedom of speech. As Lewis said: Without freedom of speech and the right to dissent, the Civil Rights movement would have been a bird without wings.

And thats also why Martin Luther King, Jr. was such a strong supporter of the First Amendment. As one of his top lieutenants, Hosea Williams, once explained to a national television audience, he supported the right of the Klan to march peacefully because, he said, if he allowed the government the discretion to ban the Klan in Atlanta on Monday, it would use that power to ban him and his efforts to register Black people to vote in rural Georgia the rest of the week and forever after. The first target of the governments restriction of speech is never the last.

And thats the crucial point about First Amendment rights: If we allow the government the discretion to ban hateful speech, the only important question is who gets to decide whats hateful. We can be sure it wont be those who are oppressed, nor their advocates. It will be whoever has political power. And that will too often include people like Joe McCarthy, Richard Nixon, Rudy Giuliani and, yes, Donald Trump and William Barr. Why would Black Lives Matter protesters demonstrating for social justice want to entrust their speech rights to Donald Trump?

The speech that social justice advocates hate is not the same as the speech that Donald Trump hates. And if it became legal to ban hateful speech, it would be Trump and people like him, not social justice advocates or people like me, who would most often be in a position to decide whose speech to ban.

Speech restrictions are like poison gas: they seem like a good idea when youve got the gas and a deserving target in sight. But then the wind shifts and blows the gas back on you.

In the 1970s, in England, the National Union of Students succeeded in getting racist speech banned on university campuses. One of the groups supporting the ban was an organization of Zionists. A few years later, the same student association decided that Zionism was a form of racism, and banned Zionists from speaking on campuses.

The wind had shifted.

Mighty Ira will be released in virtual cinemas on Oct. 9 and available on Amazon, iTunes, and Google Play on October 23.

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How Freedom of Speech Protects You from Rulers Like Trump - The Daily Beast

Americans are divided on whether offensive content online is taken seriously enough and on which is more important online: free speech or feeling safe. Republicans and Democrats have grown further apart when it comes to these issues since 2017.

Overall, 55% of Americans say many people take offensive content they see online too seriously, while a smaller share (42%) say offensive content online is too often excused as not a big deal, according to a new Pew Research Center survey of U.S. adults conducted in early September 2020. In addition, about half of Americans (53%) say its more important for people to be able to feel welcome and safe online, compared with 45% who believe its more important for people to be able to speak their minds freely online, according to an earlier Center survey fielded in July 2020.

Pew Research Center conducted these studies to understand Americans views about whether offensive content online is taken seriously enough and on which is more important online: free speech or feeling safe. For the analyses on offensive content, we surveyed 10,093 U.S. adults from Sept. 8-13, 2020, while 10,211 U.S. adults were surveyed from July 13-19, 2020 for the analyses about the balance between free speech and feeling safe online.

Everyone who took part in these surveys is a member of the Centers American Trends Panel (ATP), an online survey panel that is recruited through national, random sampling of residential addresses. This way nearly all U.S. adults have a chance of selection. This gives us confidence that any sample can represent the whole U.S. adult population. (See ourMethods 101 explaineron random sampling.) The survey is weighted to be representative of the U.S. adult population by gender, race, ethnicity, partisan affiliation, education and other categories. Read more about theATPs methodology.

Here arethe questions, responses and methodology usedfor this report.

Americans differences over these issues are tied to partisanship. Roughly six-in-ten Democrats and independents who lean Democratic (59%) say offensive content online is too often excused as not a big deal, while just a quarter of their Republican counterparts agree a 34 percentage point gap. On the other hand, 72% of Republicans and Republican leaners say many people take offensive content they see online too seriously, while about four-in-ten Democrats say the same.

Partisan differences are also present today when asking about feeling safe versus having freedom of speech online. Democrats are more likely than Republicans to think people being able to feel welcome and safe online is more important than people being able to speak their minds freely online (60% vs. 45%), while Republicans are more likely than Democrats to say people being able to speak their minds freely online is more important (54% vs. 38%).

While the overall shares of the public supporting each perspective are nearly identical to when the Center last asked these questions in January 2017, partisan differences have more than doubled in this time. The partisan gap between Democrats and Republicans on whether they believe offensive content online was taken seriously enough has grown from 13 percentage points in 2017 to 33 points today. And while Republicans and Democrats held similar views about the appropriate balance between free speech and feeling safe online in 2017, these partisan differences grew fivefold by 2020, from a 3-point gap to a 15-point gap.

Within the parties, there are ideological differences in partisans views on offensive content. There is a 16-point gap between the shares of liberal Democrats and those in the party with moderate to conservative views saying offensive content online is too often excused as not a big deal (68% vs. 52%). A smaller gap is present when comparing conservative Republicans with those who are moderate to liberal on the issue of whether many people take offensive content they see online too seriously (74% vs. 68%). Conservative Republicans are also more likely than moderate to liberal Republicans to say people being able to speak their minds freely online is more important than people being able to feel welcome and safe online (57% vs. 49%).

Gender differences are also seen within each party. Republican men stand out for valuing people being able to speak their minds freely online over people being able to feel welcome and safe online. These Republican men (63%) are more likely than Republican women (44%) and both Democratic men (44%) and women (34%) to back that idea. Similarly, 76% of Republican men say many people take offensive content they see online too seriously, compared with 67% of Republican women who say the same.

While the shares of Democrats who support this view are much smaller, Democratic men are more likely to voice the view that offensive content online is taken too seriously compared with Democratic women (43% vs. 36%). These gender differences on the issue of whether people take offensive content they see online too seriously are largely due to the differences between conservative Republican men and women (80% vs. 68%) and liberal Democratic men and women (36% vs. 27%); their more moderate counterparts differed little by gender.

Regardless of political affiliation, women in both parties are more likely than their male counterparts to think offensive content online isnt taken seriously enough and to prioritize people feeling safe over people being able to express themselves freely online. Even when conservative Republican women are considered, about half or more of women say people being able to feel welcome and safe online is more important than people being able to speak their minds freely online.

In addition to valuing people feeling safe online and thinking offensive content online isnt taken seriously enough, both Democrats (77%) and women (72%) are more likely to say social media companies have a responsibility to remove offensive content from their platforms as compared with Republicans and men (52% and 59%, respectively), according to a 2019 Center survey.

Note: Here arethe questions, responses and methodology usedfor this report.

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Partisans in the U.S. increasingly divided on whether offensive content online is taken seriously enough - Pew Research Center

Two people in Louisville ordered to disconnect electric shock device on Trump campaign signs.

LOUISVILLE, Ky. Were they protecting freedom of speech or creating a neighborhood hazard? The answer depends on who you ask. A Louisville neighborhood is buzzing after two residents electrified their political signs, they say, to keep them from being stolen. Both residents are fans of President Donald Trump.

It's a fence charger that I had up in 2016, Walter Francis explained. But that's all they (thieves) would get would be a shock.

An electrical current flowed through his sign of political pride and signs just around the corner at Shirley Borowick's place.

In 2016 we had 3 or 4 signs stolen until we put electricity on them and they were left," Mrs. Borowick explained. So, we figured this time we would just put the electricity on to begin with without having them stolen.

Mr. Francis says he had 6 signs stolen in 2016 and was not going to let it happen again.

An electric fence box hangs from a tree in his front yard, up the line from two signs. Shirley and Walter hoped that a taste of juice would leave an impression on anyone considering stealing their power-packed message.

They were, indeed, not stolen as of this week. But someone in the Stone Lakes subdivision complained and that short-circuited the conservative neighbors plans.

Someone called the police, so Shirley added an additional warning that read, No trespassing! High Voltage!

That's when the fire department made a visit. Posts about the sight lit up a private community group and the H-O-A sent a note telling both families to disarm the campaign ads. Both say that they since pulled the plug. But they insist this isn't about the electricity rather it's an attack on free speech and their chosen candidate.

An HOA attorney argues it has everything to do with danger and nothing to do with the content of the political signs.

Attorney Kerry Butler released this statement:

A few days ago, through our neighborhoods official Facebook page, we were made aware of two (2) homes in our neighborhood which had campaign signs in their yard, which campaign signs were wired to a live electrical current. These displays were designed, presumably as a deterrent to anyone who might attempt to steal the signs, to provide an electrical shock to anyone who might come in contact with the signs.

The Board of Directors of Stone Lakes Homeowners Association, Inc. takes their responsibilities as board members very seriously, and no single subject is of greater importance to the Board that the safety of their neighbors. After the Board made a determination that a nuisance, as well as a dangerous situation with the potential to cause injury to anyone who might come in contact with the signs existed, letters were mailed by the HOAs attorney to the two (2) sets of homeowners where the signs in question were displayed. The content of the campaign signs in question, did not factor into the Boards decision to send the letters to the homeowners. The residents were not demanded to remove the campaign signs, but only that they be disconnected from any electrical power source, so as to alleviate any concerns of injury to any person or pet.

In an October 8th phone call, the HOAs attorney again clarified to one (1) of the homeowners that the content of the campaign signs was not an issue, and that the campaign signs could stay, so long as they were disconnected from the electrical power source, and so long as a third hand-written sign which read No Trespassing!! Stay Off High Voltage!! Stay Off was removed from the lot to alleviate perception of danger. The Stone Lakes HOA Board has no interest in attempting to infringe on anyones freedom of speech. Stone Lakes is a safe and friendly neighborhood, and the Board took action to ensure that it remains safe and friendly for all residents and visitors.

Shirley and Walter say their signs are staying through the election. He has a new message to would-be thieves.

If they were to get caught on my lawn trying to take my signs, they might have a problem, he said.

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HOA orders Trump supporters to pull the plug on shocking signs - WHAS11.com

LSU may shine on the gridiron, but it falls short on free speech: survey

October 9, 2020

Louisiana State Universitys football team went undefeated last season. The school is at the back of the pack, however, when it comes to protecting the First Amendment.

That according to a report in RealClearEducation, which points out the Baton Rouge-based public university came in 53rd out of 55 schools in a survey it conducted recently in partnership with College Pulse and the Foundation for Individual Rights in Education.

Donavan Newkirk reports:

More than two-thirds (68%) of LSU students have felt at some point they could not express their opinion on a subject because of how students, a professor, or the administration would respond.

Students also say they experience the suppression of First Amendment rights.

This August, several residential advisors resigned out of concern that LSU is not adequately prepared for COVID-19, according to FIRE. According to a report, the RAs were specifically forbidden from speaking to the media, including the on-campus newspaper, The Reveille.

The report also notes that in 2015 LSU fired a tenured early-childhood education professor for using coarse language in class and FIRE gives LSU a red light rating, meaning it has at least one policy that both clearly and substantially restricts freedom of speech.

Read the entire article at RealClearEducation.

IMAGE: Flickr

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LSU may shine on the gridiron, but it falls short on free speech: survey - The College Fix

Seyfarth Synopsis: In a tumultuous year full of social unrest, a pandemic, and a Presidential election, it is no wonder employers find themselves grappling with howand whetherto regulate politics in the workplace. Options for employers differ dramatically depending on context and location and whether an employer seeks to regulate behavior in the workplace or off-duty conduct, such as posting on social media.

With less than four weeks to go until election day, political speech in the workplace is at a high-water mark, and employers nationwide are grappling with employees seeking to wear masks and other clothing in support of a candidate, a social issue, or a political message and engaging in political activity off-duty, including posts on social media and attending protests or political rallies. In many cases the speech or activity at issue does not implicate working conditions directly but it nevertheless causes distractions in the workplace, such as disagreements among coworkers or offended customers. Depending on the messaging at issue, political speech by employees may also impact an employers business or brand.

These are some of the reasons employers might consider instituting limitations on political speech in the workplace. Such limitations are often lawful, but it depends on the context--specifically, whether an employer is public or private, where the employer is located, whether an employee is at-will or has an employment agreement, and whether the speech at issue relates to working conditions. As discussed below, because of state and federal constitutional provisions, a public employers ability to restrict political speech by employees is generally less than that of a private-sector employer.

Even so, private-sector employers are constrained by federal and state laws when it comes to regulating employee speech, including political speech.

The National Labor Relations Act

Section 7 of the NLRA gives employees the right to unionize, to join together to advance employee interests, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Section 8(a)(1) makes it an unfair labor practice for an employer to interfere with Section 7 rights. In many instances, it can be difficult to determine whether a type of speech or activity is purely political in nature or whether it touches on working conditions, such that it might be activity or speech protected by Section 7.

For example, if employees distribute literature in support of a political candidate at work but tie their support to a work-related issue, i.e., this candidate will improve our healthcare or vote for candidate because he will pass laws to raise our wages, the speech would arguably be protected by Section 7, even if it is political in nature. Conversely, an employee wearing a Vote for Smith button--with no connection to the workplace--would not be protected by Section 7. In Eastex v. NLRB, 437 U.S. 556 (1976), a group of employees requested permission from the employer to distribute a newsletter urging employees to support a union. The newsletter also encouraged employees to lobby legislators in opposition to the states right-to-work statute and the Presidents planned veto of an increase in the minimum wage. The employer denied the request, stating that the political items had nothing to do with the employers relationship with the union. The Supreme Court rejected the employers reasoning, instead holding that employees do not lose Section 7 protection simply because they seek to improve terms and conditions of employment or otherwise improve their lot as employees through channels outside the immediate employee-employer relationship. Id. at 565.

Where permitted by state law, private-sector employers can often regulate political speech in the workplace by enforcing their existing policies on items such as solicitation and distribution of literature, uniforms, dress code, and policies against violence, threats, intimidation, discrimination, and harassment, including EEO policies. For example, while the NLRA would restrict an employer from banning union buttons or insignia, an employer can implement dress code policies prohibiting the display of purely political buttons and logos in the workplace without running afoul of the NLRA.

Other federal laws

Similar to the NLRA analysis, activity or speech that is purely political in nature is unlikely to be protected under other federal statutes such as Title VII of the Civil Rights Act. But political speech that constitutes animus towards other coworkers in a protected class or that creates a hostile work environment may require an employer to intervene to avoid liability under those statutes.

But What About the First Amendment?

One issue that often gets raised initially by employees is the First Amendment. This can be somewhat confusing because many are taught about freedom of speech in school--specifically in the context of political movements and activities. Of course, this is a misunderstanding in the context of private employment. The First Amendment protects against government activity, not activity in the private sector. Thus, government employees do have a right against retaliation for expressing their views, including political views, under the First Amendment, and public-sector employers will have to engage in a balancing test before restricting employee speech on matters of public concern. But this does not extend to private sector employees, unless another state or local law extends it to them.

A Complex Web of State and Local Laws

As soon as employee political activity issues arise, one of the first things that an employer should consider is where, geographically, the issue is arising. This is because the employers ability to regulate the conduct largely depends on the jurisdiction in which the employee political activity takes place. Some states (and localities) have no laws regulating this topic. Others have laws that moderately regulate an employers ability to regulate political activity. Still, others have broad protections for both on-duty and off-duty conduct. While we will not discuss every states and localitys laws, we will discuss some common types of laws and provide a few examples.

For example, some states (like Maine) have no laws regulating employer involvement in limiting employee political activities in the workplace. Employers in states like this have less to consider when it comes to placing limits on employee political activity. Similarly, other states (like Georgia) only ban threats to personal safety. The situations where this type of law places an actual limit on an employers ability to regulate employee political activity would seem to be exceedingly rare given the severe type of conduct required to trigger it.

Another group of states (for example, Wyoming, Virginia, Vermont, New Hampshire, Kansas, and Oklahoma) and even the federal government for particular elections have general bans on voter intimidation and coercion. These laws would presumably encompass employer behavior. Other states have more tangible protections directed specifically at employers, but may be limited to traditional notions of political activity, such as influencing voting in various ways. For example, several states prohibit employers from taking or threatening to take adverse employment action against employees, such as terminations, layoffs, or pay reductions, based on the result of an election or how an employee votes. Examples of states with laws along these lines are Florida, Delaware, Arizona, and Alabama.

Other states go further and protect employees from adverse actions based on the employees engaging in broader political activities or lawful off-duty conduct. For example, Connecticut actually extends First Amendment protections to private sector employees. California prohibits employers from making rules or policies that tend to control or direct political activities, and likewise prohibits employers from threatening discharge to influence political activity. California also prevents employers from taking adverse action against employees based on lawful off-duty conduct. New York and North Dakota have similar protections for lawful off-duty conduct. That said, these protections are not unlimited. In general, employers may limit the activity if necessary to further a legitimate business interest or if the limit is unrelated to the political activity itself.

As can be seen, there is a wide spectrum of laws in this area. So, one of the first things an employer needs to consider is geography. The location of the employee typically will determine the amount of employer limitation permissible. The next thing to consider is the type of employee conduct at issue. Is it as simple as voting? Or, does it involve more general political activity of employees (promoting candidates or social causes)? The latter involves the more difficult scenario. We discuss a few examples below in both the off-duty context and in the workplace.

Off-duty political speech

Off-duty political speech can also impact employers, particularly on social media. As discussed above, depending on the speech at issue, political posts by employees can create rifts among coworkers or somehow imply the endorsement of the employer, upsetting customers or attracting unwanted media attention. As with on-duty conduct, an employers best avenue to resolve issues is by enforcing its existing policies. While we would not advise that an employer go so far as to ban an employee from engaging in any off-duty political conduct, employers in most cases can protect their legitimate business interests and enforce existing policies applicable to social media use, including EEO policies and policies prohibiting harassment, threats of violence, and bullying.

Example 1: Employee posts an article on Facebook discussing the Me Too movement and says Weve seen enough. Time to stand up for our female coworkers in the workplace. Such a post implicates working conditions and is likely protected by the NLRA. Additionally, the off-duty nature of this activity would render it protected under many state laws.

Example 2: Employee retweets a tweet from a well-known white supremacist containing racial slurs. Such conduct would violate many of the employers policies, including anti-harassment and anti-discrimination policies. Further, an employer who fails to take action after learning of such a post could later face claims that it allowed a hostile work environment. The employer can discipline the employee under these circumstances but should make sure that it addresses these issues consistently. The employer should also document how it became aware of any such posts to avoid later claims of unlawful employee surveillance or discriminatory targeting.

Political Speech in the Workplace:

As discussed above, state laws place various limitations on an employers ability to limit political activity in the workplace.

Example 1: Employer puts up a poster supporting same-sex marriage in the employers lunch room. An employee believes that marriage should only be recognized between one man and one woman, rips the poster off the wall, and throws it in the trash. Can the employer discipline or terminate the employee? It depends on the state and the employers motivation. However, as discussed above, any stated reason for discipline or termination reason must be unrelated to the employees view point given that it may qualify as political activity under various state laws. For example, if the conduct violated a policy against destruction of employer property or an anti-harassment policy, the discipline or termination could be lawful even in the most restrictive states.

Example 2: Two employees are discussing presidential candidates at work by the water cooler. The two employees disagree with one another, and the conversation degenerates. One employee begins to insult the other by calling the other employee names, using profanity, and even a racial slur. Such conduct would almost certainly violate the employers anti-harassment, anti-discrimination, anti-bullying, and potentially other workplace policies. Thus, the employer likely could also discipline this employee based on the violation of these policies, but it could not discipline the employee because of their support of a particular candidate.

The examples above are just some of the types of issues that can arise when it comes to political speech. Many are arising now due to the impending presidential election, and they tend to come up more often during election years. However, given how hotly contested the current election is, it is unlikely that issues related to political speech will recede any time soon. As the examples above illustrate, the intersection of politics and the workplace can pose a conundrum for employers. As you navigate these waters, Seyfarth is here to help.

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Turbulence Ahead: Navigating Political Speech in the Workplace during an Election Year and Global Pandemic - JD Supra

PAUL POLMAN What weve seen in the Covid crisis once more is the difficulty of global governance. Increasingly, the issues that we face like the issues of the interdependence of the financial markets, cybersecurity, climate change and now also pandemics require, without any doubt, a global response. These issues know no borders. And yet weve got about 86 countries putting export restrictions in place around [personal protective equipment] materials. Weve seen a lack of cooperation between governments in terms of solidarity. The developing markets have gotten virtually zero support from the developed markets. So global governance is, without any doubt, at a low. And the reason it is at a low is that most institutions were created 70 years ago. And, frankly, unlike businesses that might have adjusted their strategies 10, 15, 20 times, global governance has not evolved.

ARON CRAMER One of the reasons that some oil and gas companies have begun to move on climate change more decisively is because they recognize that they can no longer attract the best and the brightest. They simply wont have an employee base if they dont contribute whats needed in a very profound way on climate. Its very unlikely that Amazon would have moved on climate without a very public display from its employees and, mostly, its younger employees to demand quite publicly that the company adopt an approach that is compatible with what we need to do on climate. Businesses have to understand that 21st-century talent expects that we can take on these big social issues, not least climate change, and without that, the pool of talent will not be available, and no company would possibly survive or thrive.

In recent months, the multifront battle between social media platforms, their users and the authorities who would regulate them has accelerated even further. What role does, or should, government play in keeping platforms honest and their users safe? And what tools can help citizens be more engaged?

PANELISTS Dan Shefet, lawyer, Paris Court of Appeal; Wietse Van Ransbeeck, co-founder and chief executive, CitizenLab, a citizen-engagement platform; and Orit Farkash-Hacohen, Israeli minister for strategic affairs.

ORIT FARKASH-HACOHEN Today there is no doubt that social media has become a haven for fake news, for incitement, for hate speech. What happens in my view is that in the name of, or on behalf of, freedom of speech, some groups spread fake news and violence around social media networks. And that is something that a state, every state, cannot overlook. As a minister, I started a process of engagement with the social media networks in Israel. We are conducting a round table with social media because I think that we cant do it alone. Only enforcement and regulation will not do the trick. Social media networks must understand that they have power, and with power comes responsibility and accountability. And the fact is that, at the end of the day, they have the power to control the minds and to corrupt minds. This cannot be overlooked. So were implementing a program of four steps with the social media giants. We want them to create relevant and clear policies. They should enforce their policies without double standards. They should be transparent about the facts. And, lastly, [they should] remove problematic content.

WIETSE VAN RANSBEECK So we [at CitizenLab] provide a digital democracy platform. There are of course many other tools, or other platforms available. But what we do is we help citizens have a say in local policymaking within government projects, but also more from the bottom up, where citizens can bring up their proposals. Whats different, compared to social media, is that it actually starts from a broader question: How are we going to constitute the public sphere in the digital era? And social media are not a means to have a constructive debate. We all know about filter bubbles on social media networks, the echo chambers. So I think its also the responsibility of the government to rethink how we are going to create that digital democracy. And such [government-administered] platforms can be interesting because those platforms are owned by the government; they are the data owners. So when it comes to manipulation, the government is in control. They can also, when they procure those platforms, design the platforms in a way that some democratic values are safeguarded, in the sense that when we talk about transparency and openness, they can procure open-source platforms and make sure that the algorithms are open and transparent, but at the same time, when artificial intelligence is used, that its explained to the citizens in what way it is used. So I believe that probably the most important aspect is that those platforms can constitute a space where you have citizens from different backgrounds deliberate and have conversations with each other. And that is essential for democracy in the digital age, that were not only talking to people like us, but that we can have conversations with people who have different opinions.

DAN SHEFET Ive had the opportunity of following almost all the cases before the International Criminal Court, the special tribunal on [Rwanda], the special tribunal on Yugoslavia and even the Nuremberg trials, dealing with incitement, and I can tell you that it is extremely difficult, even for the most trained judges, to decide whether something is illicit speech or not. There are many, many cases from these high-level courts, where somebody is either acquitted or convicted at the first level, and that decision is overturned on appeal. In other words, its extremely difficult. And I dont see how we can oblige social media to be more clever than professional judges in terms of defining whether something is illicit speech or not, given, of course, that once we do that, we mathematically restrict not only free speech, but we also impose upon these organizations accountability sanctions, which are not related to knowledge. And that, to me, is not possible from a legal point of view.

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Our Democracies Need to Change - The New York Times

Clement Mahoudeau/Maxppp, Zuma Press | TNS

A man raises a "Je Suis Charlie" translation: I am Charlie sign during a rally in support of Charlie Hebdo on Jan. 7, 2015, in Marseille, France.

The Charlie Hebdo trial is underway in Paris, and in response, the French satirical newspaper has republished the cartoons that sparked the terrorist attack five and a half years ago depictions of the Prophet Muhammad, which is prohibited in Islam.

This is a reaffirmation of the newspapers continued dedication to the freedom of expression. Following the killing of 12 people at the newspaper offices, as well as a police officer and four Jewish men the following day in a kosher supermarket, the attack set off a global debate about free speech and its limitations.

For Americans, the attack on Charlie Hebdo should serve as a reminder of the importance of the First Amendment in a time where it is being heavily scrutinized. Political correctness and the cancelling of public figures for views declared socially objectionable culminate in todays struggle for civil discourse something that has serious consequences for the American public.

Nearly a year before the terrorist attacks occurred, American comedian and political commentator Bill Maher was invited to the University of California, Berkeley, to address the graduating class. It was fitting that someone such as Maher, a free-speech advocate, should be selected to give the commencement speech on the occasion of the 50-year celebration of the Free Speech Movement.

During an episode of his HBO show, Maher, who has long been an opponent of organized religion, had made strong criticisms of Islam. Because of this, student groups on campus attempted to have him removed as the speaker, claiming he was blatantly bigoted and racist for raising legitimate concerns about the Islamic world. Maher would later say that Berkeley, the cradle of free speech, had become the cradle for fing babies.

Universities should be the bastion of the free exchange of ideas. Unfortunately, instances such as the Maher controversy and a host of other resistance movements decrying hate speech to silence voices is often the extent of the contemporary free speech debate in America.

Advocates for hate speech legislation should seriously consider the consequences should the wrong censor fall into power. Hate speech is protected under the First Amendment for precisely that reason, as UC Berkeley Chancellor Carol Christ notes, and the many people who want hate speech laws would certainly not concur with President Donald Trumps definition of such speech.

If you determine that someone has the right of determining what is hate speech and what is not hate speech, I believe you give a dangerous kind of authority to the government, Christ said.

Supreme Court Justice Benjamin Cardozo wrote in 1937 that freedom of expression is the indispensable condition of nearly every other form of freedom, but dissenters argue that it can sometimes be an impediment to another persons freedom and should therefore have limitations. The constitutional approach aside, the cultural implications of political correctness and cancel culture have been substantially more damning to the political polarization and national conversation in America.

Consider former New York Times opinions columnist Bari Weiss. While her colleagues allege that she brought trouble upon herself for mischaracterizing turmoil inside the paper following a controversial op-ed from Sen. Tom Cotton, R-Ark., Weiss claimed she was subjected to harassment and bullying by fellow staffers for her conservative views, despite describing herself as a left-leaning centrist. She claims staffers called her a Nazi and a racist, and she received comments about how she was writing about the Jews again.

But the truth is, Weiss writes in her resignation letter, that intellectual curiosity let alone risk-taking is now a liability at The Times.

Political affiliation and religion are two sides of the same coin. The difference between the two is that a person falls into risk of being labeled a bigot, or in the case of Charlie Hebdo, being murdered, should they criticise the latter. Organized religion should not be immune to criticism and generally that practice is implemented across the board with healthy discourse.

Islamism, however, has often been an outlier for the left. It is a concern that a political tradition about reason and egalitarianism is often afraid to confront the very ideology that opposes the values liberalism holds so dearly, such as freedom of speech. In 1988, there was a decadelong Iranian government-backed fatwa calling for the execution of Salman Rushdie, the author of the controversial book The Satanic Verses.

The fact that 28% of British Muslims supported Ayatollah Khomeinis bounty because of Rushdies novel, which, similar to Charlie Hebdo, depicts the Prophet Muhammad, demonstrates the importance to protect the right to criticize religious ideas without fear of being hunted.

Religion and politics are not the only troubled waters of free speech. The pinnacle of the debate is stand-up comedy the rawest expression of the most essential human right dating back to when Lenny Bruce was arrested and convicted in 1962 for obscenity, to which he would say, Take away the right to say f and you take away the right to say f the government.

According to The Wall Street Journal, A-list comedians such as Chris Rock and Jerry Seinfeld are refusing to play college shows because they believe the audiences are becoming too easily offended. Not only that, universities often present contracts forbidding comedians to use certain words or even broaching entire subjects, the Journal reported.

Take, for instance, Dave Chappelle a provocateur celebrated for his sophisticated and explicit takes on race and pop culture. His jokes about transgender people in his Grammy award-winning special have angered many people, however, and for this some have labeled him a transphobe. Whether Chappelle is actually transphobic or merely joking about another group of people is irrelevant he has the right to do so.

As Noam Chomsky writes, If youre really in favor of free speech, then youre in favor of freedom of speech for precisely the views you despise. Otherwise, youre not in favor of free speech.

The night of the Charlie Hebdo terrorist attack, thousands of Parisians held up pens referencing the pen is mightier than the sword and signs that read, Je Suis Charlie, French for I Am Charlie. Americans should heed warning of this act of terror whenever the First Amendment is called into question. For when Charlie Hebdo was attacked, the most inextricably human right was attacked as well.

Aidan is a senior majoring in English writing with a certificate in Jewish studies. He primarily writes about Israel, anti-Semitism and film. Write to Aidan at [emailprotected].

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Opinion | Charlie Hebdo should remind us the value of free speech - University of Pittsburgh The Pitt News

For advocates of free expression, 2020 has been a deeply troubling year. In recent months, federal officers have been deployed to American cities, and the ongoing pandemic has brought a dangerous new dimension to the battle over false information online. Abroad, a draconian new national security law has silenced dissent in Hong Kong, while Maria Ressa, a journalist and 2018 TIME Person of the Year, was convicted of cyber libel in June. The implications of those events are not lost on Suzanne Nossel, CEO of PEN America, a nonprofit that supports writers and journalists and advocates for free expression rights, and author of the new book Dare to Speak, which came out July 28. Nossel sat down with TIME to discuss her book and the state of free speech in the U.S. and around the world.

Are you concerned that freedom of expression is under threat in the U.S.?

Absolutely. I think its under profound threat. The President has made clear if it were up to him, he would have responded, and may still respond, with violent force to suppress protests. We have federal officers being sent to American cities against the wishes of mayors and local officials. Peaceful protesters are being menaced on the streets. The President just called for postponing the election. Were at a perilous moment. And this comes against the backdrop of a pattern of violations of the First Amendment in terms of threats against journalists and efforts to suppress books from publication. This is a President who is prepared to run roughshod over the expressive rights of Americans. And that makes the First Amendment, the courts and the conviction of citizens to assert and uphold their rights extremely important right now.

From a free speech perspective, how should we reckon with comments, some even from the highest levels of government, that are seen as encouraging violence against protesters?

Incitement to imminent violence is not protected by the First Amendment. But what I would underscore is the reason why we have been so wary of government intrusion on freedom of speech. We see right now, given whos in power, how that authority is being misused. Its only because that power is constrained by the Constitution that free expression rights are still alive and well. While people can imagine a wise, measured government exercising their authority to suppress hateful speech, theres no guarantee that thats the government well be dealing with. Its not the government were dealing with at the national level right now. Thats why I make such a strong argument in my book that increased government power to police speech is not the answer.

Twitter has recently censored one of the Presidents messages for glorifying violence. Can we trust social media platforms to police public speech?

I think we have great reason to be leery of aggressive policing of speech by private internet platforms. We know that theyre profit-making entities, that they have their own ideologies, that they cut corners when evaluating speech, and that their business model often privileges the most incendiary and viral types of speech. On the flip side, we see the grave dangers of speech that is weaponized in the digital realm, whether its disinformation that can pollute our democracy, quackery and conspiracy theories relating to COVID-19, or cyber-bullying and online harassment. So the question becomes, how can we move forward with a much more robust effort to contain those ills without impairing freedom of expression? I think one of the keys is transparency. We need to understand how these companies are going about content moderation. Individuals whose speech is silenced or whose accounts are disabled need to be told why, and need an avenue of recourse.

Why did you decide to write a book delving into issues around inclusiveness and freedom of expression?

In running PEN America I confront these issues day in and day out, and I came to feel I was beginning to see patterns and in some cases paths forward that could help break through some of these really pitched conflicts and help people recognize what the other side is talking about. I felt like putting this down on paper and trying to offer a set of principles might enable us to collectively deal with these issues more constructively.

How has the coronavirus pandemic affected PEN Americas thinking on freedom of expression?

We have been working on disinformation and misinformation for nearly four years, but mainly in the political context, and the COVID-19 pandemic has really illustrated just how dangerous false information online can be. But its also pointed in a hopeful direction in that [social media] companies have been more assertive in trying to eradicate false information and amplify credible sources. This points to a way these companies can direct users toward trustworthy sources on other topics as well. On the flip side of it, during this period the companies have also stepped up their reliance on artificial intelligence as opposed to human content moderation. Theres concern that there could come a sense of license for companies to vastly increase their reliance on automated moderation. When it comes to political speech, thats very dangerous, because its so context specific and I dont think artificial intelligence, certainly not now and maybe not ever, will be able to arbitrate the line between what speech ought to stay and what ought to go.

Free speech seems to be under assault abroad. Is there anything we can do?

This is a moment of democracy in retreat and authoritarianism on the rise. Reversing this trend will depend first off on a turnabout in the U.S.s own backtracking on commitments to democratic and constitutional principles. When people see journalists being brutalized in the streets of American cities and arrested while covering protests, and see individuals being pulled into unmarked cars, it becomes very difficult to criticize governments around the world that resort to those tactics. So the abdication of leadership in Washington has created an enabling environment for authoritarianism around the world. But thats not the main cause. You have countries, and I put China at the top of the list, that do not ascribe to democratic principles. As China becomes more powerful, they see a huge opening to promulgate their systems of surveillance and information control. The situation in Hong Kong is particularly poignant because its such a vibrant, democratic culture with world class universities, a robust media landscape, dynamic politics, a rising generation of civically minded young people showing leadership in inspiring ways. And all of that right now is being snuffed out.

Can we count on this administration at all to uphold U.S. commitments to free speech around the world?

I fear we have forfeited all credibility when people see a President who is retaliating against the press, when they witness professional news organizations like the [U.S. Agency for Global Media] being subject to punitive purges where staff is fired and political overlords are installed in their place, where the President threatens the use of violence against peaceful protesters. I think people around the world do recognize that this administrations approach is anathema for many Americans, and is a repudiation of what we have stood for imperfectly but more or less consistently for many decades. And the U.S. can in the future play a role in defending free expression rights and press freedom rights around the world, but our position is very much compromised right now.

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Write to Alejandro de la Garza at alejandro.delagarza@time.com.

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What Is The State of Free Speech Today? 'It's Under Profound Threat,' Says the Head of PEN America - TIME

Ive decided to scrap this writing stuff and go into direct action. I am now a candidate for the Presidency of the United States. I know its a bit late but I wanted to make clear what I would do as President regarding the guarantees of the First Amendment.

After all, we cannot have a Constitutional democracy without freedom of assembly, speech and press. Self-governing calls for an enlightened public a clich, I understand but we cant even approach enlightenment without debate, discussion and reliable information.

So here are my Top Ten Commandments:

First, we need to find a way to dramatically reduce the gobs of money now spent on elections. A plutocracy is a society that is run by and for the wealthy.We are supposed to be a democracy, by and for the people. But in the 2016 elections we spent $6.5 billion.Yes, billion! Thats money that could be used for so many other important things.

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Instead, it pays for advertisements and political claptrap. And, more importantly, it means that whoever wins will owe his soul to Wall Street and the corporations.Its not a violation of free speech to tell speakers they cannot dominate the marketplace with their money.Level the playing field so the $10 speakers and $10 million speakers are on the same plane

The only way to make change is to overrule the Supreme Court decision known as Citizens United, which said that limiting political contributions violates the First Amendment.It does not. We balance many liberties. Find a way in Congress to stop the money madness.

Second, begin again to treat the American press with the respect it not only is insured by the Constitution but that it deserves and the people need.The press is not the enemy, but the friend of the people. We cannot decide important matters without its help.Stop threatening the press and encouraging people to not only to disrespect this Fourth Branch of Government but threaten violence against it.

Fake news is a danger and it may exist, but much of it comes from Russian bots, not the mainstream press.

Third, I will respect, tolerateand appreciate the right of and need for dissent.Football players can take a knee.Doctors in the U.S. Centers for Disease Control can disagree with each other and me; and my staff can engage me in respectful debate and disagreement.And non-violent protestors, not carrying weapons but signs, are welcome in American cities and on the Washington Mall!

Remember, the First Amendment says very specifically the people can peaceably assemble to petition the government for a redress of grievances.Simply put, when angry, you have the right to scream in public! There may not be good people on both sides of the political aisle, but their speech and assembly is all protected.

Fourth, without question, the worlds most powerful tool, that international network of computers known as the World Wide Web, must be maintained as a neutral force. The internet service providers think Time Warner and Comcast cannot try to influence or drown out the messages of the voices they carry. They are public utilities make a profit, yes, but serve the public interest first of all. The net is neutral when it comes to the people that own and distribute its content.I will not let their foot in the door of controlling the flow of messages.

Fifth, I pledge federal funding and support for an improved computer infrastructure that is as important to us as bridges and roads and water systems.We need to find a way get the Internet to the 18 million Americans who now are cut off from the lifeblood of education and information, especially in the virus times we live in when so many children will have to be taught remotely via computers.

Sixth, we must return the Federal Communication Commission to an agency that seeks to broaden and diversify the ownership of the public airwaves, and seeks to lessen the influence of large chain-owned radio stations especially.We need more voices in our marketplace, fewer ones with vested interested in their political ends.

The public airwaves are just that: public and the public deserves better than one-sided information and talk and commercial overload. I dont support a return to a government imposed fairness doctrine, but with broader ownership of the air waves and a hands-off approach to the Internet we have a better chance of getting more reliable and balanced information.Make the marketplace of ideas work better.

Seventh, we must end this new era of secrecy.A Presidents medical history must be public. Tax returns must be shown. Full disclosure allows people to decide the fate of the nation. I will support laws that eliminate people being forced to sign codes of silence on matters of public interest and importance. Stop silencing and intimidating the whistleblowers.Democracy dies in darkness and insiders can open the windows that shed light on that deep state so many worry about.

Eighth, I will support a federal law, finally, that gives reporters and the press a privilege to protect confidential sources of information in federal law enforcement cases and congressional investigations.

Ninth, we must stop using the laws of defamation slander and libel as weapons of intimidation and silence. Of course, everyone, including public people, deserve the right to defend their reputations and their livelihoods, but defamation was never meant to be a way to silence critics. We need wide open discussion about public people and matters of public interest.

Lastly, the First Amendment is a two-edged sword. It protects debate and dissent which is often harsh and divisive. On the other hand, it is also a tool for healing.We have devoted ourselves to toleration with this document. We agree to disagree, and we defend each others right to speak, even when we disagree.In the end, the ability to talk with each other can heal our wounds and bring us together.Without that, we are no better than the worst of the worlds authoritarian nations where only one voice counts.

Democracys business is never finished. We need to just keep talking, discussing, debating and disagreeing.But in a way that is respectful of different ideas.The next President needs to use freedom of speech to heal not to inflame, antagonize and to go after his critics.

Rob Miraldis writing on the First Amendment has won numerous state and national awards.He teaches journalism at SUNY Paltz. Twitter @miral98 and email miral98@aol.com.

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Protecting the First Amendment would be this President's priority - Poughkeepsie Journal

For Jewish students at the University of Delaware, the fall semester was preceded by heightened anxiety and worries about returning to campus. Not because of the coronavirus pandemic, but because two weeks ago an arsonist set fire to the universitys Chabad Center, which many students considered a home away from home and a safe space to celebrate their Jewish identity and culture.

Talia Feldman, a senior and student leader in the universitys Hillel and Chabad organizations, said she was shocked and confused to learn on the morning of Aug.26 that the center had been destroyed by fire overnight. Feldman said she thought about the hundreds of hours she had spent hanging out, attending meetings and having meals or Shabbat dinner every Friday evening in the small blue house in Newark.

I definitely have a lot of memories in that house, and its really crazy for me that its gone, she said.

While both Hillel and Chabad have centers on campuses across the country, Chabad is based around more traditional religious and cultural aspects of Judaism, while Hillel is more of a social organization for Jewish students that also incorporates religion and culture.

Officials said the fire at the Chabad Center at Delaware caused an estimated $200,000 in damage but that there is currently no indication it was a hate crime, according to a press release from the Bureau of Alcohol, Tobacco, Firearms and Explosives' Baltimore Field Division, which is investigating the incident. Donna Schwartz, executive director of UD Hillel, said whether or not the fire is officially determined to be an act of anti-Semitism, it feels like one to the Jewish community.

No matter what, it feels like a hate crime, and thats a problem, Schwartz said. Its a Jewish organization. There are thousands upon thousands of houses in Newark. Why that house?

The fire and verbal and online harassment targeting Jewish students over the past month are part of a larger trend of rising anti-Semitic incidents at higher ed institutions, Jewish college community leaders say. Hillel, an international Jewish student organization, recently reported that anti-Semitic incidents reached an all-time high of 178 during the 2019-20 academic year at the 550 colleges and universities in North America the organization serves. Anti-Semitism on college campuses has been rising significantly since 2016, according to the Anti-Defamation League.

Theres more of a heightened anxiety on campus and around the country. Its not specific to our campus, Schwartz said. Youre seeing it on the news, in tweets and social media posts, and its hard not to continuously think about that. College campuses are just sort of a great breeding ground for it.

Schwartz said in an email that Jewish people are also on "high alert" for anti-Semitic acts around significant Jewish holidays, two of which are later this month and typically occur near the start of the academic year. Rosh Hashana, the Jewish New Year, is on Sept.19 and 20, and Yom Kippur, a day of atonement, is on Sept.28.

Mark Rotenberg, Hillel International's vice president of university initiatives and legal affairs and a law professor at American University, said the rise in anti-Semitic attacks on Jewish students, including many incidents of online harassment, have come from both far right and far left ideological orientations, such as white supremacists and those who accuse pro-Israel students of being Zionist racists.

There is a distinct difference between free speech criticizing Israels relations with nations in the Middle East or Israeli policies that affect Palestinian people and personal attacks on students for their support of Israel or Jewish identity, said Rotenberg, who is also former general counsel for the University of Minnesota and Johns Hopkins University.

No one is suggesting that universities should in any respect suppress the values of academic freedom and free speech, but singling out individual students and groups of students for attack is an entirely different matter, Rotenberg said. Thats the line that separates robust, critical engagement on policy questions from unacceptable and unlawful targeting of individual students.

In one such incident in early August, Rose Ritch, former vice president of the Undergraduate Student Government at the University of Southern California, felt she was forced to step down from her position after she was harassed and pressured by students who called her a racist for her support of Israel and launched a campaign to impeach her, a letter by Ritch posted on Facebook said. These students felt her support for Israel made her unsuitable to be a student leader, and the rhetoric they used played into the oldest stereotypes of Jews, including accusations of having dual loyalty to the United States and Israel and holding all Jews responsible for the actions of the Israeli government, she wrote.

The sad reality is that my story is not uncommon on college campuses, Ritch wrote in the letter. Across the country, Zionist students are being asked to disavow their identities or beliefs to enter many spaces on their campuses. My Zionism should not and cannot disqualify me from being a leader on campus, nor should others presume what that means about my position on social justice issues.

USC president Carol Folt called the incident unacceptable in a Aug.6 message to students, staff and faculty members and wrote that it is critically important to state explicitly and unequivocally that anti-Semitism in all of its forms is a profound betrayal of our principles and has no place at the university. Forty-three faculty members condemned the incident in a letter to the USC community on Aug.30. The faculty members reject in the strongest possible terms any and all attempts to associate Zionism with such inflammatory accusations as racism, colonialism, and white supremacy, which are diametrically antithetical to Zionist ideas and aims, the letter said.

Folt said in her message that USC still grapples with a history of anti-Semitism and announced the university had launched a new initiative, Stronger Than Hate, to address biases against marginalized students through educational programming and conversations about culture and identity.

Over the last several years, incidents of anti-Semitism in American higher education have dramatically increased, and anti-Semitic attacks remain the most common religiously motivated hate crime in the United States, Folt wrote. As a result, this has been an extremely painful period for our Jewish community It is more important now than ever for our university to serve as a global beacon of belonging.

Rotenberg said far too often, university administrators do not call out anti-Semitism for what it is and do not take steps to prevent incidents from occurring, such as providing education programs that help students and staff members understand how anti-Semitism manifests on their campuses in 2020. Jewish students are fed up with being marginalized and want college administrators to call it out when it occurs rather than put out plain vanilla statements about overall commitments to diversity and inclusion.

Danny Goldberg, who is Jewish and a second-year law student at Arizona State University in Tempe, Ariz., is advocating for university leadership and others on campus to speak up about anti-Semitism after posters praising Hitler were discovered on campus on Aug.30 for the second consecutive year. The posters were immediately removed and campus police were made aware of the incident and are investigating, a university statement issued Aug.31 said.

"ASU is a community that values diversity, tolerance, respect and inclusion," the statement said. "We support open debate and honest disagreements and we reject and will not accept antisemitism or hateful rhetoric of any kind."

Michael Crow, the university's president, also spoke about the posters during a student forum on Sept.3, calling them anti-Semitic.

Goldberg is glad administrators spoke out and were unequivocal. He said anti-Semitism can become acceptable on campuses if incidents are not clearly and vocally condemned. Doing so is especially important to help non-Jewish students, who may not as easily identify certain language or acts as being anti-Semitic, understand the hurt and impact of such actions, he said.

Right now, words really do matter, and we have to call out anti-Semitism whenever and wherever it shows up, he said. We have to speak up no matter how small the incident is Its important to use the word anti-Semitism, because if not, its only normalizing the behavior.

Hillel recently launched the Campus Climate Initiative, a pilot program for university leaders to learn how to best address and prevent anti-Semitic incidents on campus. The program will partner with administrators and higher education organizations, such as the American Council on Education, said Rotenberg, who is leading the initiative. Among the goals is to have condemnation of anti-Semitism explicitly incorporated into existing mission statements, values and structures for antiracism, inclusion and equity, he said.

Proposed improvements of campus climate will vary from campus to campus based on their current climate, but some examples could include implementing better reporting structures for bias incidents against Jewish or pro-Israel students to ensure colleges are tracking them properly, Rotenberg said. The initiative will also aim to inform student affairs officials on where to draw lines between freedom of speech and direct anti-Semitic harassment and how to condemn such speech within the boundaries of the First Amendment, which allows officials to speak out against rhetoric that is antithetical to institutional values, he said.

In the context of anti-Semitism and anti-Semitic expressions of anti-Zionism, theres less familiarity with how to draw these lines, Rotenberg said. Some administrators might say, Well, maybe the Jewish students should just get some tougher skin. Theyre condemning Israel and Zionism, and thats part of the rough and tumble of academic discourse.

Rabbi Avremel Vogel, who leads the University of Delaware Chabad Center, said its going to take more than just making statements to stem rising anti-Semitism. Officials must work to remove the hate but also replace it with understanding and acceptance of the Jewish community, if they are to actively prevent future anti-Semitic acts, he said.

Vogel said the overwhelming tragedy of the destruction of the Chabad Center at the university has been quickly overshadowed by support for Jewish students from the Newark community and people across the country. A GoFundMe page started by UD Chabads Student Board to raise money to rebuild the center had received about $533,000 in donations by Sept.7.

Former United States vice president Joe Biden, the 2020 Democratic nominee for U.S. president, who is a UD alumnus, called the Chabad Center arson deeply disturbing and noted the rise in anti-Semitism across the country on Twitter. Dennis Assanis, president of the university, and Jos-Luis Riera, vice president for student life, called the arson upsetting and offered support services in an email on Aug.26 to students and staff members. Vogel said there would be further public response from UD if the incident is declared a hate crime.

We as the community feel attacked, but that doesnt mean the intent of the person was to attack us specifically, Vogel said. But thats not the important part. At the end of the day, this Jewish house for students on campus is gone, and they take that as a personal attack If hate is going to strike us down, were going to get back up and be bigger and better and provide a space for more students.

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Anti-Semitism on the rise as new semester starts - Inside Higher Ed

Facebook, Twitter and other social media platforms face increasing pressure to crack down against antisemitism and other forms of hate speech. This summer, the Anti-Defamation League and NAACP led a one-month corporate boycottagainst advertising on Facebook, and a group of British Jewsleda24-hour boycottof Twitter.

Nadine Strossen, the former head of the ACLU and a daughter of Holocaust survivors who is generally supportive of the ADL, believes such moves to censor hate speech are generally ill-advised.

In this wide-ranging conversation, the Jewish Telegraphic Agency spoke with Strossen, the John Marshall Harlan II Professor of Law, Emerita at New York Law School, about the best ways to counter hate speech, the limits and importance of free speech, new media, and more.

This conversation has been edited for length and clarity.

Jewish Telegraphic Agency: How would you personally define hate speech?

Nadine Strossen:For starters,its really important to understand that there is no agreed upon legal definition of hate speech in the United States the U.S. Supreme Court has consistently, unanimously refused to carve out an exception from free speech protections.

The label is usually used in everyday speech to refer to speech that conveys a hateful or discriminatory message, particularly about people who belong to racial, religious, sexual or other groups that have traditionally been marginalized and oppressed.

The classic example would be racist epithets, certainly antisemitic epithets. But its important to understand that people use that term very indiscriminately to refer to ideas that they personally hate, or political candidates that they personally hate. For example, Black Lives Matter activism is regularly denounced as hate speech. Advocating for the reelection of Donald Trump is also regularly denounced as hate speech.

In a conversation with Noah Feldman for his Deep Background podcast, you mentioned the idea of an emergency principle being used to determine what the government can legally do to counter specific instances of discriminatory speech. Walk me through what this principle is, and what qualifies.

The First Amendment protects us only against government restrictions on our speech. We have no free speech rights against Facebook or any private sector entity. There are a lot of people who are shocked to learn that!

However, this is not an all-or-nothing dichotomy: Hate speech is not either completely protected or completely unprotected. Rather, its much more complicated in a way that actually makes good sense.

The Supreme Court unanimously, for a long time, has held that the government may not outlaw any speech based solely on the disapproval of its content. No matter how much we hate the idea, and no matter how much we may vaguely fear that it might be dangerous in some way, that is never a justification for censoring it.

However, when you get beyond the content of the speech and look at the overall context in which it is expressed, then the Supreme Court has laid out what is often summarized as the emergency principle: If speech poses as a direct threat of imminent, specific and serious harm in the particular context, facts and circumstances then it may and should be punished.

And hate speech often satisfies that standard not solely because you hate its ideas, but because in the context, it poses an emergency such that nothing short of suppression will avert the extremely likely imminent harm.

If it is a less tight and direct connection between the speech and some specific harm, then the court says you have to use non-censorial tactics, such as education and persuasion. You only use censorship as a last resort.

I can illustrate the differences with a concrete example thats really salient to me as a Jew and to everybody who cares about equality. Thehorrific incidents in Charlottesvillealmost exactly three years ago, when thewhite supremacistswere demonstrating there, voicing the most odious messages You will not replace us. Jews will not replace us. Blood and soil. I mean, it just sends chills up and down my spine as the daughter of a Holocaust survivor.

But my organization, the ACLU, was absolutely correct in defending their free speech right to utter that odious message, and the federal judge was absolutely correct in upholding that right.

However, when they massed andconfronted others in a threatening way, brandishing lighted torches and other weapons at counter demonstrators, not to mention actually engaging inphysical attacks, that was across the line and could and should have been punished consistent with the emergency principle.

Of course, the outright violence itself is punishable: Even simply marching en masse with lighted torches and other items that could be used as weapons, including firearms, is clearly punishable as what the Supreme Court has called a true threat a specific type of speech that satisfies the general emergency principle; when the speaker is targeting a specific audience and means to instill a reasonable fear on the part of the audience member that they are going be subject to attack.

Even if the speaker doesnt intend to actually carry out the attack, if the fear is objectively reasonable, that already causes harm. Because the person whos targeted by a true threat is deterred from engaging in their free speech rights.

I would have been there counter-demonstrating if I had been in the vicinity. But seeing those people with their lighted torches I prize my life as well as my liberty. I would have fled. So I would have been deprived of my free speech rights as well as my freedom of movement.

There was anonpartisan reportafter the fact that was commissioned by the City Council in Charlottesville, and it strongly critiqued all the law enforcement officials for not having intervened and protected the counter-demonstrators at that point.

Is it common that the people actually responsible for maintaining law and order dont understand nuances of free speech law and the limits of legitimate use of First Amendment rights to protest?

The vast majority of people including all government officials, and all citizens, and all lawyers with too few exceptions are completely ignorant of the proven principles of free speech law.

So in my most recent book, Hate, I quote a couple of examples. The mayor of Portland, Oregon,justifiedhis decision to deny free speech rights in an open public forum to some right-wing speaker, and he publicly proclaimed hate speech is not free speech.

And other elected officials, including those who are lawyers, have made exactly the same ignorant statements. I assume that law enforcement officials are probably more trained than most people on what are the limits of free speech, and to what extent they should protect free speech.

But theres either a lack of information or lack of willingness to honor the information about what rights are, and thats why the ACLU and the National Lawyers Guild and others are constantly coming to the defense of the rights of protesters.

Speaking of Portland, Oregon, this summer, weve been very busy. And so far, to the best of my knowledge, weve won all of our court cases that have been brought on behalf of not only protesters but journalists and neutral observers, because they have not only been not allowed to continue their activities, but theyve actually been subjected to physical force and violence by law enforcement at all levels. Thats a constant problem; theres just too much ignorance in general about constitutional rights.

Youve noted elsewhere that laws or private company policies designed to limit hate speech often end up being more often wielded against minority individuals. And it seems that this same phenomenon might also apply when were talking about restrictions on free speech that are perpetuated by law enforcement officials.

Is it something that youve seen historically?

Absolutely. Observation and international human rights organizations reveal that there is a pattern of disproportionately enforcing any restriction on speech, including hate speech restrictions which do exist in the laws of most other countries, disproportionately against speech by and on behalf of minority groups. This includes demographic minorities racial, religious, ethnic minorities, and so forth, and political minorities like dissident protesters. And that is trueregardless of whois doing the enforcement. Whether it is the government, a private university, or a private sector media company.

And the reason for it is really straightforward: We are talking about groups that are in a minority and therefore are never going to wield majoritarian political power.

One cant forget that over time, in general, the powers that be are directly accountable to majoritarian interests or powerful business interests and are not going to be disposed to protect the speech of those who are members of minority groups and who are advocating minority causes.

For that reason, many minority group organizations throughout U.S. history have, to the best of my knowledge, all opposed censorship including hate speech laws, even when those laws are allegedly designed to benefit their interests.

Leaders of the civil rights movement in the United States always opposed censorship and always supported free speech very vigorously. That message came loud and clear to me during the recent funeral observations for John Lewis.

He was such a proponent of free speech, such an eloquent one. I included one of his famous lines in my book: Without robust freedom of speech and dissent, the civil rights movement would have been a bird without wings.

And Martin Luther Kings very last speech was all about freedom of speech and how censorship had been used to try to thwart the civil rights movement.

The ADL, which was started to protect minority rights and to counter antisemitism, is encouraging private companies to crack down on free speech. What do you make of this impulse? Will it backfire?

I actually have close colleagues and friends within the ADL with whom Ive had the privilege of working very closely. To my knowledge, the ADL with only one exception has always opposed any government censorship of antisemitic speech or any other hate speech.

And many people dont realize that, because the one exception was one that was very well publicized that infamousSkokie casein 1977 and 1978. The ACLU defended the free speech rights of Neo-Nazis to demonstrate in this city that had a large population of Jews, including many Holocaust survivors.

The ADL was on the other side in that case, but to the very best of my knowledge, that was the first and last time that they took that position.

And when the internet was new, I spoke on an ADL forum in which they were opposing any government censorship of the internet, including of hate speech, and were instead advocating harnessing the power of the internet to engage in whats often called counter speech: If somebody is looking for, for example, a Holocaust denial site, you would reroute him to the Simon Wiesenthal Center and bombard him with information about how the Holocaust did in fact happen.

Perhaps the huge dominance of social media as such an overwhelmingly important platform from which people are getting information and ideas brought about the change.

To the ADLs credit, as far as I can observe, they are not in one iota reducing their very strong drive for counter speech. I cite them and the Southern Poverty Law Center every time I talk about these issues, because they both put out fantastic educational resources, all available online, for schools and for others, which I think and I assume they think is an even more effective way to deal with the inevitable hate speech that is going to continue.

I think its futile, ultimately, to try to drive hate out of these forums. The companies are dealing at such scale. I dont think anybody believes that all antisemitic speech is going to be taken down from Facebook.

Nobody expects that these problems are going to go away. I think they just assume, well, private censorship of hate speech does more good than harm, and so its worth pursuing. But I have the opposite calculus, and I wish that we would focus more efforts on information affirmative information, education and media illiteracy, because people are always going to be exposed to hateful, misleading, potentially dangerous, potentially upsetting and traumatizing speech. And so we have to prepare people to deal with that.

The other thing that Ive been very, very concerned about is that its very clear that social media companies are using algorithms to manipulate what various users see. And there are complaints that they areamplifying hate speech!Amplifying disinformation! Why? Because that gets more attention and makes more money for them, right?

Its one thing to say that we shouldnt force them to censor. But I think its another thing to say that they shouldnt be increasing the spread of hate speech, especially when theyre getting all this PR benefit from bragging about how theyre trying to remove hate speech.

We should maximize informed freedom of choice for end users. And to the extent that we are being unwittingly, unknowingly and without information let alone consent being manipulated by algorithms, in terms of what we see what we dont see, I consider that to be a deep violation not only of individual privacy, but also the individual freedom of thought and expression.

To me, requiring transparency and accountability and user control of the information feeds that were getting from these platforms would be a much more fruitful direction for regulation.

It seems to me, just looking at the scale of some of these social media companies, that theyre basically quasi-countries that arent held to the same rules that advanced countries are.

These companies are the worst of both worlds: They exercise full censorial power. From its public reports, each month, Facebookclaimsit is taking down more alleged hate speech messages than all governments added up together all around the world throughout history. Theyre taking down hundreds and hundreds of thousands of posts, a huge percentage of which are subject to appeal.

So on one hand, they have this enormous power, but on the other hand, theyre not subject to any of the constitutional constraints that restrain government power. Not only are they not subject to the First Amendment itself, but theyre not subject to any kind of due process. They dont have to give us notice of what their roles are. They dont have to give us an opportunity to argue against being removed from the platform or having a particular message removed.

Theyre not accountable, ultimately, to We the People the way the government is. So its a terrible combination of power without democratic restraints. And that power really can have an enormous adverse impact, not only on your individual wellbeing, but also on our democratic republic.

While I certainly support their free speech rights, and I think it does more harm than good to pressure them to engage in censoring disinformation or hate speech, I still am very, very concerned about taking other steps to restrain their power consistent with democratic principles.

For example, the European Union has very strongly protected data privacy. That, I think, is something that is positive from a users perspective and its too bad that we have much less strong protection for data privacy and surveillance in this country.

In your interview with Noah Feldman, you mentioned that during the Weimar Republic, there were actually very strict hate speech laws that were then used as Nazi propaganda tactics. Can you say a bit more about how that played out? Was there not a conscious realization in the body politic that maybe the more you crack down, the worse these things are?

No, I dont think there was that realization at all, and in fact, there isnt today.

I did a debate about a year ago with what I think of as the online censorship czar for the EU, Vra Jourov. And she cheerfully agreed with me that laws such as the German internet law werecoinciding withan alarming rise in the strength of the AFD, an expressly racist party in Germany, and with a rise in hate crimes in Germany, including against Jews and other minorities.

My conclusion from that is that these laws are at best ineffective and at worst counterproductive.

And her conclusion is,we need evenmorelaws! And we need to make them even tougher! We need to restrict and enforce them even more strictly!

So I think theres just a basic philosophical disagreement and no amount of empirical observation is going to nudge people one way or the other.

But people have often said to me, Oh, the Holocaust wouldnt have happened if only Germany had enforced laws against all antisemitic expression without realizing that the laws that were in place in Germany then were every bit as strict as German laws now, which are the strongest in the world with the possible exception of many countries in the Middle East, and were very strictly enforced.

There were dozens of prosecutions, including successful prosecutions, against Nazis including Julius Streicher, the publisher of Der Sturmer. And it just became a propaganda platform for the Nazis. It got all kinds of attention they otherwise would not have received, and sympathy they otherwise would not have received.

And we see the same tactic in the United States. I dont want to overemphasize the comparison to the Nazis, but todays white supremacists court tactics such as being shouted down or being deplatformed precisely because it garners attention.

The Southern Poverty Law Center did afabulous pamphletfor students as it was becoming clear that so many white supremacist organizations were planning to organize on campus. And they said to the students, look,we know it can feel verymorally satisfying to try to shut them down,but youre just playing into their hands. Please do not do that. It is strategically and tactically unwise.

When were dealing with someone who is a master of reframing hateful arguments so that they seem more palatable, theres often an insidious slow mainstreaming of their ideas into media entertainment. Is engaging with hateful ideas any less harmful than outright protesting the speech?

As somebody whos always wrestling with what is the least bad response, I think what you are pointing out, among other things, is that even speech that does not satisfy the emergency principle can do an enormous amount of harm.

Many, many analysts say that its that more subtle drift,as you say, the mainstreaming that does the most harm. I mean, you used that great word insidious, right? I dont think horrible racist chants persuade anybody! It just persuades people that theres a real serious problem here and a lot of anti-racist activism all over the country.

But the more subtle stuff is more pernicious precisely because its sugarcoated and people may not realize what theyre buying into. And we could never censorall of that speech without completely ending ourdemocracy.

I spoke in a media ethics course in which they were debating to what extent you have a responsibility to cover this garbage. Because you want people to be aware of it. You dont want to whitewash it.

But on the other hand, if you do that, you have a very severe danger of glorifying it and amplifying it. So its a really difficult question to which there is no perfect answer. And certainly prohibiting that kind of coverage would be unthinkable in terms of freedom of speech and freedom of the press and democratic principles.

Were never going to eradicate the dangerous speech. We have to take it as a given.And we have to equip members of our society to encounter it, and deal with it, and resist it in affirmative ways.

Building resilience, building their own research capabilities, building their own ability to not be insulted but rather to look down on the people who are trying to insult them; building a sensibility of coming to support anybody else who was denigrated, proactively educating people in ways so they will be resistant to this kind of propaganda and attentive to it and refute it, these are all important steps.

Are attempts to get someone canceled any more effective at actually stopping these sort of hateful ideas from metastasizing? Or does this also fuel the intended targets?

I very, very strongly oppose cancel culture. But cancel culture itselfis an exercise of free speech.

Now, where doeseven the most vigorous robustcriticism of hateful ideas and counter speech end and inappropriate cancel culture bullying intimidationbegin? I think the basic distinction is that robust, even highly critical,defamatory freedom of speech seeks to prolongthe debate to engage the person whose ideas you dislike, whereas cancel culture seeks to end the debate and intends to use not analysis or evidence or reasoning, but conclusoryepithets that the idea or person is racist and seeks not only to end the debate but to end the speakers participation in the debate.

I love the term historic humility that you used in aninterviewwhen discussing our misunderstanding of social medias power. Is there anything truly different about social medias ability to perpetuate terribly hateful and harmful ideas?

I usethat phrase constantly. And I also use a counterpart phrase, historical hubris. On issue after issue, we have historical hubris.

And Ive heard the purported dangers about every new medium thats come to my attention, starting with cable television, talk radio, video games and then the internet.

Every single one brought on this notion of, never before has a medium reached so many, including so many children, and those are going to be especially vulnerable!

The same thing was encountered with the invention of the radio or the telephone, in the 20th century, not to mention the printing press.

If you look back at all of the attempts to censor other media when they were seen as being equally dangerousin their heyday, we now look back and say, well, that was completely wrong. The censorshipdid more harm than good.

And I think the same thing happened with the web. So far, there has not been direct government censorship of social media. But there has been this enormous pressure from politicians and citizens to pressure social media to engage in more censorship.

Those of us who are trying to exert counter-pressure are asmall minority, unfortunately.

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Censoring hate speech can backfire just like it did in Germany - The Jewish News of Northern California

If youre a worker today and you ask about your co-workers pay, you might be asked to pack up your belongings and shown the door.

A decade ago, the Institute for Womens Policy Research , or IWPR, conducted the first national survey that asked workers whether their bosses allowed them to discuss wages and salaries. Results revealed that half of all workers and approximately two-thirds of private sector workers were either formally banned or discouraged from talking about pay. Since 2010, 10 states and D.C. have passed legislation penalizing employers who retain these pay secrecy policies.

In 2017 and 2018, a team of us myself, Patrick Denice of Western University and Shengwei Sun, who recently joined IWPR partnered with the research firm GfK and expanded on IWPRs initial efforts. We surveyed nearly 2,600 full-time workers . Our findings indicate that these state-level efforts, and all the ongoing national attention to the issue of pay secrecy in the contemporary workplace, have proved ineffective.

Overall, half of full-time workers today labor under a pay secrecy policy of some sort. Among nonunion workers in the private sector, two-thirds cant exercise their free speech rights to disclose their own pay or ask about their peers pay. An analysis limited to those states that have taken action on the issue indicates employers have hardly noticed: Over 40 % of the working population remains subject to a pay secrecy policy.

One reason for the lack of movement? The enduring social norm against discussing wages and salaries. We asked those subject to a pay secrecy policy whether they supported this infringement of their free speech rights. The overwhelming majority said yes.

But there are emerging cracks . Our survey indicates that one group in particular is more likely to discuss pay with colleagues, more likely to know what their colleagues earn and more likely to reject the salary taboo explicitly: millennials.

What about those respondents subject to a pay secrecy policy? Our data reveal that millennials are more likely to violate the restriction. Among workers either discouraged or formally prohibited from talking about pay, over half of millennials report discussing pay with their colleagues, compared to just 26 % of baby boomers.

Is this simply a case of a broader embrace of an oversharing, extremely transparent lifestyle among a group that came of age in a landscape saturated by social media? Could be. But we argue for a different interpretation. Combined with their strong support for organized labor and willingness to vote for socialist political candidates, we contend that millennials rejection of pay secrecy rules reflects a set of workplace dynamics that our youngest workers recognize as fundamentally broken.

The basic underpinnings of the normative employment contract, as the sociologist Beth Rubin has termed it, that structured labor markets when past generations began their careers have eroded. The oldest millennials began their careers too late to enjoy the late-1990s economic expansion, and instead saw their incomes fall during the lost decade of the aughts. The youngest, meanwhile, finished schooling and embarked on careers during the onset of the Great Recession, with many struggling to gain a firm grip on a middle-class lifestyle during the uneven and prolonged recovery. As a result, millennials have lower earnings and less wealth than older generations did when they were of the same age. And, of course, young adults trying to enter the workforce today confront unemployment rates unrivaled since the Great Depression.

These broader economic trends may have created ripe conditions for younger workers to challenge long-standing workplace norms. One of these is the general prescription against talking about pay. Its an outdated norm and unfair violation of our freedom of speech that penalizes women and lowers all workers leverage when negotiating for a fairer share of company resources. You wont ask for a raise that you deserve if you dont know and cant find out that youre being underpaid.

Jake Rosenfeld, a professor of sociology at Washington University-St. Louis, is author of the forthcoming Youre Paid What Youre Worth and Other Myths of the Modern Economy.

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Commentary: Millennials are breaking the taboos on discussing salaries - Bend Bulletin

In the hyper-ugly political moment we are living in, its certainly part of the climate that someone, or some group, could be so horribly offended by political signs for candidates they cant stand that they would stop on the side of the road, pull them up and throw them away.

Take that! I hate you! I hate your candidates! I cant stand looking at their names when I see them by the side of the road! I only want to see posters for the candidates I support!

Throw into the conversation the photograph that flashed across social media on Sunday of a taxpayer-funded Brookhaven Fire Department ladder truck in a parade in Patchogue decorated with a large Confederate flag. America in September 2020.

Now, while it was certainly true that during the Civil War (1861-65) the North Fork was loaded with Confederate sympathizers (they were called Copperheads), waving that banner today proclaims alignment with white supremacy. No one can pretend otherwise.

As has been said many times, we are living in a post-truth America, where everyone has his or her own version of reality and hypocrisy runs a mile deep. Imagine a political candidate running on a law enforcement platform who has had at least seven close associates and advisors either indicted for or pleading guilty to crimes. You pretty much cant make that up.

Ripping out political signs because they offend you and flying the flag once held high by traitors and slave owners resulting in the deaths of hundreds of thousands of young men who believed their leaders were right and took up arms in support is taking political insult to a new level.

As Patchogue Mayor Paul Pontieri said in Newsday of the parade banner, It lights a fire where a fire doesnt need to be lit.

On Monday, Suffolk County Executive Steve Bellone called on the county Human Rights Commission and the New York State Division of Human Rights to investigate the flag incident.

To some, history is malleable. It can be anything they want it to be and no one can tell them otherwise. There were no gas chambers at Auschwitz! Thats a made-up story! I have my history and you have yours and dont tell me anything different!

In our letters to the editor pages we include one from Southold Supervisor Scott Russell and 1st District county Legislator Al Krupski. They write that the removal of political signs is an act aimed at suppressing free speech, a right which we Americans cherish and one protected by the First Amendment of the United States Constitution. Suppression of free speech is unpatriotic and will not be tolerated in our community.

regardless of your political beliefs, we are facing an extremely contentious national election, one which threatens to divide our community to the detriment of all of us. There is no need to bring any divisiveness into our community. This is a time, as we face so many stresses and tensions, when it is vitally important for all of us to be tolerant of one another and of opinions and beliefs that differ from our own.

These are the founding principles of our nation. This means respecting freedom of speech and property, whether the speech is in the form of a written or spoken word or the property is a political sign on your neighbors lawn. We call on all Southold residents to practice tolerance, and perhaps compassion.

Very well put. But to some who will read it, this plea will land on deaf ears. They will think out loud, Who are these two to lecture me? And regardless, the Southold and Riverhead police blotters will soon have frequent mentions of political signs being pulled up and tossed aside.

The people who do this are speaking clearly: That is the intolerant America they want to live in.

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Editorial: Tolerance is our only path forward - Riverhead News Review - Riverhead News Review

IT WAS, at least, live-streamed on Facebook. But those hunting for signs that freedom of expression has not been completely cowed in Hong Kong will have found little else to give them hope when, earlier today, they watched police rifle through the offices of Apple Daily, a local tabloid, bind the wrists of Jimmy Lai, its proprietor, and lead him away.

When Carrie Lam, Hong Kongs chief executive, unveiled a suffocating national-security law on July 1st, she promised that Hong Kongers would continue to enjoy the freedom of speech, freedom of press, of publication, protest, assembly and so on. But it has not taken long for the law, which was imposed by the Chinese Communist Party without the approval of Hong Kongs legislature, to send a chill through a once-feisty city.

Mr Lai is the most high-profile of the handful of arrests (mostly of student activists and protesters) so far made under the legislation. The details of his alleged crimes have not been released, save that he colluded with a foreign country, a crime that carries a potential life sentence. With his campaigning for democracy in Hong Kong, he had long been a thorn in Chinas side. But it might be that a letter that Mr Lai ran on the front page of his newspaper in May riled them even more. And although offences committed before the law was gazetted are in theory exempt from prosecution, it ensured he became the authorities ripest target.

In it, he called on Donald Trump to help save Hong Kong. The American president did not need Mr Lais invitation to try. On July 14th Mr Trump revoked the territorys special trading status with America, on the grounds that it no longer enjoyed sufficient autonomy from China. Then, on August 7th, his administration imposed sanctions on 11 Hong Kong and Chinese officials, including Mrs Lam, whom he accused of implementing Beijings policies of suppression of freedom.

The so-called sanctions, as the government has taken to describing them, hit a nerve. They put Mrs Lam into a small band of leaders that America thinks awful enough for punishment, including Venezuelas Nicols Maduro. The Hong Kong government calls the action shameless and despicable, and a barbaric interference in the internal affairs of the Peoples Republic of China. Mrs Lam says she will give up her American visa. She will probably become the first chief executive of post-colonial Hong Kong never to be invited to the United States, a country that until recently was considered an ally.

One immediate question is where the tycoon will be tried. Under the terms of the law, trials for serious offences can be switched to the mainland, and held under Chinese jurisdiction. This was one reason why several countries, including Australia, Britain and Canada, recently tore up their extradition treaties with Hong Kong. Chinas leaders say that such extraditions will be rare, saved only for complicated cases. But they may view Mr Lai as too important a scalp to risk sending to trial in a supposedly independent Hong Kong court.

A conviction might be useful beyond getting revenge on a nagging critic. The repression of anti-government figures under the new law has been swift and hard. Last month 12 pro-democracy candidates, some of them moderates, were barred from standing in Hong Kongs legislative elections, which were scheduled for September, but have now been postponed for a year. (There was no question of political censorship in their disqualification, claimed the government unconvincingly.) The idea of quickly wielding the legislation against high-profile figures may be pour encourager les autres. If so, it has been a success. Hong Kongers have already, to a remarkable extent, gone into self-censorship mode. Rare is the figure who will now go on the record to criticise China, or even the national-security law. Street protests have all but ceased.

Were Mr Lai to be sent to the mainland, it would represent an unhappy homecoming. A poor boy from Guangdong province, he arrived in Hong Kong in 1960 aged 12 as a stowaway, and worked himself up from factory hand to manager to entrepreneur to tycoon, through his clothing chain, Giordano.

The bloody end in 1989 to pro-democracy protests in Beijing turned him into a prominent critic of the Chinese Communist Party. A true rarity in Hong Kong even in the 1990s, a pro-democracy business tycoon, Mr Lai became a staple of the foreign media, grateful for his penchant for a colourful quote, and his tendency to weep when talking about the crushing of the Tiananmen unrest. All this was galling enough to Chinas rulers. But in 1994 he went further, insulting Li Peng, then Chinas prime minister, personally as a turtles egg [bastard] with zero IQ and the shame of the Chinese nation. Then as now, the party had economic levers to pull in reprisal. It began to close Giordano shops in China, forcing him to sell out.

He turned to businesses that would be viable outside China. From the point of view of his relations with Beijing, he could not have plumped for a worse industry to manage this transition: the media. First with Next, a glossy, scandal-mongering, weekly magazine in Hong Kong, and then with Apple Daily, which successfully transposed the formula to the newspaper market, his products were both wildly popular and deeply suspicious of the Communist Party. Worse, from Chinas perspective, he pulled off the same trick in Taiwan, after weathering resistance from local competitors and an advertising boycott.

When pro-democracy Umbrella protesters blockaded much of the centre of the city in 2014 to press their demand for China to allow them an electoral system that might offer voters a real choice, Mr Lai camped out with them. His tent was a hospitable port of call for journalists covering the ultimately failed movement. Mr Lai, as he has often acknowledged, had it coming.

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Jimmy Lais arrest in Hong Kong is the latest blow to free speech - The Economist

Even as debates over cancel culture have swept the nation, free speech defenders have disagreed about what, exactly, cancel culture is, and what it means for freedom of speech. In many ways, these disagreements represent differences of opinion about how best to protect and uphold true freedom of speech.

And what better way to deal with questions about free speech than with a debate? Ken White is an attorney, a co-host of All the President's Lawyers, and a frequent commenter on issues of speech and law. Greg Lukianoff is the president of the Foundation for Individual Rights in Education (FIRE), a nonprofit whose mission is to "defend and sustain the individual rights of students and faculty members at America's colleges and universities." In the following exchange, the pair debate the resolution: Free speech law is the best defense against cancel culture.

This is a golden age for free speech in America.

For more than a generation, the United States Supreme Court has reliably protected unpopular speech from government sanction. The Court's staunch defense of the First Amendment is remarkable because it has transcended political partisanship and upheld speech that offends everyone, including the powerful.

In overturning flag burning laws, the Court protected (literally) incendiary speech that remains intolerable to many Americans. Years later, in upholding the right of Westboro Baptist Church to picket the funerals of servicemen with vile homophobic insults, the Court aggrieved both the left and the right, permitting violation of norms of veneration of the military and against hate speech. The Court has protected scatological and humiliating ridicule of public figures and overturned laws purporting to bar "disparaging" or "immoral or scandalous" trademarks, firmly establishing that offensive speech is free speech.

Crucially, the Court has repeatedly rebuked demands that it create new First Amendment exceptions based on the tastes of the moment. Instead, it has adhered to a select, narrowly defined list of historical exceptions, rejecting efforts to create a general "balancing test" that would determine whether speech is protected by an ad hoc weighing of its value and harm. The Court's defense of free speech is not perfectstudents and public employees have seen some narrowing of rightsbut it is unprecedented in American history, and in sharp contrast to the Court's halfhearted defense of Fourth, Fifth, and Sixth Amendment rights.

Moreover, Congresstypically not a reliable defender of rightshas contributed meaningfully to our freedom to speak without fear of legal retaliation. For decades, Section 230 of the Communications Decency Act of 1996 has made online discourse feasible by protecting websites from lawsuits based on the speech of visiting commenters and users. The SPEECH Act, enacted in 2010, protects us from libel tourism by making foreign defamation judgments unenforceable in the United States unless they comply with our robust free speech protections.

Of course, rights are enforced by courts, which can make them more theoretical than actual. Access to justice is inconsistent, and the litigation process is hideously expensive and burdensome. But we've witnessed an explosion of First Amendment advocacy groups from every part of the political spectrum willing to vindicate Americans' rightsincluding the Foundation for Individual Rights in Education.

Yet gloom and despair dominate public discourse about free speech. We're told that free speech is in decline, under siege, subjected to constant threats.

It's true that the First Amendment is constantly under attack and requires ongoing protection from legal assault from all sides. But the prevailing narrative isn't about official threats to speechthat is, threats involving state action that would violate the First Amendment. Instead, we're consumed with a debate about free speech culturea disagreement about whether some speech is impermissibly threatened by other speech. That's "cancel culture": the notion that some people's exercise of their rights to free speech and free association impedes others in exercising those rights. It's a clash of norms, not of laws.

The notion that free speech norms impact free speech rights is not new. The legal system won't reliably protect rights unless the culture values them. Consider how our unreflective "law and order" culture has degraded Fourth, Fifth, and Sixth Amendment rights. Judge Billings Learned Hand articulated it perfectly in his "Spirit of Liberty" speech in 1944: "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it." The project of cultivating a cultural respect for free speech is completely legitimate.

How do we protect free speech norms? With our free speech rights, grounded in the rule of law. Cancel culture and denunciation of cancel culture are competing norms in the protected marketplace of ideas. You can't burn down the marketplace in order to save it. Efforts to use state force to tamper with the marketplace to sort "valid" criticism from "invalid" cancellation inevitably result in less free speech, not more.

Consider ongoing efforts to use punitive laws to stop the Boycott, Divestment and Sanctions (BDS) movement against Israel, which put a government thumb on the scales by declaring that some forms of free speech and free association are an impermissible way to protest. Or consider how quickly J.K. Rowling, a very wealthy person who styles herself a victim of cancel culture because of the reactions to her comments about transgender people, uses threats of legal action under the U.K.'s regrettable defamation laws to force retractions and apologies from critics, nominally in service of some right to speak without "unfair" criticism. You can't win real free speech with censorship.

So what does it mean to use legal norms to protect cultural norms?

It's common for people criticizing cancel culture to say "we're not talking about law, we're talking about culture and behavior." Sure. But knowledge is power, and ignorance is poisonous.

Dialogue about free speechincluding about free speech cultureis often shot through with misunderstandings and disinformation about our legal rights. For instance, the debate over how social media platforms should be moderating unpopular speech is dominated by propaganda and gibberish about Section 230. That's bad for culture and civic society, because you can't effectively rely on or defend a right you don't understand.

Debates about free speech need not be limited to the law, but they should not mislead about the law. For example, when FIRE criticizes private universities for censorious policies, they take pains to point out that private schools are not bound by the First Amendment but should be bound by their promises of free exchange of ideas. That approach combines robust discourse about culture with accurate information about rights.

Many people who are concerned with cancel culture are acting in good faith and not trying to push a political agenda. But some people are. Cancel culture like any somewhat useful descriptive termis cynically used to mean "things I don't like" and "liberals suck." Take our president:

The problem isn't just that this reflects a completely unprincipled definition of cancel culture. The bigger problem is that the president (and many other politicians) decry cancel culture while wallowing in it by seeking to inflict social and economic consequences against speakers they don't like.

In fact, I respectfully submit that most complaining about cancel culture is insincere griping meant to convey "liberals are bad." This is part of a general political effort to associate free speech with the right and censorship with the left. (That effort isn't just historically laughable and demonstrably untrue, it's terribly shortsighted and counterproductive if your goal is to sell young people on free speech culture.) As a result, when people of good faith, like my friend Greg Lukianoff, talk about cancel culture, they're viewed with skepticism. They cannot pretend that their arguments exist in a vacuum; they exist in a culture of relentless, unprincipled misuse of the phrase.

So what can they do? They can use the rigor you would associate with legal norms. They can explain their terms, debate principled definitions of what is objectionable, and call out political misuse of the concept, so that their discourse can't be mistaken for mere partisanship. That brings us to the next way legal norms can inform this debate:

The debate over cancel culture is best conducted using specific examples, as you would in a legal argument, not broad generalities.

There is, for instance, a fairly broad consensus that the firing of David Shor was unjust and contemptible. So why not say so explicitly? The now-famous Harper's magazine letter about cancel culture didn't. It relied, instead, on somewhat vague allusions to cases, and on general criticism of "intolerance of opposing views" and "a vogue for public shaming and ostracism"terms that are very susceptible to exactly the sort of cynical political misuse I'm talking about. It should not have shocked the authors that their audience, steeped in our current political culture, read it as a partisan wolf in principled sheep's clothing. Couching the debate in specific cases, like Shor's, will help as much as rigorous definitions.

The point of the law is to sort out competing claims of rights. Any debate over cancel culture must do so as well. The things decried as "cancellation" of free speechpublic denunciations, calls for firings and boycotts, and so forthare indisputably other people's free speech. Just as a legal argument won't persuade if it ignores the claims of the opposing party (well, unless it's a D.A. arguing), the cultural argument won't persuade if it amounts to shut up so I feel more comfortable talking.

This is particularly true because cancel culture is used so flexibly to mean anything from demanding that someone be fired for saying something offensive (which might be a principled definition) to criticizing that person for saying it because doing so might be "mob action" that contributes to cancellation. Everyone's free speech rights are equal before the law. "There's no right not to be offended" is indisputably true, but so is "there's no right not to be criticized." These rights should be equal philosophically, too. People arguing that cancel culture is bad need to confront the fact that boycotts, group public condemnation, and even demands for firing are the sort of speech that comparatively obscure and powerless people have available to them.

And finally, in legal advice I always give to clients:

Like any Very Online debate, cancel culture is a bright flame attracting huckster moths, eager to gather money and attention by portraying themselves as its victimsjust subscribe here to learn all about it! Exercise prudent skepticism.

Debating free speech values is good. A little legal rigor wouldn't hurt.

Free speech culture is more important than the First Amendment. It's more important because free speech culture is what gave us the First Amendment in the 18th century. It's what kept free speech alive in the 19th century. It's what reinvigorated the First Amendment in the 20th century. It's what informs the First Amendment todayand it is what will decide if our current free speech protections will survive into the future.

The thinking that culture can be separated from the law is an odd sociological, let alone legal, theory, especially in a common law country. Indeed, the most important book in the history of freedom of speech, John Stuart Mill's On Liberty, is primarily a philosophical, not legal, argument against a repressive/conformist culture. The same is true of the most important book on freedom of speech in the last 50 years, Jonathan Rauch's Kindly Inquisitors. And the greatest speech on the nature of a free society, Judge Billings Learned Hand's 1944 "Spirit of Liberty" speech, explicitly argues that culture trumps law: "I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts," he said. "These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it."

Indeed, the framers of the Constitution and the First Amendment itself were heavily influenced by the cultural norms of the mother country and by radical free speech advocates like John Lilburne. They also benefited from free thinkers like Montesquieu, Francis Bacon, John Locke, David Hume, and the colonial experience in which the press and individual free speech was essentially impossible to control. The Bill of Rights in many ways is a summary of cultural values of what had previously been called "free-born Englishmen."

What does free speech culture look like? Popular idiomslike "it's a free country"are one good window into cultural values, and free speech values are not absent from our idioms. The folk wisdom of "to each his own," and "everyone's entitled to their own opinion" can be found all over First Amendment law and is mirrored in quotes, including my favorite in West Virginia Board of Education v. Barnette (1943): "Freedom to differ is not limited to things that do not matter much."

The sentiments "different strokes for different folks" and "who am I to judge?" find their legal analogs in cases including Cohen v. California's great line"one man's vulgarity is another's lyric"from 1971.

Notice, many idioms that were common when many of us were younger just don't have the same cultural force they used to have. Indeed, "sticks and stones" is regularly made fun of and misrepresented as being an incorrect folk notion rather than a mantra a free society teaches its children to help them deal with the burdens of everyday life. Free speech culture is a culture with a high tolerance for difference; a general presumption that, for most of us, our personal political opinions don't matter all that much for our day-to-day lives: "To each his own."

Free speech culture started to decline on college campuses in the mid-1980s, when campuseswhether they knew it or notstarted adopting the idea of "repressive tolerance." This was the belief that free speech protection for minority opinions did not go far enough. Instead, campus authorities should censor hateful speech. Of course, on campus, their political ideology was entirely dominant, giving them a skewed view of the importance of free speech for minority opinions in the off-campus world.

Luckily, lawyers and judges largely educated before the rise of repressive tolerance norms continued to zealously protect it. However, we kid ourselves if we believe our legal freedoms will survive if our free speech culture is undermined by the institutions entrusted to educate future citizens, leaders, lawyers, and judges.

The idea of free speech culture will always be frustrating to lawyers because it doesn't have the specificity of law. Of course, free speech law is more specific than free speech culture; law is about rules, while culture is about norms. That free speech culture is less specific than law does not make it less powerful. As Charles Davenant had mythological King Thoas observe in 1677's Circe, there is great power in "Custom, that unwritten Law, By which the People keep, even Kings in awe."

Oddly, some lawyers think of the law as something barely influenced by culture. But what about, for example, gay marriage? It only became legal after the culture accepted its legitimacyan unthinkable development 50 years ago.

What does free speech culture look like? Free speech culture means high tolerance for difference. It means a general presumption that, for most of us, our personal political opinions don't matter all that much for our day-to-day jobs: That those with "terrible" opinions can still be amazing lawyers, artists, scientists, and accountants, and people with "good" opinions are not necessarily good at anythingindeed, they might be a little too conventional to contribute interesting things to art, science, or social innovation.

The idea that bad people can be beneficial to society, and good people might be useless, is something that seems heretical in the context of cancel culture, which deems nasty things said in tweets 10 years ago relevant.

Cancel culture comes from our natural instinct to silence dissent. The desire for compliance and conformity is reflected in most of human history. It's deeply ingrained in all of us. We did not have to learn to censor others, we had to learn to be tolerant of nonconformity. We had to learn not to burn the heretic.

Cancel culture is a useful term for delineating the social media era expression of the ancient desire for conformity. Pervasive social media means that things that might have previously been ignoredangry letters sent to The New York Timesare now potentially successful efforts to mobilize a sufficient number of people to ruin lives. Early attempts to describe the new phenomena are instructive, including my own short book Freedom From Speech (2014), the documentary Can We Take a Joke? (2015), and Jon Ronson's So You've Been Publicly Shamed (2015).

So how would I define cancel culture? Broadly and tentatively, of course. How about:

"Cancel culture" is a term to refer to a relatively recent (post-2013) uptick inand success ofideologically driven efforts to get individuals fired or otherwise cast out of acceptable society for non-conforming speech or actions, including speech that would have once been considered trivial, private, or unrelated to someone's job. It is tightly related to the rise in social media, which allows for unparalleled collective policing of ideological norms, and the comparative ease of creating online "outrage mobs."

Cancel culture is in my view, the progeny of campus "callout culture" that Jonathan Haidt and I explore in our book The Coddling of the American Mind (2019). Some characteristics of campus callout culture looks similar to cancel culture, including: 1) the conflation of expressions of opinion with physical violence, 2) the use of ad hominem rhetorical tactics which delegitimize the person and soften or ignore the substance of the argument), 3) the elimination of concern for the intent of targeted speech, relying solely on its claimed effect, 4) a high reliance on guilt by association and theories of "moral pollution" (a concept well explained by my colleague Pamela Paresky), and 5) appeals to authority to punish or remove the targeted speaker (also known as moral dependency). None of these criteria are required to be part of cancel culture, but some or all of these characteristics often are.

Cancel culture often relies on speech that is already unprotected under First Amendment law, including threats of bodily harm and outright harassment. In other cases, cancel culture demands behavior from others that would be unconstitutional or otherwise unlawful. While, for example, you're absolutely free to advocate for less free speech by, for example, demanding a professor be fired for their expression, if a public university were to act on those demands it would violate the law, plain and simple.

The forces of conformity are very strong in humans, and we've given them superpowers in recent days. It must be opposed. Diversity of opinion, the right to individual conscience, the power of thought experimentation and devil's advocacy are important for a free and innovative society.

What does a culture look like that has a strong free speech culture, but not favorable law? France in the 18th century is a good example. It was one of the greatest philosophical periods in human history. It featured thinkers like Voltaire, Diderot, Rousseau, Montesquieu, and milie du Chtelet, as well as salons, like those of Baron d'Holbach, attended by thinkers like David Hume, Adam Smith, and Benjamin Franklin. Sometimes these thinkers and writers had to flee France to avoid arrest, and sometimes they were arrested, but the cultural norm of open discussion was so strong they kept writing and innovating and challenging norms and beliefs.

And what does a country look like that has no free speech culture, but good free speech law? Consider the following guarantees of free speech, from other countries' constitutions:

Each of these sounds similar to our own First Amendment's speech promise. And if you want to know how they are working out, you can visit Russia, North Korea, and Turkey, respectively.

And while these are stark examples, free speech is even under threat in the nominally "free world," including in Spain, Britain, and France, where people have been imprisoned for rap lyrics saying the wrong thing, reading the wrong thing, or having the wrong reaction in a Facebook post.

That's where we could be headed if we don't remember that free speech culture is more important than free speech law. A free speech culture can exist without protective law, but not the other way aroundat least not for very long.

My friend Greg Lukianoff is passionate about free speech, as befits someone who has fought so effectively for it. We have few legal disputes about the scope of the First Amendment. Moreover, as a matter of taste, our views about cancel culture are often consistentI, too, think that demands that people suffer economic consequences for disfavored speech are often counterproductive and destructive to civic society. But my view of the current public dialogue about free speech culture is substantially more cynical than his, and there we differ.

Greg asserts that free speech culture "gave us the First Amendment in the 18th century" and "kept free speech alive." That culture has always been more aspirational than actual. The free speech culture that produced the First Amendment also promptly produced the Alien and Sedition Acts. The dawn of the modern age and mass media gave us broad justifications for censorship of political speech, cultural repression, and suppression of minority views and values.

Though Americans support free speech in the abstract, that support often breaks down when we are confronted with specific examples of speech we don't like. The history of the First Amendment is a history of Americans struggling mightily against other Americans trying to silence them. If free speech is in our national DNA, so is censorship.

That's a fundamental flaw in the current popular cancel culture narrative. It suggests, expressly or implicitly, that America enjoyed some golden age of cultural tolerance for speech. But did we? Did we really? If so, when was it? I submit that there was never such an age, and that unpopular views have always met with social and economic repercussions in America.

We can strive to do better, but we shouldn't distort history by claiming that people now are more censorious than they were before. We can argue, for instance, that Americans should be able to express disapproval of gay marriage without losing their jobsbut that shouldn't lead us to suggest that America was previously a safe place to express pro-gay views, when it manifestly was not.

Why does this matter? It matters because the loudest voices condemning cancel culture in America are not people of good faith like Greg. The loudest voices are using the issue as a cynical political wedge from the right to attack the left.

They're the same voices who try to get people fired for speech when that speech is offensive to them, when that speech comes from the left. The "golden era" conceptthe suggestion that there was a better time for social tolerance of speech in America, and it's now been spoiled by millennials and progressivesis not just wrong, it's nakedly partisan, and it's part of the same effort to make free speech culture into a political weapon.

Making free speech a partisan issue is foolhardy, and true free speech defenders must resist it. The First Amendmentand free speech culture more broadlyrely on a sometimes tenuous bargain. The bargain is this: We all agree not to use the power of the state to punish speech that makes us mad, and instead to use the power of the marketplace of ideas to fight it. That deal convinces Americans to refrain, at least some of the time, from state censorship of some truly despicable and upsetting speech.

But what if we now tell Americans that yes, they have the marketplace of ideas, they have the ability to respond to speech they hate with "more speech"but that more speech shouldn't be too harsh? What if we tell themand especially young people, who tend to be far more left-leaningthat we should see harsh responses to ugly speech as "liberal" and mild responses as "conservative"? Their natural reaction may be to see the free speech "deal" as a partisan sham, a rationalization for preferring the speech and feelings of one group over the other. It's hard to imagine a better way to lose an entire generation's commitment to free speech values.

To be taken seriously, cancel culture critiques must be doggedly nonpartisan and overtly hostile to political misuse. They must also strive for evenhandedness. Critics shouldn't impose norms on "more speech" that they don't impose on the speech it's rebutting.

So, for instance, if you're concerned that widespread condemnation of a professor's column chills speech, you might ask at the same time whether the professor's description of student activists as a "terrorist organization" was also chilling. More speech is free speech, entitled to the same legal and cultural protection as the speech to which it responds. A philosophy that criticizes one to the exclusion of the other will not convince Americans.

Ken White and I are both great admirers of American First Amendment law. I believe it's the best body of thought on how to have freedom of speech in the real world. Where Ken and I differ is that I believe free speech culture and law are (almost) inextricable. We interpret law through the lens of culture, and culture is what makes our law possible and effective. The list of countries that have good free speech laws on the books, but have no free speech because they utterly lack a free speech culture, is long.

We are extremely lucky that our Supreme Court is populated by attorneys educated or coming up during the 1970s, arguably the best decade for both free speech culture on campus and free speech law. However, I've seen a stark decline in student respect for, or understanding of, speech norms over the past decade, and I believe this will inevitably lead to an eventual decline in law.

As I've recounted countless times, from 2001 to about 2012, the students were the best constituency for free speech on campus. Then, in the 201314 school year, students started to demand new campus speech codes and disinvitations, claiming that the presence of people with certain views was medically harmful. Conservatives had railed against campus narrow mindedness for years, but starting in 2014, more and more liberals and left-of-center people grew concerned about the trend, as well. As researchers would discover, the population hitting campuses around 20132014 were less tolerant of free speech.

Because the Foundation for Individual Rights in Education works exclusively on campus, I saw this change in real time and on the groundboth figuratively and literally. In 2015, I filmed Nicholas Christakis when he was encircled by Yale students calling for him to lose his job.

As more members of Generation Z hit the "real world," free speech norms like tolerance for political differences will erode. A 2020 Cato/YouGov survey found that 27 percent of Americans under 30 would support firing a business executive who personally donates to Joe Biden's campaign; 44 percent support firing a similar Donald Trump donor.

Ken warned me about grifters, charlatans, and Trump tainting my argument. But this is the kind of guilt-by-association argument I am fighting: "Bad people make argument, therefore argument bad!" Never mind that I was speaking about this phenomenon years before anyone imagined a President Trump. Yes, Trump pointed out a rising intolerance on the left, but former President Barack Obama has also made similar arguments several times over, and continues to do so.

So have former presidential candidates Bernie Sanders and Elizabeth Warren.

Ken is a friend who I love, admire, and respect, but I have to vent some frustration. I've seen a lot of hostility to the idea of free speech culture coming from people who defer to Ken's point of view. If Ken is concerned about free speech cynicism, he's fortuitously positioned to help stop it.

So, I have some requests of Ken, but, more importantly, of his fans, and for many others.

Not everybody who cares about freedom of speech is as well-versed in its nuances as Ken and me. I try to give people the benefit of the doubt, and even expect people to be inconsistent, because that's part of human nature. Sometimes free speech defenders can disagree about what should be protected, may still be learning, or just made a bad call once. If the price of chiming in to say "I believe in free speech" is to be called out as a presumptive hypocrite, why wouldn't people become cynical?

If someone usually disagrees with you, but actually agrees with you on a particular free speech incident, welcome their help rather than fixate on what you consider to be their previous hypocrisy (which sometimes isn't even there).

Jonathan Rauch, Nadine Strossen, and I and many others are people who actually work in this profession; Milo Yiannopoulos and Charlie Kirk, for example, are explicitly partisan and only care about free speech for ideological allies. In my experience, speech professionals are thoughtful and consistent, and should not be dragged down because grifters exist, as they have always existed.

Many people follow Ken's example by tweeting something about how people on the right "don't care about these casesin your face, conservative!" But few realize what else he does: Send the cases our way and actually support our work. Be more like Ken and do more than dunk on your opponents: Spread the word, contact the school, and urge other influential people to join the profree speech side.

Ken and I don't have to agree on the value of free speech culture. But when people are fostering contempt and cynicism about free speech it makes the job of actual free speech fighters, including both Ken and me, much harder. If we preoccupy ourselves with distancing ourselves from the "bad" folks, we will eventually cede free speech to the grifters.

It's okay that people deemed "bad" by internet mobs agree with me about cancel culture. Indeed, I would like more people to come out against cancel culture; most Americans are against it but may be afraid to say so. I may be greedy, but I'd like both strong free speech law and a strong culture.

Therefore, I would like more people to return to the idioms of a free society: How about "everyone's entitled to their own opinion," "it's a free country," "address the argument, not the person," and maybe a new one: "Even people I hate have to make a living."

Read more:

What's the Best Way To Protect Free Speech? Ken White and Greg Lukianoff Debate Cancel Culture - Reason

In light of the circumstances surrounding incoming lecturer Dr. Jesse Goldberg, we at Auburn Spectrum are reminded of another situation where an employee's social media posts caused an outrage. Last year, Bruce Murray from the College of Education was shown to have made and shared several posts that deny and condemn the existence of LGBTQ+ individuals.

Despite the outcry from more than 200 faculty members and countless students who said that these comments perpetuated the harm that Auburn's LGBTQ+ students have to face every day, the University refused to condemn the comments as hate speech, saying that this professor's posts on social media and the opinions he submitted to newspapers over several years are protected by free speech.

Dr. Goldberg made posts condemning an institution he believes is violent and contributes to an oppressive system. Less than a week later his posts are condemned by the University's administration as hate speech (even though police are not considered a protected class by the University while gender identity, gender expression, and sexual orientation are), and his job is at risk before it ever even began.

By contrast, it was three weeks after The Plainsman published the article about Murray before anyone from the administration made a statement, and even then it was two sentences expressing vague and nonspecific support for the community harmed by the rhetoric that he had shared repeatedly.

If Auburn University is going to swiftly and harshly condemn one employee's social media posts for hate speech, it should do so in all cases.

If Auburn University is going to passively allow employees to share their opinions on social media and in newspapers - no matter how reprehensible some may find them - in the name of free speech, it should do so in all cases.

The University cannot pick and choose when it wishes to allow freedom of speech and expect people to stand idly by in the face of such hypocrisy.

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If Bruce Murray's bigoted remarks are protected by the First Amendment, then Jesse Goldberg's anti-police remarks should receive similar protection.

Heather Mann is the president of Spectrum, Auburn University's Gay-Straight Alliance.

Do you like this story? The Plainsman doesn't accept money from tuition or student fees, and we don't charge a subscription fee. But you can donate to support The Plainsman.

Heather Mann | Spectrum President

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LETTER TO THE EDITOR | "Free Speech" should apply to all, not just some - The Auburn Plainsman

The Supreme Court on Tuesday told advocate Prashant Bhushan that there was a thin line between contempt and freedom of speech, Live Law reported. The top court was hearing a contempt case against the advocate from 2009.

Bhushan had allegedly made some objectionable remarks against Supreme Court judges in an interview to Tehelka magazine in 2009. The contempt of court case against him was filed by advocate Harish Salve.

The top court bench, headed by Justice Arun Mishra, told Bhushans lawyer Rajeev Dhavan that there should be a balance between the right to free speech on one hand and the need to safeguard the dignity of the judiciary, according to Hindustan Times. We are all for freedom of speech and then theres contempt, Mishra was quoted as saying by Live Law. However, theres a thin line that you [Bhushan] may have crossed.

On July 21, the Supreme Court initiated suo motu criminal contempt proceedings against advocate Prashant Bhushan and social media platform Twitter India. The next day, the top court issued notices to Bhushan and Attorney General KK Venugopal for the lawyers alleged derogatory tweets against the judiciary. The case will be heard again on August 5.

Another contempt case related to two tweets posted by him on June 27 and 29. The first tweet commented about undeclared emergency in India and the role of the Supreme Court and last four chief justices of India. The second tweet was about Chief Justice SA Bobde trying out a Harley Davidson superbike in his hometown Nagpur.

In a response to the notice against him, Bhushan had said on Monday that the power of contempt must not be used to stifle voices that seek accountability from a court for its errors. To prevent a citizen from forming, holding and expressing bonafide opinion in public interest on any institution and from evaluating its performance is not a reasonable restriction on fundamental right to free speech, Bhushan had said.

Bhushan had added that his tweet about the last four chief justices was his bonafide impression about them. He said that even though his personal views were outspoken, disagreeable or unpalatable, they could not be counted as contempt.

Follow this link:

SC tells Prashant Bhushan there is a thin line between contempt and freedom of speech - Scroll.in

(Photo Illustration by Cindy Ord/Getty Images)

TikTok plans to resist President Trumps executive order by fighting it in court.

The executive order, which prohibits US transactions with the video-sharing app, sets a dangerous precedent against free expression and open markets, TikTok said in a statement Thursday night.

The order also arrived without any due process, it said. So in response, TikTok is gearing up to wage a legal battle against the White House.

We will pursue all remedies available to us in order to ensure that the rule of law is not discarded and that our company and our users are treated fairly if not by the Administration, then by the US courts, TikTok said.

The Trump administration has yet to define which transactions fall under the executive order, and if US-based TikTok users will be ensnared. But US app stores, cloud providers and credit card companies would almost certainly need to stop doing business with TikTok, or risk facing hefty fines and possible imprisonment.

Still, some legal experts say Trumps order is unconstitutional because it violates free speech protections under the First Amendment. This is another abuse of emergency powers under the broad guise of national security, said Hina Shamsi, a director at the American Civil Liberties Union.

Selectively banning entire platforms harms freedom of speech online and does nothing to resolve the broader problem of unjustified government surveillance, including by our own government, she added.

However, the real aim of Trumps executive order was probably to pressure TikTok into selling itself to Microsoft. The software giant is currently negotiating with TikToksChinese parent company ByteDance to take it over. However, the two parties only have 45 more days to reach a deal. If they don't, the executive order will take effect, and the White House can begin penalizing US companies and individuals that work with TikTok.

In the meantime, the video-sharing app is vowing itll remain in operation, despite the White Houses attempt to cripple its business. TikTok will be here for many years to come, the company said in its statement.

Trump is seeking to ban TikTok on claims the Chinese government will secretly use the video-sharing app to spy on millions of Americans. However, TikTok has been adamant its operating as an independent business free of Chinese control.

The text of the (Trumps) decision makes it plain that there has been a reliance on unnamed reports with no citations, fears that the app may be used for misinformation campaigns with no substantiation of such fears, and concerns about the collection of data that is industry standard for thousands of mobile apps around the world, TikTok added. We have made clear that TikTok has never shared user data with the Chinese government, nor censored content at its request.

Further Reading

Social Media Reviews

Continued here:

TikTok to Trump: We're Ready to Fight Your Executive Order in Court - PCMag

LinkedIn banning angel investor Dr Aniruddha Malpani for posts critical of edtech giant BYJUS highlights the issue of social medias control over online speech

Beyond LinkedIn, the likes of Twitter, YouTube, Facebook and Instagram have also had to take down content on the behest of companies and brands

When authentic criticism can be suppressed without a public debate, is there any way that social media platforms can claim to be paragons of free speech?

Theres something to be said about freedom of speech online or lack thereof when a powerful startup can use its muscle to act against critics on social media. If indeed the so-called protectors of speech and expression in the digital age can be coerced into deleting posts and content to protect the interests of one company, then what hope do people have in getting their voices heard.

We have seen social media platforms being twisted and manipulated for political gain, but even companies have a lot riding on reputation management in the online world. As highlighted in the incident involving angel investor Dr Aniruddha Malpani, edtech giant BYJUS and Microsoft-owned professional social network LinkedIn.

Over the last few weeks, Malpani has been in the limelight for alleging BYJUS had got his LinkedIn account deactivated and banned for posting allegedly defamatory content against the edtech unicorn. I have a clear conscience about my posts on #LinkedIn about the #toxic #work #culture at #Byjus. I just said the truth, with the hope that this would goad them into action. Sadly, they have chosen to make matters worse by punishing me by forcing #LinkedIn to delete my account, Malpani tweeted on July 21.

Though there is no proof of BYJUS involvement in Linkedin taking down his account, it raises questions over why a platform run by a multinational company such as Microsoft should oppress the voice of any user, even if it may be critical of another business. Though LinkedIn is strictly limited to professional networking, deleting accounts is only seen when fake users pop up.

But its just not LinkedIn in question. According to a Medianama report, even Twitters legal team has sent notices to users talking against BYJUS, which noted that tweets critical of the company violated Indian law. The publication had reviewed four of these emails sent over the past few months which included off-the-cuff comments on its business and an allegation that it was promoting fake news.

Though BYJUS has declined to comment their involvement in the Twitter reports, it has maintained a studied silence on the LinkedIn fiasco.

The LinkedIn-Malpani-BYJUS debacle has thrown light on a larger issue on the internet freedom of speech and expression. Malpani told Inc42 that the problem in this issue is not that his account got banned, but the lack of accountability and answerability on LinkedIns part. He has been repeatedly trying to reach out to the company in an attempt to restore his account, but has only received templated responses time and again.

It raises questions on how social media platforms like LinkedIn, Twitter and Facebook decide on what passes the test and what does not. It also raises questions over whats the redressal mechanism available on these platforms.

Further, theres the issue of Indias intermediary guidelines, which force social media companies to take down content on the request of the government and law enforcement agencies. If indeed companies have an issue with a particular series of posts, they can take it to court and get the content removed legitimately. Realising the implications of this power over customers and other businesses, even the US Congress recently probed tech giants like Apple, Amazon, Google and Facebook over free speech and online privacy.

In 2018, PepsiCo sued Facebook, YouTube, Twitter and others for comparing snack brand Kurkure to plastic. Similarly, other content such as reviews of the Baba Ramdev biography Godman to Tycoon were deemed to be defamatory and taken down. As reported by Medianama, the Bombay high court had directed a YouTube creator in January this year to takedown a video reviewing Parachute coconut oil. In its decision, the high court had maintained that the fundamental right to freedom of speech and expression is not an unfettered right and that maligning a product may not be covered under any guarantees by the constitution.

YouTube was also caught in another BYJUS-related scandal where videos of a BYJUS sales manager abusing a junior employee were taken down indiscriminately. All instances of the video have been wiped out from YouTube, Dailymotion and Reddit, where it was being circulated. Users on Reddit have also alleged other instances of posts in relation to BYJUS being deleted or taken down.

Inc42 reached out to Linkedin seeking clarification, but the company sent a templated response, LinkedIn is committed to keeping our platform safe, trusted and professional. We have clear terms of service and professional community policies that we expect all of our members to adhere to. We can confirm that this account has been restricted and cannot comment further on member accounts due to our Privacy Policy.

LinkedIns professional community policies mostly include generic community guidelines like acting responsibly, being trustworthy, being safe, respecting others rights and following the law.

So on what basis was the account deletion enforced by LinkedIn? And shouldnt it have to furnish proof of said violations before deleting someones lifes work? If LinkedIn indeed wants to remain a career enabler, such moves rob it of credibility.

The pandemic has pushed social distancing to another level. In times like these, peoples dependence on social networking platforms has increased manifold. Though these platforms are owned by private multinational corporations, theyre still public in nature. Therefore, they need to be more accountable and responsible in terms of managing it and not oppressing voices.

According to Malpani, he has recommended that LinkedIn bring in a democratic solution which allows five representatives from the company and five users to decide what should be removed from the platform. This model is somewhat similar to Facebooks Oversight Board that reviews appeals from users, whose account has been removed from Facebook and its subsidiaries. This board is an independent body whose decision Facebook will have to follow unless it could violate any law.

On the other hand even the legal route is an impossible fight to win considering LinkedIns terms and conditions state, You are responsible for anything that happens through your account unless you close it or report misuse. With no redressal system, the only way to solve such problems on LinkedIn is to prevent it in the first place.

While reports about problematic work culture in unicorns and other prominent startups are no secret, there has not been much said about such a work culture, as it could damage the companys valuations and hamper its ability to attract further investments.

Malpani maintained that he does not have any problem with BYJUS, but has raised issues that he feels are symptomatic across the startup ecosystem and unicorns.

I have nothing against BYJUs, I just take BYJUs as representative (of the issue of corporate governance). I am sure others must be equally bad. You know why? Because everyone is now trying to copy BYJUs. So they put someone who used to work at BYJUs and they used to copy and paste all their mis-selling techniques and all the rubbish they used to do because this is the best way to make money very quickly, he said.

The investor also said while he is in a better position than others to take the fight to LinkedIn, others may not have the time, means or inclination to get into a protracted fight. And therein lies the major issue. This issue is not just about LinkedIn banning an individual, but shows a greater problem around freedom of speech without having any form of redressal mechanisms in place.

Social media platforms have too much power and at the same time none, at least as long as companies can stroll in and demand that criticism needs to be removed. Whereas the issue can be ignored to a certain extent, but when authentic criticism can be similarly suppressed, then theres no way that social media platforms can claim to be paragons of free speech.

Original post:

An Angel Investors Tryst With BYJUS And LinkedIn; The Free Speech Conundrum - Inc42 Media

LOUISVILLE, Ky. (AP) A lawsuit challenging former Gov. Matt Bevins practice of blocking some people on Twitter and Facebook has been settled with the current governor, who has committed to allowing robust discourse on the governors official social media accounts.

The settlement with Bevins successor, Democratic Gov. Andy Beshear, represents a victory for the First Amendment rights of Kentuckians, said Corey Shapiro, legal director for the American Civil Liberties Union of Kentucky.

The ACLU said it reached the settlement with Beshears office. Beshear defeated Bevin, a Republican, in last years election.

The agreement resolved the lawsuits major claims through the adoption of a new social media policy allowing for vigorous and robust discourse on the governors official social media platforms, the ACLU said.

The agreement enables social media users to share feedback with the governors office without worrying their comment will be deleted or that they will be permanently banned or blocked from accessing information from these important information channels, Shapiro said.

Beshear spokeswoman Crystal Staley said his administration is committed to transparent and open government and accepting of both supportive and critical voices on social media.

This policy provides clear guidelines for when content can be removed, hidden or reported to the respective platforms for possible violations of their policies, she said in a statement.

Besides setting rules for users, the policy includes language that people are notified when blocked for posting prohibited content to the social media pages, the ACLU said.

Political leaders have turned increasingly to social media to communicate directly with constituents in recent years, and responses often reflect the deep political divisions currently animating the American political landscape.

The ACLU said thousands of people were silenced when Bevin blocked them from making constitutionally protected comments on his official social media accounts while he was governor.

Bevins office maintained the action didnt violate free speech rights but was done when users posted obscene or abusive language or images or made off-topic comments.

Under the new social media policy, the governors office will strive at all times to uphold users right to freedom of speech. However, the governors office may temporarily restrict access to the governors official social media platforms for violating policy rules.

It allows the governors office to hide or delete comments that are deemed threatening, harassing or sexual; promote commercial products or contain private information. People can be restricted from those social media platforms for up to six months for comments containing prohibited content.

The governors office would have to provide them with written notice, including guidance for navigating a process to get social media accounts unblocked. The policy includes an appeals process for people restricted from accessing the accounts.

Future governors could choose to retain the policy, update it or abolish it, the ACLU acknowledged.

We would certainly hope that if they did change it, they would do so in the spirit of this robust policy and of course we hope that no administration would abandon the principles established here, said ACLU of Kentucky spokeswoman Amber Duke.

The original lawsuit was filed by the ACLU of Kentucky in July 2017. The settlement agreement was reached in July, and the parties jointly dismissed the case Thursday, the ACLU said.

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Settlement reached after former Gov. Matt Bevin blocked users on social media - LEX18 Lexington KY News