14 January 2022

Freeman Mathis & Gary

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In the recent decision entitledDoe v. Hopkinton PublicSchools, the U.S. Court of Appeals for the First Circuitrejected students' contention that posting abusive andembarrassing video of another student online was protected speech.The student members of the high school hockey team sued theHopkinton (Mass.) school district, the superintendent of schools,and the high school principal, and argued they were wrongfullydisciplined by the high school. Some students photographed andvideo-recorded a fellow member of the team and his family on manyoccasions, without his permission, and then shared images anddemeaning comments to a small group on the Snapchat social mediaapplication.

The offensive Snapchats included expletive-laced comments andreactions regarding the teammate's appearance, voice, anatomyand family members. A complaint was made to the school pursuant tothe Massachusetts Bullying Prevention and Intervention statute,Mass. Gen. Laws. Ch 71, 37Hand37O. An investigation determined that thevictim had suffered numerous acts of bullying as defined both bylaw and the district's Anti-Bullying Policy. Moreover, thevictim experienced being excluded, embarrassed, and feeling bulliedby the unauthorized sharing of his and his family's images onsocial media. The investigation further determined that the hockeyteam members were aware of, encouraged, joined, and participated inthe bullying. These activities occurred in the locker room, atschool, and on bus rides to away hockey games and later shared viathe internet. The involved students, including those who did notconfront the victim in person but simply joined in offensive onlinecommenting, were suspended from school.

Several of the disciplined students filed a lawsuit in U.S.District Court in Boston alleging that the school district hadviolated their rights to freedom of speech and freedom ofassociation (including the right to associate in the Snapchat groupand share offensive material) under state and federal law. U.S.District Court Judge William G. Young rejected the claims anddismissed the students' case against the Hopkintondefendants.

On appeal to the First Circuit Court of Appeals, the studentscontended that sending and discussing privatemessages among friends over the Snapchat platform was aconstitutionally-protected activity and that the school districtunlawfully interfered with their rights. The First Circuit rejectedthat bullying behaviors were protected by the First Amendment tothe U.S. Constitution. The Court accepted the conclusions by theschool district that the offensive speech and Snapchatparticipation violated school policy and state law and werecausally connected to other hockey players' active bullyingof the victim. The court noted that Children often bully asa group. The children who stand on a sidewalk and cheer as one oftheir friends shakes down a smaller student for his lunch money maynot be as culpable, but they are not entirely blameless. Thedecision held that it was reasonable for the school to concludethat the messages and the students' participation in theSnapchat group fostered an environment that emboldened thebullies and encouraged others in the invasion of the[victim's] rights. The evidence showed that they were wellaware of the effects of that conduct on their teammate. TheCourt determined that the speech and conduct at issue in a schoolenvironment are not protected by the FirstAmendment.

TheDoe v. Hopkinton Public School caseemphatically rejects the rights of students toparticipate in school bullying. It provides further guidance andprotection to schools and districts as they carry out legalobligations to investigate and discipline students for bullyingbehaviors.

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US Court Of Appeals Rules That Student "Snapchat Bullying" Is Not A First Amendment Protected Activity - Litigation, Mediation &...

A Lincoln man has lost an appeal over his conviction and 10-day jail sentence for yelling racial epithets and vulgarities from his apartment balcony at two painters and a neighbor in 2019.

Kenneth Grant Jr., 52, maintained the speech was protected under the First Amendment.

At a bench trial in 2019, Grant was accused of violating two provisions under the Lincoln Municipal Code: disturbing the peace and assault or menacing threats.

Jennifer Ponce, one of the victims, testified that on July 15, 2019,she was painting a house with a colleague when Grant started yelling vulgar things at them from across the street.

Lincoln mask mandate coming back as COVID-19 cases soar past 3,600 this week

Progressively, his comments got worse. Ponce said he yelled lewd comments about her body and threatened to "put bullets in your boyfriends."

Ponce said, feeling threatened, she called police.

Gregory Patterson, another of the victims, testified that this was nothing new.

"Hed always sit on the porch and holler racial slurs, all the time, towards me, towards the neighbors, even towards people walking down the street, Patterson said.

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That day, he said he heard Grant shouting "Kill them all" and "send them back to Africa."

Asked whether he viewed Grant's words as threatening, Patterson, the only Black person there, said he felt Grant's comments were directed at him.

Lincoln Officer Breanna Callese said Grant admitted he had called Patterson a racial epithet and yelled at the painters that "he was going to 'light them up.'" But he maintained that saying it was protected under his First Amendment right.

Callese ticketed Grant and he was charged.

Lancaster County Court Judge Laurie Yardley found him guilty and sentenced him to serve 10 days in jail. He appealed to the district court, which affirmed the sentence, then to the Nebraska Supreme Court.

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Deputy Lancaster County Public Defender James Sieben contended the speech was constitutionally protected and that the government couldn't restrict it because Grant had been on his private property at the time.

And the Lincoln City Attorney's Office argued the conviction should be upheld because they were "threats and fighting words," which aren't protected.

In Friday's decision, Chief Nebraska Supreme Court Justice Michael Heavican said the broad protections afforded by the federal and state Constitutions are not absolute.

Here, he said, the prohibition against disturbing the peace makes no reference to the content of speech and or target particular speech on its face.

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Heavican said Grant's speech not only occurred on his own property but also at least 50 yards across a public street and sidewalk, making it public.

So the court didn't need to analyze whether Grant's speech included fighting words or true threats.

"Because, even if Grant's speech was protected, we conclude the state may regulate it through reasonable restrictions on the time, place, and manner of speech," he said.

Heavican said if Grant had been communicating the same content without yelling loudly down the street, for a lengthy period of time, "we find no evidence in the record that he would have been cited under this ordinance."

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Lincoln man loses appeal arguing that yelling racial epithets was his First Amendment right - Hastings Tribune

Updated Information

Find a statement from the Vigo County Health Department at the bottom of this story.

VIGO COUNTY, Ind. (WTHI) - We now know some of the next steps forward in the lawsuit against the Vigo County Health Department.

We first told you about this lawsuit in late October of last year.

Vigo County resident Doug Springer filed a federal lawsuit against the health department, claiming it violated his rights by banning him from its Facebook page.

Springer says in January of 2021, he commented on a health department post involving COVID-19 cases in the county. It's an action he claims got him banned.

A pre-trial conference is set for Monday, January 24, via telephone. By Monday, those involved need to file a proposed case management plan. It will include deadlines for witnesses and evidence.

Springer said he reacted to a Facebook post from the department, writing that positive COVID-19 test results aren't the same as cases of sick patients.

Court documents say, Springer, to the best of his recollection, posted the following:

"They are NOT cases; they are positive test results and the majority of them will never get sick from the virus. The very fact that the number of positives without accompanying illness is so high shows that the virus is much less dangerous than it is being portrayed."

When the health department banned him from the page, the lawsuit claims that it hid his previous comments from public view. It also continues to ban him from making new comments.

The lawsuit claims the actions from the Vigo County Health Department violate Springer's rights under the First Amendment. It goes on to say the department's actions represent improper viewpoint-based discrimination.

He's asking to be unbanned from the health department's Facebook page and for all of his comments to be restored.

In court documents, the Vigo County Health Department says the following:

"The Health Department admits the decision to prevent the plaintiff, Mr. Springer, from commenting on the Facebook Page of the Health Department is based on the belief that Mr. Springer was using the Health Departments Facebook platform to engage in disinformation and unprotected speech regarding the severity of the COVID-19 pandemic. Nothing prevents Mr. Springer from posting on his own Facebook page his feelings and issues surrounding the COVID-19 pandemic...The plaintiffs statement indicating that this disease was much less dangerous than it was being portrayed is a message the Health Department is not willing to tolerate on its Facebook Page for anyone"

See the full document below.

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Pre-trial conference set for a federal First Amendment lawsuit against the Vigo County Health Department - WTHITV.com

The city of Baton Rouge tried to throw a law professor in prison after he shared publicly available body camera footage showing police officers strip-searching a minor in public. On Friday, a federal judge ruled that this violated the First Amendment.

That footage, originally shared withReason,was captured at a 2020 traffic stop. Baton Rouge Police Department (BRPD) officers cuffed 23-year-old Clarence Green and his 16-year-old brother, pulling down their pants on the sidewalk to look for drugs. Officer Troy Lawrence Jr. and thenSgt. Ken Camallo subsequently went to the family's home and searched it, weapons drawn, without a warrant.

When the story sparked considerable outrage, the government zeroed in on Thomas Frampton, the attorney who represented the Greens and disseminated the clips, which were already a part of the public record. During a May press conference convened to address the video, East Baton Rouge Parish Attorney Anderson "Andy" Dotson III notified Frampton that the government would seek to hold him in contempt of court, which carried up to six months in the East Baton Rouge Parish Prison.

"In measuring 'the significance of [Frampton's] alleged criminal activity', the Court finds under the circumstances of this case, there was no criminal activity," writes Judge John W. deGravelles in a 92-page opinion published Friday. "Frampton released a Video that was in the public domain, belonged to his clients, and he released it on the instructions and with the knowledge of his clients."

The footage of Camallo's warrantless home entry might be an even bigger headache for the BRPD that thepublic strip-search. This was his third such search in under three years. He has since been demoted, but he's still with the department.

"BRPD officers' contempt for the constitutional rights of everyday Baton Rouge citizens, like the Green Family, is jaw-dropping," Frampton declared in a public statement. "But then you see how the lawyers who defend and enable these officers act, and it makes a lot more sense. Sadly, it's the taxpayers who will end up paying for their misdeeds."

Indeed, the Green family reached a $35,000 settlement with the city after Clarence spent five months in jail. The government moved to dismiss its case against him, and a federal judge agreedbut not without first benchslapping the state for actions that could be criminal.

"Such an intrusion, in abject violation of the protections afforded by the Fourth Amendment of the United States Constitution, which protects citizens against unwarranted governmental intrusions in their homes, may justifiably be considered to be a trespass subject to prosecution under" Louisiana law, wrote Judge Brian A. Jackson of the U.S. District Court for the Middle District of Louisiana.

The city of Baton Rouge insisted that it was Frampton who violated the law, by disseminating the video. But it was the city that put that footage into the public record in the first place.

DeGravelles thinks this was never really about prosecuting someone for breaching the law. Instead, he says, it was about revenge and skirting accountability. "The record is replete with evidence," he writed, "that the City/Parish would not have pursued this matter in the absence of its bad faith motive to retaliate."

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Judge: Baton Rouge Violated the First Amendment by Trying To Imprison a Professor for Sharing Body Camera Footage - Reason

A plan to require masks in committee hearings drew the first fight between Democrats and Republicans in the state House Friday.

House Resolution 1003 would allow the Democratic leader of the House to create regulations to protect vulnerable members of the House during a public health emergency.

Speaker Alec Garnett, D-Denver, said all the resolution would do is to cover committee space of the House, to ensure people can socially distance and wear masks.

"It keeps us up to date where we were last year, no more than that," he said.

The need for the resolution stems from Joint Rule 44, which concerns declaration of public health emergency and which guided the General Assembly until its use was ended last year.

But House Republicans, most of whom don't wear masks anywhere in the Capitol, fought back. That included invoking information that has been thoroughly debunked.

Rep. Stephanie Luck, R-Penrose, has been one of the most ardent advocates for debunked medical information, both in 2021 and 2022. She's the sponsor of a 2022 bill to allow off-label use of hydroxychloroquine and ivermectin, which both the Food and Drug Administration and Centers for Disease Control and Prevention warn shouldn't be used to either treat or prevent COVID and which they say could be dangerous.

Luck ran a similar bill in 2021 that died in its first committee hearing. The 2022 version is unlikely to fare any better.

The mask topic has divided communities against each other, she told the House.

"My community objects to the idea of being told what medical treatments to pursue. This isn't a question about keeping other people safe," and people who decide not to wear a mask aren't choosing to put others at risk, she said. "They're looking at a different set of facts and arguments" and deciding based on those facts.

Luck then cited debunked information about how masks negatively impact the body's oxygen intake. That's been debunked by the FDA.

Luck claimed her constituents won't be comfortable testifying at the Capitol if they have to wear masks and would have to testify remotely, which she called a "diminished" form of testimony. She then suggested it would be discrimination if the House passed the rule.

Rep. Kyle Mullica, a Thornton Democrat and a registered nurse, has been on the front lines of the pandemic. That includes a month he spent working in the Cook County Jail last year to help with what was then the nation's worst COVID outbreak. He sees COVID patients every day, including last week when his hospital had no beds and he take patients to the waiting room.

"The science is clear. Masks help stop the spread of this virus," Mullica said.

He also noted that in the years before COVID, when someone went into surgery, every single medical professional wore a mask.

"We can't say we're changing things ... we've been using masks to help combat the spread of disease for years," he said, calling the assertions that masks are dangerous "absurd and false."

Minority Leader Hugh McKean, R-Loveland, said the discussion is about how to operate the House.

He commended Garnett for the discussions they've had on how to get back to normal.

"Nothing in this [rule] has anything to do with a member's ability to represent their constituents," or prohibit a member from coming to the House to do their work.

"We desperately want to get to a baseline of normal, where people can redress their government," McKean added, saying he didn't want to do it by rule but appeared to acknowledge that's where it was headed.

"This has become political," said Assistant Minority Leader Tim Geitner, R-Falcon.

He submitted two amendments. The first that said the speaker's authority "shall not include the authority to require face coverings, vaccines or vaccine passports." The second omitted masks.

Geitner quoted Gov. jared Polis several times. The first was when Polis told Colorado Public Radioin December that the state shouldn't tell people what to wear, and in the same interview, when the governor said the emergency is over.

Garnett, in urging a "no" vote, said there was no need for the amendments.

Geitner tried again, with an amendment that limited the authority to just the 2022 session given that the resolution was open-ended. Garnett, however, said the rule is limited to the current health emergency. He also pledged to continue discussions with McKean on the issue.

The amendments failed along party lines. The resolution passed along the same party lines.

The votes also signaled the first effort to put lawmakers on the record in the 2022 session, this time on mask mandates. Garnett asked for, but never got, voice votes on the amendments or the resolution itself, since Republicans asked for recorded votes for everything.

There were some unexpected votes along the way. Rep. Dylan Roberts, D-Eagle, voted in favor of Geitner's first amendment. Rep. Dave Williams, R-Colorado Springs, voted against Geitner's second amendment. Rep. Julie McCluskie, D-Dillon, voted against the resolution.

Chalk that up to first vote errors, though. McCluskie said she meant to vote in favor of the resolution.

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House rules fight over masks brings out debunked information from Republicans - coloradopolitics.com

After more than a year, a former Army National Guard officer and current Army reservist has had an official reprimand that he received from his chain of command for attending a protest during the summer of 2020 overturned.

Capt. Alan Kennedy, an Army reservist who was serving with the Colorado Army National Guard when he attended a Black Lives Matter rally in 2020, called the decision a victory for the First Amendment.

Kennedy had initially received a general officer memorandum of reprimand, or GOMAR, from the head of the Colorado Army National Guard for his actions. That action was reversed following a decision from the Department of the Army Suitability Evaluation Board.

The issue began more than 18 months ago, on May 30, 2020, when Kennedy who was not on duty at the time as a Colorado Army National Guard officer participated in a protest in Denver. During the protest, Denver police began tear-gassing the crowd. Kennedy later recounted his experiences in an editorial column for the Denver Post. Service members are normally not allowed to use their uniform or rank to inform public statements.

The op-ed launched an investigation by Col. Charles Beatty, chief of staff of the Colorado Army National Guard, into whether Kennedy had violated Department of Defense Instruction 1325.06, which prohibits service members, even when off duty, from participating in demonstrations in foreign countries, that are in violation of local laws, or where violence is the likely result.

The initial investigation, conducted by a lieutenant colonel in the Colorado Army National Guard according to documents obtained by Task & Purpose, found that Kennedy had not committed any misconduct. Given that Kennedy was not serving as a National Guard officer either when attending the protest or when publishing the editorial, there was no violation of military regulations.

Shortly after those findings, Beatty overruled the initial investigation and issued Kennedy a temporary local reprimand, arguing that Kennedy should have known that violence was likely to occur at any protest.

The protests that Kennedy attended later became the subject of a civil court case, Abay v. City of Denver, in which a judge found fault with the Denver Police Departments use of tear-gas and projectiles when responding to the demonstrations.

The next month, in July 2020, Kennedy published a second editorial recounting his experience. That launched a second investigation by the Colorado Army National Guard.

By publishing the article and identifying yourself as a service member you violated regulations and provisions of the Colorado Code of Military Justice, and your actions brought disrepute and dishonor upon the COARNG. It is also apparent from the plain language of the article that it was your intent to do so, and thereby to intimidate the command into refraining from lawful use of its authority to investigate, read the reprimand issued by Brig. Gen. Douglas Paul on Sept. 11, 2020.

The GOMOR issued would have essentially ended Kennedys military career, preventing any potential for promotion or further advancement through the ranks.

Kennedy then filed a lawsuit, alleging that the military reprimand represented a violation of his constitutional rights.

That lawsuit also alleged that Kennedys superior officers held that Black Lives Matter protests are inherently violent, asserting that all Black Lives Matter protests begin peacefully and devolve into violent clashes with the police. The lawsuit also triggered a third investigation into Kennedy, which still upheld his GOMAR.

It was clear that I was not representing the views of the military when I wrote those articles, said Kennedy. The Colorado National Guard just didnt like what I wrote.

Kennedy has since transferred to the Army Reserve, currently serving in Virginia.

Soldiers expressing their views in public is not a new issue for the military, but Kennedys case comes at a moment when service members have increased visibility in their personal lives, and the gap between soldiers and civilians is increasingly blurred by social media.

Earlier this summer, Marine Corps. Lt. Col. Stuart Scheller saw his career rapidly go up in flames after taking to social media to decry the pullout from Afghanistan. Seven states are now suing the federal government to protest COVID-19 vaccine mandates for their National Guard personnel.

But its also become a way for service members to call out their leaders. In 2020, a sergeant first class at Fort Hood took to TikTok to discuss toxic leadership conditions in his unit after having been rebuffed by his chain of command. In 2019, Task & Purpose wrote about a Wisconsin Air National Guard master sergeant who spent years trying to call attention to claims of sexual harassment in his unit. For members of the National Guard and Reserves, who only spend a few days a month in uniform, that dichotomy between service time and civilian life is only heightened.

Its just common sense to me that you dont lose your constitutional rights just because you take an oath to defend them, said Kennedy.

Kennedys lawsuit, filed in the United States District Court for the District of Colorado, remains outstanding. It raises a question that while specific to one social movement in this case is increasingly relevant to service members.

Can the government prohibit off-duty, out-of-uniform service members stationed in the United States from peacefully participating in Black Lives Matter and other peaceful protests, if the service members conduct is not in breach of law and order? reads the complaint.

In July 2021, the National Guard Bureau issued a memorandum stating that the regulations under which Kennedy had initially been punished would only to National Guard service members in a title 10 duty status under federal command and control.

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An Army captain fought his chain of command for a year over his free speech rights and won - Task & Purpose

Amid a flurry of bills nationwide that seek to ban the teaching of critical race theory in schools, one such proposal in Virginia stood out.

Tucked inside a bill introduced by Wren Williams, a Republican delegate, was a glaring error: Among the concepts that school boards would be required to ensure students understood was the first debate between Abraham Lincoln and Frederick Douglass.

But as scholars, Mr. Williamss colleagues in the House of Delegates and others on social media noted, that debate was between not Lincoln and Frederick Douglass, the abolitionist, but Lincoln and Stephen Douglas, a Democratic senator from Illinois.

The gross mistake in this bill is indicative of the need to have scholars and teachers, not legislators/politicians, shaping what students at every level learn in the classroom, Caroline Janney, a professor of Civil War history at the University of Virginia in Charlottesville, said in an email.

On Friday, Addison Merryman, a spokesman for Mr. Williams, released a statement from the states Division of Legislative Services, which took the blame for the error.

The mistake was inserted at the drafting level following receipt of a historically accurate request from the office of Delegate Wren Williams, according to the division, which described itself as a nonpartisan state agency that drafts, edits and releases thousands of legislative drafts for the General Assembly each session.

Mr. Merryman did not respond to additional questions about whether a historian had been consulted on the legislation or about concerns that the proposal could run afoul of the First Amendment. (Parts of that bill, such as a section that tells school boards not to teach or incorporate into any course or class any divisive concept, have been criticized as overly broad and likely to infringe on the free speech of students and educators.)

Instead, he referred to statements that he and Mr. Williams had made on Townhall, a conservative website. Mr. Merryman told Townhall that Mr. Williams had submitted an anti-discrimination bill that correctly referred to the Lincoln-Douglas debates.

Lincoln and Douglas met seven times in 1858, when Lincoln, a Republican, challenged Douglas for Senate. Lincoln lost the election, but the debates between the two brilliant orators transfixed the country, drew attention to the bitter arguments over slavery and catapulted Lincoln to national fame.

Mr. Williams told Townhall that he was frustrated by the error.

I have a very high standard for my office, and my service to my constituents and the Commonwealth, he said.

I trust this was an honest mistake, he added, and I dont hold it against Legislative Services.

The mix-up recalled remarks by President Donald J. Trump on the first day of Black History Month in 2017 in which he referred to Douglass in the present tense, leading some critics to conclude that he believed the abolitionist, who died in 1895, was still alive.

Frederick Douglass is an example of somebody whos done an amazing job and is being recognized more and more, I notice, he said.

The error should not distract the public from the general contents of the bill, which would keep conversations about the United States racial history out of classrooms, said Lara Schwartz, a professor of government in the School of Public Affairs at American University in Washington.

If this so-called divisive concepts bill became law, all of Virginias students would be the worse for it, and ignorance of our history would not just be a sad punchline it would become more the norm, she said in an email.

Critical race theory an advanced academic concept generally not introduced until college is not part of classroom teaching in Virginia. But during the statewide race last year, Mr. Williams, 33, a lawyer who worked on Mr. Trumps failed efforts to overturn the election results in Wisconsin, said he would ban it in schools if he won.

The bill, the first one introduced by Mr. Williams, is pending in committee and must be passed by both the House of Delegates and the Senate, where Democrats hold a slim majority.

C.R.T. is not new. Derrick Bell, a pioneering legal scholar who died in 2011, spent decades exploring what it would mean to understand racism as a permanent feature of American life. He is often called the godfather of critical race theory, but the term was coined by Kimberl Crenshaw in the 1980s.

The theory has gained new prominence. After theprotestsborn from the police killing of George Floyd, critical race theory resurfaced as part of a backlash among conservatives includingformer President Trump who began to use the term as apolitical weapon.

The current debate. Critics of C.R.T. argue that it accuses all white Americans of being racist and is being used to divide the country. But critical race theorists say they are mainly concerned with understandingthe racial disparities that have persisted ininstitutionsandsystems.

A hot-button issue in schools. The debate has turned school boards into battlegroundsas some Republicans say the theory is invading classrooms. Education leaders, including the National School Boards Association, say that C.R.T. is not being taught in K-12 schools.

The legislation would forbid school boards or educators to teach any divisive concept, encourage students to participate in political activism or public policy advocacy, or hire equity and diversity consultants.

The legislations wording prohibits teachers from helping students understand the continuing role of racism in the development of American institutions and culture, said James Grossman, the executive director of the American Historical Association, which represents more than 11,500 historians. It provides a chilling effect that makes teachers wary of teaching accurate American history.

He said the bill had come from the same template as legislation introduced in more than 30 other states that seeks to ban or limit the teaching of divisive concepts relating to race and racism in classrooms.

Professor Schwartz said that the fact that there is a basic factual error in this bill has amused many people.

She added, But its a distraction from an issue thats not funny at all: a wave of state legislation that has the effect and intent of impeding the important conversations that teachers and students need to have in their classrooms.

Link:

A Bill Proposed a New Way to Teach History. It Got the History Wrong. - The New York Times

A bill aimed at punishing colleges and universities for violating free speech and academic freedom rules set by Republicans has passed a legislative committee by a party-line vote. This comes after a GOP author amended the legislation to remove provisions that were potentially unconstitutional.

The bill, introduced by state Rep. Rachel Cabral-Guevara, R-Appleton, and Rep. Dave Murphy, R-Greenville, bars technical colleges and universities from enforcing time, place or other restrictions on free speech events happening anywhere on campus except classrooms.

The legislation also requires colleges to survey students annually about First Amendment rights, academic freedom, whether they feel there is perceived political bias at their school or the "campus culture promotes self-censorship."

If anyone feels a college or university violated their rights, the bill allows them, a district attorney or state attorney general to sue the University of Wisconsin Board of Regents or a technical college district board. If a judge rules against a college, the court must award a minimum of $500 in damages and a maximum of $100,000 in damages to plaintiffs.

In addition to financial penalties, if a school violates the bill's regulations, it will be required to notify incoming students that it has "violated the free speech or academic freedom provisions in the Wisconsin statutes."

The bill passed by the Assembly Colleges and Universities Committee on Thursday looked different from the original legislation introduced Dec. 2.

An amendment offered by Rep. Cabral-Guevara removed aspects that were potentially unconstitutional, including a provision that would have allowed legislative committees, like her own, to rule on alleged violations. The amendment also removed a proposal to block state grant funding for scholarships from going to schools found to have violated free speech rights.

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During a Dec. 8 public hearing on the bill, an attorney with the nonpartisan Wisconsin Legislative Council said lawmakers giving themselves judicial authority "very well could be subject to separation of powers issues" and that "it's kind of questionable" whether a legislative committee could restrict financial aid to colleges.

During a meeting of the Assembly Colleges and Universities Committee on Thursday, Rep. Katrina Shankland, D-Stevens Point, said the legislation is unnecessary because First Amendment protections already exist at the federal and state level. She also pointed to a 2017 UW Board of Regents policy that punishes students for repeatedly violating free speech rights of others.

"So, at the end of the day, I do think at least some of the bill authors were more interested in putting forward a bill that was designed to be political and furnish political talking points during the year 2022, to which you can conclude pretty reasonably that it has more to do with outside the building politics than it certainly does within making laws," said Shankland.

Cabral-Guevara pushed back, saying the legislation is needed due to genuine concerns from constituents who said they feel campus environments stifle free speech rights of conservative students or teachers.

"I hope that students and instructors will have a platform in the future, no matter what side you stand on and where you stand, to speak freely their passions and their desires (and) their concerns on the campuses that are supported here in Wisconsin," said Cabral-Guevara.

State Rep. Clint Moses, R-Menomonie, said the majority of professors and instructors at state colleges are "great, great people."

"But there are some that are abusing their position where they're supposed to be encouraging free thought and open discussions," said Moses.

Excerpt from:

GOP bill setting free speech rules, punishing colleges that violate them moves forward - Wisconsin Public Radio News

Marilou Rickert did not set Washington politics on fire when she ran for the Legislature in 2003.

Rickert, an attorney and Green Party candidate who tried to unseat long-term incumbent Tim Sheldon in the West Sides 35th district, lost by a huge margin, with Sheldon gathering about 80% of the vote.

Rickert nevertheless holds an important legacy in Washington politics as a free-speech figure. It was Rickert who was charged with violating state law for telling a falsehood about Sheldon in her campaign she incorrectly characterized a vote he took on a flyer and it was her case that the state Supreme Court used to throw out that law.

A political candidate making knowingly false and reckless statements, the court ruled, is constitutionally protected speech.

The notion that the government, rather than the people, may be the final arbiter of truth in political debate is fundamentally at odds with the First Amendment, the courts 5-4 majority opinion read.

Now the governor is looking to take on the tsunami of election lies that is animating a large part of the conversation on the political right and taking a run directly at the boundaries established in Rickert v. Washington.

Gov. Jay Inslee is supporting legislation that would make it a crime to tell lies about election results. The legislation is still being drafted, but his notion is to make it a gross misdemeanor, punishable by up to a year in jail and $5,000 in fines, for candidates to tell lies about elections with the knowledge that such lies can incite violence.

It should not be legal in the state of Washington for elected officials or candidates for office to willfully lie about these election results, Inslee said

In laying out his reasoning, Inslee is right about a whole lot. He is 100% correct that too many elected officials have been lying about elections just pulling blatantly idiotic nonsense out of thin air. Hes correct that these lies have fueled dangerous, destructive violence, and hes accurate in identifying the rotting head of that stinky fish as the former president, who seems unable to speak without lying.

Hes right that the election lies are a threat to our democracy, and that the lying is not limited to national elections. If you think the Trump won lies are a steaming pile of horse flop, try Culp won. This is an actual thing, too dumb to be believed, and yet it is being advanced by some Republicans right now, including Joe Kent, a Trumpworld favorite trying to unseat Rep. Jaime Herrera Beutler. Kent calls Loren Culp the real governor of Washington.

All of these lies, and the large numbers of people who swallow them, are a huge problem for our country. But this proposal is no answer. For constitutional, legal, practical and political reasons, its a bad idea.

Free speech is such a fundamental right that there is a significant degree of protection for some false speech as in the Rickerts case as well as important barriers to the state acting as the arbiter for what speech is accurate or acceptable.

Its not as if lying is completely protected. Perjury, fraud and libel are instances in which false speech is not protected by the First Amendment. But the Supreme Court has often elevated freedom over accuracy or honesty, especially in political speech. It has struck down laws attempting to prohibit people from lying about their military service (the so-called Stolen Valor Act) and protected the press from libel claims when it publishes incorrect information about public figures, unless such publication is done with actual malice (the landmark Times v. Sullivan case).

Thats to name just two cases. The constitution and a long history of case law establishes the freedom to say certain false things as an important indicator of true freedom. It is no kind of freedom at all, in other words, to say only that which is governmentally vetted.

At a time of rampant, destructive dishonesty in politics, its not hard to see the appeal of Inslees proposal. Journalists and online platforms have been challenged with an ever-greater need to act as editors and gatekeepers against the dissemination of lies; this is not, as people often claim, a violation of the First Amendment. Journalists and online platforms, as opposed to the government, have a responsibility to edit, vet, fact-check, challenge and be discerning about who they amplify.

That is the marketplace of ideas, and it is theoretically the way that bad speech is combatted. Ideally, the existence of ample, robust volumes of accurate, factual information will overwhelm false ones. Im not sure this is true anymore, if it ever was. The edifice of media organizations and online platforms that sustain lies has grown so large that people can simply climb inside it and never learn an accurate fact.

Still, that doesnt mean its time to begin empowering government to prosecute political speech. There are legal obstacles, including the difficulty of proving a statement is a lie rather than simply incorrect, as well as the challenge of establishing, beyond reasonable doubt, an intention to incite violence.

And there is an absolute certainty of a spectacular backfire. Think of the Culp won crowd. Imagine their delight at being prosecuted for telling this lie one based on the premise that the government is conspiring to hide the truth from people. Imagine their delight at being handed this badge of honor, and how good it will be for their ability to raise money from the millionaires who support the election lies.

Inslees right about the sickness, wrong about the cure. The Rickert case differs from Inslees proposal in key respects. As the governor noted, Rickert dealt with falsehoods told by one candidate against another; his proposal would go after lies about the electoral system generally, and those intended to incite violence.

Its hard to imagine, though, that the state Supreme Court would not come to the same conclusion with this proposal as it did in Rickert: government censorship is not a constitutionally permitted remedy.

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Shawn Vestal: Inslee's right about the disease, but wrong about the cure - The Spokesman Review

A bill proposed in the New Hampshire House this week seeks to expand the statesfreedom from discrimination in education law restricting how public school teachers can discuss racism and discrimination in the classroom, and apply it to professors at the college and university level.

The bill, HB 1313, is titled relative to rights to freedom from discrimination in higher education, and would addpublic higher education institutions like the University System and Community College System of New Hampshire to the listof public employers that are currently restricted under law from teaching that any one group of people is inherently superior, racist, sexist or oppressive,whether consciously or unconsciously.

The bills primary sponsor, Rep. RickLadd (RHaverhill), said in a House Education Committee hearing Tuesday that professors should keeptheir personal beliefs out of the college classroom.

The false national narrative that professes that all states suffer from centuries of white privilege, white supremacy and systematic racism does not reflect New Hampshire,said Ladd. Any instruction promoting that racism is alive and well in New Hampshire does not reflect post-secondary education in our state, nor does it accurately portray our residents, particularly those who have been here for generations. Nor does it address the fact that we have invested efforts to attract more individuals and families to New Hampshire, increasing diversity by nearly 75% in the decade.

The current state law, RSA 193:40Freedom from Discrimination in Education and the Workplace, was proposed in January 2021 as one of severalbills nationwide banning restricting theteaching of divisive concepts, an echo of a Trump-era federalexecutive order.The billwas modified and ultimately passed through a rider bill to the state budget, signed by Gov. Chris Sununu in June. The law bans public employers including K-12 public school teachers in New Hampshire classrooms from teaching that any group is inherently superior or inferior, is inherently racist, sexist, or oppressive, whether consciously or unconsciously,should be discriminated against or receive adverse treatment or should not treat members of other identified groups equally.Empowered by the new law, the state Department of Educationcreated a webpagein November that links to a form where parents can report any teacher for an alleged violation. Teachers found to have been in violation may be stripped of their teaching credentials.

Critics of the current law say it restricts K-12 public school teachers ability to discuss with students the historical impacts of racism, sexism and other forms of discrimination, including against LGBTQ people and people with disabilities.

Although the textof the bill uses broadlanguage about banning teaching that any groupissuperior or inferior,Rep.Ladd expressed specific concern at the hearing about white people being called racist in discussions about systemic racism or implicit bias.

I dont believe I should be tagged, or you should be tagged, or anyone in this room should be tagged with the idea that you areracist because of our past, Ladd said.Our past is our past. We can learn from it.

Ladd also expressed concern that educators might discuss critical race theory, an academic framework of analysis that examinesthe impact of racism on U.S. society.

As a parent and grandparent, I ask that schools and post-secondary institutions teach our young people to think, but not tell them what to think, Ladd said.Advocating CRT is discriminatory and does not reflect New Hampshires way of life, and certainly doesn't align with Dr. [Martin Luther] Kings vision. In fact, it does the opposite, pitting people against each other.

ACLUNew Hampshire Executive Director Devon Chaffee spoke against Ladds bill at Tuesdays hearing, saying it violates freedom of speech under theFirst Amendment to the U.S. Constitution, as well as Supreme Court precedents that have long protected academic freedom for colleges and universities.

Silencing a particular viewpoint here were talking about concepts related to racism and sexism violates the First Amendment, period. Chaffee said. Moreover, as it stands, the banned concepts act, is so unclear and vague, that it fails to provide the necessary guidance to educators about what they can and cannot include in their courses. HB1313 would only compound this defect by applying the concept to colleges and universities, where academic freedom is particularly protected under the First Amendment.

The current RSA 193:40 is already the subject of two pending federal lawsuits, claiming the law violates freedom of speech under the First Amendment and also that it violates the Fourteenth Amendment for being too vague. The lawsuits, brought by local teachers unions and other activist organizations,say the lack of clarity in the law has a chilling effect on teachers, who are avoiding discussing racism and discriminationentirely, for fear of being reported.

The banned concepts language that is being proposed has already created a chill that effectively prevents teachers from doing what society needs them to do, which is teach our students, said Brian Hawkins, director of government relations for the National Education Association New Hampshire, the states largest teachers union. The law has resulted in the curbing of essential teaching practices, such as competency-based learning andcritical thinking, so why would we want to expand this law into higher education?

Both TomCronin, director of government relations for the University System of New Hampshire and Shannon Reid,director of government affairs for the Community College System of New Hampshire,spoke against the bill at a hearing Friday.

The general intent to include public post-secondary education under 193:40 would seem to raise contradictions with widely-accepted tenets of academic freedom of college and university faculty, Reid said.We are very interested in not curbing the free flow of ideas that should characterize post-secondary education.

The bill has been assigned to the House Education Committee. If it passes in committee, it will move to the House floorfor a vote.

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Bill would expand K-12 'divisive concepts' law to public higher education - Concord Monitor