Last week, state Attorney General Ashley Moody called on U.S. Department of Homeland Security Secretary Alejandro Mayorkas to terminate the creation of a disinformation board that attacks Americans First Amendment rights. Along with 18 other attorneys general, Moody argued that the proposed Disinformation Governance Board will hurt the constitutional freedom to speak freely, debate and disagree with the governmentfreedoms that state attorneys general are responsible for defending.

President Biden is attempting to confuse and distort legitimate criticism and the perspective of American citizens. This authoritarian maneuver could be straight out of the novel 1984 and should frighten Americans of all political persuasions, Moody said.

The attorneys general argued that this government watchdog agency would abridge a citizens right to express their opinions and disagree with the government, furthering self-censorship rather than protecting freedom of speech. The boards creation is also an example of federal overreach. There is no statutory authority to support its inceptionparticularly as the publics elected representatives debate the issue of disinformation in Congress.

The letter states that the Disinformation Governance Board, by its very existence, and almost certainly by design, threatens to enforce silence when Americans wish to express views disfavored by the Administration. It is therefore already chilling free speech and impeding the political process ineveryState. This is unconstitutional, illegal and un-American. Unless you turn back now and disband this Orwellian Disinformation Governance Board immediately, the undersigned will have no choice but to consider judicial remedies to protect the rights of their citizens.

In addition to Moody, the attorneys general from the following states signed on to the letter: Alabama, Arizona, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Texas, Utah and West Virginia.

More here:

Ashley Moody Tells DHS that the Disinformation Governance Board Undermines First Amendment - Florida Daily

Says Pro-Choice Student Protesters Dont Have the Right to Protest

Richmond, VA Yesterday after 46 Virginia schools participated in a school walkout to protest the Supreme Courts pending decision to overturn Roe v. Wade, Attorney General Jason Miyaressaidthat these protests are incredibly disruptive and dont have the right to protest. This comes after Miyares on the campaign trailpraisedstudents for leading a walkout in Loudoun Schools this past fall. This begs the question, does Attorney General Miyares only believe in the first amendment when it fits his agenda?

When its aligned with his agenda:

When its against his agenda:

The ease at which Attorney General Miyares abandoned the first amendment is worrisome,said DPVA Spokesperson Gianni Snidle.The Attorney General is supposed to be Virginias chief law enforcement officer and took an oath to uphold the constitution. Yesterday he broke that oath. One thing is clear to Virginians Miyares is not fit to serve as the Attorney General of the Commonwealth of Virginia.

Read more:

AG Jason Miyares Only Believes in the First Amendment When It's Aligned with His Agenda - Blue Virginia

Lawyers representing voters inArizona,GeorgiaandNorth Carolinahave filed lawsuits alleging that their elected congressional representatives are barred from running for future office based on a little-known provision of the14th Amendment.

Specifically,Section 3of the 14th Amendment reads:

No person shall be a Senator or Representative in Congress who, having previously taken an oath to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the United States, or given aid or comfort to the enemies thereof.

Proponents ofbarring these representativesfrom running for reelection argue thattheir active supportfor those who stormed the U.S. Capitolon Jan. 6, 2021, qualifies as involvement in insurrection or rebellion against the U.S. government.

As a constitutional scholar, I believe that the lawyers seeking disqualification have a steep hill to climb in all of these cases especially when their arguments based on the 14th Amendment collide with the First Amendment and its protection of free speech.

That is not stopping those who want to hold accountable the elected officials who were involved in the storming of the Capitol on Jan. 6.

The challenges filed against GOP Reps.Marjorie Taylor Greeneof Georgia,Madison Cawthornof North Carolina andPaul Gosar and Andy Biggsof Arizona as well as Arizona Rep. Mark Finchem are part of a larger national campaign run by the nonprofit advocacy groupsFree Speech for PeopleandOur Revolution.

So far,judgeshave dismissed those argumentsin Arizonaand North Carolina. Both are on appeal.

The caseagainstRep. Greene of Georgia provides a useful lens through which to analyze this unique constitutional claim.

Thechallenge to her candidacycame to an end on May 5 when a Georgia state Judge Charles Beaudrot Jr. ruled thatGreene should remainon the ballot because lawyers challenging Greenes runfailed to provethat she engaged in insurrection on Jan. 6, 2021

The evidence in this matter is insufficient to establish that Rep. Greene engaged in insurrection or rebellion under the 14th Amendment to the Constitution, Judge Charles Beaudrot wrote in his ruling.

The lawsuit against Greene claimed, for example, that she frequently referred to the protest effort againstthe 2020 presidential electionas our 1776 moment.

This reference, lawyers argued, is a clear allusion to indeed, code for a violent overthrow of the existing government.

They claimed Greene had, at a minimum, given aid or comfort to enemies of the United States or, at most, engaged in insurrection by deploying such rhetoric.

And, after hermost recent court hearingson April 22, 2022, text messagessurfacedin which she asked about the possibility of President Donald Trumps declaringmartial law.

In the text, which was uncovered by theHouse select committeeinvestigating the events of Jan. 6,Greene toldthen-White House Chief of StaffMark Meadowsthat some members of Congress were saying in a private chat group that the only way to save our Republic is for Trump to call for Marshall (sic) law. I dont know on those things. I just wanted you to tell him.

Greene argued thather statementsand social media posts encouraged lawful protest by those who believe that the 2020 election was stolen.

TheFirst Amendment, she argued, allows for a broad range of free and unfettered speech, particularly political speech.

Greene alsotestified under oaththat she had no knowledge that any protester intended to disrupt the joint session of Congress that had convened to count the electoral votes.

In response to many of the questions posed to her, she claimed more than 50 times during her hearing thatshe didnt recall.

Greenefurther testifiedthat while she did encourage people to come to Washington, D.C., for a peaceful march, she did not assist any protester in navigating through the Capitol complex, as some have alleged.

Section 3 of the 14th Amendment was passed shortly after the Civil War in 1866 to bar Confederates from federal government positions. But that ban didnt last long.

Ablanket amnestyfor former Confederate soldiers was passed in 1872, making the vast majority of the rebels again eligible for office. In 1898, the prohibition was removed forthe last few hundredformer Southern congressmen and senators.

awthorns attorney, James Bopp Jr.,argued that the Amnesty Act of 1872nullified Section 3 of the 14th Amendment and allows Cawthorn to seek election in the upcoming May 17, 2022, GOP primary.

U.S. District Judge Richard Myersagreed and dismissedthe case against Cawthorn. The district judge ruled that the Amnesty Act of 1872, which exempted Confederates from proscriptions of Section 3, is still in force and shields Cawthorn from being prevented to run for office.

Unlike the case in North Carolina, the case against Greene in Georgia was allowed to proceed by a federal judge there. On April 18, 2022, U.S. District Judge Amy Totenbergdenied Greenes motionto block the case against her and best summed up the constitutional morass the cases have raised.

This case, Totenbergwrote in her 73-page ruling, involves a whirlpool of colliding constitutional interests of public import. Greenehas appealedthat decision.

Political speech has and deserves special protection. To protest the government, even using strong, unpleasant or unpopular language, is central to the protections afforded by the First Amendment.

As such, courts tend to cast a wide net when defining speech covered by the First Amendment.

In addition to the First Amendment limitations, I think there is something anti-democratic about prohibiting a candidate from even running for office.

The notion that voters get to choose their elected representatives through free and fair elections represents a principle at the core of American democratic traditions.

To remove the voters ability to choose those whom they wish to elect to public office requires a weighty justification, and courts have long ruled this way. While aiding and abetting an insurrection is such a justification, it is an open question whether Greenes conduct fits within the definition of Section 3 of the 14th Amendment.

Clearly, had Greene charged the Capitol with a weapon demanding that Congress seat President Trump, her actions would be clear and her disqualification warranted. But instead of weapons and storming, Greene deployed words and electronic posts.

The distinction makes a difference.

In my view, given the First Amendments robust protection of speech, to bar a candidate from running for office requires evidence of intent toengage in insurrectionin far greater proportion than what has thus far been presented in the case against Greene.

Even Greenes call for martial law likely is not enough. Bizarre and wrongheaded statements are protected by the First Amendment just as cogent and thoughtful ones are.

Ronald Sullivan is a professor of law at Harvard University.

May 9 |Emily Finchum-Mason, The Conversation

May 6 |William A. Gralnick

May 4 |Paul B. Stephen, The Conversation

May 4 |Alex Domash and Lawrence H. Summers, The Conversation

Go here to see the original:

Forgotten insurrection clause of 14th Amendment used to force members of Congress to defend their actions on Jan. 6 - Brooklyn Daily Eagle

Sarah, first off, thank you for the breakdown of the polls. David, I've seen post after post with women in burbs, like myself, over 50 yo, that feel VERY STRONGLY that this issue is one where we are white hot. Suburban women, are largely elite used to freedom and we are fiercely protective of our daughters. We may not like those potential decisions, but love and respect them for their decisions and how hard they have worked going to school, getting good grades and have real future potential. And this also means having children, but trust their decision is theirs to make. Many young women actually may choose to have their child and raise it. Actually my very liberal daughter included. Our young women are smart and brilliant! I love that...but when we shut the door on any decision and tell them the govt will tell them how to regulate their bodies, this is a total affront to us, the voting moms in the burbs with money and influence. We will see in the voting so what I say means absolutely nothing. But all I can say, is my story is being literally mirrored back to me from women over 50 with daughters. Love you both and keep fighting the good fights. We don't have to agree but nuance is EVERYTHING.

Link:

Dobbs Fallout with a First Amendment Twist - The Dispatch

Wednesday, May 4, marked the final Student Association (SA) senate meeting of the semester. The meeting began with a historical Memorandum of Understanding (MOU) signing, by Chancellor Joe Gow, showing support of the Green Fund Grant to approve a new sustainability program manager. The signed document detailed the universitys commitment to funding this position partially for three years, along with the SAs commitment to also fund them for three years.

It is a wonderful collaboration that we are doing, and a model, I think, for some future things that we can do, said Gow, I know that many students have wanted this position for a long time.

The room was also packed with those waiting to hear from Gow about the chalk-writing statements done by the Hoeschler Tower last week regarding the School of Education (SOE) issues.

I am a very staunch advocate of the First Amendment and would hate to be perceived as an opponent against free speech, said Gow, but I have never really thought about chalking before because we dont really have a policy on it. I am hoping to form one here tonight with the Senate.

The Chancellor said he is mainly concerned with certain lines containing the f-bomb and other profanity but wanted to make clear that, the university has no interest in punishing anyone.

After Gow left for a prior engagement, outgoing senate Vice President, Jared Zwettler gave his opinion on the matter:

I worked with a number of people on this issue, and I dont think its right that the university is censoring profanity. There is case law that does support use of profanity and that it cannot be regulated in many situationsI think that Chancellor Gows arguments do not hold a lot of weight and I strongly disagree with his position and his stance, and I want to make that known here today.

The SA further discussed this issue by way of SA2122-054: Resolution in Support of Student Free Speech Rights, written up by Senator Carter Drost.

James Szymalak, Assistant Professor of Political Science & Public Administration, was called on multiple times during Wednesdays meeting. He teaches many courses of this nature, including legal studies and ethics in government. Before coming to UWL, Szymalak served as a senior Pentagon personnel policy legal advisor within the Department of the Army. The SA called on him to give legal advice about the free speech resolution, and asked for his opinion regarding the chalking:

I am an actual attorney and a First Amendment scholar, and the law is really clear that profanity is not obscenity. The decision to chalk out f-bombs is a policy decision; I am here to talk about legal decisions, and the legal decision is clear. It doesnt matter that it is chalk or a ballpoint pen, the First Amendment is the First Amendment. Using dirty language is not unsettled and its not a recent development. Just because eighth-graders are around it does not change the law.

Szymalak said the universitys decision to strike out offensive wording is a clear violation of the Constitution. He also said the SOE chalking is not vandalism because the campus created it as a designated public forum, on this and many other campus-related events, issues, etc. which overrides the vandalism rule.

Earlier, Chancellor Gow spoke about various faculty members issues with their names being a part of the chalking. Szymalak cleared this up saying, This is also not defamation; the individuals that were named, as far as I know, are public figures. Public employees are public figures, and this idea that they are delicate geniuses that cant be talked about is crazy.

Addressing the senate, he also stated to his fellow faculty, I am disappointed in the university, but I am even more disappointed in my colleagues. How many of your professors have talked about this with you in class? To which no one raised their hand.

He said that he is here to support the students of the SOE. To the university, when are you going to draw the line and say no? No one has stood up and done a thing. Why isnt anyone else standing up for this? Its school event stuff now, but whats next?

Read the original here:

Student Association meets to discuss First Amendment rights and chalking around Hoeschler Tower - The Racquet

from the protect-speech-too dept

Last week the recently formed California Privacy Protection Agency held pre-rulemaking stakeholder sessions to solicit input on the regulations it intends to promulgate. I provided the following testimony on behalf of the Copia Institute.

Thank you for the opportunity to speak at these hearings. My name is Cathy Gellis, and Im here representing myself and the Copia Institute, a think tank that regularly researches and comments on matters of tech policy, including as they relate to privacy and free speech.

Im here today to talk about how privacy regulation and free speech converge in order to urge this board to carefully address the collision of any proposed regulation and the First Amendment, particularly with respect to the protection of speech and innovation. To do so I want to make three interrelated points.

First, as a general matter, it is important that any proposed regulation be carefully analyzed from a First Amendment perspective to make sure it comports with both its letter and spirit. When the First Amendment says make no law that abridges freedom of speech, that admonition applies to California privacy regulation. The enabling California legislation involved here itself acknowledges that it is only intended to supplement federal and state law, where permissible, but shall not apply where such application is preempted by, or in conflict with, federal law, or the California Constitution, and violating the First Amendment would run afoul of this clause.

Its also important that any such regulation comport with the spirit of the First Amendment as well. The First Amendment exists to make sure we can communicate with each other, which is a necessary requirement of a healthy democracy and society. It would be an intolerable situation if these regulations were to chill our exchange of information and expression, or to unduly chill innovation. While wanting online services to be careful with how they handle the digital footprints the public leaves behind is admirable, the public would not be well served if new and better technologies couldnt be invented, or new businesses or competitors couldnt be established, because California privacy regulation was unduly burdensome or simply an obstacle to new and better ideas.

Along these lines a second point to make is that California is not Europe. Free speech concerns do not get balanced here and cannot be balanced without violating the First Amendment. The experience of the GDPR in Europe is instructive in warning what happens when regulators try to make such a balance, because inevitably free expression suffers.

For instance, privacy regulation in Europe has been used as a basis for powerful people to go after journalists and sue their critics, which makes criticizing them, even where necessary, and even where under the First Amendment perfectly legal, difficult if not impossible, and thus chills such important discourse.

The GDPR has also been used to force journalists to divulge their sources, which is also anathema to the First Amendment and California law, along with itself violating of the privacy values wrapped up in journalist source protection. It also chills the necessary journalism a democratic society depends on. (As an aside, the journalistic arm of the Copia Institute has had its own reporting suppressed via GDPR pressure on search engines, so this is hardly a hypothetical concern.)

And it was the GDPR that opened the door to the entire notion of right to be forgotten, which, despite platitudes to the contrary, has had a corrosive effect on discourse and the publics First Amendment-recognized right to learn about the world around them, while also giving bad actors the ability to whitewash history so they can have cover for more bad acts.

Meanwhile we have seen, in Europe and even the U.S., how regulatory demands that have the effect of causing services to take down content invariably lead to too much content being taken down. Because these regulatory schemes create too great a danger for a service if they do not do enough to avoid sanction, they rationally chose to do too much in order to be safe than sorry. But when content has been taken down, its the world who needs it whos sorry now.

As well as the person who created the content, whose own expression has now been effectively harmed by an extrajudicial sanction. The First Amendment forbids prior restraint, which means that its impermissible for speech to be punished before having been adjudicated to be wrongful. But we see time and time again such prior restraint happen thanks to regulatory pressure on the intermediary services online speakers need to use to speak, which force them to do the governments censorial dirty work for it by causing expressive content to be deleted, and without the necessary due process for the speaker.

Then there is this next example, which brings up my third point. Privacy regulation does not stay well-cabined so that it only affects large, commercial entities. It inevitably affects smaller ones, directly or indirectly. In the case of the GDPR, it affected the people who used Facebook to run fan pages, imposing upon these individuals, who simply wanted to have a place where they could talk with others about their favorite subject, cripplingly burdensome regulatory liability. But who will want to run these pages and foster such discourse when the cost can be so high? Care needs to be taken so that regulatory pressure does not lead to the loss of speech or community, as the GDPR has done.

And that means recognizing that there are a lot of online services and platforms that are not large companies. Which is good; we want there to be a lot of online services and platforms so that we have places for communities to form and converse with each other. But if people are deterred from setting up, say, their own fan sites, independent of Facebook even, then thats a huge problem. Because we wont get those communities, or that conversation.

Society wants that discourse. It needs that discourse. And if California privacy regulation does anything to smother it with its regulatory criteria, then it will have caused damage, which this agency, and the public that empowered it, should not suborn.

Thank you again for this opportunity to address you. A version of this testimony with hyperlinks to the aforementioned examples will be published on techdirt.com shortly.

Filed Under: california, cppa, free speech, privacy

See the original post:

Wherein The Copia Institute Reminds California's New Privacy Agency That Its Regulations Need To Comport With The First Amendment - Techdirt

La pgina inicial de Twitter en un dispositivo digital el lunes 25 de abril de 2022, en San Diego. (AP Foto/Gregory Bull)

Americas founding fathers may not have contemplated digital spaces could one day simultaneously broadcast millions of statements to millions of listeners and readers.

They also may not have contemplated those digital spaces would in many cases supplant the traditional ones town halls, sidewalks, and courthouse steps that in less technologically advanced times hosted the bulk of Americans political discourse.

Nevertheless, Tesla (TSLA) CEO Elon Musk's pending bid to privatize Twitter (TWTR) one of social medias most controversial forums renews the issue of whether First Amendment speech protections have any application to private forums that use the public internet to elevate and hide third party statements.

Given that Twitter serves as the de facto public town square, Musk wrote in a March Twitter post days ahead of revealing his intentions to buy the social media platform, failing to adhere to free speech principles fundamentally undermines democracy. What should be done?

Tweets posted to Tesla CEO Elon Musk's Twitter account on March 25, 2022 and March 26, 2022

Among social media giants, Twitter hosts 229 million monthly active users (corrected by Twitter following the company's overstatement of 436 active monthly users), far fewer than Facebook's (FB) 2.9 billion, YouTube's (GOOG) 2.6 billion, and Instagram's (FB) 1.5 billion, and TikTok's 1 billion.

Relative scale aside, Musk asserted that "Twitter is the digital town square where matters vital to the future of humanity are debated."

Debate over the extent to which popular online platforms can legally interfere with or ban their user's content has dragged on for years without resolution, despite dozens of Congressional hearings to that end. On Friday, a federal court upheld Twitter's controversial decision to ban former president Donald Trump by disagreeing with Trump's argument the social media company should be considered a "government actor."

Story continues

Constitutional law experts say whatever the consequence of social medias power to attract and patrol a large percentage of the nations vital debates, what should be done is distinct from what legally can be done to stop Twitter or other social platforms from interfering with their users posts.

Private corporations are private," Stanford Law School professor Nate Persily said, laying out the fundamental rationale for concluding that social media entities are entitled to regulate their users speech. "They don't have to respect the First Amendment. They, in fact, have First Amendment rights themselves.

In addition to the freedom to choose which content gets published on their sites, online platforms enjoy another layer of legal protection for moderating content under Section 230 of the Communications Decency Act that immunizes them from liability for user's statements.

Tesla CEO Elon Musk introduces the Cybertruck at Tesla's design studio Thursday, Nov. 21, 2019, in Hawthorne, Calif. Musk has laid out some bold, if still vague, plans for transforming Twitter into a place of maximum fun! once he buys the social media platform for $44 billion and takes it private. (AP Photo/Ringo H.W. Chiu, File)

Still, as Persily writes in an analysis for Oxford Press, social medias consolidated corporate domination of the marketplace for speech makes plenty of people uncomfortable. For that reason, he says, its legitimate to question whether each companys moderation standards support or erode the goals of the First Amendment.

The community standards of Twitter, Facebook, and YouTube would all be unconstitutional if they were enacted by a government, Persily says. The ways in which they restrict speech, whether by removing nudity or political statements, for example, go beyond what the First Amendment would allow from a government.

There are instances where private enterprises are prohibited from blocking Americans speech.

Fordham University professor Paul Levinson explained television and radio networks that broadcast on public airwaves have authority to choose whose content and what content is broadcast. However, theyre prohibited from doing so in a way that violates the First Amendment.

For example, Levinson says a network that constantly cuts off the voices of people who present a certain opinion, risk legal action from the blocked group and from the Federal Communications Commission.

Similarly, its illegal for a private company doing business in a public park to stop a nearby speaker from expressing political opinions. That would violate the speakers First Amendment rights. In both instances, Levinson says the government has an affirmative obligation to ensure citizens rights remain intact.

Why then are Twitter, Facebook, Instagram, Snapchat, Tiktok afforded a more lenient standard, where theyre legally vested with power block users' posts across the public Internet?

Facebook chief operating officer Sheryl Sandberg and then-Twitter chief executive officer Jack Dorsey testify during a Senate Intelligence Committee hearing concerning foreign influence operations' use of social media platforms, on Capitol Hill, September 5, 2018 in Washington, DC. (Photo by Drew Angerer/Getty Images)

Levinson says it's because, at first, social media companies were not broadcasting over public airwaves. Instead, like cable television, the content they and other companies delivered across the Internet was through private wired or cabled systems.

Decades later, that changed for many Internet users, when Wi-Fi, which uses public and private radio waves, began pushing some content across public systems regulated by the Federal Communications Commission (FCC). However, since many Americans still access social media through the Internet, via wires, the cable rules still apply.

The way that social media companies steer and moderate a significant percentage of todays public discourse may not violate the letter of the Constitution, yet Levinson says it certainly violates the founding documents spirit.

In that respect, Levinson suggests Musk has a point.

I am against violating the spirit of the First Amendment because I think communication is a good thing, he said. But since Twitter is not the government, it has every right to blow people off the system, or to not allow certain kinds of communication, whether that makes us feel comfortable or not.

Elon Musk arrives at the In America: An Anthology of Fashion themed Met Gala at the Metropolitan Museum of Art in New York City, New York, U.S., May 2, 2022. REUTERS/Andrew Kelly

As Persily sees it, the Internet, and not Twitter, is the environment that most resembles the types of public spaces that are legally recognized as offering First Amendment protection.

When we talk about the public town square, were talking about the ability of people to go into a location, and then speak their mind, and then people nearby may be able to hear it, Persily said. Twitter is distinct, he argues, in that it doesnt broadcast all speech to all users, but instead organizes and prioritizes it, most of which is never seen by the company's 229 million active monthly users.

It's not as if everybody is talking to everyone at the same time, Persily said.

For Musk, hes free to relax the companys U.S. content moderation policies if his Twitter merger comes to pass. In a Twitter post, the billionaire entrepreneur indicated his preference for imposing as little content moderation as law permits.

"If people want less free speech, they will ask government to pass laws to that effect," Musk wrote. "Therefore, going beyond the law is contrary to the will of the people."

An earlier published version of this story was corrected to reflect Twitter's 229 million monthly active users, which Twitter restated in April following the company's overstated 436 active monthly users.

Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alexis on Twitter @alexiskweed.

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Elon Musk's vision for Twitter and the First Amendment: 'What should be done? - Yahoo News