Palin is expected to continue her fight, but given that the judge and jury sided with The Times, her appeal has been characterized as an uphill battle. What different strategies and/or new evidence would her legal team need to introduce to succeed in the court of appeals?

Ironically, a loss may have been exactly what Palin was going for. The judge and jury almost certainly got the result correct under the protective standard of Sullivan, which protects reporting about public figures unless journalists are reckless or intentionally wrong in their reporting. But judges and scholars are increasingly questioning whether Sullivans standard is too protective, and Palin could not have appealed a victory. She needed a loss in order to appeal up the chain of the courts, with hope of getting to the Supreme Court.

If she were to make it to the Supreme Court, how would you characterize Palins chances?

At least two of the current justices, Clarence Thomas and Neil Gorsuch, have indicated that they believe Sullivan should be overturned. Their point is that with the expansion of modern news, Sullivan is too protective of falsehood. I am not sure, however, where Palin could find three more votes to reverse Sullivan. One vulnerable aspect of the law is that the protective standard applies to reporting about any public figure, even those who do not intentionally thrust themselves into the public eye. (Justice Elena Kagan even made such a point in a law review article before she was on the court.) That is not Palin. I think the chance of overturning, or limiting Sullivan is higher in a case in which the plaintiff is more of an I-just-got-caught-up-in-a-public-controversy kind of person.

Some observers and commentators have expressed concern that any Supreme Court change to the Sullivan precedent would have significant detrimental effects on press freedoms. How would you characterize those prospective changes and their respective impact?

Compared to other modern democracies, our standards for libel are much more protective of journalists. There is little doubt that when Sullivan was decided, it was a crucial decision that led to a robust, vibrant journalistic culture. One prominent First Amendment scholar said at the time that Sullivan was occasion for dancing in the streets. But also true is that the Sullivan standard does not deter carelessnessonly recklessness or worseon the part of journalists. When I teach Sullivan, my students and I discuss how a legal rule that under-deters carelessness will increase the amount of carelessness in the system. And more carelessness leads to more falsehoods. In the end, it comes down to a choice between (1) a legal framework that protects journalists at the cost of more falsehoods or (2) a framework that restricts journalists but has fewer falsehoods.

Critics of the outcome have cited that there were no repercussions for James Bennet, who wrongly accused Palin of inciting the murders of six people, and his false accusation was then widely distributed through the papers multiple channels. Why should Sullivan allow this to happen without any penalties for the author? Are the protections for journalists afforded by Sullivan too broad and do they need to be revised?I am of the mind that a good amount of our free speech jurisprudence could use some updating. We in the United States have more protections of speech than any other country at any time in history. I would, for example, rethink the level of constitutional protections provided for corporate speakers, for campaign expenditures, and for violent or injurious speech, among other things. And I do think that reasonable people can disagree about the proper level of protection afforded journalists, especially since journalists now include everyone from reporters at The New York Times to social media influencers on TikTok. We live in a world created in part by Sullivan: a vibrant, pulsing world of news and commentary bombarding us constantlymuch of which contains falsehoods.

Phil Gloudemans | University Communications | March 2022

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Palin v. the First Amendment: what next? - Boston College

Speech restrictions are un-American

In Ohio and across the nation, state legislatures and school districts are banning books, limiting what can be taught in public schools and state universities, restricting the types of events that public librariescan host, and even saying that certain words can't be uttered in certain settings.

The people who are doing this are the same ones that yammer about Second Amendment rights while trampling the First Amendment.

This is what Nazis did; it is what Vladimir Putin does; it is not what we do in the United States ofAmerica.

Jim Kroeger, Fairlawn

After watching President Joe Bidens March 26 speech in Poland, I am reminded of lyrics from the U2 song Crumbs from your Table: where you live should not decide whether you live or whether you die. To allow thousands of Ukrainians to die because they are not a part of NATO, thus on the wrong side of the street, is so immoral. To say that Bidens speech ranks up there with those given in Europe by John F. Kennedy or Ronald Reagan is a joke; those great men did not cower to tyrants. May God have mercy on those in charge who think sanctions alone are the answer.

Randy Ley, Tallmadge

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Letters to the editor: Book bans, teaching restrictions in public schools are un-American - Akron Beacon Journal

FIRE commends University of Northern Iowa for quickly affirming to resident assistants that the university will respect their First Amendment rights.(Photo courtesy University of Northern Iowa)

by Sabrina Conza

The University of Northern Iowa has made clear to resident assistants that they may speak with the media as private citizens after FIRE raised concerns about UNI requiring pre-approval of RAs communications.

In February, The Northern Iowan student newspaper sent RAs an anonymous survey asking about their experiences on campus, but a UNI official quickly told RAs that university media relations officials must approve all RA-themed media responses to the press. On March 17, FIRE wrote UNI explaining that government employees, including RAs at public institutions, have the right to speak to the media in their individual capacities on matters of public concern.

On March 23, UNI responded to FIRE, affirming that the school strongly values the First Amendment rights of [UNI] students and employees and pledging not to restrict RAs right to speak with the media. And on March 29, UNI told its RAs that they may speak with the media (including on-campus newspapers) in their capacity as a private citizen without seeking prior approval from UNI Housing & Dining.

UNI told FIRE, We continue to value opportunities to assure Resident Assistants as with all UNI students and employees understand the protections afforded under the First Amendment.

As much as FIRE will readily criticize universities unconstitutional policies and practices, we much prefer commending universities when they do the right thing.

FIRE commends UNI for quickly affirming to RAs that the university will respect their First Amendment rights.

We have seen this scenario play out many times before, with mixed results. In just the last couple of years, after FIREs intervention, University of North Carolina, University of Missouri, and University of Virginia changed their policies which limited RAs ability to speak with the media, bringing them into compliance with the First Amendment. Louisiana State University and Frostburg State University, on the other hand, both refused to fully respect RAs First Amendment rights.

Other institutions with restrictive practices of silencing students and employees speech or suppressing the student press should take note as much as FIRE will readily criticize universities unconstitutional policies and practices, we much prefer commending universities when they do the right thing.

If youre a student or faculty member facing censorship or prior review from your university, or a student journalist facing restrictions on communicating with sources, reach out to FIRE. We may be able to help.

FIRE defends the rights of students and faculty members no matter their views at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, submit your case to FIRE today. If youre a college journalist facing censorship or a media law question, call the Student Press Freedom Initiative 24-hour hotline at 717-734-SPFI (7734).

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VICTORY: After FIRE letter, University of Northern Iowa clarifies resident assistants may speak with media - Foundation for Individual Rights in...

Happy National Transgender Day of Visibility, to all trans Kansans. Im delighted youre here, and your tenacious courage inspires me.

Also, Id like to apologize for a handful of other Kansans who have decided to score political points on your lives.

This 2022 celebration comes with two giant asterisks. First, of course, the Legislature has been wrangling over Senate Bill 484. Its anti-trans discrimination gussied up as a way to protect girls sports, a breathtaking distortion for which both Sen. Renee Erickson and Senate President Ty Masterson should feel lasting shame.

Then the Washburn University College Republicans decided to show that theirs is decidedly not a big tent party by inviting conservative author Michael J. Knowles for a speech called Banning Transgenderism.

Note that the title isnt We should protect female athletes. Its not I disagree with some things transgender people say. Its not I wonder if this whole gender situation has gotten out of hand.

Nope. Its Banning Transgenderism. As in, an entire group of people who live and work among all of us. For that matter, people who also serve as Kansas legislators.

Thankfully, Washburn University president Jerry Farley took a stand against callous hatred, writing in an email to campus that while he supported the First Amendment, I am disappointed when those rights are used to make others feel unwelcome and even unsafe in our community. While we support the right to speak freely, Washburn University does not condone the hate and misinformation spread by the speaker and his supporters.

No doubt Farley will catch flack from predictable, bigoted corners of the commentariat. But he did the right thing.

High-profile support for this celebratory day also came from Kansas Gov. Laura Kelly. She issued a proclamation marking the occasion. President Joe Biden also noted the date with a forceful statement.

To everyone celebrating Transgender Day of Visibility, I want you to know that your President sees you, Biden said. On this day and every day, we recognize the resilience, strength, and joy of transgender, nonbinary, and gender nonconforming people.

Farley, Kelly and Biden have the right idea. Transgender people didnt just pop into existence over the last three or four years. They have always existed, with historical documentation dating to 5000 B.C.

The fact that trans folk now live visibly and authentically throughout our state and country should be a source of pride for all of us. Even college Republicans.

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On a day celebrating transgender visibility, Kansans offer the best and worst in response - Kansas Reflector

Republican lawmakers are about to advance a bill that will waste hundreds of thousands of taxpayer dollars while making the Internet less safe for Georgians. The Common Carrier Non-Discrimination Act, which passed in the Senate earlier this month, is part of a broader effort by Republican legislators to punish digital services for enforcing their policies with respect to the social media accounts of former President Trump.

This bill would force digital services to carry all users content neutrally, irrespective of what risks that content creates. By doing so, it would put Georgians at greater risk to everything from foreign disinformation and propaganda from Russian agents and extremist content from anti-American jihadists, who, according to the Senate bill, all deserve equal treatment.

This law would bind digital services hands, preventing them from standing between American Internet users and the torrent of foreign disinformation, Communist propaganda, and extremism propagated by adversaries abroad. Digital services need the flexibility this law would take away to fight those evolving online threats.

Some Georgia lawmakers appear to believe private businesses have to give access to any speaker. But Internet services have made commitments to their users to try and protect them from certain problematic content, and that is itself a speech interest. A digital service saying we dont want to host Nazi Party candidates is exercising its own First Amendment rights, and Internet users can choose services whose communities and norms best align with their own preferences.

Georgia lawmakers are well aware that government attempts to dictate speech online violate the Constitution. Legal experts have warned that this bill will inevitably face the same legal challenges as similar proposals in neighboring states that were found unconstitutional and Georgians will be stuck with the legal tab. Over the past year, other states have introduced legislation to impose new rules on private companies online content moderation practices, which would limit their ability to remove offensive or harmful content. Next door, Floridians are already paying the price for the Stop Social Media Censorship Act, over which the state recently lost a federal court case.

The battle is not yet over, and public records requests reveal that just one Florida state agency has already wasted nearly $700,000 to defend the unconstitutional new law. Before the case is over, Florida taxpayers are almost certain to have lost seven figures to the frivolous political stunt whose only real impact has been to make work for lawyers and get news attention for its sponsors. The same situation is playing out in Texas, where a federal judge recently blocked a similar anti-censorship bill from taking effect. The judge concluded that Texas, just like Florida, was unconstitutionally infringing on digital services right to exercise editorial discretion in deciding what content was suitable for their communities.

Through a series of hearings on the Common Carrier Non-Discrimination Act, Georgia lawmakers have been repeatedly warned that it will face the same fate as proposals in Florida and Texas. However, the bills sponsors dont seem to mind asking their constituents to foot the bill for a political stunt, and they have proven theyre willing to sacrifice user safety to punish perceived political enemies.

In a time of economic uncertainty and geopolitical instability, the last thing Georgians need is officials wasting their tax dollars on ill-conceived laws that would flood their screens with foreign disinformation, propaganda, and extremism. Georgia legislators ought to pull the plug on this proposal.

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Despite warnings, Republicans poised to stick Peach State with steep legal tab for political stunt - Disruptive Competition Project

The slap seen round the world at this years Academy Awards has moved comedy clubs across the United States to try and prevent a potential new norm.

According to TMZ, theStand Up NY in New York City posted a sign on its storefront window establishing that heckling and physical abuse of comics is prohibited, and patrons will be immediately removed from the showroom. The Academy of Motion Pictures Arts and Sciences claimed Wednesday that Will Smithwas asked to leave the Dolby Theater after he walked on stage and smackedChris Rockin response to ajoke about the actors wife Jada Pinkett Smith, but refused.

Stand Up NY is making it clear that patrons will not betreated with the same type ofleniency.Comedians play a critical role in our society, especially during times of chaos and uncertainty. They make us laugh, bring perspective and remind us there are different ways of seeing our reality, the statement reads. Comics must be protected.

Laugh Factory owner and CEO Jamie Masada told The Hollywood Reporter that there has been a noticeable mood shift since comedy clubs reopened following closures due to the pandemic. Masada has since added security in several locations, but the Oscars incidenthas reignited a conversation about going even further to ensure the safety of comedians.

Masada has discussed various approaches, which range from installing metal detectors tohaving someone positioned near or by the stage. Im going to talk to my staff, just for this weekend, and say, We definitely need you by the stage now. That is your post. Just in case someone is just trying to re-create a moment or feels emboldened by what Will Smith did. And its unfortunate, he said.

The Laugh Factory has publicly backedRock in the days that followed the Oscars with a sign on its marquee declaring its support of the First Amendment, adding, The comedy community loves & supports you Chris.

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Comedy Clubs Bump Up Precautionary Measures in Wake of Oscars Slap - Complex

[co-author: Jorden Johnson]

On March 21, 2022, the U.S. Securities and Exchange Commission (SEC) released its much-anticipated proposed rule titled "The Enhancement and Standardization of Climate-Related Disclosures for Investors." The proposed enhanced disclosure requirements draw from groups dedicated to developing effective climate-related disclosures, including the Task Force on Climate-Related Financial Disclosures and the Greenhouse Gas Protocol. SEC Chair Gary Gensler believes the enhanced disclosure requirements will provide consistent, comparable, and reliable climate-risk information to investors. Environmentally-focused investors appear to agree that the rule, if finalized, will provide much needed guidance, but not everyone is convinced.

Ready or not, the SEC's proposed rule may well be finalized this year and, if so, would begin applying to certain filings as soon as FY 2023. In this alert, we answer some commonly asked questions regarding disclosure requirements the proposed rule would add, the SEC's authority to require climate disclosures, and the potential impact of the disclosure requirements.

Charged with protecting investors and maintaining investor confidence, the SEC's existing regulatory framework requires that public companies, broker-dealers, and certain company insiders disclose "material" information, or information that a "reasonable shareholder" would likely consider important.1

In 2010, the SEC issued guidance on pertinent non-financial disclosure rules that required some disclosures related to climate change, including the disclosure of material effects of compliance with federal, state, and local provisions regulating the discharge of materials into the environment and environmental litigation. The SEC noted then that, depending on the facts and circumstances of a particular registrant, certain items may require disclosures regarding the impact of climate change.

The newly proposed rule clarifies that a registrant would be required to disclose the following:

Further, if the registrant has publicly set climate-related targets or goals, the registrant must disclose information about:

When responding to any of the proposed rules' provisions concerning governance, strategy, and risk management, a registrant may also disclose information concerning any identified climate-related opportunities. A registrant that qualifies as a "large accelerated filer" or "accelerated filer" will also be required to obtain a third-party attestation report on its Scope 1 and 2 emissions disclosures.

Major legislation that provides the framework for the SEC's oversight of the securities markets includes the Securities Act of 1933, the Securities Exchange Act of 1934, the Investment Company Act of 1940, the Sarbanes-Oxley Act, the Dodd-Frank Wall Street Reform and Consumer Protection Act, and the Jumpstart Our Business Startups Act. SEC Chair Gensler maintains that the proposed rule lies within the scope of the SEC's authority to regulate the information material to investors, while critics of the SEC's proposed rule, including SEC Commissioner Hester Peirce, argue that the rule exceeds the authority of SEC. Two of the most likely legal challenges to the proposed rule pertain to (a) the materiality standard and (b) the First Amendment.

Regarding materiality, in TSC Industries v. Northway2, the Supreme Court explained that, under the Securities Exchange Act of 1934, information is only material to investors, and therefore requiring disclosure, if there is a "substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the total mix of information available." Some law professors and scholars have noted that, while climate-related disclosures may be material to some investors, the disclosures may be completely irrelevant to others. This may lead companies to challenge the proposed rule as requiring immaterial disclosures.

As for the First Amendment, the Supreme Court has closely scrutinized disclosure requirements in several cases and has explained that there must be a substantial relationship between the government interest and the information required to be disclosed such that the strength of the government interest reflects the seriousness of the burden on First Amendment rights.3 And so, certain law professors, among other critics of the proposed rule, have suggested that the government interest does not reflect the burden on First Amendment rights since the proposal is not limited to materials that interest all investors. It is therefore likely the SEC will face challenges on the basis of the registrants' First Amendment rights.

If adopted as proposed, public companies will have to present much more detailed disclosures regarding climate-related matters in their SEC filings, including in their financial statements. Many larger public companies have already been disclosing these matters, albeit perhaps not at the level of detail contemplated in the SEC's proposed rule. These larger companies should further refine their reporting processes and controls so that they are in a position to effectively compile and present the climate-related information in a manner subject to attestation by third parties. Smaller companies should also begin assessing their reporting processes as they relate to climate-related matters so the companies will be prepared to comply with the proposed new disclosure requirements. Form 10-K and proxy season is already a busy time for companies, and it looks like aggregating detailed, climate-related information could now be a substantial part of that busy season.

As far as timing is concerned, Large Accelerated Filers will have until FY 2023 (for their Form 10-K filed in 2024) to comply with all proposed disclosures, including Scope 1 and Scope 2 GHG emissions metrics and until FY 2024 (for their Form 10-K filed in 2025) to comply with Scope 3 metrics. Accelerated Filers and Non-Accelerated Filers will have until FY 2024 (for their Form 10-K filed in 2025) to comply with all proposed disclosures including Scope 1 and Scope 2 GHG emission metrics and until FY 2025 (for their Form 10-K filed in 2026) to comply with Scope 3 metrics. Smaller Reporting Companies will have until FY 2025 (for their Form 10-K filed in 2026) to comply with all proposed disclosures including Scope 1 and Scope 2 GHG emission metrics and are exempt from complying with Scope 3 requirements. There is also a transition period for the attestation requirements. Large Accelerated Filers and Accelerated Filers will have to provide third-party attestation at a limited assurance level for fiscal years 2 and 3 after the Scope 1 and Scope 2 GHG emissions compliance date and at a reasonable assurance level for fiscal years 4 and beyond after the Scope 1 and Scope 2 GHG emissions compliance date.

1 TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449 (1976).

2 426 U.S. at 448.

3 See, e.g., Natl Assn of Mfrs. v. Taylor, 582 F.3d 1, 9 (D.C. Cir. 2009).

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FAQ: The SEC's Proposed Rule on the Enhancement and Standardization of Climate Related-Disclosures - JD Supra