WILKES-BARRE, Pa.Donald Trumps rally on Saturday night was his first major public appearance since the FBI searched his Florida homeand you could tell. A kind of manic, vengeful energy circulated among the throngs of supporters in the blue stadium seats at the Mohegan Sun Arena. Fans wore T-shirts reading YOU RAIDED THE WRONG PRESIDENT and THREAT TO DEMOCRACY, in a reference to President Joe Bidens speech last week in Philadelphia. The audience of thousands screamed in agreement when Representative Marjorie Taylor Greene, whos become a regular warm-up act at these rallies, declared that the FBI had violated our presidents rights. And later on, the crowd exploded into one resounding, ricocheting jeer when Trump, finally on stage, addressed the matter himself.

There can be no more real example of the very clear threats to American freedom than just a few weeks ago, the former president said, when we witnessed one of the most shocking abuses of power we have witnessed from any administration in American history!

Trump is back at the forefront of American politics, just two months ahead of the midterm elections. This time, the former president is in a strange new position: Hes backed into a corner by legal trouble. And his ever-loyal fans have joined him in a defensive crouch. We came because of the Mar-a-Lago raid, Mike Rutherford, a truck driver from East Stroudsburg, told me. He sat near the stage in a folding chair alongside his wife, Pat. Were here to support him, Pat said, nodding. I cant believe how brave that man is.

Pennsylvania found itself smack-dab in the eye of the midterms hurricane this week. Trumps rally was intended to give a boost to the flagging campaigns of the gubernatorial candidate and State Senator Doug Mastriano and the Senate candidate Mehmet Oz, both of whom have endorsed Trumps election lies and received his endorsement in exchange. Just two days ago, Biden spoke 100 miles to the south before an eerily lit Independence Hall, and was more direct in his warnings than hes been in previous addresses: Donald Trump and the MAGA Republicans represent an extremism that threatens the very foundations of our Republic. The Darth Vader optics of his speech may have interfered with its intended effect, but Trump and the candidates hes endorsed are a threat to democracy because they appear to believe in only two kinds of election outcomes: Either they win or the system is rigged.

David Frum: The justification for Bidens speech

Pennsylvania has become a hub for Stop the Steal candidates thanks, in part, to Mastriano, who spoke ahead of Trump on Saturday night. The Republican state senator and former Army colonel was outside the Capitol when rioters broke in on January 6; he helped lead the state efforts to overturn the presidential election in 2020; and hes been subpoenaed by the January 6 committee for his alleged involvement in organizing an alternate set of Electoral College electors for Trump. (Last week, Mastriano sued the panel to avoid testifying.)

Both he and Oz offered versions of their stump speeches and declared solidarity with their party leader in his moment of need on Saturday. Other headliners included Greene, the Georgia representative whod descended the arena steps earlier in the afternoon as Shes a Beauty by the Tubes played over the loudspeakers, and the Pennsylvania congressional candidate Jim Bognet, who quipped that America should hire 87,000 more border patrol agents, not IRS agents!

When Trump emerged shortly after 7 p.m., backed by the usual Lee Greenwood soundtrack, he meandered through his standard repertoire: the Russia investigation hoax, Bidens failures, the death penalty for drug dealers. He even managed to encourage a mass heckling of the press seated in the back of the stadium on at least five occasions. But it was Trumps FBI comments that got the crowd most riled up. The FBI and the Justice Department have become vicious monsters, controlled by radical-left scoundrels, lawyers, and the media, who tell them what to do, he told them. Audience members whooped, and a few shouted out Defund the FBI!

The Trumps fans Id spoken with earlier, standing near the Dippin Dots ice-cream stall and in line for Chickies & Petes chicken cutlets, all had his back. Its politically motivated, Jim Shaw, a barber from New Milford, told me when I asked what he made of the search at Mar-a-Lago. If Donald Trump wasnt looking like he was the [leading] Republican candidate for president, I dont think it would have happened. Every one of the dozen or so people I talked with offered some defense of the former president: The search was a setup; the evidence was planted; Bidens DOJ was trampling on Trumps constitutional rights to keep him from running for office again.

Read: Stop the Steal is a metaphor

I detected a touch of desperation in many peoples responsesa sense that, if Trump-endorsed candidates dont win in November, America as they know it will cease to exist. Here in northeast Pennsylvaniajust 20 miles down the road from Bidens hometownwas a gathering of people not just pessimistic about the future of the country under his leadership, but deeply fearful too. At this point right now, Im worried about being targeted by the FBI because Im a Christian, Im conservative, Pat Rutherford said. I know they wont find anything, but I am going to need a lawyer to prove I am innocent. The DOJ is like a militia for the Democrats, Linda Hess, from Selinsgrove, told me. I think our First Amendment rights are basically gone as conservatives. I really do.

Trump and his loyalists are eager to fan these fears. Your president called all of you extremists! Greene told the rally when she was on stage. Joe Biden has declared that half of this country are enemies of the state! (The president, in fact, made a clear distinction: Not every Republican, not even the majority of Republicans, are MAGA Republicans.) Save us, Trump! one woman yelled from the crowd during his speech.

Fear can be a winning political tactic. It helped candidates like Mastriano sail to victory in the Republican primary. But general elections are different. The presidents party usually fares poorly in the midterms cycle, and just a few weeks ago, the fundamentals would have indicated that Republicans were about to have an excellent November. Recently, though, the numbers have shifted in the Democrats favor. Inflation is down, and so are gas prices; new job numbers are high, and unemployment is still low; and Democrats are already seeing signs that their voters are highly motivated by the overturning of Roe v. Wade. In the latest polls, both Mastriano and Oz are trailing their respective Democratic opponents, Josh Shapiro and John Fetterman.

Still, 10 weeks is a long time in American politics. Republicans could gain back an edge between now and then. Some experts predict that both races will probably end up much closer than they are now. The risks of electing an election denier such as Mastriano are clear: As governor, hed have the power to appoint the secretary of state, and together, the two officials could muddy the waters after a close election or, allied with the Republican-dominated state legislature, even change election rules to benefit their party.

That danger extends far beyond the Keystone State. Other Stop the Steal candidates are running all over the country. In 2020 battleground states, candidates whove endorsed Trumps lies about election fraud have won nearly two-thirds of GOP nominations for state and federal offices with election-oversight powers, according to a Washington Post analysis.

Read: The radical fringe that just went mainstream in Arizona

Whether these specific candidates win or lose, election denial has become the most important litmus test for the MAGA base. Stop the Steal is an expression of a deepening distrust in government and institutionsa mantra to remind its adherents that they, not their political opponents, are the rightful inheritors of America. The phrase is a metaphor, the sociologist Theda Skocpol told me last month, for the country being taken away from the people who think they should rightfully be setting the tone.

When their candidates lose, it can be only through trickery. When their leader is investigated for squirreling away cartons of national secrets at his country club, its a targeted attack by the Regime, to use Florida Republican Governor Ron DeSantiss wordand capitalization.

After Mastriano had finished speaking, and before Trump took to the stage, an elderly white man stood up behind me and shouted, Whose country is this? The people nearby in the bleachers joined him in response: Its our country! Later, Trump affirmed the sentiment. No matter how big or powerful these corrupt radicals may be, you must never forget that this nation does not belong to them, he told his supporters. This nation belongs to you! The people in the stadium roared their approval.

Go here to read the rest:

Trump Returns to Rally Team MAGA - The Atlantic

[This piece has been published in Restoring America to highlight how regulating social media companies as common carriers could violate the First Amendment.]

AEI recently published a thought-provoking report by Professor Richard A. Epstein addressing censorship of conservative viewpoints online. Building on initial comments offered last year in the Wall Street Journal, Epstein identifies the problem as a systemic progressive bias among dominant social media companies, coupled with steep barriers to entry that reduce competition as a potential disciplining force in the short term. The solution, he posits, is a common carriage regime that would prevent digital platforms from abusing their positions in ways that distort public debate.

I am sympathetic to Epsteins concerns. As Ive written elsewhere, social media is a volatile battleground, and any gatekeepers perception of particular content is likely to be informed at least subconsciously by ones priors. While evidence of systemic bias remains unclear, high-profile anecdotal missteps (such as the Hunter Biden laptop story) certainly reinforce conservative grievances. But its not clear to me that social media platforms fit the common carriage paradigm, and even if they do, common carriage treatment likely violates the First Amendment.

Epstein argues that common carriage developed as a solution to natural monopolies. Setting aside whether Facebook, Twitter, and the like exercise this kind of market power, Christopher Yoo has shown that this historical justification for common carriage treatment is muddled at best. Market power is neither a necessary nor sufficient condition for common carriage treatment. For example, until 1992, cable providers often held exclusive franchises but were statutorily exempt from common carriage treatment, while wireless companies were saddled with common carriage obligations in a competitive market.

Surveying the regulatory history, the District of Columbia Circuit Court defined common carriers as companies that hold themselves out to serve the public indiscriminately, without making individual business decisions regarding with whom to deal and on what terms. Under this definition, common carriage is a poor fit for social media. Unlike a telephone company or the postal service, which carry communications between users without regard to the underlying message, social media companies terms of service explicitly reserve the right to treat customers differently by moderating individual user content to offer users a personalized, curated experience.

This curation function raises a more significant obstacle to common carrier treatment, however justified: the First Amendment. In Miami Herald v. Tornillo, the court recognized that companies engaged in the publication and dissemination of speech possess a First Amendment right of editorial control that protects their judgments about what content to carry and how. Tornillo struck down a Florida right-of-reply statute that required newspapers to carry political candidates responses to critical editorials. Like Epstein, Florida argued that compelled access to the platform was necessary to prevent the platforms bias from distorting public debate. But the court found this insufficient to overcome the newspapers First Amendment rights.

The court has not recognized a common carriage exception to this right of editorial control. If anything, Tornillo itself implies the opposite. The court recognized that the newspaper had significant market power over dissemination of political speech, and barriers to entry made alternative distribution unlikely. But it rejected Floridas argument that this economic reality justified infringing the newspapers rights. Epstein correctly notes that earlier cases rejected First Amendment challenges to newspapers judgments about employee hiring and to anticompetitive withholding of stories from competitors. But the newspaper still decided what those employees said in print and which stories it would carry.

And this makes sense, as curation is how these platforms compete for user attention. Different platforms draw lines in different places, thereby cultivating different types of communities that appeal to different groups. Facebook aggressively removes pornographic and violent content, Twitter is more permissible but puts questionable content behind warning labels, and other platforms are free-for-all cesspools. Through millions of micro-level editorial judgments each day, platforms reveal their values, views, and community standards. In this way, the First Amendment not only protects the companies freedom of expression but also allows for richer and more dynamic competition among platforms.

We should be wary of vesting this editorial power in the government instead. Under the state action doctrine, the First Amendment prohibits only governmental abridgment of speech. Legislatures and courts have a poor track record when taking it upon themselves to decide which private spaces are public enough to be saddled with government-like duties. The fairness doctrine illustrated how government-compelled access to platforms could become a tool to reward political allies and punish enemies while chilling the very speech the doctrine was supposed to protect. First Amendment doctrine recognizes private editorial control rights not as an unalloyed good but as the lesser of two evils. In the long run, private regulation of censorship is less threatening than government regulation of censorship. Common carriage is a helpful tool to discipline less competitive markets, but it becomes more complicated when applied to markets for speech.

This article originally appeared in the AEIdeas blog and is reprinted with kind permission from the American Enterprise Institute.

Excerpt from:

Social media, common carriage, and the First Amendment - Washington Examiner

Finished movies are guarded by the First Amendment, but the act of filming them on government property isnt inherently protected activity, according to a Tuesday decision from the U.S. Court of Appealsfor the District of Columbia.

Gordy Price shot his 2018 film Crawford Road on National Park Service land without first obtaining a permit and paying a fee. After its first screening, the NPS cited him with a misdemeanor, which carried a potential sentence of up to six months in prison and a fine. The citation was dropped, but Davis Wright Tremaine First Amendment specialist Robert Corn-Revere took an interest in the matter, and Price in December 2019 sued the U.S. Attorney General(then William Barr) along with officials from the Department of the Interior and National Park Service, challenging the constitutionality of the rule.Thus, Prices indie movie about a reportedly haunted section of the Colonial National Historical Park in Virginia became the center of a legal battle over the extent to which filmmaking on government property is protected activity.

In a huge win for filmmakers, U.S. District Judge Colleen Kollar-Kotelly in January 2021 sided with Price and found the scheme to be unconstitutional. She issued an injunction barring the permit and fee requirements for commercial filming and the prosecution and the imposition of criminal liability thereunder.

The statute at issue (read ithere) only required a permit for commercial filmmaking it generally exempted news gathering and non-commercial projects and Kollar-Kotelly found that amounted to a content-based restriction on Prices First Amendment rights.

Mr. Prices filmmaking at these parks constitutes a form of expressive speech protected by the First Amendment, she wrote in the opinion, adding the creation of a film must also fall within the ambit of the First Amendments protection of freedom of expression. To find otherwise, would artificially disconnect an integral piece of the expressive process of filmmaking.

The government appealed, and on Tuesday the D.C. Circuit released its 2-1 decision reversing the ruling.

We hold that regulation of filmmaking on government-controlled property is subject only to a reasonableness standard, even when the filmmaking is conducted in a public forum. Because the permit-and-fee requirements are reasonable, we reverse the order of the district court, writes Senior Circuit Judge Douglas H. Ginsburg.

Ginsburg finds that special protection only applies to communicative activities in a public forum, such as assembly, the exchange of ideas to and among citizens, the discussion of public issues, the dissemination of information and opinion, and debate. Further, he finds not every piece of government property is a public forum, and not every activity protected by the First Amendment is communicative.

[W]e are convinced that it would be a category error to apply the speech-protective rules of a public forum to regulation of an activity that involves merely a noncommunicative step in the production of speech, writes Ginsburg.

Though protected as speech under the First Amendment, filmmaking, like typing a manuscript, is not itself a communicative activity; it is merely a step in the creation of speech that will be communicated at some other time, usually in some other location, writes Ginsburg. There is no historical right of access to government property in order to create speech.

In short, Ginsburg writes, [T]he key takeaway from the preceding analysis is that, with respect to noncommunicative first amendment activity such as filmmaking, the highly-protective rules of a traditional public forum are inapplicable. The upshot is that filmmaking on all NPS land is subject to the same reasonableness standard that applies to restrictions on first amendment activity in a nonpublic forum.

Ginsburg notes that reasonableness is a low bar and, under the standard, the purposes of the NPS permit and fee scheme (raising revenue and protecting the parks) are reasonable.

Circuit Judge Karen LeCraft Henderson wrote a brief concurring opinion emphasizing the limited reach of the decision. We conclude that the regulation of most non-communicative speech on government property is subject to reasonableness review, she writes. We need not and do not explain the full contours of what does and does not constitute communicative speech.'

In a scathing dissent, Senior Circuit Judge David S. Tatel criticizes the decision to focus on the reasonableness standard. My colleagues reimagine the public forum to protect the stumping politician but not the silent photographer, to shield the shouting protester but not the note-taking reporter, Tatel writes. These distinctions find no basis in First Amendment jurisprudence. It makes no more sense to exclude certain types of speech from public forums than it does to police which squirrels may enter a conservation easement.

He argues this decision deviates from precedent that struck down similar restrictions as overbroad and antithetical to core First Amendment principles. [T]he court today upholds these restrictions on grounds untethered from our courts precedent and that of our sister circuits, Tatel writes. Because the permit and fee requirements penalize far more speech than necessary to advance the governments asserted interests, they run afoul of the First Amendment.

Tatel cites a 2010 decision in Boardley v. United States Department of Interior. Like the NPS regulations in that case, the Permit Regime burdens substantially more speech than necessary to achieve the governments significant interests in protecting NPS resources and preventing interference with park visitors, writes Tatel. He argues that because the regulations define commercial filming as any film, electronic, magnetic, digital, or other recording of a moving image by a person, business, or other entity for a market audience with the intent of generating income this kind of restriction isnt narrowly tailored enough to withstand scrutiny. (Ginsburg argued Boardley is irrelevant because it concerned the distribution of written materials, which is communicative activity.)

[T]he Permit Regime applies to an extraordinarily broad group of people, ranging from large-scale filming operations, to small documentary film crews, to individuals who take short videos on their phones and later monetize this content on social media platforms, Tatel writes. Even a park visitor who takes a five-minute video on her phone, planning to post it on YouTube and generate advertising revenue, must obtain a permit and pay a fee. Although large commercial filming projects may well involve equipment operators, filming subjects, and sustained operations that burden park resources and disturb visitors the government provides no reason to think that individuals and small groups interfere meaningfully with [these] interests.'

The court reversed Kollar-Kotellys decision, vacated the declaratory judgment and the permanent injunction, and instructed the trial court to deny Prices motion for judgment on the pleadings and to grant the defendants motion.

In a brief statement to The Hollywood Reporter on Tuesday, Price and Crawford Road co-producer James Person said, We are disappointed with the decision and currently are considering our options.

If Price decides to continue his fight, the next step would be petitioning the U.S. Supreme Court. Given some of the issues Tatel raises in his dissent, including his opinion that this decision puts the D.C. Circuit in conflict with other appellate courts, it seems modern technology has created yet another free speech issue thats ripe for consideration by the high court.

Or, as Tatel puts it: Before standing outside Yosemite National Parks visitor center using a cell phone to record commentary on our national parks that will air on an advertisement-supported YouTube channel, an individual must obtain a permit and pay a fee. Before filming a protest on the National Mall, tourists must obtain a permit and pay a fee if they have any inkling that they might later make money from this footage on social media. And when the filming is spontaneous, these individuals will be criminally liable and face up to six months in prison even though they could not possibly have obtained a permit ahead of time. By stripping public forum protection from filming, my colleagues for the very first time disaggregate speech creation and dissemination, thus degrading First Amendment protection for filming, photography, and other activities essential to free expression in todays world.

See original here:

Indie Filmmakers First Amendment Win in National Parks Battle Reversed - Hollywood Reporter

WOODLAND PARK, Colo. The City of Woodland Park paid $65,000 to settle claims after a former Woodland Park Police Chief violated First Amendment rights.

Delbert Sgaggio was paid $65,000 after he was personally blocked on Facebook by former Woodland Park Police Chief Miles De Young. Sgaggio criticized a raid by Woodland Park police officers in a video that was later deleted by Police Chief De Young.

Sgaggio then criticized the removal of his comment, which was deleted once again. After his comments were removed, Sggagio was blocked from commenting on the Facebook pages of both the Police Department and the City itself.

This case sends a message to every public official in the country: respect the free speech rights of your constituents online or pay the price, said Andy McNulty of Killmer, Lane & Newman, LLP. Woodland Park and its officials are acting like their counterparts in Russia, China, and North Korea that censor their citizens online. Luckily, in this country, we have the First Amendment and brave citizens like Delbert Sgaggio to protect us from oppressive government officials like Chief De Young otherwise, clearly, he would act just like Vladimir Putin without any repercussions.

The City of Woodland Park says this was the largest settlement ever reached in a case stemming from a Facebook blocking by a public official.

Continued here:

Woodland Park pays $65,000 for violating First Amendment Rights - FOX21News.com

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Lawsuit: Womans First Amendment rights violated | News - Huntington Herald Dispatch

***For All Things Wyoming, Sign-Up For Our Daily Newsletter***

By Rod Miller, columnist

You cant swing a dead cat in the State of Wyoming without hitting a Second Amendment zealot or three. They are everywhere, and theyre not shy about proclaiming their 2A allegiance by wearing Molon Labe t-shirts and Shall Not Be Infringed tattoos.

Ive often been mystified as to why so many folks grasp onto the Second Amendment as a source of self-identity. Sure, guns are cool and everything, but why pass over the first article in our Bill of Rights to focus on the one about guns as the crown jewel in our Constitution?

Why arent there just as many First Amendment free press nuts as there are gun nuts?

It might be because the Second Amendment is so approachable and participation is easy. All you need to do is buy a gun, carry it around, spout off about it, andvoila! You are immediately a Second Amendment zealot.

The First Amendment requires a bit more skin in the game, however. Free speech is hard and often dangerous work. Informing the citizenry involves operating in the world of language, of truth, of facts. Gun ownership doesnt demand a lot of intellectual rigor. A free press does.

Wyoming lost a card-carrying, sold out, fire-breathing First Amendment zealot the other day with the untimely passing of Jim Angell.

Jim spent his career in the First Amendment trenches. He was a frontline fighter for an informed citizenry. He was a free press champion of the first order. Jim believed, as did the Apostle John, that the truth shall set you free.

He also held firmly to the belief that the truth wont kill you, but the lies just might.

Jim was of the old-school Who, What, Where, When, Why, How style of journalism, and invested years in sifting true facts from the chaff of bullshit. And he presented what he found using the Kings English as it should be used active verbs, good grammar, proper punctuation and impeccable sentence structure.

He embodied Sen. Ransom Stoddards adage in The Man Who Shot Liberty Valance that, An honest newspaper is the best textbook.

The zeal with which he defended and practiced the First Amendment often put to shame those Meal Team Six types who delude themselves into believing that wearing an AR-15 to Starbucks fulfills the Second Amendment.

I met Jim shortly after we both moved to Cheyenne, and he was the second customer through the door when I opened a bookstore, Joe Pages, downtown. Jim had formed an acoustic band, Jammin Easy, and their first gig was playing in the store. It became evident to everyone after just a short time that another one of Jim Angells passions was writing songs with corny lyrics..

Jim and I bumped into each other over the years and, more or less, stayed in touch as people often do. But I got drawn into Jims orbit when I was invited to write a column for Cowboy State Daily. And its a pretty demanding orbit.

Jim was instrumental in launching Cowboy State Daily a few years ago. After a career in ink-n-paper journalism, Angell helped establish a digital media foothold in Wyoming that is giving print journalism a run for its money.

It was like he picked up a brand new guitar and wanted to see how it would sound in front of a crowd of people. He wanted to see if he could wring the truth out of it, and make people dance.

Im saddened by Jims passing, as are so many of his fellow Wyoming citizens. But, like them, I consider myself enriched for knowing him, and for enjoying the benefit of his influence on journalism in the Cowboy State.

Jim will lead tonights jam session in The Great Beyond Coffeehouse, backed up by Hunter Thompson, H.L. Mencken, Ed Murrow and Ambrose Bierce. Hell sing the song he just wrote, the one with lyrics that make the audience groan.

And tomorrows front page of the Afterlife Times-Courier will have Jim Angells fingerprints all over it. Active verbs. Good grammar. Correct Spelling. Short, sharp sentences. The Truth.

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Rod Miller: The Passing of a First Amendment Zealot - Cowboy State Daily

In the middle of July, three big blue billboards went up in and around Jackson, Mississippi. Pregnant? You still have a choice, they informed passing motorists, inviting them to visit Mayday.Health to learn more. Anybody who did landed on a website that provides information about at-home abortion pills and ways to get them delivered anywhere in the United Statesincluding parts of the country, such as Mississippi, where abortions are now illegal under most circumstances.

A few days ago, the founders of the nonprofit that paid for the billboard ads, Mayday Health, received a subpoena from the office of the attorney general of Mississippi. (The state has already been at the center of recent debates about abortion: Dobbs v. Jackson Womens Health Organization, the ruling that overturned Roe v. Wade, upheld a Mississippi statute by allowing states to put strict limits on abortion.) The subpoena, which I have seen, demands a trove of documents about Mayday Health and its activities. It may be the first step in an effort to force Mayday Health to take down the billboards, or even to prosecute the organizations leaders for aiding and abetting criminal conduct.

Mayday Health is not backing down. This week, it is taking out a television ad on Mississippi channels and putting up 20 additional billboards. This makes the legal fight over the Jackson billboards a crucial test in two interrelated conflicts about abortion that are still coming into public view.

Read: The abortion-rights message that some activists hate

The first is that the availability of abortion pills, which are very safe and effective during the first three months of pregnancy, has transformed the stakes of the abortion fight. The pro-life movement has hoped that states new powers to shut down abortion providers will radically reduce the number of abortions around the country. The pro-choice movement has feared that the end of Roe will lead to a resurgence of back-alley abortions that seriously threaten womens health.

Yet the changes wrought by the recent Supreme Court ruling may turn out to be more contained than meets the eye: Legal restrictions on first-trimester abortions have become much harder to enforce because a simple pill can now be used to induce a miscarriage. Abortion by medication is widely available in large parts of the country; as Mayday Health points out on its website, even women who are residents in states where doctors cannot prescribe such pills can set up a temporary forwarding address and obtain them by mail.

The second brewing conflict is about limits on free speech. So long as abortions required an in-person medical procedure, the pro-life movement could hope to reduce them by shutting down local clinics offering the service. Now that comparatively cheap and convenient workarounds exist for most cases, effective curbs on abortion require the extra step of preventing people from finding out about these alternatives. That is putting many members of the pro-life movement, be they Mississippis attorney general or Republican legislators in several states who are trying to pass draconian restrictions on information and advice about abortions, on a collision course with the First Amendment.

Some limits on speech are reasonable. States do, for example, have a legitimate interest in banning advertisements for illegal drugs. If a cocaine dealer took out a billboard advertising his wares, the government should obviously be able to take it down. Especially when it comes to commercial speech, some common-sense restrictions on what people can say or claim have always existed and are well-justified.

But the laws that Republicans are now introducing in state legislatures around the country go far beyond such narrow limits on objectionable commercial speech. In South Carolina, for example, Republican legislators have recently sponsored a bill that would criminalize providing information to a pregnant woman, or someone seeking information on behalf of a pregnant woman, by telephone, internet, or any other mode of communication regarding self-administered abortions or the means to obtain an abortion, knowing that the information will be used, or is reasonably likely to be used, for an abortion.

Read: The coming rise of abortion as a crime

This lawwhich is modeled on draft legislation that the National Right to Life Committee is trying to get passed in many states around the countrywould seriously undermine the right to free speech. It could potentially make doctors in states where abortion is actually legal liable to prosecution for discussing their services with someone who calls them from a state where abortion is illegal. It could even outlaw basic forms of speech such as news stories containing information that might be used by someone seeking an abortion. Theoretically, even this article could fall under that proscription.

The subpoena issued by the office of Mississippis attorney general is objectionable for similar reasons. Mayday Health is not advertising a commercial product or service. The organization does not handle or distribute abortion pills. All it does is provide information. Although one could reasonably believe that the information Mayday Health is providing may be used to commit acts that are now illegal in some parts of the United States, a ban on informational speech that can be used for the purposes of lawbreaking would be unacceptably broad and vague. After all, would-be lawbreakers might also consult the blog posts of lawyers who explain how to object to an improper search of a vehicle or study the pages of a novel to figure out how to make a Molotov cocktail. Should the attorney or the novelist also be considered to have aided or abetted a crime?

Recent efforts to suppress speech about abortion would seriously undermine the nations ability to debate the topic openly and honestly. Anybody who believes in the importance of the First Amendment should oppose them. As Will Creeley, the legal director of the Foundation for Individual Rights and Expression, has pointed out, These proposals are a chilling attempt to stifle free speech Whether you agree with abortion or not is irrelevant. You have the right to talk about it.

In recent years, the wider debate about free speech has undergone a strange transformation. Historically, the American left staunchly defended the First Amendment because it recognized the central part that free speech played in the struggles against slavery and segregation, and in the fight for the rights of women and sexual minorities. But as establishment institutions, including universities and corporations, became more progressive, and parts of the left came to feel that they had a significant share in institutional power, the absolute commitment to free speech waned.

Progressives started to find the idea of restrictions on free speech appealing because they assumed that those making decisions about what to allow and what to ban would share their views and values. Today, some on the extremist left endorse restrictions on free speech, demanding campus speech codes and measures to force social-media sites to deplatform controversial commentators and censor what they claim is misinformation.

Mary Ziegler: Why exceptions for the life of the mother have disappeared

The transformation of the lefts position on freedom of speech has allowed both principled conservatives and the less-than-principled protagonists of the MAGA movement to cast themselves as defenders of the First Amendment. In the mind of many people, the cause of free speech has astoundingly quickly shifted from being associated with left-wing organizations such as the ACLU to becoming the property of right-leaning pundits and politicians.

This makes the new front in the fight over abortion rights an important reminder of why the left should never abandon the cause of free speech. If the left gives up on the core commitment to free speech, what people can say is as likely to be determined by the attorney general of Mississippi as it is by college deans or tech workers. Curbs on free expression have always been a tool of governments that seek to control the lives of their citizens and punish those who defy them. The same remains true today.

Continued here:

Why Freedom of Speech Is the Next Abortion Fight - The Atlantic

The U.S. Office of Foreign Assets Control (OFAC)'s placement of Tornado Cash as an entity on the Specially Designated Nationals (SDN) sanction list raises important questions that are being discussed around the world. OFAC explained its sanction by saying Tornado Cash (Tornado) is a virtual currency mixer that operates on the Ethereum blockchain and indiscriminately facilitates anonymous transactions by obfuscating their origin, destination, and counterparties, with no attempt to determine their origin, and, therefore,is a threat to U.S. national security.

The issues EFF is most concerned about arise from speech protections for software code and how they relate to government attempts to stop illegal activity using this code. This post outlines why we are concerned about the publication of this code in light of what OFAC has done, and what we are planning to do about it.

On August 8, acting under Executive Order 13694, OFAC added something it called TORNADO CASH (a.k.a. TORNADO CASH CLASSIC; a.k.a. TORNADO CASH NOVA) to the SDN list, along with a long list of digital currency wallet addresses. Once an entity is on the sanctions list, U.S. persons and businesses must stop dealing with them, including through transfers of money or property.

According to the Treasury Department, the Tornado Cash mixer has been used to launder Ethereum coins, including coins worth millionsof U.S. dollarsfrom the Lazarus Group, a Democratic Peoples Republic of Korea (DPRK) state-sponsored hacking group, as well as the proceeds of several ransomware outfits. We have no reason to doubt this claim, and it is legitimately serious. Like many other kinds of computer programs (as well as many other tools), the Tornado Cash smart contract on the Ethereum blockchain can be, and indeed is, used for legal activities, but it is also used for illegal ones. According to Chainanalysis study of mixers generally, known illicit [wallet] addresses accounted for 23 percent of funds sent to mixers this year, up from 12 percent in 2021.

Confusingly, however, the name Tornado Cash could refer to several different things, creating ambiguity in what exactly is sanctioned. Tornado Cash Classic and Nova refer to variants of the software that exist in both source code form on GitHub and running on the blockchain. Tornado Nova is a beta version, with functionality apparently limited to 1 ETH/transaction.

Meanwhile, the OFAC press release quoted above refers to Tornado Cash as both an anonymity-enhancing technology and a sanctioned entity. Tornado Cash is also the name of: the underlying open source project that developed and published the code on GitHub; the name of this autonomous mixer software that resides as a smart contract (application) running on the Ethereum network; the URL of the tornado.cash website (listed by name on the SDN); and could be considered a name of an entity consisting of some set of people involved with the mixer. OFAC did not identify or list any people involved with the mixer as sanctioned by name. While the OFAC listing is ambiguous, Coin Center has drilled down on what it believes is and is not a sanctionable entity in the Tornado Cash situation, distinguishing between an entity and the software itself.

EFF has reached out to OFAC to seek more clarity on their interpretation of the sanctions listing, especially the scope of what OFAC means by Tornado Cash, and we hope to hear back soon.

EFFs most central concern about OFACs actions arose because, after the SDN listing of Tornado Cash, GitHub took down the canonical repository of the Tornado Cash source code, along with the accounts of the primary developers, including all their code contributions. While GitHub has its own right to decide what goes on its platform, the disappearance of this source code from GitHub after the government action raised the specter of government action chilling the publication of this code.

In keeping with our longstanding defense of the right to publish code, we are representing Professor Matthew Green, who teaches computer science at the Johns Hopkins Information Security Institute, including applied cryptography and anonymous cryptocurrencies. Part of his work involves studying and improving privacy-enhancing technologies, and teaching his students about mixers like Tornado Cash. The disappearance of Tornado Cashs repository from GitHub created a gap in the available information on mixer technology, so Professor Green made a fork of the code, and posted the replica so it would be available for study. The First Amendment protects both GitHubs right to host that code, and Professor Greens right to publish (here republish) it on GitHub so he and others can use it for teaching, for further study, and for development of the technology.

For decades, U.S. courts have recognized that code is speech. This has been a core part of EFFs advocacy for the computer science and technical community, since we established the precedent over 25 years ago in Bernstein v. U.S. Dept of State. As the Tornado Cash situation develops, we want to be certain that those critical constitutional safeguards arent skirted or diluted. Below, we explain what those protections mean for regulation of software code.

Judge Patel, in the Bernstein case, explained why the First Amendment protects code, recognizing that there was:

no meaningful difference between computer language, particularly high-level languages , and German or French Like music and mathematical equations, computer language is just that, language, and it communicates information either to a computer or to those who can read it. ... source code is speech.

The Sixth Circuit agreed, observing in Junger v. Daley, that code, like a written musical score, is an expressive means for the exchange of information and ideas. Indeed, computer code has been published in physical books and included in a famous Haiku. More directly, Jonathan Mann recently expressed code as music, by singing portions of the Tornado Case codebase.

Thus, the creation and sharing of a computer program is protected by the First Amendment, just as is the creation and performance of a musical work, a film, or a scientific experiment. Moreover, as Junger and Bernstein acknowledged, code retains its constitutional protection even if it is executable, and thus both expressive and functional.

Establishing that code is speech protected by the Bill of Rights is not the end of the story. The First Amendment does not stop the government from regulating code in all cases. Instead, the government must show that any regulation or law that singles out speech or expressive activity passes constitutional muster.

The first and key question is whether the regulation is based on the softwares communicative content.

In Reed v. Town of Gilbert, the Supreme Court has said that defining regulated speech by particular subject matter is an obvious content-based regulation. More subtle content-based distinctions involve defining regulated speech by its function or purpose (emphasis added).

A regulation that prohibits writing or publishing code with a particular function or purpose, like encrypting communications or anonymizing individuals online, is necessarily content-based. At a minimum, its forbidding the sharing of information based on its topic.

Content-based laws face strict scrutiny, under which, as Reed explains, they are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.

Thus, government regulation based on the content of code must be narrowly tailored, which means that laws must be written so narrowly that they are using the least restrictive means to achieve their purposes. This means that the government cannot place restrictions on more speech than is necessary to advance its compelling interest. Under Junger, functional consequences of code are not considered a bar to protection, but go to whether a regulation burdening the speech is appropriately tailored.

The government frequently argues that regulations like this arent focused on content, but function. Thats incorrect, but even if the government were right, the regulation still doesnt pass muster unless the government can show the regulation doesnt burden substantially more speech than is necessary to further the government's legitimate interests. And the government must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way. (Turner Broad. Sys. v. F.C.C.).

Under either analysis, GitHub has a First Amendment right to continue to host independent copies of the Tornado Cash source code repository. Professor Greens fork and publication through GitHub is protected, and neither the hosting nor the publication of these independent repositories violates the OFAC sanctions.

The government may have legitimate concerns about the scourge of ransomware and harms presented by the undemocratic regime in the Democratic Peoples Republic of Korea, but the harm from fund transfers does not come from the creation, publication, and study of the Tornado Cash source code for privacy-protective technologies.

Nor will prevention of that publication alleviate the harms from any unlawful transfers over Tornado Cash. Indeed, given how the Ethereum network functions, whether or not Prof. Green publishes a copy of the code, the compiled operational code will continue to exist on the Ethereum network. It is not necessary to further the government's interest in sanction enforcement to prohibit the publication of this source code.

Moreover, improvements and other contributions to this fork, or any other, are also protected speech, and their publication cannot be constitutionally prohibited by the government under either standard of scrutiny.

Based on thirty years of experience, we know that it takes a village to create and improve open source software. To ensure that developers can continue to create the software that we all rely upon, the denizens of that village must not be held responsible for any later unlawful use of the software merely because they contributed code. Research and development of software technology must be able to continue. Indeed, that very research and development may be the very way to craft a system that helps with this situation offering us alloptions to both protect privacy in digital transactions and allow for the enforcement of sanctions.

OFAC should do its part by publicly issuing some basic clarifying information and reducing the ambiguity in its order. Regardless of how one feels about cryptocurrency, mixers, or the blockchain, its critical that we ensure the ongoing protection of the development and publication of computer software, especially open source computer software. And while we deplore the misuse of this mixer technology to facilitate ransomware and money laundering, we must also ensure that steps taken to address it continue to honor the Constitution and protect the engines of innovation.

Thats why EFFs role here is to continue to ensure that the First Amendment is properly interpreted to protect the publication, iteration and collective work of millions of coders around the world.

Read more here:

Code, Speech, and the Tornado Cash Mixer - EFF

(AP Photo/Rick Bowmer, File)The Salt Lake Temple stands at Temple Square in Salt Lake City, Oct. 5, 2019.

By Stuart C. Reid | Special to The Tribune

| Aug. 26, 2022, 12:00 p.m.

Having presided over and pastored six congregations two as a bishop for The Church of Jesus Christ of Latter-day Saints and four as an active duty Army chaplain it is clear to me that the sinner/perpetrator, child abuse victims and society generally are better off when the confessional is protected by the government as the free exercise of religions God-given right.

In Utah there is much talk about religious freedom, particularly when it is considered operational to win this or that battle in the culture conflicts, but when the sanctity of the confessional is under attack, legislators and others go silent, or worse, many rush to get in line to rob religion of its long-standing freedoms.

Short-sighted knee jerk reactions by legislators, running roughshod over religion and its God-given rights is fundamentally un-American. One of the distinguishing characteristics of the great American experiment is the First Amendment, designed to protect against the establishment of religion and the violation of its free exercise. Those legislators rushing to rob religion of its sacred rights reveal what they truly think about religious freedom.

It is a grave mistake for the Utah Legislature or any legislative body for that matter to rob religion of its free exercise in the name of protecting victims of child abuse or any other crimes against the state. This fundamental right is precisely why the free exercise clause of the First Amendment exist at all. Very little could be more important under the First Amendment than protecting the right of confessional confidentiality.

As legislators rush to rob religion of its God-given rights, which should be protected under the First Amendment, believing they are heroically rescuing victims, especially child abuse victims, they are in fact ignorantly doing just the opposite.

If the Utah Legislature requires clergy to violate the sanctity of the confessional by reporting information about child abuse crimes obtained in the confessional, all its doing is guaranteeing in the future that sinners/perpetrators will not confess their sins/crimes, cutting off any opportunity for the clergy to influence the sinner/perpetrator to self-report their crimes to government authorities as part of their repentance process required by some religions.

How does it help child abuse victims or the general welfare of society when the clergy are forced to violate the confidentiality of the confessional? Such a situation places clergy in the predicament of either refusing to report, accepting the pain of incarceration and/or fines. Or, out of fairness, leaving the clergy no choice but to preemptively warn repenting sinners their confession of abuse crimes require clergy reporting. What an absolute tragedy for all involved, especially victims of child abuse.

There is very little that could be worse for religion than forcing clergy to violate the sanctity of the confessional confidentiality. For at least one major religion the confessional is a sacrosanct saving sacrament to be protected even under the pain of clergy death. For others, the confessional is critical for full repentance necessary for exaltation. For many religions these are of the highest stakes not to be considered cavalierly.

Victims, especially child abuse victims, are better off if sinners/perpetrators are able to confess their sins/crimes to clergy under confessional confidentiality. There is a greater chance under clergy influence that the sinner/perpetrator will not only self-report crimes, but child abuse victims will receive the necessary interventions sooner to rescue them from further harm and help them to more quickly recover from being violated.

Utah legislators should carefully consider before rushing to judgment whether they are actually helping or hurting child abuse victims by forcing clergy to report crimes they were made aware of during the confessional. From my many years of experience as a clergyman, receiving hundreds of confessions, I am more than convinced that religions God-given right to the protected confessional is better for all concerned, especially child abuse victims.

File photoSen. Stuart Reid, R-Ogden.

Stuart C. Reid, Ogden, is a former Army chaplain, LDS bishop and Utah state senator.

Continue reading here:

If religious leaders are forced to report what they hear in private, abusers won't admit their crimes. - Salt Lake Tribune

Richard Wolfe| Community Columnist

The Chicxulub crater in Mexicos Yucatan Peninsula was formed some 65 million years ago by the impact of an asteroid. That cataclysm was believed to have caused the extinction of the dinosaurs and countless other species.

This mass extinction event was first theorized by scientists in 1980 and confirmed in the early 1990s. Beginning in December 1995, NASA and the Jet Propulsion Laboratory conducted the Near-Earth Asteroid Tracking (NEAT) program, surveying the sky for near-Earth objects. No one was sure what we could have done about any adverse information NEAT might have provided but it nevertheless seemed prudent to keep an "eye on the sky."

Journalism as a study and a profession is the "program," so to speak, that surveys societies for potential calamities. Currently, Christian Nationalism is the societal asteroid many journalists are tracking. Its prudent to do so because Christian Nationalism is a cataclysm in the making.

The extinction of democracy is well within the realm of the possible.

Ottawa Impact is an analog to space dust, sucked along in the wake of the Christian Nationalism movement as it hurtles forth. Ottawa Impact is limited in scope, but its absolutely part and parcel to the larger theocratic plan.

In our Constitution, "freedom of religion" is the given shorthand for a rightbestowed by secular authority. The founding fathers as a group were not a church conceived or comprised deliberative assemblage. Mortal men conferred rights unto other men (non-male and non-whites excepted).

Not a part of the original Constitution which focused solely on secular matters relating to the organization and execution of governing the new nation that right is ensconced in the First Amendment of the Bill of Rights.

The relevant text reads Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. This was designed as a prohibition, forbidding prescriptive action contemplated by the secular government. It was not meant as license to presume a preference for any one religion, indeed any one belief over another, Christianity among them.

While certain invocations of "God" or "the year of Our Lord" or "creator" appear elsewhere in the text of the Constitution those references reflect only any given writers personal inclinations toward faith. They are not an endorsement of the Christian creed. In fact, among the Constitutions scribes many, including Thomas Jefferson, were Deists, holding beliefs regarding God that were not in line with Christian doctrine.

Not surprisingly, secular primacy is inconsistent with the ethos advocated by Ottawa Impact. Their self-styled "contract" is rife with Christian Nationalist undertones. Vagueness is its hallmark and ignorance of county commission authority its defining attribute.

Non-existent is any notion of or respect for those who, like Jefferson, dont adhere to Christian dogma. For parents who greatly value a public education for their children that hews to science and history, and not Christian sensitivities. Who believe biological realities, constructive criticism and broadly diverse points of view are essential to understanding the real world in which their children must live.

Parents who shun the notion that such an education is in any way "grooming" or "indoctrination."

Parents who, despite their own personal inconvenience, support public responses to a health pandemic that has, to date, killed more than a million Americans. Who greatly value preventative steps such as mask mandates that protect their children from infection, particularly those carried by other, unvaccinated children.

Parents who support the tireless, unsung (but all too often maligned) efforts of public servants who are charged with implementing and maintaining health guidelines never before envisioned. Or at least not since the Spanish Flu decimated world populations at the turn of the last century.

Take note, fellow citizens, Ottawa Impacts objective, like that of Christian Nationalism, is nothing less than the forced injection of their preferred deity into secular governance. Which, by definition, means the exclusion of all other deities.

As of the Aug. 2, 2022, election there were 230,881 registered voters in Ottawa County. In that election only one Ottawa Impact candidate for county commissioner garnered more than 5,200 votes. Primaries for midterms are marked by very low turnout.

Lets see how Christian Nationalists fare in November when many more voters are surveying the political firmament.

Community Columnist Richard Wolfe is a resident of Park Township. Contact him at wolf86681346@gmail.com.

Read more:

Richard Wolfe: Ottawa Impact's objective nothing less than forced religious injection - HollandSentinel.com