Sarasota Herald-Tribune Editorial Board| Sarasota Herald-Tribune

Marsy's Law, intended for crime victims, now used to shield law enforcement

The Marsy's Law amendment, as approved by Florida voters, was intended to protect victims of crime. But it's being used to shield law enforcement.

C. A. Bridges, Tallahassee Democrat

In return for the immense amounts of unspoken trust and expansive authority that our society willingly gives to law enforcement and judicial agencies, those who wield such powershave a clear obligation to hold themselves to higher standards of transparency and accountability.

Unfortunately, the Sarasota County Sheriffs Office and the 12th Judicial Circuit State Attorneys Office are both failing to meet those standards in their joint effort to bar the Sarasota Herald-Tribune from publishing the names of two deputies involved in a fatal Aprilshooting in Sarasota.

And, equally unfortunate, both parties are beingempowered to shirktheir responsibilitiesby an emergency injunction, granted last Friday by Chief Circuit Judge Charles E. Roberts, that upheld their request to block the Herald-Tribune from identifying two deputies involved in the shooting of Jeremiah Evans, 58, while carrying out a court-ordered eviction at the Palm Place Condominium in Sarasota.

Related: Sarasota County deputy fatally shoots armed man during eviction, Sheriff says

It's ironic that the names of the two deputies along with a third who was presentwhen Evans was shot had previously been provided to the Herald-Tribune by the State Attorneys Office in response to a routine public records request for a letter in which prosecutors had ruled the shooting was justified.

But when the Herald-Tribune sought additional information regarding the case, the Sheriff's Officeabruptly moved to pursue the emergency injunction in tandem with the State Attorney's Office.

With these facts established,the following conclusionsare beyond debate:

The ruling, which granted the injunction with no notice to the Herald-Tribune, is an unconstitutional prior restraint of the press that is prohibited by the First Amendment in both the U.S. Constitution and Florida Constitution.

This fact was driven homein the emergency motion filed June 13 byCarol Jean LoCicero and James B. Lake, from the firm of Thomas & LoCicero in Tampa, on the Herald-Tribunes behalf to overturn the emergency injunction.

Freedom of speech means that its up to the Herald-Tribune to decide whether to report information in its possession, especially facts about such a significant matter as a fatal shooting by law enforcement, Lake told the Herald-Tribune.We fully expect that, once our arguments are heard, the injunction will be set aside.

The Sheriffs Office and the State Attorneys Office have poorly servedthis community by: a) citing Marsys Law, which is designed to prevent the disclosure of potentially sensitive details about victims of crime, to justify asking for the emergency injunction, and b) working in hurried, secretive and underhanded fashion to secure a court order to restrain the press from publishing the deputies names even though the press had lawfully obtained that information and isnt bound by Marsys Law.

In effect, then, the Sheriffs Office and State Attorneys Office are not only behaving as though the First Amendment, which clearly applies to the press, does not exist they are also using a state law that doesnt apply to the press as a weapon to muzzle a news organization and blatantly obstruct its ability to provide information that the public has aright to know.

This is inexcusable. And this is just plain wrong.

Its time forthe Sheriffs Office and State Attorneys Office to adhere to the elevatedstandards of transparency and accountability that they must meet. Its time for the emergency injunction to be dissolved, and for both agencies to show the proper respect for the publics right to be fully informed.

This editorial was written by Opinions Editor Roger Brown for the Sarasota Herald-Tribune Editorial Board.

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Citizens have a right to know about Sarasota shooting case - Sarasota Herald-Tribune

In September 2020, former President Donald Trump referred to an MSNBC reporter suffering a knee injury from a police projectile as a beautiful sight. The reporter had been injured by police while covering a Black Lives Matter protest earlier that year.

That statement, and the near-constant attacks on the press during his administration, played a key role in a dark, new chapter for press freedom in the United States.

(That) administration serves as a horrible, yet impactful, example of the ways that pitting the population against the press and blaming reporters for unfavorable coverage can be a potent political tactic, said Katherine Jacobsen, United States and Canada regional program director for the Committee to Protect Journalists.

Following the murder of George Floyd and the killing of Breonna Taylor at the hands of police, millions took to the streets across America and the world in the spring of 2020 to protest police brutality and a system of law enforcement that has historically and disproportionately targeted Black and brown people.

What followed was months of protests, clashes with riot police and mass arrests of largely peaceful protesters and demonstrators. This is not a new phenomenon. The country witnessed similar situations transpire in Ferguson, Missouri, following the police killing of Michael Brown, an unarmed 18-year-old Black man, in 2014.

What struck more urgently this time was the public and violent disregard for the practice of journalism by some police, including mass arrests and assaults on the rights of journalists covering these protests.

Ed Ou, a visual journalist with NBC News, had his scalp lacerated by a projectile fired at close range by police while he was covering a protest in Minneapolis.

Ou was wearing a clearly visible NBC press badge.

CBS San Francisco reporter Katie Nielsen was arrested by police while covering a Black Lives Matter protest in Oakland, California, on June 1, 2020.

Neilsen was wearing a clearly visible CBS press badge.

While journalists have been arrested in the past, including during the Ferguson protests, these instances are increasing and raising larger questions about this shift in treatment and the concerns it bears for the free press. In 2020, journalists across the United States faced record numbers of physical attacks, arrests and cases of equipment damage, as well as many other press freedom violations, according to the Reporters Committee for Freedom of the Press annual report analyzing data from the U.S. Press Freedom Tracker.

The Press Freedom Tracker was launched in 2017 by the RCFP and more than two dozen other press freedom organizations, including the Freedom of the Press Foundation a national nonprofit that documents and catalogs press freedom violations across the U.S.

Trevor Timm, executive director of the Freedom of the Press Foundation, said the U.S. saw a shocking increase in the number of journalists arrested between 2019 and 2020.

There were about 150 press freedom violations in 2019 in the U.S., which we thought was very high, Timm said. But then in 2020, it increased by at least fivefold.

Timm says its no surprise that the number of press freedom violations, assaults and arrests of journalists increased with the rise of protests across the nation.

We have seen police act in this abusive and unconstitutional manner in the past, Timm said, citing the arrests of journalists covering the Occupy Wall Street movement in New York in the early 2010s, the Black Lives Matter protests in Ferguson in 2014, and the Standing Rock protests in 2016.

If there was never really any accountability in any of these past instances, when there is now this nationwide movement, are cops going to be worried theyre going to get in trouble if they violate journalists rights? The answer is no, Timm said.

The report identified that journalists faced 438 physical attacks in 2020 in the U.S. alone, more than 90% of which occurred as they reported on the nationwide racial justice protests. Police officers were responsible for 80% of these attacks, affecting 324 journalists. Nearly 200 of them appeared to be deliberately targeted by police, according to the Reporters Committees 2020 Press Freedom report.

Police officers assaulted reporters with tear gas, batons, pepper balls and rubber-coated bullets.

Even as municipalities across the country imposed curfews in an effort to suppress protests, many of these curfews contained exemptions for journalists either explicitly or by permitting essential workers, according to a report from the Committee to Protect Journalists.

Over the years according to guidelines compiled for the Committee to Protect Journalists by TrustLaw, the Thomson Reuters Foundations global pro bono legal program courts have commonly recognized that the First Amendment protects a reporters right to record law enforcement in public, including during a protest. Furthermore, there is a similar consensus, according to the same legal analysis for CPJ, that the Fourth Amendment protects journalists against having to hand over notes or reporting materials to police, and against illegal arrest. An arrest can be considered seizure of a person, which also implicates the Fourth Amendment. Police must have probable cause to make an arrest, and in the case of journalists, mere proximity to criminal activity is not enough to justify an arrest while covering a protest even if protesters become violent.

Police were not shown to have honored the exemptions for journalists in these curfews, nor the commonly understood legal protections, during the monthslong Black Lives Matter protests of 2020.

In Oregon, attacks and arrests of journalists continued even after a federal judge barred law enforcement from targeting journalists engaged in lawful newsgathering.

A federal officer guards the Mark O. Hatfield U.S. Courthouse as protesters gather Friday, July 24, 2020, in Portland, Ore. (AP Photo/Noah Berger)

Summer 2020 saw numerous examples of clearly identified and law-abiding journalists arrested for covering protests.

Omar Jimenez, a CNN correspondent, and his crew were arrested while giving a live television report in Minneapolis while covering protests over Floyds murder.

Carolyn Cole, a veteran photojournalist with the Los Angeles Times, and her team were cornered by police and pepper-sprayed at close range while documenting a protest, also in Minneapolis.

Cole suffered damage to her right cornea and chemical burns to her eye and skin. She was forced to halt coverage.

Last May, Cole and her colleague, Molly Hennessy-Fiske, filed a lawsuit against Minnesota State Patrol officers, saying officers violated their First Amendment rights. The lawsuit sought compensatory and punitive damages. In an interview after filing the lawsuit, both Cole and Hennessy-Fisk reflected on some of the more dangerous areas of the world their careers have taken them into war zones in Iraq and Afghanistan, for example and noted they had never experienced such specific targeting as they did by Minneapolis police in May 2020.

Cole and Hennessy-Fisks lawsuit was later included in a class-action suit filed by the American Civil Liberties Union of Minnesota, which represented a larger group of journalists who were attacked and arrested during that time.

Ou, of NBC News, was also part of the suit.

This February, a settlement was reached in the case, holding the Minnesota State Patrol accountable for these attacks.

In addition to more than $800,000 in financial compensation for the journalists involved, Minnesota State Police and outside law enforcement working alongside them under court order will now be explicitly prohibited from:

Those involved in the case say they hope this will serve as an example of what kind of action other states should take against police who participated in similar First Amendment violations.

Black Lives Matter protesters rally outside Iowa Gov. Kim Reynolds office, Monday, June 29, 2020, in Des Moines, Iowa. (AP Photo/Charlie Neibergall)

On May 31, 2020, Andrea Sahouri, a reporter with The Des Moines Register, was arrested in Des Moines, Iowa, while covering Black Lives Matter protests in the area.

This was the third night Sahouri had covered the protests in Des Moines that began shortly after news broke of Floyds murder.

Sahouri described the protest on May 31 as made up largely of middle school and high school students. It escalated when protesters blocked the street at a busy intersection near a local shopping center and quickly turned violent after riot police arrived and began forcing dispersal.

Police came out after that in a line of riot gear, Sahouri recalls. There was pepper spray, tear gas, batons and later in the night full-on Bearcats (armored S.W.A.T. vehicles).

Riot police began pushing the crowd into a parking lot near the shopping center, really with no means of leaving, in order to make mass arrests, Sahouri said.

During a lull, Sahouri walked across the parking lot to interview protesters.

As Sahouri and a fellow journalist approached the group of protesters, police arrived in an armored vehicle, deploying pepper spray and rubber-coated bullets.

Obviously were going to run from that, so we ran, Sahouri said. I couldnt really see much of what was behind me so I turned around.

Thats when Sahouri saw a police officer charging at her.

I immediately put my hands up and said Im press, Im press, Im with The Des Moines Register, she said. He grabbed me, pepper-sprayed me right in the face and said Thats not what I asked, and proceeded to arrest me.

Her colleague was allowed to go, but Sahouri was charged with failure to disperse and interfering with official acts, both of which are misdemeanors. She was the only journalist of color on the scene.

As pepper spray soaked her clothes, Sahouri went live on her Twitter account in the back of the police car.

I just knew what was happening wasnt right. I did nothing wrong and its a big deal arresting a journalist, she said.

This livestream was how Sahouris editor learned of her arrest.

What many dont realize is that pepper spray spreads like poison ivy, Sahouri said. By the time she arrived at the Des Moines jail, her entire body felt like it was burning.

I actually had to strip and shower in front of female officers because I was in so much pain, Sahouri noted.

She was held in police custody, including time at the Polk County jail for nearly four hours before being released.

While many journalists were arrested and later released, the Polk County Attorney brought Sahouri to court for her charges in March 2021 a move that drew outrage from many in newsrooms across the country.

The ACLU of Iowa called the trial an outlandish prosecution.

The Committee to Protect Journalists Jacobsen initially called the arrest and trial incredibly concerning.

Thats an understatement actually, Jacobsen said, adjusting her language. It was alarming that a journalist would actually be brought to trial simply for being in a location and covering one of the top stories in the country at the time. I think it speaks to a larger issue about local authorities trying to perhaps make statements by deciding to go after reporters.

A jury acquitted Sahouri of both charges after only two hours of deliberation. The Des Moines police officer who arrested Sahouri did not activate his body camera until 15 minutes after the arrest took place, which drew the validity of the arrest itself into question during the trial.

Even after her unanimous acquittal, members of the prosecutorial team, including Polk County Attorney John Sarcone, defended their failed attempt to charge Sahouri.

After I was found not guilty, he (Sarcone) doubled down and told national media that I was there to protest, Sahouri said.

Sahouri continued to cover protests and civil unrest for The Des Moines Register after her release and acquittal but has since requested her newsroom take her off the breaking news beat, which had her interacting with police on a near-daily basis, noting it was the best choice for her mental health. Sahouri now covers criminal justice for the Detroit Free Press.

Associated Press videojournalist Robert Bumsted reminds a police officer that the press are considered essential workers and are allowed to be on the streets despite a curfew, Tuesday, June 2, 2020, in New York. New York City police officers surrounded, shoved and yelled expletives at two Associated Press journalists covering protests in the latest aggression against members of the media during a week of unrest around the country. (AP Photo/Wong Maye-E)

Stephen Solomon teaches First Amendment law and said law enforcement departments need a refresher course on what the First Amendment entails. He said they need to understand what freedom of the press means and what police can and cant do as far as telling reporters what to do and where they can be.

There may be some situations of animosity, you may have a police officer who just doesnt like the media or maybe is trying to hide something, Solomon, who is the founding editor of First Amendment Watch and Marjorie Deane Professor at NYUs Arthur L. Carter Journalism Institute, said. But I think there is also a lack of understanding of what the law requires under the First Amendment.

Police must understand the public benefit and crucial role of journalism, Solomon said.

Part of that is making it clear once again, to law enforcement, what the purpose of the press is, Solomon said.

Thats the reason why you have a press pass. Thats the reason why you should be allowed to stay while theyre clearing the street. Thats the reason why you should be allowed to go past the police barricade to cover whats going on up close. Thats the function and if that meaning has been eroded over the years or is in danger, it needs to be renewed.

For Jacobsen, the issue has been getting worse in recent years and reaches far deeper than simply a lack of education.

Theres no better way to control coverage than to make sure that its not possible to cover something safely in the first place, she said.

The disparity in police action against protesters is visible when examining movements like Black Lives Matter compared to recent anti-vaccination protests, Jacobsen notes.

I think it says a lot about topics of coverage that perhaps cause greater concern for police, she said. When police go out and as we saw during the Black Lives Matter protests in 2020 specifically target journalists who are doing their jobs and trying to cover matters of public interest, I think it points to problems that perhaps they dont want the media to cover.

This poses a risk to the free press and the public service of informing the masses that journalists seek to fulfill, Jacobsen said.

When you see your colleagues being poorly treated by law enforcement when in theory theyre there to protect people it makes you think twice about how youre going to cover something and whether its worth the risk, she added.

Jacobsen said journalists of color have long had to pay attention to concerns about risks and awareness that the rest of the news media are now also facing.

In the field of journalism, foreign reporters and war correspondents often undergo Hostile Environment and Emergency First Aid Training (HEFAT), meant to prepare journalists for the trauma and risk that comes with operating in war zones.

Now, Jacobsen said, she is encouraging domestic journalists to undergo the same training.

Theres a new understanding that home also carries with it these risks and that journalists should be prepared, she said.

This story was updated to note that Andrea Sahouri has taken a job at the Detroit Free Press.

More here:

How police treatment of journalists at protests has shifted from cohabitation to animosity - Poynter

Largely American social movement

First Amendment audits are a largely American social movement that usually involves photographing or filming from a public space. It is often categorized by its practitioners, known as auditors, as activism and citizen journalism that tests constitutional rights;[1] in particular the right to photograph and video record in a public space.[2][3] Auditors believe that the movement promotes transparency and open government.[4] However, critics argue that audits are often confrontational in nature, as auditors often refuse to self-identify or explain their activities.[5][6] Some auditors have also been known to enter public buildings asserting that they have a legal right to openly carry firearms, leading to accusations that auditors are engaged in intimidation, terrorism, and the sovereign citizen movement.[7][8][9]

Auditors tend to film or photograph government buildings, equipment, access control points and sensitive areas, as well as recording law enforcement or military personnel present.[10] Auditors have been detained, arrested, assaulted, had camera equipment confiscated, weapons aimed at them, had their homes raided by a SWAT team, and been shot for video recording in a public place.[11][12][13][14][15][16] Such events have prompted police officials to release information on the proper methods of handling such an activity.[17][18] For example, a document sponsored by the International Association of Chiefs of Police states that the use of a recording device alone is not grounds for arrest, unless other laws are violated.[19]

The practice is predominantly an American concept, but it has also been seen in other countries including the United Kingdom,[20][21] Canada, and India.[citation needed]

Auditors typically travel to a place that is considered public property, such as a sidewalk or public right-of-way, or a place open to the public, such as a post office or government building, and visibly and openly photograph and record buildings and persons in their view.[22]

In the case of sidewalk or easement audits, the conflict arises when a property owner or manager states, in substance, that photography of their property is not allowed. Sometimes, auditors will tell property owners upon questioning that they are photographing or recording for a story, they are photographing or recording for their "personal use", or sometimes auditors do not answer questions.[23][24] Frequently, local law enforcement is called and the auditor is sometimes reported as a suspicious person and are often also identified as having been on private property. Some officers will approach the auditors and request his or her identification and an explanation of their conduct. Almost universally, auditors will invoke the 4th Amendment with the belief that they are not required to identify themselves unless witnessed having just committed a crime. They quote the relevant law to the officer as the basis for their refusal to identify.[6][25] This sometimes results in officers arresting auditors for failing to identify themselves, obstruction of justice, disorderly conduct, or any potential or perceived crime that could potentially be justified by the occasion.[26][27]

The legality of recording in public was first clearly established in the United States following the case of Glik v. Cunniffe,[28] which confirmed that restricting a person's right to film in public would violate their First and Fourth amendment rights. As the 7th Circuit Federal Court of Appeals explained in ACLU v. Alvarez, "[t]he act of making an audio or audiovisual recording is necessarily included within the First Amendments guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording. The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected."[29][30] However, the legality of the auditors' actions beyond mere filming are frequently subject to debate. As long as the auditor remains in a public place where they are legally allowed to be, they have the right to record anything in plain view, subject to very limited time, place, and manner restrictions.[31][32]

Some auditors occasionally yell insults, derogatory language, and vulgarities at police officers who attempt to stop them from recording or improperly demand identification.[10] Police will sometimes charge auditors with disorderly conduct when they engage in behavior that could be considered unlawful. For example, an auditor in San Antonio was prosecuted and convicted of disorderly conduct after an audit.[33] After the trial, the Chief of Police for the City of San Antonio stated "[the verdict] puts a dagger in the heart of their First Amendment excuse for insulting police officers..."[34] Despite the San Antonio Police Chief's statement, insulting the police is consistently treated as constitutionally protected speech.[35][36][37] In State of Washington v. Marc D. Montgomery, a 15-year-old successfully won an appeal overturning his convictions for disorderly conduct and possession of marijuana on the grounds of free speech. Montgomery was arrested after shouting obscenities, such as "fucking pigs, fucking pig ass hole" at two police officers passing in their patrol car. Citing Cohen v. California, the Court ruled that Montgomery's words could not be classified as fighting words, and restricting speech based merely on its offensiveness would result in a "substantial risk of suppressing ideas in the process."[38]

The rights exercised in a typical audit are freedom of speech and freedom of the press in the First Amendment, freedom from unreasonable searches and seizures in the Fourth Amendment, and the right to remain silent in the Fifth Amendment of the United States Constitution.

Auditors attempt to exercise their First Amendment right to photograph and record in public while avoiding committing any crime. The reason for this stems from the Supreme Court's decision in Terry v. Ohio which held that it was not a violation of the Fourth Amendment to detain someone when the officer has reasonable articulable suspicion that crime is "afoot". Further, following the Supreme Court's decision in Hiibel v. Sixth Judicial District Court of Nevada, the Court held that in States that have stop and identify statutes, a person may be required to provide their name to an officer who has reasonable articulable suspicion that the person has committed, is committing, or is about to commit a crime.

The conflict with law enforcement officers generally arises because officers sometimes deem photography, in and of itself, "suspicious behavior" and use that as a reason to detain an Auditor and demand identification. Universally, Courts that have reviewed this specific issue have held that the fact that a person takes a photograph or makes an audio or video recording in a public place or in a place he or she has the right to be, does not constitute, in and of itself, a reasonable suspicion to detain the person, probable cause to arrest the person, or a sufficient justification to demand identification. Some states have even revised their penal code to reflect that issue.[39] Nonetheless, officers frequently detain or arrest auditors for "suspicious behavior".[40][41]

One of the main problems that auditors face in subsequent lawsuits are the Supreme Court's decisions in Harlow v. Fitzgerald, and Anderson v. Creighton, which held that government officials, including officers, would be shielded from liability and damages as long as their conduct does not violate "clearly established statutory or constitutional rights".[42] Therefore, while a Fourth Amendment seizure claim might exist for an auditor who stood on a public sidewalk and took pictures of a police station only to be handcuffed and placed in the back of a patrol car, a First Amendment claim would be dismissed because although a violation occurred, it was not "clearly established".[43] Qualified immunity allows "all but the plainly incompetent or those who knowingly violate the law" to escape liability for egregious and obvious violations of civil rights.[44] So far the 1st, 3rd,[45] 5th, 7th,[46] 9th,[47] and 11th[48] Circuits have held that recording the police in the course of their official duties is a clearly established right.

Auditing can be controversial due to the confrontational tactics of some auditors, which some may see as intimidation or harassment.[49] In addition, many public employees are not familiar with handling people walking around silently recording their interactions. While the conduct is generally legal, such activity may cause some people to feel alarmed. Some auditors cite independent research into relevant laws, pointing out that they are currently being recorded by cameras in the building, or by stating that there is no expectation of privacy in public.

Audits are even more confrontational when aggressive auditors engage in verbal disputes with government employees. Some auditors may use profane language during an audit. Some may confuse obscenity for profanity, and while the latter is generally protected by the first amendment, the right to engage in a verbal dispute depends highly on the circumstances. While on public streets, parks, or sidewalks, the right to free speech is at its highest, as one is within a traditional public forum. However, in limited public forums, such as public buildings, meeting rooms, and other public lobbies, the right to free speech may be more limited.

One auditor stated that the goal of an audit is to "put yourself in places where you know chances are the cops are going to be called. Are they going to uphold the constitution, uphold the law ... or break the law?"[50] Auditors state that they seek to educate the public that photography is not a crime, while publicizing cases where officers illegally stop what is perceived as illegal conduct.[51][52]

An auditor selects a public facility and then films the entire encounter with staff and customers alike. If no confrontation or attempt to stop the filming occurs, then the facility passes the audit;[53] if an employee attempts to stop a filming event, it fails the audit.[54]

Some auditors are concerned that if officers are willing to harass, detain, and arrest auditors, who intentionally avoid doing anything that might be considered a crime, normal citizens might shy away from recording officers for fear of retaliation.[55][56] In 2017, Justice Jacques Wiener of the U.S. Court of Appeals for the 5th Circuit wrote a federal appeals decision in favor of an auditor who was detained for filming police officers; Filming the police contributes to the publics ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy.[6]

Original post:

First Amendment audits - Wikipedia

Dress codes are typically implemented by school districts and employers to promote learning, safety, and image.Although such regulations face First Amendment challenges by students, parents, and employees, the courts generally support the schools and employers. In this 2013 photo, Mary Beth Tinker, 61, shows an old photograph of her with her brother John Tinker to the Associated Press during an interview in Washington. InTinker. v. Des Moines Independent Community School District(1969) the Court affirmed students First Amendment rights to free speech.Although the Courts decision upheld students right to express themselves through certain items they wear, the Court has never specified whether that right bars uniforms, dress codes, or grooming requirements.(AP Photo by Manuel Balce Ceneta, used with permission from the Associated Press)

Dress codes are typically implemented by school districts and employers to promote learning, safety, and image.Although such regulations face First Amendment challenges by students, parents, and employees, the courts generally support the schools and employers.

School dress codes that merely exclude types of clothing, such as gang colors or provocative attire, tend to be enacted without controversy. When codes require uniform-like attire, however, many parents and children object.

The Supreme Court has never directly addressed school dress codes. In Tinker v. Des Moines Independent Community School District (1969), which involved high school students wearing black armbands to protest the Vietnam War, the Court affirmed students First Amendment rights to free speech. Although the Courts decision upheld students right to express themselves through certain items they wear, the Court has never specified whether that right bars uniforms, dress codes, or grooming requirements.

Faced with increasing student-discipline problems, particularly from gang violence (involving gangs whose members often identified themselves through items of clothing) and a rise in more prurient clothing in the 1980s and 1990s, school systems in the 1990s began to introduce dress codes, school uniforms, and uniform-like dress codes.

In two State of the Union addresses, President Bill Clinton advocated public school uniforms, similar to those in parochial schools and many public schools overseas. The number of schools that adopted uniforms is not known, but in California, where they were first mandated, at least 50 schools abandoned their uniform requirements between 2000 and 2002.

Short of restricting pure political expression that does not disrupt learning, school officials have much constitutional latitude.The law in this area is far from settled, and the courts frequently side with the schools when dress requirements are challenged by students and parents.

In practice, however, the bitterness and the cost of litigation have reduced the practical maneuvers of school administrators and school boards.

If school officials attempt to punish students who exercise their expressive rights by wearing buttons, writing on fingernails, or protest messages on shirts, they could find themselves slapped with protected-speech or petition action lawsuits. In addition, in districts that have imposed incentives to increase participation in voluntary uniform and uniform-like dress codes, threats of or actual lawsuits have quickly emerged to halt this allegedly coercive practice.

Opponents of dress codes and uniforms are often fall into a few categories:

Similarly, the motives of advocates of mandatory uniforms or uniform-like dress codes vary from those who want to de-emphasize clothing and promote the egalitarianism implicit in similar clothing to those who primarily wish to avoid fights with their children over what to wear.

School administrators and teachers are divided on the issue. Some, particularly those in underperforming or less disciplined school environments, welcome uniforms and uniform-like dress codes. Supporters also argue that uniforms help identify intruders on school property.

Opponents contend, however, that uniforms also make it more difficult to identify distressed students, who may reveal symptoms of psychological disorders by wearing unusual clothing. They also point out that teachers often waste the first minutes of class trying to determine which of their students who are not in uniform have waivers and which are violating the code.

In addition, friction and discipline problems may worsen as rule breakers crowd the principals office. Over time, students may simply stop wearing the uniform or uniform-like dress, or they may mock the policy by wearing the uniform in a revealing way.

Scholars have studied the effects of uniforms and dress codes on discipline and academic performance, but their findings have been mixed: Researchers, including sociologist David L. Brunsma at the University of Alabama at Huntsville, have concluded that no relationship exists, that the uniform or dress code is much less important than most other factors, or even that uniforms lower test scores.

Employers are entitled to enact dress codes, including uniforms, if there is a rational basis for the requirement, such as fostering a particular business image, encouraging harder work, or complying with public safety and health standards. They can ban anything reasonably deemed to be distracting from work, including body art.

Employers may also offer alternative dress codes, such as minimum requirements for casual Fridays. Although employees do not have a First Amendment right to dress in any way they choose to express themselves, they do have rights under the First Amendment to contest a dress code in a civil manner without fear of employer retribution.

The courts generally defer to employer judgments and have thus upheld prohibitions of torn clothing, sweat pants, short skirts or blouses, and hats.

Provided that the dress code is written clearly, is not excessive or onerous, is applied in a consistent fashion, and does not obviously discriminate on the basis of race, sex, religion, and perhaps ethnicity, the code is constitutionaland does not violate Title VII of the Civil Rights Act of 1965.

A dress code that discriminated on the basis of gender would be struck down. However, dress codes that are consistent with social customs can be upheld. Thus, in Harper v. Blockbuster Entertainment (11th Cir., 1998), the 11th U.S. Circuit Court of Appeals upheld a rule requiring shorter haircuts for male employees.

This article was originally published in 2009. Henry F. Carey is Associate Professor of Political Science at Georgia State University.

Link:

Dress Codes | The First Amendment Encyclopedia

On Monday, June 6 the Woonsocket City Council took up a routine request from Rebuild Woonsocket to get a permit to hold the second annual Pride celebration in the citys World War II Memorial Park. Last year, as Woonsocket city officials pushed back against the event the celebrationmorphed into a protest march. [See: First ever Woonsocket Pride celebration]

City officials such as Councilmember James Cornoyer and Mayor Lisa Baldelli-Hunt, were offended by some of the statements made by those attending Woonsocket Pride last year and used the routine passage of the resolution granting organizers use of the city park to air their grudges and promise retaliation if speakers at the event were critical of of elected politicians.

Of course, the right to assemble and freedom of speech are two of the most important freedoms protected by the constitution of the United States. You would just never know it by the following conversation:

Councilmember James Cournoyer: Just on this one This is a request from Rebuild Woonsocket from Mr. Alex Kithes. I dont know if he or any of his group os here but Im just curious Is this an event to give speeches bashing elected officials in Woonsocket as transphobic and homophobic as has been the case in the past when weve had these types of events? Does anyone know?

Council President Daniel Gendron: Is there anyone here from this organization? Theres not.

Cournoyer: Okay.

Mayor Lisa Baldelli-Hunt: I do want to make one comment. We did receive complaints through my office the last time that this park was utilized and families were upset because microphones were being used and there was vulgarity and chanting of vulgarity and things of that nature, with the children in the park. I find that I need to bring that to your attention.

Gendron: Thank you. Obviously thats always inappropriate. Its unfortunate that we have to start lecturing adults on whats appropriate in front of children, but I guess thats what happens with some people. So I guess we can just say we have to ask public safety to keep an eye on this and watch out for the children in the city. I dont know what more we can do.

City Solicitor John DeSimone: Table it?

Councilmember Roger Jalette: Thats just what I was going to say. How about if we table it per a meeting with the organization?

Gendron: Well, its for June 11th. So if we table it its beyond the

Councilmember Valerie Gonzalez: Is there any way we can amend it to include that there would be no use of profanity or vulgar language? I know its a new request

Gendron: I dont really feel comfortable with that because where does that end? I think that were just going to hope that they act like adults. I dont know what more you can say. Solicitor, arent we crossing a fine line there if we start dictating what people can say?

DeSimone: We can put a police detail there. You could put a police detail.

Gendron: And require them to pay for it, or

DeSimone: Or just do it at our ex- yeah, you can require them to pay for it. I dont know what financial means they have Either that we we just order a police detail to make sure that everything goes smoothly and the neighbors arent disturbed, if the council feels that way. I guess the Mayor feels that way. You know, however you want to handle it but

Baldelli-Hunt: I dont think we should have to expending our taxpayer dollars to monitor the behavior of someone whos being granted a privilege of using our park.

Gendron: Yeah. Thats why I said at their expense but

DeSimone: You could put it at their expense if you want I dont know if they

Cournoyer: My view is look it Weve had these events the last couple of years and, as I said, the first one was billed as a quote, celebration that was approved by the council seven to nothing and it turned into an attack on the city council, the mayor, etc. Then we saw the same activity from the steps of city hall down in Providence, in the states capitol. And it happens over again. So my view is Im happy to support this. I have no problem with these type of things. If the individual requesting [this resolution] behaves the way he has the last couple times, if Im on here again it will be the last time. So

Public Works Director Steven DAgostino: Im just going to say that if you review the charter, the parks fall under my purview and Im uncomfortable with this event. If it moves forward, it will not be with my blessing.

Gendron: I understand. I will say this though: I think the intended celebration is not the problem and its a good cause. Unfortunately the organizers are the ones that have the reputation of being bad apples. So I hate to take away the celebration from the other good people that want to enjoy this because of a few bad apples. Im reluctantly going to support it because I hope that the goodness outweighs the problems but Chief, if you could just ask your officers, if they hear of complaints to let us know and address that immediately, but let us know for future events that are requested.

Baldelli-Hunt: Council President, can you read section two please?

Gendron [reading]: Shall take effect upon passage by the city council and is subject to any conditions that the public safety department may impose and payment of all associated costs as determined by the Director of Public Works. The applicant will obtain a permit from the recreation director upon payment of fees.

Baldelli-Hunt: So that very clearly states any conditions put upon by the public safety director any public safety department anything they impose and payments associated determined by the Director of Public Works. So youre not prohibited from having oversight there. Their cost.

Gendron: What would you recommend then? Lets just If you want to add something I can ask somebody to make an amendment for what you would like to see happen. Im uncomfortable starting to impose details, again, because its one or two bad apples and not, hopefully, not the group that is organizing. Its the organizers, not the organization.

Gonzalez: So basically if we pass this were basically putting it in the court of the public safety director and the director of public works. Because it says both of them so whatever is imposed would be determined by the people who have already seen and worked with them What Im saying is approving this resolution would basically just give you the freedom to do what you feel is necessary to do. Correct?

Gendron: Yeah.

Gonzalez: So I would be in support of this. I actually like that we have a section two.

Councilmember David Soucy: Quick question: Is that section two always included in these agreements?

Gendron: Yes. Same thing for the other two we passed.

Cournoyer: Were not picking on anyone.

Soucy: We dont want to have that impression.

Gendron: No. No. No.

Cournoyer: God no.

Councilmember Jalette voted no. Councilmembers Cournoyer, Gendron, Gonzalez, Soucy, John Ward and Denise Sierra voted to approve.

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Woonsocket elected officials threaten to violate 1st Amendment rights if Pride organizers criticize them - Uprise RI

Last weeks front-page story, Advocacy for site of new Amherst school called unwarranted that leaders of the political action committee Amherst Forward are arguing that Amherst citizens should refrain from offering an opinion on the best site for the roughly $100 million new elementary school and let the Elementary School Building Committee do its job.

The PAC doesnt seem to understand just how anti-democratic this message sounds. Perhaps Americans should continue to allow Congress to do its job and kick the gun control can down the road for another 10 years. Maybe women should keep silent and let the Supreme Court do its job of overturning Roe v. Wade. And similarly, Russians should stay out of Putins way while he does his insane job of barbarizing Eastern Ukraine.

Citizen engagement in the government decision-making process is a pillar of healthy democracies, and the right to voice ones opinion is enshrined in the U.S. Constitution. Perhaps Amherst Forward should reflect on whether their authoritarian narrative is really serving the Town of Amherst well.

Jeff Lee

Amherst

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Jeff Lee: Reflect on the First Amendment - Amherst Bulletin

The leftists who wanted to force you to take a vaccine in order to keep your job and wanted to use a "Disinformation Board" to silence your First Amendment right to speak out against the government now want to eliminate your Second Amendment right to defend yourself and your family.

Our Bill of Rights, which includes the Second Amendment, is crucial to protect our personal liberties from an all-powerful federal government. If anyone questions the power of the modern federal government, think back to the power the federal bureaucracy seized to impose COVID mandates in the name of public safety while at the same time restricting your First Amendment right to challenge those mandates through censorship.

In the wake of the horrific tragedy in Uvalde, Texas, shameless politicians immediately pushed their political agenda of eliminating the Second Amendment rights of law-abiding citizens. President Joe Biden was behind a White House podium within hours to deliver a divisive political speech, claiming we have too many rights and telling us he must take away our rights to make us safer.

Leftists don't care about public safety they are in complete control of Baltimore and Chicago, two of the most dangerous cities in the world. Leftists made these cities more dangerous by releasing criminals during COVID and refusing to prosecute criminals as part of their "woke" agenda. Democrats keep our southern border open for gangs and drug cartels to pass through, and they refuse to cooperate with ICE to deport criminals. These soft-on-crime policies have created a crime wave, which has been exacerbated by the left's "Defund The Police" movement to cut police budgets. Leftist politicians who claim to care about student safety eliminated school resource officers, kicking police officers out of their schools.

These same leftists made children suffer with school closures, COVID lockdowns, and forced masking, which caused spikes in depression, drug use, and suicide. As we all suspected, the Biden administration and the Centers for Disease Control and Prevention coordinated with national teachers unions to prolong remote learning and mask mandates for political reasons unsupported by "the science." Now, the Left is confusing children by telling them they have no gender, are not created in the image of God, and can experiment with puberty blockers to change their gender without consequence.

Children are suffering, and we face a mental health crisis in our country because the radical Left has spent decades attacking the role of God in our society, attacking the church, attacking the nuclear family, and dismissing the important role fathers play in raising their sons. The Left tells our children they do not come from God, they are not born for any purpose, and they cannot obtain salvation. The Left embraces abortion without restriction because life has no grand meaning to them, and the ability to create life is not treated with the awe and reverence it deserves.

Conservatives cannot back down under pressure from these radical leftists. We must be strong in defending the central pillars of our society and the constitutional rights of the people, including the Second Amendment. Leftists only care about taking away the rights of law-abiding citizens to make themselves more powerful and to make citizens powerless.

Americans have a fundamental right to keep and bear arms that "shall not be infringed." I will continue to defend our Second Amendment rights as a member of Congress, and I have never supported the Left's gun control agenda or their push for red-flag gun confiscation.

As you watch statements from leftist politicians and liberal media figures attacking the Second Amendment, remember that leftist politicians and celebrities are all protected by walls and guns because they know that walls and guns are effective at keeping themselves and their families safe. Leftists believe they have a right to defend themselves they just don't believe you should have the same rights they do.

In times of tragedy and evil, we turn to our faith in the Lord and are guided by what unites us. As Americans, we are united by our belief that our divine rights come from our creator. As Christians, we are united by a shared purpose to serve God above ourselves. We cannot let those who are attempting to destroy our society's central pillars of family, faith, and freedom succeed. We must work together to defend our rights, our freedoms, and our American way of life.

Rep. Mary Miller is a Republican representing the 15th District of Illinois. She runs a small family farm with her husband, Chris, and is a member of the House Freedom Caucus, Republican Study Committee, and House Second Amendment Caucus.

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Beware the Left's Second Amendment power grab - Washington Examiner

To listen to the gun lobby, the Second Amendment provides an absolute constitutional right for an individual to own an array of armaments and ammunition free from regulation by the state. These advocates select from the amendments text only what supports their individual-freedom view, but they ignore entirely the imperative that precedes, the framing device of the whole thingto protect the security of a free State. Read in full, the text of the amendment is not a prohibition on gun regulations but, rather, a requirement of certain regulations necessary for protecting that security and freedom.

Gun-rights activists point to the 2008 Supreme Court decision in Heller v. District of Columbia as finally establishing, some 219 years after the ratification of the Second Amendment, an individual right to possess a gun in the home, which they proclaim extends to assault rifles and sundry other weapons enabling individual bearers to inflict mass destruction of human life. In their view, the ordinary citizen is bound by a constitutional covenant to suffer the risk that others might use their military-style weapons to murder childrenor churchgoers, or grocery shoppers, or concertgoers, but especially childrenbecause it is the person, not the gun, who does the killing in the Second Amendments name. We the people must endure this risk, we are told, because otherwise the rights of some to keep and bear Armseven against childrenoutweigh our collective need for safety and security. The constitutional protection of some to keep the weapons that they sometimes bear against us collectively is too important a right necessary for individual freedom to contemplate regulations that would, or even might, reduce our risk. We are told that the right to individual ownership of armaments like AR-15 platform assault weapons, with minimal or no real restraints on purchasing, is necessary for an armed populace to keep the threat of a tyrannical government at bay.

James C. Phillips and Josh Blackman: The mysterious meaning of the Second Amendment

Such a popularized version of our Constitutions meaning was in part vindicated by a conservative Supreme Court majority, whose opinion in Heller focused principally on the second half of the Second Amendment, which reads, The right of the people to keep and bear Arms, shall not be infringed. Assuming that the term of art keep and bear means the same in modern English as possess and carry, and that the people refers to particular individuals rather than a political collective, as in We the People, which established the Constitution in the preamble, the right would seem to be fairly clear. (Or at least as clear as the First Amendment, which provides that Congress shall make no law abridging the freedom of speech, under which the Supreme Court has nonetheless repeatedly found all manner of regulations permissiblesuch as those prohibiting incitement to violence, true threats, and advocacy for violent overthrow of the government, and those putting reasonable time, place, and manner restrictions on speech, among many others.)

But this version of the Second Amendment ignores the first half, which reads, A well regulated Militia, being necessary to the security of a free State. The Supreme Court barely contemplated the texts meaning in Heller, asking no more than whether it could be given a logical link or a purpose consistent with what it dubbed the operative clausewherein the amendment, in the Courts view, protects an individual right to possess a weapon. The first half of the Second Amendment is at times also anachronistically associated with the question of whether the right to possess a weapon is tied to service in a well regulated Militiaa view the Heller majority rejected. Missing from this reading, however, is any consideration of the constitutional significance of what is necessary to maintain the security of a free State. What does this security entail? Are Americans secure in a free state when they live in fear of the next violent act that might be perpetrated by the bearer of semiautomatic weapons? Are Americans secure in a free state when they are told that more resources should be spent on arming teachers, or training students to duck and cover and keep silent, as if in a new cold war, only this time the enemy is ourselves?

Diana Palmer and Timothy Zick: The Second Amendment has become a threat to the First

The gun lobby argues that the political, psychological, and emotional attachment to the ready availability of weapons for some is a value too precious to contemplate rethinking our collective approach to gun regulation. Any regulation that might lead to imposing far more restrictive licensing and background checks, or to limiting the availability of particular kinds of weapons, would be too costly to their selective understanding of constitutional freedoms. According to the gun lobby, individuals engaged in their own fantasy of the heroic citizen equipped to do battle against tyrannical government agents would suffer incalculable collective costs were Americans to restrict their access to weapons. If the choice were the lives of children or the political imagination of a vocal group of armament activists, whose costs should matter more? The inconvenience of some or the lives of others?

The Second Amendment provides an answer. The security of a free State matters. Our security is a constitutional value, one that outweighs absolutist gun-rights claims by NRA lobbyists, or Oath Keepers and other insurrectionist groups who hold their access to weapons dear for use in an imagined anti-tyranny quest. Meanwhile, the rest of us suffer the costs of the actual tyranny that living in a state of fear of mass gun violence creates.

Franklin D. Roosevelts 1941 Four Freedoms speech placed freedom from fear as one of four essential human freedoms. Translated to our modern gun crisis, this freedom can be realized only when individuals no longer have easy legal access to armaments that put them in a position to commit an act of [mass] physical aggression against any neighbor. Children today do not have this freedom from fear. Just to live in society and go to school, they must endure regular active-shooter drills, because the gun lobby has opposed any regulation that would keep weapons out of the hands of those whose activities remain legal up until the exact moment when they start shooting children and teachers. Proposals to make schools more like fortresses only add to the costs children bear rather than addressing the root constitutional problemthat insufficient regulation of guns impairs the liberties of all.

Protecting our freedom from fear does not mean that the government has complete authority to ban guns. To emphasize the amendments protections for security is not to abandon liberty. Rather, it is to recognize how excessive emphasis on the liberties of gun advocates undermines the many liberties of everyone else who seeks to live securely in a free state. The Second Amendment preserves a free state, not simply a security state.

When we Americans next hear that the Second Amendment protects a right against more effective regulation of weapons capable of imposing death on our neighbors, we should insist in response that the Second Amendment requires the opposite. It empowers a free people to regulate weapons as necessary to maintain their security and to protect their freedoms from fear and violence. We can be free, but only if we regulate gunsjust as the Second Amendment tells us.

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Don't Forget the First Half of the Second Amendment - The Atlantic

I miss the old ACLU.

You know the one I'm talking about: The American Civil Liberties Union that defended the First Amendment right of Nazis to march at Skokie, Illinois. The one that sided with homophobic pastor Fred Phelps and his church when it protested the funerals of dead American servicemen.

The ACLU's cases have sometimes involved terrible people with terrible causes saying terrible things. Nobody with good taste or decent morals and certainly no one on the left side of America's political spectrum would ordinarily choose to associate themselves with the infamous scoundrels and bigots the organization has occasionally aided over the years. Even so, it has usually been comforting to know that the ACLU is on the case. If Fred Phelps is protected by the Constitution, after all, then the rest of us are, too.

It's not always like that, anymore.

Oh, the ACLU still takes on free speech cases and unpopular clients: Last month it argued an appeals case on behalf of a high school student who made a Holocaust joke. "In doing so, we were only doing what we have always donedefending speech rights for all, even those with whom we disagree," David Cole, the group's national legal director, wrote recently in The Nation.

But reporting in recent years suggests the ACLU has drifted away from its moorings as the nation's premiere defender of the First Amendment, struggling instead to balance its commitment to free expression with progressive stances on behalf of racial and sexual minorities. That would reflect a growing notion on the left that perhaps the Trumpist Age of Disinformation has revealed the limits of unfettered expression as a democratic virtue.

The ACLU's old guard worries something is being lost. Take David Goldberger, the attorney who argued on behalf of the Skokie Nazis. "Liberals," he warned last year, "are leaving the First Amendment behind."

So it's interesting and maybe even encouraging to see another group step forward to claim the mantle. The Foundation for Individual Rights in Education (FIRE), a group that's waged free speech battles on university campuses around the country, announced this week that it is rebranding itself. FIRE is now the Foundation for Individual Rights and Expression, a name change that brings with it a broader mandate and a plan to spend $75 million over the next three years on free speech education and litigation.

"Once the ACLU backs off its traditional role, who else is there?" said Ira Glasser, who ran the organization for more than two decades and now sits on FIRE's advisory board. (Former ACLU president Nadine Strossen is also on FIRE's board.)

Let's backtrack a bit, and acknowledge that the progressive reconsideration of free speech is nothing if not understandable. The ACLU's own evolution was sparked by its 2017 efforts on behalf of neo-Nazis whose angry "Unite the Right" protests at Charlottesville culminated in the death of Heather Heyer and gave us then-President Donald Trump's ugly "very fine people on both sides" equivocation between the racist and anti-racist demonstrators. Maybe there's something to the idea that "First Amendment protections are disproportionately enjoyed by people of power and privilege," as one former ACLU staffer put it. And maybe there's something to the idea that the Internet-fueled explosion of lies and conspiracy theories means we're no longer competing in a "marketplace of ideas," but instead collectively being forced to slog through an exhausting swamp of falsehood. Even for its most committed adherents, there can be days when the First Amendment doesn't look so wonderful.

That's not the whole story, though.

Yes, the First Amendment protected the marchers at Skokie in 1978 but it was also a "crucial tool" for protesters during the Civil Rights Era. Maybe Westboro Baptist Church was protected in shouting its vile anti-gay slurs in public, but so were gay and lesbian demonstrations and newspapers that were the targets of would-be censors. In America, marginalized groups have been able to advance their cause because of our country's legal commitment to free speech.

"Especially for groups that are minorities, whether political dissidents or racial or other demographic minorities, (they) absolutely depend on robust free speech and are smothered by censorship," Strossen told me last year.

Indeed, the latest government-sponsored efforts to stifle speech the "Don't Say Gay" bill in Florida, any number of state bills intended to limit young people's access to books about racism and sexual identity are aimed directly at the the ability of those minority groups to tell their story. If those laws are defeated in court, it probably will happen because the First Amendment doesn't just protect people of power and privilege.

That makes free expression an idea worth continued defense by the progressives, even in these confusing and dangerous times. David Goldberger worries the left is leaving the First Amendment behind. It's not too late to come back.

Joel Mathis is a writer based in Lawrence, Kansas. His work has appeared in The Week, Philadelphia Magazine, the Kansas City Star, Vice and other publications. His honors include awards for best online commentary from the Online News Association and (twice) from the City and Regional Magazine Association.

The views expressed in this article are the writer's own.

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Is It Time to Set the First Amendment on FIRE? | Opinion - Newsweek

The US Supreme Court is poised to consider a question with seismic consequences for online speech. Over the past year, laws in Texas and Florida have set up a legal battle over whether the First Amendment protects social networks right to curate user-generated content or whether these sites should be treated more like phone companies, required to host nearly any speech their users post. The courts split reflects a deepening shift in how to interpret a basic constitutional right, filtered through a political culture war and backlash against large web platforms.

For years, sites like Facebook and YouTube have broadly assumed that moderation decisions are protected by the First Amendment. But, last month, the Fifth Circuit Court of Appeals made a surprise ruling over Texas HB 20, a law that bans large apps and websites from moderating content based on viewpoint. The court ruled against NetChoice and the Computer & Communications Industry Association (CCIA) and let the law go into effect, sending the groups scrambling to file an emergency Supreme Court petition. That petition was granted temporarily blocking the law but also offering a preview of a seemingly inevitable Supreme Court battle.

I would be surprised if the court doesnt take this up, says Ari Cohn, counsel at the libertarian-leaning nonprofit TechFreedom one of roughly 30 groups that supported the petition. The Fifth Circuit still hasnt decided on the laws merits, but it seems highly sympathetic to Texas reasoning. And that reasoning conflicts directly with a May ruling from the Eleventh Circuit Court of Appeals, which blocked Floridas similar law. Barring a sudden and massive shift, its almost inevitable this is going to create a circuit split and go up next term, says Cohn.

The central issue is whether the government can regulate how social networks sort and remove legal content. Opponents argue that curating posts and setting community standards involves private companies exercising a constitutional right to speak (or not speak, in the case of content bans). Supporters compare the sites to shopping malls or telephone networks, whose First Amendment rights are limited.

But both sides so far are leaning on old cases involving non-digital spaces and tech, and the Texas law in particular repurposes legal terms outside of even relatively recent judicial context. It designates social networks as utility-like common carriers, a label that federal rules explicitly avoid applying to internet service providers let alone websites. And it also bans viewpoint discrimination, a term the Supreme Court has used to describe unlawful government restrictions on speech but that Texas lawmakers have treated as synonymous with private companies moderating conservative content.

A Supreme Court ruling in favor of Texas could make that legal repurposing stick, and its implications would go far beyond Facebook banning former President Donald Trump. Democratic politicians have discussed punishing the spread of health misinformation or other harmful but legal speech. And, depending on how its written, the ruling wont necessarily just apply to the biggest social media companies. Even Texas law, which applies to services with 50 million monthly active users, would likely scoop up non-Big Tech sites like Yelp or Tumblr.

Texas and Florida politicians have also taken the unusual step of describing their bills as conservative weapons against the alleged liberal bias of tech companies. To Nora Benavidez, senior counsel at media advocacy group Free Press, that makes them a risky place even for good-faith debate over the First Amendment and makes any Supreme Court decision particularly fraught. This is not a great opportunity to talk about free speech, because this is not the way to appropriately regulate the First Amendment. There are ways that that can be done, Benavidez says. A states partisan interest in protecting certain speech is not one of those avenues.

Benavidez acknowledges real concerns around large social networks, which have tremendous power to shape speech online in some cases literally changing the way a generation talks. But a ruling that their community standards arent protected speech, she argues, would have catastrophic consequences. People who are supportive of HB 20 imagine that the law will help protect speech, she says. In reality, governments dictating what private actors can and cant do, and essentially picking and choosing speech that is acceptable, is a precursor in every country around the world to totalitarianism, authoritarianism, and the demise of democratic engagement.

For a hugely consequential law, however, HB 20 has moved between courts with a marked lack of explanation. The Fifth Circuit declined to offer a rationale for its decision, and the case flowed through the Supreme Courts shadow docket emergency petition system something NetChoice and the CCIA called a necessity after the Fifth Circuits abrupt decision but that resulted in only a short dissent from Justice Samuel Alito and no majority opinion.

This case has been anything but normal, says Cohn. There has definitely been a dearth of information from the majorities at every level except the district court level.

Thats left court watchers speculating about what last weeks 54 vote means. Its really hard to make predictions on the basis of the decision we have so far, because the majority didnt issue an opinion, says Alex Abdo, litigation director at the Knight First Amendment Institute at Columbia University. Alitos dissent, which was co-signed by the Republican-appointed justices Clarence Thomas and Neil Gorsuch, emphasized that he hadnt reached a conclusion on the law. Former President Barack Obama appointee Justice Elena Kagan voted against the decision without signing a move several experts suggested might be a protest against the controversial shadow docket itself but also said was still open to interpretation.

Columbia Law School professor Philip Hamburger, who filed one of the two legal briefs supporting HB 20, believes that this early vote simply doesnt say much about the laws prospects. Justice Alito hinted that the Supreme Court vacated the stay simply because the case is so important, he tells The Verge. It did not resolve the constitutional question.

CCIA president Matt Schruers contends that theres little ambiguity. I think we have five members of the federal judiciary who have made unmistakably clear their views, and theyre all aligned that a Fairness Doctrine for the internet is not constitutional. He also disagreed with the idea that courts havent spoken clearly on the law. We have gone three for three in federal court, he said referring to district court opinions in Texas and Florida plus the appeals court decision in Florida, all of which have largely rejected the states reasoning.

Other critics of the law arent as optimistic. I dont agree with every First Amendment argument the platforms are making, but the central argument they make that they have a right and their users have a right for the platforms to enforce community norms of their choosing is an incredibly important right for free speech online. And the three justices in the dissent seem ready to reject that argument, says Abdo. Justice Thomas in particular is a well-known proponent of some novel legal theories about internet law, and he seems likely to favor arguments for regulating social media.

Beyond the pressing question of whether sites can be required to carry certain content, the court could address more nuanced questions about what the First Amendment might protect. As Will Oremus of The Washington Post discusses, the Eleventh Circuit let parts of Floridas law stand, saying that limited regulation like transparency requirements doesnt necessarily violate speech rights. The Knight Institute in particular has praised that nuance, saying it properly rejects the platforms argument that the First Amendment insulates them from all regulation.

The recent court decisions are part of a political and cultural landscape where the First Amendments interpretation may be increasingly up for grabs. In a recent University of Chicago Law Review Online analysis, law professors Evelyn Douek and Genevieve Lakier noted that First Amendment politics are more complicated, uncertain, and, well, just plain weird than they have been in a long time partly because of things like the Fifth Circuits surprising decision and partly because of larger cultural and technological shifts.

Abdo compares the brewing Supreme Court showdown over speech to the past decades fights over digital privacy and surveillance culminating in decisions that set a promising precedent for a new era. Over the past 15 years, the Supreme Court has been called on to answer the question of how the Fourth Amendment applies in the digital age. What are our privacy rights in the digital age? Do Supreme Court precedents from the 1960s and 70s and 80s decide the question of state power to surveil in the 2000s? he says. The Supreme Court said emphatically, no technology has changed. The governments ability to surveil has changed. Peoples expectations of privacy have changed. And we have to answer these questions.

In a best-case scenario, Abdo believes that could happen here. I think we may be witnessing something similar in the First Amendment context that courts will have to analyze anew how the First Amendment ought to apply to new technologies, he says. And what I hope they will keep as their guiding point is whether their interpretation of the First Amendment ultimately serves the values that free speech is meant to serve.

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A Supreme Court speech showdown is coming, and nobody knows what to expect - The Verge