When private tech companies moderate speech online, is the government ultimately responsible for their choices? This appears to be the latest argument advanced by those criticizing Section 230 of the Telecommunications Act of 1996sometimes known as Section 230 of the Communications Decency Act. But upon closer scrutiny, this argument breaks down completely.

In a new Wall Street Journal op-ed, Philip Hamburger argues that the government, in working through private companies, is abridging the freedom of speech. Weve long respected Hamburger, a professor at Columbia Law School, as the staunchest critic of overreach by administrative agencies. Just last year, his organization (the New Civil Liberties Alliance) and ours (TechFreedom) filed a joint amicus brief to challenge such abuse. But the path proposed in Hamburgers op-ed would lead to a regime for coercing private companies to carry speech that is hateful or even downright dangerous. The storming of the U.S. Capitol should make clear once and for all why all major tech services ban hate speech, misinformation and talk of violence: Words can have serious consequencesin this case, five deaths, in addition to two subsequent suicides by Capitol police officers.

Hamburger claims that there is little if any federal appellate precedent upholding censorship by the big tech companies. But multiple courts have applied the First Amendment and Section 230 to protect content moderation, including against claims of unfairness or political bias. Hamburgers fundamental error is claiming that Section 230 gives websites a license to censor with impunity. Contrary to this popular misunderstanding, it is the First Amendmentnot Section 230which enables content moderation. Since 1998, the Supreme Court has repeatedly held that digital media enjoy the First Amendment rights as newspapers. When a state tried to impose fairness mandates on newspapers in 1974, forcing them to carry third-party speech, no degree of alleged consolidation of the power to inform the American people and shape public opinion in the newspaper business could persuade the Supreme Court to uphold such mandates. The court has upheld fairness mandates only for one mediumbroadcasting, in 1969and only because the government licenses use of publicly owned airwaves, a form of state action.

Websites have the same constitutional right as newspapers to choose whether or not to carry, publish or withdraw the expression of others. Section 230 did not create or modify that right. The law merely ensures that courts will quickly dismiss lawsuits that would have been dismissed anyway on First Amendment groundsbut with far less hassle, stress and expense. At the scale of the billions of pieces of content posted by users every day, that liability shield is essential to ensure that website owners arent forced to abandon their right to moderate content by a tsunami of meritless but costly litigation.

Hamburger focuses on Section 230(c)(2)(A), which states: No provider or user of an interactive computer service shall be held liable on account of ... any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected. But nearly all lawsuits based on content moderation are resolved under Section 230(c)(1), which protects websites and users from being held liable as the publisher of information provided by others. In the 1997 Zeran decision, the U.S. Court of Appeals for the Fourth Circuit concluded that this provision barred lawsuits seeking to hold a service provider liable for its exercise of a publishers traditional editorial functionssuch as deciding whether to publish, withdraw, postpone or alter content (emphasis added).

The Trump administration argued that these courts all misread the statute because their interpretation of 230(c)(1) has rendered 230(c)(2)(A) superfluous. But the courts have explained exactly how these two provisions operate differently and complement each other: 230(c)(1) protects websites only if they are not responsible, even in part, for the development of the content at issue. If, for example, they edit that content in ways that contribute to its illegality (say, deleting not in John is not a murderer), they lose their 230(c)(1) protection from suit. Because Congress aimed to remove all potential disincentives to moderate content, it included 230(c)(2)(A) as a belt-and-suspenders protection that would apply even in this situation. Hamburger neglects all of this and never grapples with what it means for 230(c)(1) to protect websites from being treated as the publisher of information created by others.

Hamburger makes another crucial error: He claims Section 230 has privatized censorship because 230(c)(2)(A) makes explicit that it is immunizing companies from liability for speech restrictions that would be unconstitutional if lawmakers themselves imposed them. But in February 2020, the U.S. Court of Appeals for the Ninth Circuit ruled that YouTube was not a state actor and therefore could not possibly have violated the First Amendment rights of the conservative YouTube channel Prager University by flagging some of its videos for restricted mode, which parents, schools and libraries can turn on to limit childrens access to sensitive topics.

Hamburger insists otherwise, alluding to the Supreme Courts 1946 decision in Marsh v. Alabama: The First Amendment protects Americans even in privately owned public forums, such as company towns. But in 2019, Justice Brett Kavanaugh, writing for all five conservative justices, noted that in order to be transformed into a state actor, a private entity must be performing a function that is traditionally and exclusively performed by the government: [M]erely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints. In fact, Marsh has been read very narrowly by the Supreme Court, which has declined to extend its holding on multiple occasions and certainly has never applied it to any media company.

Hamburger also claims that Big Tech companies are akin to common carriers. Hes right that the law ordinarily obliges common carriers to serve all customers on terms that are fair, reasonable and nondiscriminatory. But simply being wildly popular does not transform something into a common carrier service. Common carriage regulation protects consumers by ensuring that services that hold themselves out as serving all comers equally dont turn around and charge higher prices to certain users. Conservatives may claim thats akin to social media services saying theyre politically neutral when pressed by lawmakers at hearings, but the analogy doesnt work. Every social media service makes clear up front that access to the service is contingent on complying with community standards, and the website reserves the discretion to decide how to enforce those standardsas the U.S. Court of Appeals for the Eleventh Circuit noted recently in upholding the dismissal of a lawsuit by far-right personality Laura Loomer over her Twitter ban. In other words, social media are inherently edited services.

Consider the Federal Communications Commissions 2015 Open Internet Order, which classified broadband service as a common carrier service insofar as an internet service provider (ISP) promised connectivity to substantially all Internet endpoints. Kavanaugh, then an appellate judge, objected that this infringed the First Amendment rights of ISPs. Upholding the FCCs net neutrality rules, the U.S. Court of Appeals for the D.C. Circuit explained that the FCCs rules would not apply to an ISP holding itself out as providing something other than a neutral, indiscriminate pathwayi.e., an ISP making sufficiently clear to potential customers that it provides a filtered service involving the ISPs exercise of editorial intervention. Social media services make that abundantly clear. And while consumers reasonably expect that their broadband service will connect them to all lawful content, they also know that social media sites wont let you post everything you want.

Hamburger is on surer footing when commenting on federalism and constitutional originalism: [W]hen a statute regulating speech rests on the power to regulate commerce, there are constitutional dangers, and ambiguities in the statute should be read narrowly. But by now, his mistake should be obvious: Section 230 doesnt regulat[e] speech. In fact, it does the opposite: It says the government wont get involved in online speech and wont provide a means to sue websites for their refusal to host content.

Hamburger doubles down by claiming that Section 230 allows the government to set the censorship agenda. But neither immunity provision imposes any agenda at all; both leave it entirely to websites to decide what content to remove. Section 230(c)(1) does this by protecting all decisions made in the capacity of a publisher. Section 230(c)(2)(A) does this by providing an illustrative list of categories (obscene, lewd, lascivious, filthy, excessively violent, harassing) and then adding the intentionally broad catchall: or otherwise objectionable. Both are coextensive with the First Amendments protection of editorial discretion.

Hamburger argues for a narrow reading of 230(c)(2)(A), which would exclude moderating content for any reason that does not fall into one of those categories or because of its viewpoint. He claims that this will allow state legislatures to adopt civil-rights statutes protecting freedom of speech from the tech companies. And he reminds readers about the dangers of the government co-opting private actors to suppress free speech: Some Southern sheriffs, long ago, used to assure Klansmen that they would face no repercussions for suppressing the speech of civil-rights marchers. This analogy fails for many reasons, especially that those sheriffs flouted laws requiring them to prosecute those Klansmen. That is markedly and obviously different from content moderation, which is protected by the First Amendment.

Ironically, Hamburgers proposal would require the government take the side of those spreading hate and falsehoods online. Under his narrow interpretation of Section 230, the law would not protect the removal of Holocaust denial, use of racial epithets or the vast expanse of speech thatwhile constitutionally protectedisnt anything Hamburger, or any decent person, would allow in his own living room. Nor, for example, would it protect removal of hate speech about Christians or any other religious group. Websites would bear the expense and hassle of fighting lawsuits over moderating content that did not fit squarely into the categories mentioned in 230(c)(2)(A).

Perversely, the law would favor certain kinds of content moderation decisions over others, protecting websites from lawsuits over removing pornography or profanity, but not from litigation over moderating false claims about election results or vaccines or conspiracy theories about, say, Jewish space lasers or Satanist pedophile cannibal cults. But if Hamburgers argument is that Section 230 unconstitutionally encourages private actors to do what the government could not, how does favoring moderation of some types of constitutionally protected speech over others address this complaint? This solution makes sense only if the real criticism isnt of the idea of content moderation, or its constitutionality, but rather that social media platforms arent moderating content according to the critics preferences.

Hamburger is a constitutional originalist, and he invokes the Framers understandings of the First Amendment: Originally, the Constitutions broadest protection for free expression lay in Congresss limited power. But theres nothing remotely originalist about his conclusion. His reading of Section 230 would turn Congress shall make no law... into a way for the government to pressure private media to carry the most odious speech imaginable.

Continue reading here:

The Wall Street Journal Misreads Section 230 and the First Amendment - Lawfare

Letters

If I read one more letter to the editor claiming that social medias squelching of the former presidents (in my opinion) lies, fraud, bogus conspiracy theories and downright dangerous posts are somehow signaling the death knell of the First Amendment, I am going to scream. The First Amendment applies, by its face and by relevant case decisions, to governmental agencies. The Supreme Court has also held that the First Amendment does not allow speech that incites imminent lawless action.

More to the point, anyone who would take the time to actually read the First Amendment can see it begins, Congress shall make no law Facebook is not a government agency. Nor are Instagram, Twitter, nor most of the other seemingly billions of social media sites. They can, and do, set their policies for what may be posted. As long as those policies do not run afoul of some important civil rights (say, banning people because of their race or some other class protected by law), they have fairly wide latitude in how to set those rules. They could, for example, ban off-color language, nudity, etc. Conservative viewpoints are not protected discrimination classes, just as liberal views, false claims and nutjob conspiracy theories are not.

So, before we begin mourning the death of the First Amendment, you might want to read it. Its medical charts would show its not only not dying, its not even sick.

Tom Pacher

Whidbey Island

See the rest here:

First Amendment is alive and well | HeraldNet.com - The Daily Herald

In a famous dissent written 102 years ago, Supreme Court Justice Oliver Wendell Holmesissued his clarion callfor a vigorous First Amendment based on the free marketplace of ideas. But his epic fighting faiths passage ended with this caveat: I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

An imminent threat of immediate interference with the law thats a good description of the Trump-infused insurrection at the Capitol in January. We all have a First Amendment right to speak and to assemble and to protest for the causes that animate us. We all have a right to take to the streets to express ourselves so long as we are peaceful and follow the law. The government cannot prosecute or otherwise punish us for these actions. Everyone from Black Lives Matter protesters to white supremacists has this right. Police officers do, too.

But none of the individual freedoms enshrined in the Bill of Rights come to us without limitations. We cannot use our words to defraud our neighbors or extort our rivals. We cannot use our words to plot a murder or conspire to rob a bank or to incite violence.

And in the case of police officers and the First Amendment, the limitations go even further when it comes to whether they can both express certain views and be cops. The Supreme Court has long held that public employees (like police officers) have narrower free speech rights than the rest of us in certain circumstances. In other words, as Holmeswrote in 1892when he was on the Massachusetts Supreme Court, a cop has a constitutional right to talk politics but no constitutional right to be a cop.

Off-duty officers had the right to go to Washington to take part in the Trump rally on January 6 designed to stoke insurrection and pressure lawmakers to overturn the results of the free and fair presidential election. But the rest of us have the right, indeed the obligation, to evaluate what the exercise of that right by those cops says about their professional judgment, their temperament to be peace officers, and their commitment to upholding the law in the future based on the objective realities of the world. Some of these cops will lose their jobs because they took part in a Trump rallyquariot fueled by worthless evidence of election fraud and big lies.

We dont yet know how many police officers attended the Trump rally that turned into a deadly riot. TheWashington Posttwo weeks agoreported the countwas at least 13, but the number is surely much higher. We know that line officers went to the Capitol to, at a minimum, protest the results of the election and we know thatsheriffs did, too. We know that some already have beensuspended or charged. And we know that their first line of defense after being caught has been to wrap themselves in the First Amendment and say they were merely exercising their rights as private citizens.

Its also possible that some of the police officers who participated in the Trump rally-turned-riot are fired for their roles in the insurrection (whether they are prosecuted or not). Some already have been. And its possible that some will then turn around and sue their departments for retaliation by arguing that they were unconstitutionally dismissed for exercising free speech rights. Those lawsuits will likely turn on how judges apply alegal balancing testthat weighs the officers right to speak versus their employers right to have a police department that doesnt include in its ranks conspiracy theorists who embrace baseless allegations that are used to foment insurrection.

That narrative has spread across the nation, even as we learn more about the extent to whichcops were involvedon January 6. We are making clear that they have First Amendment rights like all Americans, Houston Police Chief Art Acevedosaid last weekwhen he accepted the resignation of an 18-year veteran of the department who was involved in the Capitol riot. However, engaging in activity that crosses the line into criminal conduct will not be tolerated. The problem is that Acevedos first sentence is simply not true. Even when they are off-duty, case law tells us that police officers dont have the same First Amendment rights as civilians.

The original rule (sometimes called the Pickering/Connick test to identify the cases which spawned it) comes from two Supreme Court rulings issued nearly a generation apart, in 1968 and 1983, that define First Amendment protections for public employees i.e., those working for the government. Judges mustbalancethe interests that police officers have in expressing themselves on political issues against the interests that police departments (and frankly the rest of us) have in being confident that cops can do their jobs effectively and fairly.

In a2006case, the Supreme Court explained some of its rationale for limiting a public employees free speech protections. In that case, about a prosecutor in Los Angeles who blew the whistle on poor police work and was fired for it, Justice Anthony Kennedy wrote, Without a significant degree of control over its employees words and actions, a government employer would have little chance to provide public services efficiently. Thus, a government entity has broader discretion to restrict speech when it acts in its employer role, but the restrictions it imposes must be directed at speech that has some potential to affect its operations. (citations omitted)

The courts have long recognized that public employees have a First Amendment right to participate in public debates on important matters. However, government employers may punish employees whose speech, even outside of work, compromises their ability to do their job, Ben Wizner, director of the ACLUs Speech, Privacy, and Technology Project, told me via email. Although each case has to be decided on its own facts, courts have upheld discipline or termination of police officers, who are armed agents of the state, for making statements in their personal capacity that undermine their ability to maintain the trust of the community they serve.

Let me offer a hypothetical that I think fairly illustrates the issue in the context of the Capitol riot. Pretend for a moment that you are a police chief. A body is found in your town. An investigation ensues. Half the town believes the death is a natural one. Half the town thinks its murder. The evidence is collected. It becomes clear beyond all reasonable doubt that the death was a natural one. Scores of judges, of all ideological stripes, say so. So do the witnesses with direct knowledge of what happened to the victim. With no axe to grind, with no agenda other than to tell the truth, one by one they testify that there was no murder.

In spite of all of this, a local cop refuses to believe the evidence before him. Refuses to respect the rulings of all those judges or the testimony of all those witnesses. So skeptical of objective truths, so unwilling to appreciate the evidence he can see with his own eyes, hes remarkably not skeptical of the conspiracy theories that tell him the victim was murdered. The judges are in on the scam, this cop believes, and so are the witnesses. The murder was part of a crime so elaborate it involves countless co-conspirators and a level of coordination that beggars belief. No matter, the cop says, he knows what he knows. It was murder.

The cop doesnt just indulge in this fantasy in his own mind or in his private life. He doesnt just spread his views at his local bar or a neighbors barbeque. He actively participates in the fantasy, he broadens and strengthens it, by joining with countless other like-minded conspiracy theorists who travel to Washington to take part in a rally centered around the idea that the victim was murdered. And not just a demonstration in support of that lie but also the dangerous proposition that the people who are saying otherwise that is, the people whose view of the world is rooted in objective evidence should be torn from office or killed.

The cop returns home and finds himself criticized for taking part in the event. So he says he was merely participating in protected speech as a private citizen. He says he had no idea a political rally would turn violent. What is his boss supposed to do about that? Heres a cop who has shown a propensity for ignoring evidence, who has disrespected judicial rulings, and embraced conspiracy theories with alarming gullibility. Heres a cop who makes common cause with an angry mob. What do these things say about his ability to separate fact from fiction on his job? What do they say about his ability to synthesize facts and evidence in a routine criminal investigation? Should a jury trust this cops credibility on the witness stand?

These are precisely the sorts of considerations the Supreme Court says judges must weigh in evaluating the First Amendment claims of police officers who are fired for off-duty behavior. Assuming the police officers who attended the rally were engaging in lawful speech and not illegal conduct, does that political speech affect public perceptions of the law enforcement agency? Does it undermine the relationship between the speaker and his fellow officers? Does it impede the ability of the department to recruit officers, or generate hostile media coverage? The cops who traveled to Washington to support baseless election fraud claims wont be able to avoid these questions if they want to prevail with their lawsuits.

For me, the answers to these questions are self-evident. There should be a presumption of disqualification for any law enforcement officer who went to the Trump rally, whether they participated in the subsequent storming of the Capitol or not. A cop who believedtwo months after the electionthat it had been stolen by Joe Biden should be required to explain under oath why he or she deserves to continue to be a peace officer. A cop who believed that countless state elections officials, and federal and state judges, were part of a vast conspiracy to defeat Trump must explain why he ever should be able to investigate a crime or testify under oath as a credible witness for the state.

These journeys to Washington for Trumps rally were not spur-of-the-moment decisions. They were planned. At every step along the way the participants could have opted out, could have said to themselves that as peace officers they would not march for a cause based so obviously on a series of partisan lies. You can bet that federal prosecutors will be making a form of this argument if and when the criminal trials against the alleged Capitol rioters proceed. You can also bet that attorneys representing police departments will be making the argument too to defend against retaliation lawsuits by fired cops.

These employment retaliation cases are so fact-specific its hard to discern patterns. But there is lower court precedent, too. The U.S. Court of Appeals for the Fifth Circuit in 2015 ruled in favor of city officials who fired a police officer for posting comments on Facebook that were critical of her bosses. Susan Graziosi was speaking as a public employee, the judges concluded, but was not speaking on a matter of public concern because her complaints focused on internal police matters. But the court then concluded that even if Grazioisi were speaking out on a public matter (as our seditionist cops surely were) she still would have lost her employment lawsuit because police officials have a strong interest in preventing insubordination.

And its unclear how the current Supreme Court will look at these issues. It is much more conservative than it was in 2006 when Justice Kennedy helped narrow the free speech rights of public employees. And it is certainly more conservative than it was in 1968 when the it first articulated the legal test that lower court judges must apply in these cases. Its also unclear, at least now, how hard police union officials will fight for the rights of these cops who are charged with federal crimes for their roles in an event that led to the death of one Capitol Police officer and injuries to scores more.

David Hudson, an expert on free speech at the First Amendment Center, disagrees with me. He told me, echoing Wizner, that punishing officers for merely attending the Trump rally, regardless of the conspiratorial theories that led them there, would be an impermissible infringement on those officers constitutional rights. Police officers should not be dismissed generally because of their political beliefs or association with particular viewpoints or such, Hudson told me. That said, any police officers who engage in unlawful conduct or rioting should be subject to discipline. Police officers are held to a higher standard and must be positive examples. They are there to protect and service, not disrupt and riot.

But the cases involving insurrectionist copswho participated in the Capitol riotwill be easy to resolve. Cops who broke the law should and will be fired and they will lose their retaliation claims if they bring them. The closer question is the one I am posing: where the officer merely attended the January 6 rally to promote unfounded election fraud theories in the hope of overturning the election. When police officers exercise their First Amendment rights by revealing themselves to be persistently hostile to verifiable facts, they are telling the rest of us a great deal about the judgment they bring to their work. They are saying they no longer deserve to be taken seriously as credible officers of the court.

Hudson, the free speech advocate, says that the law does and should allow a cop to believe in and act on conspiracy theories and still carry a badge so long as his conduct is lawful and appropriate. That the law recognizes that the same mind could sustain the fantasy that Donald Trump won the 2020 presidential election and also maintain the capacity for the reasoned judgment necessary to carry out the duties of a law enforcement official and that the former doesnt infect the latter. Tell that to the victim who wants her crime solved quickly and correctly or to the defendant in the dock waiting for that conspiratorialist, insurrectionist cop to testify against him.

The views expressed are the authors own and not necessarily those of the Brennan Center.

Here is the original post:

Police Officers, Insurrection Day, and the First Amendment - brennancenter.org

The Republican reaction to Twitters decision to permanently ban former President Donald Trump is emblematic of todays Republican Party: hypocritical and purposefully misleading. Claiming that its unconstitutional for Twitter, a private company, to ban Trump from their platform grossly misinterprets what the First Amendment says plainly: Congress shall make no law abridging the freedom of speech.

The key word in the First Amendment that often gets overlooked is Congress. The First Amendment is supposed to protect us the people from the government. It is not meant to protect us from the social consequences that may arise because of our speech. It is not possible for private companies to violate the First Amendment.

Republicans, while claiming to be the party of the Constitution, are lying to the American people some of whom now believe that a private company is liable under the First Amendment. This goes beyond Twitter banning Trump.

Simon & Schuster, a publishing company, announced it was canceling Sen. Josh Hawleys, R-Mo., book publication for his role in the attempt to overturn the election results. Hawley responded by saying that the situation was a direct assault on the First Amendment.

Hawley is a constitutional lawyer who clerked for U.S. Supreme Court Chief Justice John Roberts. He knows that a private company cannot assault the First Amendment. Hawley, Trump and other Republicans who are well-versed in the true meaning of the First Amendment are exploiting the political polarization of today to give themselves more political power at the expense of the United States and its citizens.

Simon & Schuster and Twitter as well as the other social media companies that deplatformed Trump are not government entities, and thus cannot be held accountable under the First Amendment. Trump broke its terms of service, giving Twitter every right to ban him and preventing a viable lawsuit from taking place. Hawley engaged in behavior that Simon & Schuster didnt want associated with their brand. The Constitution does not guarantee Americans a right to a Twitter account or a book deal.

Rather than a disagreement over policy or values, American political discourse has transcended to disagreement over fact perpetuated by purposeful lies. Republicans are telling their voters, and all Americans, things that are simply not true.

The most prominent lie is that President Joe Biden is not the rightful president and that Trump lost due to rampant voter fraud, which led to an insurrection at the Capitol in January and continues to threaten our democracy. One solution is to prevent the spread of this dangerous information through sources that anyone can access, like social media sites. These platforms play a central role in our daily lives, which necessitates their proactivity rather than retroactivity.

Twitter was right to ban Trump. He has been tweeting falsehoods for months, which dramatically increased in number and destructiveness since the election in November culminating when he was removed from Twitter after the events in January. But while the actions taken by social media companies to ban Trump and purge other misinformation from their sites was the right action to take, it is possible that beginning to take serious action against misinformation in 2021 is too little, too late.

The repercussions of waiting to curtail the spread of misinformation could have serious consequences all over the world. German Chancellor Angela Merkel and Russian opposition leader Alexey Navalny have both expressed concern about free speech in the wake of a private company banning such a prominent figure in world politics. Their arguments have merit and demonstrate how dangerous it was for tech companies to allow misinformation on their platforms for such long periods of time in the first place.

There are several actions that the government or the companies themselves can take to show they are trying to prevent lies from being spread on these platforms. People have called for the tech companies to be more transparent in their actions, such as setting up a committee to make decisions about banning users and flagging tweets with clear standards that they adhere to.

Others, such as Sen. Elizabeth Warren, D-Mass., want tech companies to be broken up. Another option is to change Section 230 of the Communications Decency Act, a piece of internet legislation that provides protections for interactive computer services, saying that they cannot be treated as publishers of third-party content.

It would be difficult to change the minds of people who firmly believe in the misinformation perpetuated by Trump and the Republican Party. But something can still be done to prevent more people from thinking these lies or something even worse are true.

Twitter banning Trump and taking a more proactive step in combating misinformation on its platform is a first step, but we need more concrete action to be taken either by these companies themselves, or by the U.S. government.

Lydia Storella can be reached at storella@umich.edu.

The COVID-19 pandemic has thrown challenges at all of us including The Michigan Daily but that hasnt stopped our staff. Were committed to reporting on the issues that matter most to the community where we live, learn and work. Your donations keep our journalism free and independent. You can support our work here.

For a weekly roundup of the best stories from The Michigan Daily, sign up for our newsletter here.

See original here:

Opinion | Twitter and the First Amendment - The Michigan Daily

The Buckeye Institute

The Buckeye Institute has filed a complaint on behalf of Barbara Kolkowski, who objects to being forced to accept union representation and decisions made by union arbitrators in a contract dispute particularly given that she is not a member of said union. This case was filed in the Ashtabula County Court of Common Pleas.

Even though Ms. Kolkowski is not a member of the union, she is being forced to have a union representative speak for her. This unlawful arrangement contravenes the well-established First Amendment rights of public-sector employees and plainly violates Ohio statute, said Jay Carson, senior litigator with The Buckeye Institutes Legal Center and Ms. Kolkowskis lawyer.

Ohios collective bargaining statute guarantees certain rights to all public-sector employees, among which is the right to present grievances and to have them adjusted without the intervention of the union, Carson said.

Kolkowski is a high school guidance counselor in Ashtabula. When a dispute arose regarding payment under a supplemental contract, Kolkowski pursued remedies through the contractual grievance process, and as required by her districts collective bargaining agreement requested that the union submit her grievance to arbitration. Because she is not a member of the union, Kolkowski also requested that she be able to hire her own private attorney at her own expense in order to pursue her claim in the arbitration proceedings, rather than relying upon a representative chosen by the union of which she is not a member.

The union refused her request and denied Kolkowski her right to associate with and speak through her own counsel.

Read the rest here:

The Buckeye Institute files First Amendment case on behalf of Ohio guidance counselor - The Highland County Press

WASHINGTON, Feb. 1, 2021 /PRNewswire/ --As an organization dedicated to defending civil rights, the Women's Liberation Front (WoLF) commends The University of Wisconsin Law School (UW Law) in its decision to uphold the First Amendment by refusing to discriminate against organizations with diverse viewpoints.

WoLF chose to participate in the school's Public Interest Interview Program because of UW Law's long tradition of public service and the "Law-in-Action" approach to legal education, which teaches future attorneys how to navigate the real-world complexities of the law. This tradition aligns with WoLF's mission to advance and restore the rights of women and girls, combat the global epidemic of male violence, and resist the harms of an expanding sex industry.

In response to a statement by the student organization QLaw, the UW Law statement of support reflects our shared value of defending civil liberties, even when disagreements arise. While publicly funded institutions are legally required to uphold the First Amendment, UW Law's statement demonstrates courage in the face of a toxic intolerance pervasive within University and college campuses.

WoLF's defense of hard-fought single-sex spaces, sports, and services serves the public interest of the women and girls of Wisconsin. As 2020 national polling showed, the majority of Americans in states as different as Idaho and California agree that single-sex spaces for women and girls should be protected. Just last month, a Wisconsin court ordered the Department of Corrections to transfer a man convicted of repeatedly raping his ten-year-old daughter to the women's prison, since he now identifies as a woman. The vulnerable women in state custody, who are disproportionately women of color, will soon be housed in close confinement with a dangerous sex offender.

While organizations like QLaw may find this acceptable, WoLF stands with UW Law in the recognition that public interest organizations have the freedom to speak out against such policies and must not be discriminated against for doing so.

UW Law's commitment to protecting civil liberties affirms why WoLF chose to partner through its Public Interest Interview Program. We look forward to interviewing a diverse range of qualified candidates as well as working with UW Law to build up the next generation of lawyers with a steadfast dedication to freedom for allincluding women.

Natasha ChartWoLF Executive Director

Learn more about WoLF's work:https://www.womensliberationfront.org/our-work

For media inquiries please contact:[emailprotected]

SOURCE Women's Liberation Front

https://www.womensliberationfront.org

Read more:

Women's Liberation Front Commends The University of Wisconsin Law School for Upholding First Amendment Protections - PRNewswire

Out of a series of five proposed ballot initiatives that would revamp Colorado's direct democracy process, the Title Board on Wednesday signed off on two, finding that they satisfied the constitutional requirement to adhere to a single subject.

The measures from John Ebel of Lone Tree and Donald L. "Chip" Creager III of Denver were variations on the "Petition Rights Amendment," which would legalize ballot initiatives at most units of state and local government, alter the process for putting initiatives before voters and limit the ability of the legislature to shield laws from referendum, among other features.

In 1996 and 2006, the Petition Rights Amendment appeared on the ballot, where Coloradans voted it down. Proponents attempted multiple times to shepherd the policy through the Title Board in the 2020 election cycle, and are trying again this year. Heading into this week's hearing, a previous version, Initiative #6, is before the state Supreme Court after the Title Board rejected it for containing multiple subjects.

At issue was the initiative's attempt to repeal sections of the constitution using a statutory, not constitutional, amendment. Board members determined that this new style of changing the constitution was a second subject; Ebel and Creager argued to the Supreme Court that "The board is confused."

In the latest set of measures, Initiatives #8 through #12, the board rejected one for similar reasons: instead of outright repealing constitutional provisions, the language indicated that the relevant sections simply "shall not apply to petitions."

"While stated differently, it does have the effect of amending the constitution because it says it shall not apply," observed board chair Theresa Conley, the representative of Secretary of State Jena Griswold. "It is changing how the constitution applies."

The three-member board did agree to set a ballot title for two versions, Initiatives #10 and #11, which, instead of outright nullifying language in the constitution, stated: "This statute is an alternative to the existing petition process."

Proponents would have an option of standards to go by. So this alternative just provides a simpler path forward for proponents who seek to get an initiative on the ballot," Ebel explained.

Although board members expressed slight confusion about the logistics of such a provision, they ultimately agreed there was no conflict with the single-subject requirement, which is the board's primary responsibility.

The board also quickly rejected Initiative #12, which provided that "Any repeal or change to any part of this statute violates the First Amendment, United States Constitution Bill of Rights, and section 24 of Article II, Colorado Constitution Bill of Rights."

Jason Gelender, representing the Office of Legislative Legal Services, believed there were additional subjects arising from the elimination of judicial oversight and the inability of voters to amend the law.

The people themselves couldnt even change this amendment without violating the First Amendment," he said.

Ebel and Creager agreed to only attempt to bring one of the approved measures forward to the statewide ballot. If no party asks the Title Board for a reconsideration of its actions, proponents will be eligible to collect signatures.

View original post here:

Title Board approves, rejects multiple versions of 'Petition Rights Amendment' - coloradopolitics.com

That's it. That's the entirety of our Constitution's First Amendment, the central tenet of our American way of life that gets dragged out every time someone's banned from Twitter.

There's a lot going on in those few sentences, and it's important to know when and how it applies to common situations -- and, equally as important, when it doesn't.

Let's look at some common First Amendment arguments, illuminated and debunked by constitutional experts.

This is not a First Amendment issue, though plenty of people think it is.

This scenario illustrates one of the biggest misconceptions people have about the First Amendment. Bottom line: It protects you from the government punishing or censoring or oppressing your speech. It doesn't apply to private organizations, like Twitter and Facebook, so those companies can ban speech the First Amendment would otherwise protect.

However, while it's not unconstitutional, if private platforms outright ban certain types of protected speech, it sets an uncomfortable precedent for the values of free speech.

If you work for a private company, it's probably not a First Amendment issue.

As citizens, employees have the right to express themselves and exercise their First Amendment. But those rights don't translate to the private workplace, Gutterman says.

If you're a government employee, it's complicated.

Institutions like police departments, public schools and local government branches can't restrict employee's free speech rights, but they do need to assure that such speech doesn't keep the employee from doing their job, Nott says. It's definitely a balancing act, and the rise of social media has made it harder for such institutions to regulate their employee's speech in a constitutional manner.

If it's a private institution, it's probably not a First Amendment issue.

If it's a public institution, the lines can get blurry.

"If you invite someone to speak on your campus and are a public university, you have to respect their First Amendment rights," Nott says. That doesn't mean you can't put regulations on a speech, like dictating the time, place, venue and suggestions for subject matter. It just means you can't do so in a way that discriminates against a certain point of view.

If students protesting play a hand in moving or canceling a speaker, that presents a different free speech challenge.

"If a speaker were to take legal action for being blocked from speaking, they can't do it against the students. You can't take constitutional action against a group of private citizens," she adds.

Such a complaint would have to go against the school, for allowing the constitutional breach to happen.

Definitely a First Amendment issue.

But, like pretty much everything in law, there are exceptions and nuances.

"It's definitely unconstitutional, unless you are trying to incite people to violence with your speech," Nott says. Even then, it needs to be a true threat -- one that has immediacy and some sort of actual intent.

It's a private company, so it's not a First Amendment issue.

There's that refrain again: Private companies, like social media sites, can do whatever they want. Users agree to a site's terms of service when they join.

But whether blocking content -- even offensive or violent content -- is within the spirit of free speech is another issue, Gutterman says.

"That says, if you are an internet company and you have some way for people to post or leave comments, you are not liable for what they do," Nott says. This covers things like obscenity, violence and threats.

The problem is, this protection often butts up against the enforcement of basic community standards.

"Facebook is under enormous pressure to take down, not just violent and illegal content, but fake news," Nott says. "And the more it starts to play editor for its own site, the more likely it is to lose that Section 230 protection."

A First Amendment issue -- usually.

You are fully within your rights to record the police doing their job in public. And if you get arrested while doing so, your constitutional rights are being violated.

This is, unless you were doing something unlawful at the time of your arrest.

In a heated situation with police, that can also become a gray area. Physical assault or threats could obviously get you arrested, but what about if you were just yelling at the police while recording, say, to get them to stop an act or to pay attention?

"That's tough," Nott says. "If you were disturbing the peace, you can get arrested for that, or for other things. But the bottom line is it's not a crime to record police activities in a public space."

A version of this story was first published in 2017.

Original post:

The First Amendment doesn't guarantee you the rights you think it does - CNN

WASHINGTON When Simon & Schuster canceled its plans this week to publish Senator Josh Hawleys book, he called the action a direct assault on the First Amendment.

And when Twitter permanently banned President Trumps account on Friday, his family and his supporters said similar things. We are living Orwells 1984, Donald Trump Jr. said on Twitter. Free-speech no longer exists in America.

The companies decisions may have been unwise, scholars who study the First Amendment said, but they were perfectly lawful. That is because the First Amendment prohibits government censorship and does not apply to decisions made by private businesses.

It is certainly possible to violate the values embodied in the First Amendment without violating the First Amendment itself. But the basic legal question could hardly be more straightforward, said RonNell Andersen Jones, a law professor at the University of Utah. And, she said, it should not have been lost on Mr. Hawley, who graduated from Yale Law School and served as a law clerk to Chief Justice John G. Roberts Jr.

Its become popular even among those who plainly know better to label all matters restricting anyones speech as a First Amendment issue, she said. But the First Amendment limits only government actors, and neither a social media company nor a book publisher is the government. Indeed, they enjoy their own First Amendment rights not to have the government require them to associate with speech when they prefer not to do so.

But many in the legal community were nonetheless uneasy about the developments, which underscored the enormous power of a handful of social media companies that are largely insulated from accountability and may change positions on what speech is acceptable as executives come and go.

I want a wide range of ideas, even those I loathe, to be heard, and I think Twitter especially holds a concerning degree of power over public discourse, said Gregory P. Magarian, a law professor at Washington University in St. Louis.

But Professor Magarian said the president and Mr. Hawley were in particularly poor positions to complain.

The First Amendment doesnt require any private forum to publish anyones speech, he said. Neither Twitter nor Simon & Schuster has any obligations under the First Amendment. He added: Any suggestion that people like Trump and Hawley, and the viewpoints they espouse, will ever lack meaningful access to public attention is ludicrous. We should worry about private power over speech, but presidents and senators are the last speakers we need to worry about.

The American Civil Liberties Union, too, said the free speech interests involved in suspending Mr. Trumps Twitter account were complicated.

We understand the desire to permanently suspend him now, but it should concern everyone when companies like Facebook and Twitter wield the unchecked power to remove people from platforms that have become indispensable for the speech of billions, said Kate Ruane, an A.C.L.U. lawyer. President Trump can turn to his press team or Fox News to communicate with the public, but others like the many Black, brown and L.G.B.T.Q. activists who have been censored by social media companies will not have that luxury.

Mr. Hawleys book, titled The Tyranny of Big Tech, was to have been published in June. In canceling it, Simon & Schuster said that it will always be our mission to amplify a variety of voices and viewpoints but that Mr. Hawley had crossed a line in light of the disturbing, deadly insurrection that took place on Wednesday in Washington.

We take seriously our larger public responsibility as citizens, the company said, and cannot support Senator Hawley after his role in what became a dangerous threat to our democracy and freedom.

The publisher was free to make that decision, legal experts said, but that does not mean it was the right one.

As it happens, the Supreme Court may decide as soon as Monday whether to hear a case about Mr. Trumps Twitter account, one that nicely illustrates some of the distinctions raised by the recent developments. Lower courts have ruled that Mr. Trump violated the First Amendment by blocking users from his account.

Since Mr. Trump is a government official who used the account to conduct official business, a unanimous three-judge panel of the United States Court of Appeals for the Second Circuit, in New York, ruled in 2019 that the account was a public forum from which he was powerless to exclude people based on their viewpoints.

We conclude that the evidence of the official nature of the account is overwhelming, Judge Barrington D. Parker wrote for the court. We also conclude that once the president has chosen a platform and opened up its interactive space to millions of users and participants, he may not selectively exclude those whose views he disagrees with.

Had the account been private, Judge Parker wrote, Mr. Trump could have blocked whomever he wanted. (For instance, the user who observed that the same guy who doesnt proofread his Twitter handles the nuclear button.)

But since he used the account in his official role as a government official, he was subject to the First Amendment, which prohibits discrimination based on viewpoints.

Jameel Jaffer, the executive director at the Knight First Amendment Institute at Columbia University, which sued Mr. Trump over his handling of his account, explained the distinction.

We sued the president, not Twitter, and this makes all the difference, legally, he said. Government actors have to comply with the First Amendment, but private corporations dont.

As a result, Mr. Jaffer said, the president cant block people from his social media accounts based on their political views, but Twitter can ban people from its platform for pretty much whatever reasons it wants to. Reasonable people can disagree about whether Twitter was right to ban Trump, but theres no question it was legally entitled to do it.

Internet platforms should voluntarily embrace First Amendment values, he said, and generally allow citizens to assess the statements of politicians for themselves. But there are limits, he said, and incitement to violence is among them.

To take an account down in these circumstances is not an affront to free speech, as some have suggested, Mr. Jaffer said. To the contrary, its the responsible exercise of a First Amendment right.

Twitters permanent suspension of Mr. Trump may make the pending case moot, leaving Supreme Court jurisprudence in this area a work in progress.

In 2017, for instance, the court considered the constitutionality of a North Carolina law that barred registered sex offenders from using Facebook, Twitter and similar services in Packingham v. North Carolina. When the case was argued, the justices discussed just how thoroughly social media had transformed American civic discourse.

Justice Elena Kagan said that Mr. Trump, every governor and every member of Congress had Twitter accounts.

So this has become a crucially important channel of political communication, she said. And a person couldnt go onto those sites and find out what these members of our government are thinking or saying or doing.

Justice Samuel A. Alito Jr. said, a little incredulously, I know there are people who think that life is not possible without Twitter and Facebook.

In the end, the court unanimously struck down the law, though the justices could not agree on a rationale. Writing for the majority in his characteristically cryptic manner, Justice Anthony M. Kennedy, who retired in 2018, said the internet was poised to transform First Amendment jurisprudence.

While we now may be coming to the realization that the cyberage is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves and define who we want to be, he wrote. The forces and directions of the internet are so new, so protean and so far-reaching that courts must be conscious that what they say today might be obsolete tomorrow.

See the rest here:

Trump's Suspended Twitter, Hawley's Canceled Book and the First Amendment - The New York Times

Perry White was one of my favorite newspaper editors. No, not Clark Kents boss at the Daily Planet.

This Perry White edited the Watertown Daily Times. In New York. The state, not the city. Its a great family-owned newspaper that was once the smallest in the nation to have a D.C. bureau, a distinction now held by this very newspaper.

Perry flew to Spokane to visit us and check out the paper a couple of years ago, and we were friends ever since. He died this summer and it hit me way harder than I thought it might. Moments like that make you remember things you didnt understand meant so much to you, some of them so simple.

Like the time I posted a photo of my undershirt on Facebook which I do more than you probably want to know, but its also not what it might seem and Perry immediately commented on it. These T-shirts have messages on them. Sometimes slogans. Sometimes team mascots. Sometimes how I feel that day. And sometimes things that show what I stand for.

Best shirt you own. It was all he said. He was right.

Its a comfy red shirt with the First Amendment on the front in that old handwriting that so many of us equate with the pictures weve seen of the original Bill of Rights. It matters for obvious reasons, so much so that a copy of that same text hangs in my office and theres even a steel version of it thats often tucked in my wallet.

This metal-detector loving version lets me discuss the Fourth Amendment with anyone else in the security line at the Spokane International Airport who might feel like talking about constitutional law.

What can I say? I love and respect all of the amendments, not just one. Or two. Even when Im standing shoeless in front of a TSA agent who clearly doesnt have a sense of humor.

Theres a reason why our nations founders made this particular one the first of our Constitutions amendments. Its because it would lay down what they felt were the five essential freedoms that would make the United States of America the freest country in the world. The rights they deemed so important to protect for its new citizens were religion, speech, press, assembly and petition.

We all know that. But its also clear that many of us dont exactly understand it.

With all of the events of, lets say, the last three or four days or so, maybe its time for a quick civics lesson especially since so many people have been talking about censorship and saying the First Amendment had been violated when certain social media accounts began to disappear Friday.

It will be like a refresher course, only we can use real-world examples. And well do it without putting on any pants as we read the morning newspaper.

To quote Inigo Montoya, the most passionate character from one of my favorite movies of all time: You keep using that word. I do not think it means what you think it means.

Well, this isnt really one word. Its 45 words strung together as a single sentence with enough punctuation and random capitalization to drive a newspapers copydesk to the brink.

Pay close attention to the first five words of the First Amendment. Thats where a very important point is going to be made early in this granddaddy of run-on sentences:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Did you catch how it all began?

Those opening words are very specific that government cannot violate any of those rights, including personal censorship, but they also dont apply to businesses or life, in general. They apply to the laws that can and cannot be written.

In case youre wondering, this is exactly why a newspaper not running your letter does not violate your First Amendment rights. Newspapers in the United States are not controlled by the government in any way for the same reason.

However, we arent really looking for reasons not to run your letter. Do you have any idea how hard it is to fill this many pages every day? Just keep it relatively civil, stick to the word count and follow the timeline guidelines, and were almost certainly running it.

In regards to Freedom of Speech, you absolutely have the right to say what you want. Its protected by the law of the land.

But the First Amendment does not shield people from the consequences of those words.

And we all know that.

That consequences part is a lesson most of us learned back in the second grade when we stood up in class and loudly said the principal is a big weenie who dresses funny. That speech was totally protected by the Bill of Rights. But the loss of recess for a week wasnt because the government was punishing us. It was because Mrs. Voldemort cant take a joke.

We all know that if we run through the aisles of our favorite grocery stores behaving in a way that violates that stores policies and weve been asked to stop, we can be asked to leave. Because its private property, that is completely within that stores rights.

Unless you didnt know they could bar you from ever shopping there again for doing something they told you not to do and Im not saying some of you might have done this, because we all know you forgot your mask in the car Im just saying, why even jeopardize not being able to go to their bakery again? Delicious.

Well, if you didnt know that, now you do.

This brings us to all of the things that have happened since the last time you read the Sunday newspaper.

Not that Im getting too specific here, but all of this means when someones social media accounts are disabled or their lucrative book contract is canceled, no constitutionally ensured rights have been impeded on. Thats a relief, right?

Still, theres something else thats been bugging me related to the First Amendment that clearly we should clarify. Please notice the word peaceably in front of the part that references protests. (Of course, our nations founders referred to this as assemble because they talked kinda weird back in 1789. Amirite?)

When youre laying out how you think an entire country oughta run, and youre only using 45 words, every word counts. And peaceably is a biggie in this one.

We should go into that in more detail later, but being completely honest, the courts are going to deal with that and they all look much better in a robe than I do, so maybe we let them explain it. Plus, we all know what the word peaceably means, right?

You know, this little civics review just gave me another goofy idea. Maybe next week, we all can take the new test that must be passed to become a U.S. citizen!

Though Ive looked at it, and spoiler alert we arent even coming close to passing this thing. Its nuts. Seriously, we dont have a prayer of a chance. Not in a month of Sundays.

So maybe thats a terrible idea. I apologize.

Seems like most of us probably should have paid more attention in our high school government/civics classes. Though Im not really that sure it would have mattered. This test is impossible like trying to properly pronounce Gonzaga if youre a television broadcaster. The questions on this new U.S. citizenship test are incredibly obscure.

Only a few people might know such trivial detail.

Like Ken Jennings. He could pass it. Possibly, a newspaper editor. Ill call one on Monday and ask.

Heres another idea: Maybe we all could study together for this test! Well, not actually together, because of all of this COVID stuff, but we could study at the same time! Study buddies!

My guess is there will be lots of little things just like all of this First Amendment stuff we just talked about that dont match up with what others have told you to be true. Interestingly enough, the government has chosen for this citizenship test to be based upon real facts, not alternative facts.

What if starting next week, we began to go through the questions on that test? Maybe we can even talk more about the Bill of Rights. It could be like the civics class we didnt pay attention to when we were younger, only now, were all adults, so we know how important it is to understand things that have a huge bearing on our lives.

Like how our democracy works. Or how to run that damn new air fryer we got for Christmas.

We should come up with a cool name for this new weekly study group that will run in our Sunday newspaper until we all feel like we understand what being a responsible citizen is. It should have the kind of name that would look good on a shirt.

You know, like something my friend Perry would have said something to me about on Facebook. Miss you, buddy.

Here is the original post:

Rob Curley: The First Amendment doesn't necessarily mean what you think, so here's how it really works - The Spokesman-Review