But could this cancellation violate Hawleys contract? Well, the contract hasnt been made public, but as Irecently experienced withmy own book deal, book contracts generally give the publisher great leeway. It could be that Simon &Schuster gets to walk away but Hawley gets to keep his advance, or there could be some other previously agreedupon arrangement. Theres certainly achance that the publisher is breaching the contractit may have determined that it would lose money if it published the book, meaning that this is what lawandeconomics scholars call an efficient breachin which case it owes Hawley liquidated damages as set out in the contract or under generally accepted principles of contract law. Either way, the First Amendment isnt at issue.

Finally, though, theres anonlegal issue at play: the idea that large corporations, cultural and otherwise, are canceling conservatives (and libertarians) in various ways. Indeed, such censorship byFacebook,GoogleandTwitteris the very subject of Hawleys book. The extent to which this phenomenon is real or concerning depends alot on specific facts. Surely, if it had turned out that an author was aneoNazi Holocaust denieror aKlan member, or aStalinistfew would object to deplatforming him. So this is largely adebate about the Overton window of appropriate public discourse and policing what Ive previously calledthe SatanScherbatsky line.

Its certainly troubling that, for example,The New York Times publication of anopedby Senator Tom Cotton (R-AR) on how best to quell last summers rioting caused the opinion editor to lose his job, while the Gray Lady publishes regular apologies for Communist regimes (as recently aslast Monday). And there are indeed woke mobs out there, most notably on social media, even if that choice of words was unfortunate in light of the actual mob that Hawley fistpumped last Wednesday.

These are real cultural pathologies that our society must grapple with. But that doesnt mean theres arole for government to fix these issuesand theyre certainly not First Amendment violations.

Read more:

The Cancellation of Josh Hawley's Book Deal Isn't a First Amendment Issue - Cato Institute

In an interesting recent post, co-blogger Josh Blackman and Seth Barrett Tillman argue that President Trump cannot be impeached and convicted for his role in inciting the riot at the Capitol because he was engaging in First Amendment-protected speech. Their argument is clever, but fundamentally wrong. And for a very simple reason: the First Amendment doesn't protect high-ranking government officials from being removed from office because of their speech.

For present purposes, I assume Blackman and Tillman are right to conclude that Trump's speech is the sort protected under the current First Amendment doctrine, and that it would be unconstitutional to impose criminal or civil penalties on him for it. I actually think they may well be right on that point. But it is irrelevant in a context where the relevant penalty is removal from a high position of government powerand possible exclusion from future office-holding.

Under current Supreme Court precedent, lower-level non-policymaking government employees have at least some significant protection against being being fired because of their views or their political speech. But the Court has also made clear, in various rulings, that higher-level policymaking employees whose political views are relevant to the performance of their duties enjoy no such protection. Indeed, high-ranking government officials get fired because of their political speech all the time. Donald Trump himself has fired numerous cabinet officials and other subordinates because they expressed views he didn't like (Secretary of Defense Mark Esper was a notable recent example).

The exact dividing line between a policymaking employee whose views are relevant to his or her job and a lower-level official who enjoys First Amendment protection against firing is hard to specify. But it's pretty obvious that the president falls on the former side of the divide. If anyone is a high-level government with enormous policymaking discretion whose views are relevant to job performance, it is the president of the United States!

If First Amendment-protected speech could never be grounds for impeachment and removal of the president, it would lead to absurd and dangerous results. Consider a scenario like the following:

The President of the United States makes a speech in which he he avows his desire to "do everything I legally can to promote fascism." He then exhorts his supporters (who are known to include violent elements) to "fight like Hell to establish Fascism, and if you don't fight like Hell, you're not going to have a country anymore." In the aftermath of that speech, neo-Nazi and white supremacist supporters of the president attack a government building, with numerous resulting injuries and loss of life.

Everything in the above hypothetical speech is protected by the First Amendment. It is actually very similar to Trump's speech just before the recent riot, quoted by Blackman and Tillman (I have deliberately adapted some of Trump's language). The only significant difference is the addition of the references to fascism. And that difference doesn't matter for First Amendment purposes. Indeed, Brandenburg v. Ohio, the classic 1969 case cited by Blackman and Tillman, involved inflammatory remarks by a neo-Nazi KKK leader. A fascist or a Klansman cannot be fined or imprisoned for expressing his awful political views, nor could he be discriminated against in the provision of government benefits, such as welfare payments or educational loans.

Nonetheless, Congress would have good reason to impeach and remove a president who actively advocated and promoted fascism, incited fascist violence, and otherwise sought to replace our constitutional system with a fascist one. And that would be true even if the speech involved was of the kind generally protected by the First Amendment and his actions did not violate the letter of federal law.

Using the powers of the presidency to promote fascismeven legal powerswould be an abuse of power, and a menace to the constitutional order. The same goes for using the "bully pulpit" of the presidency for the same purpose, especially if it resulted in foreseeable violence.

What is true of presidential promotion of fascism is also true of Trump's repeated justifications and promotion of violence by his supporters, going all the way back to the 2016 campaign. All or most of it may well be protected against criminal and civil sanctions by the First Amendment. But it is still an abuse of the power of the presidency, and still grounds for impeachment and removal.

The same reasoning applies to Trump's recent effort to pressure the Georgia Secretary of State into fraudulently altering the vote count in his state, the other potential ground for impeachment currently under consideration by House Democrats [see Update #2 below]. Trump's actions in that instance may have violated federal and state law. But if not, his statements there were protected by the First Amendment, in the sense that he could not be subject to criminal or civil sanctions. Even so, pressuring government officials to engage in election fraud is an abuse of presidential power worthy of impeachment.

The obvious response to this argument is that it might lead to a slippery slope where Congress might impeach and remove presidents merely for expressing views they disapprove of. My critique of Josh Blackman's similar slippery slope argument against the first impeachment of Trump applies here as well:

Every president has partisan adversaries who who would be happy to "get him" if they can. Nonetheless, slippery slope fears about impeachment are misplaced. If anything, there is much more reason to fear that presidents who richly deserve to be removed will get away with serious abuses of power.

The biggest reason why we need not worry much about frivolous impeachment and removal is that removal requires a two-thirds supermajority in the Senate, as well as a majority in the House of Representatives to impeach. The former is almost always impossible to achieve unless many senators from the president's own party vote to convict him. They are highly unlikely to do so for frivolous reasons. [Prominent conservative legal scholar] Michael Paulsen expounds on this and some other constraints on abusive impeachment in greater detail here.

Ultimately, the real danger we face is not that too many good presidents will be removed from power unfairly, but that too many grave abuses of power will go unpunished and undeterred. I am not optimistic that impeachment alone can solve this problem. The supermajority requirement that prevents frivolous impeachment also prevents it in all too many cases where it is amply justified. But the threat of impeachment for abuse of power can at least help at the margin.

Let presidentseven "good" oneslose more sleep over the possibility of impeachment. The rest of us will then be able to sleep a little easier, knowing we are that much more secure against abuses of government power.

I made additional relevant points in this post, where I explained why the occasional potentially unfair impeachment and removal of a "normal" president is a price well-worth paying in order to get rid of dangerous menaces like Trumpand deter future presidents from imitating them.

The First Amendment issue isn't the only possible objection to impeaching Trump. I myself have noted that there might be valid prudential reasons to forego a second impeachment if it looks like it might actually redound to Trump's benefit.

I will likely have more to say about the other issues involved in this impeachment effort in future posts. In this one, I just wanted to address Blackman and Tillman's First Amendment theory.

UPDATE: I wrote this post before seeing Jonathan Adler's insightful response to Blackman and Tillman, which makes similar points to mine. I would add that, I too agree that the president may be impeached for abuses of power that do not qualify as violations of specific criminal or civil laws. For helpful summaries of the relevant historical evidence on that point, see recent analyses by Gene Healy of the Cato Institute, Keith Whittington, and prominent conservative legal scholar Michael Stokes Paulsen (here, here, and here).

UPDATE #2: The draft Article of Impeachment currently being circulated by some House members combines Trump's role in the Capitol attack and his call to the Georgia Secretary of State into a single count.

UPDATE #3: In the original version of this post, I accidentally referred to former Secretary of Defense Mark Esper, as "Mike Esper." I apologize for the error, which I have corrected.

See more here:

The First Amendment Doesn't Protect Trump Against Impeachment for his Role in Inciting the Assault on the Capitol - Reason

January 11, 2021 10:35 pm

LINCOLN, Neb. (KLKN-TV) As social media platforms like Twitter and Facebook continue to monitor and even suspend some of their users, its brought up an important topic of freedom of speech.

While The First Amendment can often be viewed as broad, thats essentially not the case when it comes to private companies.

The First Amendment, is it prevents government from restricting peoples speech. It does not prevent private individuals or private companies from restricting peoples speech, UNL Political Science Professor, Dr. John Gruhl, said.

It comes down to the terms of use everyone agrees to when they sign up for these platforms.

Those terms of service provide, essentially no protection to the user from being blocked or suspended, UNL Associate Professor of Law, Kyle Langvardt, said.

Due to the fact businesses like Twitter, Facebook, Instagram and Parler are privately owned companies, they have the right to monitor or even silence what they view as harmful or a threat.

Part of the reason that weve been able to have rules that are that protective of the freedom of speech, is that speech has just traditionally moved more slowly. We havent had this viral dynamic where its so easy for speech to lead to real world consequences, Langvardt said.

Landgvardt said with the increasing use of social media and the consequences that come with it, he wouldnt be surprised if soon, the government did step in to help regulate the rules of these platforms. However, even in that sense, it could be a tricky situation on how much control the government would have.

When it comes down to it, both Dr. Gruhl and Langvardt said when it comes to not agreeing with the terms of service on a platform, there isnt much a user can do legally other than leave the site.

Excerpt from:

Experts weigh in on the role social media platforms play in your First Amendment rights - KLKN

The Defense Department is taking heat for describing the recent attempted insurrection on Capitol Hill as First Amendment Protests in Washington D.C.

On Friday, the Pentagon released a timeline of how the National Guard was activated for and responded to the Jan. 6 riots, during which a pro-Trump mob attempted to recreate the 1917 Bolshevik revolution by storming Congress.

Five people died as a result of the terrorist attack on Congress, including Ashli Babbitt, an Air Force veteran who was shot and killed by police, and Brian Sicknick, a Capitol Police Officer and veteran of the New Jersey Air National Guard who died after reportedly being hit by a fire extinguisher.

Some people noted on Twitter that the Pentagon described the attempted putsch as First Amendment Protests a much milder description of the mayhem than when former Defense Secretary Mark Esper urged State officials this summer to dominate the battlespace in response to protests that erupted around the country over the death of George Floyd at the hands of Minneapolis police officers.

Jim Golby, a senior fellow at the Clements Center for National Security at University of Texas, Austin, tweeted that the Pentagons description of the riots was, Sickening and politically tone-deaf from the Office of the Secretary of Defense.

However, a defense official told Task & Purpose on Sunday that the Pentagon had simply used the same verbiage that came from a Dec. 31 memo from the Washington, D.C., city government to the head of the D.C. National Guard that requested help for Jan. 6.

Last week, Washington, D.C. Mayor Muriel Bowsers office provided Task & Purpose with a copy of a similar Dec. 31 letter to the commander of the D.C. National Guard that describes the upcoming event as First Amendment demonstrations permitted by the National Park Service.

Bowsers office could not be immediately reached for comment.

The assault on Capitol Hill was incited by outgoing President Donald Trump, who had waged an effort for weeks to pressure lawmakers and other officials to reverse the outcome of the presidential election.

Twitter decided to ban Trump on Jan. 8, in part because it had discovered plans for another assault on capitol buildings that was planned for Jan. 17.

UPDATE: This story was updated on Jan. 10 to make clear that the Dec. 31 letter from Mayor Bowsers office was similar to the memo referenced by the defense official.

Featured image: In this Jan. 6, 2021, file photo, Trump supporters gesture to U.S. Capitol Police in the hallway outside of the Senate chamber at the Capitol in Washington. (AP Photo/Manuel Balce Ceneta, File).

More:

Here's why DoD described the Capitol Hill riots as 'First Amendment Protests' - Task & Purpose

The Week

President Trump and House Minority Leader Kevin McCarthy (R-Calif.) had a "tense, 30-minute-plus phone call" Monday morning, during which Trump ranted about election fraud and McCarthy cut him off, saying: "Stop it. It's over. The election is over," Axios reported Monday night, citing a White House official and another source familiar with the call.Trump also tried to deflect responsibility for his role in inciting a deadly siege on the U.S. Capitol last Wednesday, telling McCarthy "antifa people" were responsible for the violence, Axios reports. McCarthy reportedly shot back: "It's not Antifa, it's MAGA. I know. I was there." Conservative cable news and other media has tried to pin the blame for the insurrection on leftist groups, antifa specifically, though there's clear and documented evidence the violence was perpetrated by Trump supporters, QAnon conspiracists, and far-right militia groups.McCarthy also told his House GOP caucus on Monday that there is "indisputably" no evidence of antifa involvement in the Capitol siege, Axios reported, adding that as he tries "to navigate how to bridge the factions within the party," McCarthy "is treading carefully by telling members Trump is partially to blame for what happened without condemning him outright."McCarthy told House Republicans on the two-hour call that Trump accepts some responsibility for the siege, too, Politico reports, citing four GOP sources on the call. Trump has not publicly taken any responsibility for the assault, even though he urged the supporters to march to the Capitol and fight for him. Emotions are "still running high in the conference," with many GOP members blaming McCarthy and his top lieutenant, Rep. Steve Scalise (R-La.), for going along with the 120 House Republicans who continued challenging President-elect Joe Biden's win even after the riots, Politico says.One freshman Republican, Rep. Nancy Mace (S.C.) said on the call she's "disappointed" that "QAnon conspiracy theorists" are not only leading the party, but also led the objections after members of Congress had to walk by a crime scene to get back to work Wednesday night, Politico reports. And Rep. Jaime Herrera Beutler (R-Wash.), one of a handful of House Republicans weighing voting to impeach Trump, slammed Rep. Lauren Boebert (R-Colo.) for tweeting House Speaker Nancy Pelosi's (D-Calf.) location during the siege, putting all members at risk. Boebert raised hackles on the call by suggesting Capitol Police had been involved in the siege, Politico says.More stories from theweek.com What 'Blue Lives Matter' was always about The Democrats' false choice on impeachment What Mike Pence should learn from Judas

See the original post here:

Social media and the First Amendment - Yahoo News

2020 is the challenging year that just wont go away, however much we wish it would, as many current issues over First Amendment freedoms flop over into the new year.

In the broad realm of freedom of speech, theres little doubt debate will continue in the new Congress around the tangential First Amendment controversy over legal protections for companies hosting content on the web aka Section 230 of the 1996 Communications Decency Act.

The law largely removes liability from companies for user-posted content on their sites. While not directly a First Amendment issue, the fight does have major implications for users free speech on the web, as we know it today, as well for as social media companies rights.

President Donald J. Trump and conservatives claim the provision is being used to hide partisan discrimination by major technology companies against right-wing voices. Liberal critics say the law removes incentives for such online operations to seriously fight misinformation.

Advocates for keeping the law as is say that without it, social media companies would face a myriad of potential lawsuits and thus dramatically limit what users can freely post on sites like Facebook, Twitter, YouTube, WhatsApp and Instagram. No company will be able moderate the webs current traffic, they say, estimated by multiple sources at 500,000 hours of user video uploaded to YouTube, 188 million emails and 18 million texts every minute.

Controversy will also continue surrounding the First Amendments two least-known freedoms petition and assembly as multiple state legislatures consider increasing criminal and civil penalties for demonstrators who block streets or sidewalks or simply participate in events where, at some point, a violent act occurs.

Critics of the proposals, many of which have been introduced over the past five years, say their real motives are the stifling of dissenting or minority views, though advocates claim the new provisions are rooted in legitimate law and order concerns about violence and property damages.

In the area of religious liberty, the U.S. Supreme Court is expected to rule this spring on Fulton v. City of Philadelphia, involving both the First Amendments free exercise and establishment clauses. In the case, a religious-backed foster care agency is challenging a city decision to cancel a contract because the agency refused to provide services to married same-sex couples, citing religious grounds.

There is no doubt that as COVID-19 pandemic restrictions on public gatherings continue into the new year, so will legal challenges rooted in the First Amendments protection of religious liberty.

There are some new First Amendment issues for 2021 as a result of the incoming Biden administration, though even here, many are tinged by actions or views from the Trump years.

A top concern for free-press advocates is the potential for the Supreme Courts new conservative majority to review the 1963 New York Times v. Sullivan decision, which provided wide protection from defamation claims by government officials and other public figures if actual error was inadvertent or not caused by reckless disregard for the truth.

A longstanding target of press critics and Trump, the decision is rooted in the theory that such protection is needed to foster the widest possible debate on public issues. Trump and others claim the decision makes it virtually impossible for officials and public figures to successfully repair deliberate damage to their reputations and that it gives journalists free license to report so-called fake news.

Of concern for some is the potential return to Obama-era regulations reversed by Trump that were aimed at combatting sexual harassment on college campuses, which critics said stepped on free-speech protections, particularly where online comments were deemed to be sexual in nature.

The Supreme Court is expected to decide in January whether to hear an appeal of a decision by the U.S. Court of Appeals for the Third Circuit that public school authorities may not punish student speech made away from school grounds. Other circuits have made differing decisions.

Some First Amendment experts also are concerned the incoming administration may be open to reducing or eliminating the First Amendment protections for what some deem hate speech or speech demeaning to women or minority religious groups. At present, such speech generally is protected, with some arguing that in addition to a core right to voice ones own views, it is necessary to hear such speech to effectively argue against it.

Free-press supporters are already calling on President-elect Joe Biden to actively repudiate the Trump claim that mainstream news media are the enemy of the people, with some calling for new legislation to aid financially ailing local news operations seen by some as counterintuitive for a free press along with an international-U.S. effort to support free-press principles and journalists globally.

Welcome to the First Amendment in 2021 with its echoes of 2020s year of pandemic, protest and presidential-political turmoil.

Gene Policinski is a senior fellow for the First Amendment at the Freedom Forum, and president and chief operating officer of the Freedom Forum Institute. He can be reached at gpolicinski@freedomforum.org, or follow him on Twitter at @genefac.

We are making critical coverage of the coronavirus available for free. Please consider subscribing so we can continue to bring you the latest news and information on this developing story.

Here is the original post:

First Amendment issues won't go away in 2021 - Sunbury Daily Item

30 December 2020

Foley Hoag LLP

To print this article, all you need is to be registered or login on Mondaq.com.

The First Circuit's recent opinion in Project Veritas Action Fund v. Rollins, upheld a challengeto the Massachusetts anti-wiretap law, Mass. Gen. Laws ch. 272, 99, carving out an exceptionfor certain activity protected by the FirstAmendment. The opinion begins:

Massachusetts, like other states concerned about the threat toprivacy that commercially available electronic eavesdroppingdevices pose, makes it a crime to record another person'swords secretly and without consent. But, unlike other concernedstates, Massachusetts does not recognize any exceptions based onwhether that person has an expectation of privacy in what isrecorded. See Mass. Gen. Laws ch. 272, 99 (Section99). As a result, Massachusetts makes it as much a crime fora civic-minded observer to use a smartphone to record from a safedistance what is said during a police officer's mistreatmentof a civilian in a city park as it is for a revengeseeker to hide atape recorder under the table at a private home to capture aconversation with an ex-spouse. The categorical and sweeping natureof Section 99 gives rise to the important questions under the FirstAmendment to the United States Constitution that the challengesthat underlie the consolidated appeals before us present.

Section 99 violates the First Amendment by prohibiting thesecret, nonconsensual audio recording of police officersdischarging their official duties in public spaces. We also affirmthe District Court's order dismissing Project Veritas'sFirst Amendment overbreadth challenge for failing to state a claimon which relief may be granted.

The 72-page opinion has a lengthy description of the origins ofSection 99 and is worth reading for that alone. On the merits, theFirst Circuit equated unauthorized recording to more traditionalforms of newsgathering:

a citizen's audio recording of on-duty policeofficers' treatment of civilians in public spaces whilecarrying out their official duties, even when conducted without anofficer's knowledge, can constitute newsgathering every bitas much as a credentialed reporter's after-the-fact effortsto ascertain what had transpired.

However, the court declined to invalidate all of Section 99under First Amendment overbreadth concepts.

Originally Published by Foley Hoag, December 2020

To view Foley Hoag's Security, Privacy and The LawBlog please click here

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

POPULAR ARTICLES ON: Privacy from United States

Schwabe Williamson & Wyatt

The COVID-19 outbreak has forced much of the world to shelter in place. As a result, the things we used to leave our homes to dowork, go to school, gather with friends and family, exercise...

Excerpt from:

First Circuit Creates Exception To Massachusetts Wiretap Statute Based On First Amendment Rights, Allows Citizens And Press To Record Police Activity...

Over on social media, far-right Virginia State Senator Bill DeSteph (R) is busy claiming that he has prevailed in his efforts to compel the General Assemblys Democrat [sic] majority leadership to provide office space for in-person, public access to legislators. DeSteph further claims that [t]his is a huge victory for the First Amendment and for open access to government for all Virginians. DeStephs argument is that the decision to close the Pocahontas Building was a clear violation of the First Amendment and communicated an eagerness by Senator Locke, Speaker Filler-Corn, and the Northam Administration to shut out public input in the legislative process.

The big question, of course, is whether ANY of this is true. Sadly, given DeStephs track record over the years see Hes Just a Genie in a BottleVirginia State Sen. Bill DeSteph (R) Wore Costume with Rub Me Lamp Protruding from Crotch, Bad on all sorts of levels GOP Sen. Bill DeSteph sparks backlash over another conflict of interest , Virginia State Sen. Bill Rub Me Lamp DeSteph (R) Shared Video by Anti-Muslim Activist on His Official Facebook Page, Bill DeSteph: Muslems Build Mosques to Represent Islamic Supremacy Over Their Enemy, etc. its hard to give him the benefit of the doubt. And in this case, thats the case yet again. For starters, check out the following (click to enlarge) from Susan Clarke Schaar, Clerk of the Senate, emailed yesterday:

Following the hearing in Federal court yesterday it was determined that to ensure the health and safety of the constituents of Virginia, essential legislative staff and members the Pocahontas Building and the Capitol will remain closed for the 202[1] session. T[h]e buildings will only be open to current members and credentialed legislative staff.

The Clerk of the House and I will explore possibilities of space in close proximity to the Pocahontas Building or the Science Museum that would afford meeting space for members to meet with their constituents. A reservation system will be set to reserve rooms. A member may reserve a room for one hour. No more than ten people may be in the meeting with themember and EVERYONE must wear a mask or face shield. Failure to follow these guidelines will result in loss of the meeting space privilege.

Hmmmdoes that sound like what DeSteph was saying? Nope, didnt think so. Also, see below for one-page ruling by the U.S. District Court for the Eastern District of Virginia, which says:

For the reasons stated during the on-the-record call with counsel on December 30, 2020, the Court hereby DENIES Plaintiffs Motion (ECF No. 10). Additionally, for the reasons stated during the call, the Court FINDS that Plaintiffs proposed witnesses Dr. Roxann Robinson, David LaRock, Meg Graham and Carrie Coyner are precluded from testifying during the hearing on December 31, 2020.

In short, Clerks agreed to find space for State Senators to meet with groups smaller than 10 at the Science Museum and/or near the Pocahontas Building, as long as everyone wears masks. Sen. DeSteph wanted the Pocahontas Building opened; the judge said NO. Finally, as you can see below in the Amended Joint Stipulation of Facts:

Soyeah, DeSteph claimed that he achieved a huge victory for the First Amendment and for open access to government for all Virginians. Exceptnope, he definitely did NOT do any of that, given that the Court hereby DENIES Plaintiffs Motion. But whatever, details detailsLOL.

UPDATE Saturday 1 pm Im informed that DeStephs lawsuit was tossed, but also that the order I posted which was sent to me by an attorney isnt the one that shows that what DeStephs saying is NOT what the court order says. If and when I receive the actual order that denies DeStephs request to reopen the Pocahontas Building, Ill post it here.

Visit link:

Far-Right VA State Senator Claims huge victory for the First Amendment and for open access to government for all Virginians. Except That the Court...

from the double-tapping-Glik dept

More than a decade ago, Simon Glik was arrested by Boston police officers for the "crime" of recording them in public. This was made possible by a law passed in the mid-60s, which turned Massachusetts into a "two-party" recording state. Unless the person doing the recording has the consent of the person being recorded, it's a violation of the state's wiretap law.

Glik successfully challenged this law, securing an Appeals Court ruling that stated the law was unconstitutional as applied to the recording of police officers in public places. This didn't immediately end the bogus arrests. Five years later, the government was taken to court again for enforcing this law in a way the Appeals Court said it couldn't. Also along for the ride was James O'Keefe's "Project Veritas," which argued the law was unconstitutional when applied to any public official in nearly any setting.

The federal court said the Glik decision applied to the recording of police officers, whether surreptitious or not. It pointed out the Boston Police Department had issued new guidance based on the Glik decision, but falsely portrayed acceptable recordings as limited to those cops knew were happening. Not so, said the court. Even surreptitious recordings of cops in public spaces are protected by the First Amendment. It didn't come to the same conclusion about Project Veritas' arguments, finding the law was not overbroad when it applied some minimal restrictions to recording public officials.

The Commonwealth still wants to abuse its bad law. It appealed this decision, sending it to the same court that had found its application of the law to the recording of cops unconstitutional nearly a decade ago. The First Circuit Court of Appeals says [PDF] the government's arguments are no better nine years later. Surreptitious recordings of police officers performing their public duties does not interfere with their work. Citizens are under no obligation to tell police officers they're being recorded. The government's interpretation of the law would just provide cover for misconduct.

Because the recording here will not be done in plain sight or with the actual knowledge of the officers whose words will be recorded, they will not even be aware that such recording is occurring. For that reason, they will not be on specific notice of a need to take precautions to ensure that words that they do not wish to have recorded are not. But, insofar as the mere prospect of being recorded leads officers to feel the need to refrain from uttering words or engaging in actions that would constitute misconduct, it hardly interferes with their capacity to perform their official duties.

Citizens deserve transparency and accountability. And if law enforcement agencies aren't willing to provide that on their own, citizens have the Constitutional right to gather information about police activities.

Accordingly, we conclude that the statute's outright ban on such secret recording is not narrowly tailored to further the government's important interest in preventing interference with police doing their jobs and thereby protecting the public. [...]

Rather, despite a record that does little to show how secret, nonconsensual audio recording of police officers doing their jobs in public interferes with their mission, Section 99 broadly prohibits such recording, notwithstanding the myriad circumstances in which it may play a critical role in informing the public about how the police are conducting themselves, whether by documenting their heroism, dispelling claims of their misconduct, or facilitating the public's ability to hold them to account for their wrongdoing.

The Commonwealth also raised the argument that people interacting with police might be recorded without their consent. Again, the court points out there's minimal expectation of privacy in conversations with cops in public areas. While some citizens may not want to be recorded, talking to officers in the earshot of other members of the public is hardly a private conversation. And the precedent cited by the DA is completely off base.

In pressing this point, the District Attorney contends that special attention must be paid to the fact that "when a recording is made surreptitiously, the person being recorded unwittingly becomes a captive." She supports this argument by invoking the Supreme Court's captive-audience cases.

[...]

But, the captive-audience line of authority concerns restrictions on expression that the government may impose to protect persons from being subjected to speech they wish to avoid. The risk of being subjected to unwanted speech, of course, is not a concern here. Moreover, the only individuals who will be recorded by the Martin Plaintiffs are those in public spaces who are within earshot of police officers and choose to speak. Thus, we do not see how -- across the board -- the proposed secret recording results in "substantial privacy interests . . . being invaded in an essentially intolerable manner."

Project Veritas' case, however, fails to move the court. Veritas wanted the law invalidated in its entirety, claiming it deterred it from recording public officials and those interacting with public officials without limitation. But the examples it provided of speech is was being "deterred" from engaging in was far more limited than the relief it sought.

Project Veritas alleged in connection with this challenge that it seeks to record "government officials who are discharging their duties at or around the State House in Boston and other public spaces" in hopes of learning those officials' unvarnished thoughts about "immigration policy and deportation"; "to capture whether antifa public events and protests are peaceful, whether police or other public officials interactions with antifa members are non-violent," and to otherwise report on those events; and that its "journalists would have attended" "a large public event" related to "the ongoing PVA 'antifa' investigation" but for Section 99.

Thus, Project Veritas gives no indication that it intends to investigate any and every type of civil servant, no matter their function or place in the governmental hierarchy. But, if we take Project Veritas at its word and construe the term "government officials" as broadly as "officials and civil servants," that category covers everyone from an elected official to a public school teacher to a city park maintenance worker.

The court says it's not willing to completely upend the law when narrower reading might both serve the First Amendment and the state's governmental interests. This plaintiff asks the court to consider all recordings equal. The court says that's not realistic.

The concern that this disconnect renders this dispute hypothetical and abstract rather than real and concrete is compounded by the fact that the First Amendment analysis might be appreciably affected by the type of government official who would be recorded. It is hardly clear that a restriction on the recording of a mayor's speech in a public park gives rise to the same First Amendment concerns as a restriction on the recording of a grammar school teacher interacting with her students in that same locale while on a field trip or public works employees conversing while tending to a city park's grounds.

Veritas' case will go back to the court for some additional exploration -- but only if, given a third chance to write a complaint, the activist group actually finds something worthy of discussion by the court. But the ruling here is clear: recording cops in Massachusetts isn't a crime, no matter how much Massachusetts wishes it would be.

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Filed Under: 1st amendment, 1st circuit, civil rights, free speech, massachusetts, recording police, simon glik

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First Circuit Appeals Court Reaffirms Its 2011 Decision: The First Amendment Protects The Recording Of Cops - Techdirt

2020 is the challenging year that just wont go away, however much we wish it would, as many current issues over First Amendment freedoms flop over into the new year.

In the broad realm of freedom of speech, theres little doubt debate will continue in the new Congress around the tangential First Amendment controversy over legal protections for companies hosting content on the web aka Section 230 of the 1996 Communications Decency Act.

The law largely removes liability from companies for user-posted content on their sites. While not directly a First Amendment issue, the fight does have major implications for users free speech on the web, as we know it today, as well for as social media companies rights.

President Donald J. Trump and conservatives claim the provision is being used to hide partisan discrimination by major technology companies against right-wing voices. Liberal critics say the law removes incentives for such online operations to seriously fight misinformation.

Advocates for keeping the law as is say that without it, social media companies would face a myriad of potential lawsuits and thus dramatically limit what users can freely post on sites like Facebook, Twitter, YouTube, WhatsApp and Instagram. No company will be able moderate the webs current traffic, they say, estimated by multiple sources at 500,000 hours of user video uploaded to YouTube, 188 million emails and 18 million texts every minute.

Controversy will also continue surrounding the First Amendments two least-known freedoms petition and assembly as multiple state legislatures consider increasing criminal and civil penalties for demonstrators who block streets or sidewalks or simply participate in events where, at some point, a violent act occurs.

Critics of the proposals, many of which have been introduced over the past five years, say their real motives are the stifling of dissenting or minority views, though advocates claim the new provisions are rooted in legitimate law and order concerns about violence and property damages.

In the area of religious liberty, the U.S. Supreme Court is expected to rule this spring on Fulton v. City of Philadelphia, involving both the First Amendments free exercise and establishment clauses. In the case, a religious-backed foster care agency is challenging a city decision to cancel a contract because the agency refused to provide services to married same-sex couples, citing religious grounds.

There is no doubt that as COVID-19 pandemic restrictions on public gatherings continue into the new year, so will legal challenges rooted in the First Amendments protection of religious liberty.

There are some new First Amendment issues for 2021 as a result of the incoming Biden administration, though even here, many are tinged by actions or views from the Trump years.

A top concern for free-press advocates is the potential for the Supreme Courts new conservative majority to review the 1963 New York Times v. Sullivan decision, which provided wide protection from defamation claims by government officials and other public figures if actual error was inadvertent or not caused by reckless disregard for the truth.

A longstanding target of press critics and Trump, the decision is rooted in the theory that such protection is needed to foster the widest possible debate on public issues. Trump and others claim the decision makes it virtually impossible for officials and public figures to successfully repair deliberate damage to their reputations and that it gives journalists free license to report so-called fake news.

Of concern for some is the potential return to Obama-era regulations reversed by Trump that were aimed at combatting sexual harassment on college campuses, which critics said stepped on free-speech protections, particularly where online comments were deemed to be sexual in nature.

The Supreme Court is expected to decide in January whether to hear an appeal of a decision by the U.S. Court of Appeals for the Third Circuit that public school authorities may not punish student speech made away from school grounds. Other circuits have made differing decisions.

Some First Amendment experts also are concerned the incoming administration may be open to reducing or eliminating the First Amendment protections for what some deem hate speech or speech demeaning to women or minority religious groups. At present, such speech generally is protected, with some arguing that in addition to a core right to voice ones own views, it is necessary to hear such speech to effectively argue against it.

Free-press supporters are already calling on President-elect Joe Biden to actively repudiate the Trump claim that mainstream news media are the enemy of the people, with some calling for new legislation to aid financially ailing local news operations seen by some as counterintuitive for a free press along with an international-U.S. effort to support free-press principles and journalists globally.

Welcome to the First Amendment in 2021 with its echoes of 2020s year of pandemic, protest and presidential-political turmoil.

Gene Policinski is a senior fellow for the First Amendment at the Freedom Forum, and president and chief operating officer of the Freedom Forum Institute. He can be reached at gpolicinski@freedomforum.org, or follow him on Twitter at @genefac.

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Happy new and old year: 2020 just won't go away when it comes to first amendment issues in 2021 - Hopkinsville Kentucky New Era