A retired assistant U.S. attorney offers his thoughts on the ongoing unrest including fires, vandalism and riots.

PORTLAND, Ore. Retired assistant U.S. Attorney Stephen Peifer has a unique perspective on the violent protests in Portland. During his time as a federal prosecutor, Peifer handled domestic-terrorism cases and learned a lot about anarchists, eco-terrorists and violent extremists. Peifer recently spoke with KGW about the ongoing unrest in Portland.

The interview has been edited for length and clarity.

Are the violent protests, involving fires and vandalism, different than what weve seen before?

Stephen Peifer, former assistant U.S. Attorney:

Oh, I think theyre definitely different. Theyre much more violent and destructive. The type of weapons and other things being used are different than days past. You never saw the green lasers being used before, which are very dangerous. You never saw slingshots flinging ball bearings. You didnt see commercial grade fireworks- some, maybe but those are all very common and very dangerous.

As someone who spent years as a federal prosecutor, do you think police and prosecutors are handling this unrest correctly?

I think the U.S. Attorneys Office is handling it correctly under Billy Williams leadership but the district attorney now has written off a whole laundry list of crimes that he says wont be prosecuted and it is basically like throwing in the towel to these people. When you basically kiss off 400 cases as he did, that sends a message that youre not serious about prosecuting. You should be able to prosecute as many crimes as you can prove and once you decide not to do that, then youve basically told the organizers of this activity they can have carte blanche.

The arrests that we have seen so far; do they paint an accurate picture of whos behind the violence, the fires, the criminal behavior?

The anarchist organization antifa, and the wannabes that go along with it, theyre very loosely organized but very well-trained and they know how to avoid arrest. The ones who get arrested tend to be the very young ones, the 18-year-olds and even younger. Theyre the ones cutting their teeth so to speak and get caught up with it and get themselves arrested. There will be more arrests, I think, as more and more information is gleaned on who is operating and how theyre operating. There are ongoing investigations. The FBI has already said they have ongoing investigations of a number of federal crimes, including crossing state lines to commit crimes, and that may very well pan out in the future.

Whats it going to take to stop the violence?

Well, it is going to take very strong and effective law enforcement at all levels. And it should be coordinated. The state and federal and city people should all be talking to each other -- coordinating their response. Instead, you have a situation where thats not happening and it handicaps law enforcement. At the prosecution level, they should pick their cases carefully. Make sure they are provable because you dont want to bring any charges that will be thrown out unnecessarily. Orchestrate a concentrated effort to go after as many people as you can because deterrence is the only answer here, when it comes to the violence. Im not talking about deterrence of ordinary street demonstrations and the First Amendment, thats a different, totally different, subject. But we learned in prosecuting the Earth Liberation Front and the Animal Liberation Front, in what was known as Operation Backfire, which sort of came to a head in 2005, we learned in that case that once the heat is on people begin to talk, they begin to give you more and more information about the organization.

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What will it take to stop violent protests in Portland? - KGW.com

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In July 1963, Wendell Gunn appeared in the registrars office of Florence State College requesting an application from a bewildered secretary.

He was confused, too.

Gunn had seen James Hood and Vivian Malone admitted to University of Alabama the previous month. Autherine Lucy had been admitted in 1956. He thought the matter of Black folks attending white schools had been formally settled.

It had not.Gunn was taken to an office where the colleges president and dean awaited him.

The dean stared at me with those steely eyes and said, Who sent you here?

Gunn received his application with a warning from the president. He could not admit him without a federal court order. His mother phoned civil rights attorney Fred Gray.

He asked me if I really wanted to go. After saying we couldn't afford [litigation], he said, That's not what I asked you, Gunn recalled with a laugh. Gray sued and Gunn enrolled.

Civil Rights Attorney Fred Gray talks about representing Alabama State University students that were expelled for taking part in the 1960 lunch counter sit-in in Montgomery, during a press conference at the ASU campus in Montgomery, Ala., on Monday February 25, 2019. (Photo: Mickey Welsh / Advertiser)

The case was one of many for Gray. Throughout his career Gray filed suits that desegregated 105 of the 119 school systems in the state including everything under the control of the State Board of Education, which followed from Lee v. Macon. The students who had gained admission to UA in 56 and 63? Gray represented them, too.

After Gov. John Patterson ordered the president of the historically Black university, then Alabama State College, to expel students who led a sit-in demonstration in 1960, Gray won their reinstatement in St. John v. Dixon. The case enshrined all higher education students right to due process.

More: 'Unwilling to just wait': Alabama State sit-in brought change, cost protesting students dearly

As the civil rights attorney approaches 90 this December, Gunn is leading a renewed effort to honor Graywith the Presidential Medal of Freedom, among the highest awards granted civilians.

If anybody deserves the Presidential Medal of Freedom, Fred does, said Gunn.

For Gray, it began with a simple declaration: destroy everything segregated.

But he couldnt let it slip.

Black lawyers were hard to find when he graduated from Alabama State in 1951. It was why he had changed course, decided against a career as a preacher and instead enrolled at a law school in Cleveland. He had no choice but to leave the South.

African Americans were barred from white Southern schools. But he would return to Montgomery to complete his secret pledge in a place some proudly called the cradle of the Confederacy, no less by using the law to reclaim the rights denied to Black people through its unjust application.

Now, for a black boy in his upper teens to even think about that in Alabama was almost unheard of in the 1940s and 1950s. Nevertheless, that's the commitment I made to myself, Gray said in a 2014 interview at his alma mater Case Western Reserve University.

Civil Rights Attorney Fred Gray discusses his work in the civil rights movement at his offices in Tuskegee, Ala. on Tuesday February 7, 2017. (Photo: Mickey Welsh / Advertiser)

What proceeded was a legal career that has spanned more than half a century and yielded countless civil rights suits that have profoundly impacted American democracy. He played a significant role in four landmark Supreme Court cases in his first 10 years of practice, an outrageous feat rulings university students now study as case law.

How wide is the scope of litigation that Gray touched? If it had to do with segregation or civil rights in Alabama between the mid-1950s and today, Gray likely had a hand in it.

It's just astounding, said Jonathan Entin, a constitutional expert and professor emeritus of law at Case Reserve Western. He was involved in virtually every important civil rights case in Alabama for decades.

Gray took on these high-profile cases at a time when overt racial animus drove public policy and clotted even cordial attempts at race relations. There were signals that communicated the nature of this work: disturbing late-night calls; bomb threats; a draft letter.

He was there with his life, his body and his family on the line. He showed an extraordinary amount of courage that even today I have trouble getting my head around, said Entin.

Fresh out of law school in 1954, Grays first major client was Rosa Parks after her arrest off a city bus on Dec. 1, 1955. He became her lawyer at the age of 24. He would go on to represent the Montgomery Improvement Association, which launched the bus boycott that kicked off a national movement. Soon after, he became the Rev. Martin Luther King Jr.s private counsel.

When the New York Times refused to retract a 1960s advertisement soliciting donations for Kings defense in a perjury trial brought by the state, Montgomerys public safety commissioner, citing some minor factual inaccuracies, sued them for libel. He sued the local Black ministers who were mentioned in the ad, too. Gray represented the clergymen.

Fred Gray(Photo: Advertiser file)

I think that New York Times against Sullivan is probably the greatest of all First Amendment cases in American history. That case made clear that ordinary citizens, we have a right to criticize the government without being harassed by the government. The nation would look very different today if it had come out the other way, said Entin.

After John Lewis and civil rights foot soldiers were beaten in Selma on Bloody Sunday in 1965, it was Gray who filed the federal lawsuit that allowed the march to Montgomery to take place, and required the state to protect the marchers from attacks by hostile white spectators.

It's extraordinary, said Entin. You couldnt make up a story like this.

In NAACP v. Alabama, he blocked the states attempt to compel the organization to furnish its membership lists, a move that wouldve undoubtedly put its associates in grave danger; it became a landmark freedom of association case that enshrined the right of assembly as essential to first amendment free speech.

Gray worked with distinguished lawyers such as Constance Baker Motley, Robert Carter, Arthur Shores and Clifford Durr. Together, they argued cases before jurists and juries who were disinclined to agree with them.

They believed at some point these jurors would be more faithful to the Constitution of the United States than the segregation laws of the South. That was a big leap of faith, said Derryn Moten, chair of history and political science at Alabama State University.

The effort to secure Grays Medal of Freedom nomination has been in progress since President Obamas first term in 2008. Why it hasnt yet been successful is as unclear as the process itself, which requires a combination of persistence, political savvy and sheer luck.

So far letters of recommendation have come from Secretary of State John Merrill and Bryan Fair, an Alabama law professor who sits on the board of the Southern Poverty Law Center.

Fred Gray, left, and U. S. Rep. John Lewis talk after the 2011 Alabama Academy of Honor ceremonies in the old House chamber of the Alabama Capitol on Monday, Oct. 17, 2011, in downtown Montgomery, Ala.. (Montgomery Advertiser, Lloyd Gallman)(Photo: MONTGOMERY ADVERTISER, Advertiser file)

Gunn, the former student Gray secured admission to Florence State, has been working to seek national recognition of his legacy since late 2016. He said he intends do the impossible, secure a nomination for the medal from the Alabama Republican Congressional delegation. And after that, a resolution recommending Grays nomination from the state Legislature.

Grays mission has had personal effects. His son, Stanley Gray, attended UA Law School, the college his father was barred from. Alabama preferred to share the costs of Fred Grays out-of-state tuition rather than admit him to any of its white schools. It was an abundant investment.

Stanley Gray remembers examining the actual maps his father used as a lawyer in the Gomillion v. Lightfoot case to illustrate how officials had attempted to gerrymander Tuskegees majority-Black electoral district to suppress its political power. One justice called the shape an uncouth twenty-eight-sided figure.

One of the things that really impressed me about the work of my father, said Stanley Gray, is that he worked on cases that affected the everyday lives of individuals. Where someone goes to school, whether someone is able to vote, whether or not they're able to take public transportation in an equal way.

The man who set out on a secret mission almost 70 years ago is still at it. He takes cases out of his second office in Tuskegee.

Contact Montgomery Advertiser reporter Safiya Charlesat (334) 240-0121or SCharles@gannett.com

Read or Share this story: https://www.montgomeryadvertiser.com/story/news/2020/08/19/civil-rights-lawyer-fred-gray-presidential-medal-freedom/5528302002/

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Fred Gray kept his personal promise, took the protests to the courtroom and won again and again - Montgomery Advertiser

President Donald Trump on Wednesday urged consumers to snub Goodyear tires, claiming that the company has banned hats bearing his campaign phrase "Make America Great Again," or MAGA.

"Get better tires for far less!" Mr. Trump tweeted, saying that he was taking a page from "Radical Left Democrats." He added, "Two can play the same game, and we have to start playing it now!"

Mr. Trump's tweet comes after a report by WIBW-TV in Topeka, Kansas, that some employees at a Goodyear plant in the city were told that that the company had "zero tolerance" for wearing clothing with political messaging. Those messages reportedly include MAGA attire, as well as all other clothing with political themes, as well as phrases like "All Lives Matter" and "Blue Lives Matter."

According to a training slide shown by the station, the company said some slogans are acceptable, including "Black Lives Matter" and LGBT pride-related messages.

Goodyear on Wednesday issued a statement stating that the company "has always wholeheartedly supported both equality and law enforcement and will continue to do so." The statement noted that the image in question did not come from Goodyear's corporate headquarters and "was not part of a diversity training class," while reiterating its ban on political content in the workplace.

Although Americans tend to be focused on their First Amendment rights to exercise free speech, corporations are generally more intent on enforcing workplace rules and protecting their brand image, said Cheryl Sabnis, a partner at law firm King & Spalding.

"When things like political speech come into the workplace, it can be distracting, however well intended," Sabnis said. At the same time, she added, employees should be aware their behavior outside the workplace can impact their jobs, given that mobile phones with cameras make it possible for a comment or behavior to go viral and get back to one's employer.

"At the end of the day, individuals get to decide how they want to present themselves," she said. "At the same time, employers get to decide what they believe may be inconsistent with a collaborative workplace culture and what might be inconsistent with their brand."

Sabnis added, "It's about distracting from the work of the day it's not about what side you are on."

It's not the first time Mr. Trump has called out businesses for what he has cast as their bias against him. He has threatened and complained about a number companies, including Twitter, Toyota and Amazon.

At the same time, experts say consumers have grown increasingly motivated to buy from companies that align with their personal beliefs. The consulting firm Accenture recently found that almost two-thirds of Americans say their purchasing behaviors are swayed by such issues.

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Trump calls for boycott of Goodyear, claiming company banned MAGA hats - CBS News

Confirmed Judges, Confirmed Fears is a blog series documenting the harmful impact of President Trumps judges on Americans rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Fifth Circuit judges James Ho, Don Willett, Kyle Duncan, and Andy Oldham tried to get the full court of appeals to reconsider a decision allowing an elected member of a public board to pursue a claim that he was improperly censured in violation of his First Amendment rights. The court declined to rehear the case in the July 2020 decision in Wilson v. Houston Community College System.

David Wilson was an elected member of the Board of Trustees of the Houston Community College System (HCC). Beginning in 2017, Wilson began to criticize, first privately and then publicly, a number of Board actions that he thought violated the Boards bylaws and were not in the best interests of HCC. These included funding a campus in Qatar and allowing voting by videoconference. Wilson maintained a website where he discussed his concerns.

In mid-January 2018, the Board voted to publicly censure Wilson for his actions, stating that this was the highest level of sanction available since Wilson was an elected official and warning him to cease and desist his conduct. Wilson then amended a pending state court lawsuit to contend that the Board had violated his First Amendment rights and to seek damages. The Board removed the case to federal court, where a judge dismissed the case for lack of standing, claiming that Wilson could not demonstrate injury in fact to him as a matter of law. Wilson appealed.

A three-judge panel of the Fifth Circuit unanimously reversed. The court explained that the lower court had erred because in the primary decision it relied upon, a Tenth Circuit ruling where the court dismissed a similar challenge by a public community college board member, the court had in fact held that the plaintiff did have standing because he claimed that a censure had tarnished his reputation. The court went on to point out that both the Supreme Court and the Fifth Circuit had held that allegations of retaliatory censure of a public official that a plaintiff claims give rise to a reputational injury is an injury in fact. Although Wilsons requests for declaratory and injunctive relief were now moot since he had left the Board, the court continued, his claim for damages continues to present a live controversy and he should have an opportunity to prove his case.

The full Fifth Circuit then determined to decide whether to rehear the case. Eight judges on the court voted in favor of vacating the panel opinion and rehearing the case, including Trump judges Ho, Willett, Duncan, and Oldham. Eight others, however, voted against rehearing, including Reagan nominee Jerry Smith, George W. Bush nominees Leslie Southwick and Catherine Haynes, and Trump nominee Kurt Engelhardt. As a result, rehearing was denied.

The four dissenting Trump judges joined a harsh dissent by Judge Edith Jones, and Ho also filed his own dissent. The dissenters wrote that the panel decision was out of step with the decisions of four other circuit courts, which had supposedly ruled that a legislatures public censure of one of its members could not give rise to a First Amendment claim. The dissenters also argued that Fifth Circuit precedent respects the lack of a constitutional remedy for intra-legislative squabbling and that cases concerning official reprimands of elected Texas state judges did not apply. Ho commented that the panel ruling violated the principle that the First Amendment guarantees freedom of speech, not freedom from speech.

The panel decision, however, had already responded to such arguments by HCC. The panel explained that both the Supreme Court and the Fifth Circuit had recognized the importance under the First Amendment of ensuring that elected officials be allowed freely to express themselves on matters of public concern and that they not be punished or deterred by improper official censures. The panel went on to note that the Fifth Circuit had held that there is no doubt that formal reprimands for speech by elected officials, which go far beyond simple criticism, can lead to a First Amendment violation. The court specifically pointed out that the fact that some of these cases involved elected judges matters not, and that if anything, judges are accorded less protection than legislators like Wilson. After a close review, moreover, the court concluded that the cases from other circuits that the dissenters also relied upon were distinguishable, either because they involved claims only against individual members of a governing body like HCC or did not involve censures.

The panel recognized that although Wilson had raised a plausible claim, he would need to prove his contention that HCCs retaliatory censure against him actually caused the damages he sought. If it had been up to Trump judges Ho, Willett, Oldham, and Duncan, however, he would not even have had that opportunity and the court would have ruled that the First Amendment does not protect against retaliatory censures of public officials for their speech.

See more here:

Trump Judges Try to Reverse Ruling Against First Amendment Retaliation: Confirmed Judges Confirmed Fears - People For the American Way

This may come as a surprise, but the U.S. has never uniformly upheld the right to free speech, and in many cases still limits it. Once you know this history, its hard to feel much sympathy for people with bad ideas being deplatformed.

As I wrote in my previous post, the freedom of expression is widely regarded as a universal human right, albeit one that different governments interpret differently. In the U.S., the First Amendment is held up as a golden beacon of free speech and yet it hasnt always been interpreted or enforced that way, and in many cases still is not.

In his excellent book What Snowflakes Get Right: Free Speech, Truth, and Equality on Campus, Ulrich Baer demystifies the history of freedom of speech in the U.S. with an emphasis on its implications for the university setting, where inquiry and truth are important values. Baer also addresses critical moments in free speech history that solidified around Frederick Douglass, escaped slave and prominent 19th century abolitionist and intellectual.

Significantly, Baer asserts:

The First Amendment played an insignificant role in our countrys jurisprudence until early in the 20th century. It was never cited during the 19th century by our Supreme Court but first applied in 1925 to overturn state regulation of speech and used for the first time in 1965 to rule an act of Congress unconstitutional (regulating the mailing of political material). In fact, Douglass spoke against prevailing public sentiment of his era, formalized by the Supreme Courts morally reprehensible Dred Scott decision of 1858 and shared by a great number of white people, which ruled that Black Americans could never be citizens in the United States, even in states where slavery had been ruled illegal. This ruling also affirmed that Black Americans would never have the right of free expression of any other civil liberties such as the vote. Douglass insisted on his speech rights although he did not have a right to speak, and did not enjoy the protection of the First Amendment. But he gave a speech. What does this mean? (75-76)

Theres a lot to unpack here. First, Baer tells us that nobody was running around invoking the First Amendment in the 19th century, and it really didnt gain traction in major court rulings until the 20th century. In fact, the people supposedly responsible for upholding free speech accepted and enforced limits on their own free speech; as Baer reminds us: Even in Congress, governed by procedural rules to ensure robust but reasoned debate, the mere discussion of the abolition of slavery had been prohibited for eight consecutive years, from 1836 to 1844, via a gag rule' (72).

The gag rule on discussing abolishing slavery may have ended in 1844 but informally, it continued, as Baer chronicles: In 1856, Massachusetts senator Douglas Sumner had been caned nearly to death by a South Carolina Representative for criticizing slavery (73). So its not like the esteemed representatives of the U.S. government upheld free speech rights uniformly or even non-violently.

In this political and cultural climate, Douglass risked his life to give speeches about free speech (hows that for meta). And hes held up as a free speech absolutist by advocates today, which as Baer points out, isnt really a great interpretation of the historical evidence, since it misses some major points about the contexts in which he was speaking.

This brings me to my second point about the lengthy block quote above: that Douglass was speaking in conditions that were hostile yet transformative. When Douglass said to a white audience: Would you have me argue that man is entitled to liberty? that he is the rightful owner of his body?To do so, would be to make myself ridiculous, and to offer insult to your understanding (quoted in Baer 45) he was essentially engaged in what linguists and other social scientists would call a performative speech act. Unlike other kinds of speech acts which may function more descriptively, performative speech acts change or accomplish something in the world, as when the right kind of official pronounces someone married andbamnow its real.

In other words, when Douglass says that requiring him to present an argument for his liberty, and thus for the alienable rights that include freedom of speech would insult his audience, he means that such an argument would insult his listeners intelligence as well as their knowledge, since the self-evident fact of another humans inherent liberty is not worthy of any thinking humans deliberation and attention (Baer 77). Douglass engages in a performative speech act because, in speaking, he demonstrates that the bigoted attempts to limit his speech are logically unsound (as in, you cant try to deny someone basic human rights on the grounds that theyre subhuman when theyre standing right in front of you using human language to make an elegant argument). It is a genius move of rhetoric, but it is inescapably linked to its social context and the equation of freedom of speech with the necessity of coming to the table as equals, both of which are points that modern-day free speech absolutists miss.

I know Im relying a lot of Baer but I think his take on this topic is brilliant. To reiterate, Baer writes that Douglass exposes the absurdity of expecting some peoples speech not to be measured on the strength of their argument but on whether they qualify as fully human (77).

And that brings us back to the modern-day context. The concept of free speech is only meaningful if we dont restrict who can participate based on inalienable or inherent qualities of their personhood. If the very premise of your speech is rooted in ignorance, insecurity, and unreason as Baer argues racism is, in a discussion of author Toni Morrisons take on the topic then you will inherently undermine the conditions for equal and open exchange central to a university along with other places (80). If your speech is based on dehumanizing others, then it automatically disenfranchises those people, and disqualifies them from engaging on the same level as you; this is exactly the same as inviting Douglass to debate his own humanity. Its preposterous.

So yes, we get to restrict freedom of speech at least in terms of who gets access to which platforms if those speakers are making tiresome and illogical arguments based on the racism, misogyny, and homophobia of decades and centuries past. Not only is it a yawn-fest (no new ideas there!) but its also insulting and dehumanizing to potential audiences, and as seen above, the ability to engage in free speech rests on acknowledging that free speechmustbe rooted in equality. And I do mean we in that first sentence: Im not going to invite a guest speaker into one of my college classes if they seem likely to not only insult my students but also deny them basic humanity based on whether theyre trans or Jewish or disabled. Were all adults, we can get over being insulted but as a guardian of education, I am not going to allow a speaker to mock and debase the very existence of those under my tutelage, and as Baer and others argue, this is a valuable gatekeeping function that university administrators serve when they say yeah no, were not going to host that alt-right speaker at an official university event. Its protecting our students, and it doesnt make them weak snowflakes but rather affirms their basic right to engage in speech and debate that starts at the insultingly low bar of Were all human here. Okay, moving on

To quote Baer again: You may be refuted in a debate because your arguments are weak, wrong, or badly phrased, but you must not be excluded a priori based on whether or not you count as fully human (80). And I think this is where a lot of the friction in contemporary free speech discussions comes in: folks who are more attuned to equality and basic human rights (I guess were labeled social justice warriors or SJWs? as though thats a bad thing?) are not interested in the arguments of bigots. Bigots tend to dehumanize people, which cancels out the function of free speech since it creates a mockery of the whole thing, asking someone to come to the table and justify their very being. This doesnt make bigots inhuman, it makes them bad humans, and yet in the attempt to have this type of conversation, to say wow, no we are really not interested in the bullshit youre spewing, somehow that gets twisted into were judging you and think youre subhuman and hence were taking away your free speech rights. Which, lets recall, is not whats happening: denying someone a platform isnotthe same thing as oppression, which would look more like jailing them or something similarly drastic.

In the interest of wrapping this post up, I want to revisit the idea of gag rules. Earlier I mentioned the pre-Civil War agreement to not talk about abolishing slavery. That type of gag rule is not uncommon in the U.S., despite many peoples belief that weve always had this angelically perfect implementation of the First Amendment. Here are a few brief examples of suppressed free speech in the U.S., both then and now:

The maddening thing? The support for this suppression is usually coming from folks who would scream First Amendment! if their attempt to verbally trample on someones humanity was denied. Sorry, maybe thats just me being cynical. But the hypocrisy is evident when, as Baer explains: By prohibiting speech about a legally permissible procedure, they are doing exactly what they decry as unconstitutional when a college declines to host a white supremacist (110). How conservatives deal with the mental acrobatics of cognitive dissonance when suppressing free speech on allegedly religious grounds is beyond me, especially given that the U.S. hypothetically promotes a separation of church and state (and I have yet to see many anti-abortion arguments that are not rooted in religious belief).

To recap: freedom of speech is only meaningful when all can be equal participants. We need to not rely on abstract ideas about the nonexistent universality of the freedom of speech, nor assume that the marketplace of ideas will govern the exchange equitably, not assume that reason and truth will magically enforce themselves. Dont take this to mean that Im in favor of censorship Im not! but rather that certain platforms require certain guidelines, and academic/intellectual/educational ones in particular benefit from a bit more guardianship so that we dont willy-nilly let in alt-right speakers who will dehumanize our students to their faces and thereby eject them from having a seat at the table of learning. Baer has a ton more to say about this in particular but dont worry, Im done quoting my newest BFF, this post doesnt need to be any longer than it currently is.

(also, shout-out to the reading group on academic freedom at Butler University, which provided me with this book and with many instances of intellectual companionship and challenge that were thought-provoking, useful, and enjoyable)

References:

Baer, Ulrich.What Snowflakes Get Right: Free Speech, Truth, and Equality on Campus. Oxford University Press, 2019.

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The U.S. Has Never 100% Upheld the First Amendment (And Still Doesn't) - Patheos

August 18 marks the 100th anniversary of the 19th amendment being ratified, granting women the right to vote in the United States.

Though this anniversary is a celebrated milestone in American history, the reality is that not all women were able to immediately exercise their right to vote as racial discrimination kept Black women, and Black Americans in general, from voting. In fact, it wasn't until the Voting Rights Act of 1965, 45 years after the 19th amendment was passed, that the federal government made it illegal to disenfranchise a person based on race.

As America continues to deal with a global pandemic, as well as racial unrest in the country, exercising the right to vote in the 2020 election has never been more important, though ongoing acts ofvoter suppressionstill deny many people their right to vote today.

CNBC Make It caught up with five young women who will be voting for the first time in the 2020 election, to get their insight on what the 19th amendment means to them, why it's important for them to make their voice heard at the 2020 polls and the social and political issues they've been paying close attention to this year.

Alliyah Logan, 18-year-old youth advocate from Bronx, New York.

Photo credit: Alliyah Logan

Alliyah Logan is a Jamaican-American youth advocate from Bronx, New York who served as a former teen advisor for Girl Up, an organization founded by the United Nations Foundation to support the leadership development of young women. This fall, she will be a freshman at Smith College in Massachusetts.

What does the 19th amendment mean to you and how important is it for you to exercise your right to vote in the 2020 election?

This is such an important election, especially for women, and it's important for everyone to be fully engaged.

For me, when I think about the 19th amendment, I think about the foundation of women's rights and some sort of equality in America. And the reason why I say foundation is because there's a lot of work that needs to be done. So when I think about 100 years ago and the environment of that time, I wouldn't have been able to be as accepted in the movement as I am today. And I think it's because [the suffrage movement] was viewed as being predominantly White.

When you look at it, White women were really primarily only advocating for voting rights, whereas Black women, Native American women, [Hispanic] womenand other groups of women of color were advocating for so many other things like racial justice and class justice. So for me, looking back 100 years, I saw that there was just one narrative of stories that were valued at that time. And now, 100 years later, we're seeing that there are still so many more measures that need to be done to ensure that we're not only advocating for the voting rights of women, but also using that energy to advocate for other issues that women of color face, especially Black women, when looking at racial injustice and class injustice.

What are some of the issues you're fighting for and policies you're paying close attention to when voting in this election?

I think for me, the first thing is racial justice. I think even if you look at this summer in general in terms of the George Floyd protest, it's extremely important that our nominees are pushing for racial justice in America because we need national leadership who can make sure our voices are heard in policy decisions. And, we need national leadership supporting us and saying that Black people deserve human rights and human decency when it comes to interacting with police and many other things.

Another very important issue for me is health care. When looking at the impact of Covid-19 we see how it impacted all people in general, but it more heavily impacted the Black community and Native American community just because of systematic oppression. So for me, establishing a universal health plan that all people can have access to is very important.

Also, education is important and making sure that young people from K- 12 have access to equitable education that is free of harm and is free of policing in schools. I think young people need to be in environments that are safe and empowering and that really uplift their spirits and I don't think the current education system does that.

Lastly, there are a lot of people in America living in areas that are considered food deserts or have food insecurity and this is not an issue that a lot of people speak on because a lot of people don't recognize how inherently violent it is to not have access to healthy foods.This is a very important issue that we need national leadership on and it's from the impact of years of red lining and years or systematic racism that made people move into these communities that are impacted by poverty.

Rebecca Fairweather, rising freshman at University of California, Santa Barbara.

Photo credit: Rebecca Fairweather

Rebecca Fairweather is an 18-year-old Latina activist from Queens, New York who plans to attend the University of California, Santa Barbara in the fall. She's also a former teen advisor for Girl Up.

What does the 19th amendment mean to you and how important is it for you to exercise your right to vote in the 2020 election?

The 19th amendment has always been incredibly important to me. I remember first learning about the 19th amendment in middle school and it's kind of mind boggling to me that that happened a hundred years ago and we're still continuing to fight for equality today.

As an 18-year-old, it kind of feels a little weird to be voting on this anniversary in a time where so many injustices are still being brought to light every single day. But, I'm voting on the 100th anniversary knowing that my generation is stepping into the voting booth and that's so powerful to me. I know that the future will be in good hands because of it.

What are some of the issues you're fighting for and policies you're paying close attention to when voting in this election?

I've been cultivating a list for years now and definitely climate change is a big thing for me. I think it should be acknowledged regardless of your political party because it is real and it is happening and we need to get a hold of it quickly. Something that's also very important to me is women's rights and women's access to healthcare. As a woman who suffers from endometriosis, birth control and reproductive healthcare are so important to me and knowing that it could be taken away is so scary.

Amore' Daniels, 19-year-old student at Spelman College.

One time use: Amore' Daniels

Amore' Daniels is a 19-year-old computer science major at Spelman College who will be voting for the first time this year in Georgia.

What does the 19th amendment mean to you and how important is it for you to exercise your right to vote in the 2020 election?

The 19th amendment is very important and I think it's important for me to exercise my voice and my right to vote because historically [Black people] didn't always have that opportunity.

What are some of the issues you're fighting for and policies you're paying close attention to when voting in this election?

When it comes to this election there are several issues that I'm considering, including women's rights. Although this is the 100th anniversary of the passing of the 19th amendment, women are still fighting for freedom and equality in terms of human rights and equal pay. Another issue I'm paying attention to is police brutality. I know that the system of policing was founded upon racist ideologies and we can see some of that in the way that police enforcement operates today. I would say another issue I'm focused on is reparations. I would like to think that the right candidate would understand that descendants of those who built this country simply don't want an apology for what has happened in the past, but we would like acknowledgement from the country that allows us to move forward and have success and progress as a community.

Denisse Alvarado, 19-year-old student at Oregon State University.

Photo credit: Denisse Alvarado

Denisse Alvarado is a rising sophomore at Oregon State University who is majoring in computer science with a minor in business.

What does the 19th amendment mean to you and how important is it for you to exercise your right to vote in the 2020 election?

I think the 19th amendment is really important and I think women, just as much as everyone else, need to be able to exercise their voice by voting. And you know, voting is the way we use our voice to change the policies that are affecting us. Though we are not certain where we will be in the future, it is a guarantee that whoever is elected into office will make choices and implement policies that will impact our lives. So, we need to speak up and have a say, especially in this upcoming election, because at the end of the day, if you're not voting for your own interests and standing up for your own beliefs then who will.

What are some of the issues you're fighting for and policies you're paying close attention to when voting in this election?

The issues that are really important to me are gender-based violence, workplace equality and educational equity. So, the sexual abuse and human trafficking that has been happening and the gender-based violence that has been manifesting in various ways in the lives of women around the world is a really important issue and I feel like we need to focus [more] on it. Workplace equality is also important. I read a report the other day that for every 100 men promoted to management, only 72 women were promoted and that number is even lower for women of color and Latinas like myself.I believe that female representation at senior level roles and in senior leadership needs to increase. And though we have seen a little bit of change, I still think that we have so much left to do and so much more we need to do to break these glass ceilings. Also, educational equity is so important because education plays a major role in providing work opportunities and I feel like from an early age boys and girls are stereotyped by teachers and educated according to their gender-based attributes.

Eugenie Park, rising freshman at Wellesley College.

Photo credit: Eugenie Park

Eugenie Park is a former Girl Up teen advisor who will be a freshman at Wellesley College this fall.

What does the 19th amendment mean to you and how important is it for you to exercise your right to vote in the 2020 election?

The 19th amendment means everything to me in terms of being able to express my political opinions and actually have them make an objective difference. I actually voted in my state's primary on August 4th since I live in Washington state. Although it wasn't a federal election, it was definitely a huge turning point for me and I felt on top of the world being able to actually make an objective difference in the legal system.

Before I voted I did kind of dabble in political activism where I could, but I never felt like I was doing as much as I wanted to because I never got to actually take part in the democracy in terms of being able to cast a vote. So being able to do that for the first time is everything for me.

What are some of the issues you're fighting for and policies you're paying close attention to when voting in this election?

There's a couple of issues that have always been of particular importance to me. The first one is how political candidates are setting up support systems for small businesses, especially family businesses. My dad actually runs a small business himself and so I have a really personal connection to the struggles he's been through in our own economy and how our government has succeeded or has failed to support him in that way. Another big issue for me is education policy. I want to know how politicians are planning to revise our K- 12 education system because the disparities in our elementary, middle and high schools across the country are extremely unacceptable in my opinion.

Something else that has also become more on the forefront of my mind is how different politicians are approaching racial equity through their policies, especially in the wake of the murders of George Floyd, Ahmaud Arbery and many others. I'm looking at how politicians are responding to that and what kind of policies are cropping up from these incidents.

These interviews have been edited and condensed for length and clarity.

CNBC Make It is NOW STREAMING on Peacock. Find our original programming in the Channels section.

Don't miss:Sen. Kamala Harris secures historic vice presidential candidacy, sparking #WinWithBlackWomen hashtag

Originally posted here:

'The 19th amendment means everything': 5 first-time voters on 100 years of women's suffrage and the 2020 election - CNBC

Executive Summary

Introduction

The United States has historically taken a hands-off approach to regulating technology, allowing innovators to create products with minimal government interference. This approach is part of what has enabled numerous services, from search engines to social media to online payment processors, to develop here in the United States. This innovation has been a tremendous force for economic growth as well as a critical platform for speech and entrepreneurship. But recently, policymakers on both sides of the aisle have been questioning if there is a need for greater regulation.

Part 1 of this series analyzed the policy proposals of the 2020 presidential candidates, President Donald Trump and former Vice President Joe Biden, related to internet infrastructure. This part of the series will analyze how the candidates are approaching internet policy issues, including calls for regulation related to online content moderation, data privacy, and net neutrality.

Section 230 and Online Content Moderation

Section 230 of the Communications Decency Act limits the legal liability of online intermediaries that host or publish speech that their users post, while allowing platforms to engage in moderation of this user-generated content. This law has been incredibly important to the growth of a wide range of online platforms, from social media and review sites to less obvious examples such as Wikipedia and blog comments. Unfortunately, both candidates have been critical of this law, which allows new opportunities for speech and keeps barriers to entry low for new online platforms.

On the right, critics of Section 230 allege it allows social media platforms to take biased actions that silence conservatives. President Trumps criticisms and approach to Section 230 are best seen in his May 2020 executive order on social media. He has been vocal about what he perceives as bias against himself and other conservatives by various social media platform and called for changes to Section 230 that would require viewpoint neutrality in moderation, among other changes. Section 230 has allowed many voices, including conservative voices, to flourish online, however. Such a change would effectively create a new Fairness Doctrine for the internet that would likely limit the reach of the voices it claims to protect. The old fairness doctrine was a Federal Communications Commission (FCC) rule that had required radio and television stations to provide time and access for opposing viewpoints on editorial commentary on news and politics to maintain their license. It also could result in a chilling effect and increased moderation that could silence many online voices (including conservatives), particularly on controversial topics.

Critics on the left assert that Section 230 has resulted in platforms not acting quickly enough to remove harmful content such as hate speech or allowing the spread of misinformation. While former Vice-President Biden was critical of President Trumps executive order, he too has called to revoke Section 230 protections. Revoking Section 230 would make many of the concerns about content moderation worse by placing platforms back in a dilemma where they must choose between over-zealous content moderation and aggressive takedowns (silencing legitimate speech in the process) or no moderation whatsoever (creating an internet most of us would not want to be on). User-generated content protected by Section 230 has allowed for powerful movements and discussions such as #metoo and Black Lives Matter. Without this protection, platforms might be more hesitant to carry such content, and these movements would not have had the same reach and impact.

Content moderation is a difficult task, but Section 230 allows companies to find the right balance for their consumers and to provide consumers with a wide range of choices. As University of Arizona law professor Derek Bambauer argues, Section 230 helps companies that are now dealing with the problem of content moderation at scale and the increasing costs large companies would have to expend, especially given the possibility of bad-faith reports. Section 230 is also critical to small platforms and those far beyond social media such as review sites and even Wikipedia that might face company-ending liability and legal costs even if they were successfully vindicated in court. Additionally, proposals for Section 230 reform raise questions about potential First Amendment violations by inserting government regulators into decisions about what speech a platform must allow or disallow.

While the criticisms extend from different reasons, the fact that both candidates are critical of Section 230 means this debate is unlikely to subside after the election.

Data Privacy

Both candidates appear to support a federal law to deal with data privacy concerns, but their policy proposals would likely be very different and could impact many industries beyond the technology sector.

In July 2018, officials for the Trump Administration stated they were working on a federal consumer data privacy policy to become legislation. While relevant agencies have held various workshops on this issue, no proposal has emerged. In the meantime, several states, most notably California, have passed consumer data privacy laws that create a potentially disruptive and burdensome patchwork of regulatory environments. Most Republican legislative proposals have included federal preemption of state regulation, which would help resolve this concern. It is unclear what exact principles in such legislation the Trump Administration supports, but most Republican proposals recognize the potential problems with a state-level approach to internet policy and call for preemption in favor of a federal standard.

Former Vice President Biden also does not have a complete proposal on data privacy, but has stated that he supports an approach similar to the Europeans. The General Data Protection Regulation (GDPR) that is in effect in Europe shows the consequences of a more regulatory approach to the issue. In light of the GDPR, several companies, including American newspapers, chose to withdraw from the European market rather than face the burdensome and costly compliance. In other cases, the GDPRs assumption that privacy is always of the highest value can create other problems when data usage would be beneficial. For example, it is more difficult to develop GDPR-compliant contact tracing apps during the COVID-19 pandemic.

In addition to general consumer data privacy regulation, the Unity Taskforce proposal for the Democratic Partys policy platform also includes heightened regulation of the use of biometrics technology such as facial recognition and fingerprint scans. Biometric technology can be beneficial for applications ranging from searching for missing children to tagging photos, but there has been an increasing amount of debate over whether there needs to be regulation on the private or governmental use of these technologies. Some states already have their own laws regulating biometric privacy. Notably, the Illinois Biometric Information Privacy Act (BIPA) has led to products being unavailable in that state and an increasing amount of litigation. If there is to be federal regulation in this area, policymakers should avoid the costly and innovation-limiting burdens of these current state laws such as overly broad application and private rights of action.

For now, progress on a federal law appears to have stalled, but state laws on both specific technologies and more general consumer data privacy continue to go into effect. Hopefully, meaningful progress on a federal law can be made again to avoid constitutional issues and the disruption to innovation of a state-level approach.

Net Neutrality

Net neutrality remains a topic of intense debate and one on which the candidates clearly diverge.

The FCC during the Trump Administration repealed net neutrality in the Restoring Internet Freedom Order. Despite many apocalyptic predictions, the internet did not cease to exist or load one word at a time, and consumers are still able to stream Yankees games and Netflix without additional lags. While there is still debate about whether the full benefits of increased investment and innovation have been realized since this repeal, it is clear that the doomsday predictions have not come true.

Biden has been clear that he supports net neutrality. Restoring these rules would place more regulatory barriers on internet service providers that might make it more difficult to expand service and innovate. Such a rulemaking would certainly be subject to further legal scrutiny, as both the Restoring Internet Freedom Order and the original net neutrality rules faced court challenges. If such requirements were to be a truly desired policy, they would most likely need to be pursued by legislation and not just administrative rulemaking. Even then, such policies might face a high burden to show they are needed in the courts, especially given the potential First Amendment implications. As the Mercatus Centers Brent Skorup noted during the prior net neutrality debates, there are questions of whether the original net neutrality regulations requirements might have violated the First Amendment by allowing some services (such as family-focused providers) to block content but did not allow other services similar discretion in content prioritization.

This difference of viewpoint regarding the benefits of net neutrality also impact the way each administration would pursue cases regarding state-level net neutrality laws. The Trump Administrations Department of Justice has filed suit against Californias state net neutrality law to block its enforcement. Such state-level laws raise concerns about splintering the internet and creating roadblocks to expanding internet service if providers face additional restrictions at state and local levels. As a result, American Enterprise Institute Visiting Fellow and Boston College law professor Daniel Lyons has noted that such laws could raise constitutional concerns under the Dormant Commerce Clause. A Biden Administration likely would not pursue such action against states on this issue.

Conclusion

Increasing regulation on the internet will impact the future of online speech and the continued innovation of platforms. Both presidential candidates have suggested new regulatory approaches for online content moderation, but for different reasons. The next president will need to consider what appropriate federal frameworks should look like on issues such as data privacy and net neutrality in order to prevent a potentially disruptive patchwork of state laws.

See more here:

Tech Policy and the 2020 Election, Part 2: Online Speech, Net Neutrality, and Data Privacy - AAF - American Action Forum

A federal judge has upheld Gov. Phil Murphys executive order that closed movie theaters in New Jersey, finding that the state is not infringing on theaters First Amendment rights in its response to the pandemic.

U.S. District Judge Brian Martinotti on Tuesday denied a motion for an injunction by the National Association of Theatre Owners on behalf of several chains in New Jersey.

In closing indoor movie theater operations, (the state is) promoting the significant governmental interest of protecting public health by keeping closed areas that present heightened risks for COVID-19 transmission, Martinotti wrote in his 33-page opinion.

The injunction would have stopped state officials from applying or enforcing executive orders that closed theaters back in March when Murphy declared a state of emergency and mandated the closure of theaters and other facilities.

The theater owners argued New Jersey officials were discriminating against them by allowing churches to reopen.

The state, however, argued that churchgoers can wear masks but that a mask mandate is difficult to enforce in theaters because patrons sit in darkness.

Before filing suit, theater owners sent representatives to meet with the governors office and outline comprehensive safety plans for the reopening of movie theaters in New Jersey.

The protocols included having theater employees wear masks and gloves, signing documents each day stating they dont have COVID-19 symptoms and taking staggered breaks to aid in social distancing.

Theater owners also said they would limit ticket sales to comply with reductions in capacity, implement touchless ticketing and install Plexiglas partitions in customer service areas.

But the judge cited the states argument that the Center for Disease Control and Prevention has said the risk of transmission increases with prolonged person-to-person interactions.

Movie theaters necessitate a large number of individuals congregating together concurrently in one indoor location for an unusually long period of time, Martinotti wrote in denying the injunction.

New Jersey on Monday reported 316 new coronavirus cases and four more deaths as the states rate of transmission climbed back above the key benchmark of 1 that indicates the outbreak is expanding.

The Garden States death toll now stands at 15,916 fatalities attributed to COVID-19 14,077 confirmed and 1,839 considered probable in more than five months since the first case was reported March 4.

The National Association of Theatre Owners, American Multi-Cinema, Cinemark USA, Regal Cinemas, BJK Entertainment, Bow Tie Cinemas and Community Theaters filed suit against Murphy and state officials on July 7 with the hopes of reopening.

Our journalism needs your support. Please subscribe today to NJ.com.

Anthony G. Attrino may be reached at tattrino@njadvancemedia.com. Follow him on Twitter @TonyAttrino. Find NJ.com on Facebook.

Read more here:

Closure of theaters in N.J. not a violation of rights, judge rules in blow to movie chains - NJ.com

For over 50 years, the Illinois Fraternal Order of Police has worked to increase the efficiency of the law enforcement profession and more firmly establish public confidence in the service dedicated to the protection of life and property.

Today, the FOP represents a diverse group of over 35,000 police officers throughout our state. These officers go to work every day, their spouses praying they return safely, so they can provide for their families. They are members of your community; their children attend school with your children. They are husbands, wives, fathers, mothers, sons, daughters, uncles, aunts, Little League coaches, church members, school board members, neighbors and so much more.

As advocates for police officers, the FOP has seen many trends in public perception through the decades. But never have we seen the kind of vitriol and anger that our men and women have encountered in recent months.

In many recent news publications, we see, side-by-side, stories of protests next to stories of police officers being assaulted while doing their assigned duties. In recent weeks, we have seen officers being attacked with rocks, bricks, frozen water bottles and fireworks. We have even seen reports of restaurant employees spitting in and soiling food and drinks being served to officers. It is hard to imagine any other profession where such treatment of public servants would be so casually accepted.

We fully understand the tragic death of George Floyd in Minnesota has severely undermined the mission of the ILFOP in establishing and maintaining public trust in law enforcement. We further recognize the protests that followed began as peaceful endeavors to exercise First Amendment rights.

However, as these protests have progressed, there has been a sharp increase in radical actors whose goals center more on destroying property and injuring innocent citizens and police than they do on enacting social change. It is important that we condemn, in the sharpest possible terms, not only any individual who takes action to harm innocent civilians and peace officers, but any elected leader or media outlet that justifies and praises senseless acts of violence against the police or our community.

Law enforcement is much more than just front-line police; it is a system with multiple parts and players. Police have a job to do, as do prosecutors. When elected prosecutors chase political favor and refuse to prosecute criminals who viciously attack police, it sends a crystal-clear message that the system is no longer functioning.

Failure to hold bad actors accountable will only ensure that what has already been a long summer will be even longer and more dangerous for police officers and peaceful protesters alike.

Clearly, with what we have seen in the past few months, broad institutional reform is needed in Illinois and the nation. One incident may have provided the spark, but underneath it lay decades of kindling. Economic stagnation, social stratification, redlining, the pandemic, along with numerous other issues have all helped to lay the foundation for unrest.

Not one of these political decisions was made by a law enforcement officer. Yet it falls to the police to protect their cities when the political failures mount too high to contain public outrage.

As law enforcement leaders, the FOP has engaged in multiple negotiations on a variety of police reforms through the years, including but not limited to banning excessive chokeholds, instituting body cameras and expanded tactical training.

We look forward to being active participants and advocates for our officers and to assist the conversation by providing first-hand insight and knowledge that only experience in the field can bring.

We stand ready to work with any elected leaders who share our goal of improving all aspects of law enforcement. We ask all our partners in law enforcement and the lawmaking process to stand with us in our shared goal of ensuring that citizens, as well as our law enforcement professionals, are able to safely return home to their families each night.

Chris Southwood is State Lodge President, Illinois Fraternal Order of Police.

Send letters to letters@suntimes.com

Read this article:

Never have we seen the kind of vitriol and anger that police are enduring now: Illinois FOP - Chicago Sun-Times

from the discourse-demands-it dept

The storm has passed and the charges have been dropped. But the fact that someone who tweeted about police behavior, and, worse, people who retweeted that tweet, were ever charged over it is an outrage, and to make sure that it never happens again, we need to talk about it. Because it stands as a cautionary tale about why First Amendment protections are so important and, as we'll explain here, why Section 230 is as well.

To recap, protester Kevin Alfaro became upset by a police officer's behavior at a recent Black Lives Matter protest in Nutley, NJ. The officer had obscured his identifying information, so Alfaro tweeted a photo asking if anyone could identify the officer "to hold him accountable."

Several people, including Georgana Szisak, retweeted that tweet. The next thing they knew, Alfaro, Sziszak, and several other retweeters found themselves on the receiving end of a felony summons pressing charges of "cyber harassment" of the police officer.

As we've already pointed out, the charges were as pointless as they were spurious, because they themselves directly did the unmasking of the officer's identity, which the charges maintained was somehow a crime to ask for. Over at the Volokh Conspiracy, Eugene Volokh took further issue with the prosecution, and in particular its application of the New Jersey cyber harassment statute against the tweet. Particularly in light of an earlier case, State v. Carroll (N.J. Super. Ct. App. Div. 2018), he took a dim view:

N.J. Stat. 2C:33-4.1a(2), under which Sziszak is charged, provides, in relevant part,

According to the criminal complaint, the government's theory is that the post "caus[ed] Det. Sandomenico to fear that harm will come to himself, family and property."

But the Tweet (and the retweet) aren't "lewd, indecent, or obscene." ... [And] if the "lewd, indecent, or obscene" element isn't satisfied, N.J.S.A. 2C:33-4.1(a)(2) doesn't apply regardless of whether it was posted with the intent to "caus[e] Det. Sandomenico to fear that harm will come to himself, family and property."

These "cyber harassment" statutes are often problematic, targeting for punishment what should be protected and often socially valuable critical speech. Cases like these, where they get applied to criticism of state power, highlight the Constitutional concern. Being able to speak out against the state is at the heart of why we have the First Amendment, and laws interfering with that ability offend the Constitution. In this case, even if the New Jersey law had been drafted in a sufficiently narrow way to not be unconstitutional on its face by in theory only targeting speech beyond the protection of the First Amendment, applying it in this way to speech that should have been protected made it unconstitutional.

But while it's bad enough that the original tweeter had been targeted by the police for his speech, the aspect of the story that is most worrying is that police also targeted for prosecution people who had simply retweeted the original tweet. Section 230 should have barred such prosecutions. And before we so casually chuck out the statute, as so many propose, we need to understand why it should have applied here, and why it is so important to make sure that it still can in the future.

The First Amendment and Section 230 both exist to foster discourse. Discourse is more than just speech; it's the exchange of ideas. The First Amendment protects their expression, and Section 230 their distribution. Especially online, where speaking requires the facilitation of others, we need both: the First Amendment to make it possible to speak, and Section 230 to make it possible to be heard.

This case illustrates why it is so important to have both, and why Section 230 applies, and must apply, to more than just big companies. Here, someone tweeted protected speech to notify the community of concerning police behavior. Section 230 ensured that the Internet platform in this case, Twitter could exist to facilitate that speech. And it's good that Section 230 meant that Twitter could be available to play that role. But Alfaro only had 900 followers; Twitter helped him speak, but it was the retweeters who turned that speech into discourse by helping it reach the community. They had just as important a role to play in facilitating his speech as Twitter did, if not even more so.

It's important to remember that the statutory text of Section 230 in no way limits its protection to big Internet companies, or even to companies at all. It simply differentiates between whoever created the expression at issue (and can thus be held to answer for it) and who facilitated its distribution online (who therefore can't be). Given how important that facilitation role is in having meaningful public discourse, we need to ensure that everyone who performs it is protected. In fact, it may be even more important to ensure that individual facilitators can maintain this protection than the larger and more resourced corporate platforms who can better weather legal challenges.

Think about it: think about how many of us share content online. Many of us may even share far more content created by others than we create ourselves. But all that sharing would grind to a halt, if we could be held liable for anything allegedly wrong with that content. Not just civilly, but, as this case shows, even criminally.

And that chilling is not a good thing. One could certainly argue that people should take more care when they share content online and do the best they can in vetting it before sharing it, to the extent it is possible. Of course, it could also be fairly said that many people should use their right to free speech more productively than they necessarily do. But the reason we protect speech, even low-value speech, is because we need to make sure that the good, socially beneficial speech we depend on to keep our democracy healthy can still get expressed too. Which is also why we have Section 230: it is not possible to police all the third-party created content we intermediate, and if we want to make sure that the good, socially beneficial content can get through, to reach the people who need to hear it, then we need to make sure that we don't have to. When we snip away at Section 230's protection, or limit its application, we obstruct that spread and curtail the discourse society needs. We therefore do so at our peril.

Obviously in this case Section 230 did not prevent the attempted prosecution. Nor did the First Amendment, and that the police went after anyone over the tweet was an unacceptable abuse of authority that imposed an enormous cost. Discourse was damaged, and the targeted Twitter users may now think twice before engaging in online discourse at all, much less discourse intending to keep state power in check. These are costs that we, as a society, cannot afford to bear.

But at least by having both of these defenses available, the terrible toll this attempted prosecution took was soon abated. Think about how much worse it would have been had they not been. And ask why that is a future we should be continuing to spend any effort trying to invite. Our sole policy goal should be to enhance our speech protections, to impose costs on those who would undermine public discourse through their attempts at abusive process. The last thing we should be doing is taking steps to whittle away at them and make it any easier to chill discourse than it already is, and cases like this one, where people were trying to speak out against abuses of power, illustrate why.

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Filed Under: criminal charges, georgana sziszak, kevin alfaro, new jersey, nutley, protests, retweets, section 230

Continued here:

Why Keep Section 230? Because People Need To Be Able To Complain About The Police - Techdirt