Even as debates over cancel culture have swept the nation, free speech defenders have disagreed about what, exactly, cancel culture is, and what it means for freedom of speech. In many ways, these disagreements represent differences of opinion about how best to protect and uphold true freedom of speech.

And what better way to deal with questions about free speech than with a debate? Ken White is an attorney, a co-host of All the President's Lawyers, and a frequent commenter on issues of speech and law. Greg Lukianoff is the president of the Foundation for Individual Rights in Education (FIRE), a nonprofit whose mission is to "defend and sustain the individual rights of students and faculty members at America's colleges and universities." In the following exchange, the pair debate the resolution: Free speech law is the best defense against cancel culture.

This is a golden age for free speech in America.

For more than a generation, the United States Supreme Court has reliably protected unpopular speech from government sanction. The Court's staunch defense of the First Amendment is remarkable because it has transcended political partisanship and upheld speech that offends everyone, including the powerful.

In overturning flag burning laws, the Court protected (literally) incendiary speech that remains intolerable to many Americans. Years later, in upholding the right of Westboro Baptist Church to picket the funerals of servicemen with vile homophobic insults, the Court aggrieved both the left and the right, permitting violation of norms of veneration of the military and against hate speech. The Court has protected scatological and humiliating ridicule of public figures and overturned laws purporting to bar "disparaging" or "immoral or scandalous" trademarks, firmly establishing that offensive speech is free speech.

Crucially, the Court has repeatedly rebuked demands that it create new First Amendment exceptions based on the tastes of the moment. Instead, it has adhered to a select, narrowly defined list of historical exceptions, rejecting efforts to create a general "balancing test" that would determine whether speech is protected by an ad hoc weighing of its value and harm. The Court's defense of free speech is not perfectstudents and public employees have seen some narrowing of rightsbut it is unprecedented in American history, and in sharp contrast to the Court's halfhearted defense of Fourth, Fifth, and Sixth Amendment rights.

Moreover, Congresstypically not a reliable defender of rightshas contributed meaningfully to our freedom to speak without fear of legal retaliation. For decades, Section 230 of the Communications Decency Act of 1996 has made online discourse feasible by protecting websites from lawsuits based on the speech of visiting commenters and users. The SPEECH Act, enacted in 2010, protects us from libel tourism by making foreign defamation judgments unenforceable in the United States unless they comply with our robust free speech protections.

Of course, rights are enforced by courts, which can make them more theoretical than actual. Access to justice is inconsistent, and the litigation process is hideously expensive and burdensome. But we've witnessed an explosion of First Amendment advocacy groups from every part of the political spectrum willing to vindicate Americans' rightsincluding the Foundation for Individual Rights in Education.

Yet gloom and despair dominate public discourse about free speech. We're told that free speech is in decline, under siege, subjected to constant threats.

It's true that the First Amendment is constantly under attack and requires ongoing protection from legal assault from all sides. But the prevailing narrative isn't about official threats to speechthat is, threats involving state action that would violate the First Amendment. Instead, we're consumed with a debate about free speech culturea disagreement about whether some speech is impermissibly threatened by other speech. That's "cancel culture": the notion that some people's exercise of their rights to free speech and free association impedes others in exercising those rights. It's a clash of norms, not of laws.

The notion that free speech norms impact free speech rights is not new. The legal system won't reliably protect rights unless the culture values them. Consider how our unreflective "law and order" culture has degraded Fourth, Fifth, and Sixth Amendment rights. Judge Billings Learned Hand articulated it perfectly in his "Spirit of Liberty" speech in 1944: "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it." The project of cultivating a cultural respect for free speech is completely legitimate.

How do we protect free speech norms? With our free speech rights, grounded in the rule of law. Cancel culture and denunciation of cancel culture are competing norms in the protected marketplace of ideas. You can't burn down the marketplace in order to save it. Efforts to use state force to tamper with the marketplace to sort "valid" criticism from "invalid" cancellation inevitably result in less free speech, not more.

Consider ongoing efforts to use punitive laws to stop the Boycott, Divestment and Sanctions (BDS) movement against Israel, which put a government thumb on the scales by declaring that some forms of free speech and free association are an impermissible way to protest. Or consider how quickly J.K. Rowling, a very wealthy person who styles herself a victim of cancel culture because of the reactions to her comments about transgender people, uses threats of legal action under the U.K.'s regrettable defamation laws to force retractions and apologies from critics, nominally in service of some right to speak without "unfair" criticism. You can't win real free speech with censorship.

So what does it mean to use legal norms to protect cultural norms?

It's common for people criticizing cancel culture to say "we're not talking about law, we're talking about culture and behavior." Sure. But knowledge is power, and ignorance is poisonous.

Dialogue about free speechincluding about free speech cultureis often shot through with misunderstandings and disinformation about our legal rights. For instance, the debate over how social media platforms should be moderating unpopular speech is dominated by propaganda and gibberish about Section 230. That's bad for culture and civic society, because you can't effectively rely on or defend a right you don't understand.

Debates about free speech need not be limited to the law, but they should not mislead about the law. For example, when FIRE criticizes private universities for censorious policies, they take pains to point out that private schools are not bound by the First Amendment but should be bound by their promises of free exchange of ideas. That approach combines robust discourse about culture with accurate information about rights.

Many people who are concerned with cancel culture are acting in good faith and not trying to push a political agenda. But some people are. Cancel culture like any somewhat useful descriptive termis cynically used to mean "things I don't like" and "liberals suck." Take our president:

The problem isn't just that this reflects a completely unprincipled definition of cancel culture. The bigger problem is that the president (and many other politicians) decry cancel culture while wallowing in it by seeking to inflict social and economic consequences against speakers they don't like.

In fact, I respectfully submit that most complaining about cancel culture is insincere griping meant to convey "liberals are bad." This is part of a general political effort to associate free speech with the right and censorship with the left. (That effort isn't just historically laughable and demonstrably untrue, it's terribly shortsighted and counterproductive if your goal is to sell young people on free speech culture.) As a result, when people of good faith, like my friend Greg Lukianoff, talk about cancel culture, they're viewed with skepticism. They cannot pretend that their arguments exist in a vacuum; they exist in a culture of relentless, unprincipled misuse of the phrase.

So what can they do? They can use the rigor you would associate with legal norms. They can explain their terms, debate principled definitions of what is objectionable, and call out political misuse of the concept, so that their discourse can't be mistaken for mere partisanship. That brings us to the next way legal norms can inform this debate:

The debate over cancel culture is best conducted using specific examples, as you would in a legal argument, not broad generalities.

There is, for instance, a fairly broad consensus that the firing of David Shor was unjust and contemptible. So why not say so explicitly? The now-famous Harper's magazine letter about cancel culture didn't. It relied, instead, on somewhat vague allusions to cases, and on general criticism of "intolerance of opposing views" and "a vogue for public shaming and ostracism"terms that are very susceptible to exactly the sort of cynical political misuse I'm talking about. It should not have shocked the authors that their audience, steeped in our current political culture, read it as a partisan wolf in principled sheep's clothing. Couching the debate in specific cases, like Shor's, will help as much as rigorous definitions.

The point of the law is to sort out competing claims of rights. Any debate over cancel culture must do so as well. The things decried as "cancellation" of free speechpublic denunciations, calls for firings and boycotts, and so forthare indisputably other people's free speech. Just as a legal argument won't persuade if it ignores the claims of the opposing party (well, unless it's a D.A. arguing), the cultural argument won't persuade if it amounts to shut up so I feel more comfortable talking.

This is particularly true because cancel culture is used so flexibly to mean anything from demanding that someone be fired for saying something offensive (which might be a principled definition) to criticizing that person for saying it because doing so might be "mob action" that contributes to cancellation. Everyone's free speech rights are equal before the law. "There's no right not to be offended" is indisputably true, but so is "there's no right not to be criticized." These rights should be equal philosophically, too. People arguing that cancel culture is bad need to confront the fact that boycotts, group public condemnation, and even demands for firing are the sort of speech that comparatively obscure and powerless people have available to them.

And finally, in legal advice I always give to clients:

Like any Very Online debate, cancel culture is a bright flame attracting huckster moths, eager to gather money and attention by portraying themselves as its victimsjust subscribe here to learn all about it! Exercise prudent skepticism.

Debating free speech values is good. A little legal rigor wouldn't hurt.

Free speech culture is more important than the First Amendment. It's more important because free speech culture is what gave us the First Amendment in the 18th century. It's what kept free speech alive in the 19th century. It's what reinvigorated the First Amendment in the 20th century. It's what informs the First Amendment todayand it is what will decide if our current free speech protections will survive into the future.

The thinking that culture can be separated from the law is an odd sociological, let alone legal, theory, especially in a common law country. Indeed, the most important book in the history of freedom of speech, John Stuart Mill's On Liberty, is primarily a philosophical, not legal, argument against a repressive/conformist culture. The same is true of the most important book on freedom of speech in the last 50 years, Jonathan Rauch's Kindly Inquisitors. And the greatest speech on the nature of a free society, Judge Billings Learned Hand's 1944 "Spirit of Liberty" speech, explicitly argues that culture trumps law: "I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts," he said. "These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it."

Indeed, the framers of the Constitution and the First Amendment itself were heavily influenced by the cultural norms of the mother country and by radical free speech advocates like John Lilburne. They also benefited from free thinkers like Montesquieu, Francis Bacon, John Locke, David Hume, and the colonial experience in which the press and individual free speech was essentially impossible to control. The Bill of Rights in many ways is a summary of cultural values of what had previously been called "free-born Englishmen."

What does free speech culture look like? Popular idiomslike "it's a free country"are one good window into cultural values, and free speech values are not absent from our idioms. The folk wisdom of "to each his own," and "everyone's entitled to their own opinion" can be found all over First Amendment law and is mirrored in quotes, including my favorite in West Virginia Board of Education v. Barnette (1943): "Freedom to differ is not limited to things that do not matter much."

The sentiments "different strokes for different folks" and "who am I to judge?" find their legal analogs in cases including Cohen v. California's great line"one man's vulgarity is another's lyric"from 1971.

Notice, many idioms that were common when many of us were younger just don't have the same cultural force they used to have. Indeed, "sticks and stones" is regularly made fun of and misrepresented as being an incorrect folk notion rather than a mantra a free society teaches its children to help them deal with the burdens of everyday life. Free speech culture is a culture with a high tolerance for difference; a general presumption that, for most of us, our personal political opinions don't matter all that much for our day-to-day lives: "To each his own."

Free speech culture started to decline on college campuses in the mid-1980s, when campuseswhether they knew it or notstarted adopting the idea of "repressive tolerance." This was the belief that free speech protection for minority opinions did not go far enough. Instead, campus authorities should censor hateful speech. Of course, on campus, their political ideology was entirely dominant, giving them a skewed view of the importance of free speech for minority opinions in the off-campus world.

Luckily, lawyers and judges largely educated before the rise of repressive tolerance norms continued to zealously protect it. However, we kid ourselves if we believe our legal freedoms will survive if our free speech culture is undermined by the institutions entrusted to educate future citizens, leaders, lawyers, and judges.

The idea of free speech culture will always be frustrating to lawyers because it doesn't have the specificity of law. Of course, free speech law is more specific than free speech culture; law is about rules, while culture is about norms. That free speech culture is less specific than law does not make it less powerful. As Charles Davenant had mythological King Thoas observe in 1677's Circe, there is great power in "Custom, that unwritten Law, By which the People keep, even Kings in awe."

Oddly, some lawyers think of the law as something barely influenced by culture. But what about, for example, gay marriage? It only became legal after the culture accepted its legitimacyan unthinkable development 50 years ago.

What does free speech culture look like? Free speech culture means high tolerance for difference. It means a general presumption that, for most of us, our personal political opinions don't matter all that much for our day-to-day jobs: That those with "terrible" opinions can still be amazing lawyers, artists, scientists, and accountants, and people with "good" opinions are not necessarily good at anythingindeed, they might be a little too conventional to contribute interesting things to art, science, or social innovation.

The idea that bad people can be beneficial to society, and good people might be useless, is something that seems heretical in the context of cancel culture, which deems nasty things said in tweets 10 years ago relevant.

Cancel culture comes from our natural instinct to silence dissent. The desire for compliance and conformity is reflected in most of human history. It's deeply ingrained in all of us. We did not have to learn to censor others, we had to learn to be tolerant of nonconformity. We had to learn not to burn the heretic.

Cancel culture is a useful term for delineating the social media era expression of the ancient desire for conformity. Pervasive social media means that things that might have previously been ignoredangry letters sent to The New York Timesare now potentially successful efforts to mobilize a sufficient number of people to ruin lives. Early attempts to describe the new phenomena are instructive, including my own short book Freedom From Speech (2014), the documentary Can We Take a Joke? (2015), and Jon Ronson's So You've Been Publicly Shamed (2015).

So how would I define cancel culture? Broadly and tentatively, of course. How about:

"Cancel culture" is a term to refer to a relatively recent (post-2013) uptick inand success ofideologically driven efforts to get individuals fired or otherwise cast out of acceptable society for non-conforming speech or actions, including speech that would have once been considered trivial, private, or unrelated to someone's job. It is tightly related to the rise in social media, which allows for unparalleled collective policing of ideological norms, and the comparative ease of creating online "outrage mobs."

Cancel culture is in my view, the progeny of campus "callout culture" that Jonathan Haidt and I explore in our book The Coddling of the American Mind (2019). Some characteristics of campus callout culture looks similar to cancel culture, including: 1) the conflation of expressions of opinion with physical violence, 2) the use of ad hominem rhetorical tactics which delegitimize the person and soften or ignore the substance of the argument), 3) the elimination of concern for the intent of targeted speech, relying solely on its claimed effect, 4) a high reliance on guilt by association and theories of "moral pollution" (a concept well explained by my colleague Pamela Paresky), and 5) appeals to authority to punish or remove the targeted speaker (also known as moral dependency). None of these criteria are required to be part of cancel culture, but some or all of these characteristics often are.

Cancel culture often relies on speech that is already unprotected under First Amendment law, including threats of bodily harm and outright harassment. In other cases, cancel culture demands behavior from others that would be unconstitutional or otherwise unlawful. While, for example, you're absolutely free to advocate for less free speech by, for example, demanding a professor be fired for their expression, if a public university were to act on those demands it would violate the law, plain and simple.

The forces of conformity are very strong in humans, and we've given them superpowers in recent days. It must be opposed. Diversity of opinion, the right to individual conscience, the power of thought experimentation and devil's advocacy are important for a free and innovative society.

What does a culture look like that has a strong free speech culture, but not favorable law? France in the 18th century is a good example. It was one of the greatest philosophical periods in human history. It featured thinkers like Voltaire, Diderot, Rousseau, Montesquieu, and milie du Chtelet, as well as salons, like those of Baron d'Holbach, attended by thinkers like David Hume, Adam Smith, and Benjamin Franklin. Sometimes these thinkers and writers had to flee France to avoid arrest, and sometimes they were arrested, but the cultural norm of open discussion was so strong they kept writing and innovating and challenging norms and beliefs.

And what does a country look like that has no free speech culture, but good free speech law? Consider the following guarantees of free speech, from other countries' constitutions:

Each of these sounds similar to our own First Amendment's speech promise. And if you want to know how they are working out, you can visit Russia, North Korea, and Turkey, respectively.

And while these are stark examples, free speech is even under threat in the nominally "free world," including in Spain, Britain, and France, where people have been imprisoned for rap lyrics saying the wrong thing, reading the wrong thing, or having the wrong reaction in a Facebook post.

That's where we could be headed if we don't remember that free speech culture is more important than free speech law. A free speech culture can exist without protective law, but not the other way aroundat least not for very long.

My friend Greg Lukianoff is passionate about free speech, as befits someone who has fought so effectively for it. We have few legal disputes about the scope of the First Amendment. Moreover, as a matter of taste, our views about cancel culture are often consistentI, too, think that demands that people suffer economic consequences for disfavored speech are often counterproductive and destructive to civic society. But my view of the current public dialogue about free speech culture is substantially more cynical than his, and there we differ.

Greg asserts that free speech culture "gave us the First Amendment in the 18th century" and "kept free speech alive." That culture has always been more aspirational than actual. The free speech culture that produced the First Amendment also promptly produced the Alien and Sedition Acts. The dawn of the modern age and mass media gave us broad justifications for censorship of political speech, cultural repression, and suppression of minority views and values.

Though Americans support free speech in the abstract, that support often breaks down when we are confronted with specific examples of speech we don't like. The history of the First Amendment is a history of Americans struggling mightily against other Americans trying to silence them. If free speech is in our national DNA, so is censorship.

That's a fundamental flaw in the current popular cancel culture narrative. It suggests, expressly or implicitly, that America enjoyed some golden age of cultural tolerance for speech. But did we? Did we really? If so, when was it? I submit that there was never such an age, and that unpopular views have always met with social and economic repercussions in America.

We can strive to do better, but we shouldn't distort history by claiming that people now are more censorious than they were before. We can argue, for instance, that Americans should be able to express disapproval of gay marriage without losing their jobsbut that shouldn't lead us to suggest that America was previously a safe place to express pro-gay views, when it manifestly was not.

Why does this matter? It matters because the loudest voices condemning cancel culture in America are not people of good faith like Greg. The loudest voices are using the issue as a cynical political wedge from the right to attack the left.

They're the same voices who try to get people fired for speech when that speech is offensive to them, when that speech comes from the left. The "golden era" conceptthe suggestion that there was a better time for social tolerance of speech in America, and it's now been spoiled by millennials and progressivesis not just wrong, it's nakedly partisan, and it's part of the same effort to make free speech culture into a political weapon.

Making free speech a partisan issue is foolhardy, and true free speech defenders must resist it. The First Amendmentand free speech culture more broadlyrely on a sometimes tenuous bargain. The bargain is this: We all agree not to use the power of the state to punish speech that makes us mad, and instead to use the power of the marketplace of ideas to fight it. That deal convinces Americans to refrain, at least some of the time, from state censorship of some truly despicable and upsetting speech.

But what if we now tell Americans that yes, they have the marketplace of ideas, they have the ability to respond to speech they hate with "more speech"but that more speech shouldn't be too harsh? What if we tell themand especially young people, who tend to be far more left-leaningthat we should see harsh responses to ugly speech as "liberal" and mild responses as "conservative"? Their natural reaction may be to see the free speech "deal" as a partisan sham, a rationalization for preferring the speech and feelings of one group over the other. It's hard to imagine a better way to lose an entire generation's commitment to free speech values.

To be taken seriously, cancel culture critiques must be doggedly nonpartisan and overtly hostile to political misuse. They must also strive for evenhandedness. Critics shouldn't impose norms on "more speech" that they don't impose on the speech it's rebutting.

So, for instance, if you're concerned that widespread condemnation of a professor's column chills speech, you might ask at the same time whether the professor's description of student activists as a "terrorist organization" was also chilling. More speech is free speech, entitled to the same legal and cultural protection as the speech to which it responds. A philosophy that criticizes one to the exclusion of the other will not convince Americans.

Ken White and I are both great admirers of American First Amendment law. I believe it's the best body of thought on how to have freedom of speech in the real world. Where Ken and I differ is that I believe free speech culture and law are (almost) inextricable. We interpret law through the lens of culture, and culture is what makes our law possible and effective. The list of countries that have good free speech laws on the books, but have no free speech because they utterly lack a free speech culture, is long.

We are extremely lucky that our Supreme Court is populated by attorneys educated or coming up during the 1970s, arguably the best decade for both free speech culture on campus and free speech law. However, I've seen a stark decline in student respect for, or understanding of, speech norms over the past decade, and I believe this will inevitably lead to an eventual decline in law.

As I've recounted countless times, from 2001 to about 2012, the students were the best constituency for free speech on campus. Then, in the 201314 school year, students started to demand new campus speech codes and disinvitations, claiming that the presence of people with certain views was medically harmful. Conservatives had railed against campus narrow mindedness for years, but starting in 2014, more and more liberals and left-of-center people grew concerned about the trend, as well. As researchers would discover, the population hitting campuses around 20132014 were less tolerant of free speech.

Because the Foundation for Individual Rights in Education works exclusively on campus, I saw this change in real time and on the groundboth figuratively and literally. In 2015, I filmed Nicholas Christakis when he was encircled by Yale students calling for him to lose his job.

As more members of Generation Z hit the "real world," free speech norms like tolerance for political differences will erode. A 2020 Cato/YouGov survey found that 27 percent of Americans under 30 would support firing a business executive who personally donates to Joe Biden's campaign; 44 percent support firing a similar Donald Trump donor.

Ken warned me about grifters, charlatans, and Trump tainting my argument. But this is the kind of guilt-by-association argument I am fighting: "Bad people make argument, therefore argument bad!" Never mind that I was speaking about this phenomenon years before anyone imagined a President Trump. Yes, Trump pointed out a rising intolerance on the left, but former President Barack Obama has also made similar arguments several times over, and continues to do so.

So have former presidential candidates Bernie Sanders and Elizabeth Warren.

Ken is a friend who I love, admire, and respect, but I have to vent some frustration. I've seen a lot of hostility to the idea of free speech culture coming from people who defer to Ken's point of view. If Ken is concerned about free speech cynicism, he's fortuitously positioned to help stop it.

So, I have some requests of Ken, but, more importantly, of his fans, and for many others.

Not everybody who cares about freedom of speech is as well-versed in its nuances as Ken and me. I try to give people the benefit of the doubt, and even expect people to be inconsistent, because that's part of human nature. Sometimes free speech defenders can disagree about what should be protected, may still be learning, or just made a bad call once. If the price of chiming in to say "I believe in free speech" is to be called out as a presumptive hypocrite, why wouldn't people become cynical?

If someone usually disagrees with you, but actually agrees with you on a particular free speech incident, welcome their help rather than fixate on what you consider to be their previous hypocrisy (which sometimes isn't even there).

Jonathan Rauch, Nadine Strossen, and I and many others are people who actually work in this profession; Milo Yiannopoulos and Charlie Kirk, for example, are explicitly partisan and only care about free speech for ideological allies. In my experience, speech professionals are thoughtful and consistent, and should not be dragged down because grifters exist, as they have always existed.

Many people follow Ken's example by tweeting something about how people on the right "don't care about these casesin your face, conservative!" But few realize what else he does: Send the cases our way and actually support our work. Be more like Ken and do more than dunk on your opponents: Spread the word, contact the school, and urge other influential people to join the profree speech side.

Ken and I don't have to agree on the value of free speech culture. But when people are fostering contempt and cynicism about free speech it makes the job of actual free speech fighters, including both Ken and me, much harder. If we preoccupy ourselves with distancing ourselves from the "bad" folks, we will eventually cede free speech to the grifters.

It's okay that people deemed "bad" by internet mobs agree with me about cancel culture. Indeed, I would like more people to come out against cancel culture; most Americans are against it but may be afraid to say so. I may be greedy, but I'd like both strong free speech law and a strong culture.

Therefore, I would like more people to return to the idioms of a free society: How about "everyone's entitled to their own opinion," "it's a free country," "address the argument, not the person," and maybe a new one: "Even people I hate have to make a living."

More here:

What's the Best Way To Protect Free Speech? Ken White and Greg Lukianoff Debate Cancel Culture - Reason

Religious litigants were successful this Supreme Court Term wielding their religious identity as both a shield and a sword. The Roberts Court delivered just what they ordered: ever more expansive rights to government funding, based on their right not to be discriminated against, and mounting immunity from the employment discrimination laws. Thanks to President Trump, the Court now has a conservative, religious majoritywhich is composed of four Catholic men (Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh) and Justice Neil Gorsuch, who is apparently Episcopalian. They were a well-oiled machine delivering for religious believers with nary a concern about who might be harmed.

As religious litigants succeed in expanding their opportunities for government-sourced income streams, and eschew the legal obligations on everyone else, they also persist in their expectations of no public accountability about their finances. Unlike other nonprofits, they maintain their tax-exempt status without having to truthfully disclose their actual finances, donors, or lobbying activity. The result is a greater capacity to pursue government funds under cover, e.g., the PPP loans through which the Catholic dioceses and parishes raked in $1.4 billion, and an ever-increasing power to impose their beliefs on their employees, whether co-believers or not.

There was a time when the separation of church and state, that concept devised by Baptist preacher John Leland and embodied in James Madisons First Amendments Establishment Clause, meant that the government was foreclosed from moving tax proceeds into religious coffers. Madison, the drafter of the First Amendment, railed against taxpayer support of religious education in his 1785 Memorial and Remonstrance Against Religious Assessments. He said not even three pence in taxes should flow from a citizen to support religious education. Why? Because government financial support of religion is bad for religion and bad for government; it leads to a union of power that the framing generation understood leads to tyranny.

One of the projects of religious lobbyists and some law professors since the 1990s has been to open the sluice to increased government funding of religious education and activities. They shrewdly adopted the vernacular of discrimination, arguing that if any other entity was receiving taxpayer funds, well, then, they should, too. Their first major success was in 1995 in Rosenberger v. University of Virginia, where the Court ruled 5-4 that the University of Virginia was required to financially support a religious club engaged in proselytization if it also supported secular clubs. The decision planted the seed they hoped to cultivate that religious entities must be treated equally with all others that receive government dollars. They reasoned that if they are not included as beneficiaries of public funds, they are victims of discrimination. Dont worry about James Madisons concern about corruption and an unholy union of power. Instead, accept that religious entities and secular entities are the same when it comes to funding.

In 2017, the Roberts Court gave that seed a heavy watering with the Chief Justices majority opinion in Trinity Lutheran Church v. Comer, holding that a church must receive recycled rubber playground resurfacing if other playgrounds did as well. This Term, in Espinoza v. Montana Department of Revenue, Roberts took the Court one step farther, holding that the government cannot have a scholarship fund that includes private schools but not religious private schools. This was a victory for private religious schools coffers.

While they have posed as the victims of unfair discrimination in government funds, religious entities have also pushed an agenda of discrimination against their employees. In other words, they have seen no need to draw a connection between public values like nondiscrimination and the fact they are demanding taxpayer proceeds and tax-free status.

In the 1980s, religious lobbyists with their supportive law professors took to the legislatures to demand what they are fond of calling autonomy. They frequently argue that they are so special that while they should be treated as equals in terms of finances, they should not have to obey the laws meant for everyone else. They may piously demand equal treatment when it comes to government dollars, but they are determined to be able to discriminate against their employees at will in as many ways as possible. Three cases this Term enhance their power to discriminate.

Their preferred mechanisms for avoiding the obligations of the law are the Religious Freedom Restoration Act (RFRA), and a doctrine called the ministerial exception.

This Term, the Roberts Court in an opinion by Justice Alito enlarged the ministerial exception in Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, to hold that lay teachers at Catholic schools are not protected by the federal laws against age discrimination or disability discrimination. Alito intoned how very religious their teaching activities were, without once making a nod to how devastating it can be to lose your job because of your age or cancer diagnosis. Employees of religious entities beware: regardless of what the faith believes, they can violate your civil rights on a whim (after they pay you a pittance compared to other private schools and public schools).

The less-noticed moment of a newly defined power to discriminate appeared in the Bostock v. Clayton County case where Justice Gorsuch wrote for the majority. The headline from this case was that sex in Title VII includes LGBTQ and so employers would not be permitted to discriminate against their gay or trans employees. This seemed like such a progressive opinion! Yet, read the opinion to the end where Gorsuch laid the foundation to permit anyone to discriminate against LGBTQ under Title VII if they are able to articulate a religious reason for it.

At the end of the majority opinion, Gorsuch went out of his way to point out that the employers in that case did not raise a religious defense to the claims, but if they had, there is an escape hatch: RFRA. Before you become comfortable thinking, well, that wont apply to major corporations, please remember Burwell v. Hobby Lobby. In that case, a for-profit lucrative arts and crafts chain successfully invoked RFRA to deny women employees contraceptive coverage that conflicted with the owners faith. That would otherwise be a violation of the womens rights against gender and religious discrimination under Title VII, but as Gorsuch declared, RFRA is a super statute. Thus, Bostock modified by RFRA opens the door to discrimination against LGBTQ employees by individuals, nonprofits, and for-profit organizations.

RFRAs capacity to undermine public health in Hobby Lobby was reinforced this Term in Little Sisters of the Poor v. Pennsylvania, where the majority, in an opinion by Justice Thomas, held that the Trump administrations evisceration of the contraceptive mandate (requiring no-cost contraception for all women) through broad religious and moral exemptions was supported by RFRA. As with all of these decisions, the spotlight was trained on the religious actors while their victims essentially sat in the dark, off to the side, ignored by the justices who were busy constructing a separate world for fellow believers without the bothersome Lockean obligations of a shared society.

Essentially, the conservative members of the Court have built a functional and operational establishment. They have created entitlements to government support, while they have built shelter for religious entities and business owners from the principles of fairness and accountability that undergird Title VII.

Madison sagely described the effect of religious establishments on civil society: sometimes they erect a spiritual tyranny on the ruins of the Civil authority and at others, they have been seen upholding the thrones of political tyranny. Either way, according to Madison, they have not been the guardians of the liberties of the people.

Amen to that.

Read more:

Religious Entities Flex Their Muscles Through the Roberts Court, Playing Both Sides of the Discrimination Coin - Justia Verdict

White evangelical voters abandoned Carter in droves for the GOP, and that alliance has only solidified over time. (Black evangelicals, who have a long history of political engagement going back to the civil rights era, did not follow the same path; they overwhelmingly identify as Democrats, though dont always align with the party on social issues.) Three quarters of white evangelicals supported Donald Trump in 2016 and their support for him remains high. But his approval among this group has dipped in recent months.

Its not clear that this will translate into more votes for Democratsdefectors could stay home or vote third partybut there are at least some signs of change. Forrester of Christian Democrats of America said that her organizations Facebook group has had a lot of evangelical converts join since the election. In the 2016 presidential election, 16 percent of white evangelicals voted for Hillary Clinton; in a recent survey, 17 percent said they would vote for Biden.

That could bode well for the small but growing number of religious candidates embracing the more liberal evangelical tradition embodied by Carter. In Georgia, the Rev. Raphael Warnock, a pastor at the evangelical church where Martin Luther King Jr. once preached, is running for U.S. Senate as a Democrat. In Missouri, Christian pastor Cori Bush is running for Congress. In Colorado, evangelical immigrant rights activist Michelle Warren, having fallen just short of making the ballot in her U.S. Senate bid this year, is already planning another run.

Often, these candidates have views that largely align with core progressive positions like a womans right to choose, marriage equality, action on climate change, immigrant rights and an expansion of the social safety net. Some have won high profile endorsements. Warnock was endorsed by Stacey Abrams and led the Democratic field in fundraising; Bush was endorsed by Alexandria Ocasio-Cortez; and Scholten has the endorsement of Senator Elizabeth Warren and the progressive organization Emilys List.

But the backing of Democratic heavyweights doesnt guarantee support from progressive voters, many of whom view religion with skepticism. In a 2019 poll, 44 percent of Democrats said churches and religious organizations "do more harm than good in American society." A large majority of Democrats said "liberals who are not religious" have too little or just the right amount of control over the party. Only 15 percent said they had too much. Last year, the Democratic Party passed a resolution explicitly embracing atheists after lobbying from secular groups.

Some progressive voters interviewed for this story worry that overtly religious candidates, even Democrats, will inevitably blur the line, established by the First Amendment, between church and state. It needs to be utterly and completely separate, says Andrea Geralds, a pro-choice, hardcore constitutionalist from Michigan who does not live in Scholtens district. There is no middle ground for me. Even when candidates of faith say they unequivocally support the First Amendment, Geralds remains unconvinced. As far as I'm concerned, they're probably lying, she says. She is less distrustful when it comes to other faiths. When people say, Well, are you saying that about X religion? No, I'm saying it about evangelicals, because evangelicals are actively trying to harm people in my country. She says that if given the choice between a progressive evangelical candidate and a Republican, she would stay home.

Wil Schweitzer, an independent in Georgia who believes abortion is a private matter and people who are LGBTQ deserve equal rights, is similarly skeptical about Warnocks senate run. When I see Reverend beside a name that is asking to be elected into a position of power, red flags go up, he says. He said he will not vote for Warnock in the states special general election this November.

Like Scholten, some religious candidates have moved away from calling themselves evangelical because the label, as popularly understood, no longer aligns with their values.

Pastor Bryan Berghoef, who is running in Michigan in the district next to Schoeltens, once considered himself evangelical but stopped identifying personally with the term a decade or so ago. He isnt surprised that some voters are uncomfortable. They've only seen the conservative, ugly side of it, he says.

Berghoef is running in a red district that is more tolerant ofand arguably demandspolicy positions that could easily sink a candidate in states like California or New York. He is pro-choice, but believes that reducing the number of abortions, through progressive policies like expanding access to health care and providing a living wage, is an important goal (a once mainstream position that Bill Clinton described as abortion being safe, legal, and rare). Berghoef is popular among local Democrats, in part for his long record of advocating LGBTQ rights and racial justice. In November, he will face off against Republican Bill Huizenga, who is currently under investigation for ethics violations.

Politically, religious candidates must walk a fine line between being true to their religious convictions, which can sometimes give rise to more centrist positions, particularly on social issues, and alienating a progressive base that has swung decidedly leftward.

In 2018, Tabitha Isner, an ordained pastor and a Democrat, ran in a deep red district in Alabama. Isner is a member of the Christian Church (Disciplies of Christ), a progressive church that welcomes LGBTQ parishioners and clergy. But when Isner, who supports gay rights, was asked at a campaign event about a bakers right to refuse service to gay customers, she admitted that she wrestled with the question. I said, Well, this is hard, she recalls. I struggle with that as a person of faith, not because I would ever discriminate against gay people but because I understand the value of religious freedom.

She was skewered for it in progressive circles. I lost five gay friends who just thought it was outrageous that I would try to empathize, Isner says. We have a real chip on our shoulder as a party about Christians.

Of course, with a second Trump term on the line, the possibility of cutting into the presidents evangelical base could prove too hard to resist, even for Democratic voters skeptical of religion. Lori Goldman, founder of Fems for Dems, a political action committee in Michigan that seeks to elect progressives, said her organization would support any candidate whose policies align with progressive values, though she acknowledges deeply religious candidates give her pause. I get a bad taste in my mouth, she says. People have done the most egregious things in the name of religion since the beginning of time.

For her part, Scholten talks about her faith openly on the campaign trail. I think that voters have a right to know the person who is representing them, she says. The local leader who expressed skepticism at first eventually came around, too. He said, You're a Christian mom who is a civil rights attorney and wants to run as a Democrat in western Michigan, Scholten recalls. This is either going to be the flip of the century, or we're going to go down in flames.

Link:

Could These Evangelical Democrats Change the Party? - POLITICO

The right to free speech in Americaneeds to be protected, Princeton Universityjurisprudence professor Robert George statedFriday.

George's comments during an interview on"Fox News @ Night"came following a Michigan bed and breakfast's decision to remove their Norwegian flag afterdozens wrongly accused the owners of flying a Confederate flag.

MICHIGAN INN REMOVES NORWEGIAN FLAG AS RESIDENTS FALSELY BELIEVE IT'S THE CONFEDERATE FLAG: REPORT

According to reporting from WLIX, when Greg and Kjersten Offbecker created the St. Johns inn -- named The Nordic Pineapple -- they installed the flag, hanging an American flag alongside it.

The pair then beganto receive cruel emails and phone calls. Some were even convinced that the "B&B" was built by Confederate leaders when, in fact, union workers constructed the Civil War-era building forthe daughter of the Saint Johns founder.

Kjersten Offbecker said the flag was hung as a way for her to represent her Scandinavian heritage. However, with the confusion, she took it down because she said it was not worth the frustration.

The Norwegian flag has the same colors as the Confederate flag, but the patterns and symbols are different. The Confederate flag is red with a blue X containing white stars.

"It's a combination of a very bad attitude and a great deal of ignorance," George remarked. "You would think that Americans would be able to tell what is and isn't a Confederate flag -- even if it's a flag that, in some ways, resembles a Confederate flag.

"But, look at how quickly people just turn to outrage and tried to shut these people down because they thought they had broken the rule against wrongthink..." he told host Shannon Bream. "So, the combination of malice and ignorance is really toxic."

George highlighted the importance of speaking upin defense of the free speech rights of those you strongly may disagree with.

"Temple University was under pressure to discipline [Professor] Marc Lamont Hill for some statements that I very strongly disagreed with. But I, nevertheless, threatened to myself lead a protest...in defense of the free speech rights of the very progressive Marc Lamont Hill," he explained. "Because he has every bit of [a right to] free speech as I have or as anybody else has.

CLICK HERE FOR THE FOX NEWS APP

"The First Amendment is for all of us," George pointed out.

"It's not the property of the left. It's not the property of the right. It's not the conservatives'; it's not the liberals' [property]. It's everybody's right..." he said.

"And so, we need to protect the free speech rights and stand up for the free speech rights of those we oppose," George urged.

Fox News' Jack Durschlag and The Associated Press contributed to this report.

Here is the original post:

Princeton professor pushes back on cancel culture on campuses: 'First Amendment is for all of us' - Fox News

The U.S. is panicking over TikTok. After President Trump announced that he was considering banning the popular video-sharing app, Reuters reported that the administration has given Microsoft a 45-day deadline to finalize an acquisition of TikToks U.S. operations from the apps parent company, ByteDance. In doing so, the president is responding to legislators'and policymakers worries about the Chinese government using the app as a vector for espionage and election interference, perhaps through tweaking the TikToks algorithm to favor or disfavor videos supporting one candidate or another. In response, TikTok has claimed independence from the Chinese government and argued that any U.S. government action will be unfounded and discriminatory.

So do American politicians' concerns over TikTok have any merit, or is this just an instance of overblown fearmongering? ByteDance, the Chinese company that owns TikTok, has a more complicated relationship with the Chinese government than many American critics may realize. But if the government were intent on pressuring ByteDance to help with some kind of interference abroad, the company has little wiggle room.

In discussing the potential dangers of technology from China, Americans often lump TikTok together with Huaweiimagining these companies as run by faithful party members toiling ceaselessly to spread Xi Jinping Thought. But there is an important generational split between TikTok and Huawei. Huaweis CEO Ren Zhengfei, while certainly inspired by American managerial thinking, served in the Peoples Liberation Army and modeled much of his mindset on Mao Zedong, framing Huaweis expansion as a point of national pride. But ByteDance is run by a new generation of leaders with a very different relationship with the Chinese Communist Party (CCP).

ByteDance CEO Zhang Yiming, just 38, is this cohorts leading man. He is part of a group of nerdy software engineers who are much more liberal and open to the west than their forebears. These founders were promised a China opening to the West and were all active online back when the Chinese internet was much more open than it is today. (For instance, Zhangs posts on the microblogging platform Weibo from the early 2010s positively contrasted Americas freedom of speech with restrictions in China.) Many spent years in Silicon Valley or worked for top American tech firms in China, as Zhang did after graduate school for Microsoft. For them, to compete against Western firms overseasas TikTok has succeeded in doingis a natural evolution after saturating a domestic market. These CEOs probably want nothing to do with Chinese foreign policy.

At the end of the day, however, there is very little that these firms can do to push back in a party-state environment. ByteDance has already been repeatedly forced to bend the knee to party authority at home. Most punishingly, in April 2018, the government compelled ByteDance to shut down its popular Neihan Duanzi (inside jokes) app for good due to its vulgar content. In response, Zhang issued a letter of self-criticism, a textbook maneuver of the CCP used initially to control wayward cadres and now occasionally forced upon businesspeople. Our product took the wrong path, and content appeared that was incommensurate with socialist core values, Zhang wrote. He also promised that the firm would in the future, Further deepen cooperation with authoritative [official party] media, elevating distribution of authoritative media content, ensuring that authoritative [official party] media voices are broadcast to strength. Compare this to the relatively free reign that American tech leaders enjoy.

These nods to the party are readily apparent to users in China. I noticed that after the government crackdown on ByteDance products in 2018, advertorial-style Douyin videos about the Chinese police and army started to appear more frequentlydriven, presumably, by internal tweaks to the recommendation algorithm. Yet while such actions may reinforce ByteDances standing domestically, the firms connection to and reliance on the CCPs goodwill risks becoming a liability as the platforms market abroad grows.

For the first few years of TikToks existence, ByteDance did its best to sidestep these political issues by making a fun-only app completely divorced from politics. The original app allowed users to record just their a beautiful life, as the tagline for Douyin, the domestic Chinese version of TikTok, reads. This would include shopping sprees, snapshots of happy farmers, exercise videos and lighthearted jokes, but certainly no videos of police brutality, camps in Xinjiang or domestic protests within China.

Even as TikToks user base outside China grew, it seemed that TikTok might be able to keep politically charged content off the platform by banning political advertising and upholding a more restrictive content policy than Facebook or YouTube. The platform received some bad press early on when, in November 2019, it banned an American user who had posted a video discussing Chinas treatment of Uighurs. However, the recent surge of U.S. political activism following George Floyds killing will likely make it difficult for TikTok to keep any further meddling along these lines under the radar. Once Gen Z had its political awakening earlier this year, they simply would not have put up with a platform that suppressed their speech on political topics. Indeed, Americans on the app complained loudly when, in the week after Floyds death, posts with the hashtags #blacklivesmatter and #georgefloyd displayed on the app as having zero viewsleading TikTok to apologize and blame the issue on a technical glitch.

On July 29, TikTok USA CEO Kevin Mayer reiterated the platforms claims to neutrality, declaring that We are not political, we do not accept political advertising and have no agendaour only objective is to remain a vibrant, dynamic platform for everyone to enjoy. As much as he would like that to be true, the fact is that once TikTok outgrew its origins as a lip-syncing and dancing app for preteens and into a major national platform, it was untenable to stop Western users from uploading political content.

Now that TikToks users have mobilized politically, ByteDances power to channel that energy with its algorithm is worrisome. Many analyses of TikToks potential dangers highlight the issue of data privacybut the threat of political interference through algorithmic manipulation is, in my view, more concerning. While TikTok vacuums up user data, so too do Facebook and Google; meanwhile, and thanks to Chinas successful hacking of the U.S. Office of Personnel Management in 2015, Chinese intelligence services have more interesting personal data on current and former U.S. government employees and contractors than they know what to do with. Anything it could learn about these individuals through their TikTok usage is probably not nearly as relevant.

The potential for Chinese government interference in ByteDance is considerableand like other tech firms in China, theres little the company can do about it. The Chinese government is no stranger to using orchestrated networks on Western platforms to influence foreign opinion and interfere in elections. It has run massive Twitter operations and surreptitiously bankrolls pro-CCP Youtube channels. It worked to get pro-Beijing candidate Han Kuo-Yu elected as mayor in the Taiwanese city of Kaohsiung and posted thousands of tweets opposing the reelection of anti-reunification Taiwanese President Tsai Ing-wen in 2020. Before, when TikTok was mostly apolitical, it would have been difficult to interfere in an election by meddling with the platformsuch an effort would require more subtle forms of manipulation, like pushing happier videos to people you wanted to encourage to vote. But now that TikTok is chock-full of political contentand with tens of millions of daily active users in Americapushing certain videos to promote one candidate over another would be trivial.

Chinese tech firms are not enthusiastic partners in these sorts of foreign policy endeavors. Aside from the occasional government offer of free office space and tax benefits, these companies would generally prefer to have nothing to do with the government. Take the ridesharing company DiDis initial response to police requests for datain one instance, after twice outright refusing the request on privacy grounds, DiDi finally printed out a few boxes of documents that for the polices purposes were nearly useless. Likewise, Zhang, ByteDances CEO, is surely not happy to have to issue apology letters and face mandated shutdowns of popular products.

But Chinas national intelligence law, according to one interpretation, gives total authority to the government to compel firmsand with no independent judiciary, even extralegal pressure is very hard to resist. CCP regulators can take massive bites out of market capitalization at will, and have in the past thrown ByteDance senior leadership in jail on corruption charges. This makes keeping officials at home happy ByteDances first priority, regardless of reputational risks abroad.

So faced with increasing pressure from the United States, what can TikTok do? Kevin Xu, author of the Interconnected blog, has proposed the most reasonable path for the company to get around this dilemma. TikTok, he suggests, should make public who has access to what parts of the apps code base; this, he writes, could help prove that Chinese engineers are indeed off limits from American user data. This logic could potentially extend to the TikTok algorithm, sealing the CCP off from forcing employees based in the mainland from any nefarious manipulation.

Its not clear whether it would be technically feasible to make TikTok open-source to such a degree as to preclude the possibility of any funny business. But regardless, it doesnt look like Zhang is all that interested in pursuing the open-source pathand currently, ByteDance is sticking to Huaweis script of loudly proclaiming that it would never accede to Chinese government requests. Whats more, even if ByteDance makes gestures toward this with initiatives like transparency centers purportedly allowing independent observers to peek into the TikTok algorithm, the fundamental issue is a problem of trust and accountability. While Zhang has been trying to offshore more of the functions of ByteDances overseas products, this process is so early along that the U.S.-based engineers dont even report to Mayer, TikTok USAs CEO.

I am sympathetic to arguments that it would be a bad look for the U.S. to ban consumer-facing tech firmsbehavior that echoes Chinas ban of Facebook. However, the motivations for China banning Facebook and a potential U.S. government demand for ByteDance to divest TikTok USA would be completely different. TikToks ban wouldnt impinge on the First Amendment in the slightest, and the Chinese state-backed propaganda is still distributed in the U.S.: CGTN comes in my cable channel package and Chinese state-made videos get millions of views on YouTube.

Samm Sacks has recommended that the U.S. develop country-agnostic regulation to ensure a safe and level playing field for speech on online platforms. It would be a tall order to create this sort of regulatory regime in time for the 2020 elections, and even so I dont think a mass market Chinese consumer-facing social media app would have an easy time meeting its standards.

So what should be done? I think the U.S. government has no choice but to limit TikToks access to the U.S. market or force a sale.

The government has several options, as Bobby Chesney has explained. According to Reuters, the 45-day deadline on a ByteDance-Microsoft deal was set by the Committee on Foreign Investment in the United States (CFIUS). The committee could compel ByteDance to sell TikToks American operations to a U.S. company, in the same way that it has already forced the Chinese buyers of Grindr and PatientsLikeMe to divest their acquisitions. This would certainly be a messy and expensive process, as TikTok USA relies on a Beijing-based codebase and the vast majority of ByteDances engineers are located in China.

The administration also has the option to have the Commerce Department put ByteDance on the entity list, a move that would effectively stop American firms from doing business with the company. This tactic, used previously on Chinese hardware companies like ZTE and Huawei, would force American firms to stop buying ads on TikTok and prevent the App Store and Google Play from allowing ByteDance to push TikTok updatestwo moves that would dramatically impact the long term future of the business. As Beau Barnes, S. Nathan Park and Wade Weems write in Foreign Policy, Trump could also invoke new powers granted to the Commerce Department under the 2019 International Emergency Economic Powers Act and force Apple and Google to remove TikTok from their app stores. If the sale to Microsoft falls through or Trump decides that actually banning TikTok is the right way to go, he has the authority to unilaterally cripple TikToks global operations.

TikTok is not the only China-based app that has raised concerns within the U.S. of late. Theres also WeChata messaging app owned by Chinese company Tencent, which the White House has floated restricting access to. But WeChats situation is different, and less urgent, than TikToks.

Unlike TikTok, WeChat is first and foremost a messaging app, and the prime bridge for anyone outside of China communicating with the mainland. If the standard is whether these apps give the Chinese government an undue opportunity to subversively influence American public opinion, perhaps the best argument in WeChats defense is its scale: The app only has a few million daily active users in America, who spend most of their time on WeChat talking with friends and colleagues as opposed to ingesting algorithmically-recommended content. There certainly is censorship and surveillance on versions of WeChat outside the U.S., but these factors alone dont merit a ban for the time being.

If companies like ByteDance and Tencent are hoping to buy some time, a good place to build trust would be allowing outside researchers and governments to see exactly how content performs on their apps. But given where things stand now, it seems unlikely that WeChat will ultimately be able to deliver the transparency that the U.S. should require from large-scale platforms.

More:

The U.S. Is Right to Worry About TikTok - Lawfare

As we transition to a new team of fellows this fall, and celebrate almost one year of publishing this newsletter, wed love to learn more about you and get your feedback on how we can improve This Week in Technology and Press Freedom. Please take a few moments tofill out this surveyto help us understand what content you want to see, when you want to hear from us, and more. The survey should take about five minutes, and well keep it open until 5 p.m. ET on Aug. 24. We really appreciate your feedback!

Heres what the staff of the Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press is tracking this week.

On July 23, TPFPs Linda Moon joined author and digital strategist Tim Schwartz for a presentation titled Press Rights and Digital Safety During Pandemic and Protest.

During the virtual discussion hosted by Alley, a digital consulting firm, Moon and Schwartz discussed source protection, the right to record police and protests, and collaborating with colleagues safely while working from home.

All the legal protections for journalists and sources do not change because youre working remotely or outside of your newsroom, Moon said. Everything that applied before still applies in the remote setting.

The protections do vary, however, depending on where you are and who is interested in the materials you want to keep confidential. California and New York, for example, have strongshield laws, but there is no federal shield law that applies to federal law enforcement just federal case law, which varies by jurisdiction, and the Justice Departments internal media policy.

The pandemic and the Black Lives Matter protests have also raised questions about the legal right of reporters to travel and report during coronavirus lockdown orders and protest-related curfews, althoughmost orders have included exemptionsfor newsgathering. Courts have not squarely addressed whether such orders are required to exempt journalists, but Moon said a lockdown order without a media exemption may violate the First Amendment.

Working from home highlights the risk that law enforcement can seize a journalists communication records from electronic service providers without the journalist knowing about it.Thats becausegag orderscan prevent the service providers from informing the reporter that their information has been shared.

Law enforcement tools and discovery orsubpoenasin civil suits can be used to compel disclosure of sensitive information, and journalists have also beensubject to malware attacks.

In the face of these challenges, Schwartz, author of A Public Service: Whistleblowing, Disclosure and Anonymity, said that information control is key to preserving source confidentiality.

For communicating securely with sources, Schwartz recommended using systems, like Signal or Wire, that have end-to-end encryption, limit logging, and have a track record of publicizing any requests they receive from law enforcement.

Finally, Schwartz encouraged people to think about the security of their phones when they are at a protest, including how it unlocks (it is easier to forcefully unlock a phone that uses facial recognition than one with a passcode) and whether to leave metadata on or use a burner.

The most important thing, though, is to think about security ahead of time and practice it.

Make it a priority to talk about security with those you work with, whether its sources or those you collaborate with at work, Schwartz said. Make it a top-down and bottom-up priority.

Register hereto watch the entire webinar.

Abe Kenmore

On July 23, a Superior Court judge in King County, Washington, ruled that the Seattle Times and four local TV stationsmust comply with a Seattle Police Department subpoenafor unpublished photos and video taken during a May 30 protest against police brutality. The news organizations argued that the subpoena would harm journalists by making them seem like an extension of law enforcement rather than neutral observers. Attorneys for the Reporters Committee filed afriend-of-the-court briefarguing the subpoena would violate the First Amendment and state law in addition to putting reporters at risk.

Twitter CEO Jack Dorseyapologized on July 23for a security breach that allowed hackers, as part of a bitcoin scam, to access 130 accounts and tweet from 45 of them. The hackers also viewed private messages for 36 of the accounts. Dorsey said the company is cooperating with the FBI to investigate the incident, which allegedly occurred after the manipulation of several Twitter employees.

Seventeen internet freedom organizations, including the Electronic Frontier Foundation and Wikimedia, filed afriend-of-the-court briefin a case againstMichael Pack, the newly appointed head of the U.S. Agency for Global Media, for exceeding his authority when he fired the directors of the Open Technology Fund. Their brief emphasizes the importance of OTFs independence from the government to ensure it can fulfill its anti-censorship mission worldwide.

According to Department of Justice emailsreleasedin response to a Freedom of Information Act request, a DOJ official told Neil McCabe, a One America News Network reporter, that McCabe should reach out to FBI in response to McCabes email asking if the DOJ was cool with National Public Radio hosting an encrypted tip line. How is it then, that federal government employees could be running their own private silo for information about crimes or national security risks? McCabe asked in one email to the DOJ, mistakenly referring to NPR reporters as government employees.

A federal judge issued atemporary restraining orderbarring federal law enforcement in Portland from arresting and enforcing dispersal orders against journalists and legal observers. As Judge Michael Simon wrote, Without journalists and legal observers, there is only the governments side of the story to explain why a riot was declared and the public streets were closed and whether law enforcement acted properly in effectuating that order.

Filipino journalist Maria Ressa, who has critically covered President Rodrigo Dutertes war on drugs, moved to dismiss asecond cyber libel complaintfollowing her conviction for an initial cyber libel charge in June, both filed by the same business executive. The basis for the second complaint is a tweet Ressa posted, after being arrested for the first charge, linking to a 2002 news story about the executive that alleged he was involved in a murder. The Reporters Committee has previouslydetailedthe problematic implications when governments invoke cybercrime laws like the one here to silence reporters and their sources.

In written testimony submitted ahead of a House Natural Resources Committee hearing, Major Adam DeMarco of the D.C. National Guard said thatpolice sped up clearing efforts and used excessive forceon protesters in Lafayette Square on June 1. Contradicting statements from Park Police and Attorney General William Barr,DeMarco said the planwas initially to clear out protesters after the 7 p.m. curfew, but was carried out earlier for President Trumps photo op. The Reporters Committeesent a letterto the committee in connection with an earlier hearing, expressing concern about the Park Polices attack against an Australian news crew.

Smart read

Speaking of legal protections for journalists, thisarticleargues that in cases implicating First Amendment concerns similar to those in leak prosecutions, those considerations have historically been a mitigating factor at sentencing.

Gif of the Week:Trying to explain some of this social media news to our older relatives.

Like what youve read?Sign up to get This Week in Technology + Press Freedom delivered straight to your inbox!

The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy combining the law, policy analysis, and public education to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee Attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Fellow Linda Moon, Legal Fellows Jordan Murov-Goodman and Lyndsey Wajert, Policy Interns Abe Kenmore and Joey Oteng, and Legal Intern Sasha Peters.

Read the original:

This Week in Technology + Press Freedom: Aug. 2, 2020 - Reporters Committee for Freedom of the Press

After the horrendous killing of George Floyd, people in Portland, Ore., joined with thousands across the country in demonstrations to address police reform and widespread systemic racism. The leaders of the Portland Police Bureau denounced this tragic death, and we reiterated our willingness to engage in reforms.

But Portland has now faced weeks of extreme difficulties and drew intense national attention after federal officers were deployed here.

As police officers, our duty is to uphold the rights of anyone to assemble peacefully and engage in free speech. But over the months of protests, a concerning dynamic developed. People protested peacefully, while others engaged in dangerous activities that could have resulted in injury and even death.

The night of May 29 was a pivotal moment for our city. Hundreds of people, in a coordinated effort, attacked the Justice Center, which includes our Central Precinct station and the Multnomah County Detention Center. They broke into the building, destroyed the first-floor interior and lit fires. Afterward, there was looting and destruction downtown.

Yet in the following weeks, thousands of people demonstrated peacefully in an awesome expression of First Amendment rights. The Police Bureau had little to no interaction with members of this group, because they did not allow criminal activity to impede their message.

As a Black man and a public servant, I have a unique perspective. I agree with a local pastor, E.D. Mondain, who stated these spectacles are drowning out the voices that need to be heard to make positive change. This violence is doing nothing to further the Black Lives Matter movement.

On one night, for example, individuals screwed the doors of our North Precinct station shut, barricaded other entrances and lit the station on fire with people inside. Nearby businesses, owned by people of color, were damaged and looted. On other nights, there were multiple attempts to breach the Justice Center. Other law enforcement facilities were targeted, including the union building, which was broken into and had fires set within.

Violence and destruction have also been directed at the federal courthouse, which sits next to the Justice Center. The president sent additional federal agents to Portland, and our city became national news.

Gov. Kate Brown recently negotiated an agreement with the Department of Homeland Security to remove federal agents in stages and have them replaced by Oregon State Police. The governor acknowledged that this might not be the end of the violence. I hope she is wrong.

Portland is a beautiful and vibrant city with smart, progressive people, and I am hopeful we can come together to move beyond the unrest and refocus on critical issues.

The Portland Police Bureau remains committed to protecting life and responding to events as appropriate. I am proud of our efforts in extreme circumstances few in the country have faced.

During these events, our agency has responded to assaults, stabbings, shootings, people with guns and the stockpiling of explosives. Shooting off commercial-grade fireworks and mortars is not peaceful protest. We are fortunate that no one has been killed.

There are those who say the Portland police have not done enough to quell violence. I ask them to come speak with our officers, who have been responding for two months to protests. They have served with professionalism, courage and resiliency through an extraordinary time. Many have been injured and some have received threats of violence to themselves or their families. They would prefer to return to regular patrol and investigative duties and see peace in our community.

The voices of victims are not heard as well. Because of the protests, officers have not been able to respond to 911 calls or have been delayed for hours. Investigators cases lie on their desks as they work nights to process arrests. We have seen an alarming increase in shootings and homicides. We need to redirect our focus to preventing and solving these crimes that are taking a hugely disproportionate number of minority lives.

I have said frequently that the Portland Police Bureau is committed to reform. We are a progressive agency and have demonstrated our willingness to change over the past eight years. Working with the Department of Justice, we have made significant changes to our policies and training. The Portland Police Bureaus policy on the use of deadly force is more restrictive than state and federal law.

We recently enhanced our Community Engagement Unit to help build trust and legitimacy with the communities we serve. We have also developed several advisory councils that help the Police Bureau make decisions with the benefit of a diverse set of inputs.

The Portland Police Bureau has had an equity and inclusion office for over five years. I recently changed the organizational structure to have it report directly to me, to ensure we are prioritizing its work.

I have confidence in our community and the people who have dedicated their lives to building relationships with police. They have stood up and said no more violence. I stand with them with a servants heart, committed to being leaders in police reform.

Chuck Lovell is the chief of the Police Bureau in Portland, Ore.

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Im the Police Chief in Portland. Violence Isnt the Answer. - The New York Times

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Editorial: Freedom of press and coronavirus - TribLIVE

TAMPA The citys newest public art project appeared over the weekend outside Tampa Police Department headquarters after organizers worked for weeks to get approval from the city for a Back the Blue pro-police mural.

The city didnt approve it, but organizers armed with paint and orange cones created the mural anyway.

Kristen Krutz, one of the organizers, helped spearhead the project along with others from Back the Blue Florida, an online community with more than 5,000 members. She said the mural is meant to show law enforcement personnel that they have support.

Theyre being defunded and things that they need and require to do their job are not going to be provided anymore, said Krutz, 36. Obviously, that would make anybody feel unappreciated, unwanted, and thats the opposite of what we wanted them to see with the mural on the street.

At Tampa City Council meetings, people have called on officials to defund the Tampa Police Department, but Mayor Jane Castor has said shes not on board with the idea.

Krutz and about 40 other people painted the mural Saturday evening in the middle of East Madison Street. The mural spans the block and is painted with the black, white and blue colors of the pro-police thin blue line flag.

Without obtaining a permit, Krutz said, they used orange cones and their personal vehicles to block the road while they worked.

The reason why we decided to proceed without a permit is because Black Lives Matter has murals all over the city that say Black Lives Matter, and they were not permitted, Krutz said.

Krutz said she filed a records request with the city for permits issued for Black Lives Matter murals and was told none were issued. City of Tampa spokesperson Ashley Bauman said the murals were approved as part of the citys Art on the Block day.

Bauman said the Back the Blue mural was in the process of approval. In a statement to the Tampa Bay Times Monday, Mayor Castor who has served as Tampa police chief said any tribute to honor law enforcements service is welcome.

Its unfortunate they didnt see the permitting process through so that our community could participate in showing their appreciation for the brave men and women that service our residents every day, Castor said.

The mural has been criticized on social media as ugly and difficult to read. Some posts suggested accidentally spilling paint over it. The headline in alternative weekly Creative Loafing: Everyones roasting Tampas hilariously bad Bock The Blub street mural.

Cam Parker, an artist from east Tampa, said he felt embarrassed as a resident of the city to see posts about the mural Sunday night. In July, Parker helped create a rainbow fist mural in Tampa Heights on North Franklin Street and West Henderson Avenue, meant to support Black Lives Matter and promote LGBTQ pride. He also created the A in St. Petersburgs Black Lives Matter mural.

Parker said he can understand supporting law enforcement, but he feels the Back the Blue mural is a retaliation against the Black Lives Matter movement and its murals. Parker said it feels like those who painted the mural are pushing back against people who are just asking not to be killed.

Were not having fun talking about Black Lives Matter, Parker said. I am now staunchly and like, unrelentingly using my voice to do what I can to bring awareness and to let people know its not a fad, its not a trend, its not anything that is going away ever.

Krutzs husband designed the Back the Blue mural. She said said she expects it to be vandalized, even though local Black Lives Matter murals have remained untouched so far. Anyone who would do this shows disdain for First Amendment rights, she said.

Theres no doubt if they go out there and deface this mural that somebody is going to deface theirs, Krutz said. Thats what irritates me. And its not going to be me. But its going to happen.

Krutz said she emailed Castor over several days starting July 16 about getting approval for the Back the Blue mural. Krutz suggested two possible slogans: Blue Lives Matter, and, Back the Blue, along with two possible locations. Krutz was referred to city staff and was sent a guide with steps on painting an intersection in Tampa.

A GoFundMe fundraiser brought in a little more than $1,000 for the mural and Krutz said she sent a petition with more than 1,000 signatures to city officials. Krutz was told the proposal needs to be brought to the City Council for approval.

Jeffrey Stull, an attorney who represents the Tampa Police Benevolent Association, sent a letter Friday to Castor, saying the police union supported the project and asking her to direct city staff to move quickly to grant Krutz permission.

Krutz said she spoke the same day with Marley Wilkes, Tampas director of the office of governmental affairs and strategic initiatives, and was told the city would let her know if she was granted permission.

The mural is only of its kind in the United States painted on a street, Krutz said. A group in New York City called for a Blue Lives Matter mural in July but it hasnt materialized. In Tulsa, after a pro-police group asked for its own mural, the city decided to remove a Black Lives Matter mural rather than let one with a pro-police message stand.

HOW TO SUPPORT: Whether youre protesting or staying inside, here are ways to educate yourself and support black-owned businesses.

WHAT PROTESTERS WANT: Protesters explain what changes would make them feel like the movement is successful.

WHAT ARE NON-LETHAL AND LESS-LETHAL WEAPONS? A guide to whats used in local and national protests.

WHAT ARE ARRESTED PROTESTERS CHARGED WITH? About half the charges filed have included unlawful assembly.

CAN YOU BE FIRED FOR PROTESTING? In Florida, you can. Learn more.

HEADING TO A PROTEST? How to protect eyes from teargas, pepper spray and rubber bullets.

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Theres a Back the Blue mural at police headquarters, but Tampa didnt okay it - Tampa Bay Times

College athletes have begun challenging a longstanding pillar, that the college sports industrial complex must hum along as if straight from the pages of Das Kapital on the fuel of exploited labor. Their labor.

Yet, to better understand how the modern-day dynamic works and why players are more stridently calling for a voice in matters like social justice, how their images are used, straight-up pay and playing during the pandemic all thats necessary is to listen to a five-minute, nine-second recording of a phone call between Nick Rolovich, the new football coach at Washington State, and Kassidy Woods, a redshirt sophomore receiver.

It lays clear not with an iron fist, but a velvet hammer just who is in charge.

It begins amiably.

Whats up, coach?

Kass, how are you doing? Whats up?

Woods, who was competing for a starting position, had called to tell Rolovich that he was opting out of the season. Woods explained that he had been diagnosed with the sickle cell trait when he enrolled at Washington State and with so much uncertainty about the coronaviruss lingering effects, he did not feel comfortable playing.

Ive got nothing wrong with that, Rolovich replied.

Then he asked Woods a question: was he joining the Pac-12 Conference unity group?

Rolovich was referring to the Pac-12 football players who announced Sunday they were threatening to sit out the season unless their demands, including more concrete health and safety protocols and measures that would amount to a redistribution of much of the wealth that players generate for their schools, were met.

Yes, sir, Woods said.

Well, the coach said, that would be a problem.

Woodss scholarship would be honored for this year, as is required for anyone who opts out for health reasons, but if he was part of this organized effort, it was going to be handled differently, the coach said. Woods could not work out with the team because it would send a mixed message and his locker should be emptied by Monday.

Rolovich then urged Woods to tell others they would face the same consequences. (Dallas Hobbs, a redshirt junior defensive end, soon found out he needed to empty his locker, too, he said.)

And then the conversation concluded as if it they had discussed dessert options in the dining hall.

All right. Appreciate you, coach, Woods said.

Hows your family? Rolovich asked.

Theyre doing good. I already talked to them about it, Woods answered.

Cool, said Rolovich, who closed the call by saying he would see Woods on a team Zoom call on Sunday night.

When I spoke with Woods on Monday he had sent me a recording of the phone call on Sunday night he said he was devastated, but resolute. He had hoped to become a starter this season and work toward a career in the N.F.L., and had no complaints about his place on the team.

Indeed, Woods was emerging as a leader. He (along with Hobbs) represented the football team on the Student-Athlete Advisory Committee, served as the social chair of the recently formed Black Student-Athlete Association, and represented Washington State at the Black Student-Athlete Summit in January at the University of Texas. And Woods also served as the teams unofficial barber, commandeering a chair in the Cougars athletic complex and putting to use the skills his mother, a hairdresser, taught him.

Updated Aug. 3, 2020

Heres whats happening as the world of sports slowly comes back to life:

Hed been introduced to Washington State President Kirk Schultz through a Black Student-Athlete Association video conference call and had built up a relationship with the athletic director, Pat Chun.

But by Monday, Woods said he felt abandoned.

Hed called Chun hoping he could still be part of the team, but Woods said the athletic director backed the coach. (Rolovich and Chun declined an interview request.) What also upset him, he said, is that several teammates were cowed into not opting out because he said they felt threatened.

A lot of them have reached out Man, Im sorry, Woods said. If youre here for me, just opt out. If we all did, what is he going to do cut everybody from the team? You say you love me, say Im your brother, but me and Dallas are pretty much ostracized from the team.

He added: Its all about the movement. Me and Dallas have been nothing but a service to Washington State. Our coaches dont have anything bad to say about me. I dont have anything bad to say about them except for dismissing me for being part of this movement.

Woods said his disquiet goes back to late June, when a teammate he was living with texted several days before Woods headed back to campus to say he had tested positive for the coronavirus. Woods said nobody from the school notified him or of any other cases.

He also expressed discomfort with signing a liability waiver when he reported for voluntary workouts on July 1. And when Washington State announced on July 23 that virtually all learning would be remote, Woods said he and his teammates wondered why they were on campus preparing for football.

I asked, if his relationship with Rolovich was good, why did he feel the need to record the call?

Even though he and Hobbs had spoken with Rolovich about the unity groups broad plans without any pushback, Woods said his growing distrust over the waiver, the way he found out about the roommate's test and the practices while students were attending remotely left him unsure how the conversation was going to unfold. He wanted to have a record for his parents to hear.

I knew I was standing up for something, Woods said. You dont really know how its going to go.

Woodss feelings of abandonment, though, are not complete. He said he has received support from players around the country. And his parents and his six siblings have firmly encouraged him. In fact, his mother, Jerline, made public her sons circumstance as a rebuttal to a reporter who tweeted that no players had been cut.

Youre putting all this on your back a target maybe teams dont touch you, said his father John Woods Jr., a basketball captain at Missouri in the late 1990s, who encouraged his son to make the recording public.

But he said that times are different.

Hes just standing up for his First-Amendment rights that need to be addressed, his father said. He didnt do anything wrong and he stands by that. Twenty-five years ago, we wanted to do that, but now theyve got this platform where its OK.

He continued: We cant just dribble, be quiet, run, youve got your scholarship you should be happy. You cant get away with that and intimidate players into not saying those things and make them feel like, oh, its me. Those days are over.

Excerpt from:

A College Athlete Calls His Coach to Opt Out. And Ends Up on the Outs. - The New York Times