Amy Kristin Sanders| Opinion contributor

Supreme court sides with Pennsylvania cheerleader over Snapchat post

The Supreme Court ruled that a Pennsylvania public school wrongly suspended a cheerleader over her profane Snapchat post.

Fox - LA, Fox - LA

For a country that purports to value our First Amendment right to freedom of speech, it has become clear that some of our elected officials dont understand it.

State legislatures across the country have passed bill after bill that violate the First Amendments free expression protections protections that limit the governments ability to infringe on individuals speech.

Yet a recent survey by the Freedom Forumof more than 3,000 Americans found that 94% value the First Amendment as vital, and more than half say it should never be altered.

Now more than ever, we need a renewed focus on civic education to ensure Americans understand their constitutional rights. In addition, one study from the Freedom Forumsuggests nearlyone in fiveAmericans cannot name a singleFirst Amendment freedom.

Still, elected officials are regularly quoted in the media, espousing plans to require social media platforms to carry certain speech or barring them from shutting down certain accounts. Ask honest constitutional scholars, and theyll assure you these plans are unconstitutional.

This summer, a federal judge in Florida temporarily barred the state from enforcing a new law that targeted social media platforms that shut down accounts of political candidates or journalistic enterprises, allowing up to $250,000 in fines per day.

Texas Gov. Greg Abbott has signed several similarly unconstitutional bills. One,House Bill 20, purports to restrictsocial media platforms when it comes tocontent moderation. Another,Senate Bill 4, aims to require Texas sports teams to play the national anthem.

The Arizona State Legislature hasconsidered a law that would require parents to opt-in toany curriculum that addresses gender identity orgender expression of sexuality effectively limiting schools ability to teach about historical events including the Stonewall riots. It also restricted the teaching of HIV and AIDS awareness.Doing so represents a clear violation of the First Amendment. Gov. Doug Ducey a Republican vetoed Senate Bill 1456, yet lawmakers persisted andreintroducedthe measure.

So why are all these lawmakers, many of whom graduated from elite law schools, proposing laws that contravene the First Amendment? Perhaps its political theater. Or perhaps they simply need a bit of civics education.

Like our elected officials, it seems even we voters need a refresher course on these issues. Only 36% of Americans know that companies like Twitter and Facebook are not liable for the content users post on their platforms, while just over half of respondents in the Freedom Forum survey knew the First Amendment protected flag burning as a form of free speech.

In numerous opinions during the past century, the Supreme Court has made clear that there are stringent limits placed upon the government when it comes to regulating speech.

As recently as June, the Court ruled 8-1 in favor of a high school student who was sanctioned by her school for a social media post that contained a well-known, four-letter expletive. Although the court stopped short of saying public school officials could never sanction students for off-campus speech, it made clear that some speech is protected by the First Amendment.

In November, the Supreme Court will hear a case asserting that the city of Austin, Texasexceeded its authority to regulate speech when it enacted an ordinance that treats on-premises signage differently from off-premises signage.

The courts decision could give federal, state and local governments much greater latitude to regulate speech if the justices decide to narrow the types of restrictions to which their highest level of scrutiny applies. In the Austin case, this would allow the city to regulate on-premise and off-premise signs differently including banning digital billboards while permitting on-site digital signage.

Without a greater emphasis on civic education, and First Amendment rights in particular, many of us will continue to lack the knowledge and tools we need to fully participate in our governance, and taxpayers will continue to foot the bill for legal challenges to state laws that are plainly unconstitutional laws that should never have been proposed or passed in the first place.

Our nations first president, George Washington, famously saidthat without free speech"dumb and silent we may be led, like sheep to the slaughter."Free Speech Week offers a great reminder that many of us need to reeducate ourselves about the collective rights and obligations that we have as citizens living under a republican form of government.

Amy Kristin Sanders is an associate professor of journalism andlaw at The University of Texas at Austin, where she studies global free expression rights.

See more here:

We need to do a better job teaching citizens about the First Amendment - USA TODAY

BRUNSWICK, Ga., Oct. 22, 2021 /PRNewswire/ -- On October 22, family members of Ahmaud Arbery, will join the Transformative Justice Coalition at a press conference to address recent attacks raised in court proceedings against the Transformative Justice Coalition (TJC). The press conference will precede a March sponsored by TJC and the family of Ahmaud Arbery at approximately 2:00 PM EDT. Following the press conference, the march demanding justice for Ahmaud Arbery will commence and go through the community in which Ahmaud was raised.

The Transformative Justice Coalition (TJC) sponsored 100 activists from around the nation to attend the first week of the trial of Ahmaud Arbery's accused killers. Kicking off the march with a press conference, TJC will also discuss its impressions from the first week of the murder trial and its response to the scurrilous and unfounded attacks on TJC and the First Amendment.

What:

Justice at the First Amendment

Who:

Diane Arbery, Matriarch of Ahmaud Arbery Family

Marcus Arbery, Father of Ahmaud Arbery

Barbara Arnwine, Esquire Founder/President/Co-Leader, Transformative Justice Coalition

Daryl D. Jones, Esquire, Board Chair/Co-Leader, Transformative Justice Coalition

When:

October 22, 2021 at 2:00 pm

Where:

Brunswick, GA

Founded in 2015 by Barbara Arnwine, president emeritus of the Lawyer's Committee for Civil Rights, the Transformative Justice Coalition seeks to be a catalyst for transformative institutional changes that bring about justice and equality in the United States and abroad. Learnmoreattjcoalition.org.

Formoreinformation,contact:

Lynn Whitfield, Esq.

322008@email4pr.com

(561) 856-6757

Ricky Parker

Cell: (347) 524-2530

Email: 322008@email4pr.com

View original content:https://www.prnewswire.com/news-releases/transformative-justice-coalition-tjc-press-conference-and-march--justice-and-the-first-amendment--301406859.html

SOURCE Transformative Justice Coalition

Go here to see the original:

Transformative Justice Coalition (TJC) Press Conference and March: "Justice And the First Amendment " - Johnson City Press (subscription)

From Doe v. Google LLC, decided today by Judge Beth Labson Freeman:

Plaintiffs assert that Defendants have deprived them of their First Amendment rights by suspending their YouTube accounts. Plaintiffs argue that they have pled sufficient facts to plausibly allege state action under [the theory of government] compulsion .

{[From an earlier decision in the same case, the background facts: -EV] Plaintiffs created eighteen channels on the YouTube platform. Plaintiffs describe their channels as "extremely controversial" "conservative news" channels that feature content about "Hunter Biden and the Ukraine scandal," "the ongoing corruption probe," "social media censorship," "race relations or protests in America," and "anonymous posts on political issues by someone identifying themselves as 'Q.'" Plaintiffs allege that as of October 15, 2020, their channels attracted over 4.5 million subscribers and over 800 million views.}

Plaintiffs' First Amended Complaint cites statements by U.S. Rep. Adam Schiff and Speaker of the House Nancy Pelosi and an October 2020 House Resolution, which "have pressed Big Tech" into censoring political speech with threats of limiting Section 230 of the Communications Decency Act ("CDA") and other penalties.

For a private party's conduct to constitute state action under a compulsion theory, it must involve "such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." Blum v. Yaretsky (1982). To plead such a claim, a party must allege that the government "commanded a particular result in, or otherwise participated in, his specific case." Plaintiffs must point to a "state regulation or custom having the force of law that compelled, coerced, or encouraged" the alleged private conduct. Further, a compulsion claim against a private party requires pleading "some additional nexus that [makes] it fair to deem the private entity a governmental actor in the circumstances."

The Court finds that the statements by federal lawmakers Plaintiffs point to are insufficient to plead that the government "commanded a particular result in, or otherwise participated in, [Plaintiffs'] specific case." Plaintiffs point to generalized statements from lawmakers pertaining to "coronavirus-related misinformation," "disinformation proliferating online," "QAnon-related speech," and "conspiracy theories."

None of the statements mention Plaintiffs' names, their YouTube or Google accounts, their channels, or their videos. Plaintiffs argue that state actors "commanded a particular result" in their case because "Plaintiffs have alleged that Congress demanded that the unpopular speech dubbed 'misinformation,' and QAnon-related speech be limited and erased, which is precisely what Plaintiffs allege Defendants did." The Court disagrees that broad lawmaker proclamations regarding "misinformation" or "QAnon-related speech," for example, are sufficient to show that the government "commanded" the suspension of Plaintiffs' accounts. Even if Defendants had complied with these lawmaker statements to the letter, they would still have had the ultimate discretion on what videos or accounts fit into buckets like "misinformation" or "QAnon-related speech."

The Court also disagrees with Plaintiffs that they have alleged sufficient facts about the content of their videos to link their removal to the broad categories of online content mentioned in the lawmakers' statements. For example, Plaintiffs plead no facts to indicate that their videos pertained to COVID-19, so none of the statements from members of Congress relating to COVID-19 misinformation have any relevance to Defendants' alleged conduct. Further, Plaintiffs plead only vague facts about other subjects that leave open the question as to whether all Plaintiffs posted about these subjects, or only some of them. And none of the lawmaker statements Plaintiffs cite contain clear action items relevant to Plaintiffs' allegations. Id. 32 (encouraging YouTube to "display messages to any users who have engaged with harmful coronavirus-related misinformation"); id. 34 (generally discussing "misconduct" related to "the division and the disinformation proliferating online"); id., Ex. F at 81 (encouraging action on the part of the FBI, intelligence community, and "all Americans").

Plaintiffs claim that Defendants' conduct is state action because it was in response to the threat of various government penaltiesthe repeal of CDA Section 230 protections, "show trials" in front of the U.S. Senate, and a DOJ antitrust suit against Googleallegedly linked to whether Defendants appropriately moderated certain types of content. The threats of penalties Plaintiffs point to are insufficient to convert private conduct into state action here. The Ninth Circuit has found that pleading "a private actor's conduct is subject to penalties is insufficient to convert private action into that of the state." Moreover, Plaintiffs fail to point to any penalties that necessarily or even likely would have followed if Defendants did not suspend their accounts. See, e.g., FAC 10 (citing a DOJ antitrust case against Google with no alleged relationship to content moderation decisions); id. 34 (discussing generally that "social media executives will be held accountable for [their] misconduct"); id. 33 (discussing removal of CDA Section 230 protections without any clear action item or ultimatum); Opp. at 12-13 (citing cases related to congressional subpoena and investigation powers). These speculative "threats" to Defendants do not plausibly constitute "state regulation or custom having the force of law."

Plaintiffs can point to no authority to support a compulsion theory of state action based on penalties, particularly "threats" as speculative as the ones they point to here. See, e.g., Abu-Jamal v. NPR (D.D.C. 1997) (pressure from individual members of Congress did not bring about state action because "not one of these people has any legal control over [defendant's] actions."); Daniels v. Alphabet Inc. (N.D. Cal. 2021) ("[S]peculative assertions about the possibility defendants will be subpoenaed to testify before Congress or exposed to some other peril if they ignore letters from Congressional representatives do not support a theory of government action."). Courts have declined to find state action even where government penalties are far less speculative than what Plaintiffs allege, like where a law or regulation tied to state funding applies. Blum ("[P]enalties imposed for violating the regulations add nothing to respondents' claim of state action."); Heineke v. Santa Clara Univ. (9th Cir. 2020); Jackson v. Metro. Edison Co., 419 U.S. 345, 350 (1974) ("The mere fact that a business is subject to state regulation does not by itself convert its action into that of the State[.]"); see also Manhattan Comm. Access Corp. v. Halleck (2019) ("Put simply, being regulated by the State does not make one a state actor.") Here, no law or regulation appliesin fact, the main "threat" Plaintiffs allege is the repeal of a law (Section 230 of the CDA).

The Court also finds that Plaintiffs have not pled facts sufficient to plausibly allege the "something more" element required for a compulsion claim against a private defendant under Plaintiffs claim that they have pled facts that Defendants and the government "were jointly pursuing an unconstitutional end." But Plaintiffs rely primarily on a Twitter exchange between Rep. Schiff and YouTube CEO Susan Wojnicki that has no alleged relevance to Plaintiffs' content, since it pertains to COVID-19 misinformation. Moreover, as discussed below, Plaintiffs have failed to allege facts sufficient to plead that Defendants were engaged in joint action with the government.

Plaintiffs [also] assert that there is state action under a joint action theory, pointing to a Twitter exchange between Rep. Schiff and YouTube CEO Susan Wojnicki in which Ms. Wojnicki states, "We appreciate your partnership and will continue to consult with Members of Congress as we address the evolving issues around #COVID19."

Joint action is present where the government has "so far insinuated itself into a position of interdependence with [a private entity] that it must be recognized as a joint participant in the challenged activity." Further, a private defendant must be a "willful participant in joint action with the state or its agents." Joint action requires a "substantial degree of cooperative action" between private and public actors.

As a threshold matter, the Schiff-Wojnicki Twitter exchange Plaintiffs point to in support of their joint action claim clearly pertains to misinformation regarding COVID-19. As the Court discussed above, Plaintiffs have failed to allege any facts indicating that their posts pertained to COVID-19. Accordingly, it is unclear how this Twitter exchange supports a joint action theory pertaining to the suspension of Plaintiffs' channels. Since the Twitter exchange appears to be the fact Plaintiffs primarily rely on to allege joint action, Plaintiffs' failure to plead the relevance of this fact renders their joint action claim essentially unsupported. Further, it is simply implausible to read a casual Twitter exchange between one member of Congress and YouTube's CEO as joint action. Plaintiffs' theory would effectively cause companies to cease communicating with their elected representatives for fear of liability .

Further, Plaintiffs' allegations fail to plausibly plead a "substantial degree of cooperative action" between Defendants and the government. Based on Plaintiffs' allegations, their content was removed through the following series of events: federal lawmakers publicly flagged general categories of content for Defendants to consider moderating and issued threats to compel Defendants to comply, Defendants independently chose what content fit into the lawmakers' general categories, and Plaintiffs' channels happened to be some of the content Defendants decided to remove. Courts have dismissed cases for lack of state action despite significantly more alleged cooperation between public and private actors compared to what Plaintiffs allege here. Pinhas v. Summit Health, Ltd., (9th Cir. 1989) (affirming dismissal for lack of state action in decision by private hospital pursuant to review process approved by state); Heineke (affirming dismissal for lack of state action where private actor "receives federal and state funds conditioned on compliance with federal and state anti-discrimination laws and regulations"); Abu-Jamal (no plausible joint action at pleading stage where defendant is alleged to have a "close relationship" with the government); Jackson v. Metropolitan Edison Co. (1974) (affirming dismissal for lack of state action where defendant "was a heavily regulated, privately owned utility"); Blum (no state action with "state subsidization of the operating and capital costs of the [private] facilities, payment of the medical expenses of more than 90% of the patients in the facilities, and the licensing of the facilities by the State").

The cases Plaintiffs cite also indicate that far more is necessary to plead joint action than what they have alleged here. Plaintiffs cite U.S. v. Price (1966), which involved a scheme between state officers and private citizens where "[s]tate officers participated in every phase of the alleged venture: the release from jail, the interception, assault and murder. It was a joint activity, from start to finish." Plaintiffs have failed to plead anything close to the Price scheme. Ms. Wojnicki's tweet about "partnership" and "continu[ing] to consult with Members of Congress" does not suggest that government officials were involved at every step of Plaintiffs' suspension. At most, Plaintiffs appear to allege that government officials identified categories of information Defendants should consider removingthere is no allegation that government officials were in the room or somehow directly involved in the decision to suspend Plaintiffs.

Further, Plaintiffs cite Lugar v. Edmondson Oil Co. (1982). In that case, the Supreme Court found joint action where a private party "invok[ed] the aid of state officials to take advantage of state-created attachment procedures." In the present case, there are no allegations that Defendants invoked state or federal procedure to bring about the suspension of Plaintiffs' accounts. Defendants merely suspended Plaintiffs from Defendants own private platform.

See the original post here:

No Government Action (and Thus No First Amendment Violation) in Suspension of Plaintiffs' YouTube Accounts - Reason

The U.S. Supreme Court has agreed to hear a case this term that pits the two religious liberty clauses of the First Amendment against each other on a flagpole.

At issue is a request by a Christian civic group, Camp Constitution, for the City of Boston to allow a Christian flag to fly on one of two City Hall flagpoles commonly used by civic groups and movements. The city offers groups the opportunity to fly their flags briefly on the two poles to encourage civic engagement.

To date, the city has allowed at least 284 private organizations to raise their flags and never had turned down a request until Camp Constitution asked to fly what is commonly known as the Christian flag a white background with a blue square at the upper-left corner containing a red cross. The group wanted to fly the flag for about an hour on Constitution Day 2017, to commemorate Constitution Day and the civic and cultural contributions of the Christian community to the city of Boston, the Commonwealth of Massachusetts, religious tolerance, the rule of law and the U.S. Constitution.

Flags previously flown on the poles include the flags of various countries, a Juneteenth flag,the LGBTQ rainbow pride flag and the transgender rights flag.

Camp Constitutions request was denied because the group wanted to fly the flag of a single religion, which city leaders feared would place them in violation of the First Amendments Establishment Clause, which says government may not give preferential treatment to one religion over other religions.

On the other hand, Camp Constitution claims the city denied its First Amendment rights to free exercise of religion the other half of the First Amendments religious liberty statement.

There is no evidence the city had been asked previously to fly the flag of any other single religion, although Camp Constitutions attorneys point out that they had flown the Turkish flag, which depicts the Islamic star and crescent, and the Portuguese flag, which uses religious imagery.

In January, the First U.S. Circuit Court of Appeals sided with the city, which argued that the flagpole is not a public forum, the citys raising of a third-party flag is government speech, and the city can choose the views it wants to express. The appeals court supported the original ruling of a federal judge who first heard the case.

Camp Constitution appealed that January ruling to the Supreme Court, which chose the case from among hundreds of other cases denied hearing.

Americans United for Separation of Church and State was among the first religious liberty watchdog groups to urge the Supreme Court to reject Camp Constitutions claim, noting the case, Shurtleff v. Boston, could significantly endanger religious freedom and church-state separation.

Americans United President Rachel Laser said: The separation of church and state is the constitutional principle that guarantees everyones right to religious freedom and to be treated equally under the law. To protect this core American principle and to respect the religious diversity that defines our country, the Supreme Court should not force the City of Boston to fly a Christian flag at city hall.

Forcing the city government to fly a Christian flag on its property would not only undermine the foundational principle of church-state separation, it would play right into the hands of Christian nationalists who want the government to force everyone to live by their beliefs threatening everyones religious freedom and widening inequality in our communities and country, she added.

Camp Constitution is being represented by Liberty Counsel, an evangelical Christian ministry active in pursing religious liberty cases, especially those focused on free exercise claims.

We look forward to the U.S. Supreme Court hearing Bostons unconstitutional discrimination against Camp Constitutions Christian viewpoint, said Liberty Counsel Founder and Chairman Mat Staver. The city cannot deny the Christian flag because it is Christian and allow every other flag to fly on its flagpoles. There is a crucial difference between government endorsement of religion and private speech, which government is bound to respect. Censoring religious viewpoints in a public forum where secular viewpoints are permitted is unconstitutional and this case will set national precedent.

Related articles:

On religious liberty views and other issues, theres still a wide gap between evangelicals and the rest of America

Religious liberty is being hijacked: expressing our faith responsibly within the civic realm | Opinion by Molly Marshall

BJC offers timely answers to questions about religious liberty

See the original post here:

Supreme Court will hear Boston flag case that pits First Amendment religious liberty clauses against each other - Baptist News Global

Patty Rhule. Photo courtesy Freedom Forum

By PATTY RHULE

The First Amendment isnt just lofty language.

For many Americans, including five we asked about it, its 45 words that they are living every day.

The Freedom Forum surveyed more than 3,000 people in late summer 2020 to find how their values and attitudes shape their feelings about the First Amendment. The First Amendment: Where America Stands finds near-universal support that the freedoms of religion, speech, press, assembly and petition are vital and essential today. We interviewed dozens of survey participants to get more insight into their thoughts about the First Amendment. Here are some thoughts from five of them.

Bora Kimemigrated to the United States from South Korea as a young girl. I was coming from a country and a culture that I should say, maybe didnt value or prioritize the freedom of expression or holding ones own opinion as valued. So when I came to the States being taught to really voice myself and to respect myself as an individual was really validating and empowering.

Today, Kim lives in New York City and advocates for artists and their right to free expression an everyday extension of her First Amendment freedoms. My work in supporting them is in a way allowing that freedom of speech and expression to be possible for these individuals.

Eric Arroyogrew up using his freedoms of assembly and petition as a child of the 60s fighting for civil rights, womens rights and gay rights. There was the youthful movement of saying, This is wrong. Why cant Blacks vote? Why must women be told what to do with their bodies? Why must you have Latinos and Asians being treated as second-class citizens?

I marched, sat in, boycotted all peacefully, said Arroyo, now retired in the Bronx, N.Y., from economic development work. He worked for progressive candidates and tried to effect change. Power was challenged, and unfortunately people were killed. And people sacrificed on behalf of that highest principle that we are in fact equal and should have equal access to the law.

WATCH:The First Amendment: Where America Stands Survey Interviews

ForRuben Morenoof Tucson, Ariz., speech is his most valued freedom. Im a gay American, so I need to be able to express myself doing a Pride parade, during a job interview, for healthcare. Its important that everybody, no matter who they are straight, gay, trans that they are able to be who they are and speak their truth with their authentic selves. If thats taken away, I mean, thats a huge tragedy, not just for Americans, but for America.

Raised in a fundamentalist faith, Moreno now exercises his First Amendment freedoms by opting out of organized religion. Speech is his most valued freedom, but press is a close second. Look, if you want to be like Russia or North Korea or Brazil or any other dictatorships in the world, youre going to want to limit freedom of the press because you dont want free thought to get around, Moreno said. You dont want people thinking on their own.

Rise Briggs, a picture framer and farmer in Roseburg, Ore., is also concerned about freedom of thought. Active on various community boards, Briggs has lately felt that free speech her most treasured freedom is under attack.

I dont expect people to agree with me, but I expect people to think, says Briggs, a Native American. Ive always written the letters to the editor and things like that as I process. It gets people to either get fired up and do something or something along those lines. But I didnt expect a lot of venom and thats what Im getting now.

Still, she opposes the idea of campus safe spaces where speech is limited for college students. You must allow the ideas to be heard, she said. Nor does she believe in the idea of hate speech, defining the term as made up to silence people.

If you believe in the First Amendment, you can say whatever you want. It affords you the ability to be heard and to have conversations and dialogues and resolve issues that may need to be able to have people debate.

Religious freedom is most vital toRobert Gray, whose family fled Germany and Switzerland for Pennsylvania in the late 1600s due to religious persecution they experienced as Mennonites.

Gray, a CEO who lives in Terre Haute, Ind., worries about the lack of responsibility people exhibit in exercising their freedoms today. If I know my speech is going to hurt somebody and take away their rights, maybe I should think a sec and engage my brain before I put my mouth in gear.

For Arroyo, it all comes down to five freedoms. I value the First Amendment because it presents me with five rights that I have to live my life and enjoy my life in the company of my fellow citizens.

Watchmore Americans share their First Amendment views and questions, plus expert answers.

. . .

Patty Rhule is the chief content officer and vice president of the Freedom Forum. She can be reached at[emailprotected].

Read more from the original source:

FIRST 5: For these 5, First Amendment is everyday essential - Salina Post

The months-long legal dispute of publisher Activision trying to take down an indie web-based incremental strategy board game to safeguard its lucrative Warzone trademark has hit a new lawful curve.

According to court documents obtained for a hearing which took place in the United States District Court for the Central District of California earlier in the month, plaintiff Activision admitted that defendant Warzone.com was the first one to use the Warzone trademark in 2017, nearly three years before Call of Duty: Warzone was officially released.

However, Activision still argues that its use of the Warzone trademark as the title for its [Call of Duty] game is protected under the First Amendment and as such seeks massive damages from the defendant for reverse trademark infringement. That in addition to forcing the indie developer to completely abandon the Warzone trademark for its web-base game.

Activision has now forwarded a motion to dismiss any and all counterclaims made by the defendant. Warzone.com has in return pleaded that if the motion to dismiss is accepted by the court, it would signal that a corporate giant can claim the mark of a direct competitor without the claimant even being afforded an opportunity via discovery to explore the issues presented, merely because the defendant is using the claimants mark in the title of an expressive work.

It would mean that a large corporation can engage in reverse trademark confusion with impunity even filing for the same trademark for the identical description of goods. Such an outcome would place a fist not a thumb firmly on the First Amendment side of the scale balancing the constitutional interests between Lanham Act protection and free expression.

Activision sued Warzone.com several months back for using the same name as its own battle royale phenomenon despite Call of Duty being at least three years late. In a statement given to SegmentNext earlier today, the makers of Warzone.com reminded that Activision made this a legal dispute after endless effort by us to resolve the situation and now we will fight to the very end.

View original post here:

Activision's Banking On The First Amendment To Win Warzone.com Trademark Lawsuit - SegmentNext

from the criticizing-the-government-still-at-the-top-of-the-1st-Amendment-list dept

When government entities use private companies to interact with the public, it can cause some confusion. Fortunately, this isn't a new problem with no court precedent and/or legal guidelines. For years, government agencies have been utilizing Twitter, Facebook, Instagram, etc. to get their message out to the public and (a bit less frequently) listen to their comments and complaints.

Platforms can moderate content posted to accounts and pages run by public entities without troubling the First Amendment. Government account holders can do the same thing, but the rules aren't exactly the same. There are limits to what content moderation they can engage in on their own. A case involving former president Donald Trump's blocking of critics resulted in an Appeals Court decision that said this was censorship -- a form of viewpoint discrimination that violated these citizens' First Amendment rights.

A decision [PDF] from a federal court in Arkansas arrives at the same conclusion, finding that a page run by local law enforcement engaged in unlawful viewpoint discrimination when it blocked a Facebook user and created its own blocklist of words to moderate comments on its page. (h/t Volokh Conspiracy)

This case actually went in front of a jury, which made a couple of key determinations on First and Fourth Amendment issues. The federal court takes it from there to make it clear what government agencies can and can't do when running official social media accounts.

Plaintiff James Tanner commented on the Arkansas State Police's Facebook page with a generic "this guy sucks" in response to news about the promotion of a state trooper. That post was removed -- then reinstated -- by the State Police.

While that may have been a (temporary) First Amendment violation, the court says this act alone would not create a chilling effect, especially in light of the comment's reinstatement shortly after its deletion.

However, the State Police took more action after Tanner contacted the page via direct message with messages that were far more direct. In response to the State Police's threat to ban him if he used any more profanity in his comments, Tanner stated: "Go Fuck Yourself Facist Pig." For that private message -- seen by no one but Tanner and Captain Kennedy, who handled moderation of the State Police page -- Tanner was blocked. Kennedy compared the block of Tanner as the equivalent of "hanging up" on a rude caller.

The court disagrees. It's not quite the same thing. "Hanging up" on someone terminates a single conversation. What happened here was more analogous to subjecting Tanner to a restraining order that forbade him from speaking to state troopers or about them.

Tanner profanely criticized the State Police for the deletion of his comments. That was protected speech, as "the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers." City of Houston, Texas v. Hill, 482 U.S. 451, 461 (1987). That protection extends to saying "fuck you" to a police officer in person, Thuraraijah v. City of Fort Smith, Arkansas, 925 F.3d 979,985 (8th Cir. 2019), and the Court doesn't see a meaningful difference in the circumstances presented here. Plus, though profane, Tanner's private messages also criticized the actions the State Police took in response to his Facebook comments. The Court finds that the agency's decision to block Tanner was an adverse action that would chill a person of ordinary firmness from continuing in the activity.

[...]

The page administrators can, as Kennedy put it, hang up on Tanner's private messages. They can ignore them. They can delete them. The State Police may not, however, block Tanner from participating in its designated public forum based on his profane private messages. If the State Police had designated an area outside its headquarters as a place for citizens to stand and speak, the agency could not bar Tanner from doing so simply because he had cursed at a Trooper on the telephone.

Adding to the First Amendment violations was the Police's handcrafted blocklist, which added words and phrases not deemed offensive by Facebook's moderation rules. This was apparently unexpectedly revealed during discovery and the blocklist shows the agency engaged in automated viewpoint discrimination.

In addition to selecting a profanity filter setting, Facebook page administrators can also add specific words to a filter list. Corporal Head added the following words: "jackass", "pig", "pigs", "n*gga", "n*gger", "ass", "copper", and "jerk". Doc. 70-14 at ,r 15.

These terms blocked a couple of Tanner's last comments on the State Police page prior to the agency blocking his account completely. The court doesn't care for this at all.

First, it says the agency doesn't even know what content it's blocking because it has yet to obtain a list of terms/phrases blocked by Facebook's moderation efforts. Without this information, it can't definitively testify how much otherwise permissible speech is being blocked by proxy.

Far more troubling is the State Police's artisanal blocklist, which obviously aims to mute as much criticism of law enforcement as possible.

[T]here is no plausible explanation for the words "pig", "pigs"," copper", and "jerk" being on the State Police's list of additional bad words other than impermissible viewpoint discrimination.

This is an additional First Amendment violation, above and beyond what was affirmed by the jury's verdict.

The slang terms "pig", "pigs", and "copper" can have an anti-police bent, but people are free to say those words. The First Amendment protects disrespectful language. And "jerk" has no place on any prohibited-words list, given the context of this page, the agency's justification for having a filter, and the harmlessness of that word. Though some amount of filtering is fine in these circumstances, the State Police's current list of specific words violates the First Amendment.

Tanner wins. The State Police lose and will hopefully learn something from this remedial First Amendment class. Whatever judgment is rendered (Tanner was only asking for nominal damages in one count, but there are multiple allegations here), the State Police will have to pay. Qualified immunity has already been denied and the additional determinations made by the court make it extremely clear this was clearly established violation of Tanner's First Amendment rights.

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Filed Under: 1st amendment, muting, police, social media

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Court Tells Arkansas Troopers That Muting Anti-Cop Terms On Its Facebook Page Violates The 1st Amendment - Techdirt

Vice President Kamala Harris delivers virtual remarks to the National Bar Association from the White House in Washington, D.C., July 27, 2021.(Elizabeth Frantz/Pool via Reuters)

What happened to the free exercise of religion?

Editors Note: This article is adapted from Sean Spicers new book Radical Nation: Joe Biden and Kamala Harriss Dangerous Plan for America, published this month.

On January 16, 1993, President George H. W. Bush proclaimed the first Religious Freedom Day, commemorating the anniversary of the 1786 passage of the Virginia Statute for Religious Freedom. That statute was authored by Thomas Jefferson, and it served as a model for the opening lines of the First Amendment. President Bush noted in his Religious Freedom Day proclamation that freedom of religion is the first of all freedoms enumerated in our Bill of Rights.

Every president since Bush has issued a Religious Freedom Day Proclamation on January 16. In 1999, President Bill Clinton called religious freedom a fundamental human right . . . without which a democracy cannot survive. In 2009, President George W. Bush proclaimed religious freedom one of this lands greatest blessings.

In 2013, President Barack Obama opened his proclamation with the statement Foremost among the rights Americans hold sacred is the freedom to worship as we choose. Since then, many Democrats and progressives have adopted the phrase freedom of worship while avoiding the phrase free exercise of religion. The free exercise wording comes from the opening line of the First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

It may seem trivial, but theres a big difference between freedom of worship and the free exercise of religion. Those on the left understand the difference, and thats why they speak of freedom of worship and avoid the words of the First Amendment.

Words matter. When politicians speak of freedom of worship, they are saying that you are free to worship any way you choose in your home or in your house of worship. But they dont want your religion to affect the way you live your life in public or the way you conduct your business. Democrats and progressives say that you are perfectly free to pray and worship in any way you choose as long as you do so behind closed doors.

But if you are a Christian businessperson, you must set aside your convictions and pay for your employees abortions. If you are a Christian baker, you must set aside your conscience and create a cake that celebrates a same-sex wedding. You may practice your faith in your house of worship one day a week. The rest of the week, your conscience belongs to the State, not your Creator.

But the First Amendment guarantees much more than freedom of worship. It guarantees the free exercise of religion. This means that you are free to practice your religion wherever you are, 24 hours a day, seven days a week, in every aspect of your life.

The Biden-Harris administration wants to deprive you of the right to live out your conscience and obey your God.

In 2012, Hobby Lobby Stores, Inc., a chain of arts-and-crafts stores owned by the David Green family, filed a lawsuit against the U.S. government over a mandate in the Patient Protection and Affordable Care Act (Obamacare) requiring companies to provide abortifacients. Hobby Lobby argued that the mandate was a violation of the Christian owners First Amendment right to free exercise of religion.

Kamala Harris, in her role as attorney general of California, joined an amicus brief from the attorney general of Massachusetts arguing that Hobby Lobby should be required to provide abortifacient coverage for its employees. Harris reasoned that for-profit corporations are not permitted to hold personal religious beliefs, even when those corporations are wholly owned by a Christian individual or family. She wrote:

Certain rights by their nature are purely personal guarantees that cannot be held by a business corporation (or, in some cases, by any corporation or collective entity). . . . Rights to the free exercise of religious beliefs, whether created by statute or by the Constitution, likewise protect the development and expression of an inner sanctum of personal religious faith. Free-exercise rights have thus also been understood as personal, relating only to individual believers and to a limited class of associations comprising or representing them. . . . Unsurprisingly, there is no tradition of recognizing or accommodating the exercise of such inherently personal rights by ordinary, for-profit business corporations.

According to Kamala Harris, if you run a for-profit business, whether its a little Colorado bakeshop or a multibillion-dollar chain of hobby stores, the First Amendment doesnt apply to you. You are free to practice your religious faith in any way you choose, as long as you keep it within your private inner sanctum. You are not allowed to apply the precepts of your faith to the way you conduct your business. In the public square, you must obey the almighty State, not almighty God.

With the center-left Justice Anthony Kennedy as the swing vote, the U.S. Supreme Court ruled five to four in favor of Hobby Lobby.

But Kamala Harris wasnt finished. Elected to the U.S. Senate in 2017, she introduced the Do No Harm Act. It would amend the Religious Freedom Restoration Act of 1993, stripping religious business owners of their First Amendment rights and forcing them to obey government health-care edicts that violate their religious convictions and moral conscience.

In a press conference promoting the Do No Harm Act, Harris said, The freedom to worship is one of our nations most fundamental rights. She didnt dare quote the actual wording of the First Amendment, which guarantees not merely freedom to worship but thefree exercise of religionin every aspect of our lives.

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Democrats Assault on Religious Liberty Began with an Innocuous-Sounding Phrase - National Review

Petitions of the week ByAndrew Hamm on Oct 22, 2021 at 5:29 pm

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether officers who observe a driver using a cellphone have reasonable suspicion to pull the driver over for texting, whether agents around-the-clock video surveillance of a home for 18 months is a search, and whether a plaintiff may sue a police officer for questioning without giving Miranda warnings.

Iowa and other states prohibit texting while driving but allow cellphone usage for other purposes, such as navigation. In Steven Struves case, Struve v. Iowa, police officers pulled Struve over after observing Struve using a cellphone for an unidentifiable reason for 10 seconds while driving. The traffic stop led to Struves arrest for having methamphetamine in the backseat. Struve, who was never charged with violating Iowas texting-while-driving law, was convicted for possessing a controlled substance. Before trial, the district court rejected Struves argument that the officers had violated the Fourth Amendment in pulling him over without reasonable suspicion because they could not tell whether he was texting or using his cellphone legally. The Iowa Supreme Court ruled that the officers common sense inference that Struve was texting provided reasonable suspicion for the traffic stop. In his petition, Struve argues that the Iowa Supreme Court adopted a minority, and incorrect, position among states with similar laws.

In another Fourth Amendment case, Tuggle v. United States, Travis Tuggle claims that federal agents without a warrant maintained around-the-clock video surveillance of his home for 18 months. Tuggle asks the justices to rule that this conduct constituted a search under the Fourth Amendment and that the Constitution required the agents to get a warrant. In the decision below, the U.S. Court of Appeals for the 7th Circuit ruled that the surveillance was not a search because Tuggle lacked a reasonable expectation of privacy in his movements that were observable to any ordinary passerby. In his petition, Tuggle argues that the U.S. Court of Appeals for the 5th Circuit and the Colorado and South Dakota Supreme Courts have considered such long-term surveillance a search because it infringes expectation of privacy that society is prepared to recognize as reasonable.

Vega v. Tekoh concerns a plaintiffs ability to bring a lawsuit for a constitutional violation under 42 U.S.C. 1983 after a plaintiff is questioned without having been advised of constitutional rights under Miranda v. Arizona. Carlos Vega, a sheriffs deputy in Los Angeles County, questioned Terence Tekoh, a suspect in an investigation into sexual assault, without giving Tekoh his Miranda warnings. Tekoh confessed. At trial, the court allowed the prosecution to introduce Tekohs confession on the ground that the questioning did not violate Miranda because Tekoh was not in custody at the time. The jury, however, found Tekoh not guilty. Tekoh then sued Vega under Section 1983 for failing to give him the Miranda warnings. In his petition, Vega argues that the U.S. Court of Appeals for the 9th Circuits decision to let Tekohs claim proceed was incorrect and in conflict with other circuits. Vega maintains that Miranda governs when statements are admissible as evidence at trial, and that not receiving the warnings is not itself a constitutional violation. Vega also argues that he was not the proximate cause of the confessions introduction at trial because the prosecutor and the trial judge played intervening and superseding roles.

These and otherpetitions of the weekare below:

Struve v. Iowa21-374Issue: Whether police officers in the more than 20 states that have laws that prohibit sending text messages on a cellphone while driving, but that allow drivers to use their cellphones for other purposes, such as navigation or playing music, have reasonable suspicion under the Fourth Amendment to initiate an investigatory traffic stop, when they observe a driver briefly holding and manipulating a cellphone, in a manner that does not indicate whether the cellphone is being used for a lawful or prohibited purpose.

Lamoureux v. Montana21-427Issue: Whether a statute that criminalizes speech intended to annoy or offend is unconstitutionally overbroad under the First Amendment.

Johnson v. Bethany Hospice and Palliative Care LLC21-462Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to SCOTUSblog in various capacities, is among the counsel to the petitioners in this case.Issue: WhetherFederal Rule of Civil Procedure 9(b)requires plaintiffs inFalse Claims Actcases who plead a fraudulent scheme with particularity to also plead specific details of false claims.

National Pork Producers Council v. Ross21-468Issues: (1) Whether allegations that a state law has dramatic economic effects largely outside of the state and requires pervasive changes to an integrated nationwide industry state a violation of the dormant commerce clause, or whether the extraterritoriality principle described in the Supreme Courts decisions is now a dead letter; and (2) whether such allegations, concerning a law that is based solely on preferences regarding out-of-state housing of farm animals, state a claim underPike v. Bruce Church, Inc.

Black v. Pension Benefit Guaranty Corporation21-495Issues: (1) Whether the Employee Retirement Income Security Act permits the termination of a distressed pension plan through an agreement between Pension Benefit Guaranty Corporation and the plan administrator; (2) whether termination through such an agreement, which avoids a hearing, violates the participants constitutional rights to due process; and (3) whether, if ERISA and due process allow for termination by agreement, the terminations substantive legality is to be judged under the standards in29 U.S.C. 1342(c), or whether it is enough that the conditions in Section 1342(a) to institute proceedings may exist.

Vega v. Tekoh21-499Issue: Whether a plaintiff may state a claim for relief against a law enforcement officer under42 U.S.C. 1983based simply on an officers failure to provide the warnings prescribed inMiranda v. Arizona.

Bank of America Corporation v. Fund Liquidation Holdings LLC21-505Issue: Whether a district court lacking Article III jurisdiction can create such jurisdiction by adding a new plaintiff viaFederal Rule of Civil Procedure 17.

Tuggle v. United States21-541Issue: Whether long-term, continuous, and surreptitious video surveillance of a home and its curtilage constitutes a search under the Fourth Amendment.

Link:

Texting in the car, surveillance of a home, and Section 1983 for Miranda - SCOTUSblog

HUDSON, Ohio A group of Hudson residents is moving forward with a petition to recall Hudsons mayor Craig Shubert.

The recall effort started, in part, due to the comments Shubert made last month at a Hudson City School Board meeting. The meeting made national headlines as enraged parents and residents demanded the board address a book used at Hudson High School that, they felt, had inappropriate content for students.

RELATED: Writing prompt book sparks controversy among parents in Hudson

It has come to my attention that your educators are distributing essentially what is child pornography in the classroom. I've spoken to a judge this evening. She's already confirmed that. So I'm going to give you a simple choice. You either choose to resign from this Board of Education or you will be charged, said Shubert to board members at the meeting.

Since that meeting, the Summit County Prosecutor stated the books writing prompts did not contain child pornography, but is still investigating if any laws were broken.

Karen Farkas said the mayors comments at that September meeting put Hudson in a bad light.

That went beyond what I felt, and many others, was his First Amendment rights, and he spoke and introduced himself as the mayor of Hudson, not as just a Hudson resident, said Farkas.

Farkas has lived in Hudson for over two decades. She said during Shuberts time in office he has overstepped.

Until Mayor Shubert was elected in 2019, we would always have mayors who abided by what the mayor's role is supposed to be in the city of Hudson, which is ceremonial, she said.

Hudsons city charter states that the mayor is ceremonial and the city manager is head of operations.

Farkas attended two council meetings after Shuberts comments in that September meeting. She told Shubert and council members that she would go forward with a recall petition if he refused to apologize or did not resign.

He had two choices. He could publicly apologize to the citizens of Hudson, to city officials and to the school board, or he could resign, she said. He did not respond at all at that meeting and so since that time, we've been gathering signatures.

She and other residents have created the website recallhudsonmayor.com

She said theyre slowly gathering signatures from registered Hudson voters. They have a drive-thru petition signing event Saturday at Veterans Way Park from 10:00 a.m. to 1:00 p.m. and will also be at polls come election day.

The recall petition needs about 3,100 signatures in order to force an election.

Shubert issued this statement to News 5 in response to the recall petition:

Any special election would cost Hudson taxpayers tens of thousands of dollars in unnecessary expense and continue the divisiveness in the city for months to come. There are ongoing investigations by both the school district and the county prosecuting attorney. The fact that this recall has been launched before the results of those investigations are known shows this is more about a personal vendetta than the facts-Craig Shubert, Mayor of Hudson

Farkas said it is not a personal vendetta and that it wouldnt have to happen if he would just apologize or resign.

It's basically a measure to keep our community as great as it's always been, she said.

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Group of residents gathering signatures on recall petition for Hudson mayor - News 5 Cleveland