CLEVELAND, Ohio Two First Amendment scholars question whether the Biden-Harris light display projected onto Terminal Tower last Tuesday by the United Steelworkers violated city or state law as the the buildings owner contends.

And even if the display did violate local or state laws, the scholars said, the laws might be trumped by First Amendment protections of free speech given the unusual facts of the case that the display amounted to projected light and was in support of political candidates.

Cleveland.com and The Plain Dealer reached out to Kevin ONeill, associate professor at Cleveland State Universitys Cleveland-Marshall College of Law, and Andy Geronimo, a lecturer at Case Western Reserve University School of Law, to examine the debate over the displays legality.

Whats at issue?

The United Steelworkers claimed responsibility for the light display, projected ahead of the debate in Cleveland between President Donald Trump and former Vice President Joe Biden, and referencing Biden and his running mate, former Sen. Kamala Harris. The union also contends the display was legal.

Doug Price, CEO of the management group that owns Terminal Tower, told cleveland.com that the United Steelworkers projected the display without his companys permission and that city prosecutors subsequently provided him with three laws that prohibit such displays.

Prices company, K&D Management, cited those laws in a cease-and-desist letter sent to the union. They are:

*A city prohibition against posting or sticking any advertisement, poster, sign or handbill or placard of any description on any private building or structure without the owner or occupants permission. It also prohibits printing, marking, writing, printing or impressing or in any manner attach[ing] any notice or advertisement or the name of any commodity or thing or any trademark, symbol or figure of any kind upon anothers property without permission.

*A city criminal mischief law that, in part, prohibits people from moving, defacing, damaging, destroying, or otherwise improperly tampering with anothers property.

*A state law that requires most political communications to clearly identify the entity that issued them.

Cleveland.com and The Plain Dealer shared the three laws with Geronimo and ONeill.

What does Geronimo say?

Geronimo said the city laws K&D cited do not neatly address light projections such as the one displayed on Terminal Tower, and the incident demonstrates the difficulty of applying these ordinances to this kind of action.

The two city laws might not hold up in court because a judge might question whether the intangible nature of light is actually covered by those laws, which seem intended to address the physical overtaking of the building in a way thats irreversible.

Because this is light, its hard to say its damaging or destroying the building, he said. It is a very nuanced problem, and the laws as written now, and as courts have engaged with applying these laws, dont fit neatly to this problem.

The city could better address the issue by passing another law or amending current law to specifically include non-permanent light displays. But such a law would need to be crafted with First Amendment protections in mind, because it would be regulating free speech.

More generally, First Amendment violations would come into play if the police, a court or the city had tried to stop the union from displaying its message.

If K&D filed a nuisance or trespassing lawsuit against the union, the union might be able to successfully use its First Amendment protections as a defense.

In that case, the projectionist might say I have a free speech right and the state shouldnt use its power to order me to stop doing this under threat of criminal or civil penalty.

A constitutional question might also arise if police try to stop the projectionist while the projectionist is standing on public sidewalks or streets, which are often considered public forums.

If the projectionist was standing on private property, however, the owner of that property could report it to police as a trespassing complaint, which would allow police to legally remove the projectionist.

(A Steelworkers spokeswoman previously told cleveland.com she was unsure where the projectionist was standing when shining the light on Terminal Tower. Price previously told cleveland.com it appeared the source of the light was from one of the bridges over the Cuyahoga River.)

What does ONeill say?

I dont think a judge would see a problem with this, he said. If there were a [local law prohibiting this, the law] might be unconstitutional under the First Amendment. Whats the harm? Its simply the expression of light onto a faade.

ONeill noted that hes never encountered a First Amendment court challenge specifically related to light projections. But the first thing a lawyer or judge would want to know when considering such a case is whether a local ordinance prohibits the practice. If there isnt one, the light display would not be illegal.

If a local ordinance is in place, one would have to determine whether that law is unconstitutional, because it might very well be hard for the government to justify under existing First Amendment law.

To be considered constitutional, the local ordinance would likely need to be content-neutral, narrowly tailored to achieve a substantial government interest and also leave open ample alternative channels for communicating the message.

If Cleveland had a law specifically prohibiting the projection of a message or image onto a building, theres a chance a court would uphold it as constitutional, he said.

But theres also a chance a court would say such a law wasnt narrowly tailored, or that it takes away a novel method of expression that doesnt harm the public and, theres no significant or even important governmental interest that would be served by banning such expression.

What does the city say?

Cleveland spokeswoman Latoya Hunter Hayes did not respond to questions from cleveland.com and The Plain Dealer seeking confirmation that city prosecutors had provided Price with laws applicable to the case of the light display on Terminal Tower.

In an email, Hunter Hayes said only that projecting a light display sign on anothers property without the property owners permission, and without a permit when required, would violate city laws governing signs.

Obtaining a permit is the responsibility of a property owner, she said, but did not say whether a permit would have been needed by the United Steelworkers.

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First Amendment scholars weigh in on legality of Terminal Tower Biden Harris light display - cleveland.com

Yesterday's Minnesota Voters Alliance v. Walz, decided by Judge Patrick J. Schiltz (D. Minn.), correctly rejects the argument that the Minnesota mask mandate "violates the First Amendment because it does not permit them to enter indoor public spaces without face coverings as a way to protest the requirement that they wear face coverings when they enter indoor public spaces":

The Supreme Court has recognized that expressive conduct may be entitled to a measure of First Amendment protection. In general, courts evaluate the validity of a law that regulates expressive conduct under the standard articulated in United States v. O'Brien (1968). This does not mean, however, that every law regulating conduct is subject to scrutiny under O'Brien whenever an individual decides to violate the law for the purpose of sending a message.

If combining speech and conduct were enough to create expressive conduct, a regulated party could always transform conduct into "speech" simply by talking about it. For instance, if an individual announces that he intends to express his disapproval of the Internal Revenue Service by refusing to pay his income taxes, we would have to apply O'Brien to determine whether the Tax Code violates the First Amendment. Neither O'Brien nor its progeny supports such a result.

To merit First Amendment protection under O'Brien, then, the conduct regulated by the challenged law must be "inherently expressive." Here, the conduct at issue is not inherently expressive. [A]n observer would have no idea why someone is not wearing a face covering. Absent explanation, the observer would not know whether the person is exempt from EO 20-81, or simply forgot to bring a face covering, or is trying to convey a political message. That fact takes the conduct outside of the First Amendment protection afforded by O'Brien.

Even if wearing or not wearing a face covering was inherently expressive, EO 20-81 is clearly constitutional, whether analyzed under O'Brien or Jacobson. Under O'Brien,

a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

There is no question that Minnesota has the constitutional authority to enact measures to protect the health and safety of its citizens. Likewise, there is no question that EO 20-81 furthers the substantial government interest in controlling the spread of a deadly and highly contagious disease. As discussed above, federal health officials recommend face coverings as an effective way to slow the spread of COVID-19, and this recommendation finds support in recent studies.

Finally, EO 20-81 is unrelated to the suppression of free expression and has at most an incidental effect on First Amendment freedoms that is no greater than necessary; plaintiffs are free to express their opinions about EO 20-81 in every conceivable way except by violating its provisions and putting at risk the lives and health of their fellow citizens.

Likewise, EO 20-81 is constitutional under the standard established in Jacobson v. Massachusetts (1905), which requires courts to examine whether a measure adopted to address a public-health crisis has a "real or substantial relation" to the crisis and, assuming that it has such a relation, whether it is "beyond all question, a plain, palpable invasion" of a constitutional right.

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Mask Mandate Doesn't Violate the First Amendment - Reason

After the debut of hit showEmpire, record label Empire Distribution asserted trademark infringement counterclaims against Twentieth Century Fox Television, who sought a declaratory judgment that its television show and associated music releases did not violate Empire Distributions trademark rights. InTwentieth Century Fox TV v. Empire Distribution, Inc., 875 F.3d 1192 (9th Cir. 2017), the Ninth Circuit affirmed the district courts finding that the First Amendment protected Foxs use of the name Empire for an expressive, creative work and ancillary works. In doing so, the appellate panel reaffirmed First Amendment protection for use of marks in creative works where the use of the mark bears some artistic relevance to the underlying work and does not explicitly mislead consumers.

Founded in 2010, Empire Distribution is a record label that records and releases albums in the urban music genre, which includes hip hop, rap, and R&B. In 2015, Fox premiered Empire, a dramatic television series about a fictional New York-based hip-hop record label, and the storylines that revolve around its inception, founding members, executives, and artists. The show features songs in every episode, some of which are original, and Fox contracted with Columbia Records to distribute the music in the show under theEmpirebrand. After receiving several threatening letters from Empire Distribution about Foxs use of the Empire name, Fox filed a declaratory judgment action seeking a determination that itsEmpireshow, its associated music releases, and affiliate merchandise did not violate Empire Distributions trademark rights. Empire Distribution counterclaim for trademark infringement, unfair competition, and false advertising. The fight centered on whether Foxs creative work, which utilized the protected name and trademark of Empire Distribution, was exempt from the Lanham Act as a First Amendment expression.

When it comes to First Amendment protections for trademark use, the discussion must start with the test expounded by the Second Circuit inRogers v. Grimaldi, 875 F.2d 994, 999 (2d Cir. 1989). Courts generally apply theRogerstest in determining whether an expressive work runs afoul of the Lanham Act where the public interest in avoiding consumer confusion outweighs the public interest in free expression. Pursuant toRogers, use of anothers trademark or protected identifying material in an expressive work does not violate the Lanham Act unless the use has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless it explicitly misleads consumers as to the source or content of the work.

Analyzing the first prong, the Ninth Circuit found Fox used the word Empire for artistically relevant reasons because the show was set in New York, the Empire State, and its subject matter is a music and entertainment conglomerate. The court rejected Empire Distributions contention that for a use to have an artistic relevance it must refer to the owners mark, in this case Empire Distribution, holding that supporting the themes and geographic setting of the work was sufficient to satisfy the first prong of theRogerstest, which simply requires minimal relevance.

.

Turning to the second prong, the Ninth Circuit found Foxs use of the titleEmpiredid not explicitly mislead consumers. Absent an explicit indication, overt claim, or explicit misstatement that causes such consumer confusion, the second prong of theRogerstest will be satisfied. SinceEmpiredid not mislead consumers into believing it was produced or created by Empire Distribution, the Court affirmed the lower courts grant of summary judgment in favor of Fox.

Tucked away in the Ninth Circuits decision is the acknowledgment that not only is an expressive work protected from trademark infringement liability if it passes theRogerstest, but also are similarly branded ancillary promotional activities and commercial products based on the expressive work. So as long as the attendant commercial use is auxiliary to the expressive work and not explicitly misleading, it falls within the protective umbrella. Thus, Fox can sellEmpirebranded CDs, t-shirts, and music, as well as put on and promoteEmpireconcerts without infringing on Empire Distributions exclusive rights to use the Empire name in conjunction with those goods and services. Although the Ninth Circuits decision may be a significant victory for Fox and other creators of expressive works, brand owners will likely see this decision as a setback to trademark enforcement and an expansion of theRogerstest. With bated breath, we anticipate how other courts apply and expound onRogersin light of the Ninth Circuits decision, and whether the Supreme Court will weigh in on the topic.

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Use of Trademarks in Creative Works & Lanham Act Liability - The National Law Review

Editor,

I find myself writing another letter to our community newspaper. No, Im not mad, angry, nor riding a high horse pushing a candidate for elective public office. Believe it or not, it is because of a small, square white sticker tag attached to front of my Saturday newspaper.

For simplicity, Ill refer to it as the civility tag. Yes, a call for civility in the wild, one could say. That being wilderness of discontent we find ourselves in today, I presume. Asking for or suggesting the signing of a civility pledge of a local group promoting civility.

Yes, I believe the tag, as well as the group, are well intentioned.

Freedom of speech, as granted in our Constitution with few if any restrictions on ways of expression, does not include civility as a stipulation or requirement. Civility is an ambiguous term anyway. Meaningful in different ways to different folks.

Speaking for myself, I found it to be a Trojan horse of censorship.

This time of discontent we find ourselves in a period of history in the making and, I believe, most exercises of our inherited freedoms have been reasonably presented.

I understand others may disagree, but there is the value in freedom of speech, discussion and debate.

Thomas Strang

Coupeville

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Letter: 'Civility' is not mentioned in the First Amendment - South Whidbey Record

A federal judge has authorized an immediate appeal of herdecision to allow PEN America to proceed with claims that President Trump violated the First Amendment by retaliating against journalists based on their critical coverage.

In a decision issuedThursday, U.S. District Court Judge Lorna Schofield in New York ruled that the dispute presented legal questions that lent themselves to appellate review -- including whether a judge could issue adeclaratory judgment against a sitting President over his discretionary conduct.

Schofield said that question implicates constitutional considerations, and that its resolutionwould materially advance the ultimate termination of the litigation.

The ruling paves the way for the Department of Justice to as the 2nd Circuit Court of Appeals to intervene inthe matter.

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The fight dates to 2018, when the organization PEN America sought a declaratory judgment that Trump violated the constitution by retaliating against journalists based on theirviewpoints, and by threatening the media in a way that could chill free speech.

PEN America also sought an injunction prohibiting the federal government from taking action against mediaorganizations and journalists for their criticism of the White House.

Among other claims, PEN Americaalleged that the administration wrongly revoked the press credentials of CNN's JimAcosta after a contentious November 2019 press conference. (A federal judge in Washington, D.C. subsequently ordered the government to restore Acosta's press pass.)

Schofield ruled in March that PEN America was entitled to pursue its request for adeclaratory judgment. But she said the organization couldn't proceed with its request for an injunction, given that Trump has discretionary authority over matters like securityclearances.

The Department of Justice then asked Schofield for permission to appeal to the 2nd Circuit.

The administration said it wanted to raise several arguments, including whetherTrump can be subjected to a lawsuit seeking a declaratory judgment based on non-ministerial actions he performed in an official capacity.

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Judge Authorizes Appeal In PEN America's First Amendment Fight With Trump 10/05/2020 - MediaPost Communications

On Thursday, U.S. District Court Judge Stephen Wilson ordered the City of Los Angeles to pay the National Rifle Association (NRA) close to $150,000 over a 2019 ruling on a city ordinance aimed at negatively affecting some city workers who are members of the NRA.

City Ordinance 186000 specifically requires that any prospective contractor with the city must disclose all contracts or sponsorships with the NRA. The ordinance noted several mass shootings, including the Sandy Hook School shooting in 2012, the Las Vegas Mandalay Bay shooting of 2017, and both the Pittsburgh and Thousand Oaks shootings of 2018, and tried to tie them to the NRA by showing how their support for less strict gun laws led to those incidents. The ordinance also noted how many of those cities would later enact greater gun control methods.

It concluded that since Los Angeles enacted ordinances and position in favor of greater gun control, it would make sure city funds wouldnt go those with ties to the organization and would halt city contractor business with NRA members and supporters.

The Citys residents deserve to know if the Citys public funds are spent on contractors that have contractual or sponsorship ties with the NRA, read the ordinance. Public funds to such contractors undermines the Citys efforts to legislate and promote gun safety.

The NRA immediately sued Los Angeles after the ordinance went into effect in April 2019. While the city, as well as ordinance sponsors Mayor Eric Garcetti and Councilman Mitch OFarrell, had expected to win, the NRA made a hard case for the ordinance being in violation of First Amendment rights, mainly freedom of speech.

In December, Judge Wilson agreed with the NRA and ruled against Los Angeles, halting the ordinance for good and allowing contractors who are members of the NRA to once again be freely allowed to get contracts with the city.

The text of the ordinance, the ordinances legislative history, and the concurrent public statements made by the ordinances primary legislative sponsor evince a strong intent to suppress the speech of the NRA, Judge Wilson wrote in his ruling. Even though the Ordinance only forces disclosure of activity that may not be expressive, the clear purpose of the disclosure is to undermine the NRAs explicitly political speech.

The City has no interest in the suppression of political advocacy regardless of how distasteful it finds the content. The Ordinance is therefore incompatible with the Constitution, and Plaintiffs are likely to be successful on the merits of their First Amendment speech claims.

Los Angeles stayed quiet after the ruling, neither giving a statement on the ruling nor attempting to pass an altered ruling in 2020.

Free speech advocates, affected contractors, and the NRA had the opposite reaction and celebrated the ruling.

It was essentially a blacklisting for believing in a constitutional amendment, Charles Rogers, an NRA supporter and contractor with several cities in Southern California, told the Globe. I didnt even attempt anything in Los Angeles last year.

But its my belief and Im with a group that shares that belief. I shouldnt be shunned for it. But the city really did do it. Thank God for that lawsuit.

The NRA also responded: This is an important win for the NRA, our members, and all who believe in Americas constitutional freedoms. The ruling sends a powerful message to those government officials who would take any actions that are adverse to the NRA because they dislike its political speech.

However, a question lingered throughout much of 2020 over the matter of the NRAs legal fees, which came in close to $150,000.

Los Angeles, which is currently going through a fiscal emergency due to COVID-19 closings and the economic downturn, had long avoided paying the NRA, going as far as saying that the NRA had to pay it themselves.

But earlier this week Judge Wilson sided with the NRA again, ordering the city to give the NRA all money owed and finally closing the last remnant of the case for good.

I know the city is hurting, but its good to see a First and Second Amendment victory like this in a big city like LA, added Rogers. And that court ordered payment the other day? It will make them think twice about doing something like this in the future.

Evan V. Symon is the Senior Editor for the California Globe. Prior to the Globe, he reported for the Pasadena Independent, the Cleveland Plain Dealer, and was head of the Personal Experiences section at Cracked. He can be reached at evan@californiaglobe.com.

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Los Angeles Ordered To Pay NRA $150000 Over First Amendment Ordinance Violation - California Globe

The First Amendment forms the bedrock of American democracy. Its protections against government censorship make possible the shared societal debates that have ushered many once-heretical ideas into the mainstream. Yet, as our national debates increasingly occur within the private walls of social media platforms, those companies, exempt from First Amendment restraints, have embraced their newfound role of national censor. As part of this process, fact-checkers are expanding their reach to questions for which there are no clear answers, adding new categories of assessment such as missing context to their rulings.

These shifting dynamics prompt a fundamental question: What does it mean for democracy when the First Amendment is continually narrowed by private companies stepping in to act as the censors that the government cant be?

Throughout American history, the First Amendment has enshrined the right of all Americans to hold and share beliefs without fear of government repression. With few exceptions, the government cannot forcibly deter its citizens from expressing views with which it disagrees. Yet it is important to remember that these protections do not extend to the private entities within whose walled gardens we often hold our societal debates. Twitter can legally label the presidents tweets as false while Facebook can legally set its own standards regarding when threats of state use of force can be made. The platforms can legally ban users, including heads of state, threaten to bar elected officials for statements they dislike, designate people as dangerous individuals and restrict circulation of content its fact-checking partners deem to be true but missing context. How is it that a private company can now designate an American citizen as a dangerous individual whose right to speech in the digital world can be revoked?

In extending their reach to elected officials over the past year, social platforms are increasingly seeking to wield influence over American policy. Twitter allegedly threatened to ban Sen. Tom Cotton from its platform if he didnt delete a tweet encouraging law enforcement to crack down on violent looting, while Facebook noted it could establish official guidelines regarding when the U.S. government would be permitted to use force against its citizenry and bar official government threats of force in violation of that policy.

Threatening politicians with bans for unpopular speech and actively flagging and even deleting statements the platforms dislike allows social media companies to encourage self-censorship in which elected officials, fearful of being blocked from a major connection to voters, will restrict what they say.

At the same time, the courts have repeatedly ruled that President Trumps Twitter account constitutes an official U.S. government account and thus the president is prohibited from blocking users with whom he disagrees. Yet, if the presidents Twitter account is an official publication of the government in the eyes of the judiciary, why is Twitter permitted to censor it?

The companies have even begun to wade into the legal system, curtailing posts arguing that the actions of Kyle Rittenhouse charged with fatally shooting two people during civil unrest in Kenosha, Wis. were in self-defense. Twitter went a step further to suspend the account of Rittenhouses lawyer for glorifying violence after the attorney publicly touted his clients innocence and announced a fundraiser to help cover his legal costs. Only after a public outcry did the company reinstate the account, offering only the terse explanation that this account was incorrectly actioned. If private companies can now render their own judgment on court cases and bar arguments of guilt or innocence with which they disagree, what impact will that have on jury pools of the future?

The fact-checking landscape is also becoming more complex. Rather than stick to simple true and false ratings, fact-checking on Facebook now includes labels like missing context, which does not dispute a claims veracity, but rather argues that, like all arguments, there is an opposing view.

A Facebook spokesperson noted that this missing context rating was added just last month at the recommendation of its fact-checking partners. Interestingly, the rating was recently cited by the platform in its removal of an ad. Regarding the ads criticism of Michigan Sen. Gary Peters, the fact-checker noted, Thats a prediction we cant fact-check.

While Facebook touts the independence of its fact-checking partners, the business magazine Fast Company noted recently that the platform may intervene if it thinks that a piece of content was mistakenly rated, by asking fact-checkers to adjust their ratings, a spokesperson acknowledged. Asked how often this occurs, the company did not reply, but did confirm that it periodically intervenes in fact-checker ratings when it believes they are not in keeping with its definitions.

At the same time, social media platforms are facing increasing pressure to define ever more of our societal debate as prohibited speech. As but one example, the NAACPs #StopHate campaign earlier this year grouped climate denialism into the same category as white supremacy, militia, antisemitism, violent conspiracies, Holocaust denialism.

Such redefining of the public debate as hate speech mirrors the wording used by China earlier this year as it strengthened its grip over Hong Kong. After a number of teachers were reprimanded for teaching topics relating to human rights and democracy, a spokesperson for Hong Kongs Education Bureau offered that the teachers were not punished for a particular political view but rather for express[ing] their views in hate speech or through violence.

As private companies increasingly sweep aside First Amendment guarantees, they have been granted incredible powers not just to arbitrate what constitute acceptable ideas but to ultimately decide what constitutes truth. Where might these trends take us? For the answer, ask your friendly Amazon Alexa device, Is Apple/Facebook/Google/Twitter/Walmart a monopoly? In each case it will cite search results from the web to argue that each is a monopoly. On the other hand, ask whether its manufacturer, Amazon, is a monopoly and without hesitation Alexa repeats the built-in answer: No, Amazon.com is not a monopoly.

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How Social Media Platforms Are Narrowing the First Amendment - KHQ Right Now

MURFREESBORO, Tenn. Many Americans, whether theyre observers or participants, are feeling overwhelmed by 2020s onslaught of protests, pandemics and politics, but members of an MTSU panel say theyre seeing a surprising side of our national unrest: hope.

Speaking live via Zoom discussion Sept. 16, members of the Racial Justice Protests and the First Amendment panel agreed that this years gatherings, which began in Minneapolis after police killed George Floyd in May and have spread to more than 2,000 American cities in all 50 states, are unique to our time.

This has just been such a long period of one major change coming after another, and how to process this moment as a person is hard. But I do see a lot of optimism, actually, said Ryan Haas, an editor and producer for Oregon Public Broadcasting whos been in the middle of the protests in Portland, Oregon, with his team of investigative journalists.

As tense as people seem, as divided as people seem, I do see a lot more people opening up to this idea that America has not fulfilled what our founding documents say, and we should include more of those voices who have historically been marginalized.

Im seeing more and more people use this language of inclusion and (saying) How do we hear different voices? and You know, white people in this country have certainly had plenty of time to have their say; maybe we should have other voices come to the table and talk about how we can make our country better.'

Black Lives Matter organizers joined with other groups in Portland for nightly protests to demand justice for Floyds death, along with thousands more Black Americans killed during encounters with police.

Those nightly events turned violent in July when the U.S. Justice Department sent federal agents to the city, wielding tear gas, rubber bullets and other weapons against protesters. Recent gatherings have dwindled because of toxic air created by wildfires burning on the West Coast.

The most important thing to acknowledge here is that these protests are not just idle. People are not just doing it for the sake of doing it; theyre doing so to evoke change, said panelist Ashley Howard, a professor in the University of Iowas African American Studies Program whose expertise includes the global history of racial violence and the racial-oppression protests that galvanized 1960s America and creative massive change for so many citizens.

Part of a protest is it is meant to be a disruption. It is meant to push back against the establishment. It is meant to be inconvenient, because it is in hopes that it will induce people to do what youre asking them to do. So its difficult to see what the win, or victory, so to speak, is right now, because its so multifaceted.

One way were seeing victory in this moment is the fact that youre seeing attitudes broadly change. Monmouth University had a poll, and 76 percent of the people that they polled said that racial injustice, racism, is a problem in this country. That is a significant finding for many people of color theyre like, Well, obviously. But for a majority of people to begin to think that, its important.

Ken Paulson, director of the Free Speech Center at MTSU and a professor in the College of Media and Entertainment, said that while 1968 was a turning point for the entire country, were in a place weve never been before as a nation.

Noting that the First Amendment to the U.S. Constitution, ratified in 1791, guarantees five freedoms, including what he called the two least known the freedom of assembly and the freedom to petition the government Paulson, an attorney specializing in First Amendment issues and a former USA Today editor-in-chief, said protests, which are protected by those least known freedoms along with free speech, are the only First Amendment activities specifically mentioning the right of the people.

What we have today is 1968, plus a pandemic, plus this social media option that has transformed the way we communicate and oddly enough, not for the better, he said.

Its impossible to say where its going. We have never been down this road before, but Im encouraged that a nation, when faced with injustice, can get out of their homes, put down their phones, pick up a sign and raise their voices in protest, using the weapons of 1791. There is hope, and we have the tools we need to make a difference.

Keonte Coleman, an assistant professor in MTSUs School of Journalism and Strategic Media, moderated the hourlong panel discussion, which was presented by the universitys John Seigenthaler Chair of Excellence in First Amendment Studies and the Free Speech Center.

The complete discussion will be available at the Seigenthaler Chair of Excellence YouTube channel, http://ow.ly/ycGm30ranW2.

MTSUs Seigenthaler Chair of Excellence in First Amendment Studies honors the late John Seigenthaler, longtime editor and publisher of The Tennessean and founder of the First Amendment Center, and his lifelong commitment to free expression. Currently led by veteran journalist Deborah Fisher, it sponsors activities at MTSU that include visits from distinguished professors and lecturers, research, seminars, and hands-on training for student journalists.

More information about MTSUs Seigenthaler Chair of Excellence in First Amendment Studies is available at http://www.mtsu.edu/seigenthaler.

The Free Speech Center at MTSU is a nonpartisan public policy center that works to build understanding and support for the five freedoms of the First Amendment through education and information.

The Free Speech Centers resources, including the First Amendment Encyclopedia, are open to the public anytime at http://freespeech.center.

For more information on MTSUs College of Media and Entertainment and its programs, visit https://www.mtsu.edu/media.

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MTSU Holds "Racial Justice Protests and the First Amendment" Panel - rutherfordsource.com

From the public university's Diverse, Equity, and Inclusion Task Force (emphasis added):

Recommendation 9: Miami University should explore the adoption of a zero-tolerance anti-discrimination policy and strictly enforce its existing University policy on discrimination.

Miami University must be able to determine under what conditions employees can be terminated and students can be dismissed from the University if proven they have made discriminatory (e.g., racist, sexist, homophobic, etc.) comments.

Note: This recommendation assumes the accused party was afforded proper due process and an appropriate finder of fact determined discrimination occurred.

Rationale: As a public institution of higher education, Miami University should demonstrate moral courage when defending its interest in having an efficient and disruptive-free work environment. Student dismissal or employee termination should not be shied away from because of fear of First Amendment violations. Case law dictates that a balancing test regarding private citizen's 1st amendment right vs public institution interest in an efficient and disruptive-free work environment (Connick v. Myers, 461 U.S. 138, 1983; Dixon v. University of Toledo, 702 F.3d 269, 6th Cir. 2012; Locurto v. Giuliani, 447 F.3d 159, 2d Cir. 2006; Pickering v. Board of Education, 391 U.S. 563, 1968). The key legal factors (e.g., avoiding disruptions in regular operations, maintaining good working relationships among coworkers, avoiding erosion of working relationships dependent on confidence and loyalty, avoiding obstructions in employees' abilities to perform their work) favor Miami's case for an efficient and disruptive-free work environment.

Well, maybe the Diversity, Equity, and Inclusion folks have no "fear of First Amendment violations "and think "moral courage" consists of promoting "efficient and disruptive-free work environment" without regard to student and faculty speech rights; but the University ought to have some fear here:

[1.] Student First Amendment Rights: Any policy saying that "students can be dismissed from the University if proven they have made discriminatory (e.g., racist, sexist, homophobic, etc.) comments" would violate the First Amendment. The Diversity, Equity, and Inclusion Task Force may not "fear First Amendment violations," but the university, which will have to pay for those violations (and which presumably wants to comply with the law) should. Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995), expressly struck down a campus "discriminatory harassment policy" that banned allegedly bigoted speech (there, "verbal behavior that subjects an individual to an intimidating, hostile or offensive educational, employment or living environment by (c) demeaning or slurring individuals through written literature because of their racial or ethnic affiliation; or (d) using symbols, [epithets] or slogans that infer negative connotations about the individual's racial or ethnic affiliation").

The same would be true of any policy calling for discipline for "racist, sex, homophobic, etc." "comments." See also Matal v. Tam, 137 S. Ct. 1744 (2017) (reaffirming that, even within government-run programs, the government can't impose viewpoint-based restrictions on supposedly bigoted expression); Christian Legal Society v. Martinez, 561 U.S. 661 (2010) (reaffirming the protection of students' right to "express any viewpoint they wishincluding a discriminatory one," and stressing "this Court's tradition of 'protect[ing] the freedom to express "the thought that we hate"'").

[2.] Faculty First Amendment Rights: The rights of public university professors, as public employees, are more complicated, because the government as employer usually has more power to restrict employee speech than the government as college educator has over students. But courts have recognized that the government's power to punish faculty for speech in their research, public commentary, and even their teaching is still sharply limited.

Thus, for instance, in Hardy v. Jefferson Community College(6th Cir. 2001), the court held that a professor had a right to discuss offensive wordssuch as "nigger" and "bitch"in class, when that was "germane to the subject matter of his lecture." Likewise, in Levin v. Harleston(2d Cir. 1992), the court held that even "derogatory remarks about persons of certain racial or ethnic groups" (to quote Hardy's description of Levin) in letters to the editor and in journal articles were protected by the First Amendment. And Burnham v. Ianni(8th Cir. 1997) (en banc), recognized the right of faculty members to convey their views on campus outside class, even when some found that speech to be offensive.

Some restrictions on faculty speech may not violate the First Amendment, for instance when the speech appears unconnected to public debates (as in another portion of Dambrot). And high-level university administrators may be less protected from being removed from their administrative positions (though, if they're also faculty, they may still have a First Amendment right not to be removed from their faculty positions). That's what Dixon v. University of Toledo(6th Cir. 2012), the Toledo case to which the Task Force seems to be referring in the Recommendation 9 Details, held: An Associate Vice President for Human Resources could be removed for her speech, just as, say, a Governor's cabinet member can be removed by the Governor for his speech or political activity. (The Dixon court specifically cited the political appointee cases, such as Rose v. Stephens(6th Cir. 2002).)

[3.] Academic Freedom Guarantees: Besides the First Amendment, much of the protection for freedom of debate and inquiry at universities comes from Academic Freedom policies that the universities themselves adopt, and on which prospective students, faculty, donors, and legislative supporters rely. Miami of Ohio has such a policypresumably the Diversity, Equity, and Inclusion Task Force would be seeking to add viewpoint-based exceptions to it in order to implement the Task Force's goals. This is the current policy, which protects all ideas, whether or not people label them "racist, sexist, homophobic, etc.":

The teacher is entitled to full freedom in research and in the publication of the results, subject to the performance of his or her other academic duties; but research for pecuniary return should be based upon an understanding with the authorities of the institution.

The teacher is entitled to freedom in the classroom in discussing his or her subject, but should be careful not to introduce into his or her teaching controversial matter that has no relation to the subject. Limitations of academic freedom because of religious or other aims of the institution should be clearly stated in writing at the time of appointment.

College or university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as a citizen, teachers should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As individuals of learning and as educational officers, they should remember that the public may judge the profession and the institution by their utterance. Hence, faculty members should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution.

The University also recognizes that the faculty member is an integral part of the institution. While observing the stated regulations of the University, the faculty member maintains the right to criticize and seek revision of University policy, both administrative and academic.

Thanks to College Fix (Alexander Pease) for the pointer, and see also this post from the Foundation for Individual Rights in Education (Will Creeley).

More here:

Miami Univ. (Ohio) Task Force Calls for Suppressing Student, Faculty Speech, Without "Fear of First Amendment Violations" - Reason