Daily Archives: February 24, 2017

Given what Ive seen lately, Im not sure most of us really understand the concept of free speech enshrined in our Constitution. The First Amendment is essential to the preservation of our liberty, and weve treated it with all the respect of a box of Kleenex use it when convenient and toss it.

Lets review the historical context first. English common law contained a doctrine called seditious libel that essentially prevented criticism of the state. Many of Americas founders such as James Madison and Thomas Jefferson recognized the potential threat that kind of speech restraint posed to our young republic. In fact, the Alien and Sedition Acts of 1789 would test the mettle of the Bill of Rights only a few years after its adoption. In the modern context, the First Amendment preserves the right of the people to criticize government and public officials without fear of punishment.

As powerful as it is, the First Amendment is not absolute. The U.S. Supreme Court has held that the government may impose speech restrictions on the time, place and manner of speech. Such restrictions must be content-neutral, narrowly drawn, serve a significant government interest and provide for alternative channels of communication. So, no, you dont have a constitutional right to protest in the middle of the interstate at night.

Here are some critical speech and press issues we ought to address:

The First Amendment protects our rights in wonderful ways, but theres nothing magic about the paper or ink of the Bill of Rights. Our speech, press and religious freedoms depend on us. Its time we use them more frequently to advance liberty and less often to tear each other down.

Image by Chris DeRidder and Hans VandenNieuwendijk

http://www.al.com/opinion/index.ssf/2017/02/free_speech_isnt_a_justificati.html

Alabama Media Group

Follow this link:
'Free speech' isn't a justification for being terrible - R Street

State Sen. Kim Thatcher has what she says is a plan to help protect free speech and ensure student safety on college campuses.

It involves expelling students.

Thatcher, a Keizer Republican, deserves points for originality sort of. The qualifier is needed because one suspects that Thatchers main goal is to yank Democrats chains, given that her bill has less chance of passing the Oregon Legislature than a resolution honoring President Trump.

Thatchers Senate Bill 540 would require community colleges and public universities to expel students found criminally guilty of violent rioting.

Thatcher says she is a huge supporter of the First Amendment and that this is a free speech issue.

Free speech protects us all and ensures we can exercise the critical right to share our truth., she said by way of explanation. Violence is not free speech. My bill will help protect students who are peacefully protesting from bad apples in the crowd who exploit peaceful protests to engineer violent riots.

Thatcher is not an attorney she owns a highway construction firm so her bill glides past several issues. These include the states legal definition of a riot, which requires that there are a minimum of six people acting violently.

Theres also the difficulty of convicting someone of rioting.

Portland police arrested almost 20 people after a January protest turned violent but later dropped charges against all but four of them. It is not clear if any of the four remaining people are 1) still facing charges and 2) students at state colleges or universities.

Then theres the question of whether the Legislature really wants to get into the business of writing student conduct codes for the state schools, which are unlikely to greet the prospect warmly.

Thatcher has had her fun. She and her colleagues need to settle down now to the serious business of dealing with the states massive budget deficit, figuring out how to fund health care if the Affordable Care Act is repealed, and what to do about Oregons dismal high school graduation rate.

More Editorial articles

Link:
'Protecting' free speech - The Register-Guard

After issuing a warm Aggie welcome to incoming UC Davis chancellor Gary May from Georgia Tech, interim UCD chancellor Ralph Hexter delivered A message to our campus community about a completely different subject.

Hexter, who has agreed to carry on in his interim role until the new chancellor comes aboard on Aug. 1, begins with the words I have no doubt that the next few years will be ideologically charged ones for many college campuses across the country.

Certainly doesnt take a Ph.D. behind your name to agree with that statement.

As I said at our Fall Convocation, Hexter continues, I cannot recall a moment in my lifetime when the discourse of our national community was more vitriolic and polarized.

Given that I have a few years on the interim chancellor, I can state with authority that his words are correct. We are most definitely sailing in uncharted waters.

Hexter then leaves the national arena to discuss recent polarizing events on the UC Davis campus itself.

Because UC Davis is a public university, he notes, our faculty and duly registered student clubs are allowed to invite speakers with diverse perspectives to share their views and insights with the larger community. Consistent with our legal responsibilities, we do not screen these speakers based on the content of their views.

Many U.S. Supreme Court decisions have rested on that very principle. However, there are still folks out there who wish to ban anything that might hurt their feelings or rupture their eardrums.

Added Hexter, We have for many years received demands from individuals in our community to ban invited speakers whose views they found objectionable, and those demands have recently intensified. (Can you spell Yiannopoulos?)

Again, consistent with our legal responsibilities, grounded in the First Amendment to the Constitution, we do not exercise prior restraint on speech.

Thank heavens for clear thinking in the face of the recent ugliness on campus.

We understand that controversial speakers may well inspire protest, and we fully support properly conducted protests. Protesters, too, enjoy free-speech protections, but like any expression, protest is subject to time, place and manner restrictions.

Which means no reading the Bible out loud in advanced calculus, and no yelling someone stole my popcorn in a crowded theater.

Yes, all you purists, free speech does come with limits. But not many.

Unfortunately, at one event last year, protesters shouted down and for a time physically blocked the audience from observing the speaker. Recently, a student club invited a speaker with views abhorrent to many. On this occasion, protesters managed to prevent the orderly entry of ticketed audience members to the lecture hall so that the speech was cancelled before it could even begin.

A hecklers veto, as the court would call it.

I am mindful that some speakers may be extremely upsetting to members of our community, particularly those who believe they are targets of the speech. However, I am also vigilant about our obligation to uphold everyones First Amendment freedoms. This commitment includes fostering an environment that avoids censorship and allows space and time for differing points of view.

UC Davis is a community for all ideas, and our campus is committed to ensuring that all members are allowed to freely hear, express and debate different points of view. In the incidents I described above, we fell short of permitting free expression and exchange of ideas.

Indeed, it was an unnecessary, but well deserved black eye.

Our First Amendment rights are treasures provided to every member of our American community, but those rights do not include the silencing of speakers or blocking of audiences from hearing speakers. When we prevent words from being delivered or heard, we are trampling on the First Amendment. Even when a speakers message is deeply offensive to certain groups, the right to convey the message and the right to hear it are protected.

Hexter has hit on a key, but unwritten part of free speech when he talks about the right to be heard. While the Constitution does not specifically say that anyone has a right to be heard, the whole reason behind free speech goes out the window if no one can hear you.

Of course, no one can be forced to hear what you have to say, but on the flip side, no one should be allowed to prevent others from hearing you.

Hexter also is right to point out that the campus oft-mentioned Principles of Community are aspirational in nature and not grounded in Constitutional law.

Concludes Hexter, In the coming weeks, I will be creating a work group of campus representatives students, faculty and staff and key campus constituents to develop recommended practices and policies to ensure invited speakers can deliver their messages unimpeded.

Hopefully, participants will take a serious stroll through the First Amendment and study the many volumes of case law on the subject before instituting any such practices and policies.

Reach Bob Dunning at [emailprotected]. Catch Bobs Tuesday and Thursday columns at http://www.davisenterprise.com, under web update

Here is the original post:
Bob Dunning: Safeguarding free speech, and easy listening - Davis Enterprise

The Ottawa High School Board has replied to a civil rights lawsuit brought by fired teacher-coach Tim Burgess.

The board fired Burgess in January 2015 for what it termed "inappropriate and unprofessional conduct." Burgess filed suit with the board Jan. 6, alleging the board breached his First Amendment right to free speech by firing him in retaliation for criticizing then school Superintendent Matt Winchester during school union meetings in 2014.

The board has responded to the suit, denying Burgess' allegations. The board also is contending Burgess did not raise the free speech-retaliation issues in his two previous suits against the board, so he cannot pursue them now.

The board is further arguing Burgess cannot have a federal judge review his termination, because Burgess already had a circuit judge do such a review. (The circuit judge upheld the termination; Burgess is appealing that judge's decision.)

In addition, the board is saying Burgess lodged the suit after the one-year statute of limitations expired. Finally, the board is maintaining it is immune from liability because the decision to fire Burgess was done in the course of its legitimate, official duties.

Earlier this month, the board had the case moved from La Salle County Circuit Court to federal district court in Chicago, saying federal court was the proper venue, because Burgess is claiming his rights were violated under the U.S. Constitution.

A status hearing is set for Wednesday, March 8.

Burgess was employed at OHS from 1989 to his 2015 firing.

A divided school board voted to terminate Burgess, who also was a coach, in January 2015. Members accused him of "inappropriate and unprofessional conduct," including criticizing one teacher's hairstyle and calling another "little man." Officials also cited past disciplinary issues.

More:
OHS board denies Burgess' free speech allegations - MyWebTimes.com

Unless the Supreme Court decides to weigh in on this long-runningSLAPP lawsuit(highly unlikely and unlikely to be appealed to that level), it looks like its finally the end of the line for Dr. Edward Tobinick and his quest to silence a critic of his questionable medical practices.

Quick recap: Dr. Tobinick claimed he could treat Alzheimers, strokes, and other neurological maladies by repurposing an immunosuppressant drug. Dr. Steven Novella disagreed with Tobinicks unsubstantiated claims and wrote a few blog postsdetailing his problems with Tobinicks treatments.

Tobinick is not a neurologist, and yet he feels it is appropriate for him to treat multiple neurological conditions with an experimental treatment. It is generally considered unethical for physicians to practice outside of their area of competence and expertise. He is trained in internal medicine and dermatology and is certified in those specialties. He has never completed a neurology residency nor is he board certified in neurology.

Despite his lack of formal training and certification, he feels he has ushered in a paradigm shift in the treatment of Alzheimers disease a disease that has proved challenging for actual neurologists for decades.

Novella is not alone in his criticism of Tobinicks untested treatment methods. Early on in the case,Marc Randazza summarizedthe general medical community mood.

Dr. Novellas critical opinions of the Plaintiffs are not outlier views. In fact, the prevailing view seems to be that Dr. Tobnick is, at best, irresponsible. On the first page of Google alone, there are numerous other articles written by other authors, entirely unrelated to the article at hand, that also express critical and unflattering opinions of Tobinick and Plaintiffs medical practice.

Hoping to avoid an anti-SLAPP ruling or the judicial scrutiny that normally comes with defamation complaints, Tobinick tried to frame his censorship pleas as trademark law violations, claiming Novellas blog posts were commercial speech designed to interfere with his ability to earn an income treating people with questionable drug repurposing.

The lower court didnt care much for Tobinicks arguments.It found no meritin his severely-stretched Lanham Act claims and, better yet, appliedCaliforniasanti-SLAPP law to the lawsuit Tobinick filed inFlorida.

Tobinick appealed. And all hes really succeeded in doing is generating more legal fees hell be responsible for. The Eleventh Circuit Appeals Court hasupheld[PDF] the lower courts decision, handing Dr. Novella, attorney Marc Randazza, and the First Amendment a significant win. (If youre a fan of oral, the arguments can befound here.)

Appellants Edward Lewis Tobinick, MD (INR CA), INR PLLC (INR FL), and M.D. Edward Tobinick (Dr. Tobinick) (collectively, the Tobinick Appellants) appeal the district courts orders striking INR CAs state law claims pursuant to Californias anti-SLAPP statute, twice denying amendment of the Tobinick Appellants complaint, denying relief pursuant to Federal Rules of Civil Procedure (Rule) 37, 56(d), and 60 due to potential discovery-related abuses, and granting summary judgment against the Tobinick Appellants on their Lanham Act claim. We affirm the district court in all respects.

As for Tobinicks attempt to keep an anti-SLAPP law from another state from killing his Florida lawsuit, the appeals court points out that if this was an issue Tobinick wanted addressed, he needed to raise it with the lower court, rather than use the appeals process to develop unexplored options.

The Tobinick Appellants waived their challenge to the district courts application of Californias anti-SLAPP statute based on the Erie doctrine. The Tobinick Appellants did not raise the Erie claim in their response to Dr. Novellas special motion to strike INR CAs state law claims, nor do the Tobinick Appellants now contend that they ever raised the issue before the district court. Moreover, when asked by the district judge what about the issue of anti-SLAPP statutes applying in diversity cases in federal court? the Tobinick Appellants counsel responded [t]here seems to be a plethora of case law that suggests that it is allowable in diversity actions in federal court.

No exception to waiver saves the Tobinick Appellants claim. The Tobinick Appellants have not identified any miscarriage of justice resulting from a finding of waiver, nor do we see one, given the weakness of the Tobinick Appellants state law claims.

The appeals court is even less kind to Tobinicks Lanham Act violation accusations all of which hinge on defining Novellas blog posts as commercial speech. Not only did Tobinick repurpose trademark law in an attempt to turn a baseless libel lawsuit into something that might survive the first motion to dismiss, but his Lanham Act arguments rely on a conspiracy theory Alex Jones himself might find implausible.

As a preliminary matter, there is no factual dispute as to where the articles were displayed online, how the websites were set up, and whether the websites generated revenue through advertisements and membership subscriptions. The Tobinick Appellants describe a complex funneling scheme to generate profit for Dr. Novella, in which the Tobinick Appellants claim that the two articles are connected to other websites through hyperlinks in a way that readers are directed to websites that generate revenue for Dr. Novella, such as through advertising or membership subscriptions.This funneling theory, which attempts to connect the articles to revenue sources, relies on such a level of attenuation that it fails to demonstrate economic motivation in the commercial speech context.

Even if it were more easily-connected, Novellas speech would still be protected and not in violation of the Lanham Act. The court points out Novellas medical practice has no overlap with Tobinicks. Furthermore, the content of Novellas articles the examination of a potentially-dangerous misapplication of immunosuppressant drugs is very much in the public interest, which only strengthens its First Amendment protections.

As the court points out, finding critical speech that results in revenue a violation of the Lanham Act would do serious harm to the most famous beneficiaries of the First Amendment.

To be sure, neither the placement of the articles next to revenue-generating advertising nor the ability of a reader to pay for a website subscription would be sufficient in this case to show a liability-causing economic motivation for Dr. Novellas informative articles. Both advertising and subscriptions are typical features of newspapers, whether online or in-print. But, the Supreme Court has explained that [i]f a newspapers profit motive were determinative, all aspects of its operationsfrom the selection of news stories to the choice of editorial positionwould be subject to regulation if it could be established that they were conducted with a view toward increased sales. Such a basis for regulation clearly would be incompatible with the First Amendment.

Furthermore,as our sister circuits have recognized, magazines and newspapers often have commercial purposes, but those purposes do not convert the individual articles within these editorial sources into commercial speech subject to Lanham Act liability.

This puts Dr. Tobinick back where he was in October 2015: on the hook for legal fees because he figured the best response to speech he didnt like was a bogus Lanham Act lawsuit. And, as is of particular relevance given recent events, more courts are applying states anti-SLAPP laws to baseless lawsuits, regardless of the jurisdiction in which theyre filed.

(Opinion available on the next page)

Another Free Speech Win In Libel Lawsuit Disguised As A Trademark Complaint

More Law-Related Stories From Techdirt:

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Read more here:
Another Free Speech Win In Libel Lawsuit Disguised As A Trademark Complaint - Above the Law