Daily Archives: March 7, 2021

On a recent episode of Amicus, Dahlia Lithwick talked with Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, to unpack how the scope of the First Amendment continues to grow even as it fails in the face of so many of the free speech issues we face today. A portion of their conversation, which has been edited and condensed for clarity, has been transcribed below.

Dahlia Lithwick: I think Ive had a Post-it note pinned to my screen saying, Do a First Amendment show for three years. It sweeps in every news cycle. From the Facebook Supreme Court, your own litigation around Trumps tweets, cancel culture, the speech defenses that came up at the impeachment trialI think of the First Amendment as a framework that governs all of those things. But of course it implicates less and less of those things. As you suggested to me, when we were thinking about this show, the First Amendment is everywhere but nowhere. I wonder if you could talk a little bit about this tension, where the Supreme Court is protecting more and more activity under the First Amendment, but as private actors flood this zone, the First Amendment actually matters less and less. Is that an accurate description of what is going on?

Jameel Jaffer: Yeah, I think so. When I said that the First Amendment is everywhere and nowhere, I was thinking about the fact that the Supreme Court does keep expanding the First Amendments reach to more and more kinds of expressionnot just expression but speech very broadly construed. There was a case called Sorrell from a few years ago, which involved data mining and drug companies efforts to market their drugs to doctors. The Supreme Court held that this particular kind of commercial activity was speech, and theres a stray phrase in Justice Anthony Kennedys opinion, which says something like, Information is speech. Data is speech.

There is this thread in recent Supreme Court jurisprudence that is consistent with that very broad conception of the First Amendment. This idea that the First Amendment protects not just speech as colloquially understood but any effort to convey information. If youre a First Amendment enthusiast, then maybe your first reaction to that is, Well, isnt that great? Isnt it great that the First Amendment is getting attached to more and more things? Well, it might be great or it might be not so great.

The consequence of attaching the First Amendment to new forms of expression or speech is that it becomes much, much harder for government to regulate those activities. Theres a case in the district court now, involving Clearview, which is a company that scraped millions and millions of photographs from the internet in order to build a facial recognition app. The ACLU and others have sued Clearview under an Illinois state law that applies to the collection and sale of biometric information. Clearview is represented by Floyd Abrams here, who is a legendary First Amendment litigator. Clearview is arguing that their activities are protected by the First Amendment and that this Illinois law is unconstitutional as applied to its activities.

That just gives you a sense of whats at stake in these debates about the scope of the First Amendment. Because if you interpret the First Amendment very, very broadly to encompass the right of a company like Clearview to scrape photographs from the internet and build facial recognition apps of this kind, then you have really disabled legislatures from enacting laws that many people, including me, think are necessary to protect individual privacyand maybe even necessary to protect the integrity of public discourse, which is supposed to be what the First Amendment is all about. So the First Amendment is everywhere in the sense that the courts are extending the First Amendments application to more and more kinds of activity.

But its also true that the First Amendment is strangely absent in some places where we really should want it to be present. Some of them have nothing to do with the digital age and some of them are just much more places where we for a long time would have expected the First Amendment to be, but it doesnt seem to be. Im thinking about protest rights, for example, or whistleblower rights, right? During the Black Lives Matter protests over the last year, there were all kinds of abuses by police, abuses of protesters, abuses of the journalists being prevented from reporting on important public activities of the police. The First Amendment seemed to do very little work in protecting those core First Amendment rights.

I would say the same thing with respect to whistleblowers. The Obama administration infamously used the Espionage Act more than any previous administration against whistleblowers who were sharing information with the press, and the Trump administration continued the trend. The First Amendment is really nowhere to be found when it comes to the right of whistleblowers to share informationnational security secrets with the press where those national security secrets would inform the public of the abuse of power by government officials, for example, or large-scale waste or fraud on the part of government officials. The First Amendment doesnt seem to be doing very much work. So the First Amendment is everywhere in some senses and nowhere in other senses.

What youre saying is there are benefits to being able to regulate some of this under First Amendment doctrine, but theyre real harms. And one of the harms is that it then falls almost entirely onto private entities. In some ways thats a good thing. I think you would contend right from the beginning we dont want the government deciding what is speech. But youre saying that the cost of saying, You know what, this has nothing to do with the First Amendment. Its entirely a private entity and they should regulate that, it might be what the Framers wanted, but it creates a whole host of new problems.

I think all of that is true. Now we have these private entities that are doing a lot of the work of regulating speech. When we engage in political speech now, its often on social media platforms or on new communications platforms that are controlled not by the government but by private corporations. Those private corporations now have a very significant role in determining who gets to speak, and what can be said, and what ideas get traction in the public sphere. That, I think, is a new thing and one that we havent collectively quite figured out how to deal with.

It feels as though part of what youre saying is the Supreme Court has been diligently beavering away and we all stipulate this is the most speech-protective Supreme Court probably in historycreating new free speech rights in all sorts of contexts. Yet there are these archaic rights, like assembly, which is something that we dont quite know what it means. Its fallen into disuse. The doctrine is aged. So its not actually doing the things its meant to be doing.

The circle is expanding to encompass a whole bunch of other stuff, and then theres this other circle that is completely a separate sphere from government regulation of speech, which has all these private actors. We keep falling into this habit of thinking of them as First Amendment problems, but theyre entirely separate.

Its true that these private companies are not bound by the First Amendment in that particular sense. Id just say that thats true under current doctrine. There are many serious First Amendment theorists who think the current doctrine is wrong and that the First Amendment should have something to do with whether Facebook, for example, can tell somebody that they cant use Facebook. But under current doctrine, thats not governed by the First Amendment. Facebook is free to make whatever decisions it wants.

But when governments try to regulate the technology companies, often the technology companies are relying on the First Amendment as a means of challenging the legitimacy of those regulations. The Clearview case is a good example of it, but its not the only example. Theres another case that my institute is tangentially involved in in Maine, involving an internet privacy law that restricts what internet service providers can collect about their customers and how they can use that data. The ISPs are challenging the law on First Amendment grounds. Theyre saying, This law prevents us from collecting certain kinds of information and from doing targeted advertising on the basis of that information and thats a restriction of our First Amendment rights and the law needs to be struck down.

So its not just that the First Amendment doesnt regulate the activities that these companies are engaged in; its that when Congress tries to regulate those activities, these companies rely on the First Amendment to challenge the legitimacy of the regulations. Some people are looking to the First Amendment to be the solution to our problems in the digital public sphere. I think theres a real question: Can the First Amendment be a solution here? But theres also a question: Is the First Amendment the problem? Is the First Amendment, as currently understood, an obstacle to the kind of legislation and regulation we need to protect the integrity and the vitality of the digital public sphere?

To hear their entire discussion,listen below, or subscribe to the show onApple Podcasts,Overcast,Spotify,Stitcher,Google Play, or wherever you get your podcasts.

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Who Gets First Amendment Protections These Days, Anyway? - Slate

By Tim Eyman

Editors Note: A judge last month ruled that Tim Eyman will no longer be allowed to have financial control over political committees and issued $2.6 million in fines after state Attorney General Bob Ferguson filed a lawsuit against him in 2017 alleging he laundered donations, disobeyed campaign finance law and solicited kickbacks, accusations Eyman continues to deny.

In the past 22 years, by working together with our thousands of heroic supporters, weve qualified 17 statewide initiatives for a public vote. They all limited the governments power over us and have saved taxpayers $46.9 billion. And our four two-thirds-vote-to-raise-taxes initiatives have saved taxpayers billions more by stopping and deterring tax increases.

While other initiatives spend $1.2 million to qualify, we averaged $672,000 because we run a tight ship and I often risked my own money.

After two decades of effort, vehicle tabs and property tax increases are dramatically lower than they used to be (liberal judges vetoed those initiatives, but the publics overwhelming vote pushed politicians to adopt them anyway), government affirmative action is prohibited, the state auditor conducts performance audits of state and local governments, the King County Council was reduced from 13 politicians to nine, red-light ticketing cameras were banned in numerous cities and tax advisory votes allow voters to vote each November on tax increases imposed by the Legislature and inform voters which taxes were increased, their costs and how legislators voted on them.

These amazing accomplishments happened despite fierce opposition from liberals controlling the Legislature, governors office, the judicial system and the media.

Because I led those efforts and constantly kicked the hornets nest of big government, politicians and the press have been gunning for me.

So in 2012, when a reporting complaint was filed against me by a disgruntled former vendor, I knew what was coming: a witch hunt. And because the government had unlimited resources and I didnt, I knew Id never survive it without assistance.

So I asked for help.

As my attorney (former supreme court justice) Richard Sanders said: Thousands of people voluntarily chose to help Mr. Eyman and his family there is nothing unlawful about that. People and businesses entered into voluntary business relationships with Mr. Eyman all of them were legal. Mr. Eyman never took money from anyone he wasnt a signer on anyones bank account except his own. In every instance, the money he received came from people who chose to voluntarily give it to him. And he consulted with professionals why wouldnt he? to ensure he was following state and federal laws.

Democrat Attorney General Bob Ferguson spent nearly $2 million of taxpayer money going after me, my family, friends and supporters. Thats more than all other reporting cases in the last eight years combined!

Generous people responded to my pleas for help, recognized this injustice and abuse of power and helped me fight back. Their checks were made payable to Tim Eyman Legal Defense Fund, Tim Eyman & Family and Tim Eyman Watchdog for Taxpayers LLC none were campaign donations. Their voluntary assistance, plus our own savings, went toward paying the lawyers and financially surviving this brutal eight-year onslaught.

A year ago, Sanders wrote: During the recent mediation conference, the AG made clear their priority: the lifetime ban. They dont care about the money, they want to shut you down. When you told the mediator it was blackmail, you were exactly right. This whole thing is about breaking you so you give up and agree to the ban. But you refused. Good for you! After hundreds of hours of examining the facts and researching the AGs case against you, its clear to me you didnt violate any laws. You were never the committees treasurer professional CPA Stan Long was your committees treasurer and he did not believe these transactions needed to be reported. He was right, the AG is wrong. Tim, in all my years on the court, Ive never seen such a miscarriage of justice. Seven years of investigation? Harassment of your wife? Frankly, Im astounded youre still functioning. Anyone else wouldve given up a long time ago. I admire your commitment.

As predicted, a former Gov. Chris Gregoire-appointed judge in Thurston Countys kangaroo court rubber stamped the AG, ignoring the law and the constitution. Go to tinyurl.com/FergusonHypocrisy to learn how the AGs bizarre claims are fundamentally flawed and reek of hypocrisy (How much has Democrat Bob Ferguson personally profited from politics? Over $2.8 million!).

Im committed to appealing these ridiculously unconstitutional restrictions on the First Amendment because if they get away with it with me, you could be next.

While it gets appealed, despite the risks, I will continue fighting for taxpayers because our efforts are needed now more than ever. Politicians have an insatiable tax appetite and are hell-bent to impose income taxes, carbon taxes and other taxes this session. Were committed to stopping them.

Fergusons fascist eight-year jihad has cost me everything I have. But Im not going to let him slow me down. Because like President Trump said: Theyre not after me, theyre after you, Im just in the way.

Tim Eyman is a longtime political activist from Yakima who graduated from Washington State University and now lives in Bellevue. He can be reached at 425-590-9363 or tim.eyman@gmail.com.

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Eyman Commentary: I'm Committed to Appealing Restrictions on the First Amendment - Centralia Chronicle

Craig S. Semon|Telegram & Gazette

BROOKFIELD A man who has been butting heads for years here with selectmen, municipal employees and other residents by needling them on a large yellow sign outside his businessalongRoute 9, can keep his sign and continue to express his opinions for all passersby to see no matter how unpopular and unflattering his expressed views are.

Last month, U.S. District Court Judge Timothy S. Hillman announced that the civil action involving John D. Holdcraft, plaintiff, and his infamous 8-foot-by-4-foot Freedom of Speech sign on6 South Maple St., and the Town of Brookfield and Town of Brookfield Zoning Board of Appeals, defendants, has been settled.

Judge Hillman ordered that this action is hereby dismissed without costs and without prejudice to the right of any party, upon good cause shown, to reopen the action within 60 days if settlement is not consummated.

Since the beginning, Holdcraft insisted that he was standing up for freedom of speech, which is protected by the First Amendment.

Holdcraft calls the settlement, a victory for the little guy.

We the people cannot take for granted our First Amendment, Our freedom of speech. When it is challenged, we have to defend it whatever the burden, cost or sacrifice it takes to preserve it, he said. I fought against an abusive, corrupt town government for years and was able to succeed and overcome and stand tall for our Freedom of Speech in our Town of Brookfield.

James P. Ehrhard, Esq., of Ehrhard & Associates, P.C., of Worcester, served as Holdcrafts attorney, while Jeffrey T. Blake and Janelle M. Austin, both of KP Law, P.C., Town Counsel, Boston, served as Town of Brookfield and Town of Brookfield Zoning Board of Appeals attorneys.

The Town is interested in enforcing its zoning bylaws and it was also interested in resolving any issues that it may or may not have had with Mr. Holdcraft, Blake said. As a result, they entered into a settlement agreement, which apart of it is confidential, which requires Mr. Holdcraft to reconfigure a sign that he has down on 6 South Maple St. The Town got a reconfiguration of the sign and the parties agreed to resolve their differences.

Holdcraft said his two-sided sign is not going to be any smaller and the messages on the sign are going to continue. In fact, he said, The angle of one side (of the sign) is going to be more facing Route 9.

There will be more visibility when get it gets re-angled, Holdcraft said. Thats what they wanted me to do. Thats what Im doing. And the reason theyre doing that its just another form of harassment.

Federal Magistrate Judge Marianne B. Bowler mediated on the settlement agreement between the parties.

It was a very positive outcome for Mr. Holdcraft. He gets to keep his sign up with one minor change to the spacing on the front corner angle, Ehrhard said. The financial settlement piece is strictly confidential.

Added Blake: Mediation is typically confidential and the judge made it specific that certainly any dollar figure that may or may not have been agreed to are strictly confidential.

In March 2019, Hillman granted the Town of Brookfield and Town of Brookfield Zoning Board of Appeals motion to dismiss, in which Holdcraft, through his attorney, filed an appeal. Hillmans dismissal order also allowed a new amended complaint to be filed.

The amended complaints First Amendment Constitutional claim survived another motion to dismiss. And that would have headed to trial, Ehrhard said. Thereafter, the town and Mr. Holdcraft with their legal counsel were able to fashion a settlement.

According to court documents, Ehrhard said Holdcraft had properly claimed that Town of Brookfield and Town of Brookfield ZBA violated his free speech and due process rights under the U.S.Constitution.

The actions taken by the defendants to force the removal of Holdcrafts sign was a clear and intentional attempt to silence the speech of Holdcraft opining on town officials and town actions, Ehrhard said in court filings.

On or about July 16, 2003, the Zoning Board of Appeals granted the special permit to Holdcraft.

Included among the conditions were: a sign stating Retail Service for Charitable Reasons was to conform to the towns zoning bylaws; and a two-year special permit would be subject to renewal for another two years if Holdcraft fully complied with the permit.

The special permit and subsequent extension expired Dec. 31, 2005, and there are no records that Holdcraft sought a further extension, nor has he sought a new special permit for the business use and signage under the current Brookfield zoning bylaw.

In early 2009, then Selectmen James W. Allen and Rudolf Rudy Heller started complaining about Holdcrafts display of political opinions and criticism of town officials. Holdcraft often mentioned them by name on the sign.

However, on March 24, 2009, selectmen announced their hands are tied when it came to attempting to silence Holdcraft.

On March 21, 2017, Selectman Clarence R. Snyder III, who is one of Holdcrafts favorite targets on the sign, made a written request for the towns zoning enforcement officer to issue a cease-and-desist order against Holdcraft for conducting an illegal business with illegal signage at 6 South Maple St. (Route 9).

Citing state law, Snyder, who said he was acting solely as a resident, was seeking the removal of the business, shed and signage from the premises. A few weeks later, Zoning Enforcement Officer Nicholas Thomo sided with Snyder and issued a cease-and-desist order.

After several combustible public hearings and meetings on the matter, the Town of Brookfield Zoning Board of Appeals ruled in August 2017 that Holdcrafts double-sided, yellow sign on his property facing Route 9 that derogatorily mentions various selectmen, municipal employees and regular citizens by name had to be taken down and his special permit to operate his Retail Service for Charitable Reasons at 6 South Maple St. expired in 2005.

Through the years, his controversial postings include: Following Rudys Policies is like drinking Jim Jones KoolAid! Back in the day, (Selectmen) Peter (OConnell) & Rudy (Heller) would have been tarred and feather (sic), Truth Against Brookfields Town Govt., Linda Lincoln Has A Gag Order On Town TV & Select Meetings and We Will Not Allow C Punk Snyder To Stomp Out Our 1st Amendment (Punk is Mr. Holdcrafts nickname for Snyder).

Not one to cease-and-desist quietly, Holdcraft argued that Snyder is no way a person aggrieved because he is not an abutter to the property, has no ownership interested in the property and lives nowhere near the property.

In addition, Holdcraft argued that his sign is protected by the First Amendment.

At the time, Town counsel, KP Law, sided with Holdcrafts argument.

In the civil action involving Holdcraft and the Town of Brookfield and Town of Brookfield Zoning Board of Appeals, Holdcraft was seeking compensation for the infringement of his constitutional right of speech, plus damages for his constitutional deprivation of proper due process, Ehrhard stated.

In the Plaintiffs Opposition to Defendants Motion to Dismiss, Ehrhard claims the Town of Brookfield and its governing boards followed none of the statutory procedures required to attempt to cancel Holdcrafts permits for his land and sign.

Ehrhard said the attempt to remove Holdcrafts sign was done for no other reason than to ensure that the sign was taken down and could no longer be used.

In the Plaintiffs Opposition to Defendants Motion to Dismiss, Ehrhard claimed that the Defendants Motion to Dismiss incorrectly states that Holdcrafts complaint vaguely alleges that Snyder and the members of the ZBA, or those acting on their behalf, had the effect of depriving Holdcraft of a right secured by the Constitution and the laws of the United States, specifically the free speech provisions of the First Amendment of the United States Constitutions.

The complaint is anything but vague about what occurred and how his right to speak freely and in a manner he so chooses was violated, Ehrhard stated in Holdcrafts opposition to defendants motion to dismiss.

To show his First Amendment rights were violated, Holdcraft had to prove he engaged in constitutionally protected conduct, was subjected to an adverse action by the defendant, and the protected conduct was a substantial or motivating factor in the adverse action, Ehrhard said.

Ehrhard said Holdcraft was engaged in the purest of constitutionally protected conduct.

He (Holdcraft) was proclaiming his opinion about public town officials and town actions on a sign he owned on property he owned on the main street in the center of town, Ehrhard said in his argument. If the First Amendment exists for any reason, it is to protect such speech and conduct.

In addition, Ehrhard said Holdcraft was subjected to an adverse action by the defendants.

Holdcraft retained a permit for his sign and property for nearly twelve years, Ehrhard said. The defendants actions were for the specific sole purpose of forcing Holdcraft to take the sign down. There, literally, was no other reason for the actions taken by the defendants against Holdcraft.

Furthermore, Ehrhard claims Holdcrafts protected conduct of placing messages on his sign stating his opinions and thoughts on town public officials and town actions was not only a substantial or motivating factor for the adverse actions, it was the only reason for the adverse actions.

On Thursday, Blake insisted that this was not a case of the Town of Brookfield attacking an individual over something he may or may not have said on his sign but, first and foremost, a zoning case.

Its a zoning issue and whether or not a special permit had lapse, Blake said. There were other aspects of the special permit that we were also requesting compliance with to the extent that the plaintiff wanted to make it all about the sign. It wasnt all about the sign. It was about zoning compliance…And the town has a significant interest in getting compliance from all of the zoning, no matter who you are and no matter what you say.

The plaintiff originally filed the suit in Worcester County Superior Court but the Town of Brookfield moved the case to federal court. The Town of Brookfield filed a motion to dismiss and Holdcraft filed an appeal and amended complaint. The Town of Brookfield filed a motion to dismiss again but the motion to dismiss was defeated and the case was settled.

Holdcraft has already celebrated his court room "victory with two messages displayed on his sign Rat Punk Snyder (sic) (named spelled wrong and with a backwards N) Failed To Take Your Yellow Sign!! and Yellow Sign @ 1st Amendment Still Stands Tall In Brookfield.

I want to thank all the people over the years that have supported me on my sign, Holdcraft said.

Snyder said, I have no comment."

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After settlement, freedom of speech, yellow sign and First Amendment 'stand tall in Brookfield' - Worcester Telegram

"In short, we do not need good laws to restrain bad men. We need good men to restrain bad laws." -- G.K. Chesterton (1874-1936)

Why do people in power try to silence speech with which they disagree?

Last week produced news about the suppression of speech on university campuses. There, the suppression usually occurs through the power of intimidation before the speech is given. Yet, most public lectures on college campuses are public accommodations, meaning the landowner -- the university -- cannot bar the entry of audience members because of their political views, nor can it silence the speakers because of theirs.

Ordinarily, the owner of private property can impose whatever regulations he wishes upon those who voluntarily come upon his land. But in our era of ubiquitous government, state legislatures have enacted laws that require that if you invite the public, you must take whoever shows up. And if you accept money from the state or the feds -- and there are only a handful of colleges and universities that do not -- you must abide the same First Amendment standards as the government.

ALEX BERENSON ON 'CENSORSHIP', FREE SPEECH: 'TIMES HAVE CHANGED AND THE NY TIMES HAS CHANGED'

In the latter case, since the government cannot discriminate on the basis of ideas, then colleges or universities that accept funds from the government likewise cannot. The theory here is that the governments funds -- dollars taken from taxpayers or money the government has borrowed, to be repaid by future taxpayers -- ought not be used indirectly in ways that the Constitution bars the government from using directly.

But the First Amendment is rarely enforced on college campuses today because colleges have largely become places of left-wing orthodoxy where it is acceptable to cajole or intimidate into silence speakers who are at odds with that orthodoxy. The usual excuse is the speaker will outrage the audience and that would threaten public safety.

Yet, under the First Amendment, where the audience is voluntary, free speech trumps public safety. This clash happens when people come to public lectures not because they like the lecturers ideas but because they hate them.

A famous Chicago case put to rest the concept of freedom of speech versus public safety. The issue was the "hecklers veto," which takes place when audience members are so intentionally disruptive that they effectively prevent the speaker from speaking.

Here is what happened. On Feb. 7, 1946, Fr. Arthur Terminiello, a Roman Catholic priest who was an outspoken opponent of the Truman administration, gave an incendiary speech in a hall in Chicago, which the sponsors of the speech had rented for that purpose. The sponsors had obtained the required permits from the Chicago police. The hall was on private property.

The speech delighted Terminiellos supporters and antagonized his opponents. The opponents numbered about 1,600 people and the supporters about 800. When it became apparent that violence might break out, the police ordered Terminiello to stop speaking and to leave the venue. When he disregarded their instructions, they arrested him and charged him with breach of the peace.

They did not arrest any of the audience members who broke chairs, smashed windows and stormed the stage. Only the priest who gave the speech was arrested.

FIRST AMENDMENT GROUP SUES UCF OVER BIAS RESPONSE TEAM, SPEECH CODE

Terminiello was convicted in a trial court and his conviction was upheld by state appellate courts. He appealed to the U.S. Supreme Court, which reversed his conviction. In doing so, the court moved First Amendment jurisprudence significantly closer to where it is today -- a near absolute protection for public political speech.

The court held that the government cannot silence a speaker because it fears his words or the audience. It also held that it is the duty of the government to respect and protect the freedom of speech, not to nullify or avoid it.

The decision was 5 to 4, and Justice Robert Jackson wrote a misguided dissent with a memorable one-liner. He argued that freedom of speech does not tolerate violence and permits the government to silence a speaker who may be prone to inciting violence before he speaks. Jackson lamented that in the post-World War II era, liberty and governmental order are often adversaries.

He warned that if the courts regularly side with liberty, they will convert the Constitution and the Bill of Rights into a "suicide pact." But the First Amendment and the natural right to say what you think compel the court to side with liberty, no matter how odious is the speech.

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Jackson -- who had just returned to the court from a leave of absence as Americas chief prosecutor at Nuremberg -- was naive in his lament about liberty and governmental order being 20th-century adversaries. They have always been and will always be adversaries.

The essence of humanity is personal liberty. And the essence of government is the negation of liberty. Jackson rejected the very values underlying the Declaration of Independence and the Constitution; namely, that freedom is the default position because it is integral to our nature. And the Supreme Court rejected Jacksons arguments.

Prior to this case, nearly all the Supreme Courts 20th-century First Amendment rulings sided with the government. The Terminiello case is a landmark because, since it and from it, the Supreme Court has consistently sided with First Amendment freedoms. It arguably gave birth to the famous 1969 Brandenburg case, where the court unanimously held that all innocuous speech is absolutely protected and all speech is innocuous when there is time for more speech to challenge it.

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Which is the greater threat to personal liberty, a speaker who harangues a crowd that came to be harangued or a government that fears free speech and issues edicts about what to say and when to say it?

Will colleges and universities take note of this? Dont hold your breath.

CLICK HERE TO READ MORE FROM JUDGE ANDREW NAPOLITANO

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Judge Andrew P. Napolitano: Silencing free speech -- when the First Amendment is not enforced, this can happen - Fox News

In 1937, Frank Hague, the mayor of Jersey City, banned the Committee for Industrial Organization from gathering in a public place to talk about unions. He called them communists.

The CIO challenged the ban, backed by the American Civil Liberties Union. The case eventually went to the U.S. Supreme Court. The court found for the CIO in 1939. The ruling became known as the public forum doctrine. It helped prevent the public from being muzzled by the government under the First Amendment.

The public has no such protection in being muzzled by private companies. If Twitter wants to ban former President Donald Trump for life, it may do so. If Facebook, Instagram, Twitter and YouTube want to ban you from their platforms, they can.

Maybe you wouldnt mind. Maybe you would even be better off. But the big social platforms have created unprecedented ways for people to communicate nationally and worldwide. That also gives them unprecedented power when they decide to shut people or groups out. If the government did that, there could be a challenge in court. If Twitter does it, good luck.

Of course, the big social media platforms are not the only games in town. There are lesser -known alternatives. New ones will spring up. Still, getting gagged by the big ones certainly curtails reach.

You may believe Trump deserved to be shut down. Claims of massive voter fraud in the November election have not been supported by facts in court. It was also odd for him to tell the rioters who assaulted the Capitol to go home and, in nearly the same breath, we love you, youre very special.

Social media platforms have long blocked postings they found offensive. But if they can just turn off a sitting president, is something out of balance? Who else could they shut down? They have become the de facto editors of ideas on a global scale. Newspapers and other more traditional media have their own struggles with such issues. They just dont play at the same level.

As the ACLU said this year, more than 80 years after the Hague case, ...(I)t should concern everyone when companies like Facebook and Twitter wield the unchecked power to remove people from platforms that have become indispensable for the speech of billions especially when political realities make those decisions easier.

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Editorial: The public square doesn't always get First Amendment protection - The Bulletin

John Vile, Guest Columnist Published 7:00 a.m. CT March 5, 2021

Rennia Davis explains why Lady Vols kneeled during National Anthem Knoxville News Sentinel

Despite what one might think are far more pressing problems, in the past few weeks a number of Tennessee legislators have threatened to penalize state colleges and universities that permit athletes to take a knee during the playing of the national anthem prior to athletic events.

If ever there were a need for national unity, this might be the time, and there is certainly value in uniting behind common symbols. At the start of the Revolutionary War, Americans united behind the principles articulated in the Declaration of Independence. The following year Congress prescribed the design of the U.S. flag. During the War of 1812, Francis Scott Key penned lyrics to accompany the flag, which Congress finally adopted as the national anthem in 1931.

Over time, the flag and the national anthem have been collectively celebrated together at sports events where individuals typically face the flag, often with hands across their hearts, as the anthem is played. Although they were designed to unite, both symbols can be flashpoints for protest.

MORE: Republican senators to TN's public colleges: Stop athletes from kneeling during anthem

Flag burning remains one of the most provocative (and, in my judgment, counterproductive) actions people can take to protest U.S. policies. Perhaps in part because it is so often associated with disrespectful actions by Americas enemies, the act of flag burning prompts visceral reactions against those who employ it. When state and national legislators sought to enact criminal penalties for flag burning, however, the U.S. Supreme Court reminded the nation in Texas v. Johnson (1989) and U.S. v. Eichman (1990) that flag burning was a form of symbolic speech that the First Amendment to the U.S. Constitution protected both against state and federal actions.

John R. Vile, Dean Honors College(Photo: MTSU Photo by J. Intintoli, Middle Tennessee State Universit)

Years before, in West Virginia State Board of Education v. Barnette (1943), the Court had overturned a previous decision issued just three years earlier to declare that school children, with religious objections, could not be forced to salute the flag. Writing for the Court, Justice Robert Jackson noted that If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens by word or act their faith therein.

Readers debate: Should colleges ban athletes from kneeling during national anthem? | Plazas

At a time when some are still questioning whether the current president was legitimately elected and others have forcefully invaded the U.S. Capitol Building killing and wounding police officers in the process, one doesnt have to be a prophet or a son of a prophet to know that our nation is deeply divided. Over the past few years, videos have depicted an increasing number of African Americans (some unarmed) who have died in apparent police overreactions. In protest, some professional athletes chose first to sit, and later to kneel, during the anthem to express their concerns.

Precedents suggest that students at state colleges and universities have an even greater constitutional right to do so, while the very idea of taking a knee is both peaceful and far more respectful than the act of flag burning.

Lady Vols players kneel as the national anthem is played before a game between the Lady Vols and Arkansas at Thompson-Boling Arena, Thursday, Jan. 7, 2021(Photo: Caitie McMekin/Pool via News Sentinel)

Students are not robots, and colleges and universities strive to teach students to think and act for themselves. Instead of using threats of withholding state money against schools whose students have enough backbone to express their opinions, we should work together on remedying the issues that have led to their protests.

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The American philosopher George Santayana said that Those who cannot remember the past are bound to repeat it. We should remember that despite all our many positive achievements, Americans once burned down abolitionist printing presses, force-fed women suffragists, and jailed peaceful demonstrators protesting racial segregation. In time, we found that the path that led to renewed national healing was that of listening and improving our laws and procedures so that they more closely approximated equal justice for all.

Instead of threatening student-athletes, we should listen to them and respect their peaceful protests. Lets continue to build a state and a nation where all Gods children, regardless of their skin color or political affiliation, can take pride in both of Americas premier symbols.

John R. Vile is a professor of political science and dean of the University Honors College at Middle Tennessee State University. He is the author of The American Flag: An Encyclopedia of the Stars and Stripes in U.S History, Culture, and Law, of Americas National Anthem: The Star-Spangled Banner in U.S. History, Culture, and Law, and many other books.

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Lets keep Tennessees knee off the First Amendment | Opinion - Daily News Journal

Despite what one might think are far more pressing problems, in the past few weeks a number of Tennessee legislators have threatened to penalize state colleges and universities that permit athletes to take a knee during the playing of the national anthem prior to athletic events.

If ever there were a need for national unity, this might be the time, and there is certainly value in uniting behind common symbols.

At the start of the Revolutionary War, Americans united behind the principles articulated in the Declaration of Independence. The following year Congress prescribed the design of the U.S. flag. During the War of 1812, Francis Scott Lee penned lyrics to accompany the flag, which Congress finally adopted as the national anthem in 1931.

Over time, the flag and the national anthem have been collectively celebrated together at sports events where individuals typically face the flag, often with hands across their hearts, as the anthem is played. Although they were designed to unite, both symbols can be flashpoints for protest.

Flag burning remains one of the more provocative (and, in my judgment, counterproductive) actions people can take to protest U.S. policies. Perhaps in part because it is so often associated with disrespectful actions by Americas enemies, the act of flag burning prompts visceral reactions against those who employ it.

When state and national legislators sought to enact criminal penalties for flag burning, however, the U.S. Supreme Court reminded the nation in Texas v. Johnson (1989) and U.S. v. Eichman (1990) that flag burning was a form of symbolic speech that the First Amendment protected.

Over the past few years, videos have depicted an increasing number of African Americans (some unarmed) who have died in apparent police overreactions. In protest, some professional athletes chose first to sit, and later to kneel, during the national anthem to express their concerns.

Precedents suggest that students at state colleges and universities have an even greater constitutional right to do so, while the very idea of taking a knee is both peaceful and far more respectful than the act of flag burning.

Students are not robots, and colleges and universities strive to teach students to think and act for themselves. Instead of using threats of withholding state money against schools whose students have enough backbone to express their opinions, we should work together on remedying the issues that have led to their protests.

We should remember that despite all our many positive achievements, Americans once burned down abolitionist printing presses, force fed women suffragists, and jailed peaceful demonstrators protesting racial segregation.

In time, we found that the path that led to renewed national healing was that of listening and improving our laws and procedures so that they more closely approximated equal justice for all. Instead of threatening student athletes, we should listen to them and respect their peaceful protests.

Lets continue to build a state and a nation where all Gods children, regardless of their skin color or political affiliation, can take pride in both of Americas premier symbols.

Dr. John R. Vile is a professor of political science and dean of the University Honors College at Middle Tennessee State University. He is the author of The American Flag: An Encyclopedia of the Stars and Stripes in U.S History, Culture, and Law and many other books.

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Keep Tennessee's knee off the First Amendment - Murfreesboro Post

We are now two weeks removed from the Senate impeachment trial. Already, that enervating saga has faded into our polity's rear-view mirror. I hope that this distance provides an opportunity for calm reflection on the legal arguments raised in those proceedings. Specifically, I'd like to address the First Amendment and the impeachment process.

Prior to January 6, 2021, most people never considered the interaction between the First Amendment and the impeachment process. I had. In 2017, I wrote a widely-read Lawfare post on obstruction of justice and the presidency. (Trump's lawyers would cite this post). I argued that the Constitution imposes certain limits on Congress' powers to regulate the presidency. And I argued that these particular limitations apply with respect to civil laws, criminal laws, and even the impeachment process. That is, Congress could not impeach the President for conduct that complies with the Constitution. And this limitation cuts in two directions. Congress could not impeach the President for exercising a specific power delegated by Article II. And Congress could not impeach the President for conduct that is expressly protected by the Bill of Rights.

My Lawfare series caused a stir. Critics argued that the Constitution does not limit the impeachment process: Congress could impeach the President for just about any reasoneven if the President was complying with the Constitution. Other critics accepted my general premise, but countered that Trump's conduct was not consistent with the Constitution. Still, I did not think my position was frivolous. I wrote that the 1868 impeachment trial of Andrew Johnson implicated the freedom of speech. At the time, I didn't dig through the records, but I presumed that Johnson's acquittal was based, at least in part, on the First Amendment.

My presumption was correct. Several prominent Senators stated that the President has First Amendment rights, and that the Senate could not convict the President for exercising those rights. The views of these Senators were not monolithic. But we are not dealing with a judicial proceeding in which there is a single decision-maker who reaches a single final answer to a constitutional question. Different senators expressed different views. But the position I held was held at least since the 1860s.

My position may be right or wrong, but it cannot be frivolous. To say my position is frivolous is to charge with incompetence those who framed the Fourteenth Amendment. Indeed, the records of these debates have been carefully examined for more than 150 years. As far as I am aware, no one ever suggested that these members of Congress were wrong. Indeed, one prominent impeachment scholar favorably cited these sources. I encourage everyone to read Professor Kate Shaw's article, Impeachable Speech, in the Emory Law Journal. She suggested that the First Amendment, and the Brandenburg test in particular, could constrain the impeachment process. Professor Shaw published this article behind the proverbial veil of ignorance in mid-2020, long before January 6. Trump's lawyers favorably cited her work.

Before January 6, no one had ever argued that the views of these senators articulated during the first presidential impeachment trial were frivolous. What changed after January 6? This position did not suddenly become frivolous. Rather, this argument got in the way of a movement. And it had to be squashed. 150 scholars signed an incoherent statement that didn't even acknowledge the history from the Johnson impeachment. Yet, the press and the House Managers dutifully cited this letter as a definitive statement about the First Amendment.

The willingness to charge the Framers of the 14th Amendment with incompetence reminds me of a similar willingness to charge our first President with incompetence, or worse. To this day, the key to the Bastille hangs on the wall at Mt. Vernon. The Marquis de Lefayette gave that famous key, and a painting, to President Washington. Countless generations of scholars and schoolchildren have walked past that key.

Until 2016, we are not aware that anyone suggested that Washington's acceptance of that foreign state gift violated the Foreign Emoluments Clause. Yet, after President Trump's elections, some people were content to suggest that our first President violated the Constitution he helped to define.

For some time, I have thought that the entire Constitution, including the First Amendment, constrains Congress' impeachment powers. My position became mightily inconvenient after January 6. But the Constitution often imposes inconvenient constraints. In his classic book about presidential impeachments, Grand Inquests, Chief Justice Rehnquist observed that, during times of conflict, "[p]rovisions in the Constitution for judicial independence, or provisions guaranteeing freedom of speech to the President as well as others, suddenly appear as obstacles to the accomplishment of the greater good." The Chief Justice was right.

Read more:
Impeachment and the First Amendment, Revisited Reason.com - Reason

from the have-you-tried-not-being-assholes-all-the-time? dept

It's pretty clearly established you have the right to record public servants as they perform their public duties. There are a few exceptions, but for the most part, if you're not interfering with their work, record away. Public servants hate this, of course, but there's not much they can do about it. Sure, they can try to use local laws to shut down recordings, but those efforts have routinely been rejected by federal courts.

Enter the TSA and some agents who felt they shouldn't be recorded doing their work. The TSA may believe it's doing valuable national security work that can't be recorded by third parties, but it's actually doing nothing of the sort. There's nothing inherently secret about a pat down in the screening area, which is something that happens all the time and often can be observed by everyone else in the area.

The TSA agents in this case [PDF] felt they had a right to not be recorded. That's not actually a thing, as the court reminds them. (via the Volokh Conspiracy)

The plaintiff, Dustin Dyer, and his children cleared initial screening. Dyer's husband did not. TSA agents began their pat down of Dyer's husband and Dyer began his recording of them. He stood ten feet away recording the pat down. He did not interfere with the screening. Despite this, TSA agent Natalie Staton told Dyer his recording was "impeding" the agent performing the pat down. Dyer refused to stop recording so Agent Staton went and got her supervisor, Shirrellia Smith.

Smith also told Dyer he could not record the pat down. Agent Staton then asked her supervisor to "order" Dyer to delete his recording. Which he did.

Smith ordered Dyer to delete the video while Staton watched. "Dyer deleted the recording from his phone while [Staton] looked at the screen of his cell phone"

The family was then allowed to leave. Staton recovered his deleted video. Then he filed this lawsuit.

The TSA claimed Dyer had no right to record TSA agents. It also said he had no cause of action and, even if he did, qualified immunity shielded the involved agents from this lawsuit.

The court disagrees. First, it points out the TSA's work isn't as essential as it thinks it is. It can't dodge a Bivens lawsuit by claiming some sort of national security exemption. The court says passenger screening does not implicate "diplomacy, foreign policy, or national security interests." Therefore, the TSA can't have the suit dismissed on those grounds. And that keeps Dyer's Fourth Amendment claim viable.

It also can't have it dismissed on qualified immunity grounds. As the court points out, the TSA's own policy allows passengers to record agents while they screen travelers.

Allowing damages in this case would not hamper TSA's efficacy; permitting individuals to record, from a distance, TSA agents performing their duties does not limit TSA agents' ability to screen passengers. Indeed, TSA policy allows individuals to record if they do not interfere with the screening process or record sensitive information.

The TSA argued (wait for it) that because it does not train agents to respect the Constitution, agents can't be sued for violating Constitutional rights. Ridiculous, says the court:

Federal officials should not evade liability for constitutional violations because their employer has not provided adequate training.

Although Bivens has never been applied to First Amendment violations, the court chooses to apply it here because it's clearly established the public has a right to record public officials.

Courts across the country agree that incident to the "right to gather news," citizens have some right to record government officials performing their jobs. The Eleventh and Ninth Circuits recognize a broad right to record matters of public interest. The First Circuit acknowledges a right to record government officials engaged in their duties. Four other circuits recognize a narrower right to record a subset of government officials: law enforcement officers. Considering this growing consensus, this Court finds that the First Amendment protects the right to record government officials performing their duties.

[...]

[T]he defendants' demand that Dyer stop recording and delete the captured video plausibly constitutes an unreasonable restriction on the plaintiff's First Amendment right

And the right is clearly established.

According to the Fourth Circuit, "it is crystal clear that the First Amendment protects peaceful nondisruptive speech in an airport, and that such speech cannot be suppressed solely because the government disagrees with it." Here, Dyer sought to record, from about ten feet away, the TSA conducting a pat-down search of his husband. The TSA agents directed him to stop. Dyer's allegations fall squarely within this "crystal clear" right.

It's well-established people can record public officials in public. Officials can't pretend this right doesn't exist just because they don't want to be recorded. This has been clear for years. The chain of events here did nothing more than convert these TSA agents from public servants to lawsuit defendants. None of this needed to happen. And none of it was justified.

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Filed Under: 1st amendment, dustin dyer, recording, transparency, tsa

The rest is here:
Federal Court Affirms Travelers Have A First Amendment Right To Record TSA Screeners - Techdirt

For the eighth year in a row (and 10th time overall), Mountlake Terrace High School has been named a recipient of the Journalism Education Associations 2021 First Amendment Press Freedom Award.MTHS was one of 14 public and private high schools recognized nationally foractively supporting, teaching and protecting First Amendment rights and responsibilities of students and teachers, with an emphasis on student-run media where students make all final decisions of content.

While the focus of this award is on the relationship between the student media and our campus community, the award is presented to the entire school because of its commitment to the principles of the First Amendment, said MTHS journalism instructor and adviser of school publications the Haweye and TEMPO. It is such an honor to live in this community and work at this school!

The committee making the selection included representatives from the Journalism Education Association, National Scholastic Press Association and Quill and Scroll International Honorary Society.

This is the 21st year for the award, which was announced on Student Press Freedom Day.

As in previous years, schools competed for the distinction by first answering questionnaires submitted by an adviser and at least one editor; those who advanced to the next level were asked to provide responses from the principal and all media advisers and student editors, indicating their support of the First Amendment. In addition, semifinalists submitted their printed policies.

Heres the entire list of 2021 First Amendment Press Freedom Award winners:

The 14 winning schools will be honored as part of the Spring JEA/NSPA National High School Journalism Convention in awards presentation on Saturday, April 10.

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Mountlake Terrace High School again honored with First Amendment Press Freedom Award - MLT News