Daily Archives: April 6, 2021

EFF applauds the U.S. Court of Appeals for the First Circuit for holding that the First Amendment protects individuals when they secretly audio record on-duty police officers. EFF filed an amicus brief in the case, Martin v. Rollins, which was brought by the ACLU of Massachusetts on behalf of two civil rights activists. This is a victory for people within the jurisdiction of the First Circuit (Massachusetts, Maine, New Hampshire, Puerto Rico and Rhode Island) who want to record an interaction with police officers without exposing themselves to possible reprisals for visibly recording.

The First Circuit struck down as unconstitutional the Massachusetts anti-eavesdropping (or wiretapping) statute to the extent it prohibits the secret audio recording of police officers performing their official duties in public. The law generally makes it a crime to secretly audio record all conversations without consent, even where participants have no reasonable expectation of privacy, making the Massachusetts statute unique among the states.

The First Circuit had previously held in Glik v. Cunniffe (2011) that the plaintiff had a First Amendment right to record police officers arresting another man in Boston Common. Glik had used his cell phone to openly record both audio and video of the incident. The court had held that the audio recording did not violate the Massachusetts anti-eavesdropping statutes prohibition on secret recording because Gliks cell phone was visible to officers.

Thus, following Glik, the question remained open as to whether individuals have a First Amendment right to secretly audio record police officers, or if instead they could be punished under the Massachusetts statute for doing so. (A few years after Glik, in Gericke v. Begin (2014), the First Circuit held that the plaintiff had a First Amendment right to openly record the police during someone elses traffic stop to the extent she wasnt interfering with them.)

The First Circuit in Martin held that recording on-duty police officers, even secretly, is protected newsgathering activity similar to that of professional reporters that serve[s] the very same interest in promoting public awareness of the conduct of law enforcementwith all the accountability that the provision of such information promotes. The court further explained that recording play[s] a critical role in informing the public about how the police are conducting themselves, whether by documenting their heroism, dispelling claims of their misconduct, or facilitating the publics ability to hold them to account for their wrongdoing.

The ability to secretly audio record on-duty police officers is especially important given that many officers retaliate against civilians who openly record them, as happened in a recent Tenth Circuit case. The First Circuit agreed with the Martin plaintiffs that secret recording can be a better tool to gather information about police officers, because officers are less likely to be disrupted and, more importantly, secret recording may be the only way to ensure that recording occurs at all. The court stated that the undisputed record supports the Martin Plaintiffs concern that open recording puts them at risk of physical harm and retaliation.

Finally, the court was not persuaded that the privacy interests of civilians who speak with or near police officers are burdened by secretly audio recording on-duty police officers. The court reasoned that an individuals privacy interests are hardly at their zenith in speaking audibly in a public space within earshot of a police officer.

Given the critical importance of recordings for police accountability, the First Amendment right to record police officers exercising their official duties has been recognized by a growing number of federal jurisdictions. In addition to the First Circuit, federal appellate courts in the Third, Fifth, Seventh, Ninth, and Eleventh Circuits have directly upheld this right.

Disappointingly, the Tenth Circuit recently dodged the question. For all the reasons in the First Circuits Martin decision, the Tenth Circuit erred, and the remaining circuits must recognize the First Amendment right to record on-duty police officers as the law of the land.

See the rest here:
First Circuit Upholds First Amendment Right to Secretly Audio Record the Police - EFF

Supreme Court Justice Clarence Thomas issued a concurrence in a case over former President Donald Trump's Twitter account in which Thomas suggested that social media companies should be regulated like a common carrier, like a telephone company. Patrick Semansky/AP hide caption

Supreme Court Justice Clarence Thomas issued a concurrence in a case over former President Donald Trump's Twitter account in which Thomas suggested that social media companies should be regulated like a common carrier, like a telephone company.

The Supreme Court on Monday dismissed a lower court ruling that former President Donald Trump violated the First Amendment rights of critics he blocked on Twitter.

Lawyers for those Trump blocked on Twitter argued that the former president's Twitter account functioned as an official source of information about the government, leading a federal appeals court to rule that Trump's blocking amounted to illegally silencing their viewpoints.

But Trump is no longer in office, and Twitter has permanently banned him from its platform over glorifying violence. So the lower court's ruling from the 2nd U.S. Circuit Court of Appeals should be tossed, the Supreme Court ruled, instructing the court to dismiss the case as "moot," or no longer active.

While the case can no longer be cited as precedent, other courts have held that an elected official's social media accounts can be treated as public forums. And so the dismissal "is unlikely to affect the development of the law," said Jameel Jaffer, director of the Knight First Amendment Institute at Columbia University, which sued Trump over his blocking of critics.

"I think public officials are and should be on notice that if they block people from their social media accounts on the basis of viewpoint, they are violating the First Amendment," Jaffer told NPR.

The decision from the high court did not surprise court watchers, but a concurrence in the ruling from Justice Clarence Thomas has drawn intense attention in technology circles.

In it, Thomas took broad aim at social media networks, attacking Section 230 of the Communications Decency Act, the landmark law that protects technology companies from lawsuits and also provides platforms wide latitude in patrolling speech on their sites.

To Thomas, Twitter's ban of Trump exposed the potential abuses of this legal protection, noting how "applying old doctrines to new digital platforms is rarely straightforward."

Thomas went on: "As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms. The extent to which that power matters for purposes of the First Amendment and the extent to which that power could lawfully be modified raise interesting and important questions," Thomas wrote.

Big Tech companies Facebook and Google, Thomas pointed out, have vast and largely unchecked control over online marketplaces.

"It changes nothing that these platforms are not the sole means for distributing speech or information. A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail," Thomas wrote. "But in assessing whether a company exercises substantial market power, what matters is whether the alternatives are comparable. For many of today's digital platforms, nothing is."

In Thomas' view, social media companies are "sufficiently akin" to a common carrier, like a public utility, such as a telephone company, and should be "regulated in this manner," he wrote, suggesting that social networks should be federally regulated in the same way that, say, a phone company cannot prevent a person from making a call.

Several legal experts told NPR that this reading of common carrier law represents a fringe view popular among partisan conservatives but not shared by federal regulatory agencies and the Supreme Court's own precedents.

No other justice joined Thomas' concurrence.

The remarks from Thomas are not the first time he has written that Big Tech should be reined in. He wrote in October 2020 that it "behooves" the justices to narrow the scope of Section 230, the law shielding tech companies from litigation.

Harvard Law School's Evelyn Douek argued that Twitter's booting of Trump may just be the action that leads to a stripping of social media platforms' legal protections.

"I've said this repeatedly, but it was terribly short-sighted of liberals to unquestioningly celebrate the unaccountable deplatforming of Trump (not to mention everyone else swept up) as an exercise of private power and cede the point that regulation might actually be beneficial," she tweeted.

Legal scholars of Section 230 greeted Thomas' position on the law dubiously, noting that it is not an indication of how the entire court stands on the matter.

"I'm not sure what to make of how much support Justice Thomas's reading of 230 has among the other eight Justices, particularly because they've denied [certiorari] in a few high-profile 230 cases recently," tweeted lawyer Jeff Kosseff, referring to the Supreme Court's recent decisions not to accept some Section 230 cases. "I do think that Thomas's statement increases the chances that at least two judges on a randomly chosen circuit court panel will rule in favor of must-carry rules for social media platforms," tweeted Kosseff, who wrote a book on Section 230 called The Twenty-Six Words That Created the Internet.

In an interview, Kosseff said lawyers readying cases and state legislatures may be emboldened by Thomas' remarks.

"It is an invitation for plaintiffs' lawyers to bring cases challenging Section 230," he said. "And I would not be surprised if we would start seeing more states passing laws that attempt to regulate content moderation."

Daphne Keller, former general counsel for Google and now with Stanford Law School, said any legal analysis of Section 230 that ignores a long history of cases that have upheld platforms' First Amendment right of policing troubling content "are either ignorant or intellectually dishonest."

Others applauded Thomas' remarks, including Rachel Bovard, senior director of policy at the Conservative Partnership Institute.

"The Thomas concurrence regarding Big Tech has everything: 1) legitimizing the threat of concentrated corporate power; 2) Google gatekeeping info for 90% of the world; 3) gov't outsourcing censorship; 4) justifications for common carrier regulation," Bovard tweeted.

View post:
Justice Clarence Thomas Takes Aim At Tech And Its Power 'To Cut Off Speech' - NPR

Comment:

The panel sounds interesting and certainly timely!However, I wanted to offer my concerns on the example chosen regarding demonstrably false statements about public health such as Masks dont slow the spread of COVID.

Given the tragic politicization of science over the past 12 months, and the debate over the most appropriate public health measures to implement to respond to CV-19, I think it is particularly problematic to use a highly contested health protocol as if one particular scientific view is truth and any opposing scientific/medical views are dangerous (and thus permissibly banned) fake news.Specifically, although there is certainly a dominant view being put forth on community masking, there are quite a few opposing scientific/medical professional views on this, as well as numerous scientific studies showing that masks may make little to no difference to the spread of COVID.In fact, the WHO, in its most recent interim December 2020 Guidance, indicates that:

Guidance on mask use in community settings

Evidence on the protective effect of mask use in community settings

When the WHO itself is indicating that there is only limited and inconsistent scientific evidence to support the masking of healthy people, and there are numerous studies coming out to the contrary, it is hardly a demonstrably false statement to make a statement about masks like the one indicated in your announcement, let alone be considered reckless for asserting/disseminating it.While there is of course scientific/medical opinions and studies to the contrary, and that position may even be the current dominant opinion in the scientific community, the point is that using this as an example of problematic fake news demonstrates the significant danger we are facing of labeling any opposing views as fake news, in order to eliminate all but the preferred dominant narrative.

I realize that under the model statute you plan to discuss, and under existing law, there is a distinction between provably false statements of fact and opinion, and that statements that are substantially true are excepted.However, my concern is that statutes like this could be used to intimidate, dissuade, or harass scientists/medical professionals/persons with knowledge and/or the information sources disseminating such opposing views from disseminating information that he/she believes to be true and beneficial to society.This would of course have a chilling effect on free speech and the dissemination of potentially truthful and beneficial information, leaving us only with state-sanctioned dominant narratives that may or may not be truthful themselves.

For anyone really paying attention, the last 12 months have revealed increasingly terrifying Ministry of Truth levels of censorship of any and all opposing scientific/medical views regarding all public health measures related to CV-19 i.e., masks, society-wide lockdowns, and available/existing treatment protocols for CV-19 vs. mRNA gene therapies.I have watched in horror, for example, as the scientists behind the Great Barrington Declaration -- Sunetra Gupta (Oxford), Jay Bhattacharya (Stanford) and Martin Kulldorff (Harvard) or even Stanfords Scott Atlas have had their reputations tarnished, their motives questioned, and their opinions silenced, simply for expressing opinions critical of the dominant narrative regarding society-wide public health responses. In the U.S., of course, it has largely become politicized along party lines, which is a tragedy in my opinion, as we as a society only benefit from hearing all medical and scientific viewpoints when dealing with unprecedented/unchartered public health measures that have affected society so drastically and so devastatingly.

As an attorney and professor focusing on First Amendment issues, I am sure you are well aware of the importance of allowing intelligent debate and opposing viewpoint discourse to take place on issues crucial to the public.Labeling an opposing view fake news in order to ban it or intimidate/harass its disseminator because it legitimately questions a dominant narrative on public health or any other dominant narrative is a slippery slope towards despotism.The model statute banning fake news that your panel will discuss/analyze is fraught with ethical and legal minefields that one may not see clearly enough when one is currently in agreement with the particular dominant narrative, but which can become an obvious tool for tyranny when one is not.

In any event, I am reaching out with the hope that you will consider/discuss the problems with using this public health/mask example as an example of a demonstrably false statement, and that your panel will explore the very real ethical, legal, democratic, and societal dangers of labeling or trying to ban unpopular or anti-dominant narrative information as dangerous fake news.

Rita Barnett-Rose

Comment:

I don't see it being an effective method, nor it bringing more trust or reliability to media outlets when they have consistently reported the same type of "fake news" saying it is a "first amendment right", yet injecting personal opinion, summation, and perspective while claiming these aspects as "facts" or "news", with most reporting being biased toward the entities of government wh ich has heavily vested amd invested interests in the media outlets to control content as well.

Harry Haggard

Comment:

The material harm requirement of the model statute greatly narrows its potential scope, which to my mind is probably a good thing. Assuming hypothetically that this statute had been universally in effect over the past year, what fake news harms might have been subject to prosecution under its terms?

James Stark

Comment:

"Free speech" that infringes on other people's rights or that may harm another person's civil rights, life, liberty, or their pursuit of happiness: IS NOT FREE SPEECH!

LeeronMorraes

Comment:

Hi! I love your Statute. I think sections 3(h)(i) and 3(h)(iii) could be easily circumvented. I have my own ideas for a statute to regulate fake news that uses Rule 10b-5 of the Securities Exchange Act of 1934 as a model, switching the words "in the sale of securities" with "in the dissemination of political ads." I also think Fox News, One America News, Brietbart News, and similar organizations use the word & quot;news" to represent themselves as what the constitution means by "press," when in actuality they are PR organizations that incidentally use "news" as a product. So they would qualify as BFNO's under your statute, but would be able to avoid its purpose. I think you could address the problem of misinformation by regulating the PR industry, which may seem tangential at first, but would actually address misinformation more directly.

Alex Berg

Comment:

MUST BE LABELED FAKE BEFORE DURING AND AFTER THE BROADCAST TO INSURE IT IS NOT TRUE TO THE VIEWER!!!!

Lynn Rotzell

Comment:

Remember that you yourself are the best secretary of your task, the most efficient propagandist of your ideals, the clearest demonstration of your principles, the highest standard of higher education that your spirit embraces and the living message of the high notions that you pass it on to others. Do not forget, also, that the greatest enemy of your noblest achievements, the complete or incomplete denial of the sublime id ealism that you proclaim, the discordant note of the symphony of good you intend to perform, the architect of your afflictions and the destroyer of your lifting opportunities - it's you.

Britney Horrzt

Comment:

Trolling legitimate voices with intentional falsehoods, drowning out the truth with a sea of misinformation, attempting to mislead the public for financial gain, and intentionally trying to destroy political opponents with lies - none of these do anything to serve the interests and values underlying the First Amendment. The First Amendment protects our most sacred rights, but it has become a shield for the corrupt and insince re who use it to promote their intentional lies. Even though many recognize these threats to the First Amendment , few have offered solutions. Despite the many problems this model statute raises, it's a good first step in deciding what we can do to save the First Amendment by outlawing the aberrations some believe it protects.

Dan Taylor

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"Fake News" and the First Amendment - University of Dayton - News Home

Assistant attorney general Eric Haskell argues in a virtual hearing March 23 that a bar owners verbal argument with fire inspectors in 2018 wasnt protected by the First Amendment.

The legal defense of a faked Cambridge fire law hasnt grown visibly stronger over time, but it has evolved with moves to bigger courts and has come to include attacks on First Amendment rights.

In an hourlong hearing March 23 before Suffolk Superior Court judge Christine M. Roach, the state said the owners of the former UpperWest bar in North Cambridge went beyond the protections of the First Amendment by arguing with fire inspectors even though the argument resulted from the inspectors threatening to shut down the bar with an inapplicable law.

It really wasnt a calm, reasoned exchange of ideas, assistant attorney general Eric Haskell told Roach during the virtual hearing. It was an argument. It was raised voices. It was interrupting. There was even inadvertent touching as the sides looked in the dark at the single xeroxed copy of a cooking-equipment law brought by inspectors.

In fact, Haskell said, the 35-minute exchange from 2018 captured on audio and video showed that bar co-owner Kim Courtney crossed over into territory covered by the Commonwealth v. Carter ruling from 2017, in which teen Michelle Carter was convicted of encouraging her suicidal boyfriend by text to take his own life not the first giant leap in a case that alleges threats and witness intimidation despite a lack of anyone saying they felt threatened or intimidated.

Haskells gambit about speech that basically functions as conduct thats integral to violation of a valid criminal statute seemed like a stretch to Ruth Bourquin, senior and managing attorney at the ACLU of Massachusetts, who is working with Courtney and bar co-owner Xavier Dietrich on the case. Bourqin noted that the Carter case applied when there is no lawful purpose to speech but urging an emotionally disturbed person to commit suicide is different from pointing out to fire inspectors that the law theyre trying to enforce doesnt apply where theyre trying to enforce it.

This speech not only had a lawful purpose, its constitutionally protected, Bourquin said. All the [owner] did was try to convince the officers that they are misapplying the law. [The right to] verbally oppose or challenge police action without risking arrest is the principal characteristic by which we distinguish a free nation from a police state.

Background of the case

Fire inspectors tried to manage the imminent hazard of tea lights at a North Cambridge bar in 2018 by citing a law about portable cooking equipment. (Photo: Marc Levy)

In assessing whether the city and state violated the free speech rights of the bar owners, Haskell represents the states Alcoholic Beverages Control Commission against an appeal of its Oct. 3, 2019, ruling about UpperWest, which has since closed in North Cambridge.

What led to the ruling was a Sept. 29, 2018, visit to UpperWest by fire inspectors who insisted co-owners Kim Courtney and Xavier Dietrich extinguish the bars little tea lights but by citing a law about portable cooking equipment. The states argument is that the 35-minute debate about the law constituted an illegal hindering of the inspectors, and that toward the end Courtney uttered a threat amounting to witness intimidation.

That element revealed another way the case has evolved. When the city defended its punishment of the UpperWest bar, its lawyers argued to the state in 2019 that the bar owners video and audio recordings couldnt be relied on as evidence because they might have been altered or edited. On Tuesday, both sides referred repeatedly to that evidence to tell their side of the story. Haskell at one point commented that a decision was up to the courts review of the video.

Misquoting the evidence

Haskell raised doubt in court about his own familiarity with the video, though, despite telling Roach he had watched it many times.

Let me find the language here and make sure that I have it exactly right, Haskell said in introducing his case that threats were made against Cambridge fire inspectors. What the license manager said was You will live to regret this, is what the Alcoholic Beverages Control Commission found.

Neither the audio nor video include that phrase, which has been repeated by fire staff, police, attorneys from the Cambridge Law Department, in a finding by a three-person ABCC panel and now by Haskell. (What Courtney told the departing inspectors in 2018 was, You guys are going to regret behaving this way, this is not how this works.)

The fire inspectors testified to the city as long ago as Nov. 7, 2018, that they did not take a bar owners comment as a physical threat, and a police officer on the scene, Dan McGinty, testified to the state June 24, 2019, that he couldnt cite any other basis for a threat either, since it isnt a crime to filed a lawsuit or complain about an employees conduct. Yet Haskell still argued that the manner of the license managers participation in this conversation is indicative of her intent. Are we cooperating with the inspectors or are we not?

The legal standard for a true threat requires either physical interference with an officer or a threat of physical harm, said Bourquin, of the Massachusetts chapter of the American Civil Liberties Union.

Roach also did not seem convinced by the states arguments. There are certainly many, many interactions with law enforcement that are not calm, reasoned exchanges that doesnt mean that the First Amendment disappears, Roach said.

Further debate

Cambridge assistant city solicitor Keplin Allwaters argues March 23 that the intent of the person uttering a statement isnt relevant.

The city also had representation on the call from Keplin Allwaters, assistant city solicitor, who added that when [Courtney] made the statements to the Cambridge firefighters and Cambridge police officers, the subjective intent of the person who utters that statement is not relevant. Katherine Sarmini Hoffman, who had argued the citys case with Allwaters, is no longer with the Law Department.

There were several additional laws brought up and debated during the hearing; some arose from points the city and state have added since the ABCC hearing, which Bourquin said was improper. And though the city and state have brought up laws showing that the fire department can make its own regulations and fire inspectors can enforce them, all that happened Sept. 29, 2018, was that the inspectors issued a verbal cease and desist order; Section 1.7.7.2 of the state Fire Safety Code requires that it be in writing, Bourquin said.

And she said claims that the tea lights represented an imminent hazard were hard to take seriously when inspectors knew they were burning since an August visit and proceeded to have a 35-minute discussion instead of ordering they be put out. They have the authority. They at anytime themselves could have either blown out the candles or engaged in this conversation, Bourquin said. They left them burning the entire time the conversation was going on in the parking lot, and in spite of Miss Courtney asking them to hurry up.

There is no set date for a next hearing or ruling by Roach. The judge said her review of the case and evidence could take a bit of time.

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Bar owners went beyond First Amendment rights with their 'raised voices, interrupting,' AG argues - Cambridge Day

Enlarge / Supreme Court Justice Clarence Thomas arrives for the swearing-in of Justice Brett Kavanaugh in the East Room of the White House on October 8, 2018, in Washington, DC.

Getty Images | Chip Somodevilla

The US Supreme Court today vacated a 2019 appeals-court ruling that said then-President Donald Trump violated the First Amendment by blocking people on Twitter. The high court declared the case "moot" because Trump is no longer president.

For legal observers, the ruling itself was less interesting than a 12-page concurring opinion filed by Justice Clarence Thomas, who argued that Twitter and similar companies could face some First Amendment restrictions even though they are not government agencies. That's in contrast to the standard view that the First Amendment's free speech clause does not prohibit private companies from restricting speech on their platforms.

Thomas also criticized the Section 230 legal protections given to online platforms and argued that free-speech law shouldn't necessarily prevent lawmakers from regulating those platforms as common carriers. He wrote that "regulation restricting a digital platform's right to exclude [content] might not appreciably impede the platform from speaking."

Thomas doesn't seem to be arguing for a wide-ranging application of the First Amendment to all online moderation decisions. Instead, he wrote that free-speech law could apply "in limited circumstances," such as when a digital platform blocks user-submitted content "in response to government threats."

"Because of the change in Presidential administration, the Court correctly vacates the Second Circuit's decision," Thomas wrote. "I write separately to note that this petition highlights the principal legal difficulty that surrounds digital platformsnamely, that applying old doctrines to new digital platforms is rarely straightforward. Respondents [the Twitter users who sued Trump] have a point, for example, that some aspects of Mr. Trump's account resemble a constitutionally protected public forum. But it seems rather odd to say that something is a government forum when a private company has unrestricted authority to do away with it."

The Trump case didn't give the Supreme Court a chance to rule on the questions Thomas raised, but he is hoping that future cases will provide such an opportunity:

The Second Circuit feared that then-President Trump cut off speech by using the features that Twitter made available to him. But if the aim is to ensure that speech is not smothered, then the more glaring concern must perforce be the dominant digital platforms themselves. As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms. The extent to which that power matters for purposes of the First Amendment and the extent to which that power could lawfully be modified raise interesting and important questions. This petition, unfortunately, affords us no opportunity to confront them.

US Rep. Ted Lieu (D-Calif.) blasted Thomas' opinion. "Justice Clarence Thomas wants the government to regulate speech on the Internet. If you are a Republican who supports this view, don't ever lecture anyone on free speech ever again," Lieu wrote on Twitter.

"That Justice Thomas has... idiosyncratic.. views about the First Amendment is not exactly news," wrote Stephen Vladeck, a professor at University of Texas School of Law who has argued before the Supreme Court. "That none of his conservative colleagues saw fit to join his concurrence in the Twitter case is probably the bigger story, at least for now."

Twitter's decision to permanently remove Trump from the platform (for inciting violence) demonstrated that Trump himself "had only limited control of the account," Thomas wrote.

"The disparity between Twitter's control and Mr. Trump's control is stark, to say the least," Thomas wrote. "Mr. Trump blocked several people from interacting with his messages. Twitter barred Mr. Trump not only from interacting with a few users, but removed him from the entire platform, thus barring all Twitter users from interacting with his messages. Under its terms of service, Twitter can remove any person from the platformincluding the President of the United States'at any time for any or no reason.'"

Thomas acknowledged that private entities usually aren't constrained by the First Amendment but added that the First Amendment may apply on a private company's online platform "if the government coerces or induces it to take action the government itself would not be permitted to do, such as censor expression of a lawful viewpoint."

Thomas continued:

Consider government threats. "People do not lightly disregard public officers' thinly veiled threats to institute criminal proceedings against them if they do not come around." [Thomas was quoting a 1963 Supreme Court ruling in that sentence.] The government cannot accomplish through threats of adverse government action what the Constitution prohibits it from doing directly. Under this doctrine, plaintiffs might have colorable claims against a digital platform if it took adverse action against them in response to government threats.

But no such threat was alleged in the Trump case, and "[w]hat threats would cause a private choice by a digital platform to 'be deemed... that of the State' remains unclear," he wrote.

Thomas also suggested that the First Amendment should not have applied to Trump blocking users because Twitter is the one that ultimately controls the digital space. "Because unbridled control of the account resided in the hands of a private party, First Amendment doctrine may not have applied to respondents' complaint of stifled speech," he wrote. "Whether governmental use of private space implicates the First Amendment often depends on the government's control over that space."

Although Section 230 of the Communications Decency Act gives online platforms immunity from lawsuits over how they moderate user-submitted content, Thomas wrote that Congress "has not imposed corresponding responsibilities, like nondiscrimination, that would matter here."

In a footnote, Thomas wrote that the legal immunity provided by Section 230 "eliminates the biggest deterrenta private lawsuitagainst caving to an unconstitutional government threat." In the same footnote, Thomas cited an argument "that immunity provisions like Section 230 could potentially violate the First Amendment to the extent those provisions pre-empt state laws that protect speech from private censorship."

Thomas' Section 230 argument was disputed by Jeff Kosseff, assistant professor of cybersecurity law at the US Naval Academy and author of a book on Section 230. "I think that it's very unlikely that a state must-carry law for social media would survive [First Amendment] scrutiny," Kosseff wrote in a Twitter thread. Even if such a hypothetical state law passed First Amendment muster, it's unlikely that Section 230 would be found to violate the First Amendment under existing interpretations of US law, he wrote.

In addition to his First Amendment argument, Thomas wrote that digital platforms could be regulated as common carriers. "In many ways, digital platforms that hold themselves out to the public resemble traditional common carriers," he wrote. "Though digital instead of physical, they are at bottom communications networks, and they 'carry' information from one user to another. A traditional telephone company laid physical wires to create a network connecting people. Digital platforms lay information infrastructure that can be controlled in much the same way."

The similarity between online platforms and common carriers "is even clearer for digital platforms that have dominant market share," such as Facebook, Google, and Amazon, Thomas continued.

"The Facebook suite of apps is valuable largely because 3 billion people use it," he wrote. "Google searchat 90 percent of the market shareis valuable relative to other search engines because more people use it, creating data that Google's algorithm uses to refine and improve search results. These network effects entrench these companies." Thomas wrote that "Although both companies are public, one person controls Facebook (Mark Zuckerberg), and just two control Google (Larry Page and Sergey Brin)."

"Much like with a communications utility, this concentration gives some digital platforms enormous control over speech," Thomas wrote. Google "can suppress content by deindexing or downlisting a search result or by steering users away from certain content by manually altering autocomplete results," while "Facebook and Twitter can greatly narrow a person's information flow through similar means." Amazon, "as the distributor of the clear majority of e-books and about half of all physical books... can impose cataclysmic consequences on authors by, among other things, blocking a listing," he wrote.

Arguing that lawmakers could impose common-carrier rules on digital platforms, Thomas wrote, "The similarities between some digital platforms and common carriers or places of public accommodation may give legislators strong arguments for similarly regulating digital platforms."

"That is especially true because the space constraints on digital platforms are practically nonexistent (unlike on cable companies), so a regulation restricting a digital platform's right to exclude might not appreciably impede the platform from speaking," Thomas added.Thomas also wrote that his common-carrier analysis does not mean "that the First Amendment is irrelevant until a legislature imposes common-carrier or public-accommodation restrictionsonly that the principal means for regulating digital platforms is through those methods."

If Congress took up Thomas' call to regulate online platforms, we could end up with a system in which Internet service providers like Comcast and AT&T are not regulated as common carriers while Twitter, Facebook, and Google do face the common-carrier restrictions that traditionally applied to telecommunications companies.

Thomas has played an important role in how common-carrier regulations are applied or not applied to Internet service providers. In the 2005 Brand X case, Thomas wrote the Supreme Court opinion that lets the Federal Communications Commission classify Internet service as either an information service or telecommunications as long as it provides a reasonable justification for its decision.

The FCC can only apply common-carrier rules to Internet service if it is classified as telecommunications, and the Brand X ruling allowed the FCC to change that classification decision multiple times under different administrations, including when then-FCC Chairman Ajit Pai deregulated broadband in 2017. Thomas last year wrote that he regrets the Brand X decision because it gave federal agencies like the FCC too much leeway in interpreting US law.

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Clarence Thomas blasts Section 230, wants common-carrier rules on Twitter - Ars Technica

By Sam Gedge, Michael Jones

Raleigh, NC Drones! In recent years, drones have captured the imagination nationwide. There are over 1.7 million FAA-registered drones in the U.S. And increasingly, theyre used not just for fun, but for work. Drone-photography companies have popped up across the nation, using new technology to capture, create, and process data. The services have been a boon for many industries. Developers hire drones to monitor property. Construction companies hire them to oversee the progress on building sites. Real-estate agents hire them to capture vivid images.

Increasingly, though, drone start-ups have found themselves grounded by a centuries-old profession: land surveyors.As most people would understand it, surveying involves establishing and recording legal boundaries between pieces of property. But surveying boardsmost notably, North Carolinasare taking a far more aggressive view: They insist that simply creating and sharing images of and information about land is the practice of surveying and illegal without a full-blown surveyor license.

Drone photographers across the state have been surprised to receive stern warnings from the North Carolina Board of Examiners for Engineers. The letters state that drone companies are practicing or offering to practice surveying without a license. And unless they stop mapping and come into compliance, there will be civil and even criminal consequences. One of us (Michael) even received one of these warnings directly.

Now, we are teaming up to fight back, filing a lawsuit against the surveying board to vindicate everyones right to generate useful information.

Drone technology may be new, but the principles at stake are as old as the nation itself. Photographers want to use drones to create valuable images and data for willing customers. Thats speech, and its protected by the Constitution. As the Supreme Court underscored in 2011, the creation and dissemination of information are speech within the meaning of the First Amendment.

That principle applies with equal force to occupational licensing. Just last year, in fact, a federal court in Mississippi remarked that surveyor requirements are not wholly exempt from First Amendment scrutiny simply because they are part of an occupational-licensing regime. Put simply, surveying boards cant claim a monopoly on useful information about land. Small-business drone companies arent creating maps for the purpose of defining legal property boundaries. Theyre creating and communicating photos and information. Its speech, pure and simple. In fact, much of it is similar to what you can find on Google Maps.

North Carolina should encourage innovative business ventures, not suppress them because established industries dont like competition. And as our case will establish, you dont need the governments permission to take photosno matter how cutting-edge the technology.

Michael Jones is a videographer, photographer, and drone pilot from Goldsboro, N.C. and Sam Gedge is an attorney with the Institute for Justice, a public-interest law firm.

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Drones (and the First Amendment) take on regulatory overreach in North Carolina - Chatham Journal Weekly

Too often, colleges and universities shirk their commitment to diversity by invoking free speech rights to excuse abusive interpersonal and online behaviors.

Rather than focusing on healing and addressing the emotional toll caused by hateful words, administrators typically claim they cannot do anything because of the First Amendment.

This boilerplate response overlooks the safety and feelings of students of color, heightening campus tensions.

Students have reason to question First Amendment protections.

Diversity training typically focuses on protected segments of society. Title IX forbids gendersex-based discrimination in academic programs that receive federal financial aid. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, sex, religion and national origin. The Americans with Disabilities Act bans disability-based discrimination.

If a person is accused of violating those tenets, say, by making sexist remarksto a co-worker or telling inappropriate jokesto a student, intent does not excuse the conduct. The offended persons subjective viewpoint, however, is relevant, as well as an objective (or reasonable person) analysis of the incident in question. Conduct, including speech that is both subjectively and objectively offensive, may violate the law.

Then there is social media Twitter, Facebook, YouTube , et. al. whose terms of service acknowledge hate speech. Twitters policy forbids conduct that may promote violence against or directly attack or threaten other people on the basis of race, ethnicity, national origin, caste, sexual orientation, gender, gender identity, religious affiliation, age, disability, or serious disease.

Students are flummoxed when social media acknowledges hate speech, but public universities do not. After all, if former President Donald Trump can be censored by social media, why do universities let campus offenders off the verbal and proverbial hook?

The disconnect is exacerbated by ignorance of the First Amendment. Congress (meaning ouri.e., government, including public institutions) shall make no law abridging the freedom of speech. But private companies can, refusing service for any or no reason.

Lack of knowledge about censorship adds to confusion.

A survey by the Foundation for Individual Rights in Education found six out of 10 students censored themselves on such topics as racism, abortion and other challenging issues out of fear of how others would react.

A Knight Foundation survey found that students support campus prohibitions against protected speech that targets certain groups. Some 78% of students believed colleges should be able to restrict use of racial slurs. The same percentage favored safe spaces on campus designed to be free from threatening actions, ideas or conversations.

More telling, most college students believed efforts at diversity and inclusion frequently (27%) or occasionally (49%) conflict with free speech rights.

Essentially, students believe that hate speech undermines community values and violates the conscience of under-represented and protected groups.

The United States came close to adding a sixth freedom to the First, which protects free speech, press, religion, petition and assembly. James Madison, statesman, philosopher and fourth president, believed the conscience was the most sacred of all property and a natural right.

His proposal was a blueprint for the First Amendment. Its primary clause, however, dealt with religion: The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience ([emphasis added)] be in any manner, or on any pretext infringed.

That language was revised in the House to read: Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience. The reference to conscience was removed in the Senate.

Had it remained, the United States would have endorsed a concept that had secular as well as religious connotations.

As Michael J. White writes in the San Diego Law Review, freedom of conscience raises messy questions about what behavior can be tolerated in society.

Madisons view of conscience is echoed indirectly in the Universal Declaration of Human Rights in Articles 1 and 18, respectively:

Dozens of countries have based hate speech laws on freedom of conscience. For instance, in Germany, it is illegal to incite hatred against any part of the population or to insult their human dignity. A recent case involved a man who called women second-class people, with an appeals court stating this was misogynist abuse.

If such were the case in the United States, the court docket would overflow with violations.

More important, a freedom of conscience clause in the First Amendment, open to secular interpretations, would result in government determining what is and is not an affront to morality, the primary reason why the United States has no such hate speech law. Rather, the courts have held that the concept of freedom of conscience indirectly unifies other First Amendment rights.

Sharing this history, however, does little to resolve campus tension, especially when few understand applicable case law.

Universities typically do not educate constituents about protected speech. My employer Iowa State University is an exception, nationally recognized for First Amendment Days, now in its 19th year.

When public universities create speech codes, much like social media companies does, free speech proponents cite Texas v. Johnson. In that 1989 case, the Supreme Court stated that the government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable.

This principle allows extremely offensive speech.

States that created laws to curtail such speech eventually confront Brandenburg v. Ohio. In 1969, the Supreme Court found a Ku Klux Klan leaders rights were violated by a law that banned speech or education advocating crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.

Advocation alone is not sufficient to suppress free speech. The real test, according to Brandenburg, is whether such speech is likely to incite or produce such action. That clause affords broad protection of free speech rights.

There are limits to First Amendment rights, of course. They include incitement likely to produce illegality; true threats to an individual or group; fighting words in face-to-face communication, provoking a reaction; obscenity; and defamation. Also, harassment may apply in an academic environment when it is so severe and pervasive that it reasonably interferes with a persons educational experience.

The American Civil Liberties Union acknowledges targeted harassment as a violation of free speech. However, it adds, merely offensive or bigoted speech does not rise to that level and determining when conduct crosses that line is a legal question that requires examination on a case-by-case basis.

The ACLU cautions administrators not to see free-speech restrictions as a quick fix to address campus tensions. Rather, it recommends they step up their efforts to recruit diverse faculty, students, and administrators; increase resources for student counseling; and raise awareness about bigotry and its history.

This essay endorses that.

In the aftermath of offensive speech, in person or online, institutions have three choices:

Without such initiatives, the odds of campus unrest escalate.

It is also important to communicate tenets of the First Amendment, beginning with the syllabus. This is required at ISU. Professors inform students on the first day of class that their teacher will honor free expression:

Iowa State University supports and upholds the First Amendment protection of freedom of speech and the principle of academic freedom in order to foster a learning environment where open inquiry and the vigorous debate of a diversity of ideas are encouraged. Students will not be penalized for the content or viewpoints of their speech as long as student expression in a class context is germane to the subject matter of the class and conveyed in an appropriate manner.

Iowa State balances that tenet with annual required diversity training focusing on the inclusive classroom. Faculty are encouraged to add course-specific diversity components.

The university also has established diversity, equity and inclusion as community values with an online site to report infractions. Best diversity-related recruitment practices also are important in searches.

Diversity planning and assessment are essential at the departmental level as well as the college and university levels, as detailed in this IHE essay.

The College of Information and Communications at the University of South Carolina developed a comprehensive diversity strategic plan approved by the faculty, which includes specific measures of assessment for each objective. For instance, in its goal to recruit a more diverse student body, the college each year tracks and compares:

Without assessment, diversity initiatives often founder.

Aspirational goals are important as benchmarks. Penn State University not only has published best diversity practices but also has outlined extensive potential ones, such as developing a shared and inclusive understanding of diversity, recruiting a diverse student body and work force, and diversifying central administration.

Similar initiatives should be mentioned whenever opportunity presents itself but especially when central administration condemns offensive but legal speech.

First Amendment seminars and webinars inform the campus community in advance about how the institution will respond to offensive speech in person, in class or online. Thats a proactive measure that fosters greater understanding of legal ramifications of constitutional precepts.

Too often, frustration about free speech rights indicates a deeper concern about equity, diversity and inclusion in institutional practices, policies and environment.

Even proactive institutions like Penn State must respond to criticism informed by data. Last year a faculty- authored report disclosed that Black professors constituted only 3.9% percent of tenured and tenure-track positions at the flagship campus. In response, the institution promised to address concerns, including comprehensive reviews of affirmative action plans and increased efforts to recruit individuals from underrepresented groups.

Every institution can do better. Deficiencies continue nationwide.

For instance, one study has shown that faculty of color and female faculty disproportionately experience stress due to discrimination and feel they have to work harder than their colleagues to be perceived as a legitimate scholar. Another study documents how representation of students of color at selective public colleges and universities has declined since 2000.

If we are to decouple First Amendment arguments at the heart of campus tension, colleges and universities must commit resources, time, effort and assessment into sustaining and realizing campus climate goals.

Otherwise, statements about free speech legalities will ring as hollow as unrealized promises to increase diversity, equity and inclusion.

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The university response to offensive speech often reflects a feeble commitment to diversity, equity and inclusion - Poynter

Do First and Second Amendment rights complement each other, or do they cause a constitutional conflict that poses a threat to dialogue and democracy? Professor Gregory P. Magarian will discuss the relationship between these topics during Free Speech & Firearms: Constitutional Rights in Conflict? on April 20 at 4:30 to 5:30 p.m. on Zoom and Facebook Live.

Weve frequently seen guns incorporated into political protest in recent yearswhether gun laws are the subject of the protest or not, said Patrick File, Reynolds School of Journalism assistant professor of media law. Theres nobody better than Professor Magarian to help us think about these two constitutional rights together and whether guns might augment freedom of speech or undermine it.

Magarian is a professor of law at the Washington University of School of Law in St. Louis. He received his B.A. from Yale and his J.D. and masters degree from the University of Michigan.

The forum will be moderated by the University of Nevada, Renos College of Liberal Arts Associate Professor Amy Pason with an introduction by File. The event is free to the public and will include an audience Q&A. Attendees can register through Eventbrite to receive a Zoom link or watch the event on Facebook Live.

The First Amendment Forum is an annual event that explores emerging issues facing freedom of the press and free speech sponsored by the Reynolds School and Warren and Janet Lerude.

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Online event examines the relationship between free speech and firearms - Nevada Today

ANNAPOLIS,MDGovernor Larry Hogan and state leaders today participated in a ribbon cutting ceremony to mark the rededication of historic Lawyers Mall outside the Maryland State House in Annapolis.

The redesign of Lawyers Mall, which once served as the site of the Court of Appeals, took place in conjunction with a project to repair and replace the underground utility infrastructure which provides power, steam, and water to the State Government Complex. The project also upgraded the layout and accessibility of the Thurgood Marshall Memorial, designed by Antonio Tobias Mendez, a sculptor from Washington County.Read more about Lawyers Mall.

First Lady Yumi Hogan, Lt. Governor Boyd K. Rutherford, Senate President Bill Ferguson, House Speaker Adrienne A. Jones, General Services Secretary Ellington E. Churchill, Jr., and Deputy State Archivist Elaine Bachmann also participated in todays ceremony.

Since its creation in 1973 after the demolition of the old Court of Appeals building, Lawyers Mall has been a central symbol of democracy here in our state capital, and a space where countless Marylanders have gathered to exercise their first amendment rights, said Governor Hogan. On this beautiful spring day, the rededication of Lawyers Mall is a symbol that democracy is still alive and well in Maryland, and that there truly are brighter days ahead, and that each day now brings us closer to that light at the end of the tunnel.

With the combined efforts of The State House Trust and General Services, we have transformed Lawyers Mall into a more efficient and modern gathering space, said Lt. Governor Boyd K. Rutherford, chair of the State House Trust. Lawyers Mall has been a focal point of our State Government Complex for decades, and will continue to be so for generations to come.

Lawyers Mall is a constant reminder of the power of the First Amendment, and the rights of the people to redress their government, said Senate President Bill Ferguson. In times where electronic communication is fastly becoming the norm, this area, and the statue of Thurgood Marshall are a constant reminder of the force for good that government can be, and the essential power of the people as a part of that process.

Lawyers Mall is a meaningful reminder that we stand on the shoulders of those who came before us, said Speaker Adrienne A. Jones We still strive to meet the equal society that Justice Marshall fought for. I also want to remember the contributions of Speaker Mike Busch and Senate President Thomas V. Mike Miller to reinvigorate a space that is dedicated to civil rights legacy and civic engagement.

General Services takes great pride in Lawyers Mall as well as the entire Annapolis complex, said General Services Secretary Ellington E. Churchill, Jr. By investing in the replacement and improvement of Lawyers Mall and our underground utility distribution system, the Annapolis campus will gain a stable system for the next 25-30 years that will provide a comfortable environment for staff and visitors alike.

The newly redesigned Lawyers Mall has been updated with multiple amenities and accommodations that were not featured in the previous design. The total square footage of assembly space has been increased from 2,000 sq. ft. to 6,000 sq. ft., allowing groups of up to 1,200 people to comfortably gather. The new design also includes a natural speaker podium, as well as an abundance and variability of seating options.

The State Archives, and the Maryland Commission on Artistic Property, were very gratified to work with the Department of General Services to preserve artist Toby Mendezs original vision for the Thurgood Marshall Memorial within this space, said Elaine Rice Bachmann, Deputy State Archivist and Secretary, State House Trust. The success of the new design is in large part due to Mr. Mendezs collaboration with the landscape architects, Ziger/Snead, to make adjustments without compromising the artistic integrity of the 1996 design.

The redesign of Lawyers Mall removed and limited the number of steps and ramps to make the space more accessible and easier to maintain. The project also allowed for the opportunity to integrate a snow melt system into the design as well as sustainable stormwater features.

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Official Website for the Governor of Maryland - maryland.gov

San Diego TV crews set up for a hearing on the third floor of the County Administration Center. Photo by Ken Stone

At the start of the COVID-19 pandemic, I had to cancel a half-dozen eagerly anticipated trips Id planned as incoming Society of Professional Journalists president. I had booked flights to Hawaii, Minnesota, Utah, Illinois, Indiana and Washington, D.C. three for regional SPJ conferences and three others for leadership training, a board meeting and our Sigma Delta Chi Awards.

It sucked. But those cancellations seem inconsequential now, compared to the deaths and the job losses that mounted across the U.S., including some in our own industry. I look back on those cancellations now not with regret but with pride at how SPJ pivoted on a dime to a successful Day of Giving Back in April, then to an excellent virtual conference in September, then to an important SPJ Truth Day in October, then to a great Giving News Day in December. Over the past year, we literally learned who we are.

These are SPJs core four guiding principles, explained so succinctly we needed only two dozen words. I was on the strategic task force that distilled the English language and all that SPJ does into those four sentences last fall. From those words sprang our new strategic plan and will spring all the efforts we undertake to help you.

Were six months into this plan and it is paying dividends already. We are championing journalism with expanded awards contests, new online training and a push for greater diversity, equity and inclusion. We are fighting for the First Amendment by exploring an SPJ advocacy team in Washington, D.C., and by using our Legal Defense Fund and our First Amendment Forever Fund to support journalists in need. We are showing our stewardship of the SPJ Code of Ethics by putting more resources into our ethics hotline and by planning an Ethics Week that you will want to take part in (even if youre still sick of Zoom in April).

And we are focusing on the future, by exploring ways to make it easier to start and support campus SPJ chapters, especially at Historically Black Colleges and Universities and Hispanic-Serving Institutions, and by planning a national convention full of innovative programs to help all journalists, but especially young journalists, in September when we toast new SPJ president Rebecca Aguilar in person (we hope) in New Orleans.

My friend Victor Hernandez used to say that SPJ too often thought of itself as the Swiss Army knife of journalism, and that we should try instead to be one (or two or three or, to carry the metaphor, four) of the sharpest tools in the shed, instead. The core four pillars have allowed us the luxury of precision.

Our focus crystallized when our lives were upended by the pandemic. Unable to travel, I was disappointed that I would have to cancel the new SPJ presidents traditional first trip to the Fort Worth SPJ chapter. Instead, via Zoom, we discussed what they thought of SPJs strategic plan, how the national board could help the chapter, and who to contact if they had any questions or concerns (me, at mhall@spj.org).

Then, in the most unique part of this long-standing tradition, the chapter presented me virtually, of course a monogrammed branding iron. It was a microcosm of what Ive seen every day during this pandemic: SPJ members and journalists in general making the most of the difficult situation.

We make our connections count. When the branding iron arrived by mail, I shared on social media that Id cherish this weird, wonderful piece of personal history, always.

Thats how I want you to feel about SPJ: to cherish it.

Since that first meeting, Ive made it my mission to connect with every SPJ pro chapter. Ive had dozens of Zoom meetings. Ive shared SPJs strategic plan at each session to get feedback and to foster a conversation. Thats the beauty of this document: Our strategic plan will evolve. Conversations about it will continue.

Every year a new SPJ board, representing a growing, diversifying mix of members, will reconsider the plan and its parts. It is purposely not a multiyear strategic plan. We wanted a plan that was one year instead of three or five, and we wanted a plan that was one page instead of something requiring a binder that would only collect dust on a shelf.

The elements under the core four should be reconsidered from time to time to make sure SPJ is on the right track, listening to its membership and looking out for journalists nationwide. Those four pillars and all you thousands of members give me hope that this organizations best days are ahead.

We are the Society of Professional Journalists. And were here to stay.

Matthew T. Hall of The San Diego Union-Tribune is national president of the Society of Professional Journalists. This essay originally ran in Quill, a magazine published by the society. For more from Quill, visit quillmag.com and for more information about SPJ, see spj.org.

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Opinion: Remembering the Core Four Pillars of Journalism Amid a Pandemic - Times of San Diego