Monthly Archives: September 2021

A sheriff violated a teen's First Amendment rights when his department threatened her with jail if she didn't remove an Instagram post about becoming infected with COVID-19, a federal judge has ruled.

Last year, Amyiah Cohoon went on a spring break trip to Florida with schoolmates from Westfield Area High School in Westfield, Wisconsin. The trip coincided with the early spread of COVID-19, the trip was canceled partway through, and she returned home.

When she got home, she began developing symptoms of COVID-19 and sought medical assistance. She posted a picture of herself in April 2020 and described her situation on Instagram, telling people she had been infected.

It wasn't entirely clear whether Cohoon actually had COVID at the time. She tested negative, but she might have missed the detection windowand in those early days, COVID tests weren't nearly as reliable as they are now. Her family says that doctors told her that she probably did have COVID, even if they couldn't prove it at the time.

The day after she posted a picture of herself in a hospital bed with an oxygen mask, a Marquette County deputy showed up at the family's home, sent there by Sheriff Joseph Konrath to order Cohoon to take down the post or face arrest for disorderly conduct.

Cohoon complied, but the family also filed a lawsuit against the sheriff's department with representation from the Wisconsin Institute for Law and Liberty. Coverage of the lawsuit made the story go viral. It turned out Konrath was apparently acting in response to pressure from Cohoon's school, which was trying to reassure parents that everything was fine and that the county had no infections.

On Friday, U.S. District Judge Brett H. Ludwig, of the U.S. District Court, Eastern District of Wisconsin, granted a summary judgment concluding what was obvious to many observers (but not, it seems, to the sheriff and school): Cohoon's post was protected First Amendment speech, and the sheriff did not have the legal right to order her to remove it.

"Defendants may have preferred to keep Marquette County residents ignorant to the possibility of COVID-19 in their community for a while longer, so they could avoid having to field calls from concerned citizens," Ludwig wrote. "but that preference did not give them authority to hunt down and eradicate inconvenient Instagram posts."

Ludwig firmly reminded the sheriff that even if Cohoon had been wrong about her infectioneven if she had been deliberately lyinghe still shouldn't have ordered her to take it down: "The Marquette County Sheriff had no more ability to silence Amyiah's posts than it would to silence the many talking heads on cable news, who routinely pronounce one-sided hot takes on the issues of the day, purposefully ignoring any inconvenient facts that might disrupt their preferred narratives. Indeed, even if Amyiah's posts had been untruthful, no court has ever suggested that noncommercial false speech is exempt from First Amendment scrutiny."

It's an interesting time capsule. While many of us now are frustrated at government responses that exaggerate the risks of infection among the vaccinated while at the same time dragging their feet on access to vaccination boosters and home testing, let's not forget about the early days, when the authorities had their heads in the sand and tried to act like everything was going to be just fine.

Read more:
Judge Explains First Amendment Basics to Wisconsin Sheriff Who Threatened Teen with Jail for Instagramming Her COVID Infection - Reason

The autumn leaves are expected to be extra vibrant this year in Pennsylvania, though they are changing colors a week later than is normal.

Thats fitting. Very few things are normal this year.

According to Merriam-Webster, autumn is the season between summer and winter comprising in the northern hemisphere usually the months of September, October, and November.

Autumn is also defined as a period of maturity or incipient decline.

Fall has always been my favorite time of the year. The chilly air and vibrant colors fill me with calm.

This time of year I become especially reflective about my life and my future, but I also reflect about our country and its future.

Political discourse and basic civility grow worse by the day. Just follow the news if you can bear it.

Our massive federal government is demonstrating massive incompetence on a host of issues the Afghanistan pull-out, the Southern border, gigantic proposed spending bills yet a growing number of voters seems to think a bigger, socialistic government is a dandy idea.

Americas systemic optimism is hitting new lows, as a majority of us believe the country is heading in the wrong direction.

Is it really autumn for America? Have we reached a period of maturity and incipient decline? I hope and pray it isnt so.

Ive long believed you should never bet against the resilience, ingenuity and productivity of the American people. But in this reflective time of year, I admit that I have a growing sense of unease about our countrys future.

Its best if you try to focus instead on the many enjoyable events that autumn brings: hayrides, hot apple cider and the entertaining haunted house venues that are back in business after covid shut them down last year.

Its best to marvel at the creativity and hilarity of the characters and costumes people come up with for their annual Halloween party the one social event, or at least it used to be, at which adults can really let themselves have fun.

As far as characters and costumes go, I increasingly identify with the oddest character in the 1960s sitcom, The Munsters.

The Munsters are a family of silly monsters: Grandpa, an eccentric vampire; his daughter, Lily, also a vampire; her husband Herman, a Frankenstein monster; their son Eddie, a werewolf.

The Munster whos the oddball in the family is their niece, Marilynn, who is considered plain and unattractive by Munster standards because she is a normal, attractive woman by traditional standards.

With so many supposedly normal characters in Washington attempting to pass the largest government spending bill in U.S. history, you can feel like an oddball yourself for suggesting that some of the measures in the bill are way too radical and way too costly.

In fact, fewer American oddballs people worried about the country their children will inherit are willing to share their thoughts in public.

According to a 2020 Cato Institute survey, 62 percent of us say we hold political views were afraid to share with good reason.

The survey finds that 50 percent of strong liberals support firing Trump donors, 36 percent of strong conservatives support firing Biden donors, and 32 percent are worried about missing out on job opportunities because of their political opinions.

Freedom of speech has long been the very foundation of our country, but a majority of Americans are now afraid to exercise it?

That sad fact has become the new normal in America.

And thats a lot more frightening than the scariest haunted house anyone will enter this autumn.

Tom Purcell is an author and humor columnist for the Pittsburgh Tribune-Review. Email him at [emailprotected]

Read more:
Is It Autumn for the First Amendment? - FlaglerLive.com

ATLANTA Students, lawyers, public officials, public employees and the general public interested in open government are invited to attend UGA School of Laws First Amendment Clinic and Georgia First Amendment Foundation's virtual trainingsession to learn about accessing government records and the right to attend public meetings.

"The session is built as a citizens training, you don't have to be a lawyer or legal professional to join," said Clare Norins, director of the UGA First Amendment Clinic. "It's just to give people more information about the open government laws here in Georgia, the Open Records Act and the Open Meetings Act, to help people understand some of the basics of those laws."

The Sept. 30 virtual session, to be led by a few UGA law school students, will begin at noon and focus on some of the groups frequently received questions from the public.

The pandemic has shown us that its more important than ever to understand what their local governments are doing and how theyre making decisions, said Kathy Brister, president of GFAF. At the beginning of the pandemic it was more about straight access to meetings. There was a lot of confusion, as governments had to pivot, about actually being able to attend public meetings.

Some topics will include:

- Are local governments required to allow public comment during meetings?

- Does my school board have to share the data behind COVID-19 policies?

- What is executive session and when can my local government use it?

- If my city has live-stream technology, is the council required to use it for meetings?

During the virtual session, the group will also brief the public on how to request documents or information from a government entity and who to contact in the event that the government is not being compliant.

By in-large the law requires local government to consider access to the public as the highest priority, said Brister. We operate in a democracy. The public is the government. The government belongs to them."

The session will conclude with a Q&A session with attendees.

To register for the session, visit bit.ly/OpenGovAnswers.

More information of Georgia's open government laws can be found in GFAF's A Guide to Open Government in Georgia which can be found online athttps://gfaf.org/resources/the-red-book/.

We are making critical coverage of the coronavirus available for free. Please consider subscribing so we can continue to bring you the latest news and information on this developing story.

Link:
First amendment groups invite public to virtual session on open government - The Union-Recorder

President Biden talks COVID, climate and Afghanistan at UN

While speaking at the United Nations General Assembly, President Biden said the international community is "at an inflection point in history."

Associated Press, USA TODAY

Right-wing demonstrators headed to the nations capital on Sept. 18 to express their support for the individuals federally charged in connection with the Jan. 6 insurrection at the U.S. Capitol.

There were more police officers and reporters than protesters who attended the Justice for J6 rally, and officials reported just four arrests. But as law enforcementbraced for the possibility ofviolence ahead of thedemonstration, a warning went viral on social media claiming that swearing at the president might be illegal.

Its Not Just Dangerous; Screaming F*** Biden May Also Be Illegal, reads the headline of a purported Sept. 14 news article, which was shared to Instagram on Sept. 16. The post accumulated more than 2,000likeswithin less than a week.

Text below the headline reads, Experts warn that in addition to the violent incitement caused by screaming expletives at the president, such threats may also be criminal.

Pages on Facebook such as The Typical Liberal and Young Americans for Liberty shared similar versions of the claim, whileothers claimed the article was satirical.

However, the article is not authentic, and legal experts who spoke with USA TODAY said using profanity when speaking about thepresident is protected by the Constitution.

"There is no law preventing Americans from yelling profanities at the president of the United States," said KenPaulson,director of the Free Speech Center at the College of Media and Entertainment at Middle Tennessee State University.

Fact check: Biden's approval rating is higher than Trump's term low

The pages that shared the post did not return requests for comment.

A search of the headline included in the posts leads to memes on iFunny and online forums. The author of the text, who goes under the name "Eugene Bischvetz," first shared the screenshot of the text toInstagram on Sept. 15.

The social media pages for the account "Eugene Bischvetz" feature satirical contentand memes, and thescreenshot circulating online is not alegitimate news report.

Meanwhile, legal experts say using profanity when speaking about the president or public officials is not illegal, as the posts claim.

"Cursing at the president is protected speech under the First Amendment," said Robert Richards,founding director of the Pennsylvania Center forthe First Amendment at Penn State.

Richards pointed to the1971 Cohen v. California Supreme Court case, in which a man had the F-word emblazoned on a jacket, and wore it in a courthouse to show his contempt for the military draft.

"The court expressed concern that, if the government could criminalize such expression, it could do so as a guise for suppressing unpopular views," Richards said via email.

The court ruled the man had a right to say it, and in his opinion,Justice John Marshall Harlan wrote,"One man's vulgarity is another's lyric."

Clay Calvert, a professor of law and director of the Marion B. Brechner First Amendment Project at the University of Florida, also referenced the Cohen case.

"At the heart of the First Amendment is the ability to freely criticize both government officials and government policies," Calvert said via email. "The U.S. Supreme Court has made it clear that what it calls the 'emotive' function of speech merits constitutional protection."

Calvert said as long as the speech does not amount to what courts calla "true threat" of violence, then it is protected.

"In brief, it's completely legal to swear about the president of the United States," he said."It is not legal, however, to threaten the president of the United States."

Eugene Volokh, a professor of law at UCLA, noted there could be some cases where profanity toward a president might be unprotected.

"If you shouted it in a library, you might be disturbing the peace," Volokh said. "If you were to actually come up to Biden and say, Fyou, that might be so-called fighting words,personally addressed insults that are likely to start a fight."

Fact check: Biden can't mandate vaccinations for Congress; order covers executive branch only

In recent local controversies, attorneys have found that casesinvolving swear words and the president are protected speech.

For example, in February, assistant city of Fargo attorney Alissa Farolsaid a homeowner'sflag in North Dakota that used profanity against President Joe Biden was protected by the First Amendment. A similar situation took place in New Philadelphia, Ohio, where a law director told city council members the city could not do anything about a banner that used an expletive to attack Biden.

Based on our research, we rate FALSE the claim that swearing at the president may be illegal. Legal experts say cursing the president is protected by the First Amendment of the Constitution unless someone is disturbing the peace,using fight words, or making a direct threat to the president. Further, the headline seen in the posts is not an authentic news report.

Thank you for supporting our journalism. You can subscribe to our print edition, ad-free app, or electronic newspaper replica here.

Our fact-check work is supported in part by a grant from Facebook.

Link:
Fact check: Shouting profanity about the president is protected by the First Amendment, legal experts say - USA TODAY

From Judge Brett Ludwig's decision yesterday in Cohoon v. Konrath (E.D. Wisc.); generally quite correct, I think (though there might be room for punishing people whounlike the plaintiff heredeliberately publicly lied about having a communicable disease, as there may be for punishing people who put out hoaxes about having committed crimes):

The SARS-CoV-2 virus and COVID-19 have had a tremendous impact on American society. But, as this case makes clear, that impact has its limits and, more specifically, does not extend to overriding the protections of the First Amendment. [Defendants Sheriff Joseph Konrath and Patrol Sergeant Cameron Klump] violated [Amyiah Cohoon's] free-speech rights by demanding that she take down her social media posts or face criminal citation or arrest.

In March 2020, Amyiah, then a sophomore at Westfield Area High School, traveled with her school band on a spring break trip to Disney World and Universal Studios in Florida. During that trip, various states, including Florida and Wisconsin, declared public health emergencies in response to the then just-emerging COVID-19 pandemic. Four days after returning home from Florida, Amyiah began feeling ill. Her symptoms included a fever and dry cough. Two days later, she began having trouble breathing, so her mother took her to the emergency room at Divine Savior Hospital in Portage, Wisconsin.

The doctors at Divine Savior evaluated Amyiah and diagnosed her with an "acute upper respiratory infection." They informed her that her symptoms were consistent with COVID- 19 but said they could not test her for the virus due to the testing criteria in effect at the time. They then discharged her with an inhaler and instructions to strictly self-quarantine for 14 days and return if her condition worsened. They also instructed her parents to self-quarantine for 14 days, consistent with the COVID-19 protocols in place at the time. After returning home, Amyiah posted about her experience on Instagram, captioning a photo of herself from the spring break trip with: "Hey guys sorry I've been on a long break.. I won[']t be back for a while longer due to me no[w] having the COVID-19 virus I don't want the attention it[']s just the truth I am now in self quarantine and am not allow[e]d to leave my room and have an inhaler since they said to go home best of wishes. love you guys."

Three days later, on March 25, 2020, Amyiah's symptoms worsened. Her mother promptly took her back to Divine Savior, which then redirected her via ambulance to University of Wisconsin Children's Hospital in Madison. Once admitted to UW Children's, Amyiah was finally tested for COVID-19. Her test came back negative the following morning, but the doctors told the Cohoons that she may still have had COVID-19 and simply missed the window for testing positive. To that end, they released her with orders to continue her 14-day quarantine.

After arriving home from the hospital, Amyiah again took to Instagram. She posted a photo of herself with an oxygen mask on her face, captioned: "I am finally home after being hospitalized for a day and a half. I am still o[n] breathing treatment but have beaten the corona virus. Stay home and be safe[.]" At the time of this post, Marquette County, Wisconsin had yet to register even a single confirmed positive COVID case. In response to Amyiah's post, the County Health Department and the Westfield School District received numerous phone calls from concerned citizens.

In hopes of convincing Amyiah to voluntarily remove the post, the County Health Department referred the matter to County Sheriff Konrath. Sheriff Konrath relayed the necessary information to Sergeant Klump, who was on duty at the time. The content of this conversation was later summarized in Sergeant Klump's Detail Incident Report, which Sheriff Konrath reviewed and approved. The Report states: "Sheriff Konrath advised he wished for me to respond to the residence and have [Amyiah's] post removed from her social media When I advised [Mr. Cohoon] that I was there to have [Amyiah] remove the post, he became upset ."

On the evening of March 27, 2020, Sergeant Klump arrived at the Cohoons' home. A microphone and dash-cam captured the audio and video of the ensuing interaction. Sergeant Klump spoke for some time with Mr. Cohoon before Mrs. Cohoon and Amyiah joined them outside the house. Upon exiting the house, Amyiah heard Sergeant Klump explain: "All I'm here for is to figure out what this post is about, seeing she tested negative . And we need to get it taken down." Amyiah then agreed to go inside and take the post down. While she was inside, Sergeant Klump threatened Mr. Cohoon: "If [the post] doesn't come down, the Sheriff has directed me to issue disorderly conduct citations, if not start taking people to jail."

After removing the post, Amyiah exited the house again and showed Sergeant Klump her Instagram page. While outside, Amyiah heard her father twice repeat Sergeant Klump's earlier threat: "[Y]ou guys want to threaten somebody with going to jail over it and add insult to injury?," and "[I]t doesn't do any good when you can't warn [people] when you got a Sheriff's department threatening to throw people in jail over it." Sergeant Klump did not correct Mr. Cohoon's recitation of the threat, instead saying, "I'm just doing what we can do as a Sheriff's Office. Okay?"

After Sergeant Klump departed, Amyiah also deleted her March 22 Instagram post about her first trip to Divine Savior. Later that evening, the Cohoons discovered that Westfield School District Superintendent Robert Meicher had sent a news update to families in the district that included a statement about Amyiah's posts. The update read: "It was brought to my attention today that there was a rumor floating out there that one of our students contracted Covid-19 while on the band trip to Florida two weeks ago. Let me assure you there is NO truth to this. This was a foolish means to get attention and the source of the rumor has been addressed." Amyiah has not posted about her experience with COVID-19 on social media since.

Plaintiff's Instagram Post Was Unquestionably Protected Speech Under the First Amendment.

Even if short and often grammatically scurrilous, social media posts do not fall outside the ambit of the First Amendment. To the contrary, they are exactly what the First Amendment seeks to protect. In the eyes of the law, when Amyiah Cohoon took to Instagram, she was no different than John F. Tinker wearing his black armband in the halls of the Des Moines public schools, or Paul Robert Cohen donning his "Fuck the Draft" jacket in the corridors of the Los Angeles County Courthouse, and her speech deserved the same degree of protection.

But Defendants disagree. In their view, Amyiah forfeited her constitutional protection when she published a post that caused concern in the community and led to an influx of phone calls to the Westfield School District and Marquette County Health Department. According to Sheriff Konrath, this was akin to "screaming fire in a crowded movie theater." Even setting aside that the popular movie theater analogy actually referred to "falsely shouting fire in a theater and causing a panic," Schenck v. United States (1919) (emphasis added), Defendants' argument still fails. While content-based speech restrictions are permissible in limited circumstances (incitement, obscenity, defamation, fighting words, child pornography, etc.), the Supreme Court "has rejected as 'startling and dangerous' a 'free-floating test for First Amendment coverage based on an ad hoc balancing of relative social costs and benefits.'"

Labeling censorship societally beneficial does not render it lawful. If it did, nearly all censorship would evade First Amendment scrutiny. Defendants may have preferred to keep Marquette County residents ignorant to the possibility of COVID-19 in their community for a while longer, so they could avoid having to field calls from concerned citizens, but that preference did not give them authority to hunt down and eradicate inconvenient Instagram posts. Amyiah's post is not captured by any of the categorical exceptions to the First Amendment, so this Court will not balance the social utility of curtailing it against its government-assigned value.

But Defendants persist. They cast Amyiah's characterization of her illness as a lie, insisting that because she ultimately tested negative, she was prohibited from publicly proclaiming that she had beaten COVID-19. But the very doctors who tested her also informed her that she may have had COVID-19 in spite of the negative test.

Her Instagram posts were, therefore, at worst, incomplete. The notion that the long arm of the governmentredaction pen in handcan extend to this sort of incomplete speech is plainly wrong. The Marquette County Sheriff had no more ability to silence Amyiah's posts than it would to silence the many talking heads on cable news, who routinely pronounce one-sided hot takes on the issues of the day, purposefully ignoring any inconvenient facts that might disrupt their preferred narratives. Indeed, even if Amyiah's posts had been untruthful, no court has ever suggested that noncommercial false speech is exempt from First Amendment scrutiny. See United States v. Alvarez (2012). The Supreme Court has emphasized: "[t]he remedy for speech that is false is speech that is true. This is the ordinary course in a free society." The government here had every opportunity to counter Amyiah's speech, but it opted instead to engage in the objectionable practice of censorship.

{Defendants insist that, based on his knowledge at the time of the encounter, Sergeant Klump had probable cause to arrest Amyiah under the Wisconsin and Marquette County Disorderly Conduct provisions. In relevant part, these provisions punish "[w]hoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance[.]"

Defendants appear to recognize that none of the statute's specific enumerations even remotely apply to Amyiah's Instagram post and thus focus on the "otherwise disorderly conduct" language. Wisconsin courts have interpreted this phrase to encompass acts that corrupt public morals or outrage the sense of public decency. Defendants argue that, even if his belief was ultimately mistaken, Sergeant Klump had a reasonable basis to believe there was probable cause to arrest Amyiah under the catchall disorderly conduct language because he had been informed that her Instagram post was causing significant disturbance, anxiety, fear, concern, and even panic among other citizens.

Defendants' probable-cause argument dramatically understates the probable-cause analysis for disorderly conduct. If accepted, Defendants' position would largely gut the First Amendment's protection for free speech, allowing police officers a free hand to wrongfully arrest anyone engaging in protected speech so long as the offending officer could point to a possible disturbance or perceived anxiety among those who opposed the speech. Accordingly, the Wisconsin Supreme Court has held that speech that "falls within the protection of the First Amendment may not be punished as disorderly conduct." Defendants offer no answer to this precedent, which removes any basis for probable cause. Because Amyiah's social media posts were protected speech, Sergeant Klump could not have reasonably believed he had probable cause to arrest her or her family. Defendants' probable-cause defense fails as a matter of law.}

Defendants Took Adverse Action Against Plaintiff.

The audiovisual recording of the police encounter at the Cohoon home captured Sergeant Klump threatening Mr. Cohoon: "If [the post] doesn't come down, the Sheriff has directed me to issue disorderly conduct citations, if not start taking people to jail." According to Defendants, though, because Sergeant Klump never made this threat to Amyiah directlyinstead uttering the threat when only her father was presentshe could not have personally experienced any threat of adverse action. This superficial analysis fails for a number of reasons.

First, the record makes clear that Sergeant Klump's intention throughout his 30-minute visit was to get Amyiah to remove her social media posts through the use of threats against her and perhaps her parents. That he expressed this intent only during his discussions with Amyiah's father, after Amyiah had retreated into the house to comply with the police officer's demand, does not mean that she was not the realistic subject of threatened police action. Indeed, it appears that Amyiah made the logical 'hop' necessary to infer the sergeant had threatened her arrest because, in her sworn declaration, she recalled, "After [Sergeant Klump] left, I was afraid that he would find my first post and come back for that one, so I deleted that post too." Moreover, she stated, "I would also like to post further about my scare with COVID-19 on social media, and to repost the posts I removed, but I am afraid that another officer will come to my home and cite or arrest my parents or me." So not only was Sergeant Klump's threat of arrest likely to deter a person of ordinary firmness from engaging in protected conduct, in this case it did just that.

Analogizing to a citizen's ability to consent to a warrantless police search of their property, Defendants argue that Amyiah's decision to acquiesce in deleting her Instagram post rendered her action voluntary and, therefore, outside the scope of First Amendment protection. Defendants correctly allude to the important "difference between government expression and intimidationthe first permitted by the First Amendment, the latter forbidden by it." In the First Amendment retaliation context, "'[w]hat matters is the distinction between attempts to convince and attempts to coerce.'"

Defendants ask the Court to lump Sergeant Klump's efforts into the "attempts to convince" basket. Amyiah agreed to delete her Instagram post prior to learning of Sergeant Klump's threats. How then, Defendants ask, can she possibly claim coercion? This argument ignores the inherently chilling and coercive nature of a uniformed police officer showing up at a teenager's home and demanding that she cease otherwise protected speech.

Sergeant Klump's dash-cam footage shows that it was not his persuasive rhetoric that led Amyiah to delete her social media post, but rather his demand made under the auspices of the Sheriff's Department: "[W]e need to get it taken down." That was coercion by any metric. The state cannot dispatch a law enforcement officer to the home of a teenager to demand that she remove an Instagram post that government officials disagree with and then claim the officials were only engaging in the Socratic method.

It is possible that a Westfield administrator or Marquette County Health Department employee could have engaged in a mutually-respectful discussion with Amyiah to try to convince her to retract her post voluntarily, but that is not the method they chose. They elected, instead, to rely on the coercive power of the Sheriff's Department, and any attempt to obfuscate that fact by casting Sergeant Klump as an earnest public relations expert must fail.

Conclusion

The First Amendment is not a game setting for the government to toggle off and on. It applies in times of tranquility and times of strife. While Defendants in this case may have believed their actions served the greater good, that belief cannot insulate them. Demanding a 16-year-old remove protected speech from her Instagram account is a First Amendment violation. Declaratory judgment {establishing that Defendants violated her First Amendment rights} is granted.

Congratulations to Luke Berg and Rick Esenberg of the Wisconsin Institute for Law & Liberty, who represented Cohoon.

Read more here:
Sheriff Violated First Amendment by Ordering Teen to Take Down Post Saying She Had COVID - Reason

A promise from a university to protect students rights is endearing but, unless codified, is ultimately worthless.

The University of Georgia finds itself in a paradoxical position in terms of its policy concerning free speech. On UGAs freedom of expression webpage, the header boasts that, no rights are more highly regarded at the University of Georgia than the First Amendment guarantees of freedom of speech and expression. Yet, further examination of UGAs policies governing posters on campus calls UGAs statement into question.

Per the flyer requirement and regulations laid out in thestudent organization manual, flyers posted in the Tate Student Center and Memorial Hall must be approved by the information desk or information desk supervisor. The policy broadly grants the information desk the right to deny any flyers, ads, brochures, etc., without content and viewpoint-neutral guidelines for what would compel poster denial. In plainer terms, a poster could be denied for any reason, including because the information desk simply dislikes its message.

A warning on one of the bulletin boards in Tate Student Center that reads, "This board is maintained by the Tate Student Center Information Desk. All flyers on this board must be approved by the Tate Student Center Information Desk."

Other campus policies require similar administrative approval for posting flyers, including the non-commercial solicitation policy and university housings bulletin policy.Not only does no central policy exist in reference to bulletin boards,aUGA spokesperson was unable to confirm if there are any places on campus where students, faculty or other members of the UGA community can post flyers without needing to ask permission.

For these reasons, UGA received a yellow light rating from the Foundation for Individual Rights in Educations spotlight database. A yellow light indicates that a schools policies restrict a more limited amount of protected expression but according to FIRE by virtue of vague wording, can too easily be used to restrict protected expression.

FIREs spotlight database documents numerous instances of universities paying lip service to their commitment to First Amendment rights while quietly continuing to enforce policies that detract from those rights.

We often see these types of posting schemes where administrators want to be able to regulate indoor postings in a student union or what have you, but this is overly restrictive in trying to accomplish that goal, and it subjects all postings to an approval process, said Mary Zoeller, a senior program officer in FIREs policy reform department.

In reference to the posting policy in UGAs student organization manual, Zoeller said the restrictions would likely not be considered reasonable under the First Amendment.

To improve this policy and others governing posting space on campus, it is imperative that administrators revise language to include content and viewpoint-neutral guidelines for administrative approvals, such as size and timeliness of posters and permitting students to post freely somewhere on campus.

Anything less fails the promise UGA makes to its students and compromises their First Amendment rights.

Read the original:
OPINION: UGA, your promise to protect First Amendment rights is not enough - Red and Black

Texas Gov. Greg Abbott, who this month signed a bill that aims to restrict the editorial discretion of social media platforms, says the new law "protects Texans from wrongful censorship" and thereby upholds their First Amendment rights. The law, H.B. 20, is scheduled to take effect on Dec. 2, but that probably will not happen because it is blatantly unconstitutional and inconsistent with federal law.

Abbott, a former Texas Supreme Court justice who served as his state's attorney general from 2002 to 2015, presumably knows that. But whether he is sincerely mistaken or cynically catering to his party's base, H.B. 20 reflects widespread confusion among conservatives about what the First Amendment requires and allows.

"Too many social media sites silence conservative speech and ideas and trample free speech," Abbott complained in March. A like-minded state senator declared that "Texans must be able to speak without being censored by West Coast oligarchs."

Although the evidence supporting such complaints is disputed, let's assume they are justified. Or let's imagine a social media platform that explicitly caters to the left and bans dissenting posts.

Would that constitute a violation of conservatives' First Amendment rights, as Abbott claims? No, since the First Amendment applies to the government and imposes no constraints on private parties.

To the contrary, the First Amendment guarantees a private publisher's right to exercise editorial discretion. The Supreme Court emphasized that point in a 1974 case involving a political candidate's demand that the Miami Herald publish his responses to editorials that criticized him.

The constitutional protection against compelled publication does not disappear when we move from print to the internet, or from a news outlet to a website that invites users to post their own opinions. As Justice Brett Kavanaugh noted when he was a judge on the U.S. Court of Appeals for the D.C. Circuit, "the Government may not... tell Twitter or YouTube what videos to post" or "tell Facebook or Google what content to favor."

Yet that is what H.B. 20 purports to do. The law says "social media platforms" with more than 50 million active monthly users in the U.S. may not "censor" content based on the "viewpoint" it expresses. That edict covers any effort to "block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression."

H.B. 20 makes a few exceptions, including "expression that directly incites criminal activity" and "specific threats of violence" that target people based on their membership in certain protected categories. But otherwise, the rule's reach is vast: As two trade organizations note in a federal lawsuit they filed last week, H.B. 20 "would unconstitutionally require platforms like YouTube and Facebook to disseminate, for example, pro-Nazi speech, terrorist propaganda, foreign government disinformation, and medical misinformation."

Every social media service including alternative platforms such as Parler and Rumble, which are not covered by the law because they fall below its user threshold moderates content to some extent. And while there will always be disagreement about the formulation and enforcement of those rules, H.B. 20 replaces private discretion with government dictates.

In addition to the First Amendment, H.B. 20 flouts 47 U.S. Code 230, which bars states from imposing civil liability on a website for "any action voluntarily taken in good faith to restrict access to or availability of material" it deems "objectionable, whether or not such material is constitutionally protected." H.B. 20 implicitly acknowledges that barrier, saying it does not authorize "damages or other legal remedies to the extent the social media platform is protected from those remedies under federal law" a proviso that effectively nullifies its ban on "censorship."

In June, a federal judge issued a preliminary injunction against a similar Florida law after concluding that it probably violated the First Amendment and Section 230. The fact that supporters of H.B. 20 were unfazed by that ruling shows how readily Republicans sacrifice constitutional principles in their culture war against "West Coast oligarchs."

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @JacobSullum. To find out more about Jacob Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate webpage at http://www.creators.com.

Photo credit: BiljaST at Pixabay

The rest is here:
The Texas Social Media Law Is Blatantly Unconstitutional: Government Restrictions On Private Editorial Discretion Violate the First Amendment, by...

The Republican Party and the larger neofascist movement it represents are boldly, shamelesslyand relentlessly attacking American democracy. The campaign is nationwide and multi-spectrum: Almost every aspect of American society is being targeted. This includes basic understandings of reality and the truth, science and expertise, democratic institutions, education, public health, the environment, the economy, the free press and the First Amendment, civil and human rights, pluralism and secularism, and the social contract and the Common Good more generally.

These attacksalso involve political violence in its many forms, including the insurrection of Jan. 6 and the slow-rollingcoup attempt associated with it, a long history of stochastic terrorism, inspiring and unleashing right-wing street thugsand various other acts of violent intimidation and threats.

Journalist and author Jeff Sharlet recently offered an ominous observation on Twitter:

At this point, it's unremarkable. Most of us just roll our eyes, & even as we loathe this, accept it as inevitable. We've normalized Chekov's gun the one in the 1st act & we continue as if the next act isn't coming....

Many reassure themselves that the rightwing cosplayers with assault rifles aren't "real" soldiers. Neither was Kyle Rittenhouse, who killed two. And, unfortunately, a fair number do have military training. The threat isn't apocalyptic, but it's real.

The Republican-fascistmovement's end goal is to reduce American society to rubble in order to rebuild it in their ownimage. Theywill not stop until they win or are comprehensively defeated and vanquished from public life.

There can and will be no compromise: The Republican-fascist movement sees its war against multiracial democracy as an existential struggle to protect "Westerncivilization"against "white genocide" or "replacement."

That no such thing is happening white people maintain control and dominance over every aspect of American society is irrelevant. Fascismis not based on the truth or reality; it is a self-contained lifeworld.

The Republican-fascist movement isso confident in its ultimate success that it announces its plans and intentions to the world. Why not? There is verylittle sustained opposition -- at least to this point. Joe Biden is president and the Democrats technically hold (exceedingly narrow) majorities in the House of Representatives and the U.S.Senate. But the Democrats' tenuous hold on power weakensunder the looming shadow of the Age of Trump. When the Republicans in all likelihood regain control of the House next year,that looming shadow may become a lead blanket.

It is a sad thing to see how theDemocrats have the Republican-fascist movement's playbook in their possession but are unwilling or incapable of using it themselves.

For at least five years, Donald Trump and his spokespeoplerepeatedly announced that he would not respect the results of any election if he did not win.

The fake "audit" in Arizona (coming soon toTexas and other states) is part of a much larger strategy of delegitimizingdemocracy and replacingit with a Republican-fascist autocracy.

For more than fiveyears a chorus of public voices, including mental health professionals, repeatedly warned America and the world that Trump was suffering from mental pathologies, and might be a sociopath or psychopath. They also observed that he feelscontempt for democracy, is an instinctivewhite supremacist, iscapable of destroying American society and the world in service to his own narcissism and rage,and that his presidency would lead to national or global disaster. All of that was true.

Democrats and the "resistance" also have access to the many books, articles, policy briefings, videos and other information that detail how for decades the Republican Party, "movement conservatives"and their allies have been planningto overthrowAmerica's multiracial democracy. Too many mainstream liberals and progressives convinced themselves that those plans were idle fantasy. The horrors are real.

Salon executive editorAndrew O'Hehir recently describedthe perilous position of the Democratic Party as it faces the Republican-fascist movement, first observing the Democrats' repeated pattern of winning electoral majorities and then failing to govern effectively:

More important than any of that, although absolutely related, is how Democrats have responded to the obvious Republican assault on democracy over the last couple of years, in the manner of a truckload of Brookings Institution scholars stuck in cold molasses, determined to consider all sides of the question fairly and not to let anyone accuse them of acting hastily. I'm not suggesting that Joe Biden and Nancy Pelosi and Chuck Schumer haven't expressed genuine alarm or said more or less the right things, because they have. But as you have perhaps observed, they haven't leveraged those words into action: They haven't ditched the filibuster or expanded the Supreme Court or passed any of the bills in front of them that are meant to fortify the right to vote, for the love of Jesus Christ.

This isn't a nice thing to say about a bunch of mostly sane and approximately reasonable people, but here's the truth: If you set out to design a left-center political party that was fated to surrender, little by little, to authoritarianism because of circumstances beyond its control, because of internal indecision and ideological fuzziness, because it faced an entrenched and deranged opposition party, because of whatever you could hardly do better than the current version of the Democratic Party.

If Democrats lose conclusively to those people, then they deserve it. That's a dark path, perhaps darker than any of us wants to contemplate. But I think there's no avoiding this date with destiny, for the Democrats or the Trumpers or our entire so-called democratic experiment. If you see another one, light the way.

As O'Hehir describes, the Democratic Party is hunkered down in its own version of the Maginot Line while the Republican-fascist movement has outmaneuveredandencircled them. What canthe Democrats do at this point to fight back and defend American democracy? First, they need to reorganize and rally their forces.

They must counter the Republican-fascist movement at every point across the political battle space. Corporeal politics are essential here: Democrats and other pro-democracy forces actually outnumber the fascist-Republican forces, but the latter are betterorganized, better financed, more clearly focused and possess a clearerunderstanding of optics andpropaganda. As a result, they are able to amplify their power far in excess of their actual level of public support.

At Trump's rallies, when his right-wing street thugs and other followers march and otherwise assert themselves;at public hearings and other political gatherings;and across society more generally, Americans who support democracy mustmake their presence feltin large numbers.

Corporeal politics in this moment of crisis will also necessitate a nationwide campaign of direct action, including sit-ins, protests, mass marches, a potential nationwide strikeand boycotts targeting the companies and individuals who finance the Republican Party, the right-wing propaganda machineand theneofascist movement.

Ultimately, because Joe Biden and the senior leaders of the Democratic Party appear unable, unwilling or unprepared to take the bold actions necessary to save American democracy for starters, ending the filibuster, expandingthe Supreme Courtand enacting laws that protect and guarantee the right to vote the American people must force them to act.

I am not prepared to succumb to defeatism yet. But at this point, wemustconfront the possibility and perhaps even probability that today's Democratic Party isfundamentally incapable of doing what is necessary to protect American democracy against the Republican-fascist movement.

In boxing and other combat sports there is the truism that "styles make fights."Today's Democratic Party and its leaders may simply not possess the style that is required to defeat the resurgent and highly organized forces of the right. Another lesson may be drawn fromboxing as well. Sometimes a once great fighter, perhaps on a subconscious level, wishes that the fight would just end. He is being pummeled by hisadversary andconvinces himself that being knocked to the canvasand left staring up at the lights will offera form of dignified relief.

I don't thinkthat the Democratic Party has quite reached that point.But based on its leaders' unwillingness tofight back effectively against the Republican-fascist movement, I worry that sooner or later and probably sooner the decision to surrender and negotiate a form of "peace in our time" will be made.

Continue reading here:
Democrats have the GOP playbook: They know how to fight back, but just won't do it - Salon