Daily Archives: December 10, 2021

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(THE CONVERSATION) University of Florida officials in November blocked three professors from offering expert testimony in a lawsuit that challenged recently enacted state voting restrictions. But the university soon reversed course amid a public outcry.

The criticism leveled at the university included charges that the scholars academic freedom had been violated, along with their First Amendment rights to free speech. The professors themselves filed a lawsuit against the university after the reversal, saying that the university had violated foundational principles of academic freedom and free speech.

From my perspective as a constitutional law scholar and lawyer, untangling how these two claims are both related and distinct can help us understand how these kinds of disputes ultimately pit robust protections for free inquiry and debate against public institutions desire to manage their operations as they choose. It turns out that courts reach very mixed results when deciding these disputes.

Protecting speech

Public universities like the University of Florida are government employers. They sometimes restrict the speech of faculty members, who are their employees. For example, the University of Florida asserted that professors testimony in a lawsuit against the state was adverse to the universitys interests as a state of Florida institution when it first sought to block that testimony. Such restrictions can trigger both First Amendment and academic freedom concerns.

First Amendment law is the body of constitutional law that protects speech from the governments unjustified interference. For example, it prohibits the government from punishing critics for speaking out.

Academic freedom describes an academic communitys customs and practices that allow free intellectual inquiry and debate. These customs and practices help advance universities mission of creating and disseminating knowledge.

Under these customs and practices, for instance, scholars have the freedom to choose which topics to explore and which conclusions to draw.

Academic freedom protections are enforced by academic communities, like universities. First Amendment protections are enforced by courts.

Government often limits its employees speech

First Amendment law generally prohibits the government from restricting individuals right to speak freely. But the First Amendment rules that apply to the government when it limits the speech of its own employees are much more government-friendly, allowing greater restrictions of those workers speech.

Under these rules, the First Amendment protects a public employees speech as an individual citizen on a matter of public concern, so long as that speech does not unduly interfere with her government employers operations.

So, for example, the First Amendment would protect a public school teachers letter to the editor or social media posting that criticizes the mayor. The lawsuit filed by the University of Florida professors who were originally told they couldnt give testimony similarly argues that, through that testimony, the professors sought to offer their views as individual citizens on the important matter of voting rights.

In contrast, according to the Supreme Court, public employees speech pursuant to to their official duties is entirely unprotected by the First Amendment.

According to one landmark ruling, thats because government employers must, as a practical matter, have power over their employees job-related speech, to control what the Supreme Court called what the employer itself has commissioned or created. In other words, what a person says as part of her official duties as a government employee is not protected by the First Amendment. This is so, according to the court, even when the employees job-related speech is on a matter of great concern to the public.

What about whistleblowers?

The Supreme Court first announced this rule in a 2006 decision called Garcetti v. Ceballos. In that case, the justices rejected a prosecutors claim that he was exercising his First Amendment rights to free speech and should not have been punished by his governmental employer for his internal memo that questioned a warrants legitimacy.

Lower courts now frequently apply the Garcetti ruling to dismiss the First Amendment claims of government workers punished for truthfully reporting government misconduct when it was their job to report it.

For example, courts found that the First Amendment did not protect public health care workers who were disciplined after conveying their concerns about patient care. Likewise, it didnt protect police officers who were fired after reporting public corruption.

The Garcetti ruling sometimes makes it hard to figure out when public employees speech occurs pursuant to their official duties and thus loses any First Amendment protection.

One court even applied Garcetti to conclude that the First Amendment permits the government to punish a public employee for truthfully testifying that a state legislator on a state agency payroll had not been reporting to work when the employees testimony involved information that he acquired on the job.

Fortunately, the Supreme Court reversed that decision in Lane v. Franks, holding that the First Amendment protects a public employee who provided truthful sworn testimony when his job duties did not ordinarily involve such testimony.

Crowded intersection

Another important question that remains unanswered is whether the Garcetti ruling strips public university faculty members of First Amendment protection for their research, teaching and other job-related speech. Its a First Amendment question complicated by its intersection with academic freedom protections.

The Supreme Court has emphasized that academic freedom is key to universities mission of creating and disseminating knowledge. This mission, the justices said, advances First Amendment values by contributing to the marketplace of ideas and a vibrant democracy.

The court relied on this observation in two mid-20th-century decisions to say that the First Amendment protected universities from legislatures that sought to squelch unorthodox beliefs or unpopular expression. Lawmakers had tried to do that by requiring loyalty oaths of faculty members or by investigating faculty members allegedly subversive activities.

If the First Amendment protects universities from that sort of legislative interference with their academic mission, does it also protect public university faculty members from employer interference with their job-related speech?

Decades later in the Garcetti case, the Supreme Court punted on this question. Its still not clear whether the First Amendment protects public university faculty members research, teaching or other on-the-job speech from their employers restrictions.

Regardless of how the Supreme Court ultimately rules on this First Amendment question, academic freedom principles which rely on academic communities themselves for their enforcement rather than on courts can still provide an independent source of protection for faculty members job-related speech.

In other words, universities themselves can choose to respect those principles in their treatment of their faculty members.

For these reasons, those who objected to the University of Floridas efforts to silence its professors testimony argued not only that the university was violating the First Amendment, but also that it was violating its own institutional commitment to academic freedom.

Editors note: The University of Florida is a supporting member of The Conversation.

This article is republished from The Conversation under a Creative Commons license. Read the original article here: https://theconversation.com/professors-free-speech-rights-can-clash-with-public-universities-interest-in-managing-their-employees-as-they-choose-171446.

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Professors free speech rights can clash with public universities interest in managing their employees as they choose - The Edwardsville Intelligencer

A bill introduced by Republican state lawmakers would punish Wisconsin state universities and technical colleges for free speech or academic freedom violations. Campuses found to be in violation of the law would face financial penalties and potential lawsuits and would be forced to notify incoming students of any violations for the 10 years following the incident.

Wisconsin Republicans have been pushing the UW System to get tougher on students who disrupt free speech events on campuses since 2017. A prior bill, which failed, aimed to expel students who shout down or disrupt speakers, invited by student organization, three or more times.

In 2017, the UW Board of Regents passed a resolution that mirrored the bill. The regents vote and legislation were spurred by incidents at places like the University of California, Berkeley, where protests broke out after former Breitbart news editor Milo Yiannopoulos was invited to speak on campus.

But the latest Republican initiative focuses on punishing colleges and administrators rather than students.

Under the new bill, any campus that restricts when and where speech can happen or charges a fee for "additional security based on the anticipated content of speech or anticipated reaction to speech" more than one time within 10 years will face a litany of sanctions. Those include a potential loss of student grants from the Wisconsin Higher Educational Aids Board, which would have to instead be paid using campus funds for one year or until the university or technical college "administrator is permanently removed from his or her administrative role."

The bill would also allow state or federal courts, the state Higher Educational Aids Board, or state lawmakers to weigh evidence and decide if a university or technical college violated free speech rights.

In addition to losing state scholarship funds, a campus found to be in violation of the law would be forced to include a disclaimer on admissions documents going to potential applicants. The disclaimer would read:

"NOTICE: We are required by the State of Wisconsin to inform you that within the last 10 years [insert name of UW institution or technical college] has violated the free speech or academic freedom provisions in the Wisconsin statutes."

Lastly, the bill would allow the state attorney general, district attorneys or individuals whose "expressive rights were violated" to sue the UW Board of Regents or a technical college district board. If a court finds a violation occurred, the presiding judge would be required to award plaintiffs a minimum of $500 for the violation and $50 for each day after the complaint is served if the violation continues. The maximum award for plaintiffs would be $100,000 plus legal fees. The bill mandates that such awards would come from a campus' administration budget.

Policymakers respond to bill, criticize student aid component

The legislation, authored by state Rep. Rachael Cabral-Guevara, R-Appleton, received a public hearing Wednesday with the Assembly Committee on Colleges and Universities.

Cabral-Guevara taught at UW-Oshkosh. She said the proposal stems from conversations she had with former students who said they wished everyone could feel comfortable speaking up for what they believe in. Students told her they wished she spoke up more on campus and that they were afraid of voicing certain beliefs out of fear they would not be allowed to graduate, Cabral-Guevara said.

"If I wasn't strong enough, how can I ask my students to be strong also?" Cabral-Guevara asked. "And so overall, when we look at this bill here, what we're doing is trying to protect, and we're trying to promote an environment where students can be free with their thoughts and their ideas."

Committee chair state Rep. Dave Murphy, R-Greenville, also testified in favor of the bill. He said empowering legislative committees, like his own, to take disciplinary actions against colleges violating the U.S. and Wisconsin constitutions was appropriate because "government is supposed to protect our free speech rights."

Rep. Katrina Shankland, D-Stevens Point, took issue with that assertion and noted that Republicans were granting themselves powers to act like a court, weighing evidence and assigning penalties.

"You talked about the constitution at length in your testimony," said Shankland. "How does the ability to bring a cause of action to a legislative committee comport with our constitution?"

Murphy referred the question to a Wisconsin Legislative Council attorney at the hearing, who said that part of the bill "very well could be subject to separation of powers issues" and that "it's kind of questionable" whether a legislative committee could restrict financial aid to colleges.

State Rep. Robert Wittke, R-Racine, said he supported protecting free speech at state colleges but was a "little wary" about using state grant funding meant for student scholarships to punish universities.

"I would also prefer to hold those that guide these institutions accountable rather than limiting financial aid, because I'm concerned that there would be too many unintended consequences for students that aren't wrapped up in this," Wittke said.

After hearing concerns about the grant fund punishment, Murphy stated he was open to amending the bill at a later date.

Jeff Buhrandt, UW System vice president for the Office of University Relations, pointed out to the committee that state universities have always strived to promote free speech and diversity of thought on campus.

"Our current policy recognizes that each institution has a solemn responsibility not only to promote lively and fearless exploration, deliberation and debate of ideas, but also to protect those freedoms when others attempt to restrict them," said Buhrandt.

Joe Cohn is the legislative and policy director for national the campus free speech organization Foundation for Individual Rights in Education. He told the committee there are things he likes in the latest iteration of the Republican campus free speech bill and some things he doesn't like.

Cohn said he's glad lawmakers are working to codify campus free speech protections in statute, but he's unhappy with the provision that would restrict state grants to colleges until a campus administrator associated with a policy violating the law is fired. Cohn, who is usually a critic of college administrators, said he was glad to hear lawmakers were open to amending the bill and said if the grant restriction provision was still included during a final hearing on the legislation, he would recommend a no-vote.

The rest is here:
Republican bill would punish universities, technical colleges for free speech violations - KPVI News 6

When Chad Sabora started working in harm reduction, he worked out of his car on the streets of St. Louis, Mo. Saboras beat-up sedan was a familiar sight in neighborhoods frequented by people who use drugs. Sabora, an attorney and former prosecutor in Chicago, had been in recovery for years and experienced addiction firsthand. Based on decades of research and his own experience, he knew sterile syringes prevented infectious disease transmission, naloxone saves lives by reversing overdoses, and that a well-timed pep-talk or caring gesture could profoundly help someone in the throes of addiction. He took a boots-on-the ground approach to helping others in his hometown.

As Americas unprecedented overdose crisis became a national issue, Sabora thought of ways to scale-up his operation. Like many people do, he took to social media, where he tried spreading the gospel of harm reduction and sharing simple strategies to help people survive their substance use disorder.Never use alone. Carry naloxone. Use new syringes.Statistically speaking, there are millions of drug users and people with addiction online. Tragically, over 200 people die from drug overdoses every day in America, and over 100,000 Americans died in the last year alone. But on Facebook, Sabora felt something was keeping him from reaching the masses. Then he noticed his posts ran afoul of the almighty algorithm.

Ive been put in time-out just for posting about naloxone, Sabora said. When he created educational posts about the risks of illicit fentanyl, teaching people how to use fentanyl test strips, his account would be disabled. He realized that by mentioning drugs, his account was dinged by Facebooks automated content censors meant to curb drug sales on social media platforms. The algorithm couldn't distinguish his content from that of a suspected drug dealer. The algorithm picks up particular words, phrases, or speech patterns that are flagged and suppressed. Entire groups of harm reduction activistshave disappeared, along with scores of informational posts and threads. Some accounts have been banned for life.

Sabora was confident he could use social media tools to make a difference and help educate people about harm reduction. Instead, he found himself silenced by social media censors.

An obscure regulation called Section 230 shields social media companies from being held liable for the questionable content generated by users. Naturally, some politicians and activists are calling to rewrite Section 230 in order to incentivize tech giants to do a better job at moderating content that users post. While there is unquestionably a credible argument to do so, we must also be careful. Re-writing Section 230 could backfire. Instead of ending online drug sales, these new rules could further censor activists like Sabora who are trying to use social media to save lives during an overdose crisis. Congress must be cautious when crafting content moderation regulations around substance use disorderas companies are likely to shut down all related conversations to avoid liability.

Section 230is a decades-old law that regulates speech online and governs nearly every interaction on social media. The law is part of the United States Communications Decency Act of 1996. Section 230 also protects social media platforms from being held responsible for the content users post. For example, ifa QAnon group plans and enacts a traitorous insurrection in Washington, DC, the website that hosted this group has immunity. They cant be prosecuted for what people post online. However, advocates have often tried to alter Section 230 to support their own political aims.

Sex trafficking is one of the most recent and thorny instances of Congress rewriting Section 230. Claiming to want to protect children and vulnerable people from being abducted and trafficked, advocates pressured lawmakers to pass a package of laws known as FOSTA/SESTA. This law amended Section 230 by holding websites and online platforms responsible for user content that might facilitate sexual exploitation. Although the Department of Justice went on record warning that FOSTA/SESTA would make it more difficult to prosecute sex trafficking cases, it was passed anyway. Disaster ensued. Instant crackdowns were implemented by websites, and some websites that were a safe haven for sex workers to vet their clients shutdown entirely. These measuresfailed to slow sex trafficking. In fact,the law has only been usedonceby federal prosecutorswho said they didnt really need it; they were able to use other, already existing laws to prosecute sex-trafficking offenses in the past. While FOSTA/SESTA did nothing to help potential victims or catch traffickers, it had an immediate, negative effect on another vulnerable group: sex workers.

A similar crackdown could harm people who use drugs and harm reduction advocates like Sabora who are trying to broadcast lifesaving information. Just as advocates urged Congress to rewrite Section 230 to prevent sexual exploitationa similar campaign is underway to prevent drug sales and curb Americas soaring overdose death rate. Horrificstoriesinvolving young adults buyingdrugs on Snapchatand TikTok abound. Some parents and advocates want Section 230 rewritten to increase liability of social media companies for drug sales on their platforms. But efforts to clamp down on online drug sales through Section 230 carve outs are somewhat misguided. Without careful considerations, these reforms would endanger the recovery community and harm reduction advocatesand threaten to stifle productive speech that is critical for progress to combat the overdose crisis. Current proposed230 carve-outs could undermine access tolifesavingresources, mandating takedowns of broad categories of content, and forcing vulnerable populations, including those navigatingsupportive services, off-platform. For criminalized communities, the risk for exploitation and harm offline is significant, and support and resources can be limited.

Harm reduction effortsand conversationsare often nuanced and specific to the individual, aiming to minimize harms of substance use. Blanket content bans, prescribed without consideration of context and nuance, could punish those seeking helphamstringing legitimate, proven approaches to combatting overdoses.

Instead of broadly crushing free speech and pushing social media companies to eliminate our ability to share resources, the U.S. government should focus its efforts on things that work. To save lives, policymakers must develop a realistic national strategy to combat the overdose crisis, including implementing evidence-based prevention, harm reduction, treatment, and recovery support services on the community-based level. Dont kill the conversation. Instead, we need to coordinate with localities to identify authentic places for support.Most leading platforms where these conversations take place have clear rules prohibiting the online sale and promotion of drugs and controlled substances,and companies must do a better job at policing those efforts.The federal government must work together with online platforms to coordinate a more effective strategy to remove bad actors, and work with law enforcement to prosecute drug traffickers.

Theres a world of difference between a syringe exchange and a drug deal. Until our governmentand our social media companiesrecognize that, we will continue to lose friends, loved ones, neighbors, and family members to preventable overdoses. Not because they wanted to die. But because they were silencedand separated from the people who were trying to help them.

Ryan Hampton is a nationally recognized recovery advocate, community organizer, and person in long-term recovery from addiction.He is the author of "Unsettled: How the Purdue Pharma Bankruptcy Failed the Victims of the American Overdose Crisis."Follow him on Twitter:@RyanForRecovery

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Free speech restrictions on social media could squash harm reduction and addiction recovery efforts | TheHill - The Hill

Could the Feds "accidentally" trigger a recession just in time for the 2022 election? Richard Wolff warns that our economy is in "serious trouble."

Biden reconfirmed Trump appointee Jerome Powell as Chairman of the Federal Reserve. Some are speculating that Jerome Powell is planning to trigger a recession to tank the economy so the Democratic Party and President Biden take the blame.

Richard Wolff is an economist, co-founder of Democracy at work and the author of numerous books. His latest is "The Sickness is The System: Why Capitalism Fails to Save Us From Pandemics and Itself."

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Will the Feds Trigger A Full-Blown Recession? - Free Speech TV

Three Texas universities received the harshest, or "red light", rating from the Foundation for Individual Rights in Education, also known as FIRE. The national survey issued by the organization was published Tuesday and studies free speech policies at institutions of higher education.

The report included 481 U.S. four-year colleges and universities.

Red light-rated Texas schoolsUniversity of Texas, Dallas

Rice University

University of Houston, Downtown.

We disagree with this assessment," the University of Texas, Dallas said in a statement. "We make every effort to create an environment that supports and encourages free speech while protecting students, faculty and staff from harassment."

The University of Houston, Downtown said while they have long promoted constructive conversations on campus among students, faculty and staff, they do maintain email and anti-discrimination policies.

"Such policies are in place not to limit freedom of expression or speech but rather to ensure that UHD Community members can continue to work and learn in a safe environment," the university said in a statement.

Rice University did not respond to a request for comment.

Green light-rated Texas schools

Texas A&M University

What warrants a red light rating?

Laura Beltz, the author of FIRE's report said red rated schools have severely restrictive policies that constitute a serious threat to protected expression. She said the University of Houston, Downtown maintains an IT policy that students shall not send messages or make postings that could be construed as offensive. That could include anything from a rude tweet about a sports theme or an off-color joke. And that's protected speech.

FIRE said 86% of colleges restrict free speech in some capacity.

Middle of the pack

Beltz said 16 Texas schools, like Texas State University, scored a yellow rating, which is average. She said Texas State for example, prohibits information resource use for political purposes because the state school itself cannot legally advocate for politicians. But she said, students can.

So we flag this one, explained Beltz, because students could read this and think, oh, I'm not allowed to engage in any political expression over the university's IT resources, and that's just not the case.

The lone green light

Beltz said that among the rated Texas colleges, only Texas A&M earned a green light rating, meaning the school doesnt maintain any policies that compromise student expression. Only 12% of FIREs rated schools, 58 nationwide, scored a green light.

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3 Texas universities receive 'red light' rating for freedom of expression - KERA News