Daily Archives: June 26, 2022

Andrew Napolitano, syndicated columnist

Congress shall make no law abridging the freedom of speech, or of the press. First Amendment to the U.S. Constitution

When James Madison authored the language that would become the First Amendment, he and his colleagues feared that the new federal government might enact legislation that would interfere with personal liberty. That fear was shared by many in the 13 states that had just ratified the Constitution. Indeed, five of the states conditioned their ratification on the addition of a Bill of Rights.

Madison who had been the scrivener of the Constitution in 1787, was, by 1791, a member of the House of Representatives and the Houses resident expert on the Constitution was designated by his colleagues as the drafter of the Bill of Rights.

Madisons language in the First Amendments is clear; it only restrains Congress. Yet, recognizing the natural origins of the freedom of speech and aware of the universal governmental animosity to free speech, and taking account of the 14th Amendments imposition of due process upon the states, the courts expanded the scope of the First Amendment so as to impose its restraints upon all government including the president, the judiciary, the states and their subdivisions.

During the Civil War and World War I, Presidents Abraham Lincoln and Woodrow Wilson incarcerated folks for their speech and argued that the First Amendment only restrained Congress, not the president. Today, such an argument would be dismissed out of hand in any court.

Today, the First Amendment protects the freedom of speech from all government.

But the First Amendment only restrains the government. It does not restrain private persons, whom lawyers call nongovernmental actors.

The old counterpoint that the First Amendment does not permit shouting fire in a crowded theater is inaccurate. If the theater is owned by nongovernmental actors, the First Amendment plays no role whatsoever in regulating or permitting the shouting; the property owner does. There are sound reasons why shouting fire in a crowded theater is actionable under the law, but the First Amendment is not among them unless the government owns the theater.

I offer this brief background as a prelude to addressing the latest turn of events concerning social media platforms that suppress speech of which they dont approve. Because the social media companies are nongovernmental actors, they are free to infringe upon the speech of their clients and customers for any reason they choose that does not violate public policy, such as infringement based on race, gender, religion, sexual orientation or place of origin.

Yet, a nongovernmental actor that enters into a symbiotic relationship with the government may lose its freedom to suppress speech and be subjected to the same restraints as the government.

Thus, Twitter, for example, is free to suppress any speech and any speaker because of the content of the speech, unless it is doing the governments bidding. If it is, if Twitter is doing for the government what the government cannot do on its own suppress speech because of its content and if sufficient evidence of this is properly before a court, the court may very well invoke the state action doctrine, which will impose the restraints of the First Amendment upon Twitter.

I use Twitter as an example because last week two U.S. senators obtained and revealed emails between officials of the Department of Homeland Security and Twitter executives contemplating how Twitter can suppress speech that the DHS believes constitutes mis- or dis- or mal-information. This is dangerous for personal liberty and, frankly, dangerous for Twitter.

The courts have ruled that when a governmental actor here the DHS and a nongovernmental actor here Twitter are so intertwined for their mutual benefit, and someone here those whose speech Twitter has suppressed because of its content is harmed thereby, the courts will impose First Amendment restraints upon the nongovernmental actor.

Lets say you are in Yankee Stadium at a Yankees/Boston Red Sox game and you go to buy a hot dog from a vendor in the stadium and he refuses to sell to you because you are wearing a Red Sox baseball cap. (In New York, this happens!) Who has punished you for your speech, the private vendor, which is not restrained by the First Amendment, or New York City, which owns the stadium and hired the vendor and which clearly is restrained by the First Amendment?

Since the city provides customers for the vendor and the vendor provides products for the customers and your presence at the game benefits both, and because you dont know whose rule no Red Sox caps allowe is being enforced, there is obviously a symbiotic relationship between the vendor and the city, and thus the First Amendment will restrain the vendor from punishing your speech as if it were the city.

The same may very well be the case for Twitter. The emails released last week revealed the contemplation of a symbiotic DHS/Twitter relationship that, if proven, will harm Twitter severely and expose the government for its attacks on the freedom of speech.

The whole purpose of the First Amendment is to keep the government entirely out of the business of interfering with speech directly or indirectly. Moreover, if Twitter does the governments bidding, and the First Amendment is applied to Twitter, it will lose its private property-generated ability to suppress speech.

The interesting question is not what does the government gain; governments always want to suppress the speech they hate and fear. The real question is why a social media entity would do the governments dirty work for it. The probable answer is to retain its statutory immunity from liability for what its clients post.

This is what happens when you get in bed with the feds. You wake up with a constitutional headache as well as fleas.

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Because of the social media circus surrounding the Johnny Depp/Amber Heard defamation trial, it was easy to overlook one of the principalyet least likelyactors in the courtroom drama: the American Civil Liberties Union (ACLU), which ghostwrote and placed the 2018 Washington Post op-ed by Heard about surviving domestic abuse that was the basis of the trial.

It's only the latest example of how the group has in recent years strayed from its original mission of defending speech, no matter how vile.Awash with money after former President Donald Trump was elected, the ACLU transformed into an organization that championed progressive causes, undermining the principled neutrality that helped make it a powerful advocate for the rights of clients ranging from Nazis to socialists.

It questioned the due process rights of college students accused of sexual assault and harassment under Title IX rules. It ran partisan ads against Supreme Court nominee Brett Kavanaugh and for Georgia gubernatorial candidate Stacey Abrams, a move that current Executive Director Anthony Romero told The New York Times was a mistake. The ACLU also called for the federal government to forgive $50,000 per borrower in student loans.

As the ACLU recedes from its mission, enter another free speech organization, the Foundation for Individual Rights in Education, or FIRE. Founded in 1999 to combat speech codes on college campuses, FIRE is expanding to go well beyond the university and changing its name to the Foundation for Individual Rights and Expression. The group has raised $29 million toward a three-year "litigation, opinion research and public education campaign aimed at boosting and solidifying support for free-speech values."

"I think there have been better moments for freedom of speech when it comes to the culture," says FIRE's president, Greg Lukianoff. "When it comes to the law, the law is about as good as it's ever been. But when it comes to the culture, our argument is that it's gotten a lot worse and that we don't have to accept it."

Lukianoff tells Reason that FIRE's new initiatives have been in the works for years, but gained urgency during the COVID lockdowns. "Pretty much from day one, people have been asking us to take our advocacy off campus to an extent nationally," he says. "But 2020 was such a scarily bad year for freedom of speech on campus and off, we decided to accelerate that process." Despite 80 percent of campuses being closed and doing instruction remotely, Lukianoff says that FIRE received 50 percent more requests for help from college students and faculty. He also points to The New York Times' editorial page editor, James Bennet, getting squeezed out after running an article by Sen. Tom Cotton (RArk.) and high-profile journalists such as Bari Weiss, Andrew Sullivan, and Matt Yglesias "stepping away from [their publications], saying that the environment was too intolerant."

FIRE is also expanding its efforts beyond legal advocacy and into promoting what Lukianoff calls "the culture of free speech." As Politico reports, it will spend $10 million "in planned national cable and billboard advertising featuring activists on both ends of the political spectrum extolling the virtues of free speech."

He says that people in their 40s and 50s grew up in a country where the culture of free speech was embedded in colloquial sayings and common attitudes. "Things like everyone's entitled to their opinion, which is something you heard all the time when we were kids. It's a free country, to each their own, statements of deep pluralism, like the idea that [you should] walk a mile in a man's shoes," he explains. "All of these things are great principles for taking advantage of pluralism, but they've largely sort of fallen out of usage due to a growing skepticism about freedom of speech, particularly on campus, that's been about 40 years in the making."

Lukianoff has nothing negative to say about the ACLU (in fact, he used to work there) and stresses that FIRE has worked with the organization since "day one" and continues to do so. But unlike the ACLU, FIRE isn't at risk of turning into a progressive advocacy organization, partly because its staff is truly bipartisan.

"This is the first nonprofit I ever worked for where you had people who actually voted for different major-party candidates. When I worked at the ACLU in 1999, people voted for the Democrats or the Green Party," he says, noting that he is himself a liberal. But at FIRE, he continues, "My executive director is a Republican and an evangelical, a fact of which I am extremely proud."

That pluralistic pride extends to the groups funding FIRE, too. He says that critics, especially on Twitter, point to support his organization receives from "conservative and libertarian foundations" as if that invalidates its work. Yes, they give FIRE money, he says. "And you should be very proud of them, because we routinely defend people who hate their guts and we never get any foundation saying that they're taking back our funding."

Lukianoff thinks that despite the rise of cancel culture, most Americans still understand the value of free speech, but they need to be encouraged to stand up for it. FIRE's polling, he says, reveals that "it's really a pretty small minority, particularly pronounced on Twitter, that is anti-free-speech philosophically and thinks that people should shut up and conform."

For that reason, he's upbeat that FIRE will succeed in helping to restore belief in the value and function of free speech. "I think that once you start giving people permission to believe in small d democratic norms again, a lot of people are going to reveal their actual preferences. You know: 'I don't want you to fire Larry for who he voted for or a dumb joke [he] made on Twitter,'" he says. "Part of our job isreminding younger people about some of these principles because they haven't heard them before. But for most Americans, I think reminding them and giving them permission to believe what most Americans believeis a reason to be optimistic about it."

This video is based on a longer conversation I had with Lukianoff for The Reason Interview podcast. Listen to that here.

Photo Credits: Tim Evanson, CC BY-SA 2.0, via Wikimedia Commons; tedeytan, CC BY-SA 2.0, via Wikimedia Commons; Ludwig von Mises Institute, via Wikimedia Commons; LvMI, CC BY 3.0, via Wikimedia Commons; Stefani Reynolds/CNP / Polaris/Newscom.

Music Credits: "End To End," by Jonny Hughes via Artlist.

Interview by Nick Gillespie. Edited by Regan Taylor.

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Amber Heard, the ACLU, and the Future of Free Speech - Reason

This week's column from Windsor MP, Adam Afriyie.

Freedom of Speech is important, and I am glad that the Government is protecting it in universities

A key part of learning and education is getting exposed to new, different, and perhaps disagreeable ideas. This is how people are able develop diverse and varied viewpoints of their own, enriching wider society in the process. Rigorous debate - between academics, between students, and between academics and students, is a hugely important part of the university experience.

So its alarming to see that polling by the think tank Policy Exchange has shown that a number of current and retired academics are choosing to self-censor. As many as 32% of academics, who consider themselves right of centre politically, report feeling unable to express their views. Whilst it is never a divine right to spout whatever nonsense you please without social or professional consequences, it is a major problem if those in the academic field are effectively muzzled from pushing the boundaries of thinking and research.

This sort of backdrop allows for the very worst kind of echo chambers. One example is the extraordinary level of vitriol and aggression targeted towards those, like Professor Kathleen Stock, who merely express views on social issues which are in line with those of most right-minded people. We cannot allow ideological tyranny from a vociferous, intolerant, and frankly deranged minority. Therefore, I am glad that colleagues in the Government recognise this and are taking action to ensure universities have a duty to uphold free speech.

Similarly troubling is the influence of foreign powers on what is able to be discussed in universities. Its bad enough that elites in the Chinese Communist Party seek to control what citizens in their own country are allowed to say, but it is truly an outrage that students or academics in the UK do not feel fully able to speak out against them, or draw attention to their well-documented trampling of basic human rights. Again, it is right that, through the Higher Education (Freedom of speech) Bill, the Government is taking action to protect our universities from undue foreign influence.

We must do all we can to uphold the very British values of freedom and democracy and I want us to live in a society where we enjoy the experience of hearing views with which we disagree. One where we relish the chance to argue against those views and where we strive to offer a well thought-out alternative instead of resorting to censorship.

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In my view: Freedom of speech is important - Slough and Windsor Observer

Freedom of Speech and Diversity, Equity, And Inclusion cover

WASHINGTON (PRWEB) June 23, 2022

TheAssociation of Governing Boards of Universities and Colleges(AGB), the premier organization advocating strategic board leadership in higher education,today released Freedom of Speech and Diversity, Equity, and Inclusion on Campus: Considerations for Board Members and Chief Executives, a publication providing practical insights into why and how institutional leaders should prioritize freedom of speech as well as diversity, equity, and inclusion (DEI).

Colleges and universities are grappling with conflicts on campus related to a perceived tension between free speech and the advancement of DEItwo pillars of institutional missions. Freedom of speech is not only a fundamental right under the First Amendment but also the foundation of academic freedom. Simultaneously, the ongoing national reckoning on race and culture has called attention to the importance of DEI as a cornerstone of student success, institutional viability, and a more educated citizenry. Some DEI proponents claim that provocateurs abuse institutional commitments to free speech to promote ideas that exclude and marginalize vulnerable populations, which can hinder student success, demoralize campus communities, and present a reputational risk for the institution and higher education.

With an increasingly diverse student population, board members and chief executives should recognize their time-sensitive imperative to contextualize these issues for students while cultivating a diverse, equitable, and inclusive campus environment for faculty, staff, and students. The AGB publication offers practical advice for higher education leaders in anticipating, evaluating, and addressing these issues. Two such recommendations include ensuring that the institutions freedom of speech and campus climate policies are harmonized and calling on the administration to create response plans before anticipated conflicts break out.

This report comes at a time when students, administrators, lawmakers, and the public are grappling with questions about the nature and limits of free speech and the impacts that it has on social cohesion and individual well-being. According to the Foundation for Individual Rights and Expression (FIRE), multiple states have enacted laws to protect free speech rights for students and faculty at state institutions. At the same time, some of the same legislatures passed divisive concepts legislation, limiting the kind of conversations and the topics of discussion in classrooms. Against this backdrop, students appear to believe that a wide spectrum of speech at college is important, although there is nuance among racial groups. According to a 2022 survey by the Knight Foundation, students of color believe their speech is less protected. White students, on the other hand, report that diversity and inclusion sometimes conflict with their freedom of speech.

While a previous AGB publication focused on key points of consensus regarding the boundaries of free speech, this report goes a step further to help boards face instances where frictions arise between the institutional priorities of protecting free speech and advancing DEI.

AGB President and CEO Henry Stoever affirms the need for boards to be prepared to address these issues in a timely and comprehensive manner. Board members should not wait for a crisis on campus to focus on these issues. Upholding the principles of academic inquiry, civil discourse, and free speech is fundamental to college and university missions, he said. Its also critical for boards to model this behavior for the rest of the campus community. If boards cannot model inclusive behavior and champion free speech, how can they expect others to do so? It is too important to students success to ignore.

A complimentary e-book version of Freedom of Speech and Diversity, Equity, and Inclusion on Campus: Considerations for Board Members and Chief Executives is available for AGB members at AGB.org/Freedomofspeech.

About AGB The Association of Governing Boards of Universities and Colleges (AGB) is the premier membership organization that strengthens higher education governing boards and the strategic roles they serve within their organizations. Through our vast library of resources, educational events, and consulting services, and with 100 years of experience, we empower 40,000 AGB members from more than 2,000 institutions and foundations to navigate complex issues, implement leading practices, streamline operations, and govern with confidence. AGB is the trusted resource for board members, chief executives, and key administrators on higher education governance and leadership.

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New AGB Resource Prepares Higher Education Board Members to Balance Freedom of Speech with Diversity, Equity, and Inclusion - PR Web

Piers Morgan invited Larissa Kennedy onto Thursday's instalment of Piers Morgan Uncensored to debate a report which revealed students want more restrictions on free speech. The broadcaster and student clashed over the report and Larissa became frustrated she could not finish her points as she kept being challenged by Piers.

A new report by the Higher Education Policy Institute has revealed the dramatic surge in support for censorship by students.

The report revealed nearly 60 percent of those who were surveyed were opposed to unlimited free speech.

It also revealed almost 40 percent believed the Student Union should ban all speakers who might cause offence, and 76 percent want universities to get rid of any historical figures which might be deemed offensive.

Before the interview with Larissa got underway, Piers told viewers he believed the report was "absolutely nuts".

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Piers asked Larissa: "What's going on at universities and why have you all become the enemies of free speech?

"Why do you all get triggered by everything and why have you all become such snowflakes?

The student replied: "Yes we need to uphold freedom of speech but we also need protection so we can ensure our campuses are a safe space for evolving people.

"And if you want to ask what that means, it means if you have got someone with views which are obviously going to spark outrage, that you give a heads up to the people coming."

The TalkTV host explained he was allowed to challenge Larissa on her views before he branded the student "ageist" after she told him he had not been in education since he was 19 years old.

"You're the snowflake here, you're the snowflake here," she said. "All I am saying is how can you know what is going on at universities?"

Piers clapped back and said he understood what is going on from the report by the Higher Education Policy Institute.

"Can I ask you a question without you getting offended?" Piers asked Larissa as she rolled her eyes at him.

"I'm not offended, you could not offend me if you tried," Larissa added.

Piers asked Larissa what her idea of free speech was and she replied: "My idea of free speech is people being able to express themselves whether that is through speakers on campus or through protests."

The pair left on a sour note after they clashed over whether Larissa would want Harry Potter author JK Rowling to be a guest speaker at a university.

Piers Morgan Uncensored continues on weeknights at 8pm on TalkTV.

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'What's the point inviting me on!' Piers Morgan and student erupt in free speech row - Express

Binance CEO Changpeng Zhao has weighed in on the heated free speech debate that has consumed social media.

The company is one of a handful that pledged funds to "free speech absolutist" Elon Musk's bid to take Twitter private, promising $500 million. Zhao told Bloomberg in a lengthy interview published this week that he's all for the cause.

"We want to support free speech," Zhao said, before Bloomberg asked if that sentiment applies to his company's decision to sue Forbes in 2020 for defamation over a report saying Binance was dodging regulation. (The suit was later dropped).

To bring the suit, Binance hired lawyer Charles Harder, who's best known for teaming up with billionaire investor Peter Thiel in his fight against Gawker Media that eventually bankrupted the outlet.

"Free speech is very hard to define," Zhao said in the interview, maintaining that the article is inaccurate. "I've never talked to Charles Harder. Our team handled it."

Free speech has been a key driver in Musk's acquisition of Twitter. The Tesla and SpaceX billionaire has been vocal about his desire to ease Twitter's policies on harmful content. The platform and its moderation decisions have been thrust into a culture war as conservative figures claim Big Tech is stifling their freedom of speech by flagging and removing posts that break their rules.

Zhao also said the suit had with Binance's decision to invest $200 million in Forbes' plans to go public via a special purpose acquisition company, or SPAC . The deal may be scrapped, however, as The New York Times reported in late May, after investors showed a decline in interest in the deals.

Zhao, who is worth $18.5 billion, also discussed with Bloomberg his company's mission and his stance on money. The outlet spoke to former Binance employees and investors who described the iron grip that Zhao has over his company.

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Binance CEO says 'free speech is very hard to define' - Business Insider

Commentary

The Supreme Courts decision in New York State Rifle and Pistol Assn. v. Bruen (pdf) was a signal victory for the right to keep and bear arms. Reading Justice Clarence Thomass opinion for the court is a rich journey through constitutional law and history. The opinion may become a SCOTUS classic.

However, the case has implications more important stillimplications that go well beyond the Second Amendment. Amid all the noise surrounding the courts holding, you probably wont read about those implications anywhere but here.

First, though, Im delighted to report that Justice Thomas gave due credit to the work of Dave Kopel, my Independence Institute colleague who is probably the leading Second Amendment scholar on the face of the planet.

Most of the Supreme Courts constitutional-rights precedents date from the 20th century, when progressive justices dominated the bench. Those justices usually didnt pay adequate attention to the historical meaning of the Constitutions words and phrases. They usually didnt inquire, for example, into the historical meaning of terms such as the freedom of speech.

Instead, they usually applied balancing tests. An early example was the 1944 case that upheld the mass detention, without charges or trial, of tens of thousands of American citizens of Japanese extractiona case I discussed in an earlier column for The Epoch Times.

The Constitution says explicitly that the government shall deprive no person of liberty without due process of law. It also says that before the writ of habeas corpus (the traditional remedy for unlawful imprisonment) is suspended, certain conditions have to occur. Yet in Korematzu v. United States (pdf), the court balanced away all those rights. It did so under what we now call the strict scrutiny test: Government may override even an explicit constitutional right with a law necessary to further goals that the justices think are strong enough.

After Korematsu was decided, the justices applied this balancing approach to free speech, free exercise of religion, and other constitutional liberties. Occasionally, as in some pornography cases, this approach shielded conduct the Constitution didnt really protect at all. More often, the balancing approach privileged government over individual citizens.

As for rights that liberal justices didnt think as important as free speech (such as economic liberties), the court applied balancing tests that empowered government even more.

To be sure, some parts of the Constitution do call for balancing. One example is the Fourth Amendment ban on unreasonable searches and seizures. But most parts of the Constitution reflect the documents own balances and compromises. There is no call for justices to replace those balances and compromises with their own notions of what is and isnt important.

Despite all the misleading ballyhoo about the Supreme Court now having a conservative majority, the current justices generally have continued to apply the precedents and methods invented by their liberal predecessors.

In 2008, the Supreme Court issued United States v. Heller (pdf). It ruled that the Second Amendment created an individual right to keep and bear arms. Lower federal courts then started applying balancing tests to the individual right. Even if a law or regulation exceeded governments traditional power to regulate firearm usage, judges still upheld it if they thought the law or rule was sufficiently important and narrowly tailored.

Justice Thomass opinionand remember, he was writing as a representative of the court not merely for himselfaffirms, however, that the scope of the right to keep and bear arms is fixed by the words of the amendment. The law is reflected in those words, not in some judges idea of what is important.

Of course, the opinion applies only to the Second Amendment. At this point, judges still may balance away other constitutional rights. Perhaps, however, his opinion marks the beginning of a return to a more accurate meaning of other rights as well.

Many lawyers and commentators have an annoying habit of trying to prove constitutional meaning with evidence far removed from the time when the Constitution was adopted. For example, they may argue that the Constitution reflects a rule of English common law that prevailed in the year 1400, even though the rule was abandoned long before the Constitution was ratified (178790) or the Bill of Rights was adopted (1791).

More commonly, they trot out evidence arising months, years, or even decades after the ratification was complete.

Unfortunately, this is not just a bush league error: Some of the most prestigious constitutional law professors do this sort of thing. The Supreme Court is sometimes complicit as welland Justice Antonin Scalias opinion in the Heller case is a good example. It never seems to occur to these people that the understanding of the Constitutions ratifiers could not have been influenced by events that hadnt yet happened.

Thomass opinion for the court in this firearms case recognizes that sometimes subsequent practice can clarify (liquidate) ambiguous phrases. But most cases are not in that category. One of the most refreshing parts of his opinion is his caution against evidence that is either too early or too late to be part of the constitutional bargain.

In a concurring opinion, Justice Amy Coney Barrett underscored this: [T]odays decision should not be understood, she wrote, to endorse freewheeling reliance on historical practice from the mid-to-late 19th century to establish the original meaning of the Bill of Rights. On the contrary, the Court is careful to caution against giving postenactment history more weight than it can rightly bear.

Another implication of Thomass opinion is more subtle. Heres some background:

In our legal system, the traditional way of construing most legal documents is to inquire into how the parties to the document understood its terms. Only when understandings conflict, or are unrecoverable, do the courts apply the words of the document as a third party would read them.

Those who wrote and adopted the Constitution expected it to be interpreted that way. We call this method original understanding (pdf). Examining how third parties would read the documentcalled original meaningis applied only if the original understanding cannot be recovered.

For reasons too complicated to review now, during the 1980s, constitutional commentators began to invert the traditional rule of interpretation. They applied original meaning at the expense of original understanding. Although the framers didnt write the document to be read that way, this focus on original meaning has become orthodoxy.

So its refreshing to report that, while Thomass opinion uses both concepts, it edges back toward the correct position: Of the Constitution, he writes, its meaning is fixed, according to the understandings of those who ratified it and the scope of the protection [of a provision in the Bill of Rights] is pegged to the public understanding of the right when the Bill of Rights was adopted in 1791.

Time will tell if the court builds on this view, but a foundation has been laid.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

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Robert G. Natelson, a former constitutional law professor, is senior fellow in constitutional jurisprudence at the Independence Institute in Denver.

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The Deeper Significance of Justice Thomas's Second Amendment Opinion - The Epoch Times