Daily Archives: July 4, 2023

The First Amendment was once an indispensable tool for protecting the rights of the marginalized. Throughout the 1950s and 60s, subversive artists and anti-war dissidents invoked it to neutralize state efforts to muzzle their voices. Civil rights groups and unions used it to invalidate laws enacted to criminalize protest and intimidate activists. Its no exaggeration to say that, without the shield the First Amendment provided, many progressive legislative endeavors would have been strangled in the cradle.

The Roberts Court, however, has turned that shield into a wrecking ball, using the First Amendment to take aim at the very laws that were enacted to protect the vulnerable.

303 Creative v. Elanis is but the latest swing of the wrecking ball. In that case, a 6-3 majority held that a Colorado anti-discrimination law that required a conservative Christian website designer to sell a wedding website to a gay couple violated the First Amendment prohibition against compelled speech. Per the majority: selling such a website expresses an implicit endorsement of same-sex marriage, and a state may never force someone who provides her own expressive services to abandon her conscience and speak [the states] preferred message instead.

The decision represents a sea change in First Amendment jurisprudence. As Justice Sotomayor wrote in a heated dissent, with this decision, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.

To be clear, the argument that anti-discrimination laws impermissibly compel speech is not new. Private schools resisted desegregation mandates on the grounds that such commands forced them to promote the belief that racial segregation is desirable. The Supreme Court rejected those arguments. Companies in the 1970s challenged laws requiring the equal admission and treatment of women on the grounds they altered the organizations character and message. The Supreme Court rejected those arguments as well. To paraphrase Justice Oliver Wendell Holmes famous utterance, just as my right to swing my fist ends where your nose beings, a bigots right to express their views used to end when it bumped up against the rights of minorities to enjoy equal access to education, employment, and the marketplace. That principle has now been upended.

Yet, the outcome of 303 Creative was also entirely predictable for those who have followed the Roberts Courts multi-decade hijacking of the First Amendment to further the conservative movements agenda.

Among the first victims of this courts First Amendment jurisprudence was campaign finance laws. In its 2010 decision, Citizens United, the Supreme Court held, for the first time, that corporations have the same rights to engage in political speech as individuals and nullified key limits on corporate spending, thereby ushering in the era of Super-PACs and dark money in politics. The court then shredded regulations designed to stop the mega-rich from buying elections. Among the laws it struck down were the so-called Millionaires Amendment that raised contributions caps for candidates who faced opponents rich enough to self-finance their campaign; a program that provided public matching funds to candidates who, after agreeing to abide by campaign limits, were outspent by opponents who raked in unlimited private money; and a Watergate-era law limiting the total amount of money an individual could contribute in an election cycle.

The idea that unlimited money might distort the political process, encourage corruption, or allow the rich to drown out the voices of the less well-off was dismissed as speculative, quaint, or irrelevant. Spending is speech, the court explainedand these laws unfairly penalized the rich for robustly exercising their First Amendment right to speak through their ample bank accounts.

Mark Joseph Stern

The Supreme Courts Blessing of Anti-LGBTQ+ Discrimination Will Haunt Gay Couples

Read More

Then the court came for medical privacy, siding with data-miners and pharmaceutical marketers who challenged a Vermont law that prohibited the sale of prescribing data to those groups without the prescribers consent. The law was supported by a voluminous legislative record showing that unregulated data-mining helped marketers manipulate doctors into prescribing unnecessary drugs and drove up health care costs. Nonetheless, the court held that, because the prohibition on data selling singled out data-miners and marketers, it engaged in improper viewpoint discrimination.

To be clear: the viewpoint being discriminated against was, buy my drugs. Reading the majority opinionwhich proclaimed that allowing the plaintiffs speech was a necessary cost of freedom youd be excused for thinking that the suppressed speech was high-brow political discourse, not a baldly transactional plea for business.

In 2018, the court used the First Amendment to strike down a law that public unions relied on to fund their activities and maintain membership levels. The law in question required non-union members who enjoyed the benefits of union representation to pay fair share fees to reimburse the union for its services. The Supreme Court had upheld that precise scheme four decades prior. But in Janus v. AFSCME, the court upended that precedentand the laws of half the statesby holding that the law compelled employees to subsidize private speech by unions, in violation of the First Amendment. With hyperbolic flare, Justice Samuel Alito quoted Thomas Jefferson: to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.

The Janus litigation was cooked up by conservative, anti-labor thinktanks to encourage free-ridingthe logic of the suit being: if all public employees get the main benefits of union membership, but only actual members have to pay fees, few will bother joining at all. And the strategy has worked: according to most recent estimates, Janus has resulted in a 20 percent drop in public union membership.

In the same term, in NIFLA v. Becerra, the court invoked the First Amendment to keep women in the dark about the availability of state-provisioned reproductive care. At the center of the dispute was a California law designed to protect women from being manipulated or misled by pro-life crisis pregnancy centers. Multiple investigations had shown that these centers used deceptive practices to dissuade women from getting abortions: unlicensed facilities posed as medical centers, and their staffdressed in white lab coatsscared unsuspecting women by claiming (falsely) that abortions increased the risk of breast cancer. In response, California passed a law requiring all centers to post a notice stating that California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. If the center was unlicensed, it would also have to post a notice stating that it was not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.

These notices did not express opinions; they expressed facts. They did not announce a view about abortions advisability, only on its availability. Still, the court found that the law ran afoul of the compelled speech doctrine. Writing for the majority, Justice Clarence Thomas held that by requiring the centers to give information about abortionthe very practice that petitioners are devoted to opposing the notice alter[ed] the content of the centers speech. The majority was equally unforgiving of the unlicensed notice provision, deeming it unduly burdensome and wholly disconnected from Californias informational interestnever mind the extensive legislative record attesting to the need for the precise information contained in the notice.

303 Creative is the logical continuation of this trend. It ignores the contextthe tragic history and continuing discriminationthat necessitated Colorados law in the first place. And it adopts an absolutist, almost fetishistic view of First Amendment that turns free speech into a trump card, real-world consequences be damned.

The court dresses these rulings in lofty admonitions about the evils of viewpoint discrimination and the sinful and tyrannical nature of compelled speech. But what the court is really doing is constitutionalizing its own, hyper-conservative viewpointone which sympathizes with the rich who robustly exercise their First Amendment right to speak through their wallets, even ifor perhaps becausesuch untrammeled expression effectively silences those with lesser means. It is a First Amendment jurisprudence which shows exquisite sensitivity to the psychic distress of the pro-life activists forced to inform vulnerable women about their reproductive options and the Christian website designer made to serve gay clientele, but a total disregard for the injuries suffered by women deprived of medical care or the stigma and humiliations felt by those who are refused service based on their sexual orientation.

A constitutional guarantee meant to constrain the state from trampling on the vulnerable is, before our eyes, being turned into a tool to entrench powerful interests and upend state laws enacted to protect the marginalized. As Justice Elena Kagan wrote in her Janus dissent, The First Amendment was meant for better things.

Read more:
The Roberts Supreme Court turns the First Amendment into a wrecking ball. - Slate

Im mostly done with my legal career. In 2015, after more than 20 years of full-time litigation, I hung up my courtroom spurs and moved into the world of writing and thinking for a living. But every now and then, I re-enter the fray. Last year I wrote an amicus brief in a case called 303 Creative L.L.C. v. Elenis, arguing that a wedding website designer had a First Amendment right not to speak. And on Friday the Supreme Court reached a decision in the case, ruling for the website designer and holding that the State of Colorado could not require her to design websites that, for example, celebrated same-sex weddings.

This case was not, as it has been widely described, about whether a website designer could refuse gay customers. That would be both illegal and immoral, and I would not participate in such a case. Indeed, the parties stipulated that the web designer, Lorie Smith, was willing to work with all people regardless of classifications such as race, creed, sexual orientation and gender, and she will gladly create custom graphics and websites for clients of any sexual orientation. She was simply not willing to design websites that contained messages that violated her religious beliefs.

The case was not about whether a business could refuse to provide goods or services but whether it could refuse to generate specific expressions with which it disagreed. Here the parties agreed that all of the graphic and website design services Ms. Smith provides are expressive and that websites and graphics Ms. Smith designs are original, customized creations that contribute to the overall messages her business conveys.

As a result, no one should think that the Supreme Court sanctioned, say, whites-only businesses or permitted a business owner to slam the door shut on gay and lesbian customers. Indeed, the majority opinion was written by the same justice, Neil Gorsuch, who wrote the majority opinion in Bostock v. Clayton County, which extended the reach of Title VII to protect gay and lesbian Americans from employment discrimination.

The 303 Creative case was instead about compelled speech. When could the government require a commercial provider of expressive services to say things she found objectionable? Could the government compel a portrait artist to paint a heroic picture of a white supremacist? Could the government compel a speechwriter to pen an anti-gay screed on behalf of a right-wing politician?

Under traditional First Amendment doctrine, the answer was a clear and emphatic no. The First Amendment doesnt just protect my right to say things I believe, it also protects my right not to say things I dont believe. As Justice Gorsuch wrote in the courts majority opinion, The opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong. And when one does encounter objectionable speech, he said, tolerance, not coercion, is our nations answer.

In ruling for Ms. Smith, the court didnt set any new precedent. It was a straightforward application of decades of cases protecting citizens from compelled speech. But these clear precedents were clouded by the culture wars. When one passionately supports a community or a cause, there is a natural human inclination to want to protect your speech while suppressing your opponents speech or in this case, your opponents right not to speak at all.

Make no mistake, this is a bipartisan phenomenon. As Ive written before, parts of red America have engaged in wholesale acts of censorship designed to suppress speech about race, sexual orientation and gender identity that many conservative Americans find distasteful. In the run-up to the Supreme Courts decision in 303 Creative, two different federal courts, in Tennessee and Florida, struck down restrictions on drag performances, holding that the states efforts to target drag shows violated the First Amendment.

Indeed, Florida has been a locus of unconstitutional culture warring. The administration of Gov. Ron DeSantis currently faces court injunctions against the governors efforts to override private social media corporations ability to moderate their own websites, regulate corporate diversity training and regulate university instruction regarding race.

A fundamental reality of American First Amendment law is that it is sustained and defended by outsiders, people who are typically unpopular in their own communities. Sometimes that lack of popularity is well earned and enduring. When American Nazis demanded to march through Skokie, Ill., for example, they deserved every drop of the public condemnation they received. But they still retained their constitutional right to speak.

But sometimes lonely stands look better over time. When two Jehovahs Witness sisters refused to say the Pledge of Allegiance in their public school classroom during World War II, they were decidedly unpopular. But their courage resulted in one of the most remarkable statements of constitutional principle in American history, from the Supreme Courts 1943 ruling in West Virginia State Board of Education v. Barnette: If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion, or force citizens to confess by word or act their faith therein.

In a nation as polarized as our own, the definition of outsiders can vary wildly, depending on where they live. In one community, conservative Christians may dominate, and be tempted to censor speech they dislike, to protect children or defend the common good. In other communities, those same Christians will find their own speech under fire as hateful or discriminatory.

The consequence is an odd legal reality, an artifact of our divided times. Christians and drag queens in different jurisdictions and in different courts are both protecting the First Amendment from the culture wars. Theyre both reaffirming a foundational principle of American liberal democracy: that even voices on the margins enjoy the same civil liberties as the powerful and the popular.

In his majority opinion, Justice Gorsuch stated the case well. In this case, he wrote, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance. The state does not possess such power. It must not possess such power. Otherwise the culture wars will consume the Constitution, and even our most basic rights to speak or not speak will depend on whether we can gain and keep political control. That is not the vision of American pluralism, and it is not the vision that will sustain a united, diverse American republic.

Read the original:
Opinion | How Christians and Drag Queens Are Defending the First Amendment - The New York Times

On the last day of its recent term, the Supreme Court decided 303 Creative v. Elenis. In my view, the Courts disposition was correct. But it was rendered more difficult by confusion over how the Constitutions First Amendment uses the terms the freedom of speech and the freedom . . . of the press.

As explained below, 303 Creative should have been treated as a press case, not as a speech case. If it had been so treated, the discussion of 303 Creatives commercial nature would have been unnecessary.

Background of the Case

Lorie Smith owns 303 Creative, a Colorado company that sells custom designs for web sites. (303 was Colorados original telephone area code.) Ms. Smith wanted to expand her business into designing wedding sites. However, she is a Christian, and she holds the view traditional among Christians, Jews, and Muslims that same-sex marriages violate Gods law.

Ms. Smith knew that the Colorado Civil Rights Commission has been very aggressive in enforcing its version of the Colorado Anti-Discrimination Act (CADA) against others of her faith. Readers may recall the Supreme Courts 2018 decision in the Masterpiece Cakeshop case, where the Court chastised the Commission for its anti-religious bias.

As a resident of Colorado, I am dismayed at the authoritarian turn this formerly libertarian state has taken on a wide range of issues. By way of illustration, in 303 Creative, both the Court of Appeals (which ruled for the state) and the majority opinion by Justice Neil Gorsuch (also a Coloradan) flagged the states official policy in this area: to crush all dissent from people like Ms. Smith. The CADAs purpose and history, Gorsuch wrote, also demonstrate how the statute is a content-based restriction . . . . . Eliminating such ideas is CADAs very purpose.

Moreover, as Gorsuch noted more obliquely, Colorado has expanded its expression-suppression mission far beyond traditional civil rights categories. CADA now privileges certain voluntary behaviors previously seen by most people as anti-social, including gender expression and outr hair styles.

The Commercial Problem

Much of the dispute in 303 Creative centered on the commercial nature of Ms. Smiths activity. The state argued (as paraphrased by Justice Gorsuch), this case involves only the sale of an ordinary commercial product and any burden on Ms. Smiths speech is purely incidental. Similarly, Justice Sonia Sotomayors dissent emphasized 303 Creatives commercial nature. She distinguished earlier rulings in favor of free speech by noting that the prior cases involved the rights of nonprofit expressive associations.

However, the Court held that the commercial nature of the firm was not dispositive because Ms. Smith does not seek to sell an ordinary commercial good but intends to create customized and tailored speech for each couple.

Modern First Amendment Law

Current free speech jurisprudence is mostly a product of the Courts 20th century First Amendment decisions. Those decisions relied very little on how the Founders understood the Amendments terms. Instead, 20th century Justices seem to have relied more on instinct and their own recent precedents. Where the First Amendment is concerned, that practice continues among most of the current Justices, as exemplified by this terms decision in Counterman v. Colorado.

Unfortunately, the lack of connection between modern jurisprudence and the original meaning of the First Amendment creates serious problems. I have written previously of the unnecessary confusion in modern anonymity/donor privacy cases. As explained below, another product of this lack of connection is the varying levels of protection afforded commercial and non-commercial writings.

Freedom of the Press

Of course, members of the founding generation were unfamiliar with electronic broadcastingthat is, radio, television, and the internet. But they were very familiar with the important distinction between (a) speaking directly and (b) speaking through a medium.

During the Founding-era, freedom of speech invariably referred to in-person communication. Protection for freedom of speech applied in legislative and other assemblies, in orations, and in verbal discourse between individuals.

By contrast, the law of freedom of the press (also commonly called liberty of the press) protected communication through media. The nature of the medium didnt matter: It could be a newspaper, an op-ed, a letter to the editor, a written circular, a poster (broadside), a sign, a leaflet, a book, or a pamphlet. The law of press freedom protected the publisher, editor, distributor, and author.

There were recognized legal limitations on both freedom of speech and of the press. However, the limitations applicable to one did not necessarily apply to the other. This was because of differences between speaking directly and speaking through a medium. For example, ones anonymity was protected when one spoke through a medium, but not when one spoke directly.

Additionally, it was more difficult to recover damages for spoken slander than for printed libel. The reason was explained this way: A defamatory statement made in person dissipated into air, but a defamatory statement communicated by a medium was preserved, often resulting in dissemination across distances of space and time.

Despite technological advance, these differences remain relevant today. An in-person insult is heard only by those present, and is not preserved in permanent form. Defamation on a website, written advertisement, or even a radio interview may be preserved indefinitely and be seen or heard by millions of people.

At one point, Justice Gorsuch seemed to acknowledge the continuity of principle: A hundred years ago, Ms. Smith might have furnished her services using pen and paper. Unfortunately, he did not recognize the implications of his comment. He added that Those services are no less protected speech today because they are conveyed with a voice that resonates farther than it could from any soapbox. Instead, he should have added that those services were, and are, protected as freedom of the press because, being communicated through a medium, they are conveyed with a voice that resonates farther than it could from any soapbox.

Commercial/Non-Commercial

During the Founding-era, freedom of the press was understood to protect for-profit activities and communications as much as any other activities and communications. Most newspapers were, after all, for-profit businesses. The protection extended to commercial messages. As Thomas Bradbury Chandler, a prominent American Tory, wrote in 1775, A free press is the channel of communication as to mercantile and public affairs (emphasis added). A March 28, 1788, article in a New Hampshire newspaper described the value of newspapers largely by referring to their business content:

In [newspapers] we find many interesting thoughts in . . . agriculture, and commerce . . . The merchant learns the general state of trade, hears the prices current . . . thus he and the insurer are mutually advantaged . . . . The artist hears of employ[ment] or presents an advertisement of the various things he has for sale . . . .

The First Continental Congress also officially emphasized the very broad sweep of liberty of the pressfar beyond mere politicsin its Letter to the Inhabitants of the Province of Quebec (1774).

Indeed, in three decades of Founding-era study, I have never come across any suggestion that commercial communication was entitled to less protection than other forms of expression.

Conclusion

Once we understand that Ms. Smith was exercising freedom of the press rather than freedom of speech, the for-profit status of her firm becomes irrelevant. Even today, we know that government may not compel a for-profit newspaper, for example, to publish unwelcome content. The Supreme Court so held in Miami Herald v. Tornillo.

By parity of reasoning, government may not compel Ms. Smith to create websites for same-sex weddingsor for any other kind of wedding she may object to.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. To join the debate, please email us atinfo@fedsoc.org.

Read more from the original source:
With an Originalist Understanding of the First Amendment, the 303 ... - The Federalist Society

The Supreme Court ruled on Tuesday that the First Amendment imposes limits on laws that make it a crime to issue threats on the internet, saying that prosecutors must prove that a Colorado man who had sent disturbing messages to a singer-songwriter had acted recklessly in causing emotional harm.

The state must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence, Justice Elena Kagan wrote for five justices in the 7-to-2 decision.

Justice Kagan acknowledged that true threats, like libel, incitement, obscenity and fighting words, are not protected by the First Amendment. But she said the risk of chilling protected speech warranted imposing an added burden on prosecutors.

The speakers fear of mistaking whether a statement is a threat; his fear of the legal system getting that judgment wrong; his fear, in any event, of incurring legal costs all those may lead him to swallow words that are in fact not true threats, she wrote.

The case arose from the fixation of the defendant, Billy Counterman, with a singer-songwriter identified in court papers as C.W. He sent her many messages on Facebook, opening new accounts when she blocked him.

Youre not being good for human relations, one message said. Die. Dont need you.

Another asked, Was that you in the white Jeep?

Justice Kagan wrote that the messages put C.W. in fear and upended her daily existence, adding, She stopped walking alone, declined social engagements and canceled some of her performances, though doing so caused her financial strain.

Mr. Counterman was prosecuted under a Colorado law that made it a crime to send repeated communications that would cause a reasonable person to suffer serious emotional distress and did cause such harm. He was convicted and sentenced to four and a half years in prison.

The Supreme Court vacated the conviction and returned the case to the lower courts, where prosecutors may decide whether to retry the defendant under the more demanding standard.

Lawyers for Mr. Counterman had argued that the law violated the First Amendment because it did not require proof that he intended to cause the distress.

The notion that one could commit a speech crime by accident is chilling, they wrote in a Supreme Court brief. Imprisoning a person for negligently misjudging how others would construe the speakers words would erode the breathing space that safeguards the free exchange of ideas.

Lawyers for the state responded that it was enough to look at the words in question, how they were conveyed and the response they elicited. The speakers subjective intent, they said, does not matter.

Justice Kagan analyzed the question by examining how the Supreme Court had treated other categories of unprotected speech, notably libel. Noting that public figures must show at least reckless disregard of the truth meaning subjective awareness of probable falsity to prevail in libel cases, she said something similar was required in true-threats prosecutions.

In the context of threats, she wrote, quoting an earlier opinion, recklessness means that a speaker is aware that others could regard his statements as threatening violence and delivers them anyway.

But she added that prosecutors were not required to prove that Mr. Counterman intended the harm.

As with any balance, she wrote, something is lost on both sides: The rule we adopt today is neither the most speech-protective nor the most sensitive to the dangers of true threats.

Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Brett M. Kavanaugh and Ketanji Brown Jackson joined Justice Kagans majority opinion.

Justice Sonia Sotomayor, joined for the most part by Justice Neil M. Gorsuch, agreed with Justice Kagans bottom line but for different reasons. She said she would analyze the case as involving stalking rather than threats.

Justice Clarence Thomas issued a brief dissent that repeated his call to reconsider New York Times v. Sullivan, the landmark 1964 libel decision interpreting the First Amendment to make it hard for public officials to prevail in libel suits.

It is thus unfortunate, he wrote, that the majority chooses not only to prominently and uncritically invoke New York Times, but also to extend its flawed, policy-driven First Amendment analysis to true threats, a separate area of this courts jurisprudence.

In a second dissent, Justice Amy Coney Barrett, joined by Justice Thomas, wrote that an objective standard was sufficient in true-threats prosecutions.

The bottom line is this, she wrote, quoting phrases from Justice Kagans opinion. Counterman communicated true threats, which, everyone agrees, lie outside the bounds of the First Amendments protection. He knew what the words meant. Those threats caused the victim to fear for her life, and they upended her daily existence. Nonetheless, the court concludes that Counterman can prevail on a First Amendment defense. Nothing in the Constitution compels that result.

Justice Barrett suggested that Justice Kagans position in the case, Counterman v. Colorado, No. 22-138, was unprincipled.

The reality, she wrote, is that recklessness is not grounded in law, but in a Goldilocks judgment: Recklessness is not too much, not too little, but instead just right.

Responding in a footnote, Justice Kagan did not appear offended. In law, as in life, she wrote, there are worse things than being just right.

See the original post here:
Supreme Court Puts First Amendment Limits on Laws Banning ... - The New York Times

The following is the opinion and analysis of the writer:

The recent flurry of legislation intent on banishing abortion in the aftermath of the Dobbs decision reversing Roe v. Wade epitomizes the unceasing disdain the religious right has long held for the separation of Church and State as set forth in the First Amendment. This foundational principle affirms that competing ideologies are equal in status provided they remain non-intrusively within their own domains without violating the rights of others. But those devoted to the religious doctrine of the Divine origin of life feel justified in overruling this paradigm of democracy, convinced that their intolerant interpretation is divinely sanctioned.

In the crusade against abortion the indispensable assertion most often advanced in support of this assumed moral entitlement is the evidence-starved pronouncement that lifeor soul, in religious vernacularoriginates at conception. Although advocates of this arbitrary claim find it self-evident, they unhesitatingly appropriate for their purposes the mundane scientific fact of genomic uniqueness at conception as proof of personhood. This uniqueness criterion, as well call it, intended to designate definitively an actual, as opposed to potential individual, merely demonstrates that conception creates a singular genetic configuration out of all possible permutations of DNA. Nonetheless, this is taken as sufficient to establish conception as the point of origin for the soul.

Taking them at their word, we can immediately invoke the devastating challenge to their thesis presented by the potential for human cloning. Moral and ethical concerns aside, cloning technology relies on the full genetic complement of the genome of non-reproductive cells to provide the blueprint for new life, bypassing conception altogether. Regardless of whether this capability is ever exploited, its potential to conjure new humans complete with souls out of nowhere delivers a fatal blow to the conception claim.

With this problematic counterexample in full view, questions naturally abound. Where does the soul reside prior to cloning while the donor cell idles in its day-to-day existence? Since it seems that any proper DNA sequence, in principle, can be awakened to release a novel soul, what then are we to make of the uncountable abundance of random digital strings that happen to code for the genomes of purely theoretical humans? Should these be regarded as new life under the uniqueness criterion? Is there a pre-conception Limbo? And while were at it, what about identical twins? Do they somehow share a soul?

There is an outrageous absurdity bellowing forth from these speculations that belies the basis for belief in any special standing for embryos. Attempting to bestow sacred status upon them by arguing from their Divine origins is question begging at its worst. And yet, it is this arbitrarily exalted status founded entirely on religious dogma that presents the controlling impediment to womens reproductive freedom. A proper application of the First Amendment should categorically exclude from consideration such unsubstantiated claims of priority that must be regarded by their very nature as non-secular tenets lacking legitimacy and belonging exclusively to the domain of religious opinion. There is no conceivable constitutional justification that entitles this proselytization to hold sway in deciding matters of ultimate personal privacy.

The true value of human life does not lie in the biochemistry of genetics, or in any arbitrarily defined stage of the life cycle of a cell. Nor does it derive from wishful transcendental designations deeply rooted in cultural indoctrination, but emerges naturally out of the meaning with which life is imbued by us all as full participants pursuing our innate right to self-determination. Its embodiment is the collective expression of our intimate personal experience of the human condition that is so much more than the rudimentary origins of our existence. The reasoning mind readily appreciates that this is the true uniqueness that deserves prioritythe value worth preserving and defending against unjust burdens imposed by unenlightened ideologies. This is the very essence of the First Amendment.

Robert Gavlak is a lifelong Tucson resident.

Get local news delivered to your inbox!

Excerpt from:
Local Opinion: Choice is a First Amendment right. - Arizona Daily Star

The first part in this series provided analysis of the provisions in the Biden Administrations U.S. National Strategy to Counter Antisemitism that address anti-Semitism in the context of education. The second part analyzed the proposals plan to combat anti-Semitism in pop culture. This final part discusses the plans approach to fighting anti-Semitism online.

Bidens strategic plan proposes several problematic ideas with respect to combating anti-Semitism online. While there is no doubt bigotry is present online just as it is offline, government pressure on online platforms to censor is not the answer. Perhaps most shockingly, the plan calls on Congress to remove the immunity online platforms enjoy under federal law (Section 230) for content others post on their platforms. The plan states:

Congress should remove special immunity for online platforms. This should include removing immunity if an online platform utilizes an algorithm or other computational process to amplify or recommend content to a user that promotes violence, or is directly relevant to a claim involving interference with civil rights or neglect to prevent interference with civil rights.

This proposal goes far beyond addressing anti-Semitism and represents a full scale attack on Section 230 by fundamentally altering the governments ability to regulate all expression online. After all, it is Section 230s promise of immunity which this plan proposes removing that checks the governments ability to incentivize social media platforms and internet service providers to restrict user speech online.

The Biden Administration issued a strategy document for fighting anti-Semitism in education, sports, pop culture, and online.

Read More

This proposal is also unconstitutional. First, as we have argued in our Statement on Free Speech and Social Media, [a]ny government intrusion into platforms editorial discretion threatens the platforms own expressive rights under the First Amendment and potentially that of other speakers. But also, the proposal suggests that an online platform should lose its immunity if it merely utilizes an algorithm or other computational process to amplify or recommend content to a user that promotes violence, or is directly relevant to a claim involving interference with civil rights or neglect to prevent interference with civil rights.

The government may not selectively strip immunity from platforms for promoting or recommending posts with expressions of viewpoints it doesnt like.

The Supreme Court just held that social media platforms are not liable for violent, terrorist acts perpetrated by others on claims that platforms had aided or abetted the terrorism simply by setting up their algorithms to display content relevant to user inputs and user history.

Whats more even if a social media platform could be held liable for hosting or using an algorithm that promotes illegal content expression that promotes violence does not meet the Supreme Courts exacting test for what constitutes unprotected incitement as stated in the landmark case of Brandenburg v. Ohio. And there is no credible argument that stripping a platform of immunity for recommending content to a user that is directly relevant to a claim involving interference with civil rights content that does not fall into any of the limited exceptions to the First Amendment is constitutionally permissible.

The plan proposes changing the law to allow for the removal of a platforms immunity for amplifying or promoting any content on the topic of civil rights. Platforms have a First Amendment right to use algorithms that promote any speech that is protected under the First Amendment.

Addressing anti-Semitism and other forms of bigotry, whether it be ineducation,pop culture, or online, is an important goal, but when a plan relies on censorship, the ends cannot justify the means.

But the strategic plan doesnt stop there. It also asks online platforms to adopt zero-tolerance terms of service for hate speech, including antisemitism. This would apparently mean adopting policies to [p]ermanently ban repeat offenders, both personal accounts and extremist websites. And it calls on them to [e]ncourage and support trusted community moderators who receive dedicated, ongoing training in hate speech and bias, including antisemitism and its tropes.

This series is an analysis of provisions in the Biden Administrations U.S. National Strategy to Counter Antisemitism that address anti-Semitism in education, pop culture, and online.

Read More

Who are these trusted moderators who we should all rely on to judge whether speech is sufficiently hateful to warrant banishment? This is inherently unworkable given there is no agreed upon definition of hate speech. Plus, as there is no hate speech exception to the First Amendment, the plan essentially amounts to the government urging private actors to censor speech in ways the government cannot directly.

Addressing anti-Semitism and other forms of bigotry, whether it be in education, pop culture, or online, is an important goal, but when a plan relies on censorship, the ends cannot justify the means. Its disappointing that this plan, and the Department of Educations track record and latest actions, demonstrate an unacceptable willingness to censor.

FIRE will continue to monitor the administrations actions focused on combating anti-Semitism and other forms of bigotry to ensure such measures, however laudable in their aim, do not encroach on fundamental First Amendment rights.

Read the original post:
Biden Administration's plan to combat anti-Semitism online would ... - Foundation for Individual Rights in Education