Daily Archives: January 12, 2024

College students will soon be returning to campus, many with a new and growing awareness of campus codes regulating speech and behavior. Meanwhile, administrators continue to reexamine these codes as they walk a tightrope between the constitutionally protected right to speak one’s mind and their institutions’ responsibility to provide a safe environment focused on their educational missions.

This is not, however, a zero-sum game. Colleges and universities can provide a safe learning environment while maintaining a solid commitment to free speech — and it is essential that they do so.

The spotlight on campus speech codes followed campus protests that teemed with venomous speech following the Oct. 7 attacks on Israel by Hamas and the Israeli military response. Emotions ran high as the participants hurled invectives and sometimes threats at one another, each accusing the other of hateful speech — and all invoking the First Amendment as the ultimate protector of their political speech.

It is an interesting accusation in that the First Amendment is mainly oblivious to hate speech and has a limited footprint on private college campuses. The purpose of the First Amendment is to provide a protected space to speak. That’s all.

The First Amendment does not provide moral guidance. It has no mechanism to distinguish truth from falsity or loathsome from charming. Whether motivated by politics or malice, if the hateful speaker does not incite the audience to lawless action, does not intentionally put the victim in realistic fear of life or limb and does not create an atmosphere of persistent intimidation, they will not be stopped or punished by the government.

What’s more, the Constitution only governs the relationship between the government and the populace. Private colleges and universities are not governmental entities; they can censor speech without constitutional backlash. 

Private colleges rely upon their educational mission statements and codes of conduct to design regulations that affect speech on campus and in the classroom. Few private colleges ignore the constitutional rules protecting freedom of speech, but they limit speech much more than is possible under the First Amendment. Public colleges are governmental entities, so they are more constrained by constitutional principles in their ability to monitor and restrict speech on campus. As a result, private colleges can ban whatever they define as hate speech — even speech intended as part of a political protest — if it creates an atmosphere that disrupts learning.

Somehow, the three presidents from elite American universities who were called to task at a congressional hearing in early December utterly failed to adequately explain the limits of First Amendment freedoms on campus. Two of them have since lost their jobs in part because of that failure.

When asked by Rep. Elise Stefanik (R-N.Y.) whether calling for the genocide of Jews violates the universities’ codes of conduct, the college presidents offered only evasion and doublespeak. 

The correct answer to Rep. Stefanik’s question is yes. If calling for the genocide of Jews was intended and received as a threat to the life or liberty of Jews, it is a violation of both the Constitution and the schools’ codes of conduct. And yes, if calling for the genocide of Jews is part of a steady barrage of venom intended to intimidate and harass Jewish students in their place of learning, it is a violation of both the Constitution and the schools’ codes of conduct. And yes, if calling for the genocide of Jews is disruptive of the educational environment, it is a violation of the codes of conduct, even if it would otherwise be constitutionally protected political speech.

The presidents’ shockingly inarticulate testimonies have rippled across campuses all over the U.S. and have led to the ban or suspension of pro-Palestinian groups from campuses, as well as calls for increased surveillance of speech on campuses. These actions may appear to keep campuses quiet and peaceful, but they will also reduce debate and intellectual engagement. 

While the First Amendment does not offer robust protection on college campuses, the theory on which it is built should not be ignored. The First Amendment serves its highest purpose as the guardian of the marketplace of ideas. The hope is that better, more robust ideas will survive the competition, and dangerous, weaker ideas will die. It is fair to argue that the theory does not always match reality, but it works better than censorship.

Censorship is particularly ill-advised on a college campus, where students learn critical-thinking skills that will help them distinguish between well-supported and poorly supported arguments. Overly restrictive enforcement of campus codes will impede the ability of students to develop those essential skills. Worse still, silencing public expression of angry voices will do little more than drive rage and hatred underground, which is far more dangerous to students and to the community at large.

Colleges and universities should maintain their commitment to their educational missions. Of course, speech that threatens, intimidates, harasses and disrupts the educational environment should be punished. But political debate should remain protected — even when it includes hyperbolic and offensive speech. Debate and disagreement is a teaching tool, not a scourge.

Lynn Greenky is a Professor Emeritus at Syracuse University, where she taught a course about the First Amendment for 10 years. She is the author of “When Freedom Speaks.” Follow her on Instagram @lynngreenky.

The rest is here:
Hate speech, the First Amendment and the college conundrum - The Hill

COLUMBIA The state House is pursuing a pair of bills to require users and content creators to verify their age to access social media and adult entertainment websites, drawing pushback over free speech concerns.

The two measures, both in the House Judiciary Committee, would create new regulatory requirements for pornographic websites and social media platforms to mitigate users under the age of 18 from accessing potentially harmful content.

The move comes amid a broader national conversation around child safety on the internet.

For adult entertainment websites, all users will be required to provide identification verifying they are at least 18 years of age in order to gain access.

For social media sites, social media providers will be required to obtain parental consent for all users under the age of 18, and subject underage users to stringent privacy and content management settings.

Proposed regulations include everything from bans on advertising in underage users' feeds torestrictions on personal data collection. Other suggestions include mandates allowing parents the option to limit the amount of time their children can spend on a website on any given day.

Both bills are not original to South Carolina. Similar bills requiring age verification on pornographic websites have been passed in other states, while court challenges to similar legislation enacted in states like Louisiana, Texas and Utah have so far been unsuccessful.

In his Jan. 11 testimony on the bill, state Attorney General Alan Wilson said his office would commit to defending any enacted law in court, saying he believed South Carolina was "primed" to pass a law of its own.

The bill, which proponents say is necessary to mitigate detrimental impacts social media can have on young people's physical and emotional well-being, is not without obstacles.

In Washington, D.C., social media companies like Meta are already working to broker a federal regulatory framework for social media companies that puts the onus for age verification on companies like Microsoft and Apple over concerns for user privacy amid concerns.

The companies are also trying to police themselves internally with many of the policies recommended in South Carolina's legislation a movesome seeas an effortto avoid having to comply with a mish-mash of state-level age verification requirements before Congress has had an opportunity to act.

"Individual apps like ours don't have to collect what could be potentially sensitive identifying information,"Caulder Harvill-Childs, a lobbyist for Meta, said during the Jan. 11 Senate hearing.

The pornography bill could yield result similar concerns for user privacy.

Rather than comply with state-enacted age verification requirements, Aylo an adult entertainment conglomerate that owns popular pornography sites like PornHub has already suspended user access in states like Mississippi, Utah, North Carolina, Louisiana, Virginia and Montana over concerns those respective states' verification requirements pose a risk to user privacy.

"While safety and compliance are at the forefront of our mission, giving your ID card every time you want to visit an adult platform is not the most effective solution for protecting our users, and in fact, will put children and your privacy at risk, an announcement provided to the website's users inMontana and North Carolina reads.

Others argue the legislation could pose constitutional issues.

In ensuring social media users are as old as they say they are, South Carolina's law could potentially require every social media user to verify their age with the platforms, a line conservative legal scholar and NetChoice vice presidentCarl Szabo told lawmakers could violate longstanding constitutional protections for anonymous speech on the internet.

When the laws have been challenged, enacting states have faced significant pushback. To date, NetChoice an internet trade group that favors minimal regulations has filed lawsuits against states including California, Arkansas and Ohio that have passed similar age-verification requirements. In each case, they managed to secure temporary injunctions to prevent the laws from going into effect.

"I already know how these constitutional issues play out because you've already seen them play out," Szabo said in an interview. "It's like doing the same thing time and time again and expecting a different outcome. You can't end-run the First Amendment."

"I want to get a solution that works," he added. "Not a solution that bans speech."

Both sides agree that something needs to be done. In 2023, the United States Surgeon General issued a public health advisory outlining multiple detrimental impacts that excessive social media consumption can have on children. Much of the cause, their office wrote, can be attributed to the proliferation of "extreme, inappropriate, and harmful content that continues to be easily and widely accessible by children and adolescents."

"Our children and adolescents dont have the luxury of waiting years until we know the full extent of social medias impact," the office wrote in its report. "Their childhoods and development are happening now."

Those who work directly with South Carolina children say those factors make the case the legislation should go even further.

In his own testimony Jan. 11, Patrick Kelly president of the Palmetto State Teacher's Association and a teacher at Blythewood High School said he'd seen the negative influence of social media first-hand, from an incident where his students watched a school shooting in Florida play out in real time on social media to a recent incident where his daughter texted him scared of a potential school shooting threat that was posted on social media.

Kelly said social media companies should also be subject to strict content moderation policies to ensure children are not exposed to, or allowed to produce, incitements to violence, self-harm, school fights or pornographic materials.

If a parent showed up to a adult entertainment venue and the bouncer stopped the 12-year-old, we wouldn't want the 12-year-old to go in, even with parental consent," Kelly said.

Originally posted here:
SC weighs age requirement for social media, porn sites | Palmetto Politics - The Post and Courier

In Berkeley Talks episode 188, a panel of scholars discusses free speech on university campuses where things stand today, what obligation campus leaders have to respond to conflicts involving speech and the need for students to feel safe when expressing their own views.

"Issues of free speech on campus have been there as long as there have been universities," began Berkeley Law Dean Erwin Chemerinsky at a UC Berkeley event on Jan. 10. "There's no doubt that since Oct. 7, universities across the country, including here at Berkeley, face enormously difficult issues with regard to freedom of speech."

"Especially in these times where, and especially with this (Israel-Hamas) war, where people are feeling so hurt by words, and arguing that words or phrases mean you're antisemitic or Islamophobic, it's really challenging," said Berkeley Journalism Dean Geeta Anand. "The temptation when people are so hurt and in so much pain is to run from it.

"But in fact, I think we should do the exact opposite. At times, those are the moments where people will actually want to learn, and need to learn, and listen.

"So I think we should charge toward the conversations in these hard times, precisely because there are opportunities to learn so much. Because when people make this demand or that demand, they're often expressing a need to be heard and a need to have a voice in what's happening."

Panelists in this discussion included:

Geeta Anand, dean of Berkeley Journalism

Emerson Sykes, senior staff attorney, ACLU; adjunct professor, NYU School of Law

Howard Gillman, chancellor and professor of law, UC Irvine

Erwin Chemerinsky, dean of Berkeley Law (moderator)

Continue reading here:
Berkeley Talks: Free speech on campus in times of great division | Berkeley - UC Berkeley

WASHINGTON, D.C. Today, America First Legal (AFL), along with its co-counsel at Boyden Gray PLLC, filed a brief in the U.S. Court of Appeals for the Second Circuit supporting Douglass Mackeys right to free speech.

Douglass Mackey was convicted in federal court in New York for posting satirical memes on the internetunder the statute generally referred to as the Ku Klux Klan Act. This selective prosecution by the Biden Administrations Department of Justice (DOJ) comes amid the DOJs failure to charge progressive activists for doing the exact same thing and its larger efforts to prosecute and use the government against political opponents.

Speech about elections and political rivals even if misleading or inaccurate, and especially satirical speech is as old as democracy itself, yet no one ever thought Section 241 made that a crime. In its brief, AFL noted that it is telling that the government has cited no cases where section 241 has been applied to deceptive speech on any topic.

In its brief, AFL argues:

The governments application of Section 241 opens Pandoras box and effectively places no limitation on how it could be applied in the future. AFL argues that the governments interpretation of the word injure in this context is without support in the statute or historical practice. AFL is proud to continue the fight against government targeting of conservative free speech.

Statement from Gene Hamilton, America First Legal Vice President and General Counsel:

If you have any doubts about the current state of affairs in the United States, the Biden Administrations lack of respect for free speech, or the extent of the weaponization of the Department of Justice, the Biden Administration used the KKK Act to prosecute Douglass Mackey for posting memes on social media. This unprecedented prosecution could set the stage for even more prosecutions by the Biden Administration for speech with which it disagrees. This cannot stand, and we are proud to file a brief in support of Mr. Mackey, said Gene Hamilton.

Read the brief here.

Follow us on social media for the latest updates on America First Legals fight to protect your constitutional rights!

Twitter, Facebook, GETTR, Parler, Instagram

To schedule an engagement with America First Legal, please email [emailprotected].

Photo credit: zimmytws / Adobe Stock

See the original post here:
America First Legal Files Brief Defending Douglass Mackey's Right to Free Speech and Against Biden's Weaponization ... - America First Legal

The Indiana House Education Committee today heard HB 1002, a bill that sponsors claim will address antisemitism in Indiana but instead would censor student speech and stifle debate on an urgent political issue.

ACLU of Indiana Executive Director Chris Daley issued the following statement regarding HB 1002:

There is no doubt that antisemitism is a problem that must be addressed in Indiana. And the ACLU of Indiana supports all lawful efforts to combat it. Unfortunately, HB 1002 is unconstitutional. Students at public universities have the right to engage in political advocacy and speech-- no matter the viewpoint and no matter how controversial.

We take the weight and complexity of the challenges created by balancing free speech and safety seriously; sometimes that balance can feel unattainable. But free speech principles are the bedrock of academic freedom. And we believe it can be protected while also protecting individual Jewish students, faculty, and staff and student groups from impermissible harassment and discrimination.

Todays hearing comes less than a month after an Indiana University Professor was suspended for holding an event with the IU student group Palestine Solidarity Committee (PSC). Indiana University has justified the suspension, claiming that the professor was told by the administration that the PSC group could not hold the meeting due to an error in the room reservation. Three hundred Indiana University professors have since signed an open letter to the school opposing the suspension on academic freedom grounds.

In addition to opposing HB 1002 and other legislation that threatens students right to free speech on campus, the ACLU of Indiana will continue to monitor the ongoing situation at Indiana University to ensure the action taken by the University was not based on the content of the meeting or viewpoint of the professor in question.

Link:
Recent Events Threaten Free Speech on College Campuses: ACLU Responds - ACLU of Indiana

State Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington Washington D.C. West Virginia Wisconsin Wyoming Puerto Rico US Virgin Islands Armed Forces Americas Armed Forces Pacific Armed Forces Europe Northern Mariana Islands Marshall Islands American Samoa Federated States of Micronesia Guam Palau Alberta, Canada British Columbia, Canada Manitoba, Canada New Brunswick, Canada Newfoundland, Canada Nova Scotia, Canada Northwest Territories, Canada Nunavut, Canada Ontario, Canada Prince Edward Island, Canada Quebec, Canada Saskatchewan, Canada Yukon Territory, Canada

Zip Code

Country United States of America US Virgin Islands United States Minor Outlying Islands Canada Mexico, United Mexican States Bahamas, Commonwealth of the Cuba, Republic of Dominican Republic Haiti, Republic of Jamaica Afghanistan Albania, People's Socialist Republic of Algeria, People's Democratic Republic of American Samoa Andorra, Principality of Angola, Republic of Anguilla Antarctica (the territory South of 60 deg S) Antigua and Barbuda Argentina, Argentine Republic Armenia Aruba Australia, Commonwealth of Austria, Republic of Azerbaijan, Republic of Bahrain, Kingdom of Bangladesh, People's Republic of Barbados Belarus Belgium, Kingdom of Belize Benin, People's Republic of Bermuda Bhutan, Kingdom of Bolivia, Republic of Bosnia and Herzegovina Botswana, Republic of Bouvet Island (Bouvetoya) Brazil, Federative Republic of British Indian Ocean Territory (Chagos Archipelago) British Virgin Islands Brunei Darussalam Bulgaria, People's Republic of Burkina Faso Burundi, Republic of Cambodia, Kingdom of Cameroon, United Republic of Cape Verde, Republic of Cayman Islands Central African Republic Chad, Republic of Chile, Republic of China, People's Republic of Christmas Island Cocos (Keeling) Islands Colombia, Republic of Comoros, Union of the Congo, Democratic Republic of Congo, People's Republic of Cook Islands Costa Rica, Republic of Cote D'Ivoire, Ivory Coast, Republic of the Cyprus, Republic of Czech Republic Denmark, Kingdom of Djibouti, Republic of Dominica, Commonwealth of Ecuador, Republic of Egypt, Arab Republic of El Salvador, Republic of Equatorial Guinea, Republic of Eritrea Estonia Ethiopia Faeroe Islands Falkland Islands (Malvinas) Fiji, Republic of the Fiji Islands Finland, Republic of France, French Republic French Guiana French Polynesia French Southern Territories Gabon, Gabonese Republic Gambia, Republic of the Georgia Germany Ghana, Republic of Gibraltar Greece, Hellenic Republic Greenland Grenada Guadaloupe Guam Guatemala, Republic of Guinea, Revolutionary People's Rep'c of Guinea-Bissau, Republic of Guyana, Republic of Heard and McDonald Islands Holy See (Vatican City State) Honduras, Republic of Hong Kong, Special Administrative Region of China Hrvatska (Croatia) Hungary, Hungarian People's Republic Iceland, Republic of India, Republic of Indonesia, Republic of Iran, Islamic Republic of Iraq, Republic of Ireland Israel, State of Italy, Italian Republic Japan Jordan, Hashemite Kingdom of Kazakhstan, Republic of Kenya, Republic of Kiribati, Republic of Korea, Democratic People's Republic of Korea, Republic of Kuwait, State of Kyrgyz Republic Lao People's Democratic Republic Latvia Lebanon, Lebanese Republic Lesotho, Kingdom of Liberia, Republic of Libyan Arab Jamahiriya Liechtenstein, Principality of Lithuania Luxembourg, Grand Duchy of Macao, Special Administrative Region of China Macedonia, the former Yugoslav Republic of Madagascar, Republic of Malawi, Republic of Malaysia Maldives, Republic of Mali, Republic of Malta, Republic of Marshall Islands Martinique Mauritania, Islamic Republic of Mauritius Mayotte Micronesia, Federated States of Moldova, Republic of Monaco, Principality of Mongolia, Mongolian People's Republic Montserrat Morocco, Kingdom of Mozambique, People's Republic of Myanmar Namibia Nauru, Republic of Nepal, Kingdom of Netherlands Antilles Netherlands, Kingdom of the New Caledonia New Zealand Nicaragua, Republic of Niger, Republic of the Nigeria, Federal Republic of Niue, Republic of Norfolk Island Northern Mariana Islands Norway, Kingdom of Oman, Sultanate of Pakistan, Islamic Republic of Palau Palestinian Territory, Occupied Panama, Republic of Papua New Guinea Paraguay, Republic of Peru, Republic of Philippines, Republic of the Pitcairn Island Poland, Polish People's Republic Portugal, Portuguese Republic Puerto Rico Qatar, State of Reunion Romania, Socialist Republic of Russian Federation Rwanda, Rwandese Republic Samoa, Independent State of San Marino, Republic of Sao Tome and Principe, Democratic Republic of Saudi Arabia, Kingdom of Senegal, Republic of Serbia and Montenegro Seychelles, Republic of Sierra Leone, Republic of Singapore, Republic of Slovakia (Slovak Republic) Slovenia Solomon Islands Somalia, Somali Republic South Africa, Republic of South Georgia and the South Sandwich Islands Spain, Spanish State Sri Lanka, Democratic Socialist Republic of St. Helena St. Kitts and Nevis St. Lucia St. Pierre and Miquelon St. Vincent and the Grenadines Sudan, Democratic Republic of the Suriname, Republic of Svalbard & Jan Mayen Islands Swaziland, Kingdom of Sweden, Kingdom of Switzerland, Swiss Confederation Syrian Arab Republic Taiwan, Province of China Tajikistan Tanzania, United Republic of Thailand, Kingdom of Timor-Leste, Democratic Republic of Togo, Togolese Republic Tokelau (Tokelau Islands) Tonga, Kingdom of Trinidad and Tobago, Republic of Tunisia, Republic of Turkey, Republic of Turkmenistan Turks and Caicos Islands Tuvalu Uganda, Republic of Ukraine United Arab Emirates United Kingdom of Great Britain & N. Ireland Uruguay, Eastern Republic of Uzbekistan Vanuatu Venezuela, Bolivarian Republic of Viet Nam, Socialist Republic of Wallis and Futuna Islands Western Sahara Yemen Zambia, Republic of Zimbabwe

Read more from the original source:
First Amendment Coalition calls on city to avoid violating free speech - Ojai Valley News

Mild-mannered. Congenial. And always thought-provoking.

When it comes to free speech and other constitutional topics, that is professorRobert Posts calling card. He can be prickly, but in a salutary Socratic sense. You may agree with him (I have) or disagree with him (I have done that too), but he always pricks you to think. Any worthwhile understanding of free speech needs conceptual dissidents to prick us.

Recently, I watched a YouTube video titled, Virginia Law Review Symposium on Free Speech and Participatory Democracy. It was a lively and illuminating exchange of ideas by several noted First Amendment scholars: Vincent Blasi, Steven Shiffrin, Eugene Volokh, Frederick Schauer, James Weinstein, and Robert C. Post moderated by professor Lillian Bevier. It is well worth watching.

Among other things, I was taken by several things Robert Post had to say about a presumptive all-inclusive approach to protecting speech. At one point in those recorded remarks he said, Weve made the First Amendment virtually unavoidable as an issue in most forms of legal regulation. If true, weve constitutionalized almost everything.

When I wrote to Post to learn more, he directed me to his provocative yet thoughtful essay entitled, The Unfortunate Consequences of a Misguided Free Speech Principle. That essay is part of a forthcoming symposium in the academic journalDaedalus called The Future of Free Speech, edited by professors Lee Bollinger and Geoffrey Stone. Here are a few excerpts from that essay:

Pessimism about the future of free speech

There is growing pessimism about the future of free speech in the United States. This is surely a troubling state of affairs. But it can be cured only if we first correctly diagnose its causes. There is a widespread tendency to conceptualize the problem as one of free speech. We imagine that the crisis would be resolved if only we could speak more freely. The thesis of this essay is this diagnosis puts the cart before the horse. The difficulty we face is not one of free speech, but of politics. Our capacity to speak has been disrupted because our politics has become diseased. We misconceive the problem because American culture is obsessed with what has become known as the free speech principle. It is a principle that is widely misunderstood. Our misconceptions are as deep as they are consequential.

More speech is not always better

Whatever freedom of speech might signify, it does not mean that unrestrained expression is inherently desirable. It does not mean that more speech is always better. One can see this clearly if one imagines the limit case. Those who cannot stop talking, who cannot exercise self-control, suffer from narcissism; they do not exemplify the value of free speech. Unrestrained expression may be appropriate for patients in primal scream therapy, but scarcely anywhere else.

The problem with an abstract free speech principle

The difficulty with an abstract free speech principle is that it purports to set the value of speech, as well as the goods obtainable by speech, independently of the social context of speech.

[ . . . ]

By focusing abstractly on speech instead of on the concrete purpose of this practice, our theories of free speech encourage us to forget that the fundamental point of public discourse is the political legitimation of the state. Our public discourse is successful when it produces a healthy public opinion capable of making state power answerable to politics. Our public discourse is not successful merely because every speaker expresses his thoughts in an uninhibited way. Standard theories of free speech mistake means for ends.

American courts have ignored something basic

The appropriate balance between freedom and restraint must always be determined by the social practice within which communication is embedded. Public discourse is no exception to this generalization. At the present time American courts have lost track of this basic insight. They have developed strict transubstantive First Amendment doctrines that restrict speech regulation regardless of its context.

[ . . . ]

One of the very great dangers hanging over the future of free speech in the United States is the present tendency of the Supreme Court to extend to all speech the protections properly due only to public discourse, and thus to use the First Amendment to impose a libertarian, deregulatory agenda on ordinary state social and economic regulations. In the long run, the only sound defense against such abuse is to conceptualize the value of free speech squarely in terms of the discrete social practices that speech constitutes.

The future of a free speech illusion

We cannot now speak to each other because something has already gone violently wrong with our political community, which is to say with our antecedent commitments to a common political destiny. To conceptualize this problem as one of free speech is to imagine that the cure is simply to encourage more speech. It is to fantasize that the ties that bind us together will somehow be refreshed merely because we speak to each other more freely. But this is an illusion, a cruel mirage cast by the allure of a free speech principle that has somehow floated free from the social practices in which it should be embedded.

[ . . . ]

Our country is now so fragile, our democratic future so precarious, that every such misstep is fraught with danger. It is imperative that we arrive at a clear and accurate diagnosis of the disease that each day further corrodes our precious polity. It is time to open our eyes.

To be sure, there is more to professor Posts thoughts as expressed in his essay. I thus encourage readers to read and wrestle with it when published. Until then, the abbreviated conceptual pricks offered above must suffice.

The Supreme Court has declined a long-running legal challenge from X Corp., formerly Twitter, over whether it can publicly reveal US government demands for user data.X Corp. v. Garland was on a list ofdenied petitions released this morning. That leaves X with aMarch 2023 ruling that the First Amendment doesnt protect Twitter from limits on reporting national security demands a ruling civil liberties organizations say sets a disappointingly low bar for censorship.

Twitter filed itsoriginal suit in 2014, the year after whistleblower Edward Snowden revealed details of extensive secret US telecoms surveillance. In the wake of those disclosures, social networks won the option to report how many demands agencies like the Federal Bureau of Investigation had made, but thanks to government nondisclosure requirements only in extraordinarily broad ranges. Twitter sought to publish the exact number of requests it received within a six-month period, arguing that redactions demanded by the FBI overstepped the First Amendment.

The case is profoundly important on multiple levels. The restrictions here target core political speech at an absolutely critical point . . . and sweep broadly. Paul Clement

The case isMazo v. Way. The issue raised in it was whether a state that permits political candidates to engage in core political speech on the ballot may restrict that speech on the basis of content and viewpoint without satisfying strict scrutiny.

Paul Clement, a seasoned high Court advocate with an impressive record in First Amendment and other cases, was the counsel of record for the Petitioners. Here is how Mr. Clement summarized the case:

Thedecision below allows New Jersey to regulate core political speech at the elections critical moment, and to do so on the basis of content and viewpoint while insulating entrenched political machines from serious primary challenges. New Jersey allows candidates in primary elections to engage in political speech on the ballot via six-word slogans next to their names. New Jersey was not obligated to allow candidates to communicate directly with voters at the very moment they cast their ballots. But having done so for the express purpose of allowing candidates to distinguish themselves from their primary opponents, the state could not dictate content or skew the debate. Undeterred, the state prohibits candidates from referencing the name of any individual anywhere in the world (e.g., Never Trump or Evict Putin From Ukraine) or any New Jersey corporation (e.g., Higher Taxes for Merck & JnJ) absent written consent.

Entrenched political machines have long exploited this law by using political associations incorporated in New Jersey to signal which candidates enjoy machine support in the primary. Tellingly, New Jersey drops the consent requirement altogether on the general-election ballot. The Third Circuit upheld this glaring free-speech violation only by bypassing traditional First Amendment scrutiny in favor of the amorphousAnderson-Burdick balancing test.

Related

Some five years ago weprofiledPaul Clement as Mr. First Amendment in the Roberts Court. Thereafter, there was aFirst Amendment Salonwith Mr. Clement and Floyd Abrams (seeFirst Amendment News 268).

On August 19, 2015, police shot and killed18-year-old Mansur Ball-Beywhile searching a house in St. Louis, Missouri. Shortly after, a large protest broke out on the streets of the Fountain Park neighborhood where the shooting took place. In the crowd were two attorneys, Sarah Molina and Christina Vogel, who attended the demonstration wearing green hats identifying them as legal observers for the National Lawyers Guild, a nationwide progressive legal organization.

Police ordered the protesters to disperse. When many refused, the officers began firing tear gas into the crowd. Molina and Vogel left and walked down a side street to Molinas home. Shortly after, a Ballistic Engineered Armored Response or BEAR Truck turned down the same street. Police lobbed tear-gas canisters from the BEAR towards the two attorneys, who were standing in Molinas front yard. They sought shelter beside a neighbors home.

Molina and Vogel went to federal court, arguing that both the city and the police officers who operated and directed the BEAR had retaliated against them in violation of their constitutional rights to free speech and assembly under the First Amendment. A federal district court in Missouri ruled that Molina and Vogels claims could go to a jury, rejecting the officers argument that they were entitled to qualified immunity. But before the case could go to trial, the officers appealed.

In a divided ruling, the U.S. Court of Appeals for the 8th Circuit reversed the district courts ruling. The court of appeals explained that wearing the hats would only be speech, and therefore protected by the First Amendment, if Molina and Vogel had intended to convey a particular viewpoint and there was a good chance that anyone who saw them would understand the message. Although wearing hats emblazoned with the phrase National Lawyers Guild Legal Observer was a close call, the 8th Circuit reasoned, the two lawyers arenot entitled to First Amendment protection because not everyone would have understood the pro-protest message they were trying to convey.

The case isMolina v. Book.The issues raised in the case are: (1) Whether words printed on clothing are pure speech, and thus presumptively entitled to First Amendment protection, or whether they are protected only if they convey a particularized message; (2) whether, in light of important new historical evidence, this court should reconsider the doctrine of qualified immunity; and (3) whether the court of appeals erred in holding that a First Amendment right to unobtrusively observe and record police performing their duties in public is not clearly established.

State laws protecting against costly, meritless, speech-suppressing lawsuits are growing and improving nationwide, now covering 33 states plus the District of Columbia. For the first time, most Americans have good protection. Yet, many states still have weak laws or no laws protecting their citizens from such suits, putting those Americans rights to speak or publish at significant risk.

Those are the key takeaways from the2023 Anti-SLAPP Report Card, just released by theInstitute for Free Speech.

The report details and rates state-by-state legal protections against SLAPP suits, which stands for strategic litigation against public participation. Unscrupulous plaintiffs abuse the legal system by using SLAPPs to prevent speakers from exercising their First Amendment rights, suppressing, punishing, or chilling speech that the plaintiff doesnt like. Such a litigant typically claims that the speech constitutes defamation, suing speakers to harass, silence, or force them to bear significant litigation costs.

Anti-SLAPP statutes provide protections against these suits, but the strength of those protections varies widely from state to state. Thankfully, the Institutes new report shows a trend toward more and stronger anti-SLAPP laws. Top-line points in the report include:

One key catalyst for improvement has been the respected and nonpartisan Uniform Law Commission creating its model anti-SLAPP law, the Uniform Public Expression Protection Act (UPEPA), in 2020. This model law has already helped lead to excellent new or revised laws in six states since the 2022 report.

The progress weve seen in recent years is a welcome trend, but there are still too many states in which plaintiffs with deep pockets can threaten critics with financial ruin if they dont shut up, said Institute for Free Speech President David Keating, also one of the reports co-authors, along with Helen Knowles-Gardner and Dan Greenberg. A strong anti-SLAPP law is one of the best and easiest protections for free speech states can provide. Every state should have one and should make sure that its law covers as much speech on matters of public concern as possible.

This book examines selected high-profile U.S. First Amendment cases occurring during the Trump era as a vehicle for exploring a possible fundamental commonality in understanding the democratic rule of law globally. In each of these cases, the adjudicating bodys analytical legal strategy is discussed in terms of how it reinforces or detracts from the democratic rule of law. It was and continues to be highly internationally anticipated as to what legal examples are being set by this established democracy when confronted by legal contests between the former Trump administration and those alleging their rights were somehow violated by the executive of that time. Thus, the book is instructive for an international audience on the essential role of the courts in protecting democracy through providing, where supported by the law and the facts, a remedy for the aggrieved comparatively powerless.

The Supreme Court and the Philosopherillustrates how the modern US Supreme Court has increasingly adopted a view of the constitutional right to the freedom of expression that is classically liberal in nature, reflecting John Stuart Mill's reasoning inOn Liberty.

A landmark treatise outlining the merits of limiting governmental and social power over the individual,On Libertyadvocates for a maximum protection of human freedom.

Proceeding case by case and covering a wide array of issues, such as campaign finance, offensive speech, symbolic speech, commercial speech, online expression, and false statements, Eric T. Kasper and Troy A. Kozma show how the Supreme Court justices have struck down numerous laws for infringing on the freedom of expression.

Kasper and Kozma demonstrate how the adoption of Mill's version of free speech began with Justice Oliver Wendell Holmes Jr. more than a century ago and expanded over time to become the prevailing position of the Court today. The authors argue that this embrace of Mill's rationale has led to an unmistakable reorientation in the Court's understanding of free expression jurisprudence.

The Supreme Court and the Philosopheris the first book to comprehensively explore how the political philosophy of Mill has influenced the highest court in the land. In targeting the underlying philosophical reasons that explain why the modern Supreme Court renders its First Amendment decisions, this book is particularly timely, as the issues of censorship and freedom of expression are debated in the public square today.

Review granted

Pendingpetitions

State action

Reviewdenied

Free speech related

Previous FAN

FAN 406: American Fiction movie takes satirical aim at politically correct white publishing world

This article is part ofFirst Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the articles author(s) and may not reflect the opinions of FIRE or of Mr. Collins.

Here is the original post:
Robert Post: 'There is growing pessimism about the future of free speech in the United States' First Amendment ... - Foundation for Individual Rights...

Back in early December, the presidents of Harvard University, the Massachusetts Institute of Technology and the University of Pennsylvania testified before the U.S. Congress at a hearing investigating antisemitism on their campuses. The hearing was prompted by the series of protests and demonstrations that took place at those universities following Hamas Oct. 7 attack on Israel and the subsequent bombing and military operations by Israel in Gaza. While the campus demonstrations expressed a range of views, concerns were raised when protesters used speech that was not just supportive of the Palestinians, but which some have interpreted as calling for the elimination of Israel and even genocide against Jews around the world.

By now, many people in the U.S. but also abroad are aware of the complete debacle that unfolded after Rep. Elise Stefanik asked the three presidents if calling for the genocide of Jews would violate their universitys rules regarding conduct, bullying and harassment. All three failed to clearly say yes, instead engaging in tortured responses that were legally correct but politically flawed. Two of the presidents, Elizabeth Magill of Penn and Claudine Gay of Harvard, subsequently resigned, Magill amid the immediate firestorm of controversy following the hearings and Gay after accusations of plagiarism from her career as an academic surfaced in the weeks thereafter. The third, Sally Kornbluth of MIT, is coming under pressure as well.

I want to set aside whether Stefaniks question was asked in good faith, whether the presidents could have given better answers and even whether they should have accepted the invitation to testify before the committee in the first place. Instead, I want to focus on the broader implications of the hearing and the subsequent resignations. And by broader, I mean their implications for international politics.

More here:
Campus Free Speech Debates and US Soft Power | WPR - World Politics Review

New Mexicos governor has so far ignored calls from her constituents and the states most prominent civil rights organization to withdraw a once-obscure executive order that has received renewed interest three months into the war in Gaza.

In 2022, Gov. Michelle Lujan Grisham signed an executive order to direct all state agencies under her control to adopt and use the Working Definition of Antisemitism written by the International Holocaust Remembrance Alliance.

This week the governors office declined to answer questions about Lujan Grishams response to a letter asking her to rescind the order, and about how many times the state has enforced it.

We are clear: Discrimination of any kind, including antisemitism, has no place in New Mexico, said Maddy Hayden, a spokesperson for the governor. The governor is also a staunch believer in free speech, and we have seen no indication that this order signed in 2022 is being misused in any way.

In interviews with Source New Mexico, New Mexicans criticized the order as part of a broader attempt to conflate Judaism with Zionism, in order to expand the traditional definition of antisemitism to include criticism of Israel and quash expression in support of Palestinian self-determination.

Dr. Lori Rudolph is a professor of counseling at New Mexico Highlands University studying continuous traumatic stress in the West Bank, and a member of Jewish Voice for Peace.

She said its vitally important for Jewish people to counter the claim that criticism of Israel is the same as antisemitism. Lujan Grishams executive order is unfortunate, she said, because it undermines the credibility of claims of real antisemitism.

We have a moral obligation to speak out against genocide, especially in light of our own history of genocide and the historical trauma that we carry, Rudolph said. Its unconscionable to watch Israel committing the same atrocities that were committed against Jews in Europe, for example.

GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX

SUBSCRIBE

After Lujan Grisham signed the order two years ago, Rudolph joined civil rights attorney and author Jeff Haas, along with others affiliated with Jewish Voice for Peace, to gather signatures for a petition calling the governor to withdraw it.

For a couple of months that year, Haas said, the group tried to meet with the governor, but it did not happen.

Then in September 2023, a pro-Israel advocacy group in Santa Fe tried to get Lujan Grisham to enforce the order against Palestinian poet and journalist Mohammed El-Kurd to try to prevent him from speaking at the University of New Mexico.

In response, the American Civil Liberties Union of New Mexico urged Lujan Grisham to rescind the order, arguing in a letter on Nov. 14 that it violates the states constitution.

ACLU-NM Executive Director Peter Simonson and attorney Kristin Greer Love told the governor her order threatens freedom of speech, which applies to and protects everyone in our state not just those with whom we agree.

We are deeply concerned that it could be used as the basis for silencing protected speech, and indeed have begun to see signs in New Mexico that our fears could be realized, they wrote, citing the effort to silence El-Kurd. We urge you to rescind this dangerous and unnecessary order.

They wrote Lujan Grishams administration has legal tools to protect Jewish people in New Mexico and combat antisemitic harassment and discrimination, But make no mistake: adopting the IHRAs working definition of antisemitism through an executive order is not among them.

Maria Archuleta, a spokesperson for ACLU-NM, confirmed Wednesday the governor has not responded to the letter.

The IHRA Working Definition of Antisemitism has been criticized by Israeli Jewish academics and lawyers defending the movement for Palestinian rights in the United States. The executive order adopts the definition by linking to a website but does not spell it out word-for-word.

Lujan Grishams order states the IHRA definition has been an essential tool used to determine contemporary manifestations of antisemitism, and includes useful examples of discriminatory anti-Israel acts that can cross the line into antisemitism.

Most notably, the IHRA definition asserts that claiming that the existence of a State of Israel is a racist endeavor is an example of denying the Jewish people their right to self-determination.

This is immensely dangerous, because it means you cant call Israel racist, says Dr. Fatima Van Hattum, a former member of the central committee of Lujan Grishams Council on Racial Justice and a member of the Muslim community in New Mexico.

It means that any true historical recounting and examination of the Nakba the 1948 ethnic cleansing of Palestine would be considered antisemitic, Van Hattum said. It means that any critique over half a century of Israeli occupation would be considered antisemitic. It means that any future solutions like potentially one democratic, secular state in critique of an exclusively Jewish ethno-religious state would also be considered antisemitic.

In their letter to the governor, ACLU-NM wrote the orders adopted definition is unconstitutionally vague, classifying certain (unspecified) criticisms of Israel as antisemitic, leaving New Mexicans with uncertainty about whether their speech or expression could violate the law.

The IHRA definition does not allow for nuanced political debate and expression that are critical for a functioning democracy: it lumps in criticism of the government of Israel and support for Palestinians rights with the scourge of true antisemitism, ACLU-NM wrote.

In doing so, the definition impermissibly threatens to chill speech, they wrote.

Protected speech and expression include non-violent protest, activism, criticism of Israel and support (for) Palestinians rights, the ACLU wrote. One can criticize the government of Israel and support Palestinians rights without being antisemitic, just as one can criticize the Palestinian Authority or the governments of other Muslim-majority countries without being anti-Muslim.

In her statement expressing the governors stance, Hayden added that New Mexico stands alongside the Biden Administration and the majority of other states in adopting this stance against antisemitism.

Van Hattum, who has a Ph.D in educational thought and sociocultural studies, said the order comes amid a push by the right wing in the U.S. for deeply restrictive policies preventing the proper teaching of slavery, Black history or colonization.

By endorsing the IHRA definition, both Lujan Grisham and Democrats in the U.S. House of Representatives are limiting peoples ability to factually recount the history of the Israeli occupation of Palestine, Van Hattum said.

Its not only a First Amendment violation, but its very dangerous to our democracy in the same way these right-wing attacks on curricular materials and books are dangerous in the long term, she said. It means our country is becoming more and more fascist. That is not a small thing.

From a perspective of racial justice in the U.S., Van Hattum said, Israel, as a settler colony like the U.S., is built on violent dispossession. She compared racism in a settler colony like the U.S. or Australia to an individual living with a chronic disease.

If there is ever a future that isnt just blatant occupation and genocide, and a political outcome where people can actually live together, this will still be the case, Van Hattum said. What this definition does is it denies us the ability to even engage in that discussion intellectually.

More here:
N.M. gov. has ignored calls to pull executive order that could hinder speech critical of Israel - Source New Mexico

The state of free speech on college campuses leaves much to be desired.FIREs 2024 College Free Speech Rankings showed that:

What if we could prepare students to be steadfast defenders of free speech before they even set foot on a college campus? What if we had hundreds of college-bound students across the country ready to make real change on campus and inspire others to do the same?

FIREs Free Speech Leadership Summit will make this a reality.

To do this right, were partnering withJunior State of America, a student-led organization that prepares a diverse community of high school students to participate effectively in our democracy. JSA offers hands-on civic programs designed to activate the talents of young people, instill values of respect and understanding, and inspire them to be a new generation of American leaders.

JSA is excited to partner with FIRE for the inaugural Free Speech Leadership Summit. It is a testament to our role in building a better, stronger, and freer democracy for all. Both JSAs and FIREs commitment to teaching the foundation of a free people and a free society make this partnership a natural fit.

Jodi Wiseley, Chief Executive Officer, Junior State of America

Students will spend a week exploring all things free speech through captivating presentations, collaborative projects, and creative activities. FIREs expert staff will guide students as they learn what free speech is, why its important, and how it empowers all of us to solve real-world problems and achieve our full potential. Students will leave the summit ready to become leaders who advocate for free speech in their communities and, when they arrive at college, on their campuses.

The summit will host up to 300 students at Temple University from June 23-29. Students will enjoy a fully immersive experience, staying on campus, including overnight, for the entire week. Screened and trained resident advisors will be on site at all times to supervise attendees and ensure they have a safe and positive experience.

Eligibility:The summit is open to college-bound students attending high school in the U.S. who are enrolled in 8th through 11th grade at the time they submit their application. Students must be able to attend the entirety of the program.

Cost:Registration is free! Students will be responsible for their own travel arrangements to and from Philadelphia, but transportation to and from Temple University via the Philadelphia International Airport (PHL) or the 30th Street Train Station will be provided at no charge.

Scholarships:A limited number of need-based scholarships are available to help students with their travel costs to and from Philadelphia. Students will be notified about the scholarship application process after they are accepted into the program.

Applications are now open!

Emailstudents@thefire.org with any questions.

Read more:
FIRE is bringing together the next generation of free speech leaders - Foundation for Individual Rights in Education