Daily Archives: March 22, 2024

Federal prosecutors are pursuing a deal to allow WikiLeaks founder Julian Assange to avoid espionage charges and instead plead guilty to the misdemeanor of mishandling classified data. The Wall Street Journal first reported on the talks between U.S. authorities and Assange's lawyers on Wednesday. The independent outlet Consortium News then confirmed that it had learned the same details "off the record" several months ago.

Assange has been detained in Britain for five years awaiting extradition, and the Journal reported that he "would likely be free to leave prison shortly after any deal was concluded" due to time served.

Although it's not a done deal, the proposal is good news for the First Amendment, because it avoids setting a precedent that allows the U.S. government to treat journalists as spies.

Attorney General Merrick Garland still has to sign off on any deal, according to the Journal. And Assange's brother Gabriel Shipton told Consortium News that Assange is dead-set against signing a deal that would require him to come to the United States, due to worries that the U.S. government could change the terms at the last minute.

After the news broke, Assange's lawyer Barry J. Pollack stated, "We have been given no indication that the Department of Justice intends to resolve the case." Pollack didn't deny that negotiations were happening, and accusing the other side of being unserious could be a negotiating tactic.

But both sides have a strong incentive to avoid a trial. In addition to saving Assange from significant jail time, a plea deal could allow the Biden administration to wriggle out of a self-inflicted political conundrum.

WikiLeaks became a thorn in the U.S. government's side in the early 2010s when it published classified data provided by former Army intelligence analyst Chelsea Manning, including adatabase ofU.S. diplomatic cables and a video of a U.S. Army helicopter gunning down a news crewin Iraq.

The Obama administration prosecuted Manning but decided not to prosecute Assange because of the "New York Times problem." Even though WikiLeaks is not a traditional newspaper, its activities are legally not so different from The New York Times and other news organizations, which often publish stories based on leaked classified information.

Indeed, Assange partnered with the Times,The Guardian, and other international outlets for the "Cablegate" leaks. When the Trump administration finally decided to prosecute Assange for espionage in 2019, the Times editorial board called the case a weapon "aimed straight at the heart of the First Amendment."

Because of Assange's case, a bipartisan group in Congress is pushing for a law to overhaul the Espionage Act completely.

With a misdemeanor plea deal, prosecutors could avoid a fight over the Espionage Act and the First Amendment, without looking like the Biden administration backed down. As the Journal put it, putting Assange on trial "would throw a political hot potato into the lap of the Biden administration."

View post:
Biden Wants To Avoid a First Amendment Showdown Over WikiLeaks - Reason

1. Justice Ketanji Brown Jackson raises eyebrows with comment that First Amendment 'hamstrings' government  Fox News
2. 'Hamstringing the Government': A Viral Narrative Distorts Ketanji Brown Jackson's Understanding of Free Speech  Reason
3. Supreme Court examines whether government can combat disinformation online  NPR

See the original post:
Justice Ketanji Brown Jackson raises eyebrows with comment that First Amendment 'hamstrings' government - Fox News

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West Texas A&M University students Bear Bright and Marcus Stovall held their breath for months.

Yes, university President Walter Wendler canceled last years on-campus drag show. But as a lawsuit accusing Wendler of violating students First Amendment rights wended through the courts, Bright and Stovall booked a student center banquet hall, secured insurance and organized nearly a dozen performers for the Dont Be a Drag performance slated for Friday night.

The two students at the university in Canyon, about 20 miles south of Amarillo, didnt approach the new event as a salvo in the larger battle over freedom of expression in America that is still pending before the 5th U.S. Circuit Court of Appeals. To them, it was about producing a joyful student performance celebrating queer identities the kind of show that happens every night without controversy in other parts of Texas.

Still, they knew that any time, Wendler could block the show from happening on campus. But they also thought that Wendlers reasoning for the previous cancellation exemplified a public official stifling expression because he disagrees with the content and was the kind of clear-cut censorship the federal court system would prevent from happening again.

But last week, the U.S. Supreme Court dashed those hopes. The high court refused, at least for now, to wade into the case and its free speech debate. On Monday, Wendler did exactly what Bright and Stovall feared: He again forbade a drag show from being performed on campus.

It was very discouraging and depressing at first, Bright said.

The Supreme Court only declined to block Wendler from canceling another drag show while a lawsuit over the previous cancellation plays out at the appellate level. Justices were not considering the underlying legal arguments about whether Wendler abused his authority to squash the performance on the basis of his disapproval of the students viewpoints. Those questions are still before the 5th Circuit court, which has also declined to issue an injunction against Wendler until it hears arguments in the case in April.

The West Texas lawsuit comes a year following Republican state lawmakers attempt to classify all drag shows as obscene. But after a video of a male GOP legislator wearing a dress for a school theater project surfaced, state leaders scrapped that version of a bill and eventually passed a law that prohibits certain drag performances in front of children. But even that watered-down version of Senate Bill 12 has been deemed unconstitutionally overbroad and vague. An appeal of that decision is also before the 5th Circuit.

SB 12 came on the heels of an anti-drag panic whipped up by a small but influential cadre of activists and extremist groups who routinely characterized all drag as inherently and nefariously sexual, regardless of the content or audience. Such claims were then used to justify harassment of the LGBTQ+ community, often under the guise of protecting children.

It's part of the national mentality, said Claudia Stravato, a part time state and local government faculty member at West Texas A&M. We kind of get morally hysterical in this country every few years.

The potential constitutional showdowns over drag shows also come in an era when Texas officials have relied on new state laws, the attorney generals office and a newly conservative Supreme Court to help redraw the legal boundaries on everything from abortion and illegal immigration to what kinds of health care transgender children can access.

And as a legal limbo persists, LGBTQ+ residents like Bright and Stovall acutely feel politically and socially targeted in a part of the state where cultural acceptance of queer people already lags behind the states big cities.

It kind of feels like that LGBTQ+ and queer people aren't welcome anywhere near here, Bright said Thursday, still recovering from Wendlers disorienting cancellation earlier this week. Just because we're gay or bi or trans we're just not allowed to exist in this area.

Myss Myka is one of the most prominent drag queens in the Texas Panhandle with a performance career thats spanned nearly a decade. Based in Amarillo, shes mentored a number of drag artists over the years, including West Texas A&M students.

She was all set to host the on-campus show Friday, before Wendler canceled it.

The need for student-led drag shows, she said, is to create a sense of community for young people who are questioning their place in the world and trying to find connections in it.

We tell people that, We're here for you, well answer any questions that you have and, most importantly, we want you to be able to find your own path and find people who you can share your struggles with, Myka said.

Throughout the years, Myka has noticed the queer-friendly community in Amarillo grow. With a population of more than 200,000 Amarillo is by far the largest city in the Panhandle. But it anchors a largely rural region that remains a staunchly conservative area that is several hours away from any of Texas sprawling metro areas where drag shows are routine and LGBTQ+ people hold public office.

Myka said the strength and influence of the regions religious groups and extremist organizations fuels safety concerns every time she takes the stage.

Stovall, who had planned to perform on Friday dressed in an homage to English novelist Clive Barkers character known as Pinhead in the movie Hellraiser, shares those safety concerns living in Canyon south of Amarillo.

If I tried to hang up a pride flag in my window, Id probably get a rock through it within an hour, Stovall said.

After last years drag show was canceled, organizers eventually found a venue off-campus where they staged a make-up performance. Myka hosted that show. With Fridays showcase canceled, shes now focusing on emotionally supporting performers as they figure out what to do next.

As queens, we're always kind of prepared for any kind of situation we're in, she said.

Since taking the helm of West Texas A&M in 2016, Wendler, who is known for his outspoken Christian beliefs, has presented himself as the answer to what conservative lawmakers and activists see as a proliferation of liberal agendas and silencing of conservative views in higher education.

When he banned student-led drag shows on the universitys campus last year, he said it was because the performances degrade women.

No one should claim a right to contribute to womens suffering via a slapstick sideshow that erodes the worth of women, he said at the time.

He cited those same reasons in another all-campus email on Monday, canceling the second show. He also pointed to the new state law, SB 12, as a reason for denying the students permit. Originally billed as legislation that would prevent children from seeing drag shows, lawmakers eventually landed on language that doesnt directly reference people dressing as the opposite gender. Instead, the legislation prohibits any performers from dancing suggestively or wearing certain prosthetics in front of children.

A federal judge in Houston blocked the state from enforcing the law and issued a 56-page ruling concluding that Texas new law was so vague that cheerleading and dancing could be construed to be violations.

"Drag shows express a litany of emotions and purposes, from humor and pure entertainment to social commentary on gender roles," the ruling reads. "There is no doubt that at the bare minimum these performances are meant to be a form of art that is meant to entertain, alone this would warrant some level of First Amendment protection."

Organizers of the drag show said it was disingenuous for Wendler to cite SB 12 as a reason to shut down the performances since the law currently cant be enforced.

That just really miffed me, said Bright.

When he and Stovall sought court relief from Wendlers previous drag ban, their case came before U.S. District Judge Matthew Kacsmaryk, the sole sitting judge in the Amarillo federal court district and an outspoken opponent of LGBTQ+ rights. Former President Donald Trump appointed Kacsmaryk to the bench in 2019. Before that, the judge was deputy counsel for the First Liberty Institute, a deeply conservative religious liberty law firm.

Republican Texas Attorney General Ken Paxton and private litigants frequently file their most contentious lawsuits in Kacsmaryks court. And on everything from immigration and abortion drugs to teens access to confidential contraception, they largely achieved their desired outcome.

Unlike the Houston judge who blocked Texas so-called drag show ban, Kacsmaruk ruled that not all drag shows could be considered expressive conduct and he sided with Wendler.

Now both cases, one against SB 12 and one against Wendler, are before the U.S. 5th Circuit Court of Appeals. Oral arguments in the students case are slated for April.

Peter Steffensen, a law fellow with the First Amendment Clinic at Southern Methodist University Dedman School of Law, said the appellate court now has to grapple with a situation in which two lower courts came to different conclusions on the same subject matter.

It's a real concern about whether or not the court will impose some sort of rule that restricts the free expression of ideas and performance art in order to, as they say, protect minors, Steffenson said. His law clinic filed a brief in support of the students.

Across the country, other federal courts are fielding similar questions. In November, the U.S. Supreme Court refused to reinstate a Florida law that penalizes businesses for allowing children to view drag shows until a lower court fully considers the case.

Wendler is not the only Panhandle official to effectively block a drag show.

The Amarillo Area Transgender Advocacy Groups Easter event in a Canyon park last year featured drag performers, including Myka. One protester showed up wearing military fatigues and flashing the Nazi salute. But organizers positioned food trucks in a way that blocked him from most attendees sight.

Off-duty police officers hired as security told AATAG board president Sam Burnett, who is transgender, that they had no issues, found the organization easy to work with and offered to serve as security again this year.

But when AATAG filed for a permit for this years event, Canyon officials denied them, saying police officers last year witnessed public safety issues and lewd behavior.

The groups permit was denied due to issues at their 2023 event. This decision was made in an effort to safeguard the use of Canyons public spaces and all of those who visit them, Megan Nelson, communications director for the city told The Texas Tribune in a statement.

City officials declined to provide details about the alleged issues, but said the groups application fee had been returned.

If police officers did witness something inappropriate at the 2023 event, Why was it not addressed then? Why was it not addressed for an entire year? Burnett wondered.

Burnett said city officials cited the states obscenity law in denying this years application. But that doesnt make sense to him.

This is no different than women who are competing in a pageant, Burnett said of drag shows. It is a performance of art. And so why should any performance of art be hidden or not accessed?

Burnett and other Panhandle residents said the political environment has become increasingly hostile to LGBTQ+ residents, mirroring much of the rhetoric lawmakers in Austin have adopted to push legislation attempting to reshape the lives of queer Texans.

During the 2023 legislative session, Republican lawmakers successfully barred transgender university athletes from participating on sports teams that aligned their gender and banned adolescents from accessing gender-transitioning care like puberty blockers and hormone therapy.

The author of that health care ban for trans kids was state Rep. Tom Oliverson, R-Cypress, who announced Thursday that he will challenge incumbent Texas House Speaker Dade Phelan, a fellow Republican, for the leadership position. Top GOP leaders have attacked Phelan as insufficiently conservative as they attempt to push the Legislature further rightward.

But there have been local political battles, too, Burnett said. His group first hosted an LGBTQ+-friendly Easter event in 2022 after Canyon Independent School District was pressured to remove a suicide prevention program that mentioned LGBTQ+ people.

There is a curriculum that is being used as a teen suicide prevention curriculum that features a transgender individual and is, in our belief, therefore promoting transgenderism to high school students, Trinity Fellowship Church Senior Pastor Jimmy Witcher said during a Sunday service in February 2022.

He added the program was supported by pop star Lady Gaga, so that kinda tells you everything you need to know about it.

Canyon ISD did not respond to the Tribunes questions, but a page on the districts website that provides information about several hot-button issues titled Just the Facts says that the the Board of Trustees adopted Hope Squad a different curriculum as the suicide prevention program.

During the 2023 school board elections, a major issue among candidates and voters was how or whether schools should support LGBTQ+ students. An informal hotline Burnetts group set up from LGBTQ+ rang nonstop during that election cycle.

We get so many phone calls at all hours of the day, Burnett said. We're not a suicide hotline, but at the same time I'm not going to let somebody not call and at least have somebody to talk to.

John Hintz was a 22-year-old gay man when he moved to Amarillo. He actually found support and understanding at his church, a member of whats called the Open and Affirming Congregations of the Texas Panhandle.

Hintz said that the network's approach to LGBTQ+ people is vital at a time when political and social rhetoric especially toward transgender people can be so hostile.

Particularly when you think about young people, knowing that they have people out here, that there are people that will support them and believe them, Hintz said.

And, Hintz notes, not everyone in the Amarillo area takes issue with transgender people or drag shows. He said many have reached out with words of support and comfort.

For young residents like Bright and Stovall, the events over the last few years have made it clear that the mere existence of queerness makes some people upset.

They, royally, would rather have us just hide away and pretend that were all straight Christians in this area, Bright said.

As of Thursday, the students were planning to reschedule the canceled show, which will require some nimble planning to secure a new, off-campus venue and find a date that works for the other drag artists.

And with a potentially highly consequential court hearing scheduled for their lawsuit on April 15, theyre back to holding their breaths.

This story was supported by the Trans Journalists Association.

Disclosure: Southern Methodist University and West Texas A&M University have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

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Read more:
West Texas drag show becomes a First Amendment battleground - The Texas Tribune

1. Requiring ugly images of smoking's harm on cigarettes won't breach First Amendment, court says  The Associated Press
2. Requiring ugly images of smoking's harm on cigarettes won't breach First Amendment, court says  AOL
3. Requiring ugly images of smoking's harm on cigarettes won't breach First Amendment, court says  MSN

Read the rest here:
Requiring ugly images of smoking's harm on cigarettes won't breach First Amendment, court says - The Associated Press

Part of the Murthy v. Missourichallengers' claim is that the First Amendment bans the government from even "substantially encouraging" private entities to block user speech. And as I noted in the post below, I appreciate the difficulties with this claim (though I also appreciate its appeal).

Here, though, I wanted to repeat one narrow observation that I had made some time ago. I'm not sure how far it goes, but it struck me as worth noting.

Consider this passage from the oral argument by the federal government lawyer:

I'm saying that when the government persuades a private party not to distribute or promote someone else's speech, that's not censorship; that's persuading a private party to do something that they're lawfully entitled to do, and there are lots of contexts where government officials can persuade private parties to do things that the officials couldn't do directly.

So, for example, you know, recently after the October 7th attacks in Israel, a number of public officials called on colleges and universities to do more about anti-Semitic hate speech on campus. I'm not sure and I doubt that the government could mandate those sorts of changes in enforcement or policy, but public officials can call for those changes.

The government can encourage parents to monitor their children's cell phone usage or Internet companies to watch out for child pornography on their platforms even if the Fourth Amendment would prevent the government from doing that directly.

All of those are contexts where the government can persuade a private party to do something that the private party's lawfully entitled to do, and we think that's what the government is doing when it's saying to these platforms, your platforms and your algorithms and the way that you're presenting information is causing harm and we think you should stop .

A forceful position, I think; and yet note that, when it comes to many Fourth Amendment situations, the analysis may actually be quite different.

Say that you use your rights as a landlord, set forth in a lease, to visit and inspect a tenant's apartment; see evidence that he's committing a crime; and report it to the police. You haven't violated the Fourth Amendment, because you're a private actor. (That may be true even if you have committed some tort or crime, see, e.g., United States v. Phillips (9th Cir. 2022); Burdeau v. McDowell (1921), but often your visit and your looking around may actually be entirely legal.) And the police haven't violated the Fourth Amendment, because they didn't perform the search. The evidence from this "private search" can be used against the tenant.

But now say that the police ask you to do this. That inspection may become a search governed by the Fourth Amendment. "[I]f a state officer requests a private person to search a particular place or thing, and if that private person acts because of and within the scope of the state officer's request," then the search will be subject to the constitutional constraints applicable to searches by the government. State v. Tucker (Or. 2000) (applying the Oregon Constitution's Fourth Amendment analogue) (police request to tow truck driver to search items in car being towed), followed by State v. Lien (Or. 2019) (police request to trash company to pick up a person's trash in a particular way that would facilitate its being searched); see also United States v. Gregory (E.D. Ky. 2020) (similar fact pattern to Lien). "Police officers may not avoid the requirements of the Fourth Amendment by inducing, coercing, promoting, or encouraging private parties to perform searches they would not otherwise perform." George v. Edholm (9th Cir. 2014) (police request to doctor to do a rectal search) (emphasis added); see also United States v. Ziegler (9th Cir. 2007) (police request to employer to search employee's work computer).

Likewise, "In the Fifth Amendment context, courts have held that the government might violate a defendant's rights by coercing or encouraging a private party to extract a confession from a criminal defendant." United States v. Folad (6th Cir. 2017) (emphasis added); see also United States v. Garlock (8th Cir. 1994). More broadlyand here we come to precedents that were indeed raised in the Murthy oral argumentthe Supreme Court held in Blum v. Yaretsky (1982), a Due Process Clause case, that "a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." And in Norwood v. Harrison (1973), an Equal Protection Clause case, it viewed it as "axiomatic that a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish."

To be sure, the inducement, and encouragement, and promotion in Norwood involved the provision of tangible benefits (there, textbooks given to racially segregated schools, alongside other schools) and not just verbal encouragement. By itself, the line in Norwood may thus not carry much weight. But the Fourth Amendment cases in which government-encouraged or government-requested private searches became subject to the Fourth Amendment did involve just verbal encouragement.

Again, I'm not sure what to make all this. Perhaps the government's trying to persuade private landlords to engage in searches should indeed be viewed as government action that potentially violates the Fourth Amendment, and the government's trying to persuade private platforms to restrict user speech should not be viewed as government action that potentially violates the First Amendment. But since the Fourth Amendment came up in the argument, I thought I'd note again this potential analogy.

Read more:
The First Amendment, the Fourth Amendment, and Substantial Encouragement - Reason