Monthly Archives: June 2024

Here is a puzzle at the center of online life: How should we balance freedom of speech with the flood of slanderous statements, extremist manifestoes and conspiracy theories that proliferate on the internet? The United States decided decades ago to let private companies solve that quandary themselves. The Supreme Court made this position official in three major rulings in the 1990s and early 2000s.

But lawmakers arent sure about this arrangement, now that giant online platforms are the new town square. The left says Facebook, YouTube, TikTok and the rest should take more content down, especially hate speech and disinformation. The right says the companies, which removed posts about Covid and the 2020 election, shouldnt set the rules for discussions about politics and culture.

Now a series of federal court cases will address these questions. Supreme Court justices will decide a few in the next month or two. In todays newsletter, Ill explain how those cases could change the way the First Amendment functions in the internet era.

Courts have faced six broad questions about online speech. The Supreme Court has ruled on two of them.

When can social media sites be sued over what users post? Rarely. Two Supreme Court rulings last year kept protections in place for websites from most lawsuits related to content posted by users. Relatives of victims of terrorist attacks had argued that Google and Twitter should be legally responsible for content posted by the Islamic State. The justices disagreed.

Can government officials block constituents on social media? Sometimes. The Supreme Court ruled in March that public officials cant stop a constituent from commenting on their posts if they are acting in their role as political officeholders.

Four other philosophical questions are still in progress.

Can the government force social media sites to host political content? Twitter, YouTube and Facebook suspended Donald Trump in 2021 after the Jan. 6 riot. Then Florida and Texas passed laws designed to restrict such moves. The Supreme Court will soon rule on those laws, and the justices appeared skeptical of them during oral arguments in February, my colleague Adam Liptak reported.

When can the United States push social media sites to remove content? The government prodded social media services to take down certain posts related to Covid and elections. Missouri, Louisiana and five individuals argued thats a violation of the First Amendment. They say the government used private companies to stifle a specific viewpoint. The Supreme Court seemed wary of the lawsuit in March. The justices skepticism of conservatives argument is a sign of how complex it is to draw boundaries in this area of the law.

Can the government restrict access to online pornography? Texas passed a law last year that requires adult sites to check the age of their visitors. Parents can sue sites if the sites fail to do so and their child views pornography. If the law stands, adults will need to reveal their identity to pornography sites instead of remaining anonymous. The sites say this puts a barrier between adults and speech they have a right to view under the Constitution. The case is now in federal appeals court.

Can the government ban a foreign-owned social media platform? President Biden signed a law in April that will ban TikTok unless it is sold by its Chinese parent company, citing national security. TikTok says the measure curtails free speech rights both its own and its users. Federal courts are planning to hear the case this year. If they uphold the law, it will affirm the federal governments right to eliminate a platform for speech in the national interest. If judges strike it down, it may allow news and social media sites to serve Americans even when they are owned by a company from an enemy nation.

With this many kinds of cases, the range of outcomes is vast. If the courts decide the status quo is wrong, internet platforms might limit what you can post or take down more of it just to be sure they are complying with the laws.

Another possibility: The courts could decide that they got this question right the first time they considered it, 30 years ago. Free speech online might not change much. But private companies would now formally be entrenched as its arbiter.

We are having trouble retrieving the article content.

Please enable JavaScript in your browser settings.

Thank you for your patience while we verify access. If you are in Reader mode please exit andlog intoyour Times account, orsubscribefor all of The Times.

Thank you for your patience while we verify access.

Already a subscriber?Log in.

Want all of The Times?Subscribe.

See the article here:
The Internet and the First Amendment - The New York Times

As a young lawyer for the American Civil Liberties Union, David Goldberger defended the rights of Nazis to hold a demonstration in Skokie, Ill., a village that was home to many Jewish residents, including hundreds of Holocaust survivors. The famous case, which set the course of his legal career, also led to a historic First Amendment ruling by the US Supreme Court, which was issued in June 1977 47 years ago.

When speech today can so quickly be labeled and censored as antisemitic, would he take up such a cause again? Yes, he said. But Id have a bigger lump in my throat now than I did back then, Goldberger, 82, told me in an interview. When it comes to free speech in America, he sees a hugely disappointing retreat. We fought like hell to establish these rights and it seems like, frankly, they are really under siege, he said. Here we go again.

To think it would be harder in 2024 to fight for free speech than it was in 1977 is somewhat stunning, isnt it? Or maybe not, given the backlash to assorted civil and constitutional rights that were fought for and won over the past half century.

Goldberger is known for calling out the political left and the ACLU for what he sees as failing to defend speech from the right that they find bigoted and hateful. As he told The New York Times in 2021, Liberals are leaving the First Amendment behind. Now, the crackdown on protests over the Israel-Hamas war is putting progressives on the losing end of the free speech debate. It seems to me theres an inability to understand that heated discourse isnt pleasant and it hurts feelings, Goldberger said. But thats not a reason to censor it and suppress it on both sides.

When it comes to protecting speech rather than censoring it, and the courage it takes to do it, there is a lot to be learned from the Supreme Court case National Socialist Party of America v. Village of Skokie. As Goldberger recounted in 2020 for the ACLU, it all began in April 1977 when he got a call from the leader of the Chicago-based Nazi group, who told him local officials wanted to stop them from demonstrating in front of the Skokie Village Hall, wearing Nazi uniforms with swastika armbands and carrying Nazi banners and signs with the words Free Speech for White People. With backing from the ACLU, Goldberger agreed to represent them. After a judge issued a preliminary injunction, the ACLU appealed. When the state court of appeals and Illinois Supreme Court ignored them, the ACLU went directly to the US Supreme Court.

In a 5-4 ruling, the Supreme Court ordered the Illinois courts to rule on the injunction or allow the Nazis to demonstrate. Not doing so, will deprive them of rights protected by the First Amendment, the Supreme Court held. After another year of court battles, the right to demonstrate was ultimately upheld. In the end, the Nazis chose to demonstrate in downtown Chicago, not Skokie. Because tempers were running so high, I moved my family out of our house for the weekend of the demonstration, Goldberger wrote. When we returned, I found that someone had thrown eggs at our front door.

Eggs were the least of what he faced. He was also called a traitorous Jew and feared for his safety. As he also wrote, To this day, the case still brings up difficult feelings about representing a client whose constitutional rights were being violated but who represented the hatred and bigotry that continues to erupt into Americas consciousness. But Goldberger stood by the principle he still embraces that maintaining those rights for everyone, regardless of political ideology, is key to maintaining a healthy democracy.

As Goldberger also notes, Nazis who want to demonstrate on public property have First Amendment rights that are not shared by protesters who set up encampments at private universities. However, to Goldberger, acknowledging that distinction doesnt solve the problem. They are still universities, places where there should be robust debate and even heated debate.

Even with legal authority to clear out encampments, he thinks university administrators should apply a different standard. I wish the university administrators would hold their fire and, as a matter of course, treat the exchange of viewpoints and arguments and heated debate as something that belongs there, rather than as the enemy. I also wish that the kids had a better idea where the boundaries are, he said. Goldberger said he has heard a disappointing amount of directed antisemitism in those college encampments. On the other hand, I cant get past the feeling that some of the counterprotesters have been claiming antisemitism as a weapon and a tool.

Asked about college administrators who say that encampments are a public safety threat, Goldberger said, Frankly, some of that is nonsense, pure nonsense. Where the encampments have been orderly and have not been physically threatening, whats the public safety issue? Its a device used by some university administrators to justify the feeling they cant stand the heat. That heat, he said, is coming from Congress and alums.

After working for the Illinois ACLU as staff attorney and legal director, Goldberger took a teaching position at the Moritz College of Law at Ohio State University. Following the Skokie case, he was involved with three more First Amendment cases that ended up before the Supreme Court, representing right-leaning clients who included the Ku Klux Klan. He currently serves on the legal advisory team of the Foundation for Individual Rights and Expression. If he had not retired from practicing law, he said he would be more than willing to represent pro-Palestinian protesters with legitimate First Amendment claims and peaceful ... encampment protesters facing school disciplinary proceedings. I say this because I am concerned that in many cases there was no need to clear the encampments other than to please self-aggrandizing politicians and pressure from donors, he said.

The controversy associated with Skokie has not faded. Goldberger said he was nervous when he first moved into a Maryland retirement community because other residents, some of whom are Jewish, knew about his past. He was invited to give a presentation about it during which, he said, a lot of people agreed with me and a lot of people disagreed. Thats healthy.

To Goldberger, that is what Skokie was all about and that is what free speech is all about. If only the rest of the country could see it that simply.

Joan Vennochi is a Globe columnist. She can be reached at joan.vennochi@globe.com. Follow her @joan_vennochi.

Read this article:
Opinion | Lessons on free speech from David Goldberger - The Boston Globe

In a welcome development for people who care about liberty, Australia's government suspended its efforts to censor the planet. The country's officials suffered pushback from X (formerly Twitter) and condemnation by free speech advocates after attempting to block anybody, anywhere from seeing video of an attack at a Sydney church. At least for the moment, they've conceded defeat based, in part, on recognition that X is protected by American law, making censorship efforts unenforceable.

The Rattler is a weekly newsletter from J.D. Tuccille. If you care about government overreach and tangible threats to everyday liberty, this is for you.

"I have decided to discontinue the proceedings in the Federal Court against X Corp in relation to the matter of extreme violent material depicting the real-life graphic stabbing of a religious leader at Wakeley in Sydney on 15 April 2024," the office of Australia's eSafety Commissioner, Julie Inman Grant, announced last week. "We now welcome the opportunity for a thorough and independent merits review of my decision to issue a removal notice to X Corp by the Administrative Appeals Tribunal."

The free speech battle stems from the stabbing in April of Bishop Mar Mari Emmanuel and Father Isaac Royel at an Orthodox Christian Church by a 16-year-old in what is being treated as an Islamist terrorist incident. Both victims recovered, but Australian officials quickly sought to scrub graphic video footage of the incident from the internet. Most social media platforms complied, including X, which geoblocked access to video of the attack from Australia pending an appeal of the order.

But Australian officials fretted that their countrymen might use virtual private networks (VPNs) to evade the blocks. The only solution, they insisted, was to suppress access to the video for the whole world. X understandably pushed back out of fear of the precedent that would set for the globe's control freaks.

"Our concern is that if ANY country is allowed to censor content for ALL countries, which is what the Australian 'eSafety Commissar' is demanding, then what is to stop any country from controlling the entire Internet?" responded X owner Elon Musk.

The Electronic Frontier Foundation (EFF) also argued that "no single country should be able to restrict speech across the entire internet" as did the Foundation for Individual Rights and Expression (FIRE). The organizations jointly sought, and received, intervener status in the case based on "the capacity for many global internet users to be substantially affected."

In short, officials lost control over a tussle they tried to portray as a righteous battle by servants of the people against, in the words of Prime Minister Anthony Albanese, "arrogant billionaire" Elon Musk. Instead, civil libertarians correctly saw it as a battle for free speech against grasping politicians who aren't content to misgovern their own country but reach for control over people outside their borders.

Worse for them, one of their own judges agreed.

"The removal notice would govern (and subject to punitive consequences under Australian law) the activities of a foreign corporation in the United States (where X Corp's corporate decision-making occurs) and every country where its servers are located; and it would likewise govern the relationships between that corporation and its users everywhere in the world," noted Justice Geoffrey Kennett in May as he considered the eSafety commissioner's application to extend an injunction against access to the stabbing video. "The Commissioner, exercising her power under s 109, would be deciding what users of social media services throughout the world were allowed to see on those services."

He added, "most likely, the notice would be ignored or disparaged in other countries."

This is where the U.S. First Amendment and America's strong protections for free speech come into play to thwart Australian officials' efforts to censor the world.

"There is uncontroversial expert evidence that a court in the US (where X Corp is based) would be highly unlikely to enforce a final injunction of the kind sought by the Commissioner," added Kennett. "Courts rightly hesitate to make orders that cannot be enforced, as it has the potential to bring the administration of justice into disrepute."

Rather than have his government exposed as impotently overreaching to impose its will beyond its borders, Kennett refused to extend the injunction.

Three weeks later, with free speech groups joining the case to argue against eSafety's censorious ambitions, the agency dropped its legal case pending review by the Administrative Appeals Tribunal.

"We are pleased that the Commissioner saw the error in her efforts and dropped the action," responded David Greene and Hudson Hongo for EFF. "Global takedown orders threaten freedom of expression around the world, create conflicting legal obligations, and lead to the lowest common denominator of internet content being available around the world, allowing the least tolerant legal system to determine what we all are able to read and distribute online."

But if the world escaped the grasp of Australia's censors, the country's residents may not be so lucky.

The fight between eSafety and X "isn't actually about the Wakeley church stabbing attacks in April it's about how much power the government ultimately hands the commissioner once it's finished reviewing the Online Safety Act in October," Ange Lavoipierre wrote for the Australian Broadcasting Corporation.

"The video in dispute in the case against X has been used, in my opinion, as a vehicle for the federal government to push for powers to compel social media companies to enforce rules of misinformation and disinformation on their platforms," agrees Morgan Begg of the free-market Institute of Public Affairs, which opposes intrusive government efforts to regulate online content. "The Federal Court's decision highlights the government's fixation with censorship."

That is, the campaign to force X to suppress video of one crime is largely about domestic political maneuvering for power. But it comes as governments around the worldespecially that of the European Unionbecome increasingly aggressive with their plans to control online speech.

If the battle between Australia's eSafety commissioner and X is any indication, the strongest barrier to international censorship lies in countriesthe U.S. in particularthat vigorously protect free speech. From such safe havens, authoritarian officials and their grasping content controls can properly be "ignored or disparaged."

Read more:
Australian Censors Back Down, Highlighting the U.S. as a Free Speech Haven - Reason

Ask just about any American college administrator and they'll tell you: This past semester was one of the most chaotic on record.

College leadership can enjoy a momentary sigh of relief for surviving the semester marked by post-October 7protests,encampments,congressional inquiries andfreespeechcontroversies. But without real reform, the same problems will be waiting for them in the fall: demands to censor protected speech, questions about what is and isnt protected expression on campus, and increased concerns about student safety amid campus protests.

When facing protest-related challenges, some administrators might be inclined to create policies that further restrict expression. This must be resisted at all costs. The solution must never be censorship but a recommitment to the principles of free expression that have long been the lifeblood of academia.

It is the duty of college leaders to ensure students and faculty understand and respect First Amendment rights and responsibilities. In doing so, they establish a baseline from which they can turn controversy into teachable moments rather than turning to censorship.

The path forward is simple: Craft policies that protect free speech, do not overburden campus expression with oppressive regulations, teach free expression from day one, and commit to making free speech an institutional value before controversy ever arises.

First things first: Colleges and universities must ensure their policies safeguard expression rather than stifle it. While this sounds simple,85% of Americas four-year institutions either clearly and substantially restrict free speech or impose vague regulations on expression. Worse yet, more than1 in 5 students reported that their college administrations stance on free speech on campus is not clear.

As university leadership reviews and solidifies existing policies, it must make those policies as clear and concise as possible. Too often schools attempt to regulate events based on content or viewpoint or place other unreasonable burdens on public expression.

Yes, universities may enforcereasonable time, place, and manner restrictions to ensure expressive activity does not infringe on teaching and learning on campus, but any such restriction must be content- and viewpoint-neutral. In other words, it must be carefully crafted to guarantee faculty and students are able to teach and learn free from substantial interruption while providing alternative options for individuals to express themselves on campus.

We cannot allow illiberal activity to be an excuse to ignore basic First Amendment principles. Now is the time to correct course and ensure these institutions continue to grow as beacons of intellectual exploration and human progress.

Weve already seen calls fromlegislators demanding viewpoint-based restrictions on campus speech. For example, the federalAntisemitism Awareness Act would require the U.S. Department of Education to use a definition of anti-Semitism that is vague, overbroad, and includes criticism of the Israeli government.

Mandating a definition of this nature would not help schools address discrimination, but it would pressure institutions to investigate and censor speech that falls under such a definition even when those statements are protected by the First Amendment. Similar overbroad policies have recently been used to suppress free speech in places like theUniversity of Texas at San Antonio, where an administrator allegedly told protesters that they cannot say Zionism because it qualifies as antisemitic hate speech.

As confidence in higher education reaches historic lows, now is the time for campus leaders to return to first principles and re-establish their institutions as communities devoted to the discovery, preservation, and dissemination of knowledge.

Read More

Second, universities must not strangle free speech with red tape. Institutions likeKean University mandate that students reserve an area multiple days before protesting or passing out pamphlets and brochures. These unnecessary hurdles chill speech by limiting students ability to express themselves in the moment or overburdening students to the point they may choose not to express themselves at all.

Third, we must educate incoming students on the principles of free speech from day one. Unfortunately, colleges today cannot expect students to arrive on campus with knowledge about the boundaries of free speech and academic freedom. For instance,more than a quarter of students said that using violence to stop a campus speech is acceptable to some degree, according to FIREs College Free Speech Rankings. Another 45% said that students blocking other students from attending a speech is at least rarely acceptable. These illiberal forms of mob censorship create environments in which students become afraid to speak up.

Orientation is the perfect time to educate students on the role of free speech on campus, the limits of First Amendment protections, and how students can legally exercise their freedom. From this foundation, students can begin their educational journey without censoring themselves for fear of overstepping the boundaries of protected expression.

Finally, colleges must cultivate an environment where students and faculty are free to push the boundaries of human understanding and challenge themselves and established orthodoxies.

The policy change could spark similar reforms throughout higher education. Where Harvard leads, others follow.

Read More

Some of the countrys premier institutions are already rising to that challenge. Within the past two weeks,Harvard University,Syracuse University, andStanford University have taken proactive steps by committing toinstitutional neutrality, promising to refrain from issuing statements on political or social issues that do not impact core operations of the school. These declarations affirm the schools dedication to providing a platform where students and faculty can engage in debates on contemporary issues, free from institutional bias or commentary.

During the spring semester, we witnessed peaceful protests, civil disobedience, violence, and arrests on our nations campuses. This is not the first time weve seen such turmoil on campus, and it probably wont be the last time. We cannot allow illiberal activity to be an excuse to ignore basic First Amendment principles. Now is the time to correct course and ensure these institutions continue to grow as beacons of intellectual exploration and human progress.

FIRE is happy to work one-on-one with university administrators to reform the speech climate on your campus free of charge. Just email us at speechcodes@thefire.org.

Go here to see the original:
How college leaders can overcome the current campus crisis - Foundation for Individual Rights and Expression

Harvard evolutionary biology lecturer Carole Hooven didnt set out to cause controversy, but her research on hormones and behavior led her to conclusions on a third-rail topic that drove a wedge between her and her peers.

After defending the use of the terms male and female in a public interview, Carole endured a media firestorm and backlash from students, professors, and administrators, some of whom publicly disparaged her for simply sharing her views. The professor defended herself, but the environment became so hostile, she ultimately resigned.

Fortunately, her story doesnt end there. In the wake of the controversy, faculty formed the Council on Academic Freedom at Harvard to further free inquiry and intellectual diversity on campus. As an active member of the now-more-than-170-member group, Carole is working toward a Harvard where faculty can fearlessly pursueVeritas.

If there is any silver lining to losing the career that I found so fulfilling, she wrote in The Free Press, perhaps its that my story will help explain the fear that stalks campuses, a fear that spreads every time someone is punished for their speech.

Read the original:
FIRE's 25 Faces of Free Speech - Foundation for Individual Rights and Expression