Category Archives: First Amendment

Common Dreams

In 'Direct Attack on the First Amendment,' Sessions Declares War on Leaks Common Dreams "Every American should be concerned about the Trump administration's threat to step up its efforts against whistleblowers and journalists," said Ben Wizner, director of the ACLU's Speech, Privacy, and Technology Project. (Photo: Gage Skidmore/Flickr/cc).

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In 'Direct Attack on the First Amendment,' Sessions Declares War on Leaks - Common Dreams

The First Amendment and the winding road of the appellate process are the only things keeping Michelle Carter out of jail.

And the constitutional issue may be what sets her free forever.

Carter, who yesterday was sentenced to 212 years behind bars with only 15 months to actually serve was given a last-second reprieve by Judge Lawrence Moniz. He held off on the punishment at the behest of Carters attorneys who argued that she shouldnt be jailed for a conviction that may not stick.

This is a novel case involving speech, said Joseph Cataldo, Carters lead attorney. These are legitimate issues that are worthy of presentation to the appeals court.

The crux of the argument is that Carter didnt commit a crime when she convinced Conrad Roy III, through texts and phone calls, to get back in his truck as it filled with deadly carbon monoxide fumes. Her communications, according to Cataldo, were protected by the First Amendment.

Massachusetts does not have an assisted-suicide or an encouragement of suicide law in place, and this is violative of the First Amendment, Cataldo said outside court.

Some may remember that the Supreme Judicial Court already ruled on this case and allowed Carters involuntary manslaughter trial to move forward in 2016. However, the high court did not fully tackle the First Amendment ramifications that surround the case.

In his decision, former Justice Robert Cordy mentioned the First Amendment only three times all in footnotes and brushed over the idea that Carters speech may have been protected without a hefty analysis.

But other courts that have dug deeper into this thorny issue have come out differently. In Minnesota, for example, the states high court struck down a law that prohibited people from encouraging or advising suicide, finding that the statute violated the First Amendment.

Speech in support of suicide, however distasteful, is an expression of a viewpoint on a matter of public concern, and, given current U.S. Supreme Court First Amendment jurisprudence, is therefore entitled to special protection as the highest rung of the hierarchy of First Amendment values, the court wrote in its 2014 decision.

Cataldo has 30 days to file his notice of appeal, and from there the trial court record will be put together and a time frame will fall into place. It could take a year, or it could drag on longer. The SJC can, on its own, grab the appeal before the state Appeals Court hears it a move that would show the high court is particularly interested in the case.

I think that will happen here. Two years ago, SJC Chief Justice Ralph Gants told me that his court wasnt interested in calling legal balls and strikes. No, he said the SJCs job is to set the strike zone and dictate clear precedent that other courts in the commonwealth need to follow.

This is one of those cases. In our evolving digital age, where we can communicate with a touch of a button, its important to outline when a text or call or tweet becomes criminal.

Yesterday, Bristol prosecutor Maryclare Flynn seemed to notice that Moniz was about to set Carter free pending her appeal and made a last-ditch effort to change his mind.

This is not a suicide case, she said. This is not a First Amendment case.

Maybe not, but now a high court will have to decide whether or not its both.

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McGovern: Free speech may mean free pass for Michelle Carter - Boston Herald

Certainly subsequent White House news has pushed Donald TrumpDonald TrumpBorder patrol was ordered not to engage with congressmen, lawyers during travel ban Trump says he never called White House 'a dump' Trump to sign memo on Chinese intel property trade practices Friday: report MORE Jr.s June 2016 meeting with a Russian lawyer allegedly pedaling Hillary ClintonHillary Rodham ClintonCongress wants Trump Jr. phone records related to Russia meeting Zuckerberg hires top Clinton pollster amid rumors of presidential run: report Democrats new 'Better Deal' comes up short for people of color MORE dirt to the sidelines. But as more details emerge, even Trump Jr.s brother-in-law, Jared Kushner, has tried to distance himself from the meeting in a statement before his recent closed-door testimony to the Senate intelligence committee.

Some have dubbed the Russia meeting a category 5 hurricaneand many have called for a federal prosecution of the Presidents son. Still, the debate has ignored the First Amendment, a constitutional bulwark that may save the younger Trump.

The right to free speech shields the receipt and dissemination of information. Indeed, truthful information about candidates for high office lies at the heart of constitutional protection. In this case, there is no suggestion that Trump Jr. thought the Russians would feed him falsehoods about Democratic presidential hopeful Clinton. He wanted to learn and perhaps disseminate facts damaging to his fathers opponent.

The First Amendment exists in part to serve this very function the disclosure of truthful information about the people seeking to govern us. As James Madison put it, a popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps both.

What makes this situation complicated is that the Russian government might have obtained the information by breaking hacking or espionage laws in the first place.

Trump Jr. says Russian attorney Natalia Veselnitskaya did not actually have any meaningful information in the June 9, 2016 meeting. But for the sake of argument, lets assume the worst about Trump Jr.s state of mind going into the meeting.

Lets assume he thought he was going to receive information that he knew the Russians obtained through criminal activity.

As long as Trump Jr. did not participate in or encourage the Russian governments illegal activity and there is no evidence in the public domain that he did he has a strong argument that the First Amendment immunizes his conduct. He was just agreeing to receive truthful information.

The Supreme Court considered a similar situation in Bartnicki v. Vopper, a 2001 case in which a journalist received a tape of a conversation among union leaders that someone had recorded in secret, in violation of federal wiretap laws. The journalist did not put anyone up to the illegal recording. The journalist did, however, publicize the recording, and the Court assumed that the journalist knew that the person who made the recording broke the law.

Drawing on the famous Pentagon Papers Case, the 1971 decision that allowed the media to publish classified documents about the Vietnam War, the Bartnicki Court held that the First Amendment protected the journalists right to publicize the recording.

In the current situation, Trump Jr. stands in the shoes of the journalist in Bartnicki, and the Russian government stands in the shoes of the illegal recorder. Like the recorder, the Russian government may have obtained the information illegally.

Like the journalist, Trump Jr. may have known or strongly suspected that the information was obtained illegally, but there is no evidence at present that he participated in or encouraged any illegality.

If special counsel Robert Mueller in his investigation of Russian interference in the 2016 election sought to prosecute Trump Jr. for the meeting, he would likely rely on a campaign finance law that criminalizes accepting money or other thing of value from foreign nationals.

Surely a thing of value means that a campaign cannot accept stocks, bonds, bars of gold, and Renoir paintings from foreign nationals. But deciding whether truthful information about a competing presidential candidate is a thing of value under the statute is more complicated.

The question is so thorny that judges would likely rely on a doctrine called constitutional avoidance. That rule posits that if a statute is ambiguous between two meanings, one of which is potentially unconstitutional and one of which is safely constitutional, the court should opt for the more narrow, and safely constitutional, interpretation.

A narrow reading of the term thing of value that does not criminalize mere information avoids any potential First Amendment problem. Courts would likely adopt that reading of the law. Good news for Don Jr.

To be sure, trouble may lie ahead for the Presidents first born if evidence emerges that he encouraged or participated in Russian criminality. Perhaps Mueller has or will find statements to the Russians from Trump Jr. or others in the campaign like this is greatget me more. The First Amendment does not protect people who join or abet a crime. Or perhaps the presence of Rinat Akhmetshin, a possible Russian spy, at the meeting will lead to evidence that Trump. Jr. was colluding in espionage.

If anyone in the campaign or the family actually were recruited, that would be a serious crime, but the emails released to date suggest that Trump Jr. had no idea that Akhmetshin would attend.

Such is the irony, and the power, of the right to free speech. It protects to everyone, even members of President Trumps inner circle who may well hold the First Amendment in contempt. The elder Trumps disdain for the media is legendary, and he was just sued for First Amendment violations related to his Twitter account.

The Trump family may not like the First Amendment, but they are going to need it.

David M. Shapiro is the director of appellate litigation for the Roderick and Solange MacArthur Justice Center, a clinical assistant professor of law at Northwestern Pritzker School of Law, Chicago, and a Public Voices Fellow through The OpEd Project. He worked previously as a First Amendment and media lawyer in private practice.

The views expressed by contributors are their own and not the views of The Hill.

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How the First Amendment could save Don Jr. - The Hill (blog)

Post Register

Police confront 'First Amendment auditors' Post Register Search First Amendment Audit on YouTube, and you'll likely find hundreds of videos of people recording law enforcement in public areas and refusing to share their names with officers even when requested. One such incident happened June 12 outside the ...

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Police confront 'First Amendment auditors' - Post Register

After months of a pending verdict in a case that raised consequential questions about the constitutional limitations on politicians' social media accounts, a federal court ruled last week that Loudoun County Chairwoman Phyllis Randall (D-At Large) violated Lansdowne resident Brian Davisons right to free speech by temporarily banning him from her Facebook page.

From a circuit court in Richmond to a federal district court in Alexandria, Davison, a software engineer and father of two, has won and lost battles in courtrooms in his pursuit of defending the First Amendment and accessing public records.

But the latest outcome of Davisons suit is one likely to affect politicians around the country, and maybe all the way up to the White House.

What started off as a pro se free speech suit by Davison against the countys chairwoman and Board of Supervisors could now play a key role in a recent lawsuit against President Donald Trump brought by the Knight First Amendment Institute at Columbia University alleging the president suppressed dissent by blocking critics from his Twitter account.

More and more elected officials are turning to online tools to conduct policy, to engage their constituencies, to advance their political agendas. But theyre also using the tools of censorship in those online platforms, and theyve been doing so without an honest conversation about what the First Amendment has to say about that censorship, Alex Abdo, senior staff attorney at the Knight institute, said. We wanted to start that conversation, and the case in Loudoun County has provided an excellent roadmap for how to think about governmental use of social media in the digital age.

Both Davison and the institutes lawsuits grapple with what is becoming a growing trend of politicians barring critics from their social media pages.

The issue has created a legal gray area around public forums in the digital age and peoples web protections under the First Amendment.

Do the social media accounts of politicians create a public forum protected by the First Amendment when they open up their pages to constituents? And if an elected official blocks or deletes critical comments of a user in that forum, does it violate their rights under the First Amendment?

According to U.S. District Judge James C. Cacheris July 25 ruling, yes, it does.

By prohibiting Plaintiff from participating in her online forum because [Randall] took offense at his claim that her colleagues in the County government had acted unethically, Defendant committed a cardinal sin under the First Amendment, Cacheris stated in a 44-page ruling.

Although Cacheris admitted the consequences of Randalls overnight ban of Davison from her page were fairly minor, he said the court could not treat a First Amendment violation in this vital, developing forum differently than it would elsewhere simply because technology has made it easier to find alternative channels through which to disseminate ones message.

Loudoun officials say the county is considering appealing Cacheris ruling.

Meanwhile, the Knight First Amendment Institutes suit against Trump and his associates argues the presidents @realDonaldTrump Twitter account is a public forum protected under the First Amendment that he uses as a key channel for official communication to make formal announcements and defend the administrations positions.

The institute alleges Trumps view-point based blocking of the seven users from his @realDonaldTrump account infringes the Individual Plaintiffs First Amendment rights and imposes an unconstitutional restriction on their participation in a designated public forum.

A murky outcome

But as lawyers from the First Amendment Institute point to Judge Cacheris ruling to help their case against the president, other legal experts say litigating the institute's case and similar suits going forward will be difficult.

A separate ruling just three days after Cacheris' on a free speech suit Davison brought against members of the Loudoun County School Board from a different judge in the same federal court is already showing signs of the legal conundrum.

In a 20-page ruling, U.S. District Judge Anthony J. Trenga said it was unclear whether Davisons First Amendment was violated by several members of the School Board after they removed his critical posts on their Facebook pages.

Here, the law is less than settled as to whether the plaintiff had a right to post on a Facebook page maintained by a public official and that this right was violated when those postings were removed or when plaintiff was prevented from posting his comments, Trenga said.

Trenga noted it was not clear as a legal matter whether the Facebook pages in question were limited or public forums.

These [cases] are relatively new and every court could come up with a different decision, said Clay Hansen, executive director of the Charlottesville-based Thomas Jefferson Center for the Protection of Free Expression. ... I think until we have some conflicting rulings where we have a split among courts that is at the federal circuit level and we can see this being resolved by a supreme court until we get to that stage we wont have any clear sense of how any particular court will handle it.

Hansen said the Trump case will likely be harder to litigate because the president uses both the @realDonaldTrump handle -- an account he created before assuming office -- as well as the official @POTUS account that has been handed off from one administration to the next.

In the case against Randall, the chairwoman tried to argue her Chair Phyllis J. Randall Facebook account was a personal page, but Cacheris pointed out that Randall created the page the day before she assumed public office with the help of her chief of staff. He also noted she created the account for the purpose of addressing her constituents and asked them to post on the page in question, thus, the account was born out of and inextricably linked to the fact of Randall's public office.

Following Trengas decision, County Attorney Leo Rogers said an appellate court would need to clarify how and when social media constitute public forums.

Eric Goldman, a California-based law professor at Santa Clara University who heads a blog that has closely followed Davisons suits, thinks although Cacheris ruling will be persuasive evidence in the First Amendment Institutes case, but the contrasting set of facts in the Randall and Trump cases could be problematic in litigating a case against the president and similar ones in the future.

I think this ruling gives the plaintiffs additional support for their legal arguments. So, I'm sure they'll be citing it and I'm sure that the judge will be interested in it, Goldman said. Whether or not the facts are extrapolatable enough is I think going to be a point of contention. And so, the defense arguments will be this is different and here's all the reasons why: Trump is in a different position than the supervisor in this case, or the implications of blocking somebody on Facebook are different than the implications of blocking someone on Twitter.

Goldman said the judge in the Trump case will also need to consider, from a philosophical perspective, the implications a favorable ruling could have on the nation.

I think that any judge is going to have to think very carefully about what it means to say that the president violated the Constitution, Goldman said. ... Judges are going to see in their career dozens of burglaries, but they're probably not all going to have one case where they rule on the top elected official in our country having violated our foundational principles.

The cost of activism

In addition to Davisons two suits against the county's Board of Supervisors and School Board, in a separate suit he has challenged Loudoun Commonwealths Attorney Jim Plowman (R). All of the suits accuse the defendants of either blocking him from their Facebook pages or deleting critical comments he posted.

In March, Judge Cacheris ruled that Plowman did not violate Davisons First Amendment right by deleting the Lansdowne residents Facebook posts.

However, Davison is in the process of appealing Cacheris March decision and says he plans to also appeal Trengas ruling in his suit against the School Board.

Davison is now in the midst of a Freedom of Information Act (FOIA) Act suit against state Sen. Siobhan Dunnavant (R) in Henrico County.

He says a victory in a Richmond Circuit Court last year in his request for the Virginia Department of Education to release test score data showing student growth instilled a sense of confidence in him to pursue his First Amendment cases.

But his legal pursuits have not come without a cost. Davison says the repercussions of the suits will follow him for the rest of his professional career.

If Im a politician or Im an attorney, these cases help me, Davison said. In no way shape or form do these cases help me. When we have government clients, if they look my name up and see, Oh wow theres controversy around this person' that can only hurt me. There can be no near-term advantages that I can see, only consequences.

Still, he believes he's fighting for a fundamental American freedom.

From my perspective, it was just, 'Hey, am I going to sit here and watch it and put up with it? And I finally just got tired and thought I could help, Davison said of his lawsuits.

Related coverage:

-"Loudoun resident files civil rights suits against county officials over social media censorship" -"Federal judge sides with Loudoun commonwealths attorney in First Amendment suit" -"Loudoun County chairwoman, Lansdowne resident meet in federal court" -"U.S. District judge rules Randall violated Lansdowne residents First Amendment right" -"Federal court dismisses Lansdowne residents free speech suit against Loudoun County School Board"

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Loudoun County resident's First Amendment case may benefit free-speech group's suit against Trump - Loudoun Times-Mirror

(Reuters) - Thanks to the First Amendments Establishment Clause, U.S. courts have to be extremely wary of taking sides in doctrinal disputes between religious groups. On the other hand, as retired U.S. Supreme Court Justice David Souter pointed out Wednesday in his opinion for the 1st U.S. Circuit Court of Appeals in Congregation Jeshuat Israel v. Congregation Shearith Israel, the Free Exercise Clause means courts cant interfere with religious autonomy.

Judges have to navigate between those twin risks, Justice Souter said, using the map the Supreme Court provided in 1969s Presbyterian Church v. Mary Elizabeth Blue Hull: When property disputes reflect religious cleavages, courts should avoid entanglement with the doctrinal issues and hew closely to civil law.

So, according to the 1st Circuit, no matter how fascinating the history of one of the oldest synagogues in the U.S. nor how rich the tale of the divide between the Sephardic and Ashkenazi Jews who worshipped there, the dispute between two warring congregations comes down to ordinary documents: 1903 and 1908 leases, a 1945 agreement with the U.S. government and a 2001 deal with the National Trust.

It is these common instruments for establishing ownership and control that most readily enable a court to apply the required, neutral principles in evaluating disputed property claims, wrote Justice Souter for a panel that also included Judge Sandra Lynch and 10th Circuit Judge Bobby Baldock, sitting by designation. When such provisions of deeds, charters, contracts, and the like are available and to the point, then, they should be the lodestones of adjudication.

Reversing an epic 2016 decisionby U.S. District Judge John McConnell of Providence, the 1st Circuit found that the documents proved New York Citys Congregation Shearith Israel to be the rightful owner of a 250-year-old synagogue in Newport, Rhode Island, even though Newports Congregation Jeshuat Israel has worshipped there and maintained the building for more than 100 years.

The Newport synagogue - formally known as the Touro Synagogue in honor of two brothers who bequeathed thousands of dollars to keep it standing in the 1800s embodies the divide between Americas original Jewish settlers from Spain and Portugal and those who arrived two hundred years later in a wave of immigrants from Central Europe.

The first Jews to arrive in Newport, in 1658, were Sephardim, mostly of Spanish and Portuguese descent. By the mid-1700s, their community was sufficiently well-rooted to begin raising money to build a synagogue. Sephardic Jewish communities from around the world, including the New York City congregation known as Shearith Israel, contributed to the Newport appeal. In 1763, the Newport congregation, Yeshuat Israel, or the Salvation of Israel, celebrated the dedication of its brand-new synagogue. Myer Myers, a colonial silversmith who was a member of the congregation, created elaborate silver-and-gold finials, known as rimonim, to adorn Yeshuat Israels Torah scrolls.

Alas, most of the Sephardic Jews who founded Yeshuat Israel left Rhode Island when the Revolutionary War decimated Newports shipping industry. The last of Newports Jews died in 1822, according to Judge McConnells utterly compelling 2016 opinion.

As Judge McConnell recounted the story, many of the Sephardic Jews who left Newport ended up joining New York Citys Shearith Israel. The New York congregation cared for the Newport synagogue and the synagogues contents for several decades in the 19th century, when Newport didnt have enough Jews to sustain it.

But over the last half of the 1800s, a new wave of Jews arrived in Rhode Island. Unlike their Sephardic predecessors, these Jews were mostly Ashkenazi from Russia and Central Europe. The two cultures followed slightly different religious rituals. The crucial doctrinal difference, as it would turn out, is that the Sephardim prohibit the disposition of ritual objects and the Ashkenazi do not.

At the turn of the nineteenth century, the Newport Ashkenazi staged a year-long occupation of Touro Synagogue at the turn of the century, after the New York Sephardim from Shearith Israel shut them out of the building in a dispute over the appointment of a new religious leader. The warring congregations eventually put aside their differences to execute a 1903 lease agreement allowing Congregation Jeshuat Israel to use the building, although the lease specified that the Ashkenazis must conduct services according to the ritual rites and customs of the (Sephardic) Jews as at this time practiced.

The two congregations renewed the lease in 1908. In 1945, the New York group reached an agreement with the U.S. Department of the Interior to preserve Touro Synagogue as a national historic site. The Newport congregation signed the agreement as a leaseholder. Congregation Jeshuat Israel similarly affirmed its leaseholder status in a 2001 agreement between the congregation, a group known as the Society of Friends of Touro Synagogue and the National Trust for Historic Preservation. That contract, according to the 1st Circuit, described the Newport congregation as having possession of the site through a lease with Congregation Shearith Israel as owner.

Despite their mutual respect for Touro Synagogue as a landmark of American Jewish history, relations between the New York and Newport congregations were prickly. (Justice Souters exceedingly dry description: a want of cordiality.) Matters exploded in 2011, when the Newport group proposed selling the historic Myers Torah ornaments to establish an endowment for their congregations activities. Bostons Museum of Fine Arts offered more than $7 million. The New York congregation protested that a sale would violate the terms of the lease agreement, which required adherence to Sephardic practices. Litigation ensued.

Judge McConnell concluded after a nine-day bench trial and copious historical research that the New York congregation was actually a trustee for Touro Synagogue, not the owner, and that the Newport congregation has a right to oust the New York group as trustee. The judge also found the Newport congregation to be the outright owner of the Myers Torah adornments.

The judge tried to follow the U.S. Supreme Courts directive from the Presbyterian case, grounding his opinion in the legal agreements between the two congregations, as well as ancient deeds, wills, trust documents and congregation account books.

But when the 1st Circuit reviewed his opinion, it concluded Judge McConnell wasnt quite careful enough. As Justice Souter put it, with great delicacy: These are circumstances in which we think that the First Amendment calls for a more circumscribed consideration of evidence than the trial court's plenary enquiry into centuries of the parties' conduct by examining their internal documentation that had been generated without resort to the formalities of the civil law.

In a strict reading of the documents, the 1st Circuit found no reference to a trust in the lease agreements between the New York and Newport congregations, which assumed the New York group owned Touro Synagogue. The appeals court also held the Torah ornaments are encompassed in the leases reference to paraphernalia, so the New York congregation owns them as well.

The New York congregation is represented by Greenberg Traurig and Locke Lord. Greenberg partner Louis Solomon, who argued before the 1st Circuit, told my Reuters colleague Chris Kenning that his clients will continue to uphold their obligations to Touro Synagogue and look forward to putting this unfortunate litigation behind us. Gary Naftalis of Kramer Levin, who argued for the Newport congregation, said hes exploring the groups options.

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Justice Souter, the First Amendment and the case of the synagogue standoff - Reuters

Furthering its efforts around the First Amendment, the Radio Television Digital News Association has joined more than 20 organizations in launching the U.S. Press Freedom Tracker, a website dedicated to documenting abuses against journalists.

The tracker is a repository of data tracking incidents arrests of journalists, equipment searches and physical attacks among them at a time when journalists in the U.S. are facing increasing hostility, RTDNA said.

Reporters covering protests in Washington and North Dakota, for instance, are among 19 journalists charged with crimes so far this year. Ten are currently facing charges, RTDNA said.

Twelve journalists have been subject to equipment searches, and 10 have been physically attacked, the tracker shows.

The tracker shows data collected from news reports and submissions. The Columbia Journalist, Review, Investigative Reporters & Editors and Knight First Amendment Institute are among partnering organizations.

RTNDAs support of the tracker is part of the groups larger multi-faceted initiative fighting the range of threats, from limits to ugly rhetoric, that impede journalists from doing their jobs. The group launched a First Amendment task force earlier this year.

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RTDNA Joins Free Press Groups in Tracking First Amendment Abuse - Broadcasting & Cable

Editors note: This commentary is by Peter Berger, an English teacher at Weathersfield School, who writes Poor Elijahs Almanack. The column appears in several publications, including the Times Argus, the Rutland Herald and the Stowe Reporter.

Over recent decades, public schools have been drafted to play Hemingway while the rest of us have taken turns impersonating Joyce.

This brings us in a roundabout way to the First Amendment.

The Founding Fathers were adamant that free speech and a free press are essential for the health and survival of a free republic. I agree with Benjamin Franklin that there is no such thing as public liberty without freedom of speech. In a day where we see the press corralled, berated and threatened at campaign rallies, and where the president echoes Stalin and Mao to declare our free press the enemies of the people, Im especially leery about any abridgement of anyones free speech rights.

However, I tell my students that the First Amendment doesnt mean you can say whatever you want whenever you want to. The government limits citizens speech all the time without violating the Constitution in a judges courtroom, in my classroom during instruction and tests, and, borrowing from Justice Holmes, by barring us from knowingly and falsely shouting Fire in a crowded theater.

The nexus of free speech and classrooms is important to me as a teacher not only because of my ardor for the First Amendment, but also because it illustrates societys failure to grasp classroom reality which brings us back to Joyce and Hemingway.

Courts have clarified students free speech rights in several signal decisions. In a Vietnam-era student protest case, the Supreme Court ruled that students and teachers dont shed their constitutional rights to freedom of speech or expression at the schoolhouse gate, and that schools can suppress student political speech only if that speech would materially and substantially interfere with the schools mission and operation.

One concurring opinion stipulated that students free speech rights are not the same as or co-extensive with those of adults. A dissenting justice expressed what he considered the courts consensus that school officials should be granted the widest authority in maintaining discipline and good order unless their limitations on students speech are motivated by their own political opinions. Going further in his dissent, another justice warned that the courts decision effectively compels the teachers, parents, and elected school officials to surrender control of the American public school system to public school students.

Two decades later the court clarified its position in a case involving a student who used sexually suggestive language and lewd innuendo in a campaign speech at a school assembly. This time the courts majority held that while the First Amendment protects some offensive forms of speech for adults, the same latitude of expression is not permitted to children in a public school. Officials concern for the sensibilities of other students constitutes a legitimate reason to limit student speech.

These precedent-setting rulings bear on a more recent case that affords a look at decisions that officials including judges make and how they dont reflect but do affect real students and teachers like me. The case this time featured breast cancer awareness bracelets bearing the inscription I (heart) boobies. Administrators banned the bracelets as vulgar and inappropriate for middle school. When two female students defied the ban and were suspended, they sued the district for violating their First Amendment right to free speech.

The schools attorney argued that the I love boobies message pushes the limits of propriety in public schools, undercuts efforts to maintain reasonable decorum, and disrupts the schools proper focus on education. He asserted that administrators should be able to prohibit the use of lewd language to convey political or social messages when the same message can be conveyed in a more decorous manner without lewd language.

The ACLU lawyer representing the students countered that I love boobies did not reasonably pose a substantial material disruption to learning and middle school student behavior.

A series of federal courts eventually concluded that the boobies bracelets were not plainly lewd and were protected as a commentary on a social issue, specifically breast cancer. The Supreme Court declined to hear the case on appeal, which left standing the lower courts decision and overturned the districts ban.

Its worth noting that at the same time this federal court in Pennsylvania was outlawing the ban, a federal court in Indiana was ruling that a school in its jurisdiction could impose a ban on the same boobies bracelets.

Lets set aside the vagaries of our federal court structure, and the image of 13 robed federal jurists discussing boobies for a full hour. Lets also agree that fighting breast cancer is worthwhile.

The principal of the school, herself a breast cancer survivor, banned the bracelets as imposing a substantial risk of disruption and distraction. In contrast, while conceding that there are always immature boys, one of the student plaintiffs opined, But I dont think its that disruptive.

Who should get to decide how much disruption is too much a seventh-grader or the school principal?

Before you answer, consider the T-shirt promoting testicular cancer awareness, also in current circulation, that bears the message, I love balls. How about the bisexual female high school student who came to school wearing a shirt declaring I Enjoy Vagina? Do we allow this as protected speech regarding her sexual preference? Do we allow a male student to wear the same shirt? How about the male football team?

The courts have ruled that administrators decisions must turn on whether they can reasonably forecast that the speech in question will disrupt education, violate other students rights, or obstruct appropriate discipline. No one can better judge what could likely disrupt a particular school than the principal and teachers who work there, the people entrusted with educating our children in the first place.

If you cant trust me to decide about bracelets and T-shirts, how can you possibly trust me to disseminate ideas?

As for our distinguished jurists, anybody who cant predict that many adolescents will have a disruptive, harassing field day with slogans that include reproductive organs and allied body parts shouldnt be in the position of deciding whats reasonable.

Once again your public schools have been rendered impotent.

Smirking vulgarity has triumphed in the name of free speech.

The courts and the general public will cluck their tongues at the further decline of public education.

Deal with it, Hemingway, theyll demand as they duck for cover.

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Peter Berger: Students and First Amendment rights - vtdigger.org

(Reuters) - In 1986, when Congress enacted the Computer Fraud and Abuse Act, the Internet was still in its larval stage. Some U.S. government agencies communicated via the Defense Departments Arpanet, the Internets precursor. Universities and research centers were just starting to network with the government and each other. Commercial Internet service providers didnt exist. Tim Berners-Lee hadnt yet published his revolutionary proposal to link computers around the worldto share information. Mark Zuckerberg was 2 years old.

The CFAA, in other words, was not written to answer the question posed in litigation between the data analytics company hiQ and the social media site LinkedIn: Does a social media site control access to information its users post publicly? As Ive previously explained, hiQs business is to sell employers data analysis bases on their employees public LinkedIn profiles. LinkedIn believes hiQs data harvesting violates its rules. In May, LinkedIn sent hiQ a cease-and-desist letter advising the data company that LinkedIn had blocked its access to members profiles. If hiQ attempted to circumvent the block, LinkedIn said, it could face prosecution under the 1986 computer fraud law, which criminalizes unauthorized access to a computer.

Last month, hiQ sued LinkedIn, seeking an injunction to allow hiQ to continue scraping public data from LinkedIn. LinkedIn is allowing hiQ access while the litigation moves forward, but hiQs CEO, Mark Weidick, has said (including to me in an interview Tuesday) that his business probably wont survive if it loses its case against LinkedIn.

But hiQs fate is hardly the only consequence of the case. U.S. District Judge Edward Chen of San Francisco, who presided last week over a hearingon hiQs motion for a preliminary injunction, will have to decide whether the CFAA is in tension with the First Amendment. Can private Internet companies use the CFAA to control access to public information? Or does the doctrine of constitutional avoidance preclude interpreting the 1986 law in a way that implicates the First Amendment?

Its no accident that both hiQ and LinkedIn brought in top-notch constitutional lawyers to argue at last weeks hearing. Former U.S. Solicitor General Donald Verrilli of Munger Tolles & Olson represented LinkedIn, which contends hiQ has no First Amendment right of access to LinkedIns computer servers. Under the 9th Circuits interpretation of the CFAA, LinkedIn argued, hiQ is akin to a trespasser who has been warned to go away.

Verrilli drew an analogy between LinkedIns publicly available profiles and books in a public library. You go and get books and other information and material from the public library, but the fact that the information's available to the public in that sense doesn't mean that you can break into the library with a crowbar at two in the morning because you're seized with a desire to read 'Moby Dick', Verrilli said. It doesn't mean that you can take a book out, when you're supposed to return it in two weeks, and keep it for a year, because you want that information. It doesn't mean if your library privileges have been revoked for abusing the rules, that you can show a fake ID at the door to get back in. The information's public, but it's subject to conditions.

Verrillis library comparison was sufficiently compelling that hiQs constitutional heavyweight, Harvard professor Laurence Tribe, took care to counter it. Library books, he said, used to have borrowing cards in the back of books showing how often books were checked out. A borrower could presumably could have looked at those cards to figure out which books were most popular a rudimentary form of the data analytics hiQ performs. LinkedIn, in Tribes analogy, is trying to use the threat of government prosecution under the CFAA to bar hiQ from looking at an electronic equivalent of those old-school library book cards.

For the government to make it a crime for me to make use of that information because they want to be the exclusive distributors of information about what's popular to read would, of course, be unconstitutional, Tribe said. That's the setting in which I want to put this case.

According to hiQ, which is also represented by Farella Braun & Martel, LinkedIns trespassing comparisons dont apply because hiQ never ventured beyond public LinkedIn profiles. The data company didnt use someone elses password to access LinkedIn, for example, or hack LinkedIn servers. HiQ argued that social media sites like Facebook, LinkedIn and Twitter are modern-day public forums, as the U.S. Supreme Court just held in June, in Packingham v. North Carolina. The CFAA, hiQ contends, cannot be read to give LinkedIn the power to use government authority to suppress the public flow of information.

Giving any powerful entity, public or private, the ability to choke off, at its discretion, speech is a dangerous path down which we should not go, Tribe said at the hearing.

Judge Chen, who previously presided over one of the 9th Circuits landmark CFAA cases, U.S. v. Nosal, was admirably engaged with both sides lawyers during oral argument, thanking them at the end of the hearing for their superb presentations. He promised a quick decision, since, as he said, I've got a feeling it's not going to end here.

Ive got a feeling hes right about that.

Originally posted here:
HiQ v. LinkedIn: Does First Amendment limit application of computer ... - Reuters

As a chapter chair of College Republicans, I have never been more alarmed by the blatant attack on our First Amendment rights to freedom of speech than I am at the present.

Over the past decade (and particularly the past year), universities across the country have left conservative-leaning students and faculty reeling over their treatment of seemingly benign ideas. Organizations like Campus Reform were forced into existence as a response to faculty and administration officials on various campuses to expose behavior that was intended to stifle conservative views. While student groups like College Republicans and Turning Point USA are attempting to reverse the dangerous course that many of these campuses are set on, the have a long way to go before higher-education can be taken seriously again.

While stories about liberal campuses enforcing liberal policies and in some cases disenfranchising their conservative students go back many years, it appears that incidents have spiked over the past year in particular. It doesnt take much for many of us to recall the riots in Berkeley, California over Milo Yiannopoulos and the violence that was caused. However, the nonsense continues heavily in California, where a case in which conservative students at Orange Coast College allege that their college hired an investigator to harass them is only one of many in the state.

However, its clear that the problem isnt just California, its everywhere. The Foundation for Individual Rights in Education (FIRE) has logged hundreds of cases across the nation, including ones in Louisiana and Texas. The organization has handled cases at LSU, Texas A&M San Antonio, TCU, Texas Tech, and others over cases regarding free speech and other topics. As recently as yesterday, in a case that has not been noted by FIRE but rather by media outlets, a student government diversity chair from the University of Central Florida declared on social media that Trump supporters are not welcome on our campus. These cases are not isolated; they are rampant throughout the United States.

Today, that very same sort of case came to Southern Methodist University in the worst sort of way. Last week, the SMU chapter of Young Americans for Freedom submitted a request in order to place 2,977 flags in memory of the victims of the September 11th attacks. Not only was their request denied by SMU administration, but the administration included in its response letter that The University also respects the right of all members of the community to avoid messages that are triggering, harmful, or harassing. The SMU College Republicans, along with SMU College Democrats, Turning Point USA at SMU, Mustangs for Life, SMU Feminist Equality Movement, and SMU Young Americans for Freedom all responded with a fierce bipartisan rebuke of the administrations decision.

A flag memorial to honor those who lost their lives in the events of 9/11, or displays promoting the education and discussion of the pro-life, pro-choice movements among SMU students must not be viewed as attacks on others. In choosing to view these displays as such, SMU is deviating from its call as a center of higher learning. Its mission is to be a place where ideas are challenged and intellect thrives, not a place to hide or silence alternative points of view, reads the letter from the student groups to the SMU president. The letter is absolutely correct: inhibition of free speech, no matter which side of the spectrum, no matter how much you individually disagree with it, and no matter how stupid it may seem to you, is not good for a free society. Its insulting to the memory of the 2,977 victims of 9/11 to insinuate that a memorial to them would be triggering, and its even more disconcerting the standard that this policy would set. Colleges and universities will undoubtedly produce our nations next set of leaders, conservative or liberal. By teaching these students that its okay to void another persons opinion simply because it offends you in some way isnt diverse, and its intellectually bankrupt. In fact, its degrading the very purpose of our Constitution. It teaches potential future leaders that its okay to take away the rights of someone due to their opinions.

Luckily for us, it appears that the student body at Southern Methodist University at least understands that free speech is something to be valued. Lets hope that message is spread to the rest our campuses as well.

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SMU Becomes the Face of the Collegiate War On The First Amendment - The Hayride