Category Archives: First Amendment

A federal judge Wednesday blocked the Lower Elkhorn Natural Resources District from enforcing sanctions against a board member after she spoke to a local newspaper about a complaint she filed with the executive committee against a fellow board member.

Daniel Gutman, director of the First Amendment Clinic that filed the case on Melissa Temple's behalf, called it an important victory for Temple, and First Amendment principles generally.

"The injunction entered by the Court is an important first step in fully restoring Director Temples rights as a duly elected representative," he said in a statement.

Temple was elected to a four-year term, starting January 2023, representing the eastern half of Norfolk on the Lower Elkhorn NRD, a public board charged with conserving, protecting, developing and managing the natural resources of the state.

Three months into the job she filed a complaint against a fellow board member, Scott Clausen, alleging he had made a "degrading comment" at a public meeting about her ability to serve on the board and had "shown a consistent pattern of misogynistic, inappropriate, and offensive behavior while on the LENRD board."

She asked for sanctions against Clausen, but instead of sanctioning Clausen, a majority of the board voted to remove Temple from subcommittee assignments for a year, barred her from being reimbursed for out-of-district travel expenses and publicly reprimanded her afterdetermining she had violated the district's code of decorum by sharing details of her complaint with the public.

In the lawsuit the first filed by theNebraska College of Laws First Amendment Clinic Gutman sought a preliminary injunction seeking to suspend the sanctions as the case works its way through the federal court, alleging they violated her First Amendment right to free speech and prevented her from doing her duties as a duly-elected board member.

In a 15-page order Wednesday, Senior U.S. District Judge John Gerrard said both sides agreed Temple's statements to the Norfolk Daily News were protected by the First Amendment. While the LENRD tried to characterize the sanctions as a result of Temple's "poor judgment" and "lack of decorum," he said it was clear in the letter recommending sanctions that the executive board wanted to punish her for speaking to the newspaper about Clausen.

The question at this stage was whether Temple had been harmed by the actions in a way that would chill an ordinary person in her position from doing the same again.

Gerrard said it "does not offend the Constitution" to remove Temple from sitting on subcommittees, because they are entirely voluntary and none of her voting rights are implicated.

"Now, whether it should do so in the district's best interest is a separate question to be considered by the political body and by the district's voters," he wrote.

But he found that Temple's speech had been chilled by the board's decision to revoke her right to receive reimbursements to which she's statutorily entitled that add up to about $6,600 a year and for which LENRD already has budgeted.

He said Temple and her constituents are the ones suffering "due to her inability to attend workshops, conferences, and out-of-district LENRD projects."

Gerrard said under the statute the LENRD only had the power to disapprove unnecessary out-of-district travel expenses, and she was likely to be successful on her First Amendment retaliation case as it pertained to sanctions regarding per diem and reimbursement payments.

"The LENRD argues that an injunction would 'erode public confidence in the elective process since the decision to censure (Temple) was made in open session of a public meeting.' Frankly, this whole ordeal has the potential to erode public confidence in the LENRD's ability to govern," the judge said.

He said because Temple is a first-year member of the LENRD with no previous governmental experience, the public particularly those who live in the eastern part of Norfolk is served by her ability to attend trainings and programming relevant to her representation.

Gerrard said he had resolved the issues presented at this stage of the proceedings.

"What the parties must resolve is how they are going to move forward and govern together in 2024. As the calendar turns to a new year in a few days, now is a good time for the parties to determine how they will get along and govern in the best interests of the public," he wrote.

"Les Miserables" coming to Lied Center in January; Two Lincoln men challenging gun charges after Supreme Court rulings; South Lincoln Lazlo's "working on plan to reopen" after fire.

St. Teresa Catholic School students Ephram Rutledge (center) and Paul Johnson (right) sing Christmas songs outside the Governor's Mansion during the inaugural "Hometown Christmas" celebration Sunday.

Nebraska's Lexi Rodriguez (right) places the Nebraska logo on a ticket to Tampa after winning in an NCAA Elite Eight match against Arkansas on Saturday, Dec. 9, 2023, at the Devaney Sports Center.

Rabbi Mendel Katzman, executive director at Chabad of Nebraska and a member of the Omaha Police Department Chaplains Corps, uses the shamash to light a second candle of the menorah on Tuesday during a ceremony in the Capitol Rotunda. In Hebrew the word "menorah" translates to lamp.

Nebraska's Laney Choboy (6) dives into head coach John Cook as she tries to save the ball from going out of bounds in the third set, during an NCAA Regional Semifinal match held at the Bob Devaney Sports Center, on Thursday, Dec. 7, 2023, in Lincoln.

Wearing his black Stetson cavalry hat, Sgt. 1st Class Joseph "Joey" Prichard of Omaha embraces his wife Samantha Prichard on Thursday at the Nebraska National Guard base in Lincoln. This was the second deployment for Prichard, with the first in 2010 to Afghanistan. "It's always a surreal moment. It doesn't hit you until you see them, you know you're coming home," he said. "I couldn't fight the tears. I did it on my first deployment too. I cried when I said goodbye to her, and now when I come home." A total of 91 Nebraska Army National Guard soldiers in the Troop C, 1-134th Cavalry returned to Nebraska on Thursday after a 10-month deployment to the Middle East.

Guests walk by the newly completely hangar-style addition at Lincoln North Star High School during an open house Monday. The $5.4 million expansion will house the school's aviation focus program.

The Journal Star Super-State first team includes (from left) Papillion-La Vista South's Lauren Medeck, Papillion-La Vista's Faith Frame, Bennington's Olivia Mauch, Grand Island's Tia Traudt, Lincoln Southwest's Malayah Long, Papillion-La Vista's Mia Tvrdy and Norris' Anna Jelinek.

The Career Academy students Amber Ortega (left) and Kameron Beckler cook during the annual Lincoln Public Schools culinary competition on Wednesday at The Career Academy.

Creighton's Trey Alexander makes a dunk against Nebraska's Rienk Mast on Sunday, Dec. 3, 2023 during the second half of a game at Pinnacle Bank Arena.

Hana Sindi, from Lincoln, holds a sign and chants alongside fellow protestors on Sunday, Dec. 3, 2023 during a Justice for Palestine march on the pedestrian bridge at Pinnacle Bank Arena. I support Palestinian liberation and freedom from illegal occupation, Sindi said.

11-year-old Dima al-Shorman (left) and her sister, Huda al-Shorman, 12, arrange a miniature farm at a play station on Saturday during the opening day of the new Here We Grow exhibit at Lincoln Childrens Museum.

Nebraska's Kennedi Orr checks her phone as teammate Bekka Allick takes a rest in the locker room after an NCAA Elite Eight match on Saturday, Dec. 9, 2023, at the Devaney Sports Center.

Nebraska's Ally Batenhorst (14) slams down a kill against Georgia Tech's Tamara Otene during an NCAA Sweet 16 match Thursday at the Devaney Sports Center.

Jeremy Charging Hawk (left) counts a handful of dollars he made panhandling with his friend, Calvin, on Friday near 13th and on O streets in downtown Lincoln. A new partnership between CenterPointe and the Lincoln Police Department is designed to keep people experiencing homelessness out of jail.

Bride-to-be Taylor Schulz peruses the wedding dresses on saleat the former location of Dream Dress Express and Tip Top Tux on Saturday in Lincoln.

University of Nebraska-Lincoln assistant professor Aziza Cyamani (second from right) listen as students Wijdan Almamari (right), Will Janecek (from left) and Said Al Mahrouqi discuss their design concept for the Old City Hall on Friday.

Nebraska's Merritt Beason (13) and Bekka Allick (5) celebrate after a block against Missouri in the second setduring a second-round NCAA Tournament match on Saturday at the Devaney Sports Center.

Nebraskas bench erupts as Alexis Markowski is fouled making a basket against Georgia Tech on Saturday, Dec. 2, 2023, during the second half at Pinnacle Bank Arena.

Pius X's Ava Markowski (40) and Millard North's Izzie Galligan (22) fall to the floor as they chase down a loose ball in the first quarter at Lincoln Pius X High School, on Thursday, Nov. 30, 2023.

Bia Espinoza, owner of Susa's Sweets & Balloons, stands at her pop up shop located inside Union Bank Place on Thursday.

Nebraska's Allison Weidner (left) joins her teammates on the bench as they celebrate a point against Florida Atlantic in the third quarteron Wednesday at Pinnacle Bank Arena.

Amanda Docter of Lincoln uses a torch to heat the beginnings of a handmade glass ornament, or "glaskolben," while studio manager Matt Losee watches on Monday during a holiday workshop at Lincoln Hot Glass.

A near-full-moon rises over Memorial Stadium on Sunday, Nov. 26, 2023 in downtown Lincoln.

The first snow of winter falls over the Nebraska State Capitol on Saturday, Nov. 25, 2023 in downtown Lincoln.

Nebraska players, including Quinton Newsome (6), emerge from the tunnel before the game on Friday at Memorial Stadium.

Nebraska's Tamon Lynum (left) watches as Iowa players, from left, Tory Taylor (9), Luke Lachey (85), and Steven Stilianos (86) lift kicker Marshall Meeder (92) to celebrate Meeder's game-winning field goal on Friday at Memorial Stadium.

Nebraska'sJaylen Lloyd (right) celebrates his second quarter touchdown against Iowa with teammate Chubba Purdy on Friday at Memorial Stadium.

Nebraska's Nouredin Nouili (63) embraces his family, including motherMelanieRagaller (left) and sister Luna Ragaller (right),during the Senior Day activities before the Iowa game on Friday at Memorial Stadium.

Robert and Stefanie Kirkland from Lincoln sport turkey costumes during the 5K portion of the YMCA of Lincoln Turkey Trot on Thursday in downtown Lincoln.

Nebraska's Keisei Tominaga celebrates after scoring from beyond the arc in the first half at Pinnacle Bank Arena, on Wednesday, Nov. 22, 2023.

Reach the writer at 402-473-7237 or lpilger@journalstar.com.

On Twitter @LJSpilger

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Judge rules in favor of sanctioned Norfolk NRD member - Lincoln Journal Star

So holds Judge William Shubb (E.D. Cal.) in X Corp. v. Bonta:

AB 587 requires that social media companies post their terms of service "in a manner reasonably designed to inform all users of the social media platform of the existence and contents of the terms of service." The law also requires that such companies submit twice yearly "terms of service reports" to the Attorney General containing, inter alia, the current version of the terms of service for their platform, as well as a description of content moderation practices used by the social media company for that platform, including, but not limited to, how the company addresses (A) hate speech or racism; (B) extremism or radicalization; (C) disinformation or misinformation; (D) harassment; and (E) foreign political interference.

The "terms of service" as defined in AB 587 appear to bear all of the hallmarks of commercial speech. Under Bolger v. Youngs Drug Products Corporation (1983), there is "strong support" for finding that the speech is commercial where "(1) the speech is an advertisement, (2) the speech refers to a particular product, and (3) the speaker has an economic motivation."

Although the terms of service may not literally be advertisements in the sense of proposing a commercial transaction, they are directed to potential consumers and may presumably play a role in the decision of whether to use the platform. They refer to the company's product or service, i.e., the social media platform, and communicate important information concerning the platform and how users may utilize the product.

There is also an economic motivation implicated by communicating information about the platform in the company's terms of servicewhich social media companies, including X Corp., typically do voluntarilyso that individuals can decide whether they want to use it.

Because the terms of service are part of a commercial transaction and appear to satisfy the Bolger factors, the court will treat the terms of service requirement as a provision requiring commercial speech. Considered as such, the terms of service requirement appears to satisfy the test set forth by the Supreme Court in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985), for determining whether governmentally compelled commercial disclosure is constitutionally permissible under the First Amendment. The information required to be contained in the terms of service appears to be (1) "purely factual and uncontroversial," (2) "not unjustified or unduly burdensome," and (3) "reasonably related to a substantial government interest."

The reports to the Attorney General compelled by AB 587 do not so easily fit the traditional definition of commercial speech, however. The compelled disclosures are not advertisements, and social media companies have no particular economic motivation to provide them. Nevertheless, the Fifth and Eleventh Circuits [in the Netchoice cases] recently applied Zauderer in analyzing the constitutionality of strikingly similar statutory provisions requiring social media companies to disclose information going well beyond what is typically considered "terms of service."

Following the lead of the Fifth and Eleventh Circuits, and applying Zauderer to AB 587's reporting requirement as well, the court concludes that the Attorney General has met his burden of establishing that that the reporting requirement also satisfies Zauderer. The reports required by AB 587 are purely factual. The reporting requirement merely requires social media companies to identify their existing content moderation policies, if any, related to the specified categories. The statistics required if a company does choose to utilize the listed categories are factual, as they constitute objective data concerning the company's actions. Therequired disclosures are also uncontroversial. The mere fact that the reports may be "tied in some way to a controversial issue" does not make the reports themselves controversial.

While the reporting requirement does appear to place a substantial compliance burden on social medial companies, it does not appear that the requirement is unjustified or unduly burdensome within the context of First Amendment law. "A disclosure is 'unduly burdensome' when the [disclosure] 'effectively rules out' the speech it accompanies." Plaintiff argues that adopting the specified content categories and creating mechanisms to monitor the required metrics would require a vast expenditure of resources, rendering the reporting requirement unduly burdensome. However, AB 587 does not require that a social media company adopt any of the specified categories. Further, Zauderer is concerned not merely with logistical or economic burdens, but burdens on speech.

Finally, the court concludes that the Attorney General has met his burden of showing that the compelled disclosures are reasonably related to a substantial government interest in requiring social media companies to be transparent about their content moderation policies and practices so that consumers can make informed decisions about where they consume and disseminate news and information. Thisinterest is supported by the legislative history. The state's transparency interest is "more than trivial," because social media content moderation is a topic of public concern.

The court also concluded that AB 587 wasn't preempted by 230:

AB 587 only contemplates liability for failing to make the required disclosures about a company's terms of service and statistics about content moderation activities, or materially omitting or misrepresenting the required information. It does not provide for any potential liability stemming from a company's content moderation activities per se. The law therefore is not inconsistent with section 230(c) and does not interfere with companies' ability to "self-regulate offensive third party content without fear of liability."

Note that, unlike the law that was preliminarily enjoined in Volokh v. James(now on appeal to the Second Circuit), which was focused in a viewpoint-based way on supposed "hate speech," AB 587 requires posting of content moderation policies generally, and requires reporting of all such content moderation policies as well. On the other hand, as the opinion notes, AB 587 does target particular viewpoints to some extent: It requires reports to the AG to separately include "A statement of whether the current version of the terms of service defines each of the following categories of content, and, if so, the definitions of those categories, including any subcategories: (A) Hate speech or racism. (B) Extremism or radicalization. (C) Disinformation or misinformation. (D) Harassment. (E) Foreign political interference." I expect that plaintiff will appeal.

The California Attorney General is represented by Gabrielle Downey Boutin.

Continued here:
Requiring Web Sites to Post and Report Terms of Service Doesn't Violate First Amendment - Reason

Criminal prosecutors are expected to get their hands on nearly 1,000 documents related to the alleged theft of the diary of Ashley Biden, the only child of President Joe Biden and Dr. Jill Biden, after a judge rejected the conservative group Project Veritas's First Amendment claim.

Project Veritass attorney, Jeffrey Lichtman, said Monday that the group is considering appealing the ruling, according to a report from The Associated Press. The organization has until January 5 to turn over the material.

The documents stem from November 2021 FBI raids on the homes of the organizations founder, James OKeefe, and two of his associates. Federal agents ultimately seized 47 cell phones, computers, memory sticks, and other electronic devices, according to a report from New York Magazine. OKeefe left the organization last February following a management dispute.

Since the raid, O'Keefe has maintained that the FBI investigation into Project Veritass activitieswhich he argues were legitimate attempts at newsgathering violates the First Amendment. In this effort, hes drawn support from the American Civil Liberties Union, which warned after the raid that, despite Project Veritass well-documented disgraceful deceptions, the precedent set in this case could have serious consequences for press freedom.

In its written arguments before Judge Analisa Torres, lawyers for Project Veritas and OKeefe argued the investigation seems undertaken not to vindicate any real interests of justice, but rather to stifle the press from investigating the Presidents family.

Torres ruled that Project Veritass First Amendment arguments were inconsistent with Supreme Court precedent and that the groups claim to be protecting the identities of a confidential source was voided by the fact that both people who sold the diary to the group pled guilty in August 2022.

In their guilty plea for conspiring to traffic in stolen goods, Aimee Harris and Robert Kurlanderboth of whom are currently awaiting sentencingadmitted they stole Bidens diary from a house in Florida and sold it to Project Veritas for $40,000, hoping to embarrass the then-presidential candidate as he challenged former President Donald Trump. (Before he was elected, Trump was a donor to the organization.)

Project Veritas has admitted it paid Harris and Kurlander, but OKeefe has said the group did not publish any information from the diary after it could not confirm its authenticity.

The court ruling comes two weeks after Hannah Giles, OKeefes replacement as CEO, announced on social media that she was quitting, saying she had stepped into an unsalvageable mess one wrought with strong evidence of past illegality and post-financial improprieties. Giles added that she had brought evidence of illegal behavior to the appropriate law enforcement authorities.

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Project Veritas's First Amendment Claim to the Diary of Biden's Daughter Denied by Judge - Vanity Fair

A federal judge Wednesday blocked the Lower Elkhorn Natural Resources District from enforcing sanctions against a board member after she spoke to a local newspaper about a complaint she filed with the executive committee against a fellow board member.

Daniel Gutman, director of the First Amendment Clinic that filed the case on Melissa Temple's behalf, called it an important victory for Temple, and First Amendment principles generally.

"The injunction entered by the Court is an important first step in fully restoring Director Temples rights as a duly elected representative," he said in a statement.

Temple was elected to a four-year term, starting January 2023, representing the eastern half of Norfolk on the Lower Elkhorn NRD, a public board charged with conserving, protecting, developing and managing the natural resources of the state.

Three months into the job she filed a complaint against a fellow board member, Scott Clausen, alleging he had made a "degrading comment" at a public meeting about her ability to serve on the board and had "shown a consistent pattern of misogynistic, inappropriate, and offensive behavior while on the LENRD board."

She asked for sanctions against Clausen, but instead of sanctioning Clausen, a majority of the board voted to remove Temple from subcommittee assignments for a year, barred her from being reimbursed for out-of-district travel expenses and publicly reprimanded her after determining she had violated the district's code of decorum by sharing details of her complaint with the public.

In the lawsuit the first filed by the Nebraska College of Laws First Amendment Clinic Gutman sought a preliminary injunction seeking to suspend the sanctions as the case works its way through the federal court, alleging they violated her First Amendment right to free speech and prevented her from doing her duties as a duly-elected board member.

In a 15-page order Wednesday, Senior U.S. District Judge John Gerrard said both sides agreed Temple's statements to the Norfolk Daily News were protected by the First Amendment. While the LENRD tried to characterize the sanctions as a result of Temple's "poor judgment" and "lack of decorum," he said it was clear in the letter recommending sanctions that the executive board wanted to punish her for speaking to the newspaper about Clausen.

The question at this stage was whether Temple had been harmed by the actions in a way that would chill an ordinary person in her position from doing the same again.

Gerrard said it "does not offend the Constitution" to remove Temple from sitting on subcommittees, because they are entirely voluntary and none of her voting rights are implicated.

"Now, whether it should do so in the district's best interest is a separate question to be considered by the political body and by the district's voters," he wrote.

But he found that Temple's speech had been chilled by the board's decision to revoke her right to receive reimbursements to which she's statutorily entitled that add up to about $6,600 a year and for which LENRD already has budgeted.

He said Temple and her constituents are the ones suffering "due to her inability to attend workshops, conferences, and out-of-district LENRD projects."

Gerrard said under the statute the LENRD only had the power to disapprove unnecessary out-of-district travel expenses, and she was likely to be successful on her First Amendment retaliation case as it pertained to sanctions regarding per diem and reimbursement payments.

"The LENRD argues that an injunction would 'erode public confidence in the elective process since the decision to censure (Temple) was made in open session of a public meeting.' Frankly, this whole ordeal has the potential to erode public confidence in the LENRD's ability to govern," the judge said.

He said because Temple is a first-year member of the LENRD with no previous governmental experience, the public particularly those who live in the eastern part of Norfolk is served by her ability to attend trainings and programming relevant to her representation.

Gerrard said he had resolved the issues presented at this stage of the proceedings.

"What the parties must resolve is how they are going to move forward and govern together in 2024. As the calendar turns to a new year in a few days, now is a good time for the parties to determine how they will get along and govern in the best interests of the public," he wrote.

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Federal judge rules in favor of Lower Elkhorn NRD member in First Amendment case - Kearney Hub

The First Amendment does not protect messages posted on social media platforms.

The companies that own the platforms can and do remove, promote or limit the distribution of any posts according to corporate policies. But all that might soon change.

The Supreme Court has agreed to hear five cases during this current term, which ends in June 2024, that collectively give the court the opportunity to reexamine the nature of content moderation the rules governing discussions on social media platforms such as Facebook and X, formerly known as Twitter and the constitutional limitations on the government to affect speech on the platforms.

Content moderation, whether done manually by company employees or automatically by a platforms software and algorithms, affects what viewers can see on a digital media page. Messages that are promoted garner greater viewership and greater interaction; those that are deprioritized or removed will obviously receive less attention. Content moderation policies reflect decisions by digital platforms about the relative value of posted messages.

As an attorney, professor and author of a book about the boundaries of the First Amendment, I believe that the constitutional challenges presented by these cases will give the court the occasion to advise government, corporations and users of interactive technologies what their rights and responsibilities are as communications technologies continue to evolve.

In late October 2023, the Supreme Court heard oral arguments on two related cases in which both sets of plaintiffs argued that elected officials who use their social media accounts either exclusively or partially to promote their politics and policies cannot constitutionally block constituents from posting comments on the officials pages.

In one of those cases, OConnor-Radcliff v. Garnier, two school board members from the Poway Unified School District in California blocked a set of parents who frequently posted repetitive and critical comments on the board members Facebook and Twitter accounts from viewing the board members accounts.

In the other case heard in October, Lindke v. Freed, the city manager of Port Huron, Michigan, apparently angered by critical comments about a posted picture, blocked a constituent from viewing or posting on the managers Facebook page.

Courts have long held that public spaces, like parks and sidewalks, are public forums, which must remain open to free and robust conversation and debate, subject only to neutral rules unrelated to the content of the speech expressed. The silenced constituents in the current cases insisted that in a world where a lot of public discussion is conducted in interactive social media, digital spaces used by government representatives for communicating with their constituents are also public forums and should be subject to the same First Amendment rules as their physical counterparts.

If the Supreme Court rules that public forums can be both physical and virtual, government officials will not be able to arbitrarily block users from viewing and responding to their content or remove constituent comments with which they disagree. On the other hand, if the Supreme Court rejects the plaintiffs argument, the only recourse for frustrated constituents will be to create competing social media spaces where they can criticize and argue at will.

Two other cases NetChoice LLC v. Paxton and Moody v. NetChoice LLC also relate to the question of how the government should regulate online discussions. Florida and Texas have both passed laws that modify the internal policies and algorithms of large social media platforms by regulating how the platforms can promote, demote or remove posts.

NetChoice, a tech industry trade group representing a wide range of social media platforms and online businesses, including Meta, Amazon, Airbnb and TikTok, contends that the platforms are not public forums. The group says that the Florida and Texas legislation unconstitutionally restricts the social media companies First Amendment right to make their own editorial choices about what appears on their sites.

In addition, NetChoice alleges that by limiting Facebooks or Xs ability to rank, repress or even remove speech whether manually or with algorithms the Texas and Florida laws amount to government requirements that the platforms host speech they didnt want to, which is also unconstitutional.

NetChoice is asking the Supreme Court to rule the laws unconstitutional so that the platforms remain free to make their own independent choices regarding when, how and whether posts will remain available for view and comment.

In an effort to reduce harmful speech that proliferates across the internet speech that supports criminal and terrorist activity as well as misinformation and disinformation the federal government has engaged in wide-ranging discussions with internet companies about their content moderation policies.

To that end, the Biden administration has regularly advised some say strong-armed social media platforms to deprioritize or remove posts the government had flagged as misleading, false or harmful. Some of the posts related to misinformation about COVID-19 vaccines or promoted human trafficking. On several occasions, the officials would suggest that platform companies ban a user who posted the material from making further posts. Sometimes, the corporate representatives themselves would ask the government what to do with a particular post.

While the public might be generally aware that content moderation policies exist, people are not always aware of how those policies affect the information to which they are exposed. Specifically, audiences have no way to measure how content moderation policies affect the marketplace of ideas or influence debate and discussion about public issues.

In Missouri v. Biden, the plaintiffs argue that government efforts to persuade social media platforms to publish or remove posts were so relentless and invasive that the moderation policies no longer reflected the companies own editorial choices. Rather, they argue, the policies were in reality government directives that effectively silenced and unconstitutionally censored speakers with whom the government disagreed.

The courts decision in this case could have wide-ranging effects on the manner and methods of government efforts to influence the information that guides the publics debates and decisions.

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Supreme Court to consider giving First Amendment protections to social media posts - The Conversation

Terance Albert Tracy, 31, of Annapolis

On November 15, 2023, Terance Albert Tracy, 31, of Annapolis, was convicted by a Calvert County jury of criminal trespass on the premises of the County Health Department.

Earlier this year, Tracy, a self-styled First Amendment Auditor, entered the lobby area of the building during business hours and began filming people as they came and went.

Based upon patient privacy concerns, the County Health Officer asked Tracy to stop filming and leave.

When Tracy refused to do so, he was arrested by deputies from the Calvert County Sheriffs Office.

Sentencing is scheduled for December 15, 2023, before the Honorable Mark S. Chandlee. The case was prosecuted by Senior Assistant States Attorney Kyle Tores.

Tracy has three misdemeanor cases for incidents that occurred in Annapolis/Anne Arundel County in 2018 to 2022.

This entry was posted on November 27, 2023 at 11:53 am and is filed under All News, Anne Arundel News, Calvert News, County, Law Enforcement, Top News, z 600X120 Top Ad Bottom, z 600X120 Top Ad Top. You can follow any responses to this entry through the RSS 2.0 feed.

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Annapolis First Amendment Auditor Convicted for Criminal Trespassing at Calvert Health Department - Southern Maryland News Net

State Supreme Court Justice Anita Earls is asking a federal judge to issue an injunction against the North Carolina Judicial Standards Commission as she pursues an appeal in her First Amendment lawsuit.

Without an injunction, the commission could decide next week whether to move forward with a formal investigation of Earls comments about Supreme Court operations.

US District Judge William Osteen decided on Nov. 21 not to grant an injunction against the commissions investigation. Earls argued in court filings Monday that Osteen should grant an injunction until the 4th US Circuit Court of Appeals can consider the case.

The Court should issue an injunction pending appeal to preserve the Fourth Circuits ability to review the weighty constitutional issues in dispute, Earls lawyers wrote. This case is about a disciplinary proceeding concerning core political speech, there are substantial reasons to contend that proceeding is unconstitutional as applied to Plaintiff, and, absent an injunction, Defendant immediately intends to determine whether to proceed to a formal hearing against Plaintiff by December 8, 2023.

If that formal hearing goes forward and the Fourth Circuit ultimately agrees that the proceeding as applied to Plaintiff is unconstitutional, then there will be no way to undo the harm Plaintiff has suffered from a disciplinary proceeding that violated her First Amendment rights, Earls lawyers added. An injunction pending appeal, by contrast, would preserve both parties rights while the Fourth Circuit considers these issues.

Earls court filings included a series of emails between her lead attorney, Press Millen, and Patricia Flood, the Judicial Standards Commissions commission counsel. Staff is responsible for completing the investigation in time for the panel to be prepared to address the matter as scheduled at the December 8 meeting, Flood informed Millen on Nov. 17.

A Nov. 22 email from Flood addressed Osteens initial decision not to grant an injunction.

In light of the courts order from yesterday afternoon, please let me know if Justice Earls would like to schedule an interview, Flood wrote. Staff remains available on the mornings of November 27, 28, and 29. If those dates do not work, we could make it work to schedule an interview early in the week of December 4. And regardless of whether Justice Earls chooses to be interviewed, she is still welcome to submit a written response and any relevant materials by December 1.

Earls argues that the commissions investigation into her comments has unconstitutionally chilled her speech about matters of public interest.

Osteen issued a 54-page order explaining his decision to reject her initial request for an injunction.

Plaintiff alleges that the Defendant North Carolina Judicial Standards Commissions investigation into comments Plaintiff made about her North Carolina Supreme Court colleagues unconstitutionally infringes upon her First Amendment rights, Osteen wrote. Plaintiff asserts that her speech has been chilled in several instances when she declined opportunities to speak on topics of diversity and equity since the Commissions investigation commenced.

Defendants, the North Carolina Judicial Standards Commission and its members, argue that the Younger doctrine applies, and this court should abstain from interfering with the investigation, Osteen wrote, referencing a precedent that suggests federal courts should steer clear of state court proceedings in most instances. Defendants argue in the alternative that the investigation is narrowly tailored to serve the compelling state interest of maintaining public confidence in the integrity and impartiality of the judiciary.

This court finds, for purposes of this motion only at present, that Younger abstention applies at least to preclude entry of the preliminary injunction, Osteen concluded. In the alternative, this court finds the motion should be denied because the Commission likely satisfies strict scrutiny.

Strict scrutiny is a legal term referring to the review a government action faces when a plaintiff alleges an unconstitutional violation of a fundamental right.

Following up on questions he asked during a Nov. 2 hearing in Greensboro, Osteen focused on Earls quoted statements in a published interview that [t]he new members of our court very much see themselves as a conservative bloc. They talk about themselves as the conservatives. Their allegiance is to the ideology, not to the institution.

It appears to this court, particularly when considering the larger context of other statements made in the Interview and the Interviews topics, that Plaintiffs statements at issue could be reasonably interpreted as an accusation that Plaintiffs conservative bloc colleagues unethically prioritize their conservative political principles in some decisions, either administrative, judicial, or both, Osteen wrote.

If the Judicial Standards Commissions investigation leads to any recommended action against Earls, the full state Supreme Court would address that recommendation. [A]ny disciplinary measure implemented against Plaintiff by the North Carolina Supreme Court is subject to direct review by the Supreme Court of the United States, Osteen wrote. This ensures that Plaintiffs First Amendment challenges to the investigation and to Canon 2A can be addressed without the involvement of this court.

Even without the Younger abstention, Osteen would deny Plaintiffs motion for a preliminary injunction on the merits.

The judge rejected Earls argument that Canon 2A of the North Carolina Code of Judicial Conduct offers a vague prescription of acceptable and unacceptable behavior.

These Canons were adopted by the North Carolina Supreme Court and do not appear, at least on their face, difficult for a trained lawyer or jurist to interpret, particularly in light of the fact that the North Carolina Supreme Court has published opinions explaining the application of the Canons in disciplinary proceedings, Osteen wrote.

Its not clear to Osteen that all of Earls published comments would be protected political speech.

A justices speech carries certain weight due to the authority of, and respect commanded by, the office of North Carolina Supreme Court Justice, he wrote. Public criticism by a justice of other justices is different from the same statement by media outlets or citizens in general. While public criticism of other judges by a judge may in some circumstances be fair political speech, an allegation that certain judges may elevate political or other personal ideology over the institution of the North Carolina Supreme Court may diminish the authority and integrity of that Court as a whole.

The Judicial Standards Commissions confidential investigation does not strike Osteen as an unacceptable response to Earls comments.

It appears to this court that the Commissions process of confidentially investigating complaints, either dismissing complaints, conducting confidential investigations, or bringing formal charges, conducting a hearing at which an accused judge has the right to present evidence, and then either dismissing the complaint, issuing a private letter of caution, or recommending that the North Carolina Supreme Court evaluate the matter and issue an appropriate consequence, is narrowly tailored to serve the States interest in maintaining the integrity and the appearance of integrity of the judiciary, Osteen wrote.

A judge subjects herself to the Code and its Canons upon taking office, and the disciplinary process for handling alleged violations of the Code is done confidentially in a way that does not affect the judges public image or daily responsibilities in the early stages of an investigation or if a complaint is dismissed, he added. Only if the investigation eventually requires action by the North Carolina Supreme Court does the public learn of a judges alleged violation of the Code. The processs confidentiality until that point, and the confidentiality of the Commissions investigative records even after that point, is narrowly tailored.

The States compelling interest would not be served by an impaired system which would permit a judge to say anything on any subject whatsoever without fear of disciplinary reprimand by a body designated to maintain a code of ethics for judges in the State, as would be the case if any judge investigated for speech were able to enjoin the Commissions confidential investigative process as Plaintiff seeks to do here, Osteen explained.

The possibility of a commission ruling against Earls is too speculative at this point in the process, Osteen added.

Plaintiffs argument that her speech is chilled assumes the Commission and the North Carolina Supreme Court are likely to take an adverse, and unconstitutional, action against Plaintiff, he wrote. While the potential for an adverse outcome can be enough to support a First Amendment claim, Plaintiff has not shown a likelihood that any potential discipline would be material or unconstitutional. A plausible claim is not sufficient for this court to order the issuance of an injunction.

Theres no deadline for Osteen to respond to Earls request or for the 4th Circuit to take action on Earls appeal.

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Earls seeks emergency injunction as she appeals to 4th Circuit in ... - Carolina Journal

BY A LOS ALAMOS HIGH SCHOOL STUDENT

Editors note: The following is one of a series of Op-Eds written by students in Adam Daviss English 9 and 10 class at Los Alamos High School on free speech in schools. Some students have chosen to remain anonymous.

If you believe that students freedom of speech disappears when they walk into school because the school plays the role of a temporary parental figure, youre mistaken. The First Amendment right protects everyones freedom of speech everywhere, including in schools. Oftentimes in school, students First Amendment freedom of speech is violated. For this reason, Im going to talk about some examples of students freedom of speech being violated, such as the Tinker v. Des Moines court case, and why its important to protect students freedom of speech and expression.

While recognizing the need for appropriateness, its crucial to realize that constantly restraining students expression can suppress their creativity. Mary Beth Tinker rightly emphasizes that when she states, If we dont encourage young people to use their First Amendment rights, our society is deprived of their creativity, energy, and new ideas. This is a huge loss and a human rights abuse.

The various views of teachers make it unfair to limit student speech based on individual discomfort. Creating and keeping a constant and common understanding within the school and community about acceptable speech is crucial. As the Supreme Court states, In order for a school to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid discomfort and unpopular viewpoint.

Defining inappropriate speech is very important. This can be seen in the Bethel v. Fraser (1986) case when it stated, Matthews speech was filled with sexual innuendo. When he delivered the speech, many students called out, gestured, and laughed, while others looked confused and embarrassed. After the speech, Matthew was told he had violated the schools conduct code. A clearly intelligible code prevents confusion and allows students to handle restrictions responsibly and in a way that was universally agreed upon.

Contrary views, such as Justice Clarence Thomass, want to dispense with Tinkers case, pointing out the tension between parental expectations and school administration. As Justice Thomas argues, if he were given the opportunity, he would dispense with Tinker altogether. He explained that without basis in the Constitution, Thomas argued that Tinker utterly ignored the history of public education and that schools, acting in place of the parents, should be able to govern students behavior, including limiting their speech. A lack of agreement on acceptable speech can lead students to self-censorship, which in turn could affect their willingness to express new ideas and advocate for themselves.

In conclusion, freedom of speech is a nonnegotiable constitutional right, even within an educational setting. Inconsistent limitations based on comfort levels are unjust, accentuating the necessity for a shared understanding of acceptable speech to preserve students ability to express themselves and promote creativity. We need to work harder as a community to further prevent schools from violating students First Amendment rights to freedom of speech and expression.

Work cited:

Beckwith, Maggie. Free-Speech Rights Upheld in Modern-Day Tinker. Student Press

Law Center, 17 Dec. 2007, splc.org/2007/12/free-speech-rights-upheld-in-modern-day-tinker/. Accessed November 15, 2023

Wheeler, David R. Do Students Still Have Free Speech in School? Article. 7 April 2014. Accessed November 15, 2023

Bethel V. Fraser (1986). Landmark Supreme Court Cases Article. Accessed November 15, 2023

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Freedom Of Speech Is A Nonnegotiable Constitutional Right Even ... - Los Alamos Reporter

When former South Carolina Gov. Nikki Haley pitched a terrible (and likely unconstitutional) idea to force social media companies to verify all users and effectively ban anonymous accounts, she drew a sharp rebuke from Florida Gov. Ron DeSantis.

"Haley's proposal to ban anonymous speech onlinesimilar to what China recently didis dangerous and unconstitutional," DeSantis posted on X (formerly Twitter). He pointed out that some of America's founders, including The Federalist Papers'authors Alexander Hamilton, John Jay, and James Madison published their essays anonymouslypart of a long tradition of anonymous speech in America.

In the week since those initial remarks, Haley has backpedaled a bit. She now admits that Americans have a First Amendment right to anonymous speech online but continues to support a crackdown on foreigners who "create anonymous accounts to spread chaos and anti-American filth."

DeSantis' campaign has kept the heat turned up. "No matter how she tries to spin it, Haley can't take back her 'Day One' plan to have the government strip Americans of their First Amendment rights," DeSantis campaign spokesman Bryan Griffin said last week.

The stake of this fight, in no small part, is the chance to be perceived as the second-place candidate in the Republican primary field, where former President Donald Trump still holds a wide lead. DeSantis has been slipping in the polls for months, while Haley has steadily climbed after several strong debate performances.

DeSantis is certainly right to take Haley to task over this terrible idea, and he's probably right that doing so will help him regain some lost ground in the GOP primary race.

Still, the whole exchange creates a bit of an awkward situation for DeSantis, who is just a few months removed from making his own attacks on anonymous speech. During a livestreamed event in March, DeSantis criticized the media's use of anonymous sources and suggested that the U.S. Supreme Court might be "receptive" to revisiting its landmark 1964 decision that raised the bar for defamation lawsuits filed by public figures.

Meanwhile, a bill introduced in the Florida Legislature earlier this year and backed by DeSantis aimed to make several changes to how Florida law handles defamation cases filed against news organizations. Among the changes was a provision telling courts to regard as false any content from anonymous sources, unless it could be proven true.

DeSantis even acknowledged that the bill, if passed into law, could have a chilling effect on reporting. "I do think it may cause people to not want to put out things that are false that are smearing somebody's reputation. And you know, I thinkpeople can make a judgment about how they view that," DeSantis said in March, according to Florida Politics.

Seth Stern, director of advocacy for the Freedom of the Press Foundation, called the proposal "a brazen and blatantly unconstitutional attack on speech and press freedoms." The bill died in a state House committee earlier this year, but DeSantis' support for the bill sits uncomfortably beside his more recent criticisms of Haley's attack on anonymous speech (to say nothing of his other attacks on free expression by the likes of drag queens and pro-Gaza protesters).

This shouldn't be hard. Anonymous speech should be (and is) subject to the same constitutional protection as any other speech, whether it is something posted anonymously online or offered to a reporter. It's understandable why public figures in positions of power might not like thatbut the Constitution exists to limit the power of government, not as a balm for the thin skin of certain politicians.

Obviously, this is not in any way a defense of Haley, whose terrible free speech proposal has likely cost her whatever small bits of goodwill she'd engendered from libertarians with some important straight talk about the deficit. She should continue backtracking from her proposal to unmask anonymous accounts onlineand probably ought to refresh herself with the constitution of the government that she's campaigning to lead.

But DeSantis' track record on free speech suggests his objections are more about political opportunism than principled concern for the rights of Americans to communicate freely. The First Amendment applies all the time, not just when you want to use it to bash a rival politician.

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DeSantis Rediscovers First Amendment Protections for Anonymous ... - Reason

States hoping to ban undercover investigations on factory farms hit another major roadblock this year. The U.S. Supreme Court declined to hear the appeal of a decision striking down North Carolinas ag-gag law. Undercover investigations are newsgathering activities, protected by the First Amendment, both the district court and 4th Circuit Court of Appeals agreed. But just what was North Carolinas Property Protection Act, and why does it matter for the future of ag-gag legislation in the United States? We explain.

In 2015, North Carolinas state legislature passed a law called the Property Protection Act described as an ag-gag law for its language prohibiting undercover activities documenting workplace conditions, including factory farms. According to the Animal Legal Defense Fund, the law is technically also an anti-sunshine law thanks to language that went beyond agricultural activities.

Under this North Carolina law, undercover employees were prohibited from taking documents from, or recording videos of, inside their workplaces. But the North Carolina law was punitive too property owners could sue undercover investigators and whistleblowers for monetary damages, under the argument that these activities breached a duty of loyalty to their employers.

Other states have implemented similar laws to restrict the ability of activists and journalists to investigate and report on alleged wrongdoing, but North Carolinas law was particularly expansive in its restrictions. The law defined nonpublic areas where employees were forbidden from documenting conditions very broadly, even including fields where animals are grazing, for instance.

A number of groups filed a lawsuit the next year. PETA, the Animal Legal Defense Fund and a number of other advocacy organizations, initiated litigation in federal district court to challenge the laws constitutionality under First Amendment grounds. In particular, the plaintiffs argued that the law should be struck down for violating the First Amendment right to free speech as it applied to newsgathering activities, which the plaintiffs argued that these documenting activities should be considered.

The law would have a chilling effect, the plaintiffs argued. Some of the organizations had plans to conduct undercover investigations in settings that keep animals laboratories, farms and slaughterhouses among them in hopes of documenting and exposing animal abuse and cruelty. The threat of monetary damages and legal consequences were deterring them from these newsgathering activities, which violates their First Amendment rights, the parties alleged.

The district court sided with the plaintiffs, finding the law unconstitutional. And in February, the Court of Appeals for the 4th Circuit affirmed the lower court opinion and sided with the advocacy groups.

The decision was a first for the 4th Circuit a ruling that the ag-gag law was unconstitutional, at least in its jurisdiction, which covers North and South Carolina, Maryland, West Virginia and Virginia.

Yet the case wasnt over. North Carolinas Democratic Attorney General Josh Stein and the North Carolina Farm Bureau then filed an appeal o the U.S. Supreme Court in October, citing that the law was put in place to protect employers from harm and arguing that undercover investigations like the ones planned by PETA could end up revealing unauthorized use of trade secrets.

The U.S. Supreme Court declined to hear the appeal, which means the appeals court decision stands, joining a host of other decisions striking down ag-gag laws in the U.S.

The future of ag-gag laws isnt a bright one, at least in the United States. Federal courts continue to find that investigations of factory farms are protected by the First Amendment, which means any future laws intending to stop efforts to document conditions on industrial livestock operations are also likely to fail. In the U.S. today, only four states still have ag-gag laws on the books, though Canada is in the process of passing federal legislation.

Jared Goodman, a lawyer with PETA Foundation, told Sentient Media that North Carolinas misguided ag-gag law is just the latest of these laws to fail on First Amendment grounds. Federal courts have ruled similarly on laws passed in Idaho, Iowa, Kansas, Utah and Wyoming.

Last year, the U.S. Supreme Court declined a petition filed by Kansass governor and attorney general to review Animal Legal Defense Fund v. Kelly, for instance. In that case, the 10th Circuit Court of Appeals broadly struck down an ag-gag law passed in Kansas as unconstitutional.

Although ag-gag laws continue to be struck down across the country, some state lawmakers are still working to pass them. They frequently frame these laws as essential safeguards for trade secrets, personal and business privacy, and the prevention of property damage to businesses.

According to Caitlin Foley, a senior staff attorney with Animal Legal Defense Fund, a few state legislatures, like Iowa, continue to spend significant resources and time to pass several versions of ag-gag laws.

The North Carolina Farm Bureaus general counsel also provided a statement to Sentient Media: The Supreme Courts decision not to hear our appeal in the Property Protection Act case is disappointing and troubling. Farmers and other North Carolina businesses are now more vulnerable to having their farms, offices and facilities infiltrated by fake employees and double agents. Hopefully, the General Assembly will step up again and protect our fundamental rights to privacy and property.

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Inside the Fight and Failure of North Carolina's Ag-Gag Law - Sentient Media