Category Archives: First Amendment

NICK EICHER, HOST: Coming up next on The World and Everything in It: Free speech on campus.

As we know, speech rights and obligations can be complicated. Private universities are facing legal questions that are different from the questions government institutions face. Its difficult to know whats protected and whats not.

MARY REICHARD, HOST: Joining us now to help sort it out is Tyson Langhofer. He serves as senior counsel and director of the Center for Academic Freedom with Alliance Defending Freedom.

Tyson, good morning.

TYSON LANGHOFER, GUEST: Hey, good morning. Thanks for having me.

REICHARD: Glad youre here. Well, lets start with the baseline. What is the legal definition of hate speech?

LANGHOFER: There actually isn't a legal definition of hate speech, which is what really creates the problem in First Amendment context, because what might be hateful to one person may not be hateful to another person. And so we have taken the approach in America to have a very broad protection of speech so that the government doesn't get to define whose speech they think is hateful and thus prohibited and whose speech they think is okay and thus not prohibited.

EICHER: Okay, so going beyond the legal definitions which don't exist, are there uniform policies about hate speech on college campuses? Or is this just an ad hoc kind of case by case thing?

LANGHOFER: It is an ad hoc case by case thing, which is what creates the problem. So what the Supreme Court has said is that the government cannot look to the content or the viewpoint of somebodys speech in order to prohibit that speech. And so when a government official looks at somebody's speech and says, Well, that viewpoint is hateful, therefore, I'm going to prohibit it, the government or the Supreme Court has said that that is unconstitutional. And so what you see is there is no uniformity across the college campuses, because it is a subjective determination, which is what the Supreme Court has said the First Amendment prohibits.

REICHARD: You know, we've heard the chants "from the river to the sea, Palestine will be free" from those who are supporting Hamas, meaning Palestinian control over the entire territory of Israel's borders, from the Jordan River to the Mediterranean Sea. Now, some say that is not anti-semitic, it's only anti-zionist, Tyson, what do you make of that argument?

LANGHOFER: Well, I mean, I think that if you're advocating for the complete annihilation of a people group from a certain, you know, country, that that makes it difficult to argue that, you know, your that your argument against simply a country as opposed to, to a people group. But I mean, I think that the debate that we're having here, about what type of rhetoric that we can engage in, in a very, very politicized and highly inflammatory environment, is the very debate that the First Amendment is designed to protect. And what the Supreme Court has said, is that the highest principle of our First Amendment jurisprudence is to protect the thought that we hate. But I think that's what our First Amendment calls us to, is to protect those things. Now, obviously, there are certain limits. So if there are people calling for imminent violence against anyone, regardless of who they are, that's not protected. But if they're arguing in general for broader principles, then that is protected, even if we think that principle is hateful or wrong.

EICHER: So maybe that's the way to do it, because I intended to ask, how do you sort of make that balance between protecting free speech but also condemning ideas that justify abhorrent action? So that's the line whether it's sort of inciting or how do you make that distinction?

LANGHOFER: That's absolutely the line as the Supreme Court has drawn it. They've said there's there's very narrow areas that are unprotected speech, one of them would be a true threat. So if I'm threatening somebody in the moment and saying, I'm going to commit some act of violence against you that's not protected, you know, actually engaging or encouraging people to go engage in imminent violence that's also not protected, but advocating for principles that might lead people in the future to take some acts which are unlawful, that is protected. And that's sort of the line that we've drawn. And I think it's really important to understand that if you have a conservative originalist view of the Constitution, you have to understand that it is going to require us to allow people to say things that we vehemently disagree with, that we think are wrong and immoral, but that also protects us as Christians to engage in speech that we believe is consistent with our biblical worldview, that many people would say it is hateful or shouldn't be protected as well.

REICHARD: I have to ask this question: why are some of our most prestigious campuses inundated with these pro Hamas views? What's going on?

LANGHOFER: Well, I think when you see that they have been taught this the issue of of critical theory, where everything is intersectional. And and it's all about who we deem as the bigger victim. And there's not a broader justice, there's not an absolute, that's it's the victim, and it's based upon identity rather than actual actions. And I think that has led them to stop looking at the actual facts on the ground, and just looking at whose identity do we believe is more oppressed? And in that, in that framework, I then determine who is the victim and who we should be supporting, as opposed to looking at it broader, what is the truth of the situation, and what is just in this situation, regardless of what their identities are? Everybody should be, you know, advocating for a just result, regardless of the identity of the individual who's being victimized.

EICHER: Tyson, I know you've been paying very careful attention to this for many years. What is your assessment of what's missing from the conversation about free speech and mitigating harm on campus? What's missing?

LANGHOFER: Yeah, I think what's missing is this. There's a large and growing portion of campus which is advocating for social justice. And we want justice as well as Christians, we desire justice. But what they don't understand is that you cannot achieve justice without obtaining the truth. What is the truth, truth and justice are inextricably linked. We must arrive at truth and then we can get the justice and everybody I think can agree we want a just society. But shutting down certain viewpoints is not going to get us to truth. And it's not going to get us to justice. And I think that's what's missing is this ability to to engage with people that we very, very much disagree with, but to do it in a way that where it's a dialectic rather than a debate, right? It's the ability to learn and to listen to the other side, and explore what they're saying. All right, at the same time, of being able to give them your viewpoint and recognize they're both created an image of God and that they're both we all have that inherent human dignity and we should respect them as a person, even if we disagree with their viewpoint.

REICHARD: Tyson Langhofer serves as senior counsel for the Alliance Defending Freedom. Thanks for joining us!

LANGHOFER: Thank you for having me.

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.

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The right to disagree matters | WORLD - WORLD News Group

MONTGOMERY, Ala. Flying certain flags on public property would become a criminal offense in Alabama under a newly filed bill by State Sen. Gerald Allen, R-Tuscaloosa.

Among the first bills filed for the 2024 legislative session, Senate Bill 4 would make it a Class C misdemeanor for an individual to place, hoist, or display a flag on public property outside of 11 exceptions, including the United States flag and the Boy Scouts of America flag.

Perhaps one of the most important exceptions to the new law, according to Allen, was the inclusion of the Freedom Flag, a flag created in November of 2001 in remembrance of 9/11.

One of the reasons why we think its important for us to (include) the remembrance Freedom Flag is (that) its a very important part of American history, one that not one of us needs to forget, Allen told Alabama Daily News.

The world doesnt think and believe like we Americans believe; theyre trying their best to destroy us as a country, as a nation, and I just think this is very important for us to make sure that our young people understand what took place on 9/11.

Calling 9/11 a turning point in America, Allen said his hope was that by making the Freedom Flag more commonly flown on public property, younger Alabamians would be reminded of the sacrifices made since the attack on the World Trade Center.

We must be reminded so this sort of thing can be placed in the minds of our citizens and our children, that this is not ever going to happen again, he told ADN.

As to the prospect of criminalizing the act of waiving unapproved flags on public property, Allen said it was not his intention to violate the First Amendment, under which flying flags on public property has been ruled time and time again to be a protected activity.

As far as a protest or someone staying on public property waiving Trump or a Biden sign, thats their First Amendment right, Allen told ADN Tuesday. Weve got the First Amendment issue, and we sure dont want to infringe on constitutional rights.

Allen said he would consult with his legal team to ensure his proposal ultimately does not conflict with the First Amendment. As currently written, however, the bill would criminalize the flying of any unauthorized flags on public property, though would excluderoads, highways, in stadiums, arenas and athletic facilities, however, would be exempt.

Flags permitted to be flown on public property under the bill are as follows:

Similar bills have been filed in other states, including one in Florida that would have restricted the exhibition of flags on government property to the state flag, the U.S. flag, the POW-MIA flag or the firefighter memorial flag. However, that bill ultimately died in the Florida Legislatures Constitutional Rights Subcommittee, and never became law.

Other states have seen more local efforts to restrict what flags can be displayed on public property, including communities in Ohio, New York and Utah, where certain school districts have restricted the display of Pride flags outright.

Excerpt from:
New bill to criminalize flying unauthorized flags on public property ... - Alabama Daily News

The city of Flagstaff, Ariz., recently told Rob Wilson, owner and founder of Timberline Firearms & Training in Flagstaff, that he can no longer run an ad for his store and range in a local airport. This is a clear First Amendment infringement designed to cancel use of our Second Amendment rights.

Wilsons struggle to retain his American freedom is regional, but it says a lot about what is happening now in many areas of this nation.

Our ad ran thousands and thousands of times over the baggage claim belt at our local airport and there were no complaints. But this year, when we tried to run it during the summer peak season, the city of Flagstaff determined that somehow our video depicted violence. And they have a policy that prohibits depicting violence in advertising, says Wilson.

But that doesnt make sense, as the gun-safety courses he teaches as an NRA-certified firearms instructor are designed to help people handle guns safely and to, potentially, stop violent criminals who might come for them.

The city of Flagstaffs city council apparently has an issue not really with violence, however, as they have since decided to revise their policy, says Wilson. Their new policy eliminates the violence and anti-social behavior paragraph and replaces it with one that specifically targets firearms. Banning advertising of firearms sales, rentals, use, ammunition or any associated type of business is their proposed new policy.

The anti-social claim is also counterintuitive, as theres just nothing more social than going to a range, hanging out with good friends, or just meeting people and shooting. Its a very social experience.

But those reasons were seemingly dropped and a new policy is being floated that bans all gun-related advertising.

When Wilson pushed back, he says he had a meeting with the city attorney. They thought we should compromise somehow, says Wilson. They thought we should just not include firearms in our ad and then it might be okay. I said, I spent 22 years in the Navy defending our Constitution and our rights, and I am not about to let a city council and mayor just walk all over my rights now.

They city attorney indicated that Timberline Firearms & Trainings ad made them uncomfortable, says Wilson.

So he offered to take anyone from the city council onto his range for one-on-one instruction, so they can become comfortable with their own freedom. None of the council members even replied to the offer, says Wilson.

This caseand the video interview shown hereexposes how hard it can be to talk to officials who only want to cancel this American freedom.

Read more here:
This First Amendment Attack is Designed to Reduce Gun Ownership ... - America's 1st Freedom

Alexander Luzula | Assistant News Director

The Student Government Association is one step closer to simplifying its own constitutional processes and making it easier to amend the SGA Constitution. On Monday, Nov. 6, the SGA Senate passed Bill SB 04 006, known as the Amendments Streamlining Act.

If enacted, the new legislation would repeal Article XII of the current SGA Constitution and expand student rights by allowing students to submit amendment proposals by filing petitions with either 250 student signatures or 15% of voters in the previous general election, as well as the traditional method of the Senate initiating a bill and passing it with the support of two-thirds of the legislature. The bill also lowered the required number of senators needed to overturn a veto from a unanimous vote to three-fourths.

The legislation would also lower the necessary approval from voters from to of all voters.

The new legislature will also make sure that this and future amendments are enacted immediately, as opposed to the current standards of waiting until the next legislative year.

The bill was passed by a unanimous 30 yeas, with no opposition or absences.

President Alexander Sutton is expected to sign the bill on Thursday, Nov. 9, after which it will be put to a referendum on Tuesday, Nov. 28. Students will be given the chance to vote from 7 a.m. to 7 p.m.

If two-thirds of the electorate approves the legislation, the amendment will be presented to the Interim Vice President for Student Affairs, Dr. Charlie Andrews. If Andrews approves of the measure, it will be enacted immediately.

Essentially, this is a constitutional amendment about constitutional amendments, said President Sutton in a statement sent to PantherNOW.

This amendment marks the first amendment successfully passed by the Senate since the current constitution was enacted in February 2021, and is an important milestone for student rights at FIU, according to Sutton.

I think its very monumental and historic that were seeing the first referendum of the student body on the constitution since it was put into effect, said Sutton. I would strongly encourage all of the students to vote yes on this constitutional amendment so we can finally put democracy back into our student body constitution.

See original here:
SGA Amendment to Make Amendments Easier Passes; Will Move to ... - PantherNOW

In July 2016, protests unfolded in Baton Rouge, Louisiana, after local police shot and killed Alton Sterling, a 37-year-old black man. It was the first of two high-profile police shootings of black men within several days, capturing the nations attention and fueling large demonstrations. One such protest was organized by DeRay Mckesson, a civil-rights activist.

Americans have a right to protest government abuses. But according to a recentdecision from the U.S. Court of Appeals for the Fifth Circuit, Mckesson may be held liable for damage caused byother protestors. A police officer alleged Mckesson negligently organized the protest, and the court held the First Amendment does not protect Mckesson from liability. This is a dangerous rule that exposes protest leaders to liability for the rogue act of a fellow demonstrator and thereby threatens to chill First Amendment-protected protest.

Thats why FIRE is filing anamicus curiae friend of the court brief inMckesson v. Doe, asking the Supreme Court to accept the case and reverse the Fifth Circuits ruling. A rule that exposes non-violent protest leaders to liability for the acts of otherswhether it be a rogue protestor, an unruly counter-protestor, or even a police officer using force at the sceneis a threat to our American tradition of protecting the power of speech and assembly to bring about change.

But to the extent the lower courts had any doubts about what rule to apply, they were resolved this summer inCounterman v. Colorado, where the Supreme Court confirmed that negligence is an insufficient basis for imposing liability on speech.

During the protest, Mckesson and other demonstrators occupied a stretch of highway near a police station. As officers began arresting demonstrators to clear the highway, someone threw a rock that struck and injured a police officer. Unable to identify the rock-hurler, the officer instead sued Mckesson for damages. The officer alleged that, even though Mckesson didnt throw the rock, as the organizer, he was nevertheless responsible for the officers injuries.

This isnt the first time the issue has come before the high court. InNAACP v. Claiborne Hardware, decided in 1982, the Supreme Court held that the First Amendment shielded civil rights leaders from liability for their nonviolent boycott to bring about political, social, and economic change. Observing that First Amendment activity and violence often exist at mass protests, the Supreme Court concluded that civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence. Only if a demonstrator (1) authorizes or directs unlawful activity, (2) incites imminent and likely lawless action, (3) or gives specific instructions to carry out violence could they be liable for the resulting consequences, the Supreme Court reasoned.

This case should have been decided underClaiborne Hardware. But to the extent the lower courts had any doubts about what rule to apply, they were resolved this summer inCounterman v. Colorado, where the Supreme Court confirmed that negligence is an insufficient basis for imposing liability on speech. Under the First Amendment, the Court said, only intentional speech can give rise to any sort of liability. This crucially important requirement gives speech breathing room against both criminal and civil liability.

FIREs brief points out that the Fifth Circuits decision is inconsistent with the Supreme Courts decision inCounterman. The Supreme Court should therefore summarily accept the case and reverse, ordering the Fifth Circuit to re-evaluate the case under this recent precedent. Whatever reasons the Court of Appeals had for misapplying the First Amendment before, the Supreme Court has clarified that Americans can not be held liable for negligent speech.

See more here:
Civil rights leaders cannot be held liable for acts of rogue protestors - Foundation for Individual Rights in Education

The Justice Department announced today that it has opened a civil pattern or practice investigation into the City of Lexington, Mississippi, and the Lexington Police Department (LPD). Lexington is a town of approximately 1,600 people, located about an hour outside of the states capitol in Jackson, Mississippi.

The investigation will seek to determine whether there are systemic violations of the Constitution and federal law. The investigation will focus on the police departments use of force and its stops, searches and arrests. It will assess whether those activities are reasonable, non-discriminatory and respect the right to engage in speech and conduct protected by the First Amendment. The investigation will include a comprehensive review of LPD policies, training and supervision, practices for the collection of fines and fees and systems of accountability.

No city, no town and no law enforcement agency is too large or too small to evade our enforcement of the constitutional rights every American enjoys, said Assistant Attorney General Kristen Clarke of the Justice Departments Civil Rights Division. We are opening this investigation to determine whether the Lexington Police Department engages in a pattern or practice of discriminatory policing, excessive force or First Amendment violations. This investigation should send a clear message to small and mid-size police departments that they are not exempt from the obligation to provide fair, effective and non-discriminatory policing. We will leave no community behind, including underserved regions in the Deep South, in our quest to ensure lawful and constitutional policing in America.

Police officers are trusted with the important duty to keep our communities safe. When police officers fail to respect constitutional rights, they violate that trust, said U.S. Attorney Todd W. Gee for the Southern District of Mississippi. Our office is committed to ensuring that everyone in Mississippi is treated fairly and lawfully by the police. Todays announcement reflects that commitment. We will conduct a thorough and impartial investigation of LPD, and we will take decisive action to address any unlawful conduct.

Before this announcement, officials from the Justice Department notified Lexington officials, who have pledged to cooperate with the investigation. As part of this investigation, the Justice Department will conduct outreach to community groups and members of the public to learn about their experiences with LPD.

The Special Litigation Section of the Justice Departments Civil Rights Division and the U.S Attorneys Office for the Southern District of Mississippi will jointly conduct this investigation pursuant to the Violent Crime Control and Law Enforcement Act of 1994, which prohibits state and local governments from engaging in a pattern or practice of conduct by law enforcement officers that deprives people of rights protected by the Constitution or federal law. If the Justice Department has reasonable cause to believe that the law enforcement officers of a state or local government have engaged in a prohibited pattern or practice, the department is authorized to bring a lawsuit seeking court-ordered changes to remedy the violations. In this investigation, the department will assess the law enforcement practices under the First, Fourth and 14th Amendments to the U.S. Constitution, Title VI of the Civil Rights Act of 1964 and the non-discrimination provisions of the Safe Streets Act.

Individuals with relevant information are encouraged to contact the Justice Department via email at Community.LexingtonMS@usdoj.gov or by phone at (833) 610-1232. Individuals can also report civil rights violations regarding this or other matters using the reporting portal of the Justice Departments Civil Rights Division, available at http://www.civilrights.justice.gov. Individuals can also report civil rights violations to the U.S. Attorneys Office at USAMSS.civilrights@usdoj.gov or (601) 973-2825.

Todays announcement marks the 11th pattern or practice investigation into law enforcement misconduct opened by the Justice Department during this Administration. The department has ongoing investigations into the Phoenix Police Department; the Mount Vernon (NY) Police Department; the Louisiana State Police; the New York City Police Departments Special Victims Division; the Worcester (MA) Police Department; the Oklahoma City Police Department; the Memphis (TN) Police Department; and the Trenton (NJ) Police Department. The department recently completed investigations in Louisville, Kentucky, and Minneapolis, and secured agreements in principle with both jurisdictions to negotiate consent decrees to address the violations found.

Additional information about the Justice Departments Civil Rights Division is available on its website at http://www.justice.gov/crt. Additional information about the U.S. Attorneys Office for the Southern District of Mississippi is available at http://www.justice.gov/usao-sdms. Information specific to the Civil Rights Divisions Police Reform Work can be found here: http://www.justice.gov/crt/file/922421/download.

The Justice Department will hold a public community meeting on Nov. 8 at 5:00 p.m. CT at St. Paul COGIC Fellowship Hall, located at 17214 Highway 17 South, Lexington, Mississippi. Members of the public are encouraged to attend to learn more about the investigation.

Continue reading here:
Justice Department Announces Investigation of the City of Lexington ... - Department of Justice

from the age-verification-and-free-speech dept

Using Protect the children! as their rallying cry, red states are enacting digital pornography restrictions. Texass effort, H.B. 1181, requires commercial pornographic websitesand others, as well see shortlyto verify that their users are adults, and to display state-drafted warnings about pornographys alleged health dangers. In late August, a federal district judge blocked the law from taking effect. The U.S. Court of Appeals for the Fifth Circuit expedited Texass appeal, and it just held oral argument. This law, or one of the others like it, seems destined for the Supreme Court.

So continues what the Washington Post, in the headline of a 1989 op-ed by the columnist Nat Henthoff, once called the eternal war against pornography.

Its true that the First Amendment does not protect obscenitywhich the Supreme Court defines as prurient and patently offensive material devoid of serious literary, artistic, political, or scientific value. Like many past anti-porn crusaders, however, Texass legislators blew past those confines. H.B. 1181 targets material that is obscene to minors. Because virtually all salacious material is prurient, offensive, and without value to young children, the district judge observed, H.B. 1181 covers sex education [content] for high school seniors, prurient R-rated movies, and much else besides. Texass attorneys claim that the state is going after teen bondage gangbang films, but the law theyre defending sweeps in paintings like Manets Olympia (1863):

Incidentally, this portrait appearsalong with other nudesin a recent Supreme Court opinion. And now, of course, it appears on this website. Time to verify users ages (with government IDs or face scans) and post the states ridiculous warnings? Not quite: the site does not satisfy H.B. 1181s one-third . . . sexual material content threshold. Still, that standard is vague. (What about a website that displays a collection of such paintings?) And in any event, that this webpage is not now governed by H.B. 1181 only confirms the laws arbitrary scope.

H.B. 1181 flouts Supreme Court decisions on obscenity, internet freedom, and online age verification. This fact was not lost on the district judge, who noted that Texas had raised several of its arguments largely for the purposes of setting up Supreme Court review. If this case reaches it, the Supreme Court can strike down H.B. 1181 simply by faithfully applying any or all of several precedents.

But the Court should go further, by elaborating on the threat these badly crafted laws pose to free expression.

When it next considers an anti-porn law, the Court will hear a lot about its own rulings. But other opinions grapple with such lawsand one of them, in particular, is worth remembering. Authored by Frank Easterbrook, perhaps the greatest jurist appointed by Ronald Reagan, American Booksellers Association v. Hudnut (7th Cir. 1985) addresses pornography and the First Amendment head on.

At issue was an Indianapolis ordinance that banned the graphic sexually explicit subordination of women. Interestingly, this law was inspired by two intellectuals of the left, Catharine MacKinnon and Andrea Dworkin. They maintained (as Easterbrook put it) that pornography influences attitudesthat depictions of subordination tend to perpetuate subordination, including affront and lower pay at work, insult and injury at home, battery and rape on the streets. (You can hear, in todays debates about kids and social media, echoes of this dire rhetoric.)

Although he quibbled with the empirical studies behind this claim, Easterbrook accepted the premise for the sake of argument. Indeed, he leaned into it. For him, the harms the city alleged simply demonstrate[d] the power of pornography as speech. That pornography affects attitudes, which in turn affect conduct, does not distinguish it from other forms of expression. Hitlers speeches polluted minds and inspired horrific actions. Religions deeply shape peoples lifestyles and worldviews. Television leads (many worry) to intellectual laziness, to a penchant for violence, to many other ills. The strong effects of speech are an inherent part of speechnot a ground for regulation. Any other answer leaves the government in control of all of the institutions of culture, the great censor and director of which thoughts are good for us.

Like Texas today, Indianapolis targeted not obscenity alone, but adult content more broadly. And like Texas, the city sought to excuse this move by blending the two concepts together. Pornography is low value speech, it argued, akin to obscenity and therefore open to special restriction. There were several problems with this claim. But as Easterbrook explained, it also failed on its own terms. Indianapolis asserted that pornography shapes attitudes in the home and at the workplace. It believed, in other words, that the speech at issue influenced politics and society on a grand scale. True, Easterbrook acknowledged, pornography and obscenity have sex in common. Like Texas today, though, Indianapolis failed to carve out of its ordinance material with literary, artistic, political, or scientific value to adults.

Exposure to sex is not, Easterbrook declared, something the government may prevent. This is not an exceptional conclusion. Much speech is dangerous. Under the First Amendment, however, the government must leave to the people the evaluation of ideas. Otherwise free speech dies. Almost everyone would, if operating in a vacuum, happily outlaw certain kinds of noxious speech. Some would bar racial slurs (or disrespect), others religious fundamentalism (or atheism). Some would banish political radicalism (of some stripe or other), others misinformation (defined one way or another). Many of the lawmakers who claim merely to hate porn would, if given the chance, eagerly police all erotic film, literature, and art. (Another pathbreaking Manet painting, Luncheon on the Grass, would plainly have fallen afoul of the Indianapolis ordinance.) The First Amendment stops this downward spiral before it begins. It removes the government from the role of censor.

Indianapolis paint[ed] pornography as part of the culture of power. Maybe so. But in the end, Easterbrook responded, the First Amendment is a tool of the powerless:

Free speech has been on balance an ally of those seeking change. Governments that want stasis start by restricting speech. . . . Change in any complex system ultimately depends on the ability of outsiders to challenge accepted views and the reigning institutions. Without a strong guarantee of freedom of speech, there is no effective right to challenge what is.

Earlier this year, the Supreme Courts conservative justices sang a similar tune. It is not the role of the State or its officials, they declared in 303 Creative v. Elenis, to prescribe what shall be offensive. On the contrary, the Constitution protect[s] the speech rights of all comers, no matter how controversialor even repugnantmany may find the message at hand. Heres hoping that, when theyre dragged back into the eternal war against pornography, those justices give these words their proper sweep.

Corbin K. Barthold is internet policy counsel at TechFreedom.

Filed Under: 1st amendment, 5th circuit, adult content, age verification, frank easterbrook, free speech, hb 1181, pornography, texas

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A Reagan Judge, The First Amendment, And The Eternal War Against Pornography - Techdirt

WASHINGTON One of Thomasina Browns favorite books is a memoir about a girl who deals with the grief of losing her father and struggles with her sexual identity.

Brown, a 16-year-old student at Nixa High School in Nixa, Missouri, said in an interview that she felt a connection with the book, as she grieved the loss of her own father and came to terms with her own queer identity.

That book, Fun Home: A Family Tragicomic, is one of the more than 3,300 books that have been banned during the 2022-2023 school year, a 33% increase from the previous school year, according to a report by PEN America, a group that is dedicated to fighting book bans and advocates for the First Amendment.

I saw myself very much so reflected in those pages, Brown said of the book by Alison Bechdel that the Nixa school board banned. And so for adults and the school board to deem it inappropriate felt kind of like they were telling me I was inappropriate, and I dont think thats fair.

In the last few years, there has been an unprecedented wave of book bans and censorship spurred by parents and conservative groups to target books that center the LGBTQ+ community, Black history and diverse stories. During the 202223 school year, book bans occurred in 153 districts across 33 states, according to the PEN America report.

Many of the book bans started during the early days of the pandemic, part of frustration over mask mandates and online learning that eventually led to the politicization of school board meetings.

To combat this, and in celebration of Banned Books Week on Oct. 1-7, PEN America has launched online training for students to fight book bans, and more recently, teamed up with bestselling authors to fight against book bans in Florida and across the country.

Some of those authors include Judy Blume, Ruby Bridges, Suzanne Collins, Michael Connelly, Gillian Flynn, Amanda Gorman, Nikki Grimes, Daniel Handler, Khaled Hosseini, Casey McQuiston, James Patterson, Jodi Picoult and Nora Roberts, among others.

Fighting book bans in Florida

One of the authors, Connelly, has committed $1 million to launch PEN Americas efforts in Florida, where the organization plans to open a Florida center before the end of the year to host public events and spearhead campaigns against book bans.

We see Florida as almost setting the map for where other states could go and certainly we hope that efforts to oppose book bans in Florida will also help us in how we think about pushing back against book bans before they ramp up to this scale in other states, said Kasey Meehan, the Freedom to Read program director at PEN America.

For the 2022-23 school year, more than 40% of book bans occurred in Florida, with 1,406 book bans in the state. States with high numbers of book bans include Texas with 625; Missouri with 333; Utah with 281; and Pennsylvania with 186.

In Florida, during the 2022-23 school year, 33 out of 69 school districts have book bans, nearly half of all school districts in the state, Meehan said.

When we look at Florida, and Florida appears to be such an anomaly, whats important for PEN and for other organizations that are tracking these movements is that Florida isnt necessarily an outlier. They are putting forth the roadmap for other states to follow, Meehan said.

PEN America and publishing giant Penguin Random House also sued a Florida school district in May over the school boards decision to remove books about race and LGBTQ+ identities.

State and federal actions

Beyond local school boards, Republican lawmakers at the state level have also joined the movement to ban books from public schools and libraries.

And the Republican-majority U.S. House this year passed legislation known as a Parents Bill of Rights. Democrats criticized the bill, arguing that it would lead to book bans.

Congressional Democrats have raised concerns about the increase in book bans across the country. U.S. Rep. Jamie Raskin introduced a resolution to recognize Banned Book Week and condemn bans on books.

The escalating crisis of book bans across our country in recent years is a direct attack on First Amendment rights and should concern everyone who believes freedom of expression and the freedom to read are essential for a strong democracy, Raskin, a Maryland Democrat, said in a statement. The sinister efforts to remove books from our schools and libraries are a hallmark of authoritarian regimes.

In September, the U.S. Senate Judiciary Committee held a hearing to discuss the consequences of book bans, but senators ultimately decided it was not Congress role to intervene.

The White House in June announced that the Department of Education Office for Civil Rights would appoint a coordinator to counter the massive wave of book bans across the country.

However, the department has not responded to multiple requests from States Newsroom asking about the hiring status of the new coordinator.

One state, Illinois, became the first state to pass a law outlawing the banning of books.

Eight states home to a majority of bans

PEN America found that 87% of the book bans were in school districts with a nearby chapter or affiliate of a national group known for advocating for book banning or censorship.

And 63% of all book bans, or 2,114 books, occurred in eight states Florida, Missouri, Utah, Virginia, Tennessee, Georgia, Oklahoma and West Virginia with state laws that either banned books or created local pressure to remove books for the 2022-2023 school year.

Two states have also recently passed similar legislation, Texas and Iowa.

The main group that has challenged school boards is Moms for Liberty, an organization formed in 2021 that has strong GOP ties and local chapters that target local school board meetings, school board members, administrators, and teachers to push right-wing policies, as reported by Media Matters. Moms for Liberty has about 300 chapters across 47 states.

Moms for Liberty has four chapters in Thomasina Browns home state, but not in her town of Nixa. There is a chapter right next to the county she lives in, which is Christian County.

Brown said that many of the book challenges came from faith-based groups.

Brown, who runs a club with several other students to push back against book bans, often attends school board meetings where books shes read are being challenged.

Were telling this group of adults, how these things directly impact us, she said. Theyre the books that we read in our schools, in our libraries. Were telling them our stories, our identities, and theyre telling us that its inappropriate, and we dont know whats best for ourselves, even though some of us that get up there and talk are 18 and are able to vote on these issues and definitely can have a say in what they can be reading.

She said she feels sad when she attends those school board meetings. When a book is banned, there are typically cheers from adults in the audience, she said.

That was really disheartening, she said. I just watched my peers get up and share their experiences and why the books and our schools and our libraries were important to them and important to other students, and we were basically completely ignored.

But Brown said she is still fighting. Even though its her senior year, shes spending time training a sophomore to take over the club, Nixa Students Against Book Restrictions. She said she understands the importance of books.

Being able to read stories from different perspectives, I think really is able to build a lot of empathy for what other people go through or what they have gone through in the past, and I think thats really important, she said.

States and the number of books they have banned from July 2022 June 2023 include:

North Carolina 58 books

Arkansas 4 books

California 1 book

Colorado 8 books

Florida 1,406 books

Georgia 4 books

Idaho 25 books

Indiana 3 books

Iowa 6 books

Kansas 7 books

Kentucky 3 books

Maine 13 books

Massachusetts 1 book

Michigan 39 books

Minnesota 1 book

Missouri 333 books

Nebraska 6 books

New Hampshire 1 book

New Jersey 3 books

New York 6 books

North Dakota 27 books

Oklahoma 2 books

Oregon 38 books

Pennsylvania 186 books

South Carolina 127 books

South Dakota 2 books

Tennessee 11 books

Texas 625 books

Utah 281 books

Virginia 75 books

West Virginia 2 books

Wisconsin43 books

Wyoming 15 books

(Note: The report only runs through June 30 of 2023. Since then, school districts have banned hundreds more titles.)

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First Amendment advocates fight growing number of U.S. book bans - NC Newsline

Efforts to ban books in public schools and public libraries reached anall-time high in 2022and show few signs of abating for 2023, according to the American Library Association.

The recent movement to remove books appears to be acoordinated campaigntaking place at both the state and local levels; it often targets books that address race, gender or both. Some of these efforts have resulted inlaws that threaten to jail librarians.

Most Americans opposeremoving books from libraries. That may explain why Illinois recently enacted a law that outlaws banning books: If any public library in the state bans materials because of partisan or doctrinal disapproval, it will be ineligible for state funds.

Bans and the banning of bans have already ended up in the courts. For example, in a lawsuit in Florida, a First Amendment advocacy group, a publisher, parents and authors whose books have been targeted filed suit against the Escambia County School Districts removal of 10 books and restriction of 100 others in the school library. They alleged that school officials violated students First Amendment rights when they removed books that discussed, race, racism and LGBTQ+ people. The case is ongoing.

One or more of these sorts of cases could end up at the Supreme Court but until then, the lower courts will look to existing precedent, set in a legal ruling that dates back to 1982. In that ruling, the court declared that school personnel have a lot of discretion related to the content of their libraries, but this discretion may not be exercised in a narrowly partisan or political manner.

My analysis of that 1982 case,Board of Education, Island Trees Union Free School District v. Pico, finds useful information that can help put thesebook ban lawsuits in context.

One student, on behalf of four other students in the school district, filed a lawsuit in U.S. District Court. The suit claimed that removing the books from the library infringed upon the students First Amendment rights to freely access ideas and information.

The school board prevailed in U.S. District Court because the judge found that school boards should have discretion in those matters. But the appeals court overturned that ruling, saying the fact that the school boards reasoning relied in part on external evaluations of the books raised concerns about censorship.

When the case came before the Supreme Court in 1982, the justices agreed to analyze whether the school boards decision to bar certain books from its libraries, based on the books content, violated the students rights.

The ruling was divided five justices affirmed the appeals courts decision in favor of the students, though not all of them agreed on exactly why.

Justice William Brennan Jr. wrote that the First Amendment does limit school officials authority to remove books from school libraries, because that authority infringes onstudents rights to receive ideas and information. Justices Thurgood Marshall and John Paul Stevens signed on to this opinion, which was not a majority opinion. Two justices wrote concurring decisions, but only one agreed with the trios overall conclusion that the board had unconstitutionally infringed on students rights. Justice Harry Blackmun said the government the school board could not deny students access to ideas based on political reasons. Justice Byron White agreed with the conclusion, but did not express a view on the First Amendment question.

Four justices dissented. Chief Justice Warren Burger wrote the main dissent, which was joined by Justices Lewis Powell, William Rehnquist and Sandra Day OConnor. Their opinion focused more on the issue of accessing books than it did on the First Amendment questions the case raised.

Though there was not a clear majority opinion, the case suggests that school boards have broad discretion over library books but do not have unlimited authority to remove books from library shelves.

The justices agreed that a school library is a place where important information is disseminated to learners and is a unique place for students to engage in inquiry related to their interests and passions. Therefore, they ruled, school officials may remove books only for sound educational reasons or legitimate purposes such as pervasive vulgarity or lack of educational suitability.

As a result, school personnel are likely limited in their power to restrict books availability simply because they or other officials disagree with the books content.

If any of the current cases reach the Supreme Court, the current justices could rule differently, of course. But in the meantime, lower courts hearing book-banning cases will be guided by that precedent.

This article is republished from The Conversationunder a Creative Commons license.Read the original article.

Suzanne Eckes is the Susan S. Engeleiter professor of education law, policy and practice at the University of Wisconsin-Madison. High school student Ian Shaw contributed to the research and writing of this article. Through its opinion section, Kansas Reflector works to amplify the voices of people who are affected by public policies or excluded from public debate. Find information, including how to submit your own commentary, here.

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Where the Supreme Court stands on banning books - Kansas Reflector

Libraries across Multnomah County celebrate Banned Books Week by prominently displaying banned or challenged books Oct. 1-7.

Multnomah County libraries Banned Books Week celebrations have added significance this year. With book bans and challenges rising throughout the United States and Oregon, challenges or requests for reconsideration keep the Oregon Library Association, or OLA, Intellectual Freedom Committee busy addressing censorship issues.

Librarians throughout Multnomah County and the state look forward to raising awareness about intellectual freedom in the wake of schools and librarians facing threats and harassment regarding books with LGBTQIA+ content.

Displays include books like Gender Queer: A Memoir by Maia Kobabe, the most challenged book in America from 2022, according to the American Library Association. Many educators consider this young adult graphic novel, which deals with gender identity, to be appropriate for high school students.

The State Library of Oregon reports book challenges are at a historic high, with many attempts focused on multiple titles at once. Of 46 challenges, 82% were at public libraries and 18% at school libraries. Patrons, parents or groups, some explicitly political or religious, file the challenges. These challenges range from requesting librarians move a book to a separate library shelf to asking librarians to remove materials altogether.

The First Amendment allows individuals to gather, speak, publish, read and view what they wish with few restrictions. The legal bar for restricting speech is extremely high, so banning books in public libraries is on shaky ground when it comes to the First Amendment.

Regardless of dubious legality, groups and individuals are ramping up efforts to ban books, particularly those written by marginalized people, Shawn Cunningham, Multnomah County Library spokesperson, said.

Across the country, so-called parent advocacy groups put pressure on school districts to ban books addressing race, sexuality and gender identity. Leading groups include Citizens Defending Freedom, Parents Rights in Education and Moms for Liberty, which are typically funded by special interest groups and promote a far-right or religious agenda. Often, the groups have few local ties, if any, but work to create a superficial fervor for banning books in a given area.

Multnomah County Library stands against censorship, Cunningham said. Public libraries are vital civic spaces, places for differing ideas and points of view. Promoting civil discourse about difficult subjects and upholding the principles of intellectual freedom are core library values.

In light of organized efforts to suppress marginalized voices and perspectives, those values are more important than ever.

Emily ONeal, OLA Intellectual Freedom Committee chair, leads OLAs efforts around intellectual freedom.

ONeal said the committee has been busier than usual in recent years. Four years ago, the committee tracked one challenged book at a time. Now, the committee typically tracks three or four book challenges at a time.

Bans, challenges, censorship; a lot of folks use the term banning universally, but it is the least likely of scenarios, ONeal, also a public librarian in Bend, said. A ban is the result of a process when a book has been removed. It does not happen very often and is not a concern nationwide. We more often see a challenge process, the act of asking for removal.

Request for Reconsideration is a formal process to challenge a book. Questions on the form from the OLA include whether someone read the entire book, what concerns they have and suggestions for how they want the library to provide more information and other viewpoints. The complainant completes the form and talks to the librarian, teacher or principal about their concerns.

According to Miranda Doyle, a school library media specialist who serves on the OLA Intellectual Freedom Committee, the process can continue from there. If unresolved, the school district can form a committee that meets once or several times; they vote on their recommendation. Most often, there are teachers, parents, students and librarians on the committee. These meetings can be public or summarized for the public afterward. Sometimes, the recommendation to retain, remove or relocate books goes to the school board or superintendent for approval or a different outcome.

Multnomah County Library operates based on a set of values and goals that reflect its mission of service to the community, Cunningham said. Library patrons are welcome to submit statements of concern about library materials; the library evaluates each of those separately and with care.

Currently, 90 books, two films and one magazine are on the State Library of Oregons list of challenged items. Almost all have been retained or are under review. One, Crank by Ellen Hopkins, has been restricted. Libraries are still reviewing some items and have not removed any.

Most challengers follow the process, but sometimes people circumvent this by going straight to the library board, school administration or local government, according to the state library. A few resort to aggressive tactics, such as harassing library staff and lobbing death threats, as was the case for three Oregon public libraries challenged over LGBTQIA+ books this year.

The state library reports challengers accused the libraries of promoting content, distributing pornography to minors, and encouraging sexualization of young children. In addition to death threats and general harassment, challengers called library staff groomers and "pedophiles," according to the state librarys Oregon Intellectual Freedom Clearinghouse 2023 Report.

These instances in Oregon reflect what is happening around the country. OLAs Intellectual Freedom Committee maintains a statement regarding its stance on the First Amendment and book banning.

We support the right of parents and guardians to guide their childs reading and viewing choices, but that right does not extend to removing choices for others, the statement reads. The work of libraries and librarians is to serve everyone in their community and provide resources that are reflective of the world around us.

All the books on the American Library Associations list of the 13 most challenged books of 2022 face claims of sexually explicit content or content pertaining to LGBTQIA+ communities. A 2022 Gallup poll found 7.1% of the U.S. population identifies as LGBTQIA+, double the number in 2012. These books reflect a growing demand, and the pushback reflects an intensifying reaction from people and groups with anti-LGBTQIA+ views.

The American Library Association Office of Intellectual Freedom documented challenges to 3,923 book titles nationwide between Jan. 1 and Aug. 31. Challenges are up from last year and the highest number of challenges in the last 20 years. Most of these books were written by or about people of color or members of LGBTQIA+ communities. Some depict violence or abuse.

While libraries removing books altogether is rare, its not unheard of in Oregon.

In April 2022, North Medford High School removed the graphic novel version of Margaret Atwoods book, The Handmaids Tale, from shelves. A parent complained about images of nudity, sexual assault and suicide in the dystopian science fiction novel, and the school has not returned the title, according to ONeal.

In March 2023, KGW News reported the Canby School District removed 36 titles outside of the review process. Two community members wanted to remove the books because they allegedly depict violence, sexual content, profanity and drug addiction.

KGWs published list of challenged titles included mostly books by and about people of color, LGBTQIA+ people and books with alleged sexual content.

The district planned to review the books over the summer, according to ONeal. Hundreds of parents and students wanted the books returned to the shelves. They attended board meetings, protested and the students set up an Instagram account.

Ultimately, a school board-established committee decided to keep all books except one, Lolita by Vladimir Nabokov. ONeal said the school board did not involve the OLA in the process.

Other school districts in Oregon have faced similar requests from parents, but chose to keep the books available until the matter was resolved. Some, like West Linn-Wilsonville School District, chose to restrict certain books to high school libraries.

PEN America, a writing advocacy group, reports most book bans this school year are in Texas, Florida, Missouri, Utah and South Carolina.

At least seven states passed or are considering obscenity laws penalizing librarians for providing LGBTQIA+ content or what the state considers sexually explicit content, according to The Washington Post.

One thing that is important to this current situation is the folks that are pushing for materials to be removed are organized and pushing at a higher level, ONeal said. They are political and organized, with extreme views, not what communities want. I dont want a protected worldview, and Im baffled as to who these people are because it is an organized extreme effort.

In December 2022, The Bulletin reported some parents asked a director of library services in Crook County to remove childrens books with LGBTQIA+ content to a different part of the library. Moving and labeling the books would be a violation of the First Amendment and could put funding for the library in jeopardy, according to an attorney hired by Crook County.

In turn, the Crook County Library Board of Trustees voted not to move or label the books reflecting the LGBTQIA+ community. Following this, students were not given access to school library materials.

Social media posts targeted the director with misinformation, and patrons subjected library staff to harassment and name-calling. The director eventually resigned, partly due to the overwhelming pressure, The Bulletin reported.

The Oregon Library Association helps libraries through challenges across the state as a resource with policies and information. It may issue public statements against the challenges.

There are things a library can and should do, ONeal said.

She recommends well-trained library staff work with library boards and their community to make sure they understand what to do about book challenges. They can be sure to follow the process and not sidestep policies. Community members can speak up at board meetings in support of libraries and First Amendment rights.

In states with less official resistance to book banning, libraries fight back against First Amendment violations with lawsuits.

This year, libraries in Arkansas, Texas, Florida, Missouri and Wisconsin filed lawsuits because of First Amendment violations, with the help of the Freedom to Read Foundation, the First Amendment legal defense branch of the American Library Association.

In June, the Freedom to Read Foundation, along with authors, librarians, readers, publishers and booksellers, filed suit for Arkansas to remove Act 372, which restricts reading materials in libraries and bookstores.

In Texas, citizens filed a suit against the Llano County government for removing materials from the county library that some library users complained about.

PEN America and Penguin Random House sued the Florida Department of Education on May 16 over unconstitutional book bans targeting books about LGBTQIA+ identities along with race and racism. The ACLU has been involved in other lawsuits, fighting against censorship and upholding the Constitution.

Banned Books Week is a time to call out the need to fight against censorship and to celebrate the freedom to read. This year, the ALAs theme for Banned Books Week is Let Freedom Read!.

Young people in Multnomah County weighed in on the topic of banning or challenging books. The library published some of their comments.

Ive read many banned books, a youth from Gresham said. For example, Stamped by Jason Reynolds & Ibram X. Kendi. I believe people challenged it because of its content on racism. And the history they wrote about it. I found it very interesting and a very important novel. We learn about history so we make sure it doesnt happen again.

Multnomah County Library states on its website that everyone should have the opportunity to see themselves represented on the shelves.

I think books are being banned/challenged because people are afraid of what they dont understand, so they try to get rid of it altogether, a young reader from Woodstock Library said.

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Oregon libraries celebrate Banned Books Week - Street Roots News