Category Archives: First Amendment

TAMPA, FLORIDA Defense attorneys representing three U.S. citizens accused of operating a Russia-directed malign influence campaign to sow discord in the United States urged Federal Magistrate Judge Anthony E. Porcelli to dismiss the Department of Justices (DOJ) case against their clients this September 28, arguing their continued prosecution threatens to blow a hole in the 1st Amendment.

This is a very dangerous case. I have not seen anything like it in 25 years of practicing law. The government is trying to put three of its critics in jail for making political speeches, organizing peaceable rallies and publishing political articles, Leonard Goodman, an attorney representing one of the defendants, commented to The Grayzone outside the U.S. district courthouse in Tampa, Florida.

A federal grand jury charged Florida residents Omali Yeshitela, Penny Joanne Hess, and Jesse Nevel with acting as unregistered agents of the Russian government in April, accusing them of carrying out a multi-year foreign malign influence campaign to sow discord and spread pro-Russian propaganda in the United States. The charges stemmed from their political activism as part of the Uhuru Movement, a self-described African Nationalist organization that Yeshitela founded in 1972.

Their defense lawyers argue that their prosecution represents an unprecedented threat to the First Amendment, with the DOJ seeking to not only criminalize the public speech and political activity of U.S. citizens, but set a legal precedent regarding the governments definition of disinformation. In its opposition to Goodmans motion to dismiss, the DOJ argues that the term does not refer to information that is necessarily false.

The DOJ has attempted to bolster its argument by citing Thomas Rid, a Johns Hopkins academic who gained prominence as a pundit during the Russiagate affair. In a 2020 Washington Post commentary, Rid insisted,

We must treat the Hunter Biden leaks as if they were a foreign intelligence operationeven if they probably arent.

The DOJ quotes Rids book, Active Measures, to argue that disinformation refers to Russian intelligences long standing employment of active measures that seek to create wedges that reduce trust and confidence in democratic processes, degrade democratization efforts, weaken U.S. partnerships with European allies, undermine Western sanctions, encourage anti-US and anti-Western political views, and counter efforts to bring Ukraine and other former Soviet states into European and international institutions.

Lawyers for the Uhuru 3 maintain that the DOJs justification for prosecuting their clients sets the stage for the U.S. government to legally harass and prosecute other Americans who criticize U.S. domestic and foreign policy, particularly where designated enemies like Russia or China are concerned.

The government is asking the Court to create a new exception to the First Amendment for what it calls disinformation, Goodman asserted. (Full disclosure: Goodman donated to The Grayzone at its inception in 2018 and has previously volunteered legal analysis to this site).

Indeed, the indictment accuses Yeshitela of spreading disinformation and propaganda during a February 2022 speech to supporters. During that address, the defendant argued that the U.S. and NATO had provoked Russias invasion of Ukraine by expanding NATO 800 miles towards the border of Russia, by sponsoring a 2014 coup against the government of Ukraine, and by arming Kiev to the teeth.

The Uhuru 3s defense lawyers pointed out their clients views are nearly identical to the views held by well-renowned public intellectuals such as Professors Jeffrey Sachs of Columbia University and John Mearsheimer of the University of Chicago.

In response, the government now seeks authority to label anything you say disinformation if it is favorable to Russia, or whatever country the government wants to have a war with, Goodman explained.

The April indictment of the Uhuru 3 defendants came nine months after the FBI raided several properties affiliated with the Uhuru Movement in Florida and Missouri. And it was not the first time properties affiliated with the group had been invaded by SWAT teams.

The July 2022 operation culminated with a pre-dawn military style raid on 81-year-old Yeshitelas private home that featured dozens of geared-up riot police, armored vehicles, flash bang grenades, and even a drone.

When they come to your house at pre-dawn, and they use flash bang grenades to terrorize the entire community, when they use assault weapons mounted with laser targeting devices hitting you in the chest-making you remember what they did to Fred Hampton, in 1969, at four oclock in the morning, when they killed him in his bed-when this happens there is an assumption that we are supposed to be so terrified that we dont fight back, Yeshitela told The Grayzone shortly following the September 28 hearing.

If they can attack the First Amendment through us, if they can make the assumption that they can do like they did in the 60s, create this whole anti-Russian, anti-communist hysteria the free speech rights of everybody in this country are at stake, he added.

The Uhuru Movement and its political wing, the African Peoples Socialist Party (APSP), have long served as a thorn in the side of the local and national political establishment, particularly the Democratic Party. Local police in St Petersburg, Florida targeted the group with a militarized assault in 1996 which resembled the Philadelphia polices notoriously lethal raids against the Black nationalist MOVE organization.

That raid followed weeks of public protests and rioting against the police killing of 18-year-old TyRon Lewis, who was shot while seated in his car after being stopped. Lewis was one of eight young Black men killed by St. Petersburg police officers that year.

In 2008, Yeshitela garnered national attention for questioning then-candidate Barack Obama about his program for Black Americans during a campaign stop in St. Petersburg. Liberal media outlets accused Uhuru protestors of heckling the would-be president. More recently, APSP city council and mayoral candidates in St. Petersburg caused a massive split within the local Democratic Party after several high-level party apparatchiks jumped ship to join the APSP campaign.

Of course they are being targeted because of their politics, Goodman remarked to The Grayzone.

They have been harsh critics of Western colonizers for fifty years, and they have a large and loyal group of supporters.

Goodman also pointed to the Uhuru movements media network, which includes a community radio station and newspaper, The Burning Spear, as factors in the governments legal attack.

The April indictment focuses on allegations that the Uhuru 3 conspired with a Russian national named Viktorovich Ionov, President of an outfit called the Anti-Globalization Movement of Russia (AGMR), to produce articles and speeches with the stated goal of causing turmoil in the United States. The three defendants are accused of violating 18 U.S. Code Section 951, which requires agents operating under the control of foreign governments or foreign officials, other than diplomats, to notify the Attorney General before acting. Throughout Thursdays pre-trial hearing in Tampa, however, it was apparent the governments case was heavily reliant on innuendo.

During his presentation, Assistant U.S. Attorney Daniel J. Marcet branded the Uhuru 3two of whom are over seventy years oldas urgent threats to the national security of the United States. Marcet conjured a scenario in which Ionov directed the co-defendants to destabilize the U.S. through their national campaign to win reparations for Black Americans. The prosecutor punctuated his case with references to some of the most familiar boogeymen and women of the Russiagate affair, from the Internet Research Agency troll farm to Marina Butina to Russias Federal Security Service (FSB), which he characterized as the first or second most hostile foreign intelligence service on the planet.

Sowing discord is the Russian governments aim, Marcet insisted before the court.

Seemingly missing from Marcets argument was hard evidence on the Uhuru 3s activities as witting agents of the Russian state. Defense attorneys pointed out that each of the overt acts listed in the federal indictment consist of public statements, articles, and lectures delivered by the defendants. Goodman maintained therefore, that their alleged crimes ultimately fell under the category of constitutionally protected political activity and speech.

It is well established that government intrusions on political expression strike at the core of the First Amendment, Goodman explained.

As the Supreme court held in Meyer v. Grant (1988), the governments burden to justify criminalizing political speech is well-nigh insurmountable.

In opposition to the Motion to Dismiss, prosecutors highlighted the case of Khaled Abdel-Latif Dumeisi, a Chicago-based publisher who was found guilty of failing to register as an agent of the Iraqi state in 2004 and ultimately sentenced to 46 months in prison. The DOJ argued that publishing [political] articles at the direction of Iraqi intelligence was a legitimate basis for Dumeisis conviction.

Yet as Goodman pointed out, Dumeisi was prosecuted for actionsnot speech. And as the court found in his case, there was evidence to show that Dumeisi acted as a covert spy for Iraqi intelligence, gathering intelligence and submitting reports on Iraqi dissidents. In fact, the jury was told directly that Dumeisis speeches, newspaper articles and political views were protected by the First Amendment, and are to be considered only insofar as they may pertain to issues of motive and intent.

In other words, as Dumeisis own defense attorney argued, his clients public political activity was not relevant to the case in and of itself, and was only considered by the court as evidence insofar as his speech complimented an action like intelligence gathering conducted on behalf of the Iraqi state.

In deploying Dumeisis prosecution to establish precedent for convicting the Uhuru 3, Assistant U.S. Attorney Marcet papered over the critical distinction between speech and action. He thus created the impression Dumeisi had been convicted on the grounds that his speech constituted an action taken on behalf of Iraq.

To argue that the Uhuru 3 engaged in a multi-year conspiracy to sow discord in the U.S. at the behest of Russia, DOJ prosecutors pointed to evidence that Ionovs AGMR group contributed about $7,000 to help fund a four-city Reparations Tour which Yeshitela conducted in January 2016.

Defense attorneys argued that Yeshitelas tour constituted political speech and was thus protected under the First Amendment. Whats more, they noted that Yeshitela has been a leading advocate of reparations for decades before Ionov was even born. Yeshitelas supporters credit his decades-long campaign, including his work to organize the first ever World Tribunal on Reparations for African People in the U.S. in 1982, with popularizing the idea of reparations among the U.S. public.

Somehow the Russians just got us to start talking about genocide, according to the logic here. Its extraordinary, Yeshitela told the media following the motion to dismiss hearing.

Its an assault on the whole assumption that Black people have agency, that we have brains, that we know that we are oppressed and dont need anybody to tell us.

Goodman noted that top Washington think tanks rake in tens of millions of dollars a year from Gulf monarchies while pushing a foreign policy agenda that advances their donors goals. Our clients, he told the judge,

are accused of accepting about $7,000 from Russia during six years of their alleged collaboration, mostly to cover some of the costs relating to a four-city speaking tour to promote reparations.

Goodman further cited the 1934 case of De Jonge v. Oregon, where the Supreme Court overturned the conviction and imprisonment of Dirk De Jonge, a member of the Communist Party, who was prosecuted under an Oregon law that sought to criminalize a public meeting held under the partys banner. There, the Supreme Court held that peaceable assembly for lawful discussion cannot be made a crime.

The Court further explained:

The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is held but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects.

Goodman built on the Courts ruling to argue that the speakers relationship to the Communist Party in De Jonge, or to Russia as alleged in prosecution of the Uhuru 3, cannot justify the governments using criminal prosecution to suppress political speech.

At the heart of Goodmans argument was his sense that the governments prosecution not only threatened his clients rights, but the Constitution itself.

Dismissal of this indictment is not only proper, the defense lawyer declared.

It is necessary to preserve our freedoms under the First Amendment. Allowing this prosecution to proceed to trial sends a message to all Americans that they better watch what they say. As the Supreme Court stated in Dombrowski v. Pfister (1965): For free expressionof transcendent value to all society, and not merely to those exercising their rightsmight be the loser.

Anya Parampil is a journalist based in Washington, DC. She has produced and reported several documentaries, including on-the-ground reports from the Korean peninsula, Palestine, Venezuela, and Honduras.

Monthly Review does not necessarily adhere to all of the views conveyed in articles republished at MR Online. Our goal is to share a variety of left perspectives that we think our readers will find interesting or useful. Eds.

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How U.S. govt prosecution of Uhuru activists threatens a First ... - MR Online

Social media companies argue that their content moderation decisions are a form of editorial discretion protected by the First Amendment. Conservative critics of those companies reject that argument, even as they complain that the platforms decisions reflect a progressive agenda.

That contradiction is at the heart of two cases that the Supreme Court recently agreed to hear, which involve constitutional challenges to state laws that aim to correct the bias that Republicans perceive. Although supporters of those laws claim they are defending freedom of speech, that argument hinges on a dangerous conflation of state and private action.

The 2021 Florida law at issue in Moody v. NetChoice requires social media platforms to host speech by any candidate for office, even when it violates their content rules. The law also says platforms may not limit the visibility of material by or about a political candidate and may not censor, deplatform, or shadow ban a journalistic enterprise based on the content of its publication or broadcast.

The law does not cover relatively small, right-leaning platforms, such as Gab, Parler, Rumble, and Truth Social. It applies only to the largest platforms, such as X formerly Twitter Facebook, and YouTube, which Republicans have long accused of discriminating against conservative speech.

Florida politicians made it clear that they were trying to address that perceived imbalance. The bills legislative findings, which complain that Facebook et al. have unfairly censored, shadow banned, deplatformed, and applied post-prioritization algorithms, assert that the state has a substantial interest in protecting its residents from inconsistent and unfair actions by those platforms.

If Big Tech censors enforce rules inconsistently, to discriminate in favor of the dominant Silicon Valley ideology, Governor DeSantis declared upon signing the bill in May 2021, they will now be held accountable. Lieutenant Governor Jeanette Nunez said Florida was tak[ing] back the virtual public square from big tech oligarchs who were determined to censor views that run contrary to their radical leftist narrative.

Four months later, Governor Abbott signed the law at issue in NetChoice v. Paxton, which says social media platforms may not censor speech based on viewpoint and defines censorship to include not just deletion but also any steps that make user-posted content less visible, accessible, or lucrative. Like Floridas statute, the Texas law is limited to the largest platforms, which Mr. Abbott said were trying to silence conservative viewpoints and ideas, adding, It is now law that conservative viewpoints in Texas cannot be banned on social media.

In May 2022, a panel of the U.S. Court of Appeals for the 11th Circuit unanimously ruled that the major provisions of Floridas law probably violated the right to exercise editorial judgment, which the Supreme Court has recognized in diverse cases involving a Miami newspaper, an electric utilitys newsletter, and a private organizations Saint Patricks Day parade. The 11th Circuit noted that private actors have a First Amendment right to be unfair which is to say, a right to have and express their own points of view.

A divided panel of the U.S. Court of Appeals for the 5th Circuit rejected that conclusion when it considered the Texas social media law later that year. Because they rely heavily on algorithms, do not review content before publication, and take action against only a tiny percentage of messages, Judge Andrew Oldham said in the majority opinion, Facebook et al. are nothing like a newspaper.

Writing in dissent, Judge Leslie Southwick objected to that characterization. While none of the precedents fit seamlessly, Ms. Southwick said, a social media platforms right to curate content is analogous to the right of newspapers to control what they do and do not print.

In arguing that the 5th Circuit got it right, Mr. DeSantis, Mr. Abbott, and like-minded politicians assert that Facebook et al. are pursuing a left-wing agenda while simultaneously denying that the First Amendment protects their right to do so. The Supreme Court should not let them have it both ways.

Creators.com

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Does the First Amendment Apply to Speech on Social Media ... - The New York Sun

It was during the Student Government Association (SGA)s Sept. 19 Senate that senior Sen. Parker Boggs first took notice of what he considered a major First Amendment violation. His concerns came after the organization amended its election policy to require social media posts from candidates to be submitted for approval before posting, and since he raised his concerns, the SGA has made plans to revisit the amendment at a later time, said on Sept. 28.

The passage in the virtual document stipulated that, as it had been enforced in previous years, all campaign content posted to social media or otherwise must be approved by the commission before posting. Although the SGA is open to further conversation surrounding the policy, it felt the Sept. 19 meeting was neither the time nor place to discuss it.

JMU Student Government Association passed an amendment to its election process, requiring any candidate running for SGA office to share all campaign content with the election commission. Noel James has the latest on the resolution amid concerns it violates the first amendment.

The amendment applies to prospective SGA members during election season, which is required by the organizations Constitution to take place before the first week of October. Class of 2026 President Reagan Polarek said the reason this was a time-sensitive issue was that without the approval of the corrections, the entire policy would have been stalled, delaying elections by two weeks. Despite the dissent, the Senate passed the amendment with only Boggs objection, as he outlined in a letter to The Breeze.

Its not that its personal. This is about the First Amendment, Boggs said in an interview with The Breeze on Sept. 27. This is about our Constitution. This is about the school were named after, the Father of the Constitution himself. If James Madison were alive today, Im pretty sure hed see that and that clause and understand that that is a blatant violation of what he fought for so hard.

Polarek explained the necessity of the clause and the practices that take place in its effect. Polarek said prior to any SGA-related social media content being shared during elections, the candidate must first receive approval from the election committee. This was to verify information before its release to the public, she said.

I think that this policy protects SGA as a whole and potential new members in SGA from spreading misinformation, even unintentionally, Polarek said.

Polarek followed this comment with a personal anecdote of misdated content that was reviewed by the committee, which she later corrected and posted to her platforms. She stressed that the policy may be revisited in the future, but that it was both effective and imperative to this years Fall election cycle.

Our elections commissioner, Riley Gilbert, has done a great job of managing elections thus far, and I think she will continue to do that throughout the end of the election season, Polarek said. I trust her wholeheartedly.

Gilbert sent an email to The Breeze on Sept. 28 clarifying the statements purpose.

Despite the SGAs flexibility on revisiting this matter, Boggs said he believes the policy requires immediate attention. Boggs said its very existence, having flown under the radar, was an attempt at censorship rather than dispelling misinformation.

You can combat misinformation by combating it after it comes out, Boggs said. Misinformation, while it is very important that it absolutely should be addressed, that still has the right to be posted.

Boggs attributed his lack of support from other senators to a discomfort surrounding the matter.

Its a precedent that if people dont vote for the majority, that theyre going to feel like people are going to force them to be in the minority, he said.

While Boggs has no more campaigning opportunities as he graduates in May, he still intends to challenge the policy on behalf of incoming and current SGA members. In spite of this, he emphasized his trust in the elections committee but said his faith in it would improve with the removal of the policy.

The fight continues, Boggs said. Im not going to let this next election have that happen. Im going to ensure that I fight within SGA to make sure that we dont have that clause.

Ultimately, the importance of bipartisan problem-solving was stressed by both those against and in support of the amendment, and Polarek said the issue could be solved by greater student involvement.

I would encourage all those who think that its a violation of their free speech to come to Senate, voice that opinion and propose an amendment, Polarek said. We had a member of SGA do that already, and I think that will be an issue that we talk about further.

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SGA to amend elections policy after first amendment violation ... - The Breeze

Quick quiz: What do you get when you mix comedy, music, education, balloon art, yard games, scavenger hunts and fictional dictatorships?

Answer: A day celebrating the First Amendment!

That was the goal of Freedom Forums 1A Fest, the 2023 First Amendment festival held on The Wharf in Washington, D.C., on Saturday, Sept. 9.

Freedom Forums mission is to foster First Amendment freedoms for all. On paper, its a catchy (and alliterative) sentiment. In practice, its about educating, engaging and inspiring people online, around the country, and mere blocks away from where Supreme Court justices consider abstract-sounding legal questions that affect the rights of very real people.

Another quiz: What are the five freedoms protected by the First Amendment?

Answer: Religion, speech, press, assembly and petition.

If you didnt know all five, thats OK! Most people in the United States dont either, according to Freedom Forums annual survey. Thats why we do this work to educate people about their First Amendment freedoms and how to use them in everyday life.

The 2023 1A Fest showed why we think the First Amendment is F.I.R.S.T.: Its fun, inspiring, relatable, stormy and thought-provoking!

is fun As a family-friendly event, face painting, a caricature artist and various yard games all reinforced the fact that the First Amendment encompasses many kinds of free expression. Painting your face, making art, and getting your groove on while dancing at a concert or in a coordinated flash mob are all protected free speech.

Wait, flash mob? Yes, complete with protest signs, a dance remix to Woody Guthries This Land is Your Land, and ending with dancers unfurling a banner reading The First Amendment was made for you and me. How appropriate!

is inspiringFirst Amendment freedoms for all really means all people, kids included. Its incorrect that because someone is under 18, or at school, they dont have any First Amendment rights. Its important for young people to know and understand this.

There are numerous examples of school-aged young people taking their First Amendment cases all the way to the U.S. Supreme Court.

Some of these are highlighted in Freedom Forums First Amendment and You(th) exhibit, which was on display at 1A Fest and is also on display at Reagan National and Dulles International airports.

Voting rights may start at age 18, but the freedoms of religion, speech, press, assembly and petition dont stop at the schoolhouse gate, to invoke a notable line from a 1969 Supreme Court decision upholding the right of students to protest at school.

When young people know about this history, its more likely they will use their First Amendment freedoms, challenge limits to their rights and be inspired to be engaged members in a participatory democracy.

is relatableIf there are three things people have abundant access to and demand for in the United States, its scrolling social media, enjoying comedy, and looking for food all of which were well represented at 1A Fest.

Stage programming included talks about satire and the First Amendment with writers for The Onion and making news relatable and approachable with chef-turned-TikTok creator Vitus V Spehar.

V explained that their approach to delivering news via their popular TikTok channel Under the Desk News is based on making information, and those delivering it, feel approachable and relatable.

I have been told that I have oldest daughter, a big sister, favorite cousin energy I try to keep that energy for folks because people got so afraid of the news, V told moderator and Freedom Forum Fellow Lata Nott. And folks really started to trust the news again, they would see me come up and theyd be like, OK, Im going to listen because Im not going to be upset when this is over, even if its an upsetting story.

Comedian and actor Ron Funches didnt get to perform his set due to inclement weather. But he did talk to the Freedom Forum about how his evolving career shaped his views on the First Amendment.

The First Amendment to me is kind of like oxygen or your blood, where you dont really think about it that much until its not working properly, or when you feel like you need it suddenly and it becomes desperate for you, Funches said. So, Id say when I was younger, its not something I thought about much. There were certain things in the background. I grew up listening to people like Public Enemy, and they were always talking about utilizing your First Amendment. And I think as Ive gotten older and more active in my life and just my community around me, you become more aware about how important the First Amendment is.

The First Amendment is stormy

I disapprove of what you say, but I will defend to the death your right to say it.

This summary of French free speech advocate Voltaires philosophy from Evelyn Beatrice Halls biography of him comes up often in First Amendment conversations. Perhaps because its a provocative line. Perhaps because its wistful and aspirational.

If only the First Amendment were so understood, agreed on and defended today. In reality, conversations about free speech can quickly get emotional. What is protected speech to one person can be harmful and hurtful hate speech to another. (Yes, for the most part, hate speech is protected by the First Amendment.)

Flag burning or desecration is another fraught example as it touches on themes of military service, patriotism and even the First Amendment right not to stand during the national anthem.

As lightning and torrential rain forced the outdoor event to delay and move to a protected area, attendees heard from one person with direct experience in these stormy conversations.

Nate Boyer, a former U.S. Army Green Beret and former college football and NFL player, explained how he felt about Colin Kaepernicks well-documented protest to sit and later kneel during the national anthem in 2016 and beyond.

Boyer described the letter he wrote in the publication Army Times, specifically addressing Kaepernicks decision to sit during the national anthem as a protest against police treatment of Black people.

I wrote this letter. I said, This is my experience. This is why I feel this way, Boyer said. This is why those symbols are important, but I respect what youre doing.

Later, talking with Kaepernick in person, Boyer suggested Kaepernick join his teammates on the sideline and take a knee instead of sitting on the bench.

I said I dont think kneeling is ever really seen as disrespectful. And he agreed. He thought that was actually better. Kind of, in that moment, he just said, Alright, Ill do that. Ill take a knee.

Taking a knee didnt stop the blowback for Kaepernick. If anything, it made the protest more visible, obvious and easy to emulate for other athletes, like members of the U.S. Womens National Soccer Team. It also inflamed years of culture war back-and-forth among politicians and garnered heavy media coverage and criticism. It also effectively ended Kaepernicks NFL career; though the First Amendment prohibits government from punishing expressions like Kaepernicks, private employers like the NFL and its teams are not bound by the First Amendment.

Though that is the First Amendment in action: the right to stand, kneel, sit or otherwise not be compelled to make any gesture toward the flag is a form of protected speech. And the right to criticize or condemn people who dont do as you do, though stormy and provocative, is using your own free speech right.

At the end of the day, when I took the oath to join the military, I took the oath to defend the Constitution, which includes the First Amendment, Boyer recounted when describing how he thought about that initial letter to Kaepernick. You are exercising that right. And I respect that, and I look forward to the day that you are inspired to stand once again. Ill be standing right there next to you.

The First Amendment is thought-provoking

Many people value the First Amendment but dont necessarily know all five freedoms and how they apply to their daily lives.

One way to highlight and teach that is to show what its like when those freedoms disappear. As Joni Mitchell sang, Dont it always seem to go, that you dont know what youve got til its gone.

That was the idea behind Freedom Lost Caf during 1A Fest. Participants left the United States and entered the fictional country of NoFreedonia, located in The Brighton restaurant. In exchange for free food and drinks, visitors to NoFreedonia gave up their First Amendment rights of religion, speech, press, assembly and petition.

Turns out, a lot. Inside NoFreedonia, people did indeed get free food at the high price of their freedoms. They were met with the ominous instructions of a fictional dictator, who appeared on TV screens and warned customers not to break the rules: No praying. No speaking out of order. No talking with pesky reporters. No gathering together. No protesting.

The sunglass-wearing state security enforced the rules and hauled any offenders to jail.

Throughout the experience set up with scripted scenarios from actors speaking out against the dictator, praying together, protesting injustice, and a journalist breaking through NoFreedonia immigration to report a story attendees got a taste of what its like to live in a country without a First Amendment.

A journalist from HillRag detailed the experience of one attendee at the Freedom Lost Caf:

Ralph Albrecht was reminded of his fathers experience as a young boy in Nazi Germany. Obviously, he was a kid, so couldnt do anything about it. But his father lost his businesses and everything, Albrecht said, referencing his grandfather. And really the whole world can be turned upside down [without the First Amendment], Albrecht added.

Freedom Lost Caf was adapted from a program by the Society of Professional Journalists, which produced similar events on college campuses.

After leaving NoFreedonia and returning to the United States, attendees could talk with Freedom Forum staff and experts about the very freedoms they have and want to better understand under the First Amendment.

The First Amendment doesnt appear first in the Bill of Rights because it was necessarily top-of-mind. Its more a quirk of history why its, well, first. Regardless, its first now, which means its not only Freedom Forums focus, but also a Fun, Inspiring, Relatable, Stormy, and Thought-provoking way to learn about your freedoms of religion, speech, press, assembly and petition.

Scott A. Leadingham is a Freedom Forum staff writer, journalist and journalism trainer. Follow him on Twitter/X @scottleadingham

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Why the First Amendment is F.I.R.S.T. - Southwest Virginia Today

Heres the scenario. A First Amendment auditor someone who purposely films on public property to test the right to record police walks into the public lobby of your police department and begins recording with his cell phone. The supervising officer verbally confirms with the man that hes recording, points to a clearly posted sign that prohibits recording and tells the man he must stop. The man refuses, is arrested for defiant trespass, and convicted. He appeals, arguing the departments recording ban violates his First Amendment right to record police in public places.

Who wins?

The U.S. Supreme Court hasnt squarely ruled on a citizens First Amendment right to record police activity in public. But a growing number of federal circuit courts of appeal have found such a right currently eight of the thirteen. They include the First, Third, Fourth, Fifth, Seventh, Ninth, Tenth and Eleventh circuits.

The right to record police officers in public is not absolute. It may be subject to reasonable time, place and manner restrictions. Courts use a three-part test to determine whether any restrictions meet First Amendment standards:

For example, a state court may restrict the public from speaking in a courtroom unless they are an attorney or a witness on the stand.

The beginning scenario was a real case Pennsylvania vs. Bradley (2020). A state court ruled that the departments ban on recording in the lobby was a legitimate time, place and manner restriction. There was no disagreement that the ban was content-neutral.

As for the significant government interest served, the court found the ban helped:

Regarding alternative channels of communication, the court said the ban does not bar the use of parchment or quill in the Lobby. (Whether reference to parchment or quill was intended seriously, ironically, or pedantically, the opinion doesnt reveal.)

A factor that neither party argued, and the court did not address, was that Bradley was live streaming. Live streaming is broadcasting video content, recorded in real-time, to a target audience over the internet. Whether live streaming versus simply recording raises other government interests in police lobbies remains an open question.

While a Pennsylvania state court has ruled, citizen recording in public police lobbies remains an unsettled, litigious issue. Consider recent developments in New York. In July of this year, independent journalist SeanPaul Reyes sued the NYPD, which had arrested him for recording in the lobby of a precinct station while waiting to file a complaint. Reyes is also a self-proclaimed First Amendment auditor who has garnered 500,000 subscribers to his YouTube channel.

New York is in the Second Circuit, which hasnt yet joined those that have held citizens have a right to record police in public places. New York state, however, passed the Right to Monitor Act in 2019, providing protection for individuals to record police.

Additionally, after the NYPD banned filming within police precincts, including public areas, the City Council passed the Right to Record Act, which codified an affirmative right to record police officers "acting in their official capacity, with limited exceptions." Police precincts are not one of the exceptions.

In defense of maintaining its policy, an NYPD spokesperson said recording inside a police station "undermines the privacy of people who interact with the criminal justice system and compromises the integrity of ongoing investigations."

The lawyer of the national civil rights organization suing on Reyes behalf responded that its hard to understand why privacy issues would be important within public precinct lobbies, because people are already exposed to their neighbors and community members.

Patricia Rodney also filed a federal lawsuit against the NYPD in February 2022 claiming she was subjected to retaliatory violence for engaging in her First Amendment right to record police. Rodney had gone to a Brooklyn precinct to file a report for a missing blood sugar monitor. She declined to stop recording and was arrested. During the arrest, her arm was broken.

Commenting on the First Amendment right to record police, Stephen Solomon, editor of NYU's First Amendment Watch said, "It's kind of a delicate balance that depends on the situation. But a blanket restriction typically is not consistent with the First Amendment."

The issue of whether a right to record police in public spaces includes police lobbies has been heating up since the Bradley decision in 2020. Its not going away. Police need to think, consult with legal advisors, and have a clear policy for officers that will meet the courts time, place and manner requirements for any restrictions on recording.

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Recording in police department lobbies is unsettled law - Police News

EFF, along with the ACLU, urged the U.S. Court of Appeals for the Second Circuit to find a New York statute that compels platforms to moderate online speech that falls within the states particular definition of hateful conduct unconstitutional.

The statute itself requires covered social media platforms to develop a mechanism that allows users to report incidents of hateful conduct (as defined by the state), and to publish a policy detailing how the platform will address such incidents in direct responses provided to each individual complainant. Noncompliance with the statute is enforceable through Attorney General investigations, subpoenas, and daily fines of $1000 per violation. The statute is part of a broader scheme by New York officials, including the Governor and the Attorney General, to unlawfully coerce online platforms into censoring speech that the state deems hateful.

The bill was rushed through the New York legislature in the aftermath of last years tragic mass shooting at a Buffalo, NY supermarket. At the same time, the state launched an investigation into social media platforms civil or criminal liability for their role in promoting, facilitating, or providing a platform to plan or promote violence. In the months that followed, state officials alleged that it was their perceived lack of oversight, transparency, and accountability over social media platforms content moderation policies that had caused such dangerous and corrosive ideas to spread, and held up this hateful conduct law as the regulatory solution to online hate speech. And, when the investigation into such platform liability concluded, Attorney General Letitia James called for platforms to be held accountable and threatened to push for measures that would ensure they take reasonable steps to prevent unlawful violent criminal content from appearing on their platforms.

EFF and ACLU filed a friend-of-the-court brief in support of the plaintiffs: Eugene Volokh, a First Amendment scholar who runs the legal blog Volokh Conspiracy, the video sharing site Rumble, and the social media site Local. In the brief we urged the court to affirm the trial courts preliminary injunction of the law. As we have explained many times before, any government involvement in online intermediaries content moderation processesregardless of the form or degreeraises serious First Amendment and broader human rights concerns.

Despite the New York officials seemingly good intention here, there are several problems with this law.

First, the law broadly defines hateful conduct as the use of a social media network to vilify, humiliate, or incite violence against a group or a class of persons, a definition that could encompass a broad range of speech not typically considered hate speech.

Next, the bill unconstitutionally compels platforms speech by forcing them to replace their own editorial policies with the states. Social media platforms and other online intermediaries subject to this bill have a long-protected First Amendment right to curate the speech that others publish on their sitesregardless of whether they curate a lot or a little, and regardless of whether their editorial philosophy is readily discernible or consistently applied. Here, by requiring publishers to develop, publish, and enforce an editorial standard at allmuch less one that must adopt the states view of hateful conductthis statute unlawfully compels speech and chills platforms First Amendment-protected exercise of editorial freedom.

Finally, the thinly veiled threats from officials designed to coerce websites to adopt the states editorial position is unconstitutional coercion.

We agree that many internet users want the online platforms they use to moderate certain hateful speech; but those decisions must be made by the platforms themselves, not the government. Platforms editorial freedom is staunchly protected by the First Amendment; to allow government to manipulate social media curation for its own purposes threatens fundamental freedoms. Therefore, to protect our online spaces, we must strictly scrutinize all government attempts to co-opt platforms content moderation policieswhether by preventing moderation, as in Texas and Florida, or by compelling moderation, as New York has done here.

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EFF Urges Second Circuit to Affirm Injunction of New York's ... - EFF

Summary

Floyd Abrams: Speaking Freely debuted on September 22nd and is currently available to stream on the PBS app. With a runtime of 1 hour and 23 minutes, the biopic centers around the career of lawyer and legal expert, Floyd Abrams, and how his contributions expounded upon the First Amendment. Speaking Freely highlights Abrams' most crucial and controversial cases, as well as the effect his work has had on recent political elections.

Co-founder of SALTY Features, Yael Melamede, serves as the director and producer of Floyd Abrams: Speaking Freely. She has won both the Academy and Emmy Awards and worked on several critically acclaimed projects. Melamede is most well-known for titles such as (Dis)Honesty: The Truth About Lies, Why We Hate, and 1341 Frames of Love and War.

RELATED: The 25 Highest-Grossing Biopics Of All Time, According To Box Office Mojo

Yael Melamede chats exclusively with Screen Rant about working with Floyd Abrams on his biopic, as well as the impact Citizens United and the Pentagon Papers had on protecting the First Amendment.

Screen Rant: Were you asked to come on board and create this biopic or was this an original idea that you wanted to pursue?

Yael Melamede: It was an original idea. I started talking to Floyd when I was doing a six-part series for Alex Gibney and for Amblin Entertainment around Why We Hate. I had finished a film a year before that on why we lie, basically a film about dishonesty. And so they thought I'd be a very helpful person for them on why we hate and got interested in hate speech, and why we permit hate speech, and why we're so liberal about hate speech. I just loved the way Floyd speaks about the importance of free speech, but at the same time, seems to empathize so much with the cost and with the sacrifice that we make.

Hate speech is very painful. He's not someone who says, "Oh, just don't take it so seriously." He understands that there's a real cost. I loved his empathy for the other side, and as things have become so much more polarized, and there have been calls from the left and the right to limit speech for different reasons, I thought he was a really interesting person to talk to to see his journey and understand through his eyes why he thinks free speech is so important, regardless of whether you're on the left or the right.

Speaking Freely was three years in the making. Was that expected or was there a delay due to COVID?

Yael Melamede: A lot of our films take a long time. They're complicated films. Speaking Freely is the second film I've directed, and the first one I directed on dishonesty was a long time coming. They're kind of thematic films. This is about Floyd, but it's also about our journey with free speech and it just took a long time. We started during COVID, and so that was certainly a part of it, but fundraising also took a long time. We were very fortunate to get a really big NEH Grant for the film and that was super helpful. Everything together just created for a long process, which I think was really good for the film. Not very good for our business, but very good for the film.

How was working with Floyd Abrams? Was he excited about the opportunity to talk about his lifes work?

Yael Melamede: He was amazing. He was incredibly gracious and generous. I think Floyd is somebody who landed in exactly the thing they should have been doing in life. It just seems so perfect for him. The way his mind works, the way he enjoys the law, the impact he's hadit was kind of this very virtuous cycle for him. I said to him, "If you hadn't done law, what could you have done?" In all seriousness, he said, "I think I would have been a really great kindergarten teacher." I think he just loves to explain. He loves to hear. He's very curious about other people's points of view.

He's really curious about kids' points of view. He has amazing patience. He was very trusting and generous from the very beginning. And I think part of it was because I've known him for a while, and because we've had such good conversations around hate speech. I think he thought that if he was going to share his story, he was going to do with somebody who seemed very open and really curious about him and wasn't coming to this with a predetermined notion. He was extraordinary.

Citizens United is Floyds most controversial case. Where do you think the controversy stems from and what impact do you think it's had on political elections?

Yael Melamede: It's such a complicated case. I think, for me, what was interesting, in terms of Floyd, was how he views the case. He was such a darling of the left up until that case, and that case together with other cases that he has taken that have to do with protecting corporate speech are not popular. I really hope that through the film, people, even if they continue to disagree with Floyd, which I think is totally valid, would see that there's a side, or at least a legitimacy to the other side, even if you disagree. I thought that was really important for people to admire and even respect somebody who is advancing an argument and even the law in a way that they really disagree with.

In terms of Citizens United's impactI think it's so complicated. Most people talk about Citizens United in terms of the power that it gave to corporations, but Floyd, I think, is very right in saying that corporations in the way we think of corporations like Apple or Microsoft or Mobile are not the entities that are putting hundreds of millions of dollars into politics. The truth is that very wealthy individuals are putting money into politics, and the way they're doing that is through corporate entities. So there is a difference between how people talk about the case and its impact and the reality. I think the reality is that people with a great deal of money can influence elections and that that is unfortunate.

Floyd's arguments to that reality would say, "Fix it, not by taking away speech, but by doing other things. Be more transparent about who's actually giving the money, because there are lots of ways today that people can hide their identity, and still give money to politics and to influencing things, and we don't know who they are." And secondly, he would say, "Tax people more. Get rid of the money. Don't get rid of the speech, get rid of the money." I think that's a great idea and solution. It's totally unfeasible in the current political system we are in, so those are hard solutions. I think transparency is a more possible solution.

It's interesting that a lot of the organizations who you would think would be in support of transparency actually aren't. And in some ways, I don't know if that's why they don't support it, but it would mean that their donors would be more known to people, and they don't want their donors to feel in any way anxious about giving money. I think part of what we hoped to do through the film was to show the complexity of a case like Citizens United to make people think twice about having just a one-sided knee-jerk reaction to Citizens United itself, but also to other cases that might seem so easy, so wrong, so terrible, and that might be more complex.

The film also touches on Judith Miller and the price she was willing to pay to keep her sources confidential. Why did you feel this case was crucial to include?

Yael Melamede: Floyd's reason for supporting Citizens United, and even corporations, comes from his long-standing belief that the press should be free. It's all as a result of looking out for the press. Adam Liptak says in the film that he's been the greatest press lawyer so far in American history. He, as part of a team, was very successful with the Pentagon Papers, but he's also spent much of his career trying to argue for the right of reporters to not reveal confidential sources, which has been a big legal issue. It's something very scary for a lot of journalists, especially journalists dealing with national security and with secrets. We chose in the film to talk about two journalists.

One, Nina Totenberg, around the Clarence Thomas confirmation, who had secret information that was published, and the second being Judith Miller, who, in fact, didn't publish anything secret, but the Special Counsel knew that she had information, so he subpoenaed her for it, which is really extraordinary. She didn't even write anything about it, but she was subpoenaed. She wouldn't reveal her sources, and at the time, was very disliked by the press, because she had been very pro the Iraq War. She had made a few mistakes on some of the articles that she had written in The New York Times, which most people believed was because she was just a mouthpiece for the Bush administration, which I don't think is true.

I think she really believed that those things were the truth. But on the one hand, we had Nina Totenberg who was beloved by the press and seen as being under siege and very defended by the liberal press. And then Judith Miller, who had come out of the Iraq War somewhat scathed as a result of her reporting, and now was being not defended by her colleagues, and instead, left out there unprotected, even though what she was fighting for was to the benefit of all journalists.

When you were doing testimonials, was there anyone whose experience surprised you or provided an unexpected angle?

Yael Melamede: There was a colleague of Floyd's who's not in the movie, but she had said at some point that what Floyd was doing was really cutting-edge law. You look at Floyd, who worked at this very respected New York law firm, and it's hard to think, "Oh, well, they're doing cutting-edge law." That made me think really differently. That sense of what they were doing at the time was revolutionary and so different. I really wanted people to understand that the First Amendment that we think of today is something pretty new, and it's because of Floyd Abrams and his generation that we are so protected in terms of free speech.

So that was really interesting to have that context of cutting-edge and revolutionary. That was a great frame for what we were doing. I loved Emerson Sykes from the ACLU in the way he talked about Citizens United. He's somebody who agrees with Floyd Abrams in so many ways about the importance of free speech but gets to it from a different perspective, which I loved. He comes out of a total belief in progressive politics and in the need to protect, largely, people who are protesting rather than entities like the press. So they come to it from different places but get to the same place.

I loved that he was quite humble at the end about Citizens United as well, saying that when he came to the ACLU, his predecessor said to him, "If you can figure it out, you'll do better than all of us." And he says in the film he's really disturbed by Citizens United, but he also doesn't have a great solution for it, and I kind of love that. That somebody who's so clearly aligned with progressive politics hasn't quite figured out how, as he says, to square that circle or square that hole. So I really liked that.

Floyd has worked on countless cases throughout his career. Were there any that you wish you couldve included?

Yael Melamede: Oh, totally. There are two that stand out. One is not so much a case, but Floyd did a lot of work outside of the US related to human rights, and I wish we had been able to talk more about the relationship between free speech and human rights and in the international landscape. It was just too hard to do when we were so anchored in actual cases in the Supreme Court and what was happening in the US. That was something I wished we could do. He had this crazy story about going to the jungle in Thailand to interview ex-Cambodian rulers about what had happened in Cambodia.

It was extraordinary being part of Human Rights Commission's and helping South Africa with their new constitution. Those kinds of things we would have loved to put in, but again, there just wasn't time. Another case that he was part of was an entertainer in Las Vegas who sued, I believe it was NBC, for libel. It was a case that Floyd was on for 10 years and at first lost and then won in the end. I just love that case. It was very dramatic, and it had echoes of where we are today with celebrities. One of the biggest celebrities at the time, and one of the biggest celebrities in the country, and certainly one of the biggest celebrities in Las Vegas, had such an influence on the way the first case was tried and basically was not guilty because he was so beloved in Las Vegas where the jury was from. Then, on appeal, he lost.

I love the way that Floyd talks about it. He says, "Even though they lost, most people in Las Vegas think that Wayne Newton still won." You may win sometimes, and yet the reality is different. There were all kinds of ways in which the cases become bigger than the law itself or the judgment, and he would say that about the Pentagon Papers. The Pentagon Papers was a big decision, but its influence has been even bigger than the Supreme Court decision. And Citizens United, I think, similarly, what the court decided was a certain decision, but it's been taken into a much larger context. And so with Wayne Newton, the reality is actually different from what the case actually was about.

I also wanted to ask about your upcoming projects. It looks like you have something in post-production.

Yael Melamede: There are two more films coming out in the next few months. One is a film that will be released in theaters called Pay or Die, which I did not direct, I produced, about the insulin crisis in America, which is a really harrowing tale about our healthcare system. That's a Paramount/MTV Films production with amazing directors. I'm very proud of that film. And then I'm doing another film that I am directing about my mother who is a very well-known architect in Israel. Weirdly, she's almost the same age as Floyd Abrams, and her claim to fame is the Supreme Court of Israel. So there's a crazy kind of legal connection between the films and that one will hopefully hit the festival circuit in 2024.

Known as the first First Amendment lawyer, see how his landmark casesfrom the Pentagon Papers to Citizens United to Clearview AIhelped define free speech as it is known today. Join Dan Abrams, Ari Melber, Nina Totenberg and more as they unpack the ways in which Abrams career has shaped major changes in law, public discourse and civic action since the 1960s.

Floyd Abrams: Speaking Freely is currently available to watch on pbs.org and the PBS app.

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Floyd Abrams: Speaking Freely Director On How Floyd's Work ... - Screen Rant

On Tuesday, Oct. 3, the Justice Department's Office of Community Oriented Policing Services (COPS) Office and the Reporters Committee for Freedom of the Press convened a meeting of law enforcement executives and members of the press, facilitated by the Police Executive Research Forum (PERF), to discuss recommendations for law enforcement interactions with journalists during protests and mass demonstrations. The discussion was prompted by a request from the Reporters Committee, which expressed the need for concrete, specific suggestions that would account for both the important role of the working press in a functioning democracy, as well as the challenge of policing large protests and demonstrations.

Associate Attorney General Vanita Gupta, who asked the COPS Office to convene the meeting, addressed the participants saying, Each of you in this room has a difficult job. Journalists are entrusted with uncovering truth, holding those in power accountable, and providing the public with the information they need to make informed decisions. Law enforcement officers are constantly balancing their mandate to preserve public safety and fight crime, with the imperative to work constantly and consistently to build trust and maintain positive relationships with the communities they serve. Associate Attorney General Gupta went on to say that [t]he recommendations that come from todays discussion, and the many conversations leading up to this event, will without a doubt accrue to everyones benefit.

Last year, the department issued recommendations for law enforcement related to First Amendment issues in the context of mass demonstrations, but yesterdays discussion focused specifically on best practices for law enforcement interactions with journalists.

The group discussed issues including safeguarding First Amendment rights, the identification of members of the news media during protest activity, the utility in a persistent point of contact for open communication between press and police during protest activity, the importance of developing relationships between the press and police in advance of demonstrations, the need for a playbook before a planned event, the challenges brought about by social media, and more. The result of the discussion will be a series of recommendations that will be widely disseminated by the Justice Department, law enforcement organizations, and the media.

In addition to the Associate Attorney General, attendees included COPS Office Director Hugh Clements, other Justice Department officials and COPS Office staff; representatives of the Reporters Committee; journalists, editors and senior managers from major broadcast and print outlets; and law enforcement executives from across the country.

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Readout of the Justice Department's Meeting on Law Enforcement ... - Department of Justice

TOPEKA A conservative campaign-finance reform organization involved in a key federal court decision leading to creation of super PACs urged the Kansas Legislature to overhaul the states unconstitutional definition of political action committee and to end regulation of political advocacy groups raising or spending less than $5,000 annually.

Bradley Smith, representing the Institute for Free Speech in Washington, D.C., told the House and Senate elections committee that Kansas should allow unlimited donations to political parties and index to inflation all contribution limits in state law. He recommended Kansas remove disclosure requirements from modest donors and to generally error on the side of free-speech rights when shaping campaign laws or regulations.

The government should not and cannot constrain the right of the American people to discuss candidates and policies lightly, Smith said. Whether through deliberate choice or bureaucratic inertia, many provisions of federal and state campaign finance laws have drifted away from this basic purpose. While better than many states, Kansas is no exception.

Smith said a Kansas law requiring disclosure of donors giving $50 or more made people reluctant to take part in political campaigns and fed a cancel culture mentality resulting in harrassment of contributors.

The Institute for Free Speechs reform ideas was met with skepticism by some members of a Republican-led interim legislative committee that heard testimony Thursday and Friday from people enforcing, litigating and evaluating the states election standards. The institute declined to reveal to legislators a list of top donors, but one confirmed contributor was the Scaife Foundation. In 2020, the foundation gave more than $1 million to the Heritage Foundation, Hoover Institution and American Enterprise Institute.

Sen. Ethan Corson, a Johnson County Democrat, said he struggled with the institutes credibility because it was unclear what deep-pocket political forces were funding the organizations extreme right-wing ideas about elections. He offered a personal summary of Smiths recommendations.

Basically, donor limits are bad. Regulating PACs is bad. Regulating contributions to parties is bad. Disclosure is bad, Corson said. What youre presenting, in my book, is kind of the fringe of the fringe of the fringe of First Amendment principles. Its hard to give any credibility to anything youve said without knowing who is behind you and what is cutting the checks.

Smith, chairman of the Institute for Free Speech, said the institute didnt disclose its contributors because it was none of your business what amounts were given by organizations or individuals.

This is the difference between living in the right-wing, think-tank world and living in the real world, said Corson, who made reference to U.S. Supreme Court Justice Louis Brandeis line in a Harpers Weekly article that sunlight is said to be the best of disinfectants.

Smiths reply: Too much sunlight leads to sunburn.

Mark Skoglund, executive director of the state commission responsible for regulating campaign finance law, said the states campaign finance statutes were constitutional.

He said the bipartisan Kansas Governmental Ethics Commission was charged with focusing on disclosure and contribution limits, which were crucial aspects of a transparent electoral system.

Conservative and liberal Supreme Court justices repeatedly and overwhelmingly uphold these two pillars of campaign finance regulation as essential and constitutional, he said. Over and over again, the Supreme Court has held that even when First Amendment concerns are generated by a campaign finance law, the substantial benefits of disclosure outweigh any minimal impact it has.

Skoglund, who survied a 2022 effort by conservative lobbyists and legislators to force him out of the job, said claims campaign finance disclosure chilled political speech were misplaced. He said reform should be based on actual data rather than vague assertions reporting of donations deterred big and small donors.

Studies bear out that chilling is negligible or nonexistent, and more recent studies are starting to find the opposite view entirely that disclosure actually encourages participation, he said.

Skoglund asked the committee to increase staffing at the ethics commission, which operates with 8.5 staff with a budget of $800,000. He would welcome development of a new definition of PACs as long as it didnt undermine registrations in a way that released a flood of dark money into the state.

Joshua Ney, a Kansas attorney who has represented clients before the state ethics commission on campaign finance issues, said the 2024 Legislature should concentrate on identifying key principles of election law anchored in limited regulation of campaign speech. That analysis ought to be followed by formulation of clear standards of conduct and procedure grounded in the concept of ordered liberty, he said.

He said court fights were the likely consequence when the Legislature didnt write clear statutes. No amount of bureaucratic precedent through enforcement can fill gaps in law, he said.

I encourage this committee to engage in once-in-a-generation update to the manner in which Kansas regulates campaign activity and political speech, Ney said.

Ney said legislators should adopt a public policy statement providing that any ambiguity in campaign finance law would be interpreted in the least speech-restrictive manner. The state should clarify what PAC activities a legislator could take part in, he said. Determinations of what constituted a PAC should be refined so individuals or groups didnt get unintentionally swallowed by the campaign-finance bureaucracy, he said.

He said Kansas should adopt reasonable qualificiations for appointment of commissioners to the state ethics commission. The objective should be to prevent conflicts of interest without blocking service by people with experience in campaigns, public office or the political process.

The more clarity the Legislature provides, the less conflict there will be in administrative and judicial tribunals, Ney said.

Mark Johnson, an attorney and lecturer at the University of Kansas law school, said Kansas law related to individual contribution limits and disclosure requirements were constitutional because those provisions didnt violate First Amendment rights of an actual or potential contributor. He said, to his knowledge, no challenge to these state laws had surfaced in the past 40 years.

It is quite likely that no such challenge has been brought because those who favor elimination of the provisions, and who rely on First Amendment constitutional arguments in advocating their elimination, know they would lose, he said.

Heather Ferguson, director of state operations for the left-leaning nonpartisan Common Cause, said Kansas statutes on campaign finance should be considered woefully inadequate and weak in terms of compelling transparency.

The gold standard of a healthy democracy is to have a government that is responsive and reflective of the people that it serves and that it ensures that every eligible voter has an equal voice in our political process, Ferguson said. To meet this standard, voters need to know who is funding the campaigns of their elected officials and informing the public regarding ballot questions.

She said the heavy influence of corporate special interests and the money flowing into the election system was drowning out the voices of everyday Americans.

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Conservative think tank argues Kansas law defining PACs ... - Kansas Reflector

A recent spate of successful legal challenges has provided some relief from the ever-swelling wave of state privacy laws. The legal bases of these challenges vary, but taken together, they highlight that state privacy laws while growing in popularity across state legislatures may be on shaky legal ground. As explained in more detail below, the successful challenges to date include a challenge to the enforcement of the regulations promulgated under the California Privacy Rights Act (CPRA), as well as First Amendment challenges to childrens and teens privacy protections around content moderation and age verification requirements. Summaries of three of the recent successful cases follow.

California Chamber of Commerce v. California Privacy Protection Agency. In 2020, California voters approved the CPRA a ballot initiative that supplemented Californias omnibus privacy law, the California Consumer Privacy Act (CCPA). Among other things, the CPRA gave rulemaking authority to a new entity called the California Privacy Protection Agency (Agency). The Agency used that authority to promulgate new privacy rules in March 2023. The agency planned to begin enforcing the new rules which supplemented and added to existing California privacy rules in July 2023.

But on June 30, 2023, a California state superior court ruled that any CPRA regulation may not be enforced until one year after the regulation is promulgated significantly delaying the rollout of the new privacy rules. Focusing on the structure of the law, the court found that California voters intended to establish a 12-month gap between promulgation of CPRA regulations and enforcement. A more detailed analysis of the California state superior court ruling is available here. The case is currently pending on appeal and could heat up in the final months of 2023.

While this decision gave companies subject to the CPRA additional time to comply with the new regulations, it has not stopped the California Attorney General from sending several inquiry letters to large California employers requesting information about their compliance with the statute and existing CCPA regulations.

NetChoice v. Bonta.[1] In 2022, California enacted the California Age-Appropriate Design Code Act (the CA AADC), which imposes new requirements for businesses that provide an online service, product, or feature that is likely to be accessed by children. The CA AADC goes well beyond the requirements of the federal Children's Online Privacy Protection Act (COPPA) in both its scope and its substantive reach.

On September 18, 2023, a federal district judge in the Northern District of California preliminarily enjoined enforcement of the CA AADC after finding that much of the law likely violates the First Amendment. The court noted that almost every aspect of the CA AADC involves some type of speech regulation, such as its restrictions on collecting and using data, its requirement to prepare Data Protection Impact Assessments (DPIA), and its mandate for companies to create and implement content moderation policies. The court concluded that the challenged provisions of the statute violated the First Amendment because the State did not show relevant harm to children, did not advance the States interest in protecting children, and/or suppressed more speech than necessary to achieve CA AADCs goal of protecting children. Because these provisions were not severable, the court found that the entire law had to be enjoined.

NetChoice v. Griffin. In April 2023, the Arkansas governor signed the Social Media Safety Act (the Act) into law. The Act requires social media companies to verify the age of all account holders who reside in Arkansas by submitting age-verifying documentation through a third-party vendor before accessing a social media platform. Under the law, minors are denied an account and prohibited from accessing social media platforms without parental consent if they cannot provide a digital copy of their drivers license or any other commercially reasonable age verification method.

A few weeks before the Bonta decision in California, a federal district judge in the Western District of Arkansas granted a motion for preliminary injunction, finding that the Social Media Safety Act likely violates the First Amendment. The court found that the Act burdens both adults and minors access to constitutionally protected speech. Though the court declined to make a final decision on whether the law is content-neutral, the court applied intermediate scrutiny to the Act and found that the law is not narrowly tailored to achieve an important government interest. Specifically, the court agreed with NetChoice that the law would significantly deter many users from entering a website by requiring adults to provide personally identifiable information to access a website. The court also found that the Act bars minors from accessing large amounts of constitutionally protected speech online and emphasized that the governmental interest in protecting children does not allow a limitless suppression of constitutionally protected speech, even when the law addresses a serious social problem. The court concluded that the Act impedes access to content writ large.

Looking Ahead

States in 2023 have continued to aggressively push forward on new privacy laws. However, this recent spate of successful challenges to state privacy laws may provide a road map for future challenges to similar laws particularly with respect to state laws regulating minors access to social media.

Wileys deep and experienced bench of attorneys represent clients in privacy-related litigation and government investigations, and Wiley's attorneys regularly work with clients to comply with state privacy laws. Please contact any of the authors on this alert to discuss your privacy needs.

[1] Note: Wiley represented an amicus in this case.

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Cracks in the State Privacy Law Foundation: State Privacy Law ... - Wiley Rein