Category Archives: First Amendment

(Image: Lauren Walker / Truthout; Adapted: Locololastock)

Media advocates everywhere were alarmed, if not surprised, when Donald Trump recently appointed former Verizon lawyer Ajit Pai to be the next chairman of the Federal Communications Commission (FCC). Central questions include what Pai's appointment will mean for freedom of the press and the future of the internet. Sources who have met Pai, who is active on social media, describe him as smart and affable, but with a militant, ideological opposition to regulating Big Media and Telecom. An FCC controlled by Trump and Pai, the latter of whom has "been on the wrong side of just about every major issue that has come before the FCC," according to the media reform group Free Press, poses a serious threat to democracy.

Pai, an FCC commissioner since 2012, has constantly sided with the powerful media and telecom lobbies. He pledged to take a "weed whacker" to net neutrality, opposed lowering the cost of phone calls for families of people in prison, and enabled devastating media concentration with his opposition to ownership restrictions. His promotion to chairman was met with glee from free-market ideologues and executives at big media and telecom companies, such as AT&T, who promised to help Pai "support the president's agenda."

Trump has already shown an extreme level of hostility toward the press. Now, he will have the Pai-led FCC to function as his own personal toolbox to undermine the free press. As Americans unite in resistance to Trump, it is vital that they take notice of what is going on at the FCC.

"The FCC is designed to protect the media in the interest of the public. But as a commissioner for all these years, I have seen it become a willing accomplice in diminishing our media," said former FCC chairman Michael Copps, in an interview with Truthout. "We have a sad state of affairs in the media ... Pai opposes any kind of government oversight. So I am deeply worried."

The Fragility of the First Amendment

The FCC was created in 1934 to make media and communications "available so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex." At the time, it mostly applied to radio, but it has expanded to include virtually all our methods of mass communication: telephone, television and the internet. When functioning as it should, said Free Press strategic director Tim Karr in an interview with Truthout, its "existence is vital in protecting basic freedoms of speech that are important to Americans."

Indeed, the public has long revered the First Amendment, by far the most well-known and appreciated amendment in the Constitution. But polls also show a great deal of confusion over what the amendment does. This combination of reverence and ignorance has led to what Karr calls a "nave perception that the First Amendment will always be there to protect us."

But the reality is that only with militant advocacy have these protections been preserved. The fragility of the amendment has been evident since before the Constitution was ratified. It was opposed by most of the framers -- federalists who allowed for the inclusion of the Bill of Rights only as a concession to placate the anti-federalists who were skeptical of the 55 wealthy elites who produced the Constitution in secret and believed "the evils we experience flow from the excess of democracy."

Since then, the values in the First Amendment have been undermined many times. Examples abound: John Adams jailed dissenters and journalists with the Alien and Sedition Acts. Eugene Debs was jailed for years by the (still existent) Espionage Act of 1917 for giving an anti-war speech. More recently, the Obama administration waged a war against whistleblowers and spied on the Associated Press.

Our First Amendment rights are in even greater peril given Trump's open hostility toward the media. Six reporters were charged with felonies for committing the apparently criminal act of journalism at Trump's inauguration (see Truthout's statement of solidarity). And the anti-Semitic, Islamophobic white nationalist Steve Bannon called the media an "opposition party" that should "keep their mouths shut."

If most Americans previously held the belief that the First Amendment will always protect their rights to free speech and a free media, the actions of Donald Trump -- just weeks into his reign -- should awaken them from the slumber. Media activism, and specifically the function of the FCC, has arguably never been more important.

"We need to fight for a free press and free speech, and it has to be the grassroots," said Copps, who serves as an advisor at Common Cause, a national organization that fights for democratic reforms. "People have to fight for it.... The media won't cover [these issues]."

A New Era of Media Consolidation

It is indeed rare for the media to cover how the industry's increasing concentration hurts democracy. Such journalism would put the profits of Big Media in jeopardy. The dearth of coverage has limited study on the issue, but the available literature on the subject is unambiguous. A study published by the Journal of Politics on media coverage of concentration resulting from the Telecommunications Act of 1996 -- the most damning loosening of ownership restrictions in the FCC's history -- found "substantial differences in how newspapers reported on these proposed regulatory changes depending on the financial interests of their corporate owners."

But despite the media's tendency to ignore or dismiss such concerns, the issue of ownership is vital in any discussion of a free press. "Critics of concentration rightly view the media as a huge, non-democratically organized force that has major power politics, public discourse and culture," observed media scholar C. Edwin Baker, in his book, Media Concentration and Democracy: Why Ownership Matters. Baker lamented an FCC whose actions too often "lie in the power and economic self-interest of major media companies."

Pai, however, doesn't see media concentration as a threat to the First Amendment. In fact, he has oddly argued that the threat to the First Amendment lies in limits on such concentration. Bloomberg reports that Pai believes that existing rules are "obsolete," and the industry is already anticipating that he will relax current ownership restrictions.

Of immediate concern to reformers and the industry is the proposed $85 billion merger of Time Warner and AT&T, which Free Press argues "would create a television and Internet colossus like no other." The danger of this merger managed to unite Senators Mike Lee (R-Utah) and Amy Klobuchar (D-Minnesota), who issued a joint statement arguing the transaction would "raise significant antitrust issues." The deal is seen as part of a new era of consolidation involving megamergers between media companies and satellite and cable providers. Comcast's acquisition of NBC Universal, denounced by media reform activists, is an early example of this.

Trump has publicly vowedto stop the merger, but organizers are not buying it. "Trump hates CNN. I think Trump was trying to fire a shot at Time Warner [which owns CNN], but the reality is that his FCC transition team was always pro-merger, and the same is true of Pai," Karr said.

This new kind of consolidation is not likely to end with Time Warner/AT&T. On January 27, the Wall Street Journal reported that Verizon is "exploring a merger" with the cable/telecom giant Charter Communications, a prospect which tech reporter Chris Mills said "is terrifying for anyone with an internet connection."

With Pai in charge, the prospects for the approval of mergers are significantly improved. His appointment has some tech companies "salivating," according to the financial news service, The Street. "Althoughmany of President Donald Trump's cabinet nominations and government appointees have been mired in controversy, one of the more influential for a large swath of the U.S. economy and markets is barely registering with the media," the report said.

Media Lobby: Full Speed Ahead

While some of this merger talk is speculative, one thing is certain. "With such high stakes, the media and telecom lobbies are powerful and working full bore in Washington," Copps said.

In the House of Representatives, media issues are handled by the Committee on Energy and Commerce, and more specifically, the Subcommittee on Communications in Technology (whose members have been named for both parties).The chair of the subcommittee is Rep. Marsha Blackburn (R-Tennessee) who, as Karr notes, is "awash in money" from the major lobbies.

But Blackburn is hardly alone. Cross-referencing members of the committee with donations from these industries is a dizzying exercise. According to the most recent data from the Center for Responsive Politics, Time Warner has donated more money to the Commerce Committee than any other committee, more than double that of the next largest recipient, the Judiciary Committee. The same is true of AT&T, the other half of the pending merger that will more likely face hearings, and the National Association of Broadcasters(NAB) and Comcast donate money along similar lines.

Among the top industries donating to Blackburn in the recent cycle were telecom services, TV utilities and telephone utilities. The companies to donate the most to Blackburn were Verizon, Comcast, AT&T, Charter Communications and the National Cable and Telecommunications Association (NCTA). Vice Chairman Leonard Lance's top industries include telecom services and telecom utilities, with specific donors including AT&T and NCTA.

Telecom services is also the fourth-largest industry to donate to Michael Doyle, the ranking Democrat on the committee. His largest donors include Comcast and the Communications Workers of America, one of the rare unions to oppose net neutrality protections. The National Association of Broadcasters has donated to 21 members of the subcommittee, 15 of them Republicans.

The End of Net Neutrality?

There can be no doubt about the power and aggressiveness of these industries. The Center for Responsive Politics' records show 560 clients for the telecom industry who spent $87 million in 2016. The spending is reflective of how high the stakes are for media policy debates in the coming years. Decisions by Pai and Trump could lead to the end of net neutrality, which protects consumers from corporations that seek to commodify the internet and dictate which sites are most accessible. The majority of people, including conservatives, are supportive of net neutrality in polls.

Pai and other conservatives will occasionally claim to support the principles of net neutrality. Organizers, however, warn that these are misleading claims. Despite offering lip service about an open internet, Pai opposes any regulation with teeth to enforce these protections. Tom Wheeler, Obama's final FCC chairman passed significant reforms on this issue. But Pai opposed them, arguing in his dissent that he was "sad to witness" this "unlawful power grab." This is why militant conservatives like Laura Ingraham and Michelle Malkin cannot resist making giddy tweets in praise of Pai and his metaphorical gardening equipment:

Malkin's vigorous support of America's Japanese internment camps bears unsettling similarities to Trump's authoritarian agenda. It appears she also shares his administration's contempt for the FCC as a regulatory agency. She has described the FCC as "internet traffic cops," in a blog post titled "Internet access is not a civil right."

Copps, on the other hand, sees the issue of net neutrality as a defining one for advocates of media reform. "People see climate denialists at the EPA and are rightly concerned," Copps said. "Well, Trump just appointed a net-neutrality denialist at the head of the agency. This is how people should look at this issue."

Opposing Prison Phone Justice

Another troubling part of Pai's past is his opposition to prison phone justice. For years, prison phone services have been privatized, and companies have charged exorbitant amounts of money for prisoners to make calls -- a burden placed upon their families, who are overwhelmingly low-income. In 2015, as a Truthout op-ed documented, this $1.2 billion industry, rife with corruption and bribery scandals, was finally required by Wheeler's FCC to lower these costs.

Pai voted against the modest, humane reforms.

"The Commission's decision today is well-intentioned, and I commend the efforts of those working to reduce the rates for inmate calling services," Pai wrote in his dissent. "Unfortunately, I cannot support these particular regulations because I believe that they are unlawful."

In November 2016 a federal appeals court blocked the FCC's efforts to reform the process. The Wheeler-led FCC was still fighting the issue in the courts, but the new Republican majority wasted little time in dropping the defense of rate caps altogether -- a distressing sign of things to come with Pai in charge.

To this day, prisoners and their families are suffering from this injustice. "It costs $3.15 for a 15-minute phone call inside here," says John Broman, a federal prisoner who writes about his life in prison, in an interview with Truthout. "For the people that rely on a $5.25 paycheck once a month, it comes down to soap or a call to their family, which really isn't right."

Media Activism and Resistance to Trump

Media activists emphasize that all of the Trump administration's brutal policies will be exacerbated by its egregious media policy agenda.

"Whatever you think is the most important issue," Copps said, "media policy should be next on your list. There will be no change on the issue you care about the most without a strong media."

For instance, an FCC that is hostile to a free press doesn't cause climate change, but if private capital controls virtually all media, there will be no serious national discussion on the subject. Media touches everything. "In any large society, mass media is probably the most crucial instructional structure in the public sphere," Baker writes.

The good news is that millions have protested Trump's agenda. But efforts to fight for justice will be limited if Trump can trample the press and the open internet. Advocates are hopeful that the widespread resistance to Trump will include the struggle for a free press.

"Millions of Americans from across the political spectrum have looked to the FCC to protect their rights to connect and communicate," said Free Press CEO Craig Aaron on the day Pai was appointed. "Those millions will rise up again to oppose his reactionary agenda."

See more here:
The First Amendment May Not Protect Us: Trump's FCC Intensifies Attack on Press - Truth-Out

One of several service providers to sue the government over its gag orders, Microsoft received some good news from a federal judge in its lawsuit against the DOJ. Microsoft is challenging gag orders attached to demands for data and communications, which the DOJ orders is statutorily-supported by the Electronic Communications Privacy Act (ECPA) and, if not, by supposed national security concerns.

As Microsoft pointed out in its lawsuit, the government rarely justifies its secrecy demands and frequently issues gag orders with no endpoint. Microsoft received nearly 2,800 of these gag-ordered requests over an 18-month period, with over two-thirds of them demanding silence indefinitely.

The good news is a federal judge has (partially) waved away the DOJ's motion to dismiss and will allow Microsoft to proceed with its lawsuit, as Politico's Josh Gerstein reports.

U.S, District Court Judge James Robart issued a 47-page opinion [PDF] Thursday allowing Microsoft to proceed with a lawsuit claiming a First Amendment violation when the government restricts internet providers from notifying subscribers about requests for their data.

"The orders at issue here are more analogous to permanent injunctions preventing speech from taking place before it occurs," Robart wrote. "The court concludes that Microsoft has alleged sufficient facts that when taken as true state a claim that certain provisions of Section 2705(b) fail strict scrutiny review and violate the First Amendment."

Section 2705(b) refers to the Stored Communications Act, which allows the government demand notice be withheld under certain circumstances, unless otherwise forbidden to by another section of the same law (Section 2703). Microsoft is looking to have both sections declared unconstitutional, especially given the severe upheaval the communications landscape has undergone in the thirty years since the law was passed.

Microsoft contends that Section 2705(b) is unconstitutional facially and as applied because it violates the First Amendment right of a business to talk to [the businesss] customers and to discuss how the government conducts its investigations. Specifically, Microsoft contends that Section 2705(b) is overbroad, imposes impermissible prior restraints on speech, imposes impermissible content-based restrictions on speech, and improperly inhibits the publics right to access search warrants. Microsoft also alleges that Sections 2705(b) and 2703 are unconstitutional facially and as applied because they violate the Fourth Amendment right of people and businesses . . . to know if the government searches or seizes their property.

Microsoft contends that the statutes are facially invalid because they allow the government to (1) forgo notifying individuals of searches and seizures, and (2) obtain secrecy orders that prohibit providers from telling customers when the government has accessed their private information without constitutionally sufficient proof and without sufficient tailoring.

The DOJ argued Microsoft didn't have standing to bring this complaint, as its Fourth Amendment rights aren't implicated. Only its customers' are. But the court points out that, if nothing else, the company does have standing to pursue its claims of First Amendment violations.

The court finds that Microsoft has sufficiently alleged an injury-in-fact and a likelihood of future injury. Microsoft alleges an invasion of its legally protected interest in speaking about government investigations due to indefinite nondisclosure orders issued pursuant to Section 2705(b)... The court concludes that Section 2705(b) orders that indefinitely prevent Microsoft from speaking about government investigations implicate Microsofts First Amendment rights.

The court goes on to point out that frequent use of indefinite gag orders certainly appears to be unconstitutional, given that they act as a "forever" application of prior restraint.

The court also concludes that Microsoft's assertions of further civil injuries aren't speculative, as the DOJ claimed. Judge Robart points to the government's own actions as evidence of continued harm to Microsoft's civil liberties.

Microsoft bolsters its prediction by alleging that over a 20-month period preceding this lawsuit, the Government sought and obtained 3,250 ordersat least 4504 of which accompanied search warrantsthat contained indefinite nondisclosure provisions. In addition, Microsoft alleges that in this District alone, it has received at least 63 such orders since September 2014. Because these orders have been frequent and issued recently, the Government will likely continue to seek and obtain them. Accordingly, Microsofts fears of similar injuries in the future are not merely speculative.

Unfortunately, the court won't grant Microsoft the standing to represent its users for Fourth Amendment purposes. Judge Robart points to a whole bunch of precedential decisions declaring otherwise, but at least takes a bit of time to discuss how denying Microsoft this opportunity likely means denying several of its users any sort of redress.

The court acknowledges the difficult situation this doctrine creates for customers subject to government searches and seizures under Sections 2703 and 2705(b). As Microsoft alleges, the indefinite nondisclosure orders allowed under Section 2705(b) mean that some customers may never know that the government has obtained information in which those customers have a reasonable expectation of privacy... For this reason, some of Microsofts customers will be practically unable to vindicate their own Fourth Amendment rights.

Expect the government to make heavy use of its "national security" mantra as it defends itself in this case. Those magic words have allowed all sorts of civil liberties violations in the past and still tend to move courts to the government's side when deployed in DOJ motions. If the court does side with Microsoft when this is all said and done, it's likely the remedy won't be a restriction on gag orders, but more likely something analogous to the rules that now govern National Security Letters -- periodic review of gag orders by the government and better avenues for raising challenges for companies affected. Then again, the court could simply punt it back to legislators and push them to fix the 30-year-old law whose dubious constitutionality is the source of numerous lawsuits against the federal government.

See the rest here:
Court Says Microsoft Can Sue Government Over First Amendment-Violating Gag Orders - Techdirt

Siding with Google, a federal judge has dismissed a lawsuit brought by search engine optimization company e-ventures Worldwide, which claimed its sites were wrongly removed from search results.

U.S. District Court Judge Paul Magnuson in the Middle District of Florida said in a ruling issued this week that Google has a free speech right to decide which search results to display.

"Googles actions in formulating rankings for its search engine and in determining whether certain websites are contrary to Googles guidelines and thereby subject to removal are the same as decisions by a newspaper editor regarding which content to publish, which article belongs on the front page, and which article is unworthy of publication," U.S. District Court Judge Paul Magnuson in the Middle District of Florida said in a ruling issued this week. "The First Amendment protects these decisions, whether they are fair or unfair, or motivated by profit or altruism."

The decision grew out of a lawsuit filed by e-ventures in late 2014. The company alleged in its original complaint that Google removed 231 sites associated with e-ventures' Webmaster tools. Google allegedly notified e-ventures that the sites would be de-listed because they were "pure spam."

"Identifying what Google believes is 'pure spam," and remedying the problem to remove the "pure spam" designation, without any specificity from Google, is a potentially insurmountable task," e-ventures wrote in the complaint, which accused Google of engaging in unfair and deceptive practices and interfering with business relations and defamation. e-ventures later dropped the defamation claim and added an allegation that Google violated a law regarding unfair competition.

Magnuson noted in his ruling that e-ventures' consultant told the company its sites were spam.

"In its attempts to secure re-listing of its sites on Google, e-ventures admitted that its sites were littered with doorway domains and scraped content -- e-ventures told Google that its single topseos.com site contained 18,000 scraped articles, 46,000 scraped press releases, and more than 28,000 scraped job listings,"Magnuson added.

He said that Google restored 50 e-ventures sites in November 2014, and that e-Ventures "abandoned" 100 others by consolidating them into a single domain.

Magnuson's ruling comes nine months after he rejected Google's request to dismiss the case at a preliminary stage.

Santa Clara University law professor Eric Goldman, who called attention to Magnuson's decision, suggests e-ventures' lawsuit should have been thrown out earlier.

"Of course Google can de-index sites it thinks are spam," Goldman writes on his blog. "Its hard to believe were still litigating that issue in 2017."

He notes that Google prevailed in prior lawsuits accusing it of wrongly demoting companies in the search results. In 2003, a federal judge dismissed a lawsuit about that issue brought by SearchKing; in 2006, a different judge threw out a similar lawsuit by KinderStart.

See the article here:
Google Has First Amendment Right To Remove Sites From Search ... - MediaPost Communications

The Channels Opinion Pages | STAFF COLUMN

Madeline Nathaus, Channels Staff February 10, 2017 115 views Filed under Columns, National, Opinion, Politics, Protest

The First Amendment was included in the Constitution by the founding fathers to guarantee citizens of the United States freedom of the press, religion, assembly and petition. It is this amendment that separates America from more than 40 percent of the worlds population.

Along with this right to freedom of speech comes the right to peacefully protest, march, and to publicly state ones beliefs in hopes of bringing attention to an issue or cause.

Protests and marches have been a vital part of forming modern day America and upholding democracy. Without citizens rising up against the government African Americans would not have civil rights, women would not be able to vote, and gay couples would not be able to get married.

Though most protests and marches remain relatively peaceful, there are times when they take a violent turn and end up disproving the point they are trying to make. For example, in the days following Trumps election, protests broke out among major cities and college campuses across the country. Unfortunately, protests in Los Angeles, Denver and especially Portland became violent in some form.

It is because of the First Amendment and the rights it provides that the Ku Klux Klan can legally march through the streets spreading a message of hate towards non-white citizens. It is why the Westboro Baptist Church can stand on corners chanting God hates fags all in the name of freedom of speech.

However, contrary to these organizations messages of discrimination and unacceptance, the Black Lives Matter movement spreads a message of lawful fairness towards African Americans.

The Womens March, which took place a couple weeks ago, brought attention to the constant sexism that women still face in the 21st century.

There is a reason why Gandhi and Martin Luther King Jr. advocated for peaceful protests. Imagine a mother yelling at her daughter for neglecting to wash the dishes, the daughter is less inclined to listen to her mothers reasoning if she is being aggressive.

Violent protesters ruin the movement for peaceful and lawful protesters. Peaceful and disruptive protests are the most effective forms of defiance. Vandalism, destruction of property, physically attacking other civilians, setting fires and other violent acts are illegal and indecent.

As long as protesters dont break any laws, police officers are more than happy to defend the rights of citizens. They are not the bad guys. After all, it is their job to prevent unlawful activities.

I respect everyones constitutional rights, as long as [the protests] are peaceful. Thats all that we can ask for, said Paul Espinosa, an officer with the Los Angeles Police Department.

Love sends a stronger message than hate. People will be more open to listening to a message that contradicts their own ideology if their personal beliefs are tolerated and their rights and properties are respected.

Protests and marches are the most effective form of displaying civilians disagreement with certain government choices, but they must be used as a tool, not a weapon. Do not abuse your rights.

Read more here:
The Channels : Keep protests peaceful; don't weaponize First ... - The Channels

Wall Street Journal

Facts, Falsehoods and the First Amendment Wall Street Journal The First Amendment sky is not falling as a result of the recent decision of the District of Columbia Court of Appeals permitting climatologist Michael Mann's case to proceed against the National Review Online, despite the claims of NRO's attorneys ...

Link:
Facts, Falsehoods and the First Amendment - Wall Street Journal

COLUMBIA In honor of the 225th anniversary of the ratification of the Bill of Rights, the Columbia Public Library will host a panel discussion on Monday examining how the First Amendment applies to modern-day America.

The event, "Examining Free Speech in the Digital Era," will be held from 7 to 8:30 p.m. on Monday in the Friends Room of the library. The library partnered with the League of Women Voters of Columbia-Boone County and the Kinder Institute on Constitutional Democracy to assemble a panel of scholars to talk at the event.

Panelists include Adam Seagrave, the Kinder Institute associate professor of constitutional democracy and associateprofessor of political science at MU; Nicholas Drummond, the Kinder postdoctoral fellow in political science and Jim Robertson, the managing editor of the Columbia Daily Tribune.

Each of the panelists will speak briefly about a topic, and the audience will have an opportunity to ask questions, said Patricia Miller, adult services manager for the library.

"We try to use this as an opportunity to educate ourselves and educate everyone a little bit more about the Bill of Rights and what it says," Miller said. "This will be an opportunity to hear a little bit from the experts."

Seagrave will speak about how the meaning of "freedom of speech" has changed in a technologically-advanced nation, especially with social media usage. He will discuss how the principles outlined in the First Amendment apply today.

"In my opinion, quite a lot is the same, including much of what is most important, Seagrave said.

Drummond will explore how people decide what is truthful, according to a library flier about the event. People today are afraid to discuss topics they consider "too dangerous." Drummond will compare that to political philosopher John Stuart Mill's concept of openly sharing viewpoints to uncover the truth.

Robertson's will talk about journalism within the First Amendment, particularly the day-to-day challenges journalists face and how they can help to separate truth from disinformation.

The panel discussion will complement the librarys 225th anniversary display on the clay brick wall of the librarys first floor. The Columbia Public Library was one of 15 libraries selected by the Missouri Humanities Council and the National Archives to host this exhibit, which will continue until Feb. 28.

In addition to the exhibit, the library has had a childrens book display with materials pertaining to the Bill of Rights, and will be putting up a second display on the librarys second floor, Miller said.

Excerpt from:
Columbia Public Library will host First Amendment event - Columbia Missourian

Unofficial co-sponsors of the bill? Milo Yiannopoulos and Scottie Nell Hughes

Rep. Martin Daniel, left, and Sen. Joey Hensley introduce the "Tennessee Student Free Expression Act," for when the First Amendment just isn't enough.

Sure, the First Amendment is, you know, a constitutional protection and all, but if you're a conservative minority in a sea of big, bad liberals on college campus, sometimes you just need a safe space, you special snowflake you. It can be very hard these days to speak your mind in a country with a Republican president and a Republican majority in Congress and the Senate and a Republican supermajority in both chambers of the Tennessee Legislature and a Republican governor and two Republican senators and seven out of nine Congressional districts represented by Republicans, not counting all the many, many, many, many Republicans in office at the local level across the state of Tennessee. Nope, it is definitely the poor College Republicans and other conservatives on campus who definitely need greater free speech protection than what the First Amendment offers.

At least, that's what state Rep. Martin Daniel (R-Knoxville) and Sen. Joey Hensley (R-Hohenwald) are saying is their justification for filing the "Tennessee Student Free Expression Act," a revamped version of a similar bill Daniel filed last year. However, this year they are nicknaming the bill the "Milo Act," after Breitbart writer/editor and noted white supremacist Milo Yiannopoulos, whose recent appearance at the University of California at Berkeley was cancelled after protests turned violent.

Daniel and Hensley who have both been accused of assault in the past, Daniel during a primary debate last summer and Hensley in 2015 after his ex-wife alleged he hit her with his truck, twice are just horrified, horrified, that students in California would try to prevent Yiannopoulos from speaking and are using those protests as justification for their bill. (Never mind that Yiannopoulos spoke at Vanderbilt University without incident last fall.) At the press conference announcing the legislation, they showed clips from Berkeley, and then they showed a video from the University of Tennessee at Knoxville last fall in which a white male student dressed up as Trump had his wig knocked off by an African-American female student walking past him. The video characterized this as an "assault"; however, the woman keeps walking away with no further incident rude, yes, but nothing even close to assault.

The presser proceeded with Daniel and Hensley talking about the bill, followed by Trump surrogate andFox talking head Scottie Nell Hughes who has stated in the past that "riots aren't necessarily a bad thing," at least, if they are in support of Trump. A member of the UTK College Republicans also spoke, as did the student who had portrayed Trump in the aforementioned video. Someone else read a statement from Yiannopoulos, who said he wished he could be here but was, alas, stuck in Florida. Afterwards, legislative staff on both sides of the aisle seemed flummoxed by the lengthy production. ("What the hell was that?" one staffer texted this reporter.)

The bill itself is not nearly as noxious as last year's version, which stated, in part:

The governing boards of the institutions shall prohibit an institution from:

(1) Establishing safe zones;

(2) Requiring or encouraging the issuance of trigger warnings;

(3) Establishing a system for students or other persons to report incidents of mere bias, where no threats or harassment occurred;

(4) Disciplining students for microaggressions

Several UTK professors contacted by the Scene expressed relief that the newer bill is more vaguely worded, but they still have many concerns.

"The opening of the 'free speech' bill sounds like an insult: as if those of us who work at the university are not already advocates of free speech, as if we haven't spent our entire lives embracing and promoting free speech," says UT-Knoxville English professor and poet Marilyn Kallet. "No thinking person would oppose free speech. But isn't that what we are already doing?"

Another UTK English professor, Lisi Schoenbach, says the legislation raises more questions than it answers.

"Why such a bill would be necessary? And why the legislature should be involved in the governance of the university?" asks Schoenbach. "It appears to me that the bill repeats a lot of very standard language that can be found in any number of places regarding the importance of free expression on campus, except with extra emphasis on how important it is to have disagreeable and unpleasant speech on campus. Wouldnt this be an argument in favor of Sex Week, and lots of other campus speech that the legislature finds disagreeable?"

When asked about Sex Week and other such things on campus to which conservatives in the Legislature have taken exception, Hensley said the issue with that was not the free speech but the university spending money on it. When asked if bringing a speaker like Yiannopoulos would not also cost money, he changed the subject.

Pippa Holloway, a history professor at MTSU and president of the MTSU chapter of the American Association of University Professors, says the bill is completely unnecessary.

"The legislation's claim that 'state institutions of higher education have abdicated their responsibility to uphold free speech principles' has no basis in fact. I would challenge the representative to visit our campuses; meet with our students, faculty, and administrators; and learn more about how Tennessee colleges and universities operate before wading into territory he obviously knows little about," Holloway comments.

"The legislation would require colleges and universities to modify the content of their freshman orientation and send emails every semester during the first week of classes reminding students of their First Amendment protections. What about the other nine amendments in the Bill of Rights? Should we send out emails every semester reminding them of their Second Amendment rights also? And what about the Third Amendment? If students are asked to quarter a solider in their house during a time of peace, shouldn't we remind them every semester that they can say no? If those questions sound ridiculous, they should, because such micromanaging of the daily operations of college campuses through state law IS ridiculous," Holloway adds.

The thing is, state campuses already do have free speech policies in place. When asked if they had read UT's policy, for one, the legislators admitted they had not. It's also unclear that they have any idea as to who Yiannopoulos actually is. When introducing the bill, Hensley commented, "We dont want to allow hate speech or offensive speech, but certainly when it comes to political issues, every student should have their right to expression." When asked if that wasn't exactly what Yiannopoulos often incites hate speech Daniel replied, "Were just asking that university administrators abide by and respect the first amendment, thats all."

But Yiannopoulos is a proponent of hate speech, in addition to misogyny, racism, homophobia (despite being openly gay himself) and general meanness. He thinks women shouldn't learn science or math. It is nearly impossible to be so horrible that Twitter will actually permanently ban you, yet Yiannopoulos managed it. It seems likely that the writer has only glommed onto the legislation as part of his never-ending quest for self-promotion, especially given that he has a book coming out in March why legislators who had a problem with LGBT diversity funding at UT want to help promote a man whose book was originally going to be called The Dangerous Faggot Manifesto is, well, odd.

UT itself has only issued a vague statement on the bill, with spokesperson Gina Stafford saying in an email, The proposed legislation would apply to all public universities in Tennessee, including the University of Tennessee. The constitutional right of free speech is a fundamental principle that underlies the mission of the University of Tennessee, and the University has a long and established record of vigorously defending and upholding all students right to free speech.

The ACLU of Tennessee also says it will be keeping an eye on the bill.

"This legislations goal of promoting free speech on state campuses is certainly laudable, and the bill contains elements that indeed foster free expression. However, in areas of campus that are not considered public fora, a public university has multiple obligations not only to free speech but also to preventing creation of a hostile environment. The devil is in the details and we are still in the process of closely analyzing this measure," says executive director Hedy Weinberg.

Meanwhile, says Schoenbach, if Daniel and Hensley really want to know about free speech on campus, they should take a class.

"If only there were a way for them to learn about the difference between facts and opinions, critical thinking skills, evidence based argumentation. There should be some state-provided access to this sort of information!" says Schoenbach.

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First Amendment Needs Protecting from Liberals, Say Republican Legislators - Nashville Scene

These days, it seems like the First Amendment is under assault from all sides. President Trump has waged war with news outlets, called to strip citizenship from anyone who sets the American flag on fire, and vowed to broaden libel laws to thwart adversaries.

On college campuses, there has been a sharp rise in the use of trigger warnings, safe spaces and disinvitation protests which are, in turn, portrayed as attempts to suppress opposing viewpoints. Just last week,violence broke out at the University of California, Berkeley, in response to a scheduled speech by right-wing commentator Milo Yiannopoulos.

But a different narrative is playing out in American high schools, where student support for First Amendment protections is the strongest its been in a decade, according to asurvey released this week by the John S. and James L. Knight Foundation, a nonprofit that promotes First Amendment protections and press freedom.

(More from The 74: School Bullying, Civic Engagement and the First Amendment in Donald Trumps America)

Of 11,998 students from 31 public and private high schools nationwide who participated in the survey, 91 percent agreed that people should be allowed to express unpopular opinions, an increase from 83 percent in 2004.

High school teachers are even more likely to support the First Amendment than their students. Of 726 high school teachers surveyed, 95 percent supported the right to express unpopular opinions, a slight decrease from 97 percent in 2004.

But as with any survey of this nature, language matters. Changing the word unpopular to offensive decreased support for free speech from 91 percent to 45 percent among students and from 95 percent to 53 percent among teachers.

Its important to understand the attitudes and perceptions of future generations, because theyre the ones who will ultimately be shaping norms, and norms often have sway on policy and the way the First Amendment is protected, said Jon Sotsky, the Knight Foundations director for strategy and assessment. Its very important to understand how these attitudes are shifting.

Despite the rise in student acceptance for free speech protections, Richard Garnett, a law professor at the University of Notre Dame who focuses on First Amendment issues, found the surveys results to be more glass half empty. He said he was troubled by a disconnect between young adults and an American tradition in which the remedy for offensive speech is more speech rather than censorship.

The irony, Id imagine all these high school kids in the survey, if you asked them, Are you for or against diversity, theyd be like, Oh, we love diversity, Garnett said. Well, if youre for diversity, you cant be for censoring stuff that offends you. Thats a two plus two equals five kind of thing.

Beyond perceptions of free speech protections, the Knight Foundation report offered a glimpse into student media consumption. While its no surprise that young adults receive most of their news on mobile devices through social media platforms like Twitter, the report found that students who actively engage with news on social media have stronger support for First Amendment freedoms. And while Americans trust in news is at all-time lows, students were far more likely than their teachers to consider information posted by everyday individuals more trustworthy than content from professional journalists.

High school students are also far less likely than adults to be concerned about privacy. While Sotsky noted that most kids dont have financial privacy concerns, such as credit card numbers, he observed that students, who have grown up in the digital age, are more likely to share personal information.

The surveys were conducted from March to June 2016. They have a margin of error of plus or minus 1 percentage point for students and plus or minus 4 points for teachers.

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First Amendment Is Strong at Nation's High Schools: 91% of Students, 95% of Teachers Back Free Speech - The 74

February is First Amendment month, and yes, I know that its kind of silly all of the months that we have. Some of them are quite good, like Black History Month, Great American Pie Month, (Im guessing that explains why the VC 4-H has its annual pie auction in February) National Heart Month, and National Macadamia Nut Month.

Can we all agree that the First Amendment is a good idea? In fact, its not just a good idea, its the bedrock foundation of our free society. Right up there with the Declaration of Independence.

And having said that, lets get this silly idea out of the way. The First Amendment says that Congress Shall Make No Laws that abridge the freedom of speech and the press. It doesnt make exceptions for hate speech (whatever THAT is!) or speech that makes you uncomfortable or speech that challenges your dogmas. The First Amendment was specifically designed to provide protection for people you loathe, people you detest and fear. It was invented to protect those who offend you the most. People who advocate dogs and cats living together, people who want to hum happy tunes using nothing but sharp notes, and, worst of all, people who eat purple vegetables.

This appears to be something that our colleges, which used to be hotbeds of freedom of speech, have forgotten. Berkeley University, which was the birthplace of the Free Speech Movement in the 1960s, obviously needs an enema of some sort now since these days its more the home of the Constipated Speech Movement. And spare me your emails. I know that they were protesting someone who is a provocateur, who loves to poke fun at various sacred notions and enjoys outraging people. Doesnt matter. He has the right to speak. His right to speak should certainly be defended from goons in black leotards wearing black masks and wielding iron batons to silence those they disagree with.

The late Justice Antonin Scalia wrote defenses of the right of people to burn the flag because it was protected by the First Amendment, even as he admitted that, if he were king, he would prefer to cut their heads off!

So, when you hear that people are not being allowed to speak somewhere because someone considers them to be the moral equivalent of Hitler, and that same someone beats up people, sets fires and destroys store fronts in the name of combating fascism, you may be forgiven for being skeptical. Fascism is as fascism does.

There was only one Hitler, and no one else even comes close. But some of us are trying.

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The First Amendment: Not just a good idea - Valley Roadrunner

Cincinnati 12:07 a.m. ET Feb. 10, 2017

John C. Greiner, attorney for Graydon Head Legal Counsel. He's a commercial litigator with an emphasis on communications and media law. He serves on the firm's Appellate Practice Group. (Photo: Provided, Provided)

The social media platform Facebook recently lost a First Amendment challenge to the federal Telephone Communications Privacy Act. While the case is bad news in the short term for Facebook, the rejection of the constitutional challenge could have long-term consequences for the entire industry.

The case concerns birthday messages. Facebook employed computer software to send birthday announcement texts to users. In 2015, Facebook, through its short code SMS number 32665033, texted to Colin Brickman's cell phone number an unsolicited birthday announcement text stating Today is Jim Stewart's birthday. Reply to post a wish on his Timeline or reply with 1 to post Happy Birthday!. Although Brickman supplied Facebook his cell phone number, which is associated to his Facebook page, Brickman indicated in the notification settings of his Facebook account, prior to receiving the text message, that he did not want to receive any text messages from Facebook.

And Brickman apparently was serious about it. On Feb. 2, 2016, Brickman filed a class action suit against Facebook, alleging Facebook violates the TCPA by sending unauthorized text messages. Brickman asked the court to allow him to represent the class of (a)ll individuals who received one or more Birthday Announcement Texts from Defendant to a cell phone through the use of an automated telephone dialing system at any time without their consent.

A valid TCPA claim requires plaintiff to allege (1) a defendant called a cellular telephone number; (2) using an automated telephone dialing system (ATDS); and (3) without the recipient's prior express consent. A text message is a call within the meaning of the TCPA.

Brickman alleged that Facebook employs computer software to send birthday announcement texts without human intervention to users. According to his complaint, Facebook's computer system, without any human intervention, reviews user data on a daily basis to identify users who have birthdays on a particular day; identifies the users Facebook friends who will receive the texts for a particular user's birthday; identifies the cell phone numbers of the Facebook friends that will receive the message; automatically inserts the name of the user celebrating a birthday into a form text in the appropriate language for each of the user's Facebook friends, creates the text; compiles a list of cell phone numbers to which it will send Birthday Text Announcements, stores those cell phone numbers in a queue, and then causes the text messages to be sent from that queue.

Facebook argued the text message was triggered by human intervention, in that Brickman signed up for Facebook and linked his cell number to his profile. And in addition to these technical arguments, Facebook contended the TCPA violates the First Amendment. In its view, based on a recent U.S. Supreme Court case that struck down an Arizona sign ordinance, a law triggered by the content of a message is subject to strict scrutiny a standard that is almost impossible for the government to satisfy.

The good news for Facebook was the court agreed that the TCPA is content-based certain messages, such as emergency messages, are exempt based on their content. Others are not, again based on the content. That meant the court applied the strict scrutiny analysis. The bad news for Facebook was that in this case, the court concluded that the TCPA satisfied the standard.

In order to survive strict scrutiny, the government must prove the restriction furthers a compelling interest and is narrowly tailored to achieve that interest. Here, the court concluded the government has a compelling interest in protecting residential privacy. The TCPA is designed to do just that.

And the court concluded the TCPA is narrowly tailored. In support of its argument, Facebook argued the TCPA was under-inclusive meaning it did not actually address all of the instances necessary to achieve its purpose. In the Supreme Courts sign ordinance case, for example, there were 33 exemptions to the ordinance. But the TCPA has only two exemptions. The court concluded it was not under inclusive.

Facebook also argued that in other respects, the TCPA was over inclusive. That is, it sweeps too much interaction under its provisions. The court rejected this argument as well. In its view, the TCPA is limited to a narrow subset of automated calls made without the recipients consent. It does not restrict individuals from receiving any call they want to receive. Any speech that the TCPA would cover is removed from that coverage once the consumer consents.

The immediate effect of the ruling is that Facebook will have to defend Brickmans suit on fairly technical grounds. The big constitutional defense is off the table, at least for now. And consumers will continue to enjoy protection from unwanted communications.

Jack Greiner is a lawyer with the Graydon Head law firm in Cincinnati and represents Enquirer Media in First Amendment and media issues.

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Facebook loses 1st Amendment challenge to federal law - Cincinnati.com