Category Archives: First Amendment

In May, the state of Montana did something that surely upset teens all over the state: It banned TikTok. Citing the platforms ownership by a Chinese company, the Montana Legislaturepasseda bill outlawing the app, thegovernor signedit, and it is slated to go into effect on Jan. 1, 2024.

But the law is currently being challenged in a now-consolidatedlawsuit. The case highlights the thorny civil liberties concerns raised by a statewide prohibition on a social media platform. TikTok and a group of content creators challenging the ban point out inlegalfilingsthat states cannot make foreign policy of their own, and note the special danger posed when states try to elbow into a role reserved exclusively to the federal government. The Reporters Committee and the Media Law Resource Center filed afriend-of-the-court briefin the consolidated case, focusing on the importance of TikTok to modern journalists and on two ways the ban violates the First Amendment.

Journalists, like all of us, areincreasinglyreliant on social media as a method of getting in touch with people, spreading and accessing information, and tracking real-time updates about events in the news. As TikTok hasrisen in popularity, journalists have flocked to the platform in part because it helps them reach adifferent audiencethan on other platforms. They can also report on that audience and use TikToks unique features (stiching and dueting, for instance) to do so.

And, as foreshadowed above, this is not just a normative problem. It is also a legal one. The U.S. Supreme Courthas heldthat regulations that single out certain entities within a medium pose severe dangers to First Amendment interests. This means, for instance, that the government cannot tax a certain subset of newspapers differently than other newspapers. In the social media context, it means that the government cannot single out TikTok in particular in the way Montana has done here.

The Montana TikTok ban violates the First Amendment in another way, too, because it forecloses an entire mode of communication. In invalidating an ordinance prohibiting most residential signs, the Supreme Courtmade clearthat these sorts of platform bans violate the First Amendment when they fail to leave open ample alternative channels by which the same message can reach the same audience with the same communicative impact. Just as drawing and sculpture are no substitute for painting, neither Instagram nor Twitter is a substitute for TikTok.

Its easy to dismiss this as a politically motivated ban of a platform (one that has had its ownrun-inswith press freedom) that mostly hosts dance videos for teenagers. But the principle here transcends the platform affected.

First, TikTok as a forum hosts all sorts of content that is inaccessible elsewhere and it works much differently than other social media. And second, denying journalists access to the app, where information spreads quickly and widely, would, for instance, make it much more difficult for journalists to debunk misinformation about content on the platform spread by, say,members of Congressor the Today Show. TheMontana Legislature itselfrelied on the suggestion that TikTok fails to remove, and may even promote, dangerous content that directs minors to engage in dangerous activities, citing a long list of social media trends and challenges, many of whichdid not originate on TikTok, are freely available on other social media sites, andmay not representbona fide trends at all.

For the sake of maintaining democracy, a free press, and a generation of teens with a sated appetite for some of the more outlandish videos on the internet, we hope the court agrees with us and strikes down this ban as unlawful.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy combining the law, policy analysis, and public education to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.

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Montana's TikTok ban poses significant First Amendment problems - Reporters Committee for Freedom of the Press

In a rarity for the Sunday morning shows, former President Donald Trumps lawyer, John Lauro, appeared on each of the five weekly political talkfests.

Lauros Aug. 6 appearances on ABC, CBS, NBC, CNN and Fox News came just days after Trump was indicted for the third time in recent months, this one a federal indictment for charges that Trump sought to overturn the results of the 2020 election.

In the interviews, Lauro often returned to the argument that the indictment tramples on Trumps First Amendment rights, and that the former presidentwas merely asking other officials questions rather than pressuring them. But the talk shows hostspushed back, and legal experts said they saw Lauros statements as political positioning rather than a true legal defense.

"Conflating protected political advocacy with conspiring to commit federal crimes might work to some extent in the court of public opinion, but wont be much of a defense in an actual court," said Timothy Zick, a College of William & Mary law professor.

We examined a few of Lauros statements with insights from legal experts.

"President Trump has argued from the very beginning, as I have, that this is an attack on his First Amendment rights."

("Fox News Sunday")

Both Trump and his lawyers have repeatedly argued that the most recent indictment infringes on his First Amendment rights. The indictment sought by Justice Department Special Counsel Jack Smith anticipated this, saying, "The Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won."

Trump wasnt charged for speaking his mind. The charges relate to his actions.

"Trump has First Amendment rights, but that does not mean that what he says and does to further a scheme to defraud is legal," said Joan Meyer, a partner at the law firm Thompson Hine LLP and a former federal prosecutor. "If your statements are part of an agreement to commit an unlawful act with your co-conspirators, the admission of these statements is fair game in a prosecution and can be used as evidence against you."

Legal experts offered several classic law school examples of speech that does not merit First Amendment protection because it is criminal in nature. A mafia boss, for instance, might say to a henchman how nice it would be if his enemy suffers, and the henchman understands that to mean he should injure his bosss enemy.

"Conspiracies and fraud are usually engaged in through speech, yet no court has ever suggested that these types of criminal charges violate the First Amendment," said Thomas Healy, a Seton Hall University law professor.

For instance, in the 1949 case Giboney v. Empire Storage & Ice Co., Justice Hugo Black wrote that "it has never been deemed an abridgment of freedom of speech" to criminalize behavior because it was carried out by speech.

In the 2008 case United States v. Williams, Justice Antonin Scalia wrote that offers to engage in illegal transactions are excluded from First Amendment protection.

And in the 2012 case Alvarez v. United States, Justice Anthony Kennedy wrote that when false claims are made to secure "valuable considerations," which Kennedy defined to include a "fraud," it is "well established that the government may restrict speech without affronting the First Amendment."

Healy said this principle "is upheld in federal courts every day, as defendants are prosecuted for fraudulent statements for material gain in a variety of contexts, such as insurance fraud, bank fraud, credit card fraud, securities fraud, and mail and wire fraud."

Healy added that the First Amendment could have come into play had the indictment included an additional charge one related to inciting the crowd to storm the U.S. Capitol on Jan. 6, 2021. If that charge had been brought, then the 1969 case Brandenburg v. Ohio "would require the government to prove that Trumps speech was intended to, and likely to, produce imminent unlawful conduct," Healy said.

Nor is Trump charged with lying on the campaign trail, which would "raise First Amendment concerns because it might chill legitimate political debate," Healy said. Rather, he is charged with "trying to overturn the results of the election by running a conspiracy to pressure state legislatures and his vice president to replace the legitimate slates of electors with fake slates of electors."

"What President Trump did not do is direct Vice President Pence to do anything. He asked him in an aspirational way. Asking is covered by the First Amendment."

(CNNs "State of the Union")

Legal experts say "aspirational" is meaningless in this context.

"Aspirational is not a defense to criminal conduct," said Neama Rahmani, a former federal prosecutor who is now president of West Coast Trial Lawyers. "Attempting to commit a crime is a crime."

Asking a question "is a form of speech covered by the First Amendment," said Gregory P. Magarian, a law professor at Washington University in St. Louis. He added that Trump could have asked Pence or others for their professional opinion without asking them to break the law.

"Requesting that someone violate the law is not protected by the First Amendment," he said. "If I ask you to perjure yourself in a trial, or if I ask if you would accept a payment to commit a murder for me, the First Amendment does not shield me from criminal liability for those aspirational questions."

"A technical violation of the Constitution is not a violation of criminal law."

(NBCs "Meet the Press")

The word choice of "technical violation" flummoxed the experts.

The indictment charges Trump with conspiring to defraud the United States, conspiring to suppress voting rights, conspiring to obstruct an official proceeding, and attempting to obstruct an official proceeding. These are all based on U.S. laws.

"Trump wasnt charged with a technical violation of the Constitution," Meyer said. "He was charged under specific criminal statutes. These broad and vague statements from Trump lawyers about violations of the Constitution may further the political narrative but dont have much to do with his criminal defense."

"There was a peaceful transition of power."

(CNNs "State of the Union")

Lauro said after Pence rejected a "number of scenarios" that would have paused or halted the certification of votes in the 2020 election, "there was a peaceful transition of power," which is "how the Constitution works."

CNN anchor Dana Bash scoffed at that, saying, "What happened on January 6 was not peaceful." In their back and forth, Lauro referred to Bidens inauguration, clarifying that he was not saying the Capitol riot "was in any way appropriate," but "the ultimate power of the presidency was transferred to Mr. Biden."

Lauros comment downplays the significance of the Capitol attack.

As lawmakers began to count and certify the Electoral College votes of the 2020 election, Trump supporters forced their way into the Capitol, stripping police of their weapons, dragging officers to the ground, spraying them with chemical irritants and assaulting them. The rioters broke down barricades, scaled the walls and shattered windows, forcing the Electoral College vote count to stop for hours as lawmakers sought cover.

The certification was delayed for several hours, but Pence and lawmakers were able to certify the results at 3:44 a.m. Jan. 7, 2021, when the scene was secure.

Biden was inaugurated Jan. 20, 2021, in a peaceful ceremony that drew heavy security; Trump did not attend.

RELATED: Read indictment of Donald Trump in the special counsels 2020 election, Jan. 6 investigation

RELATED: Fact-check: Donald Trumps false and misleading responses after charges over role in Jan. 6 riot

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Trump lawyers claim that indictment attacks First Amendment rights ... - PolitiFact

"Section 3 has long since faded into history."

- Eric Foner[1]

Reports of Section Three's demise are greatly exaggerated. It turns out that Section Three of the Fourteenth Amendment remains of direct and dramatic relevance todaya vital, fully operative rule of constitutional law with potentially far-reaching contemporary real-world consequences. Section Three remains in legal force, and has a broad substantive sweep.

Here is what it says:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.[2]

This section of the Fourteenth Amendment was designed to address a particular historical situation and acute problem arising in the aftermath of the Civil War. States in the South had purported (unconstitutionally)[3] to secede from the Union; they had purported to form the (so-called) "Confederate States of America" in rebellion against the authority of the U.S. Constitution; and they had waged a bloody four-year war of rebellion against the United States. Yet even after the rebellion had been defeated, Southern States had audaciously sent to Congress, to serve as U.S. Senators and Representatives, men who had notoriously violated previously sworn oaths to support the U.S. Constitution by subsequently engaging in or supporting secession, rebellion, and civil war against the authority of the United States (to say nothing of those now serving again in their state governments). These men who arrived in Washington included several who had held prominent positions in the rebel Confederacy: "four Confederate generals, four colonels, several Confederate congressmen and members of Confederate state legislatures, and even the vice president of the Confederacy, Alexander Stephens."[4]

The Congress that proposed the Fourteenth Amendment rightly regarded the situation as outrageousnot only morally, but practically. If former Confederates held the levers of federal and state government power, effective "reconstruction" of the political order and any hope of extending the full and equal protection of the laws to the newly freed former slaves would be at an end. Section Three of the Fourteenth Amendment responded to that outrage, enacting a sweeping disqualification from state and federal office of those who had, as legislators or officers in the federal or state government prior to the War, sworn required oaths of loyalty to the United States Constitution and subsequently engaged in "insurrection or rebellion" against the U.S. constitutional authority or given "aid or comfort" to persons engaged in such acts of insurrection or rebellion. Only a two-thirds majority vote of both houses of Congress could remove that sweeping disqualification.

Fast-forward a century and a half. The events surrounding efforts to overturn the result of the presidential election of 2020 have sparked renewed scholarly, judicial, and political interest in Section Three of the Fourteenth Amendment.[5] The core events are familiar to allthe dishonest attempts to set aside valid state election results with false claims of voter fraud; the attempted subversion of the constitutional processes for States' selection of electors for President and Vice President; the efforts to have the Vice President unconstitutionally claim a power to refuse to count electoral votes certified and submitted by several States; the efforts of Members of Congress to assert a similar power to reject votes lawfully cast votes by electors; the fomenting and immediate incitement of a mob to attempt to forcibly prevent Congress's and the Vice President's counting of such lawfully cast votesall in an attempt to prevent the defeated incumbent President, Donald Trump, from losing power in accordance with the Constitution.

This was undoubtedly a serious assault on the American constitutional order. Not since the Civil War has there been so serious a threat to the foundations of the American constitutional republic. It takes little imagination to describe the efforts to maintain Trump in office, notwithstanding his defeat, as an attempted political coup d'etat. These actions culminated in the incitement and execution of a violent uprising at the Capitol on January 6, 2021an "insurrection" aimed at preventing Congress and the incumbent Vice President from performing their constitutional responsibilities to count the votes for President and Vice President in the 2020 election. Several of the people involved in these eventsmost notably the defeated President, Donald Trumphad previously taken oaths to support the Constitution. If they engaged in or gave aid and comfort to an insurrection against the constitutional government, Section Three would appear to bar them from holding office again.

As legal officials and citizens generally have begun to confront the application of Section Three, they have foundered on the most fundamental questions. How does Section Three's disqualification applydoes it applyto those who planned, supported, encouraged, assisted, incited, or otherwise participated in the events surrounding the attempted overturning of the presidential election of 2020? Does Section Three's century-and-a-half old disqualification, designed for the aftermath of the Civil War, even remain legally operative in the first place? If so, what must be done to enforce Section Three? Does it require implementing legislation or criminal trials (or impeachments) before its disqualification kicks in? How does Section Three interact with the rest of the constitutional orderare its subjects protected by constitutional principles of attainder, anti-retroactivity, due process and free speech? And if Section Three does applyto what and to whom? What actions count as having "engaged in insurrection or rebellion" against the Constitution of the United States or having "given aid or comfort to the enemies thereof"? Which officials are covered by Section Three's exclusions?

This article attempts to answer these questions. It makes four key points (or clusters of points):

First. Section Three remains legally operative. It is no less part of the Constitution than the other provisions of the Fourteenth Amendment. It is not a dead letter. The Constitution is a binding, authoritative written text, not a collection of specific historical purposes and intentions. Where the text applies, it applies. Its legal force is not limited to the immediate problem or purpose that prompted its enactment. Section Three is not limited to the circumstances of the Civil War and Reconstruction, even if the meaning of its terms may be illuminated by that experience and history.

Nor has Section Three somehow been "repealed" by Congress's two major nineteenth-century statutes granting amnesty to those covered by Section Three. This is not because it would be impossible for a constitutional provision to expire by its terms after a period of time, or upon the occurrence of a particular event, or upon action taken by future actors. Article I, Section 9, for example, created a constitutional prohibition of most congressional regulation of the international slave trade for a period of twenty yearsbut its prohibition then vanished in 1808. Section Three, however, does not work that way. It imposes a general, prospective, rule of disqualification, which Congress may remove by two-thirds vote of both houses only once it has occurred. Section Three is prospective; Congressional amnesty is retrospective.

Second. Section Three is legally self-executing. That is, Section Three's disqualification is constitutionally automatic whenever its terms are satisfied. Section Three requires no legislation or adjudication to be legally effective. It is enacted by the enactment of the Fourteenth Amendment. Its disqualification, where triggered, just is. It follows that Section Three's disqualification may and should be followed and carried out by all whose duties are affected by it. In many cases, Section Three will give rise to judiciable controversies in the courts. In others it will be enforceable by state and federal officials. But no prior judicial decision, and no implementing legislation, is required for Section Three to be carried out by officials sworn to uphold the Constitution whose duties present the occasion for applying Section Three's commands. Section Three is ready for use.

While Section Three's requirements could be made the subject of enforcement legislation by Congress, under its general power under Section Five of the Fourteenth Amendment "to enforce" the provisions of the amendment, no such legislation is constitutionally required as a prerequisite to Section Three doing what Section Three itself does. Chief Justice Salmon P. Chase's circuit court opinion to the contrary, In re Griffin,[6] is simply wrong on this pointfull of sleight of hand, motivated reasoning, and self-defeating maneuversas we will explain at length. In re Griffin should be hooted down the pages of history, purged from our constitutional understanding of Section Three.

Third. Section Three supersedes (or satisfies) earlier-enacted constitutional provisions to the extent of any supposed conflict between them. Section Three, at the time it was adopted as part of the Constitution, imposed a disqualification from office based on an individual's past conduct. Even if imposition of such a disability might otherwise, if done by statute, have been a forbidden Ex Post Facto law or Bill of Attainder, Section Three of the Fourteenth Amendment constitutionally supersedes any prior provision conflicting with its terms.

This principle extends to a more unsettling point. To the extent Section Three's disqualification for having "engaged in insurrection or rebellion" or giving "aid or comfort" to "the enemies" might turn out to be in tension with the First Amendment's protection of freedom of speech, Section Three supersedes the First Amendment to the extent of any true conflict. To be sure, the proper construction of Section Three's terms ("insurrection," "rebellion," "aid and comfort," "enemies") will leave much speech and advocacy completely free. But in the cases where it does not, the terms of Section Three, not the constructions of the First Amendment, decide where the line is.

This leads to the article's fourth and final group of points:

Fourth. Section Three's disqualification is sweeping in its terms. It disqualifies from future office-holding persons who "engaged in"an expansive and encompassing term connoting many forms of participation in or active support ofa broad swath of activity covered by the terms "insurrection or rebellion" or the giving of "aid or comfort" to "enemies" of the nation or its constitutional order. It applies to a broad swath of civilian, military, and legislative office holders who swore oaths of fidelity to the Constitution, and it disqualifies such persons from holding in the future any of an extraordinarily broad swath of public offices. Taking Section Three seriously, on its own terms, means taking seriously the enormous sweep of the disqualification it creates. And, we will argue, taking Section Three seriously means that its constitutional disqualifications from future state and federal officeholding extend to participants in the attempted overturning of the presidential election of 2020, including former President Donald Trump and others. The substantive terms of Section Three's prohibition are not themselves difficult or inscrutable (even if there might be questions of application at the outer edges of the text's meaning). But they are potentially breathtaking in their straightforward consequences.

In what follows, we develop each of these four core points at length.

Section Three remains a valid, prospective, enforceable, self-executing, broad, and relevant part of our Constitution. It falls to us to fulfill our duties to it. These include the duties of legislative bodies, state and federal election officials, executive officers, and perhaps others to take up the Constitution, including Section Three of the Fourteenth Amendment, and wield it faithfully and forcefully against its enemies. Taking Section Three seriously means excluding from present or future office those who sought to subvert lawful government authority under the Constitution in the aftermath of the 2020 election by engaging in or giving aid or comfort to acts of "insurrection or rebellion" against the lawful constitutional order.

[1] Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution 85 (2019).

[2] U.S. Const. art. XIV, sec. 3.

[3] See infra note 228 and sources cited there.

[4] Akhil Reed Amar, America's Constitution: A Biography 377 (2005); see also Eric L. McKitrick, Andrew Johnson and Reconstruction 176-179 (1960); Allen C. Guelzo, Reconstruction: A Concise History 25 (2018).

[5] The most important scholarly articles (to which we are deeply indebted) are Gerard N. Magliocca, Amnesty and Section Three of the Fourteenth Amendment, 36 Const. Comment.. 87 (2021); Myles S. Lynch, Disloyalty and Disqualification: Reconstructing Section Three of the Fourteenth Amendment, 30 William & Mary Bill of Rights J. 153 (2021), both of which were written before the events of January 6, and Daniel J. Hemel, Disqualifying Insurrectionists and Rebels: A How-to Guide, Lawfare (Jan. 19, 2021), available at https://www.lawfareblog.com/disqualifying-insurrectionists-and-rebels-how-guide.

[6] 11 F. Cas. 7, 22-27 (C.C.D. Va. 1869) (No. 5,815).

Read the original post:
New Article on Insurrection, Rebellion, and Section Three of the ... - Reason

Updated August 9, 2023 at 3:11 p.m. EDT|Published August 7, 2023 at 8:00 a.m. EDT

Cop-watchers record police interactions. They're forcing departments to train their officers to respect First Amendment rights. (Video: Luis Velarde, Erin Patrick O'Connor/The Washington Post)

GILBERT, Ariz. Shortly after a police cruiser stopped a sedan with expired tags here on a recent night, a black-masked man in an SUV rushed over to record the encounter.

As a woman in the passenger seat handed her identification to a uniformed police officer, Christopher Ruff jumped in to advise her on her constitutional rights, holding up a camera to record the scene.

Did he make it seem like you had to, or did he just ask? Ruff asked her. In the future, you dont got to tell them anything about who you are. Soon, a sergeant approached, telling Ruff to get back and threatening him with arrest.

By the end of the night, Ruff had recorded a half-dozen interactions between police and civilians, some of which he posted on YouTube. Later that night he encountered the same sergeant and unloaded a barrage of profane insults. It was a typical Friday for the 33-year-old, part of his personal crusade to stop what he sees as overstepping, oath-breaking law enforcement. His encounters with police have been viewed more than 65 million times.

With varying degrees of antagonism and legal expertise, the online movement known as cop-watching or First Amendment auditing has swelled in popularity in recent years, capturing the imaginations of millions of Americans who are examining their relationship with policing after George Floyds murder at the hands of police in Minneapolis in 2020.

Cop-watchers and auditors say theyre waking up an over-policed nation to its plight. Theyre forcing police and government agencies to train their workers to respect First Amendment rights and are willing to risk arrest in the process. A few also are cashing in experts say the most popular auditing channels can generate more than $150,000 a month through ads and subscriptions on YouTube, Facebook and TikTok. Individual auditors can earn tens of thousands a month.

The reason we get pulled over and we get arrested is we are trying to show people that its not okay to just let them get away with it, because its going to affect the next person, Ruff said. They think its okay because theyve been allowed to do it.

But such encounters also have sparked backlash. Several states have passed laws or taken steps to limit opportunities to record police interactions, restrictions that have affected reporting by news organizations. Some law enforcement leaders accuse cop-watchers of selectively editing videos, misinforming citizens, inspiring vitriol toward police, escalating tensions during police interactions with civilians, and endangering officers and civilians.

Last year, a Mesa judge ordered Ruff to stop filming Mesa police. In July, Gilbert police issued a memo describing Ruff as a potential threat to law enforcement. The department declined an interview request.

Auditor videos have led to disciplinary actions for hundreds of officers across the country, and a handful of police have lost their jobs. The interactions and resulting legal fights have found their way to a federal appeals court, which affirmed the right of civilians to film police as a result of a lawsuit brought by a Texas-based auditor.

Sean Tindell, the commissioner of the Mississippi Department of Public Safety, recently met with his staff to discuss several videos alleging police misconduct, posted since last year by a Facebook watchdog group inspired and amplified by the auditor movement. Twenty years ago, Tindell said, similar complaints from citizens might not have been taken seriously.

Im thankful for some of these cases, because it allows us to highlight the dos and donts, Tindell said.

At the same time, he worries the videos have poisoned police interactions with members of the public who got their law degree on Facebook. Viral online confrontations between auditors and police officers also are making it difficult for agencies to attract recruits, Tindell added. I think a lot of folks watch these videos and say, I dont want to put myself in that situation.

And theres no shortage of videos.

Nebraska-based auditor Floyd Wallace recently posted a recording taken outside a sheriffs station in Jacksonville, Tex., in which police officers stop him and pat him down, and he is told quit running your dumb mouth before they let him go.

Once the recording went viral, the police department received hundreds of phone calls and emails, some of them threatening, which overloaded the communications apparatus that also fields 911 calls, Police Chief Joe Williams told The Washington Post. The officers actions were lawful, he added, but some of what they said to Wallace may have violated department policy.

When you encounter someone with a GoPro on their chest, you need to realize somethings up, Williams said. We took the bait. Its demoralizing. ... Its a gut punch. I think we all have a sense of embarrassment.

Some auditors record police traffic stops, patrols or arrests. Others videotape from inside police station lobbies, post offices and city halls or from public areas outside military bases, prisons and private businesses.

SeanPaul Reyes, arguably YouTubes most popular auditor, turned on his camera at Suffolk County, N.Y., police headquarters for the first time in 2021, bored and frustrated, he said, after being furloughed from his job as a logistics director for a warehouse company.

As Reyes aimed his camera at vehicles in the parking lot, three men in plainclothes surrounded him, demanding to know his purpose and to see his identification. His recording of the encounter has been viewed more than 400,000 times on YouTube.

Reyes told The Post that he turned on his camera at Suffolk County, N.Y., police headquarters in 2021, after being furloughed from his job. (Video: Long Island Auditor)

Two weeks later, Reyes was a full-time auditor, posting videos of the police under the handle LongIslandAudit. Reyes, who was convicted of attempted robbery in 2013 and served three years in prison, has racked up more than 141 million views on YouTube, collecting an online following that swamps police stations and town halls with angry calls when the YouTuber is detained or arrested. He recently filed suit after being arrested for filming in an NYPD police station lobby.

His chief motive, he said, is serving the public.

How many officers out there now know our rights better because of what were doing? said Reyes, 32. We have that video of Derek Chauvin killing George Floyd because of a citizen journalist recording the police. If an officer went up to one or two of them and said, Hey, you cant record and took their phone, he probably would have never been held accountable.

Reyes sometimes supplements his own video with police body-camera footage of the encounters, obtained through public records requests. An officer in Danbury, Conn. was suspended for nine days because of footage in which he says Reyes would have been dead with his teeth knocked out if police had encountered him in an earlier era.

Clips of Reyess calm dismissals of police asking for his identification are edited and repurposed across social media, offering easy-to-understand tutorials of when you do and dont have to show your identification to police.

Among the most popular aggregators of such material is the Lackluster YouTube channel, piloted by Dale Hiller, a former Los Angeles firefighter and Iraq War veteran, who started posting after he was ordered to stop recording a police interaction with his next-door neighbor.

Hiller stands out in the auditor movement, offering analysis of local, state and federal laws, as well as court rulings, to provide context for videos posted or submitted by others. Most material he highlights is not from auditors with hefty followings, but from people publishing their recordings of police encounters for the first time.

Hiller has watched YouTubers expand their followings in recent years by publishing videos of police interactions that others send them, and by finding new ways to encounter the police. He thinks some are beginning to enter murky legal waters approaching officers in a loud or disruptive manner, or refusing to leave public buildings when asked. Others have outright violated the law, he said.

Its a show, and it needs to sell.

One of the least confrontational auditors is Jeff Gray, who posts under the name HonorYourOath Civil Rights Investigations.

He often holds a weathered cardboard sign that reads God Bless the Homeless Veterans, positioning himself in shopping districts and at the steps of town halls in states including Florida, Georgia and Mississippi, and using a camera tucked in a shirt pocket to record police who approach.

Gray tells police he will provide ID if threatened with arrest. But he also politely warns officers that they are violating his civil rights.

Ruff, in contrast, could fairly be called one of the most antagonistic cop-watchers, Hiller said. Hes posted videos in which he shines flashlights at officers from outside a nighttime police perimeter, potentially compromising their vision.

Theyre really testing the limits, Hiller said of Ruff and his ilk. But I think its important that the cops know how to deal with that without hurting somebody or taking away freedom.

Arizona, where Ruff is based, has become a hot spot for auditing and cop-watching, so much so that some officers across Phoenixs southeast suburbs have begun using yellow crime scene tape to set perimeters around traffic stops when bystanders with cameras arrive.

It is one example of how the most extreme cop-watchers are inspiring practices and legislation with major First Amendment implications.

In Mesa, Ariz., Assistant Police Chief Ed Wessing said police began seeing individuals recording the station and its gated parking lot entrances about six years ago. The first auditors were not confrontational, but the tone seemed to shift with each well-publicized case of police brutality or other misconduct in the region, he said.

Then came Floyds murder in Minneapolis, recorded on a bystanders cellphone for the world to see. Auditors began confronting officers at crime scenes, cursing at them and daring them to take action, Wessing said. Officers who identified themselves were sometimes doxed online, their phone numbers and home addresses shared by viewers seeking to punish them for their conduct on video.

Over the years, officers have sometimes overstepped when recorded, Wessing said, detaining and arresting auditors on charges that did not stick in court. Older officers generally had a harder time adjusting to the new reality than younger ones. Theres no question that we had a learning curve, Wessing said.

But auditors also have at times disrupted the situation at hand.

Three years ago, a man holding his father at gunpoint pointed his weapon at Mesa police moments after officers told a cop-watcher to retreat from his perch outside the house and he refused. Officers then shot and killed the gunman. No one else was injured, but the sequence rattled the officers.

Last year, the city spent $23,071 to delay the public police scanner feed by an hour, after realizing that Ruff and other auditors were using it to locate their next targets. The department said it gave access to the live feed to journalism outlets it deemed legitimate.

Arizona is one of at least six states that have tried to enact laws to create more distance between police and the public, with mixed results. A coalition of media companies and free-press advocates successfully challenged a law that made it illegal in Arizona for bystanders to record police within an eight-foot buffer zone. Other states have focused on the perimeter instead of the act of recording.

Most jurisdictions understand that if they out-and-out prohibit recording without the permission of a police officer, like Arizona tried to, the federal courts are going to block that very quickly, said Grayson Clary, a staff attorney with the Reporters Committee for the Freedom of the Press.

In Indiana, a law took effect in July barring people from getting within 25 feet of police after being ordered not to approach. Louisiana Gov. John Bel Edwards (D) vetoed a similar bill in June. Similar legislation has been introduced in Michigan.

Support for such legislation has largely fallen along partisan lines, with most Republicans supporting the measures and many Democrats opposing them, citing constitutional concerns. A notable exception: Indiana state Rep. Mitch Gore, a Democrat who also is a Marion County sheriffs deputy.

We have some concern that bad law enforcement officers may attempt to perpetually push the public back further and further, Gore said. But these situations are becoming much more tense unnecessarily, and it was important that we give our officers the ability to de-escalate the situation.

Turner says he became a cop watcher after negative interactions with police starting when he was a teenager. (Video: The Battousai)

Andrea Prichett started Berkeley Copwatch in Northern California in 1990. Early on, her organization focused primarily on bearing witness, keeping residents safe by observing police interactions in an unobtrusive manner.

What had weight was the actual human being present at the moment of incident, and the technology was very secondary, Prichett said.

Berkeley Copwatch eventually used public records and recordings to build a database of allegedly abusive officers in the Berkeley Police Department, and launched a class on cop-watching at UC-Berkeley.

Its members continue to eschew any dramatic confrontations with police.

The screaming and hollering and doing all this kind of stuff, in my experience, is not an effective strategy for getting somebody released, Prichett said. It often attracts more cops to call for backup and escalate.

The path from Berkeley Copwatch to YouTube stars was paved via court precedent.

Austin-area native Phillip Turner, 33, began recording outside Texas police stations and posting the results on YouTube in 2014. He says he was motivated by negative interactions with police starting when he was a teenager traffic stops and other incidents he thought were initiated or escalated by officers because he is Black.

After launching his YouTube experiment, Turner was arrested multiple times for not identifying himself while recording, even though Texas law requires a person to provide ID only if the person has been lawfully arrested or pulled over while driving.

Turner sued the Fort Worth Police in 2015 for detaining him in a sweltering patrol car after he silently recorded their station from across the street.

The case reached the appeals court in 2017, and the court ruled in his favor, establishing for the first time in the U.S. Court of Appeals for the 5th Circuit the right to record police, subject only to reasonable time, place, and manner restrictions. The 5th Circuit decision echoed similar decisions in other circuits, but Turners case is unique in that he was not filming police during an enforcement action, but filming police property.

Turners calm, quiet manner while recording was discussed at length in court. He says he acts that way with his online audience in mind.

I understand that filming the police is already a touchy subject, Turner said. People who dont understand what were doing feel like were out to get the cops. I tailor my style to not exclude anybody.

The Arizona-based YouTuber has become popular for recording police, sometimes prompting officers to use crime scene tape to set perimeters around traffic stops. (Video: Direct D)

Ruff said hes not capable of biting his tongue when his rights are violated.

I lose the professionalism, the politeness, the moment that they start operating outside of the parameters of their job, he said. How can you be nice to somebody who is willing to violate your human rights?

Ruff goes cop-watching at night, searching for sirens or helicopters. He focuses his attention on parts of the Phoenix suburbs where most people are poor and Black, Latino or Native American.

Those areas have become battlegrounds in the regions sprawling gentrification struggle, and Ruff sees aggressive policing as another way to clear out the poor and make room for the wealthy. Whenever police try to remove homeless people from bus stops or pull cars over for minor violations, Ruff aims to be there with a camera.

One of his most jaw-dropping recordings is among the first he posted, from a trailer park in Cottonwood, Ariz. It was New Years Day 2021. Ruff was working as a landscaper, four years removed from serving five years in prison for a 2011 armed robbery conviction.

A worker for the trailer park community asked what Ruff was doing there, he says, and he declined to answer. The employee called police. Ruff began to record.

Lets go into handcuffs, the responding officer says to Ruff on the footage, after some unrequited questioning.

Ruff backs away, repeating, Dont touch me. I dont have to identify myself.

Even after a supervisor arrives, Ruff does not relent.

The 10-minute video became a YouTube sensation, with aggregation channels shouting: BOSS LEVEL ID REFUSAL!!... TWO COPS GET OWNED

But heres what the video doesnt show: After Ruff stopped filming, one of the officers found Ruffs girlfriend and pressured her to reveal his name. He remains angry about it.

They used her feelings towards me to get what they wanted, Ruff said. That really sparked some s--- in me right there.

Ruff has since posted more than 300 videos. He says he doesnt own the YouTube channel and is barred from sharing details about the revenue generated by the ads that appear with his recordings.

On that recent night in Gilbert, Ruff kept driving long after he told the woman in the sedan that she had not been required to give her ID to police.

Around 1 a.m., he pulled up to a stoplight, dash cam recording.

Idling next to him was the Gilbert police sergeant who had threatened to arrest him hours earlier.

Ruff leaned out the window of his truck and shouted: Do the department a favor and eat one of your service rounds! Then he gunned his engine through the green light.

The sergeant rolled up his window and turned onto another road.

correction

A previous version of this article misstated the jurisdiction of the Turner v. Driver court decision. The case was decided in a federal appeals court. The article has been corrected.

Continue reading here:
How 1st Amendment auditors are changing policing, helped by ... - The Washington Post

from the here-at-politico-we-let-our-interns-just-make-shit-up dept

Here on Techdirt weve chronicled the rise of a bunch of terrible age verification laws, including many focused specifically on adult content. Weve also highlighted how MindGeek, the company behind a bunch of largest adult content sites, including Pornhub, have started geoblocking entire states in response to these problematic laws, while the Free Speech Coalition has been suing to get these laws tossed out as unconstitutional.

The whole premise of these bills is pretty clearly unconstitutional. This has been established multiple times by courts, which various state legislatures now wish to ignore.

But, no matter, Politico has published a bizarrely uninformed feature article celebrating these laws and the fact that MindGeek is now blocking entire states because the fact that these unconstitutional laws have created a chilling effect that has removed speech from the market is good? The underlying premise behind the article, written by author Marc Novicoff (who appears to be an intern with zero knowledge or expertise in the law or related issues, other than that an anti-porn advocate once spoke to him in high school), is that porn is bad and any law that causes adult content companies to block access must be effective. I mean, thats a take. Not a particularly intelligent or informed one, but its a take.

The article starts off by talking about the bills and the censorial excitement of the legislators behind them:

Though the first of its kind, Louisianas age-verification bill was not the last. Nearly identical bills have passed in six other states Arkansas, Montana, Mississippi, Utah, Virginia and Texas by similarly lopsided margins. In Utah and Arkansas, the bills passed unanimously. The laws were passed by overwhelming margins in legislatures controlled by both parties and signed into law by Democratic and Republican governors alike. In just over a year, age-verification laws have become perhaps the most bipartisan policy in the country, and they are creating havoc in a porn industry that many had considered all but impossible to actually regulate.

Unlike past efforts to curb online porn that had simply declared the sites a danger to public health, these laws are not symbolic. And they are having real effects on how the massive online porn industry does business.

First off, the claim that these are bipartisan is questionable. Every state named here has legislatures that are overwhelmingly Republican and all of them have Republican governors (Update: As pointed out in the comments, Louisiana does have a Democratic governor, though a Republican legislature, and is generally considered an extremely red state). The article is just factually wrong in claiming that these laws are bipartisan, let alone the most bipartisan policy in the country. It is true that Democratic-run states are passing their own stupid laws, like Californias Age Appropriate Design Code, which effectively requires age verification, but those laws are very different, and its not the same policy at all.

So the very premise that this is some bipartisan thing is just false.

Second, yes, if you pass an obviously unconstitutional bill designed to create a chilling effect on speech, is it any surprise that it creates a chilling effect on speech? It is not. I mean, excited censorial legislatures could also pass bills requiring interns at mainstream magazines to obtain a do you know how to do basic research? license before they could write an article for such a magazine, and it would be equally unconstitutional.

Would we call that effective in stopping ill-informed, ignorant interns from publishing nonsense? Or would we call out the obvious unconstitutional problems with it?

Politico, and Marc Novicoff, would apparently accept it as an effective tool in stopping the scourge of Politico publishing uninformed articles by those who would fail a journalism 101 class.

The article acknowledges that these laws are being challenged, but then immediately jumps to highlighting a single anti-porn advocate, who the author admits spoke at his high school a few years ago when he was a student there. The author appears to take her extremely one-sided (and not at all supported by the data) claims, as being really interesting:

Dines is not subtle about the ills of pornography and hypersexualization. When her speaking tour stopped at my high school in 2017, she told my junior class, I bet you, every woman here, all of you female students, could come up here right now, and you could do the fuck me look, referring to the Victorias Secret model displayed on the projector behind her. About a minute later, she told us, somewhat forlornly, Men who rape are not deviants. They are over-conformists.

While the reporter says he didnt believe it at the time and still thinks that Dines is overzealous, he relies on his personal experience watching online porn and internet forums to say that maybe she was actually on to something. Really. This is the quality of research that Politico gets from its interns apparently.

Six years later though, while I still find Dines to be overzealous (the porn-to-rape argument feels like a stretch), its hard not to question whether the sexualization of everything and the proliferation of internet porn were good for us. Visit any number of massively populated internet forums (combined members 1.4 million) if you dont understand what I mean; bask in the endless tapestry of loneliness, broken marriages and 20-something-year-old men who cant get it up for women theyre in love with, but have no trouble when theyre watching videos of strangers.

When experts go through the actual research (which Novicoff never bothers to do), they show that all of this is utter nonsense not supported by the data. There are all sorts of studies that show various impacts of porn (some of which is conflicting), but mostly the data just shows that for a small percentage of people who generally are dealing with other mental health issues, they may use pornography to justify certain actions, but for the vast majority of cases, adult content does not harm people. Some studies even show a reduction in sexual assault in response to greater consumption of adult content. The reality is that its complicated, but the Politico article, instead of dealing with any of that, simply accepts the claims of a very vocal one-sided advocate as accurate, because she spoke at his high school and because there are some lonely dudes on Reddit.

This isnt a high school newspaper its a major magazine. Politico, what are you doing?

While the article gives a brief statement from a lawyer from the Free Speech Coalition pointing out that, you know, the 1st Amendment matters, the article quickly dismisses all that with this astoundingly ridiculous paragraph:

Whether or not there are legitimate First Amendment issues at play will be a matter for the courts, but theres no arguing with the effectiveness of the laws. As Stabile explained, age-verification laws make traffic to porn sites drop precipitously. It turns out, unsurprisingly, that nobody wants to upload their drivers license or passport before watching porn. And, as Stabile added, at a cost to the operators of around 65 cents per verification, age verification is effectively business-killing.

Eh, maybe theres a 1st Amendment issue, maybe not, this reporter isnt here to actually find out. Hes just going to opine on it, because he hangs out with incels on Reddit?

Again, yes, if you pass an unconstitutional law restricting speech, dont be surprised when it restricts speech. Thats not news. Thats almost the quintessential dog bits man story. Whether or not there are legitimate First Amendment issues at play is the entire crux of this debate, and its bizarre for the article to sort of toss them aside and say no matter what theyre effective!

Its also completely clueless. The reason why MindGeek is bailing out of these states is important, and not even remotely discussed in the article. Its doing it on purpose, to get people in these states, who regularly do visit adult content sites, to get angry with their censorial rights-stomping legislators. Its literally part of their public relations pressure campaign.

Which the article doesnt once acknowledge.

Instead, the article quotes someone claiming that you poll this, its like an 85-15 issue in support of anti-porn laws. Politico accepts this claim, offered up by a well known political activist who works for an organization famous for its reactionary, anti-LGBTQ views, as fact with literally zero attempt to check its veracity. There are some polls, usually with questionable methodology run by groups with names like institute for family studies that find a slight majority of the adults that they surveyed, support banning porn. The only study I could find that got up to 85% was in the not exactly trustworthy Sunday Times when the UK was going through this debate. Notably, when the UK passed a law like this it was deemed an utter failure.

Actual polls that are run by non-biased sources suggest otherwise. The Atlantic ran a poll just recently that came up with much more muted responses:

A recent Atlantic/Leger poll of 1,002 Americans largely supported this acceptance of porn. We presented participants with a list of questions about porn, and many of them yawned and said, So what? Most Americans have watched porn, according to the poll. But most spend less than 20 minutes a week watching it, and 79 percent of those who watch porn said they dont feel addicted to it (17 percent of respondents who had watched porn in the past year said they had ever felt like they were addicted to pornography). Only 6 percent of people said theyd begun watching porn when they were younger than 12. Most said that watching porn had no effect on them or their relationships, and 79 percent of those with children said they didnt struggle to control their childrens access to porn. And just like public-health experts, most respondents53 percentsaid they didnt think porn was a public-health crisis. Only 25 percent said it was.

But the Politico article simply accepted one extremists claim about how the public feels about this, just like he accepted the claim of another activist about the harm of porn backed up by a few subreddits he looked at.

This is not reporting.

He then claims, incredibly, that the only people against these laws are the ACLU and the adult content industry. Really.

So though the ACLU and the $100 billion porn industry are against the laws, they seem to be largely alone in that position. By Jan. 1, 2024 (when the Montana law goes into effect), around 54 million Americans will live in states where they are required to upload their identification to access pornography websites, if those pornography websites choose to operate there at all.

There is literally zero evidence supporting this claim. None. The fact that many states, mostly those dominated by Republican legislatures, are pushing these bills, does not mean that this position is widely accepted by the public.

Elsewhere in the article, Navicoff notes that the backers of these bills are literally high fiving each other that 1st Amendment protected speech is being suppressed.

According to Utah state Sen. Todd Weiler, the chief sponsor of Utahs bill, many of his colleagues are celebrating the improbable and unexpected retreat of the pornography behemoth. Weiler said his colleagues think its hilarious and have been high-fiving each other in boyish triumph.

Also notably absent from this article is the fact that an extremist anti-free speech religious group, formerly known as Morality in Media but now going by the National Center on Sexual Exploitation (NCOSE) is behind these bills (just as NCOSE was behind FOSTA and now EARN IT) and their stated goal is for all pornography to be banned.

Other, more honest, and well reported articles that arent just thinly disguised anti-porn advocacy, have noted that this has all been orchestrated by NCOSE. Heres the Atlantic highlighting how the same Todd Weiler, whom Navicoff gleefully reported was high-fiving colleagues in a boyish triumph over suppressing free speech was inspired by NCOSE (who is not mentioned in the Politico article at all):

NCOSE seems to have pushed Utah state Senator Todd Weiler to support the public-health-crisis legislation in 2016. They told me, If you can pass this, we can get this passed in 15 more states. We just need one legislator to stick his neck out, Weiler told Governing magazine in 2019. Arizona state Representative Michelle Udall told me that she introduced her states public-health-crisis bill in 2019 after hearing from constituents involved with the anti-porn group Fight the New Drug, and that NCOSE gave her a booklet with data and studies on porn. She read that the average age at which children are being exposed to pornography is 11, and she had an 11-year-old at the time. She wanted the resolution to improve awareness of the issue, especially as we talk about children and their exposure, she told me.

And, of course, that 11-year-old stat is bullshit, as the Atlantics data shows.

NCOSE is pretty clear that its entire mission is about scrubbing the entire internet from any content that the prudes who work there find too scintillating.

But Politico seems to have zero problem publishing a misleading, terribly researched piece that literally suggests that the 1st Amendment concerns of these laws are not really important, and stifling protected speech should be cheered on with high fives. This wasnt reporting, it was reactionary, anti-free speech advocacy, pushed by extremist reactionary fringe groups, given the veneer of legitimacy by a kid who has spent too much time in porn subreddits.

Is that really the standard of journalism Politico is pushing these days?

Filed Under: 1st amendment, adult content, age verification, censorship, marc novicoff Companies: mindgeek, ncose, politico, pornhub

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Politico's Weird Celebration Of 1st Amendment Violations When It ... - Techdirt

Fox Corporations chief legal officer, Viet Dinh, will depart at the end of the year, in a major shake-up at the company after the landmark $787.5 million settlement it paid to Dominion Voting Systems in April.

Mr. Dinh, a former official in the George W. Bush White House who amassed considerable power inside Fox, will advise the company after his exit, Fox said in an announcement on Friday.

Mr. Dinh gave what some inside the company considered flawed advice during the Dominion suit, which exposed a pattern of deceptive coverage by Fox News after the 2020 presidential election. He insisted that Fox was on firm legal footing and could take the case, if need be, all the way to the Supreme Court, where he believed the company would prevail on First Amendment grounds.

Fox did not name his successor.

We appreciate Viets many contributions and service to Fox as both a board member of 21st Century Fox and in his role over the last five years as a valued member of Foxs leadership team, Lachlan Murdoch, the chief executive, said in a written statement announcing the move.

Mr. Dinhs departure raises questions about how Fox will handle the major lawsuits it still faces for airing false claims about widespread election fraud after the 2020 election. Another elections technology company, Smartmatic, has sued Fox for $2.7 billion. And Ray Epps, the man at the center of a widespread conspiracy theory about the attack on the U.S. Capitol on Jan. 6, 2021, filed a defamation suit against Fox last month.

The company also faces two shareholder lawsuits related to its coverage and the handling of the lawsuits.

The Dominion lawsuit has been destabilizing for Fox and the family that controls it, the Murdochs. The fallout is posing the most significant challenges the company has faced since allegations more than a decade ago that journalists employed by its British newspaper division were hacking into the voice mail accounts of celebrities.

Emails and text messages that were released as part of the discovery process in the Dominion case revealed that executives at Fox including Rupert Murdoch, the companys founder, and its news network hosts were deeply skeptical of claims by former President Donald J. Trump that voter fraud was responsible for his election loss. Yet Fox News continued to provide a platform to numerous on-air personalities and guests who made such claims.

In April, the network canceled the program of its most-watched prime-time host, Tucker Carlson, whose private messages showed him to be much more critical of Mr. Trump than he was on his program.

One text, containing a racist sentiment, led the Fox board to authorize an internal investigation, which was one of several factors that contributed to Mr. Carlsons ouster. Lachlan Murdoch has described the decision to fire Mr. Carlson as a business decision, reasoning that the host was no longer worth the headaches he created for the company, according to a person with knowledge of the internal discussions.

Mr. Dinh has been close to the Murdoch family for years and served on the companys board of directors before being named chief legal officer in 2018. He is also the godfather of one of Lachlan Murdochs children.

Mr. Dinh wielded a considerable amount of influence at Fox. But his handling of the Dominion suit dismayed many inside the company, including Suzanne Scott, chief executive of Fox News Media, who is known for her discretion but made her displeasure known to colleagues, according to two people who have spoken to her.

How Mr. Dinhs departure affects the remaining lawsuits against Fox is an open question. The law firm where he was a partner before joining Fox, Kirkland Ellis, has continued to handle much of the caseload from the Smartmatic suit.

Mr. Dinh was deposed as part of the Dominion suit and acknowledged that he was skeptical of Mr. Trumps false claims.

He leaves with a high-dollar compensation package: $23 million, according to documents filed with the federal government.

Fox News is in a transition period, having shuffled its prime-time lineup for the first time since 2017. Replacing Mr. Carlson is Jesse Watters at 8 p.m. Sean Hannity remains the host at 9, and Greg Gutfeld moved to 10 from 11.

While at Fox, Mr. Dinh was occasionally described as one of the most powerful lawyers in America. Even though he did not run the daily programming at Fox News, he kept a watchful eye over its content, maintaining an influential role over what appeared on the air.

A refugee from Vietnam who arrived at the age of 10, he once told VietLife magazine that he had worked jobs including cleaning toilets, busing tables, pumping gas, picking berries, fixing cars to help his family make ends meet. He attended Harvard and Harvard Law School.

And at times he expressed pride in Foxs contrarian view of the former president, which sometimes led Mr. Trump to criticize the network.

There is no better historical record of Fox Newss excellent journalism than to see how the former president tweeted against Fox, Mr. Dinh said.

See the rest here:
Foxs Top Lawyer, Viet Dinh, Will Depart - The New York Times

A Colorado teachers union filed a federal lawsuit against the Woodland Park School District and its board of education over a policy that they allege prevents teachers from publicly speaking about school concerns.

The Woodland Park Education Association and its president, Nate Owen, filed the lawsuit in U.S. District Court in Denver this week. The school board and district in Woodland Park, outside Colorado Springs in Teller County, has become increasingly conservative, including adopting American Birthright standards earlier this year.

The lawsuit alleges that a district policy, known as KDDA, is an unconstitutional prior restraint on speech that goes against the First Amendment.

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That policy, revised twice this year, states that the superintendent is the official spokesperson for the district and handles all press releases, employees cannot talk to the media without district approval, and employees cannot post on social media about district decisions without approval. Violation of the policy is considered insubordination.

Prior restraints on speech are the most serious and least tolerable infringement of an individuals First Amendment rights. The Supreme Court has routinely held that prior restraints on protected speech are presumed to be constitutionally invalid, the lawsuit reads.

There are examples of courts striking down policies that prevent public employees, like teachers, from speaking to the media without prior approval.

It is my understanding that policies like this have previously been challenged in other school districts and have been found by courts to be unconstitutional restrictions on free speech rights of school employees, said attorney Steve Zansberg, who works on cases pertaining to media and the First Amendment. (Zansberg has represented Colorado Newsline.)

Because of Owens standing as the WPEA president, he often makes public comments to the school board about working conditions and matters of public concern, as well as comments to the media. The districts policy, however, puts his job in jeopardy if he speaks out.

Woodland Park educators work hard every day to ensure that their schools are welcoming places where their students can learn and thrive. And for their efforts theyve been rewarded by their school district and board with a gag order, with removal of critical services for their students, and with constant disrespect for their professional expertise, Amie Baca-Oehlert, high school counselor and president of the Colorado Education Association, said in a statement. CEA, which is not a plaintiff in the case, is the statess largest teachers union.

The lawsuit also alleges that the way the policy was revised in February and March violates Colorados Open Meetings Law. There are no posted minutes or agendas that show the school board publicly discussing the issue.

Additionally, the lawsuit alleges that the district unconstitutionally compels employees to join the Professional Association of Colorado Educators for professional liability insurance. The lawsuit contends that PACE, a proponent of school vouchers and school choice, is an anti-union organization.

Plaintiffs members do not want to be forced to join PACE because they do not agree with PACE as an organization, its goals, its political beliefs, its messaging, or its purpose nor do they want to receive its propaganda, the lawsuit reads.

The lawsuit estimates that the district will spend about $40,000 for employee membership this upcoming school year.

Woodland Park School District Superintendent Ken Witt called the lawsuit a coordinated political attack by groups seeking to intimidate the district because of its recent pivot to parent and student friendly policies and practices.

I believe the employees who may have been concerned about the KDDA policy are those who have been historically conditioned to feel free to take private HR and student matters into the public using social media. Whatever the court may decide in this case, the striking lack of professionalism and ethics on the part of those who are feigning to be offended is heartbreaking, Witt wrote in an email.

Newsline left a phone message seeking comment with school board President David Rusterholtz but had not received a response at the time of publication.

Link:
Teachers union sues Woodland Park School District over 'gag order ... - Colorado Newsline

Im mostly done with my legal career. In 2015, after more than 20 years of full-time litigation, I hung up my courtroom spurs and moved into the world of writing and thinking for a living. But every now and then, I re-enter the fray. Last year I wrote an amicus brief in a case called 303 Creative L.L.C. v. Elenis, arguing that a wedding website designer had a First Amendment right not to speak. And on Friday the Supreme Court reached a decision in the case, ruling for the website designer and holding that the State of Colorado could not require her to design websites that, for example, celebrated same-sex weddings.

This case was not, as it has been widely described, about whether a website designer could refuse gay customers. That would be both illegal and immoral, and I would not participate in such a case. Indeed, the parties stipulated that the web designer, Lorie Smith, was willing to work with all people regardless of classifications such as race, creed, sexual orientation and gender, and she will gladly create custom graphics and websites for clients of any sexual orientation. She was simply not willing to design websites that contained messages that violated her religious beliefs.

The case was not about whether a business could refuse to provide goods or services but whether it could refuse to generate specific expressions with which it disagreed. Here the parties agreed that all of the graphic and website design services Ms. Smith provides are expressive and that websites and graphics Ms. Smith designs are original, customized creations that contribute to the overall messages her business conveys.

As a result, no one should think that the Supreme Court sanctioned, say, whites-only businesses or permitted a business owner to slam the door shut on gay and lesbian customers. Indeed, the majority opinion was written by the same justice, Neil Gorsuch, who wrote the majority opinion in Bostock v. Clayton County, which extended the reach of Title VII to protect gay and lesbian Americans from employment discrimination.

The 303 Creative case was instead about compelled speech. When could the government require a commercial provider of expressive services to say things she found objectionable? Could the government compel a portrait artist to paint a heroic picture of a white supremacist? Could the government compel a speechwriter to pen an anti-gay screed on behalf of a right-wing politician?

Under traditional First Amendment doctrine, the answer was a clear and emphatic no. The First Amendment doesnt just protect my right to say things I believe, it also protects my right not to say things I dont believe. As Justice Gorsuch wrote in the courts majority opinion, The opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong. And when one does encounter objectionable speech, he said, tolerance, not coercion, is our nations answer.

In ruling for Ms. Smith, the court didnt set any new precedent. It was a straightforward application of decades of cases protecting citizens from compelled speech. But these clear precedents were clouded by the culture wars. When one passionately supports a community or a cause, there is a natural human inclination to want to protect your speech while suppressing your opponents speech or in this case, your opponents right not to speak at all.

Make no mistake, this is a bipartisan phenomenon. As Ive written before, parts of red America have engaged in wholesale acts of censorship designed to suppress speech about race, sexual orientation and gender identity that many conservative Americans find distasteful. In the run-up to the Supreme Courts decision in 303 Creative, two different federal courts, in Tennessee and Florida, struck down restrictions on drag performances, holding that the states efforts to target drag shows violated the First Amendment.

Indeed, Florida has been a locus of unconstitutional culture warring. The administration of Gov. Ron DeSantis currently faces court injunctions against the governors efforts to override private social media corporations ability to moderate their own websites, regulate corporate diversity training and regulate university instruction regarding race.

A fundamental reality of American First Amendment law is that it is sustained and defended by outsiders, people who are typically unpopular in their own communities. Sometimes that lack of popularity is well earned and enduring. When American Nazis demanded to march through Skokie, Ill., for example, they deserved every drop of the public condemnation they received. But they still retained their constitutional right to speak.

But sometimes lonely stands look better over time. When two Jehovahs Witness sisters refused to say the Pledge of Allegiance in their public school classroom during World War II, they were decidedly unpopular. But their courage resulted in one of the most remarkable statements of constitutional principle in American history, from the Supreme Courts 1943 ruling in West Virginia State Board of Education v. Barnette: If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion, or force citizens to confess by word or act their faith therein.

In a nation as polarized as our own, the definition of outsiders can vary wildly, depending on where they live. In one community, conservative Christians may dominate, and be tempted to censor speech they dislike, to protect children or defend the common good. In other communities, those same Christians will find their own speech under fire as hateful or discriminatory.

The consequence is an odd legal reality, an artifact of our divided times. Christians and drag queens in different jurisdictions and in different courts are both protecting the First Amendment from the culture wars. Theyre both reaffirming a foundational principle of American liberal democracy: that even voices on the margins enjoy the same civil liberties as the powerful and the popular.

In his majority opinion, Justice Gorsuch stated the case well. In this case, he wrote, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance. The state does not possess such power. It must not possess such power. Otherwise the culture wars will consume the Constitution, and even our most basic rights to speak or not speak will depend on whether we can gain and keep political control. That is not the vision of American pluralism, and it is not the vision that will sustain a united, diverse American republic.

Read the original:
Opinion | How Christians and Drag Queens Are Defending the First Amendment - The New York Times

The First Amendment was once an indispensable tool for protecting the rights of the marginalized. Throughout the 1950s and 60s, subversive artists and anti-war dissidents invoked it to neutralize state efforts to muzzle their voices. Civil rights groups and unions used it to invalidate laws enacted to criminalize protest and intimidate activists. Its no exaggeration to say that, without the shield the First Amendment provided, many progressive legislative endeavors would have been strangled in the cradle.

The Roberts Court, however, has turned that shield into a wrecking ball, using the First Amendment to take aim at the very laws that were enacted to protect the vulnerable.

303 Creative v. Elanis is but the latest swing of the wrecking ball. In that case, a 6-3 majority held that a Colorado anti-discrimination law that required a conservative Christian website designer to sell a wedding website to a gay couple violated the First Amendment prohibition against compelled speech. Per the majority: selling such a website expresses an implicit endorsement of same-sex marriage, and a state may never force someone who provides her own expressive services to abandon her conscience and speak [the states] preferred message instead.

The decision represents a sea change in First Amendment jurisprudence. As Justice Sotomayor wrote in a heated dissent, with this decision, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.

To be clear, the argument that anti-discrimination laws impermissibly compel speech is not new. Private schools resisted desegregation mandates on the grounds that such commands forced them to promote the belief that racial segregation is desirable. The Supreme Court rejected those arguments. Companies in the 1970s challenged laws requiring the equal admission and treatment of women on the grounds they altered the organizations character and message. The Supreme Court rejected those arguments as well. To paraphrase Justice Oliver Wendell Holmes famous utterance, just as my right to swing my fist ends where your nose beings, a bigots right to express their views used to end when it bumped up against the rights of minorities to enjoy equal access to education, employment, and the marketplace. That principle has now been upended.

Yet, the outcome of 303 Creative was also entirely predictable for those who have followed the Roberts Courts multi-decade hijacking of the First Amendment to further the conservative movements agenda.

Among the first victims of this courts First Amendment jurisprudence was campaign finance laws. In its 2010 decision, Citizens United, the Supreme Court held, for the first time, that corporations have the same rights to engage in political speech as individuals and nullified key limits on corporate spending, thereby ushering in the era of Super-PACs and dark money in politics. The court then shredded regulations designed to stop the mega-rich from buying elections. Among the laws it struck down were the so-called Millionaires Amendment that raised contributions caps for candidates who faced opponents rich enough to self-finance their campaign; a program that provided public matching funds to candidates who, after agreeing to abide by campaign limits, were outspent by opponents who raked in unlimited private money; and a Watergate-era law limiting the total amount of money an individual could contribute in an election cycle.

The idea that unlimited money might distort the political process, encourage corruption, or allow the rich to drown out the voices of the less well-off was dismissed as speculative, quaint, or irrelevant. Spending is speech, the court explainedand these laws unfairly penalized the rich for robustly exercising their First Amendment right to speak through their ample bank accounts.

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Then the court came for medical privacy, siding with data-miners and pharmaceutical marketers who challenged a Vermont law that prohibited the sale of prescribing data to those groups without the prescribers consent. The law was supported by a voluminous legislative record showing that unregulated data-mining helped marketers manipulate doctors into prescribing unnecessary drugs and drove up health care costs. Nonetheless, the court held that, because the prohibition on data selling singled out data-miners and marketers, it engaged in improper viewpoint discrimination.

To be clear: the viewpoint being discriminated against was, buy my drugs. Reading the majority opinionwhich proclaimed that allowing the plaintiffs speech was a necessary cost of freedom youd be excused for thinking that the suppressed speech was high-brow political discourse, not a baldly transactional plea for business.

In 2018, the court used the First Amendment to strike down a law that public unions relied on to fund their activities and maintain membership levels. The law in question required non-union members who enjoyed the benefits of union representation to pay fair share fees to reimburse the union for its services. The Supreme Court had upheld that precise scheme four decades prior. But in Janus v. AFSCME, the court upended that precedentand the laws of half the statesby holding that the law compelled employees to subsidize private speech by unions, in violation of the First Amendment. With hyperbolic flare, Justice Samuel Alito quoted Thomas Jefferson: to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.

The Janus litigation was cooked up by conservative, anti-labor thinktanks to encourage free-ridingthe logic of the suit being: if all public employees get the main benefits of union membership, but only actual members have to pay fees, few will bother joining at all. And the strategy has worked: according to most recent estimates, Janus has resulted in a 20 percent drop in public union membership.

In the same term, in NIFLA v. Becerra, the court invoked the First Amendment to keep women in the dark about the availability of state-provisioned reproductive care. At the center of the dispute was a California law designed to protect women from being manipulated or misled by pro-life crisis pregnancy centers. Multiple investigations had shown that these centers used deceptive practices to dissuade women from getting abortions: unlicensed facilities posed as medical centers, and their staffdressed in white lab coatsscared unsuspecting women by claiming (falsely) that abortions increased the risk of breast cancer. In response, California passed a law requiring all centers to post a notice stating that California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. If the center was unlicensed, it would also have to post a notice stating that it was not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.

These notices did not express opinions; they expressed facts. They did not announce a view about abortions advisability, only on its availability. Still, the court found that the law ran afoul of the compelled speech doctrine. Writing for the majority, Justice Clarence Thomas held that by requiring the centers to give information about abortionthe very practice that petitioners are devoted to opposing the notice alter[ed] the content of the centers speech. The majority was equally unforgiving of the unlicensed notice provision, deeming it unduly burdensome and wholly disconnected from Californias informational interestnever mind the extensive legislative record attesting to the need for the precise information contained in the notice.

303 Creative is the logical continuation of this trend. It ignores the contextthe tragic history and continuing discriminationthat necessitated Colorados law in the first place. And it adopts an absolutist, almost fetishistic view of First Amendment that turns free speech into a trump card, real-world consequences be damned.

The court dresses these rulings in lofty admonitions about the evils of viewpoint discrimination and the sinful and tyrannical nature of compelled speech. But what the court is really doing is constitutionalizing its own, hyper-conservative viewpointone which sympathizes with the rich who robustly exercise their First Amendment right to speak through their wallets, even ifor perhaps becausesuch untrammeled expression effectively silences those with lesser means. It is a First Amendment jurisprudence which shows exquisite sensitivity to the psychic distress of the pro-life activists forced to inform vulnerable women about their reproductive options and the Christian website designer made to serve gay clientele, but a total disregard for the injuries suffered by women deprived of medical care or the stigma and humiliations felt by those who are refused service based on their sexual orientation.

A constitutional guarantee meant to constrain the state from trampling on the vulnerable is, before our eyes, being turned into a tool to entrench powerful interests and upend state laws enacted to protect the marginalized. As Justice Elena Kagan wrote in her Janus dissent, The First Amendment was meant for better things.

Read more:
The Roberts Supreme Court turns the First Amendment into a wrecking ball. - Slate

On the last day of its recent term, the Supreme Court decided 303 Creative v. Elenis. In my view, the Courts disposition was correct. But it was rendered more difficult by confusion over how the Constitutions First Amendment uses the terms the freedom of speech and the freedom . . . of the press.

As explained below, 303 Creative should have been treated as a press case, not as a speech case. If it had been so treated, the discussion of 303 Creatives commercial nature would have been unnecessary.

Background of the Case

Lorie Smith owns 303 Creative, a Colorado company that sells custom designs for web sites. (303 was Colorados original telephone area code.) Ms. Smith wanted to expand her business into designing wedding sites. However, she is a Christian, and she holds the view traditional among Christians, Jews, and Muslims that same-sex marriages violate Gods law.

Ms. Smith knew that the Colorado Civil Rights Commission has been very aggressive in enforcing its version of the Colorado Anti-Discrimination Act (CADA) against others of her faith. Readers may recall the Supreme Courts 2018 decision in the Masterpiece Cakeshop case, where the Court chastised the Commission for its anti-religious bias.

As a resident of Colorado, I am dismayed at the authoritarian turn this formerly libertarian state has taken on a wide range of issues. By way of illustration, in 303 Creative, both the Court of Appeals (which ruled for the state) and the majority opinion by Justice Neil Gorsuch (also a Coloradan) flagged the states official policy in this area: to crush all dissent from people like Ms. Smith. The CADAs purpose and history, Gorsuch wrote, also demonstrate how the statute is a content-based restriction . . . . . Eliminating such ideas is CADAs very purpose.

Moreover, as Gorsuch noted more obliquely, Colorado has expanded its expression-suppression mission far beyond traditional civil rights categories. CADA now privileges certain voluntary behaviors previously seen by most people as anti-social, including gender expression and outr hair styles.

The Commercial Problem

Much of the dispute in 303 Creative centered on the commercial nature of Ms. Smiths activity. The state argued (as paraphrased by Justice Gorsuch), this case involves only the sale of an ordinary commercial product and any burden on Ms. Smiths speech is purely incidental. Similarly, Justice Sonia Sotomayors dissent emphasized 303 Creatives commercial nature. She distinguished earlier rulings in favor of free speech by noting that the prior cases involved the rights of nonprofit expressive associations.

However, the Court held that the commercial nature of the firm was not dispositive because Ms. Smith does not seek to sell an ordinary commercial good but intends to create customized and tailored speech for each couple.

Modern First Amendment Law

Current free speech jurisprudence is mostly a product of the Courts 20th century First Amendment decisions. Those decisions relied very little on how the Founders understood the Amendments terms. Instead, 20th century Justices seem to have relied more on instinct and their own recent precedents. Where the First Amendment is concerned, that practice continues among most of the current Justices, as exemplified by this terms decision in Counterman v. Colorado.

Unfortunately, the lack of connection between modern jurisprudence and the original meaning of the First Amendment creates serious problems. I have written previously of the unnecessary confusion in modern anonymity/donor privacy cases. As explained below, another product of this lack of connection is the varying levels of protection afforded commercial and non-commercial writings.

Freedom of the Press

Of course, members of the founding generation were unfamiliar with electronic broadcastingthat is, radio, television, and the internet. But they were very familiar with the important distinction between (a) speaking directly and (b) speaking through a medium.

During the Founding-era, freedom of speech invariably referred to in-person communication. Protection for freedom of speech applied in legislative and other assemblies, in orations, and in verbal discourse between individuals.

By contrast, the law of freedom of the press (also commonly called liberty of the press) protected communication through media. The nature of the medium didnt matter: It could be a newspaper, an op-ed, a letter to the editor, a written circular, a poster (broadside), a sign, a leaflet, a book, or a pamphlet. The law of press freedom protected the publisher, editor, distributor, and author.

There were recognized legal limitations on both freedom of speech and of the press. However, the limitations applicable to one did not necessarily apply to the other. This was because of differences between speaking directly and speaking through a medium. For example, ones anonymity was protected when one spoke through a medium, but not when one spoke directly.

Additionally, it was more difficult to recover damages for spoken slander than for printed libel. The reason was explained this way: A defamatory statement made in person dissipated into air, but a defamatory statement communicated by a medium was preserved, often resulting in dissemination across distances of space and time.

Despite technological advance, these differences remain relevant today. An in-person insult is heard only by those present, and is not preserved in permanent form. Defamation on a website, written advertisement, or even a radio interview may be preserved indefinitely and be seen or heard by millions of people.

At one point, Justice Gorsuch seemed to acknowledge the continuity of principle: A hundred years ago, Ms. Smith might have furnished her services using pen and paper. Unfortunately, he did not recognize the implications of his comment. He added that Those services are no less protected speech today because they are conveyed with a voice that resonates farther than it could from any soapbox. Instead, he should have added that those services were, and are, protected as freedom of the press because, being communicated through a medium, they are conveyed with a voice that resonates farther than it could from any soapbox.

Commercial/Non-Commercial

During the Founding-era, freedom of the press was understood to protect for-profit activities and communications as much as any other activities and communications. Most newspapers were, after all, for-profit businesses. The protection extended to commercial messages. As Thomas Bradbury Chandler, a prominent American Tory, wrote in 1775, A free press is the channel of communication as to mercantile and public affairs (emphasis added). A March 28, 1788, article in a New Hampshire newspaper described the value of newspapers largely by referring to their business content:

In [newspapers] we find many interesting thoughts in . . . agriculture, and commerce . . . The merchant learns the general state of trade, hears the prices current . . . thus he and the insurer are mutually advantaged . . . . The artist hears of employ[ment] or presents an advertisement of the various things he has for sale . . . .

The First Continental Congress also officially emphasized the very broad sweep of liberty of the pressfar beyond mere politicsin its Letter to the Inhabitants of the Province of Quebec (1774).

Indeed, in three decades of Founding-era study, I have never come across any suggestion that commercial communication was entitled to less protection than other forms of expression.

Conclusion

Once we understand that Ms. Smith was exercising freedom of the press rather than freedom of speech, the for-profit status of her firm becomes irrelevant. Even today, we know that government may not compel a for-profit newspaper, for example, to publish unwelcome content. The Supreme Court so held in Miami Herald v. Tornillo.

By parity of reasoning, government may not compel Ms. Smith to create websites for same-sex weddingsor for any other kind of wedding she may object to.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. To join the debate, please email us atinfo@fedsoc.org.

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With an Originalist Understanding of the First Amendment, the 303 ... - The Federalist Society