Category Archives: First Amendment

Updated at 11:50 a.m. ET on September 7, 2022

Fox News is in legal trouble. The media giant is facing lawsuits from two voting-machine companies over segments it aired with Donald Trump surrogates parroting the former presidents made-up allegations that the 2020 presidential election had been thrown by compromised voting machinesinsinuations that Trumps own advisers told him did not hold water.

Defending their client, Fox Newss attorneys have relied heavily on free-speech doctrines established by the 1964 landmark Supreme Court case New York Times v. Sullivanspecifically, the standard of actual malice. This standard says that when it comes to public figures, a speaker must know their statements are false or display reckless disregard for whether the statements are true in order to meet the requirement for defamation. In that particular case, the Montgomery, Alabama, public-safety commissioner, L. B. Sullivan, sued The New York Times over an ad it had published calling for donations on behalf of the civil-rights leader Martin Luther King Jr. Although the ad made some factual errors regarding the police department Sullivan oversaw, the Court ruled that the Times was not liable, because the purpose of the First Amendment was to guarantee that debate on public issues should be uninhibited, robust, and wide-open, and that such debate may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

This standard has protected the right of Americans of all political persuasions to make absurd, hyperbolic, and sometimes even false statements about their political leaders. This is how it should be. The bar is not unreachable, but it is justifiably high in order to protect public criticism of powerful people. Following former President Trumps calls to open up our libel laws, gutting the free-speech protections of Times v. Sullivan has become a right-wing cause, presumably because some conservatives imagine that the fake-news liberal media will be swiftly bankrupted for saying mean things about the smart and handsome Mr. Trump. But the Fox News lawsuits show that conservatives enthusiasm for gutting Times v. Sullivan would leave right-wing media outlets more vulnerable than perhaps they appreciate.

Read: Do you speak Fox?

In a dissent last year, the conservative federal judge Laurence Silberman called for Times v. Sullivan to be overturned, complaining that the Times and The Washington Post are virtually Democratic Party broadsheets and adding that nearly all televisionnetwork and cableis a Democratic Party trumpet. This is false, but even if it were true, one strains to see what relation it has to defamation law. Like most frustrated news consumers, Silbermans complaints regarding the mainstream press are about framing, emphasis, and story selectionnot facts.

Silbermans position is nevertheless shared by some very powerful people. Three years ago, Justice Clarence Thomas wrote in a concurring opinion that the Supreme Court should overturn New York Times v. Sullivan and rethink the actual-malice standard. That case was a particularly compelling one for his point: It involved a woman who had sued Bill Cosby for libel after the disgraced comedians lawyer accused her of lying about being assaulted by Cosby. The Court declined to take the case, leaving in place a lower-court decision in Cosbys favor on the grounds that the plaintiff had become a limited-purpose public figurea term describing an otherwise private citizen who finds themselves at the center of a public controversyand that the attorneys statements therefore did not meet the actual-malice standard.

New York Times and the Courts decisions extending it were policy-driven decisions masquerading as constitutional law, Thomas wrote. If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.

In a 2021 case, Thomas reiterated his call for Times v. Sullivan to be overturned and was joined by Justice Neil Gorsuch, who lamented the spread of disinformation on social media and argued that if the actual-malice standard had force in a world with comparatively few platforms for speech, its less obvious what force it has in a world in which everyone carries a soapbox in their hands. Its always interesting to see which contemporary developments originalists decide are relevant to their constitutional interpretations.

Thomass and Gorsuchs arguments are more compelling and sophisticated than Silbermans, but its also clear that Silberman is closer to the mainstream conservative view on the subject, which is that Times v. Sullivan should be overturned in order to discipline the liberal media.

Joshua A. Geltzer and Neal K. Katyal: The true danger of the Trump campaigns defamation lawsuits

The First Amendment guarantees a free press to foster a vibrant trade in ideas. But a biased press can distort the marketplace, Silberman wrote. And when the media has proven its willingnessif not eagernessto so distort, it is a profound mistake to stand by unjustified legal rules that serve only to enhance the press power. Again, this is an editorial, not legal, analysis, an expression of desire to punish the press for its misbehaviora rather ironic frame for a so-called defense of free speech. None of Silbermans concerns, to the extent you take them seriously, would be addressed by overturning Times v. Sullivandiverging ideological interpretations of the same facts would persist without a stronger liability shield. In Britain, where there is no actual-malice standard, major media outlets are widely considered to be more explicitly aligned by ideology and hardly free of distortions.

The irony of Trumps complaints about the permissiveness of American libel law, and right-wing jurists support for gutting the actual-malice standard, is that many conservative media outlets would suffer without itperhaps more than the mainstream press outlets they hope to bring down. Those institutions would survive. But all the right-wing shitposters calling for the medias downfall? Might not be so great for them.

The loss of the concept of a limited-purpose public figure would make things very hard for outlets and personalities who thrive on finding new targets for opprobrium. Beyond the legal trouble facing Fox News, the parents of a child murdered in the Sandy Hook massacre recently successfully sued Alex Jones, the far-right proprietor of Infowars who counts Trump among his admirers, after he alleged that the incident was a false flag operation orchestrated by the government. The verdict was taken in conservative circles as an attack on free speech, notwithstanding the insistence that it should be easier to sue the media for saying things that are false. In 2020, a federal judge dismissed a defamation lawsuit against the Fox News host Tucker Carlson filed by a woman who claimed to have had an affair with Trump. Carlson accused her of extortion on his show, but the judge dismissed the suit on the grounds that the host is not stating actual facts about the topics he discusses and is instead engaging in exaggeration and non-literal commentary.

The actual-malice standard has enabled the creation of an alternate universe of conspiratorial disinformation about political figures conservatives opposesuch as the birther myths around Barack Obama and the dark, elaborate fantasies concocted about the Clintons. In plain English, conservative media have gotten used to being able to say outrageous things without any adverse legal consequences and have built devoted audiences under the umbrella of this protection. Tens of millions of Americans trust and believe the things they hear from these outlets, viewing nonconservative media sources as untrustworthy. These outlets have abused that trust by consciously misleading the population about serious matters, such as the risks of the coronavirus pandemic and the origins of the Capitol riot. Again, this is their First Amendment right, however infuriating their conduct might be.

David French: Free speech for me but not for thee

Even with the current high standard, somesuch as Jonesstill face legal consequences for their actions. But without that standard, conservative outlets that engage in similar conduct would be much more likely to face legal threats. On the other hand, if Britain offers any example, mainstream media outlets such as The New York Times and The Washington Post would survive Times v. Sullivans demise. These organizations can afford strong legal representation and, crucially, maintain much stricter rules about what they publish. That does not make them infallible or above criticism, and it doesnt mean that they never make libelous errors. But their institutional standards ensure that the overwhelming majority of the time, their coverage is rooted in facts. Many of their detractors in the right-wing press are much more reliant on, to use a technical term, bullshit.

Overturning Times v. Sullivan would undoubtedly have a chilling effect on free speech. We can infer this simply from the era before Times v. Sullivan, during which public officialsmany of them segregationistsused libel law to stifle criticism of their official conduct, a practice that weighed heavily on the unanimous majority in Sullivan. Fox Corporations chief executive is suing an outlet in Australia that has been critical of the networks coverage of the 2020 election, taking advantage of the absence of speech protections it is eagerly availing itself of in the United States. This is how good legal representation works, but it also reflects an approach to free speech that is more mercenary than principled.

Even if they were unsuccessful in intimidating large outlets such as the Times or the Post, wealthy and powerful people would likely find it much simpler to use the threat of litigation to silence those without deep pockets or institutional support. It would be little trouble to target the average person shooting their mouth off on social media, but the media outlets that conservatives hate would continue to exist and continue to cover public affairs in a way they disapprove ofthat is, without sounding like the Trump advisers at Fox News.

Without the actual-malice standard, the strong would likely find it easier to silence the weak. It is not hard to understand why the justices, powerful people who are frequently subject to withering public criticism, might be sympathetic to that outcome. But conservatives who believe that the end of the actual-malice standard would fatally injure the mainstream outlets they loathe should probably be careful what they wish for.

This article originally misidentified the entity whose chief executive is suing an outlet in Australia.

Here is the original post:
The Right-Wing War on Free Speech Could Backfire - The Atlantic

Dive Brief:

Former President Donald Trump took an interest in protecting free speech and religious freedoms on college campuses.

In 2019, Trump signed an executive order that tied federal research dollars to colleges protecting First Amendment rights or their own free inquiry policies, depending on whether they were public or private institutions, respectively.

The free inquiry rule the administration issued in 2020 is a follow-up to that executive order.

The regulation forbids public colleges from denying religious student groups the same rights such as funding as other clubs because of beliefs, practices or policies informed by their faith.

It also outlines how religious institutions can claim exemptions to Title IX, the law banning sex-based discrimination at federally funded schools.

Critics said many elements of Trumps free inquiry rule were redundant, as public institutions must already follow the First Amendment and higher education as an industry values principles of free expression.

The Education Department said in August 2021 that it intended to rescind parts of the rule, but officials did not specify which ones. The department expects public colleges to ensure they protect constitutional rights, Michelle Asha Cooper, acting assistant secretary for postsecondary education and deputy assistant secretary for higher education programs, said at the time.

We urge public colleges and universities and their students to engage thoughtfully on these matters, holding paramount the goal of creating environments in which all students have the opportunity to learn and thrive, Cooper said in a statement.

The Office of Management and Budget, or OMB, must review a rule before its put forth to evaluate whether a federal agency considered the consequences of the regulation, good or bad. Then, the public can offer feedback before its finalized.

Likely, a delay at OMB doesnt signal the Biden administrations draft free inquiry rule is in jeopardy, said Terry Hartle, senior vice president of government relations and public affairs at the American Council on Education, the sectors top lobbying group.

The administration has many policy matters on its plate, Hartle said, including recent action to cancel up to $10,000 in student loans for borrowers earning under $125,000 a year, and up to $20,000 for those in the same income bracket who received federal Pell Grants in college.

Read more here:
Where is the Education Department's proposed religious liberty and free inquiry rule? - Higher Ed Dive

A source inside Project Veritas leaked the diary of Ashley Biden to a reporter at a conservative news outlet, according to Noel Fritsch, publisher of that outlet, National File, which first published the diary in October 2020, just ahead of the presidential election.

Project Veritas founder James OKeefe had suspected an employee of his organization leaked the document, the New York Times previously reported, but Fritschs confirmation firmly establishes the links in a chain that began in a Florida drug rehabilitation center and led to a predawn raid of OKeefes home last year.

The diary was left behind by Biden, the daughter of President Joe Biden and first lady Jill Biden, at a friends house during a rehab stint in Delray Beach, Florida. Aimee Harris, who subsequently lived in the house, discovered the diary, and with Robert Kurlander concocted a Coen brothers-level plan to sell it. Harris and Kurlander recently pleaded guilty to the charge of conspiracy to commit interstate transportation of stolen property, with prosecutors confirming the diary as authentic. Kurlander, according to prosecutors, is now cooperating with an ongoing investigation, and a key question being probed is whether Project Veritas understood the diary was legally obtained (as the organization has asserted) or whether it had any role in instructing Harris and Kurlander to steal further personal items of Bidens in order to allow it to authenticate the diary. (The question could hinge on whether Biden abandoned the items, or was storing them at the friends home, and planned to return. Prosecutors allege the items were stored, not abandoned.) No charges have been filed against Project Veritas or its employees.

Fritsch said that OKeefe, as far as he knew, did not authorize the leak. Its kind of ironic, we had to sort of Veritas Veritas in order to get the thing broken and out into the news, he told The Intercept. He said he wanted to speak with The Intercept in order to raise the alarm about the press freedom implications of investigating Project Veritas. During the Bush administration, he noted, journalists routinely denounced efforts to expose the sources of reporters. Were doing the same thing now, but were not hearing the phrase chilling effect at all, he said.

The American Civil Liberties Union and the Reporters Committee for Freedom of the Press have both expressed skepticism about the propriety of the investigation into Project Veritas, and in particular the raid of OKeefes home, warning of its press freedom implications. Press freedom advocates who differ with Project Veritas politically, and who are queasy about the deceptive tactics the group infamously deploys, have also voiced opposition to the raid.

This is just beyond belief, University of Minnesota law professor Jane Kirtley, a former executive director of the Reporters Committee for Freedom of the Press, told Politico. Im not a big fan of Project Veritas, but this is just over the top. I hope they get a serious reprimand from the court because I think this is just wrong.

The diarys most newsworthy moments are suggestive but stop short of making any concrete allegations against Ashley Bidens father. In the most-often quoted passage, she writes, Hyper-sexualized @ a young age. What is this due to? Was I molested. I think so I cant remember specifics but I do remember trauma I remember not liking the woolzacks house; I remember somewhat being sexualized with [a cousin]; I remember having sex with Friends @ a young age; showers w/my dad (probably not appropriate). Being turned on when I wasnt supposed to be.

In general, it is legal for a news outlet to publish stolen documents when they are of public concern. Many whistleblowers, after all, do not have legal authority to leak the documents they are making public. Barring journalists from publishing stolen documents threatens First Amendment rights and gives the government tremendous power to censor the press. But it is also generally understood that journalists may not participate in any crime to obtain information, or ask anyone else to. So, if Project Veritas encouraged the pair to steal more items, the outlet could face charges. But if Project Veritas thought the items were abandoned by Biden rather than stolen, they could be protected by the First Amendment.

Project Veritas is in the crosshairs despite making the decision not to publish the diary. The guy didnt even break it and hes getting treated like an enemy of Stalin, said Fritsch. OKeefe, in an email to staff obtained by the New York Times, argues that publication of the diary would have been seen as a cheap shot and backfire against Project Veritas. On October 24, the National File published excerpts of the diary, and followed up two days later by publishing the full version. The outlet explained at the time, National File obtained this document from a whistleblower who was concerned the media organization that employs him would not publish the materials in the final days before the presidential election.

National Files readership is largely made up of an extreme right-wing audience, many of whom, Fritsch said, have been banned or suspended from Big Tech platforms like Facebook and Twitter. Still, it has managed to break some major stories, including being the first to publish an image from former Virginia Gov. Ralph Northams medical school yearbook, showing a man in blackface beside a man in a Ku Klux Klan robe.

The Times also reported that the Project Veritas whistleblower adds that his media organization chose not to release the documents after receiving pressure from a competing outlet. Fritsch said the competing outlet referred to a conservative outlet that the Project Veritas employee told him urged Project Veritas not to publish the diary.

Federal prosecutors say that Project Veritas paid $40,000 to obtain the diary, a pursuit that continued even after OKeefe made the decision not to publish, according to prosecutors.

Harris and Kurlander hadinitially hoped to sell the diary to the Trump campaign and brought it to an event in Florida in an effort to show it to Donald Trump Jr. The Times reported that Trump Jr. advised them to turn it into the FBI. Instead, they reached out to Project Veritas. Fritsch said the plot to get the diary to Trump Jr. was not well thought out. If theyre in some sort of seaside, boat-in-the-water fundraising event of whatever, Don Jr. is going to jump in the dang canal if somebody tries to push a diary like this in his hands, he said.

Project Veritass attorney, Paul Calli, declined to comment.

Continued here:
A Project Veritas Employee Leaked Ashley Biden's Diary - The Intercept

INDIANAPOLIS On Saturday, members of a white nationalist group marched throughout downtown, including on Monument Circle during the Indianapolis Labor Fest.

It has not yet been made clear why the group was marching, and it hasn't been posted under the action section on the group's website yet. Though, the group did post videos of its demonstrations in Indianapolis on one of its Telegram channels.

On Monday, Indianapolis Mayor Joe Hogsett delivered a firm message to the group.

"You are unwelcome in Indianapolis if your message is going to be purely about division, disunity and hate for one another. I speak not just for Indianapolis but for America as a whole," Hogsett said.

While the hope of Hogsett and many others is that the group will stay out of the Circle City, they are well within their First Amendment right, according to the Federal Bureau of Investigations.

In a statement to WRTV, they said:

(The FBI) is committed to protecting the First Amendment rights of all Americans to express their views peacefully during demonstrations. We also have a responsibility to ensure public safety and will not tolerate violence or destruction. We are committed to working closely with our local, state, and federal law enforcement partners to stop any individuals who intend to commit violence or criminal activity under the guise of carrying out a demonstration."

Mayor Hogsett explained that the city, nor the authorities, knew of the groups plans for Saturday.

The randomness and fear created by the march beg the question of what to do when you encounter a protest of the sort.

According to Rachel Carroll Rivas, Interim deputy director of research and analysis for the Intelligence Project with the Southern Poverty Law Center (SPLC), these marches are always privately planned and unannounced.

This allows for the group to spread its message without disagreements forming along their route.

People need to be prepared to counter these dangerous ideas, especially among young men, particularly young white men that theyre luring into their movement, Rivas said.

Rivas said the march is a reminder of the importance of having knowledge that people with extremist ideas exist.

I encourage caretakers, media, really just anyone to be informed about these ideas, and be prepared to counter them with youth, with friends, with family members, Rivas said. Because theyre really seeking to manipulate people into supporting these ideas and giving the air of acceptance.

SPLC and the Polarization and Extremism Research and Innovation Lab (PERIL) have put together a guide with videos about how to speak to your children and loved ones when you come across extremist groups.

Their guide, which can be found here, comes in English, Spanish, German and Portuguese.

WRTV did not reach out to the Patriot Front for comment.

Go here to see the original:
'You are unwelcome in Indianapolis' Mayor condemns white nationalist group that marched on Saturday - WRTV

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Negotiators for the Senate's gay marriage bill face key questions on what it will look like and how they'll pass it as they continue to meet in an effort to advance the legislation before the midterms.

Among the top issues, some Republicans are asking for an amendment to address religious conscience protections, which may be needed for the bill to clear the Senate's 60-vote filibuster threshold. Additionally, the chamber's limited floor time means the bill is competing with other priorities for votes and debate.

A Capitol Hill Democratic source told Fox News Digital Tuesday that senior Senate Democrats had been discussing the possibility of including the bill in a must-pass government funding package, called a continuing resolution. In theory, this could save floor time by combining multiple Democratic priorities and enticing some reluctant Republicans who want to avoid a government shutdown to vote for the bill.

However, Sens. Tammy Baldwin, D-Wis., and Rob Portman, R-Ohio, original sponsors of the Senate marriage equality bill, on Tuesday cast some doubt on the idea though they did not outright reject it.

GAY MARRIAGE BILL, OTHER MAJOR ISSUES SIT IN LIMBO AS SENATE RETURNS FROM AUGUST RECESS

Sen. Rob Portman is one of the lead sponsors of a Senate bill to codify gay marriage rights on a national level. (Bill Clark/Pool via AP)

"We're gonna talk about it tomorrow with the group. I will withhold judgment except to say that I'm skeptical," Portman told Fox News Digital Tuesday. "It's better to deal with it on the merits, I think."

"Attaching the legislation to a CR is not the senator's preferred path as she would like to see it taken up sooner," a spokesperson for Baldwin's office said. "The senator's goal is to pass the Respect for Marriage Act, and she will do whatever it takes to get there."

Senate Majority Leader Chuck Schumer, D-N.Y., promised a vote on gay marriage but has not committed to a timeline, emphasizing the importance of time-consuming appeals court confirmations. A continuing resolution would need to pass before the end of September.

Senate Majority Leader Chuck Schumer speaks with reporters following a caucus lunch at the Capitol, July 19, 2022. (AP Photo/J. Scott Applewhite)

Details of a possible amendment on religious protections are also still undecided.

This is a priority for some Republicans who are open to voting to codify gay marriage rights but also want to ensure the bill does not inadvertently harm Americans' First Amendment rights. It could also risk upsetting some Democrats if they think it goes too far,

Baldwin said senators expect to finish work on that in the next few days.

"There's been some great conversations about an amendment to address the many concerns of those who would like to get to yes," Baldwin told reporters. "People have been reviewing language. We'll be releasing that publicly later this week."

Supreme Court Justice Clarence Thomas's opinion in Dobbs v. Jackson Women's Health Organization, questioning the Supreme Court's precedent on gay marriage, Obergefell v. Hodges, spurred congressional action to protect same-sex marriage on a federal level. (Drew Angerer/Getty Images)

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A spokesperson for Baldwin's office also said she "will meet with her Republican colleagues this week to compare notes on their outreach efforts to build more support from Senate Republicans."

Congressional efforts to pass legislation protecting gay marriage rights followed a solo Supreme Court opinion by Justice Clarence Thomas in June in the case Dobbs v. Jackson Women's Health Organization, which he said the court should "reconsider" its precedent on the issue.

No other justices joined Thomas, but that opinion became a major campaign issue for Democrats and spurred lawmakers of both parties to craft legislation that would require states to recognize same-sex marriage even if that precedent eventually falls.

Tyler Olson covers politics for Fox News Digital. You can contact him at tyler.olson@fox.com and follow him on Twitter at @TylerOlson1791.

Excerpt from:
Senate gay marriage bill negotiators to meet on how to advance the legislation before midterms - Fox News

The Tennessee Registry of Election Finance is set to audit former Senate District 27 candidate Gary Humble to determine whether his campaign illegally coordinated with his nonprofit organization Tennessee Stands.

Registry board member Tom Lawless, a Nashville attorney, called for the investigation Wednesday based on his general knowledge of the situation.

Theres some smoke there, which usually means theres something underneath that causes it to rise. And I just want you all to dig into it, Lawless said.

Humble, a Williamson County resident and political activist, narrowly lost to Senate Majority Leader Jack Johnson of Franklin in the Aug. 4

Lawless also raised questions about Humbles group, Tennessee Stands, which has a 501(c)(4) federal tax status, and whether it is operating as a political action committee without registering with the state. Humble is executive director of the organization, which is intertwined with his political activity.

If it doesnt meet the pure definition of a PAC, if it is supporting or assisting through in-kind contributions or other contributions to the candidate, thats a problem, Lawless said.

Theres some smoke there, which usually means theres something underneath that causes it to rise. And I just want you all to dig into it.

Tom Lawless, Nashville attorney and member of the Tennessee Registry of Election Finance

But regardless of whether it is found to be a political action committee, because it operates with nonprofit status, Tennessee Stands would be required to register and file reports with the Registry of Election Finance under a new state law tracking activity of those organizations within two months of an election. Humbles also has another group with nonprofit status, which would be required to register if it engages in certain activity, according to the Registry.

Humble responded Wednesday by saying, They can audit away.

He said that Tennessee Stands spent only $500 on a Facebook ad, and that occurred before July 1.

Humble also asked rhetorically whether the Registry board plans to audit Johnsons campaign to see if illegal coordination happened with campaign coordinator Ward Bakers PAC and the Tennessee Conservatives PAC, which formed in May and sent negative mailers about Humble calling him a grifter and Democrat in disguise.

It had the same treasurer, Les Williamson, as PACs for Sens. Marsha Blackburn and Bill Hagerty and a PAC attacking Humble in Williamson County, according to Humble.

The Tennessee Star also reported in July that Humble had no conflict of interest with Tennessee Stands on his mailer. He said a Freedom Matters podcast incorporated into the mailer is simply an invitation to see where he stands on issues, even though the podcast site shows it is presented by Tennessee Stands.

The Registry board declined to take up a complaint against Humble filed by Williamson County voter Pete Pancione for making an illegal campaign expenditure, instead sending it to Williamson County District Attorney Kim Helper for investigation. Pancione made the complaint after receiving a Humble election mailer that didnt state who paid for the material, which is required by law.

Registry board member Hank Fincher noted Wednesday it is campaign finance 101 to provide the financial source of election materials.

Humble told the Tennessee Star the paid for disclaimer was left off the mailer unintentionally and that he reported it to the DAs Office.

Yet another complaint has been filed against Humble alleging he is acting as a lobbyist without filing with the state. Humble protested against legislation requiring groups with 501c status to file expenditure reports if their campaign spending hits $5,000 within 60 days of an election.

The legislation is designed to check the flow of so-called dark money into state campaigns. Humble and groups that opposed the legislation said it would only insert government more into the legislative process, putting a damper on their First Amendment rights.

They call it a transparency bill. I call it the incumbent protection act, Humble said.

The Registry board also has authority to subpoena records, including banking documents, but it wasnt prepared to take that step Wednesday, though members discussed it.

Read more:
Registry of Election Finance to audit Humble for potential illegal coordination with PAC-like group Tennessee Lookout - Tennessee Lookout

How is traditionalism similar to and different from originalism? And how does it relate to what some originalists call "liquidation"?

These questions are complicated by the capaciousness of originalism, which now encompasses many theories with diverse commitments. To narrow things down, we might compare originalism and traditionalism on the specific issue of the role (if any) of enduring practices.

Among originalists, there are disagreements about what evidence counts to ascertain the meaning of unclear text. Originalists who reject practices altogether are far from traditionalism. Those who accept practices as some evidence of original meaning are closer, though no originalist theory (so far as I know) takes enduring practices to be the primary determinants of meaning and law. None is the same as traditionalism.

As for endurance, one key difference concerns pre- and post-enactment practices. For traditionalists, such practices, their age, longevity, and density, will be centrally important, while for some originalists they will be irrelevant. Even for originalists who assign practices some role, the relative weighting will be different: practice-friendly originalists will assign more weight to practices at enactment than to pre- or post-enactment practices, while this is not so for traditionalists. Alternatively, when a self-identified originalist interpreter does weigh pre- and post-ratification practices heavily, that approach may drift toward traditionalism.

Some originalists consider a particular sort of practice-based evidence in what they call the "liquidation" of the original meaning of the text. Caleb Nelson describes a process by which judicial interpreters give unclear textual provisions one of several permissible constructions post-ratification, thereby "settling" meaning for subsequent interpreters. William Baude has elaborated the Madisonian concept of liquidation, in which three things are necessary to settle meaning: "indeterminacy, a course of deliberate practice, and settlement." For Madison, a "deliberate practice" had to be adequately deliberatedrationalizedand had also self-consciously to concern constitutional interpretation rather than mere "sheer political will." And as for liquidated "settlement," there is a sub-element of public sanction or ratification of the liquidated meaning.

In her Bruen concurrence, Justice Barrett observed that the Court should achieve greater clarity about what method it is using: "Scholars have proposed competing and potentially conflicting frameworks for this analysis, including liquidation, tradition, and precedent. The limits on the permissible use of history may vary between these frameworks (and between different articulations of each one)." Justice Barrett is right. Traditionalism is not liquidated originalism (in the paper, I use "liquidated originalism" to describe an originalism that integrates liquidation).

First, traditionalism includes pre-ratification practices. Liquidated originalism, insofar as it is liquidated, has nothing to say about those. (It may have something to say about them insofar as it is originalist, but it will do so for reasons that differ from traditionalism.) If the age, longevity, and density of pre-ratification practices that extend through the post-ratification period (the period where traditionalism and liquidation overlap) are relevant, as the Court has said they are, it is traditionalism that offers a complete account of why and how.

Second, liquidated originalism aims at the settlement of textual meaning, which generally occurs (when it occurs) in a constrained time frame. That is because to settle original meaning, the liquidation must be evidence of original meaning, which weakens as it is removed from the ratifying moment. In the case of the Necessary and Proper Clause, within 40 years of enactment. In the case of the Spending Power, within less than 10-15 years. Traditionalism's emphasis on historical longevity as probative of meaning is no real part of liquidated originalism. A related difference concerns liquidated originalism's subject, which is the text's semantic meaning, rather than the constitutional law relating to the text. Liquidated originalism concerns the former, not the latter, while traditionalism concerns both.

Some examples. The enduring post-ratification practices of regulating off-premises signs, the possession of handguns in contexts threatening an "affray," abortion, and so on, could be called part of the semantic meaning of the First Amendment, the Second Amendment, and the Due Process Clause, respectively. But it would be more accurate to call them determinants of the constitutional law of these clauses. That is, liquidated originalism's short time horizon and its aspiration to settle meaning befits its narrow subjectthe linguistic meaning of the text. Traditionalism's long time horizon and its focus on the age, longevity, and density of practices befits its broad subjectthe law of the Constitution (which includes, but is not exhausted by, the text's meaning).

Furthermore, certain parts of constitutional law may have little to do with the liquidation of the semantic meaning of the text, and more to do with enduring practices. Consider the "anti-commandeering" doctrine, which prohibits the federal government from compelling states to enact or enforce federal law. The law of anti-commandeering does not much depend upon the liquidation of the semantic meaning of constitutional text (the Tenth Amendment, for example). It is instead formed by legal decisions allowing or disallowing states to engage in a host of concrete practices based on a historical understanding of the relevant powers and immunities of the state and federal players. Or consider the doctrine of state sovereign immunity, which the Court said in Alden v. Maine is not fully determined by the semantic meaning of the Eleventh Amendment, but instead by the "history" of "custom and practice."

A third difference concerns the sources of the relevant settling practices. Liquidated originalists tend to look to the federal judiciary (or state high courts) and the federal legislature, with illustrious figures like James Madison, Alexander Hamilton, or John Marshall often taking the settling role. Theirs are centralized practices of elite actors operating at the apex of American political power. State and local governments, and the people in their communities, have a subordinate role in "sanctioning" these practices. But their own practices, distributed across geographic time and space, spread widely across social class and rank, are not relevant. Traditionalism includes the enduring practices of national actors, though even here, the focus might be on comparatively minor figures and events in our national history. But by contrast with liquidated originalism, it also values the traditions of non-national persons and entities.

Furthermore, traditionalism, unlike liquidated originalism, depends upon the concurrence of diffuse sources of practice. When the Court in Bruen details the concurrence of 19th century state and territorial firearms regulations, observing outliers and achieving a collective sense of the regulatory landscape, it is aggregating the diffuse practices of individuals and localities across the nation to understand the Second Amendment's scope. It is not focusing on who prevailed in a disagreement between Madison and Hamilton at one discrete moment in history so as to settle constitutional meaning thereafter.

Fourth, and finally, liquidation's emphasis on "deliberated," rationalized, and self-consciously constitutional interpretive practices is different from traditionalism. This rationalistic feature of liquidation in some ways follows from liquidation's preferred sourceselite legal actors on the national stagewhose liquidations must be re-ratified and re-rationalized by subsequent elite actors. Yet why, one might ask against the traditionalist, should a practice that cannot be justified on thoughtful, rational grounds continue to endure?

The traditionalist response is that "thoughtful" interpretation in constitutional law has sometimes meant interpretation that favors and entrenches the preferences of the educational and cultural elites in American society. When the Court speaks of traditions being "deeply rooted in the Nation's history," it is adopting a constitutional approach more suited to the non-elites of American society. The sagacity of a people's diffuse practices and ways of life across time and geographic space has its own merits and claims. These are not less rational than the claims of elites (here, Burke was a force more for ill than good). Indeed, one might adopt a liquidationist locution in arguing that they are a convincing public "sanction" or reasoned avowal of constitutional meaning and law.

Read more from the original source:
Traditionalism Rising, Part II: Comparing (Liquidated) Originalism and Traditionalism - Reason

With great power comes great competitionor so Alphabet CEO Sundar Pichai half-convincingly argued Tuesday.

In an interview at Vox Medias Code Conference, the chief of Google and YouTube made the case that his iconic brands already face stiff challenges from well-established rivals and aspiring upstarts. The comments came as Google faces multiple investigations and lawsuits, each of which allege that the Alphabet unit has employed anti-competitive practices to build and maintain its market share in various tech sectors.

The thing about being in tech is the competition comes from nowhere, Pichai said. None of us were talking about TikTok three years ago, so I think you have to be open-minded. He cited classic rivals to Googles core business, such as Amazon, Microsoft, Apple, and Facebook, as well as upstarts like TikTok, which is putting pressure on Googles YouTube video business. He even cited competitors from China, such as Tencent and Alibaba.

Pichais claim reveals a strategic framing of Alphabets relationship with competition, one that fails to differentiate between external threats and internal practices. In doing so, Pichai does little to reassure Alphabet shareholders that the company will easily fend off antitrust regulators circling the company.

While its a bit unfair to extrapolate Pichais full thoughts on competition from a two-minute snippet during an interview, its telling that the Alphabet leader chose to focus on the quantity of adversaries. By invoking the names of several tech mammoths and the fastest-growing app on the market, Pichai implies that Alphabets business faces more than enough competition.

And in some respects, Pichai has a point.

While Google remains far-and-away the leader in ad revenue, pulling in $34 billion more than Meta, Amazon, and Microsoft combined in the first half of 2022, some of its tech brethren are ever-so-slowly snagging some market share. Amazon and Microsoft both reported ad revenue gains of 20% to 25% in the first six months of the year, while Alphabet posted 16% growth. Apple doesnt divulge marketing revenues, but Bloomberg reported last month that the iPhone maker wants to more than double its current ad sales total.

Theres also no denying the success of fast-ascending short-form video app TikTok. Insider Intelligence estimates suggest YouTube users in the U.S. spent 13% more time on the app in 2021 when compared to 2019, while time on TikTok jumped 46% during that stretch. TikToks rise also forced YouTube to develop its own short-form video feature, YouTube Shorts, which Alphabet hasnt been able to monetize as well as its legacy platform.

Yet antitrust regulators arent arguing that Alphabet faces insufficient competition from deep-pocketed peers. Rather, theyre building cases around Alphabets own behavior over the past several years.

When the Department of Justice and 11 state attorneys general sued Google in 2020, government officials cited the Alphabet units entry into a series of exclusionary agreements that collectively lock up the primary avenues through which users access search engines, and thus the internet. As an example, DOJ and state prosecutors cited Googles multibillion-dollar deal to serve as the iPhones de facto search engine.

Similarly, European Union regulators are probing whether Google essentially paid off Meta to abandon efforts to build competing ad technologies and shun Google competitors. If the allegations are proven, the deal would restrict and distort competition in the already concentrated ad tech market, to the detriment of rival ad serving technologies, publishers and ultimately consumers, EU officials said in March.

The Department of Justice also is expected to sue Google later this year amid allegations that the unit abuses its role as both a broker and auctioneer of digital advertisements to steer itself business at the expense of rivals, The Wall Street Journal reported. While the lawsuit hasnt been filed, Alphabet has already offered to split up its ads business into more than one company, the Journal reported.

In all three instances, notice that the allegations center on Google foreclosing competition, not Google lacking competition.

It would be naive to expect Pichai to admit to anticompetitive practices on a conference stage, particularly with litigation pending on multiple fronts. At the same time, rattling off a list of rivals does little to bolster faith in the fairness of Googles practices. Its certainly not enough for domestic and foreign regulators.

Want to send thoughts or suggestions forData Sheet?Drop me a linehere.

Jacob Carpenter

Still the same cost.Apple unveiled its latest line of iPhones on Wednesday, debuting a base and pro version with an unchanged price from the previous iteration. Company executives largely highlighted advanced camera and battery life features on the new iPhone 14 models, which will arrive in mid-September. The phones will go on sale at a time when many consumer electronics companies are seeing a slowdown in sales, though Apple reported no significant slippage in the first half of the year. Apple leaders also introduced upgrades to the company's smartwatch and wireless headphones.

Better luck after next year. A top Samsung executive warned Wednesday that a slowdown in semiconductor sales likely will extend into 2023, adding to growing concerns about an extended slump, The Wall Street Journal reported. Kyung Kye-hyun, Samsungs co-CEO and semiconductor unit chief, said during a media briefing that the outlook on chip sales doesnt really seem to show a clear momentum for much improvement in 2023. Semiconductor executives throughout the industry have forecasted a rough second half of 2022 amid a pullback on consumer electronics spending.

A split decision. A judge ruled Wednesday that Elon Musk can use a Twitter whistleblowers claims about major security lapses in his defense against a lawsuit demanding that he complete a $44 billion acquisition of the company, Bloomberg reported. However, the judge also denied Musks request to delay the start of a trial in the case, which is expected to begin in mid-October. Musk has argued that revelations provided last month by Twitters former head of security, Peiter Mudge Zatko, offer more evidence that the company violated terms of a takeover agreement.

Giving up the fight. Industry associations representing many of the largest U.S. telecommunications providers have dropped their legal objections to Maines strict internet privacy law, potentially opening the door for other states to enact similar statutes, The Associated Press reported Tuesday. The law, first enacted in 2020, forces internet service providers to obtain permission from customers before sharing or selling user data collected by the companies. Groups representing internet providers argued the mandate violated their First Amendment rights.

Very much made in China. Breaking up with Chinaor at least changing to a more-open relationshipwill be hard to do for Apple. The New York Times reported Tuesday that the iPhone makers budding efforts to shift manufacturing to other Asian nations would require uprooting deep ties to China, where the company contracts with an extensive web of assemblers and component makers to push out its products. Sources told the Times that Apples latest iPhone, unveiled Wednesday, relied more than ever on Chinese partners. At the same time, Apple is exploring options for moving manufacturing to India, Vietnam, and other countries in the region amid worsening U.S.-China relations and frustration with the republics COVID policies.

From the article:

The critical work provided by China reflects the countrys advancements over the past decade and a new level of involvement for Chinese engineers in the development of iPhones. After the country lured companies to its factories with legions of low-priced workers and unrivaled production capacity, its engineers and suppliers have moved up the supply chain to claim a bigger slice of the money that U.S. companies spend to create high-tech gadgets.

The increased responsibilities that China has assumed for the iPhone could challenge Apples efforts to decrease its dependency on the country, a goal that has taken on increased urgency amid rising geopolitical tensions over Taiwan and simmering concerns in Washington about Chinas ascent as a technology competitor.

Bidens $270 billion semiconductor bill to battle China isnt that big a deal, Goldman says. Unless theres some kind of huge international conflict, by Tristan Bove

125 founders reveal how theyre cutting costs to prepare for the downturn, by Jessica Mathews

Torrential rains are forcing CEOs in Indias Silicon Valley to ride tractors to work, by Saritha Rai and Bloomberg

How A.I. technologies could help resolve food insecurity, by Danielle Bernabe

Ethereum Classic sees double-digit jump as merge begins and miners seek new home, by Taylor Locke

Deepfakes are stealing the show on Americas Got Talent. Will they soon steal a lot more too?, by Jeremy Kahn

A lesson in cybersecurity. Its back-to-school season for hackers, too. The Associated Press reported Tuesday that cybercriminals launched a Labor Day weekend attack on Los Angeles Unified School District, the nations second-largest district, causing a shutdown of the organizations information technology systems. Los Angeles Unified becomes the biggest district to date hit by hackers, who have increasingly taken over schools online systems and demanded payment in exchange for relinquishing control. However, the superintendent of Los Angeles Unified said the hackers havent sought money from the district, and the attack appeared limited to business-related information. There was no cyber snow day, either, as classes were back in session Tuesday.

Continued here:
Alphabets CEO says the company has plenty of competition. Why thats not enough to satisfy antitrust regulators - Fortune

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IrelandUruguay, Eastern Republic ofUzbekistanVanuatuVenezuela, Bolivarian Republic ofViet Nam, Socialist Republic ofWallis and Futuna IslandsWestern SaharaYemenZambia, Republic ofZimbabwe

Continued here:
Dubois: Regarding the First Amendment and free speech - Valley Breeze

By Barbara Wiedemann

Its back on campus!

First Amendment Day is an annual campus-wide, daylong event designed to both celebrate the First Amendment and explore its role in the lives of students at the University of North Carolina at Chapel Hill. Observed during National Banned Books Week, the Carolina tradition was first celebrated in 2009 the year Kanye West interrupted Taylor Swift during her VMA video of the year acceptance speech and the UNC womens soccer team won their 20th NCAA national title.

After a pandemic-related virtual format in 2020 and 2021, the celebration is back on campus Wednesday, Sept. 21, and UNC Center for Media Law and Policy co-faculty chairs David Ardia,Reef C. Ivey II Excellence Fund Term Professor of Law at UNC School of Law, and Amanda Reid, Associate Professor at UNC Hussman School of Journalism and Media, have packed a powerful punch with events that reflect contemporary conversations and up-to-the-moment scholarship.

Events include a student debate in the Freedom Forum; a virtual trivia contest (Question: who said I know it when I see it, about pornography? Answer: U.S. Supreme Court Justice Potter Sewart in 1964 Jacobellis v. Ohio); a banned books reading; and what should prove a thought-provoking keynote speech entitled Free Speech and Public School Students Lessons From a Cursing Cheerleader and South Parkby University of Florida Professor Clay Calvert, who literally wrote the book: Mass Media Law, 22nd Edition (with UNC Hussman graduates Dan Kozlowski 06 (Ph.D.) and Derigan Silver 09 (Ph.D.).

Calvert says, Undergraduates should come to learn about the First Amendment speech rights of public high school students something many of them were just a few years ago. Its a particularly important issue in the social media era when we've witnessed students being punished for their off-campus, online tweets, posts and snaps. Its also important because some principals overreact and try to silence anything that arguably might harm the reputation of their schools.

In addition, three panel discussions offer a veritable plethora of professional expertise on three important aspects of the First Amendment, including:

U.S. and European Approaches to Regulating Social Media Platforms, with legal and social media experts from Carolina and the University of Helsinki. Moderated by Anne Klinefelter, UNC Law professor and director of the law library.

Get 1A Smart: Having Your Say & Staying Out of Court, with nationally known media lawyer and litigator Hugh Stevens 65, 68 (J.D.) joined by journalists from The Assembly, WRAL-TV and UNC Center for Innovation and Sustainability in Local Media. Moderated by Duke Laws First Amendment Clinics Amanda Martin and Ben Rossi.

Weaponizing First Amendment Rhetoric, which asks the question Should free expression be what we value beyond everything else in public life, namely progress, equality and inclusion? Four panelists from the UNC Center for Information, Technology and Public Life tackle the topic and consider alternative ways of thinking about expression to reclaim our shared public life. Moderated by CITAP research fellow Nanditha Narayanamoorthy.

All events are free and open to the public. Check firstamendmentday.unc.edu for the most up-to-date information.

Follow this link:
Carolina community invited to engage with renowned scholars on First Amendment Day 2022 - UNC Hussman School of Journalism and Media