Category Archives: First Amendment

John Stockton usually won on the court during his illustrious career with the Utah Jazz, but the Basketball Hall of Famers recordincourt took a hit last week when a judge dismissed his First Amendment lawsuit against Washington Attorney General Bob Ferguson and Washington Medical Commission executive director Kyle Karinen.

U.S. District Judge Thomas Riceruledthat Stocktons case, which he brought with two physicians and the Childrens Health Defense (a nonprofit chaired by presidential candidate Robert F. Kennedy Jr.), was meritless.

The group sued in March, seeking a judicial declaration that the commissions investigations into licensed medical professionals who publish disputed claims about COVID-19 violate the First Amendment and due process rights. Under Washington law, the commission is charged with regulating physicians to assure public confidence in the practice of medicine. It investigates allegations of misrepresentation, fraud, or dishonesty.

Stockton, 62, is not a medical professional and is not regulated by the commission. However, through podcasts and interviews, he has become a public voice on COVID-19. Stockton has criticized COVID-19 vaccines and objected to mask mandates. Stocktons refusal to wear a mask led his alma mater, Gonzaga University, to deny him entry to basketball games in 2022 on grounds he wouldnt follow a school policy.

A resident of Spokane, Stockton says he advocates for all Washingtonians who share his contention that people have the First Amendment right to hear the public soapbox speech of Washington licensed physicians who disagree with the mainstream Covid narrative. The NBAs all-time leader in assists and 10-time all-star argued the commissions prosecution of physicians for offering public opinions not in harmony with the commissions approved messaging amounts to governmental silencing of dissenting views.

Rice found several flaws inStockton et al. v. Ferguson & Karinen.

First, he reasoned the claims are unripe, meaning not yet appropriate for judicial review. The two doctors in the case have not (yet) been sanctioned by the commissionmeaning there is no penalty for the judge to assess.

Although Stockton insists the commissions investigation into physicians has a chilling effect on free speech and will dissuade many physicians from providing their candid opinions, Rice underscored that Stockton and the physicians continue to publicly champion their views. Their advocacy, Rice wrote, tends to cut against any argument speech has been actually chilled.

Rice also reasoned he must abstain from reviewing the claims. Under whats called the Younger Doctrine (from the 1971 U.S. Supreme Court caseYounger v. Harris), a federal court should refrain from considering demands for judicial declarations when there are ongoing state proceedings. The physicians who sued with Stockton are still under investigation by the commission.

The judge added that even if Stocktons lawsuit was ripe and not subject to abstention, it doesnt offer a plausible claim. Washington and other states, Rice stressed, have a long-recognized authority to regulate medical professionals and that authority does not run afoul of the First Amendment.Even if that regulation touches on speech, Rice stressed the First Amendment doesnt bar the states regulation of medicine and professions.

Stockton can appeal to the U.S. Court of Appeals for the Ninth Circuit.

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John Stockton Loses Case Over Regulation of COVID Speech - Sportico

The U.S. Senate voted Tuesday to approve a bill that would ban TikTok nationwide unless Chinese parent company ByteDance sells its stake in the popular app. The development will likely result in a court battle between the U.S. and TikTok, which argues that the legislation violates the First Amendment and if TikTok loses that fight, theres a real chance it could be shut off for Americans.

The bill now moves to the desk of President Biden, a supporter of the TikTok divest-or-ban measure who has said he will sign it into law. U.S. lawmakers have expressed deep concern about TikToks Chinese ownership, suggesting that the Chinese communist regime could use the app to spy on Americans or use it to promulgate pro-China propaganda.

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The Senate approval of the TikTok ban bill was tied to a $95 billion package of foreign aid to Ukraine, Israel and Taiwan. The Senate, by a 79-18 vote, OKd the bundled legislation after the House passed the resolutions Saturday and sent them on an expedited basis to the Senate for approval on an up-or-down vote.

TikTok will file a legal challenge once the bill is signed into law, Michael Beckerman, TikToks head of public policy for the Americas, wrote in a memo to company staff over the weekend. The legislation is a clear violation of the First Amendment, the exec wrote: This is the beginning, not the end of this long process. Beckerman also criticized the TikTok divest-or-ban measure as an unprecedented deal worked out between the Republican Speaker [Mike Johnson] and President Biden.

Ahead of the vote, Sen. Mark Warner (D-Va.), chair of the Senate Intelligence Committee, delivered comments on the Senate floor Tuesday afternoon about the national security threats posed by ByteDances ownership of TikTok. Passage of the bill goes a long way towards safeguarding our democratic systems from covert foreign influence, he said, saying that Chinese companies like ByteDance dont owe their obligationto their customers, or theirshareholders, but they owe it tothe PRC [Peoples Republic of China] government.

This is not an effort to take your voice away I would emphasizethis is not a ban of the service you appreciate, Warner said, addressing TikTok users. Regular Americans arent privy to classified briefings members of Congress have received about TikTok from intelligence services and the risks it poses as an entity operating at the direction of a foreign adversary, Warner said. We hope that TikTok will continue under new ownership American or otherwise. It could be bought by a group from Britain, Canada, Brazil, France. It just needs to no longer be controlled by an adversary that is defined as an adversary in U.S. law.

Sen. Maria Cantwell (D-Wash.), chair of the Senates Commerce, Science and Transportation Committee,suggested TikTok and ByteDance are weaponizing data and AI to spy on American citizens, the military and government personnel, including journalists covering the company. (In 2022, ByteDance said it fired four employees for misconduct after the company found they accessed TikTok data on several users, including two reporters.)

Sen. Ed Markey (D-Mass.) spoke out against the TikTok ban bill before the final vote, saying the more pressing clear and present danger is the harm kids face from social media apps more broadly, including from U.S.-based companies.

I dont deny that TikTok poses some national security risks, Markey said. TikTok has its problems. No. 1, TikTok poses a serious risk to the privacy and mental health of our young people. But he said the bill likely would result in widespread censorship, and he suggested that the bills supporters object to liberal political viewpoints popular on TikTok. Instead of suppressing speech on a single application, we could be addressing the root of the mental health crisis by targeting Big Techs pernicious, privacy-invasion business model of teenagers and children in our country, Markey said.

TikTok has said the bill, if it becomes law, would infringe the free-speech rights of its 170 million U.S. users and devastate the estimated 7 million American businesses on the platform. It claims TikTok contributes $24 billion to the U.S. economy annually.

The TikTok divest-or-ban legislation has been opposed by the ACLU and other advocacy groups.

This is still nothing more than an unconstitutional ban in disguise, Jenna Leventoff, senior policy counsel at the ACLU, said in a statement Tuesday prior to the Senate vote. Banning a social media platform that hundreds of millions of Americans use to express themselves would have devastating consequences for all of our First Amendment rights, and will almost certainly be struck down in court.

Because of its Chinese ties, TikTok has been a political football in the United States for years, as well as in other countries (including India, where its been banned since June 2020). TikTok has prevailed in challenging other laws in the U.S. seeking to ban the app. Last December, afederal judge blockedMontanas first-of-its-kind statewide ban of TikTok, ruling that the law likely violated the First Amendment. An attempt by the Trump administration toforce ByteDance to sell TikTok or face a ban also was found unconstitutionalby federal courts on First Amendment grounds.

Under the Protecting Americans From Foreign Adversary Controlled Applications Act bill, Apple and Googles app stores and web hosting services in the U.S. would be barred from hosting any foreign adversary controlled application. Specifically, it would prohibit distribution of TikTok unless ByteDance divests its ownership in the app within nine months of becoming law, with an additional 90-day extension possible at the presidents discretion if a path to executing a qualified divestiture has been identified. Johnson, the House speaker, incorporated the TikTok ban (revised with the extended divestiture timeline) into the emergency supplemental appropriations bill in a bid to win Republican support for the package of foreign aid.

Backers of the TikTok bill argue that it doesnt restrict free speech, saying it only requires apps to be owned by a company that isnt subject to the control of an adversarial foreign government. As a precedent, the legislations proponents point to the 2020 sale of dating app Grindr by Chinese gaming company Beijing Kunlun Tech Co. to a group of U.S.-based investors, a transaction forced by the U.S. government over concerns about the privacy of the apps users.

Per the text of the bill, legal challenges to the Protecting Americans From Foreign Adversary Controlled Applications Act may be filed only in the U.S. Court of Appeals for the District of Columbia Circuit.

If TikTok is unsuccessful in getting the divest-or-ban law overturned, it is unlikely that ByteDance would sell its ownership stake and that the app would effectively become outlawed in the U.S. Chinese officials havesaid the government would firmly opposeany forced sale of TikTok, which would represent a technology export and be subject to the governments approval. Youre not going to be able to force ByteDance to divest, James Lewis, SVP at the Center for Strategic and International Studies,toldthe New York Times last month.

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Senate Passes TikTok Ban Bill, Setting Up Legal Battle Between App and U.S. on First Amendment Issues - AOL

On Tuesday, the Senate voted overwhelmingly to pass an aid package for Israel, Ukraine, and Taiwan that also includes a measure to force the divestment of TikTok. Observers expect final passage of the bill sometime in the next day or so; President Biden has indicated he will sign it.

When that happens, Congress will have passed the first significant regulation against a tech platform since the backlash against social media began at the end of 2016. TikTok has told employees that it considers the bill a violation of its First Amendment rights, and that it intends to challenge the laws implementation in court.

Today, lets talk about how that legal fight is likely to play out. Interviews with legal scholars suggest that the government will have a difficult time proving that its effort to ban TikTok is constitutional. But First Amendment cases are often unpredictable, they say and its possible that the governments appeals to national security could ultimately lead the Supreme Court to uphold the law.

The First Amendment prohibits the government from passing laws abridging the freedom of speech. With some narrow exceptions, if US elected officials decide they dont like the content on a given social app, the First Amendment prevents them from banning the app outright.

That matters in the TikTok case because Congress members have openly criticized the content it hosts. Its a propaganda machine that promotes disinformation under the influence of our nations greatest foreign competitor, wrote Rep. Mike Flood, R-Neb., in an op-ed last year.

And they arent only concerned about propaganda from China. Members of Congress have also repeatedly accused TikTok without evidence of pushing pro-Hamas content related to the war in Israel. (TikTok has denied manipulating recommendations in this way.)

The Supreme Court has previously held that Congress cant ban foreign propaganda, including propaganda from China. In Lamont vs. Postmaster General, the court considered a law that required the postmaster general to detain communist political propaganda sent through the mail. The Post Office was then required to send the addressee a card asking whether they wanted the propaganda to be delivered, in what the court ultimately ruled had an unconstitutional chilling effect on speech.

If Congress cant even require people to fill out a form to receive propaganda, the logic goes, it seems even less likely that the Supreme Court would find that Congress could ban TikTok over the still unsupported claims that it is deliberately amplifying pro-China or pro-Hamas content.

Its a fundamental principle of the First Amendment that the government cant ban speech on the basis that they dont like it, or that theyre convinced its going to convince people of ideas they dont like, said Evelyn Douek, an assistant professor of Law at Stanford Law School and First Amendment scholar, who pointed me to the Lamont case.

For that reason, the government probably wont rest its arguments on the idea that it has a right to ban propaganda.

What about data privacy? Another core argument made by Congress in deliberations over the TikTok ban is that the Chinese government could force ByteDance to turn over user data for surveillance or other nefarious purposes.

But the government will likely struggle to make a convincing argument that banning TikTok is necessary for protecting Americans in this way, scholars said.

If the Chinese government wants data on Americans, they dont need TikTok to get it, wrote Alan Z. Rozenshtein, an associate professor of law at the University of Minnesota, in a piece for Lawfare on Monday. They dont even need to steal it. The United States is a notorious outlier among developed nations for its lack of a national data-privacy law. This means that the Chinese can just buy from data brokers and other third-party aggregators much of the same information that they would get from having access to TikTok user data.

The data privacy argument may strike courts as particularly weak given the dramatic restriction on speech that will come with banning an app used by 170 million Americans.

Its the worst imaginable means of trying to protect users privacy, because its going to shut down an entire vibrant platform or require its divestment, said Genevieve Lakier, a law professor at the University of Chicago. And even if ByteDance were willing to divest from TikTok and preserve the platform as it exists today, forcing it to do so could also be considered an unconstitutional violation of its speech rights, she said.

If we think the owners own the platforms in part because they want to articulate certain kinds of views, this is effectively saying shut up, she said.

That leads to the argument that the government is likely to make the loudest in court: that banning TikTok is necessary to protect national security. China is an adversary of the United States and may one day seek to exploit its control over a major news and information network like TikTok, the argument goes; therefore, Congress has a compelling interest in preventing it from doing so.

Of all the arguments the government could make, this one is most likely to resonate with the Supreme Court, Rozenshtein said in an interview.

The government cant just say national security and do whatever it wants," he said. "But courts including the Supreme Court just give a lot more leeway to the government in First Amendment cases about national security.

What arguments might the government make? Rozenshtein expects to see discussion of Chinas active manipulation of domestic media, including sweeping censorship and propaganda efforts. The State Department last year published a comprehensive report on Chinas efforts to reshape the global information ecosystem, which found that it employs a variety of deceptive and coercive methods.

At the same time, Congress has shared no public evidence that ByteDance or TikTok have manipulated recommendation algorithms to spread pro-China propaganda or otherwise undermine national security.

For the ban to stick, the government first has to prove that it isnt about the content of the speech of TikTok. Assuming the courts accept that argument, they would likely apply what is known as intermediate scrutiny to the governments case that this is a privacy and security issue.

And in that case, Lakier said, the government would typically have to provide evidence of a threat large enough to justify eliminating a significant platform for speech.

First Amendment cases have been clear for a hundred years now that even when regulating speech in a content-neutral way, the government needs to have really good evidence for what its doing, she said. The thing about intermediate scrutiny is that is that we dont take the government at its word it has to show its work.

Another point TikTok has in its favor is Project Texas, the companys $1.5 billion effort to move all US user data to the United States and put US-based Oracle in charge of auditing it for compliance. Courts may see that as a good-faith effort to address Congress data privacy and security concerns, and the government officials that negotiated Project Texas never said publicly why it was not sufficient.

I would not be surprised if TikTok goes into court waving Project Texas around and the government is going to have to have a good answer, Rozenshtein said.

The history of First Amendment jurisprudence would suggest that Congress effort to ban TikTok could very likely be overturned. And yet all of the scholars I spoke with said they found this case very difficult to predict. First Amendment cases are unpredictable in general, they said, and the current Supreme Court has often shown an active disregard for precedent.

National security tends to be a context where fundamental constitutional rights unfortunately do give way, and we do see courts bow to the pressure, Douek said. So there absolutely is uncertainty. Even if Im 110 percent confident that the precedents say one thing, that doesnt make me anywhere near 100 percent confident that thats what the court will say.

If it is upheld, Rozenshtein told me, it will likely come down to the fact that the Supreme Court is generally loath to undercut Congress on issues of foreign policy.

But doing so might have an even more dramatic effect than Congress is intending here, Lakier said: creating a precedent that foreigners do not enjoy the protections of the First Amendment.

Are we really going to say that foreign speakers dont have any rights? she said. These are all the questions that this tees up.

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How the TikTok ban could survive a court challenge - Platformer

The U.S. Court of Appeals for the Eighth Circuit recently affirmed the U.S. District Court for the Western District of Missouris denial of summary judgment based on qualified immunity to two individual defendants who had been sued for First Amendment retaliation under Section 1983. The decision hinged on whether a genuine issue of material fact existed as to whether the plaintiffstwo former police officersspoke as citizens on matters of public concern when they complained in writing to the mayor about the police chief.

The case, Noon v. City of Platte Woods, Missouri, 94 F.4th 759 (8th Cir. 2024), is the second federal lawsuit involving the termination of appellees Thomas Noon and Christopher Skidmore, both former police officers for the citys police department. During their employment, Noon and Skidmore raised several concerns about Police Chief James Kerns, culminating in their sending a complaint packet to Mayor John Smedley and the citys board of aldermen. The complaint packet included a list of complaints about Kernss leadership, noted over 180 violations of the police departments standard operating procedures, and concluded by stating, It is our belief that our oath of office to serve the community requires this action.

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Eighth Circuit Affirms Denial of Qualified Immunity to Mayor and Police Chief of Missouri City in First Amendment ... - Law.com

Get the Facts: How far does the First Amendment go?

Updated: 5:30 PM EDT Apr 23, 2024

The First Amendment, arguably the most crucial amendment in the Bill of Rights, sets protections for free speech, religion, press, assembly, and petition, but the extent of these protections is often misunderstood."Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances," the amendment reads.This essentially guarantees that the government can't dictate what citizens believe or control what they say, empowering every American to voice their opinions. The freedom of religion, often referred to as the "separation of church and state," prevents the government from establishing a state religion, similar to the Church of England.While Judeo-Christian language is deeply woven into American history and even its currency, the Supreme Court ensures that laws are constitutional and do not favor or discriminate against any particular religion. Freedom of speech and press are closely linked. Generally, the government can't penalize citizens for what they say or write, even if it's offensive, such as hate speech or non-verbal protests like flag burning.The founders, having just broken free from a monarchy, ensured that citizens have the right to expose a corrupt or tyrannical government. Criticizing government leaders, protesting, or filing a lawsuit to push for changes are all protected under the freedoms to assemble and petition.However, not all speech is protected. "True threats" and "fighting words" are not protected by the Constitution. The press also can't print harmful information knowing it's false due to libel laws. The government can't dictate what you say, but it can restrict where and when you say it.A common misunderstanding is that the First Amendment protects individuals from consequences in private spaces or workplaces. However, private entities can still enforce rules against certain speech or actions they disagree with. The freedoms outlined in the First Amendment primarily provide protection from the government, not from private consequences.

The First Amendment, arguably the most crucial amendment in the Bill of Rights, sets protections for free speech, religion, press, assembly, and petition, but the extent of these protections is often misunderstood.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances," the amendment reads.

This essentially guarantees that the government can't dictate what citizens believe or control what they say, empowering every American to voice their opinions. The freedom of religion, often referred to as the "separation of church and state," prevents the government from establishing a state religion, similar to the Church of England.

While Judeo-Christian language is deeply woven into American history and even its currency, the Supreme Court ensures that laws are constitutional and do not favor or discriminate against any particular religion. Freedom of speech and press are closely linked. Generally, the government can't penalize citizens for what they say or write, even if it's offensive, such as hate speech or non-verbal protests like flag burning.

The founders, having just broken free from a monarchy, ensured that citizens have the right to expose a corrupt or tyrannical government. Criticizing government leaders, protesting, or filing a lawsuit to push for changes are all protected under the freedoms to assemble and petition.

However, not all speech is protected. "True threats" and "fighting words" are not protected by the Constitution. The press also can't print harmful information knowing it's false due to libel laws. The government can't dictate what you say, but it can restrict where and when you say it.

A common misunderstanding is that the First Amendment protects individuals from consequences in private spaces or workplaces. However, private entities can still enforce rules against certain speech or actions they disagree with. The freedoms outlined in the First Amendment primarily provide protection from the government, not from private consequences.

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Get the Facts: How far does the First Amendment go? - WMTW Portland

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One of the First Amendments bedrock protections for a free press and free expression is the rule that an individual lawfully exercising their constitutional rights cant be held liable for a strangers uncoordinated decision to break the law nearby. As weve often emphasized, that rule is a critical safeguard for reporters who attend tumultuous events where violence may break out political rallies, say, or mass demonstrations in order to bring the public the news. But a recent order of the U.S. Supreme Court gives reason for concern that that longstanding First Amendment principle may no longer have five votes among the justices.

The case, Mckesson v. Doe, has come before the justices before. In it, a Louisiana law enforcement officer alleges that he was struck by a rock while policing a Black Lives Matter demonstration but rather than sue the individual who threw the rock, the officer chose to sue activist DeRay Mckesson for organizing the protest in the first place. Under the Courts 1982 decision in NAACP v. Claiborne Hardware, that should have made for an easy case: Before you can be held liable for another persons decision to break the law at a demonstration, the First Amendment requires proof that you authorized, directed, or ratified the strangers violent conduct. By insisting on that evidence of bad intent, the Constitution provides breathing room for lawful newsgathering and expression, ensuring that journalists can go about their jobs at chaotic events without fear that a third-partys unlawful conduct will be imputed to them.

Remarkably, the U.S. Court of Appeals for the Fifth Circuit allowed Does lawsuit to go forward regardless even though Doe never alleged that Mckesson intended his injury on the theory that Mckesson was negligent as to the risk that the protest would turn violent. (As the Reporters Committees Gabe Rottman wrote in a 2018 op-ed for The Washington Post, a similar theory was put to dangerous but ultimately unsuccessful use against journalists in connection with protests against Donald Trumps presidential inauguration in 2017). In 2020, in response to a previous bid by Mckesson to have the Supreme Court hear the case, the justices issued an unsigned order that ordered the Fifth Circuit to ask the Louisiana Supreme Court to clarify whether state tort law permitted Does lawsuit before wading into a question fraught with implications for First Amendment rights. But when the Louisiana Supreme Court answered that state law did, in fact, provide Doe with the grist for a lawsuit, the Fifth Circuit reinstated its conclusion that the First Amendment offered no defense.

Mckesson then turned to the Supreme Court again. The justices weighed the case at seven (!) conferences before weighing in often a sign that some sort of behind-the-scenes haggling is afoot. Last week, the Court ultimately declined to review the case, accompanied by a short statement from Justice Sonia Sotomayor. In carefully neutral language, Sotomayor noted that the Fifth Circuits opinion did not have the benefit of the Courts 2023 decision in Counterman v. Colorado, which reiterated the role that strict intent requirements play in providing breathing room for First Amendment freedom. Mckesson, she suggested, would still have an opportunity to argue to the Fifth Circuit that it should now revisit its earlier decision in light of Counterman.

There may be, then, a narrow path forward for Mckesson. But its an unnerving development all the same that the Court couldnt assemble a majority to reverse the Fifth Circuit outright the outcome Sotomayor may well have spent those weeks trying to build support for. At a time when the prospect of significant protest activity once again ratchets up the legal risk facing journalists who cover civic unrest, the Court cant afford to blink on core First Amendment protections.

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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SCOTUS won't review decision that ratchets up legal risk at protests - Reporters Committee for Freedom of the Press

For in politics, as in religion, it is equally absurd to aim at making proselytes by fire and sword. Heresies in either can rarely be cured by persecution. Alexander Hamilton, Federalist 1

All university-level students should read, study, and discuss The Federalist Papers (178788). This most sacred document of the American founding explains the logic of the Constitution. Its more important than ever to understand that logic because the advent of Artificial Intelligence means that we are rapidly approaching a dystopian singularity that requires serious thinking about individual rights and freedom. For this reason, above all others, the sanctimonious mob that currently tyrannizes academia poses a major risk to Western Civilization. The time is now. Either we learn from the past by taking it seriously, or else we will be consumed by our future. A good exercise is to write an essay that supplements The Federalist Papers for todays citizen. This is one of mine. If you object, then write your own.

Ive already written a basic introduction to the negative logic that is the scientific basis for the Bill of Rights. Consider this lesson an immediate corollary. The First Amendment to the United States Constitution is vital above all the others, and theres a single sociological reason that so much of what we hear in public discourse undermines it.

First, the reasons the First Amendment is vital. The right to believe and say anything is fundamental to the proper functioning of markets and political systems. Mental freedom provides the antifragile underpinnings of commerce and the law. Without competition among a variety of products, services, and ideas, we end up making big decisions without the price signals and public debates that allow us to consider important information.

Think of East Germany or North Korea. Life becomes painful, gray, feeble, and unfixable without prices and ideas. And when that happens, external and internal changes become problematic. Those who control rigid markets and governments dig themselves into negative feedback loops. They grow even more tyrannical because they cant see change as creative destruction. To them, change amounts to apocalyptic suicide. An alternative product or idea can make it obsolete overnight.

In the social sphere, reasoning must operate effectively, even though achieving absolute truth and perfection is impossible. Allowing individuals to think freely and express diverse ideas is essential for this purpose. Similarly, in markets, having a wide range of options contributes to stability, especially when facing creative destruction.

A product or service can almost always be improved upon or substitutedi.e., just as theres no ideal political arrangement, theres no absolutely true or perfect outcome to market competition. But thats precisely why we must keep these active as systemic processes and not end goals. Not all products and services will endure, and when they become obsolete a lot of people will lose their livelihoods and no longer get what they want over the short term. Thats precisely why options are important: so that people can make and do other things and adapt to change more easily. Moreover, in politics, as it is with markets, stagnation can lead to decay and corruption, which accentuates the pain of social and commercial change.

But how do we know finally what is good and proper in government and business?

The answer is that we dont. We cant. If we did, human activity would be meaningless and would just make the world a more loathsome place. We dont intuitively know whats best. Individuals will have opinions. Some individuals will be more right more often than others. But if we merely assume that all human beings can be wrong at least once in life, then we still must discover what is preferable through individual experimentation and comparison.

Now, for the sociological reason, the First Amendment is always under attack: the mob.

Were social creatures. Theres no doubt about that. We need partners, family, and friends. The kindness, communication, and company of others are desirable and keep us sane. We have a tribal instinct wired into us. Sacrifice and cooperation have always been keys to our survival during a crisis. But it goes deeper than that. We even need enemies to coordinate and locate our groups. For these reasons, the social instinct is so intense that when we lack a collective identity, well make one up out of thin air. Its also so strong that when we sense that our group is threatened, it alters how we feel, think, and behave. And perhaps the true tragedy is that the mob instinct has its most powerful effect on successful people. In other words, the very people who, in theory, should be much more inclined to favor rugged individualism and independent thinking are the ones most vulnerable to groupthink.

Its this group instinct thats constantly attacking the First Amendment, threatening and retarding human progress in social, economic, and scientific terms.

Our tribal confirmation bias means truth unavoidably devolves into tyranny at some point. While its true that we need others, its not true that, therefore, others should be allowed to trump our individuality. But they do, and we let them. Look at every major institution in the United States today. Conformity to the most irrational and diabolical ideas is now the norm.

At universities, corporations, and government agencies in the United States, its now routinely expected that people must agree that the accused are guilty until proven innocent, that men can be women if they so choose, and that we must live according to a racial and sexual hierarchy with black homosexual females at the top and white heterosexual men at the bottom. Theres even a convoluted ideology called intersectionality, which attempts to define and promote people by their collective identities rather than their abilities or accomplishments.

America is now the antithesis of itself.

These ideas are dominant at our most respected institutions. MIT, arguably the most advanced university on earth, is plagued by well over 75 DEI administrators. Why? It turns out that, on aggregate, the smarter you are, the more prone you are to accede to the pressure of the group. This does not mean that a few brilliant individuals wont emerge to challenge the status quo. It means that most brilliant individuals will make sacrifices to the tribe in order to assuage their guilt and fear.

Ive listened to some very smart peopleCharles Murray, Richard Brookhiser, Pedro Schwartz, Mark Cuban, and Jonah Goldbergmaintain that Donald J. Trump is bad for America because hes autocratic, corrupt, and ill-mannered. But what they object to is style not substance.

There are a lot of things wrong with Trump. Hes human. However, refusing to see that government officials have targeted him unjustly and, in the process, unwittingly proven his absolute innocence in juridical terms means disregarding the only method we have of assessing such matters. When over thirty highly trained lawyers, including Robert Mueller, Andrew Weissmann, and Rush Atkinsona team that NBC News called the best prosecutors in the businesswere given more money than the Vatican and two years to investigate Trump, they found nothing. All they could say was, we cant prove his innocence. When a team of lawyers with such extreme incentives, skills, and biases resorts to inverting the essence of Western jurisprudencei.e., the principle that citizens are innocent until proven guiltythen, as far as such things can be determined in the public sphere, Trump is the antithesis of corruption. He might be the most pristine president the U.S. has ever had, and all claims to the contrary are most likely deceptive, emotional, and self-interested.

Furthermore, the notion that Trumps disagreeableness disqualifies him from public office ignores the most realistic political advice formulated by everyone from Thucydides to Machiavelli: historians and citizens must evaluate the actions and policies of their leaders and eschew the pretense of fretting about their personal virtues.

What does all of this have to do with the First Amendment?

Well, many very smart people are incapable of reason in politics. Theyve succumbed to the sacred anger of the crowd. Theyre either joining that crowd or appeasing it out of fear or greed, or both. But theyre not thinking logically about the differences between Joe Biden and Donald Trump. Why? Because powerful people are those most at risk of crowd violence. French anthropologist and sociologist Ren Girard wrote multiple books about what he called the scapegoat mechanism, wherein the mob attacks any wrinkle of difference in the social field to which it might attribute the cause of any crisis that throws it into a frenzy.

I call this the Romantic anti-hero effect.

Behind everyones romantic nightmare, from Dr. Frankenstein to Dracula to Dorien Gray, is the perception of evil as weirdness. This explains why so many talented and successful people spout utter nonsense when it comes to politics. Great actors, musicians, scientists, engineers, and even entrepreneurs and financiers feel the weight of the public eye. Thus, they tend to hold political views that they think will placate the mob. Its usually not even conscious. Its just an instinct that ensures their survival.

Recently, Dr. Jay Bhattacharya, an incredibly smart man with whom I agree on just about everything, tweeted that his mother had been watching CNN until 2021 when she saw a report that criticized her son. Dr. Bhattacharya was proud to report that his mother no longer watches CNN because she does not suffer from the Gell-Mann amnesia effect. But with all due respect, here is the problem.

A very smart mans mother, a woman he claims does not suffer from an inability to perceive the propaganda of a major news service, was still watching CNN as late as 2021. In fact, she didnt stop watching CNN until the networks reporters took a swipe at her own son. Very smart people spend so much time in the light of moral rectitude and political certainty that they confuse these for reason (see the movie Poltergeist, 1982).

You might object. You might hold that society must regulate the First Amendment because someone might act on their evil thoughts or the evil thoughts of others. Okay, hurting people is bad. But we punish those who hurt people, not those who express the ideas that might inspire them. This is the only we way we can lay claim to the idea that people should think before they act. Moreover, the definition of suffering is itself part of our problem. To harm the bodies or property of others is wrong. But people will do anything for money and approval. This especially includes false claims to have been hurt by anyone who angers the mob. Further, what people consider an evil idea today might be good tomorrow, and vice versa.

Censuring what we consider evil can only promote tyranny in the end, not alleviate it.

In sum, yes, there will always be moments when the principle of liberty gets elided due to a crisis or a particular case, but we must always reassert that principle. This is what Reagan meant when he said that freedom is never more than one generation away from extinction. And freedom of thought is the most basic principle of all, the one upon which depend the other personal freedoms listed in the Bill of Rights.

This is simply because without the freedom to think and say what we want, sooner or later, well find ourselves unable to defend all the other personal rights. Artificial Intelligence is rapidly approaching the ability to read our minds. By definition, many smart and powerful people will use this technology to offer up all of our rights to the mob as a means of gaining power over and safety from that same mob. And nobody will be allowed to object without tremendous risk to themselves. I find the moral argument for my personal liberty the most compelling one. Who are you to make me confess or conform? However, given that individuals shape the world by developing the ideas, tools, and practices that enhance it, the true stakes here include wealth creation, scientific progress, and our ability to improve life.

Art by Joe Nalven

Eric-Clifford Graf (PhD, Virginia, 1997) teaches and writes about the liberal tradition as authored by men like Alexander Hamilton, Frederick Douglass, and Jorge Luis Borges. His latest book is ANATOMY OF LIBERTY IN DON QUIJOTE DE LA MANCHA (Lexington, 2021). All of his work can be found here: ericcliffordgraf.academia.edu/research.

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Say 'Yes' to the First Amendment Minding The Campus - Minding The Campus

Poynter announced Tuesday the winners of its inaugural journalism contest, continuing a tradition that was most recently headed by the News Leaders Association.

The Poynter Journalism Prizes saw over 525 entries from more than 300 news organizations and individual journalists. The contest was open to work across all platforms, including digital and broadcast, and featured 10 categories focused on different aspects of writing, reporting and leadership. Winners will receive a cash prize of $1,000 or $2,500, depending on the category.

The judges were faced with a problem that the journalism industry can be truly proud of it was really hard to select winners because there were so many high-caliber choices, Poynter president Neil Brown said. The Poynter Journalism Prizes honors great journalism that makes a difference and we find it in all kinds of news organizations and in a diverse range of communities. Thats good for society and it bodes well for the media business.

This years contest featured one new category honoring short-form journalism. Named after retired Poynter faculty member Roy Peter Clark, the Clark Prize was awarded to Dallas Morning News public safety reporter Maggie Prosser for a 425-word story about a mother who lost her daughter to fentanyl poisoning.

The Morning News was also named a finalist in the writing excellence category for its work covering the Allen, Texas, mall shooting. Two other outlets, The Washington Post and The Boston Globe, made multiple showings among this years winners and finalists. The Post was named a finalist in two categories and won the social justice reporting category for an investigation into the Smithsonians holdings of human remains. The Globe was named a finalist in four categories and won the column writing category for metro columnist Yvonne Abrahams work covering the citys homeless. (Stat, which is owned by the same parent company as the Globe, also won a reporting category.)

Here are the 2024 Poynter Journalism Prize winners:

Awarded to Casey Ross and Bob Herman of Stat for Denied by AI: Consequences for Sick and Vulnerable Americans, a series of stories about the use of algorithms to deny care to ill patients in pursuit of higher profits. The medal recognizes exceptional journalism that makes a difference to the lives of people and their communities.

Finalists

Awarded to Jeremy Rogalski, John Gibson and Jennifer Cobb of KHOU-11 TV for Coffee City Police, an investigation into the Coffee City Texas Police Department that found that in a city of almost 250 people, there were 50 police officers. The award recognizes outstanding work done by a news organization that holds local authorities accountable for actions (or inaction).

Finalists

Awarded to Nicole Dungca, Claire Healy and Andrew Ba Tran of The Washington Post for The Collection, an investigation into the Smithsonians collection of human remains, many of which belonged to Black and Indigenous people. The award honors social justice reporting.

Finalists

Awarded to Megan Cassidy and Gabrielle Lurie of the San Francisco Chronicle for an 18-month investigation that explored how migrants from Hondurass Siria Valley provide the labor that fuels San Franciscos drug crisis. The award recognizes distinguished achievement in writing in any medium.

Finalists

Awarded to the staff of the Malheur Enterprise for reporting about Malheur Countys lack of transparency and the effect and importance of the papers lawsuit against the county to enforce state public records law. The award is given to the best example of protecting or advancing freedom of information principles, and/or overcoming significant resistance to the application of the First Amendment.

Finalists

Awarded to the San Antonio Express-News for Political crisis at the border, a series that looks at how barbed wire is a cruel and ineffective tactic to keep people from entering the U.S. The award recognizes excellence in editorial writing that has made an impact on behalf of a community, resulting in change for the better.

Finalists

Awarded to Yvonne Abraham of The Boston Globe for commentary writing about Bostons homeless and the myriad issues they face. The award recognizes excellence in writing by an individual expressing a personal point of view.

Finalists

Awarded to Adam Clark of New Jersey Advance Media for The Oral History of Wawa, a story of how a convenience store became a cultural phenomenon. The award honors a journalist or organization that excels in new ways of executing the craft of journalism and whose work is a bold new approach.

Finalists

Awarded to the Mississippi Free Press for building its newsroom with community and its diversity in mind. The award honors the accomplishments of media professionals who encourage diversity in hiring and coverage.

Awarded to Maggie Prosser of The Dallas Morning News for Deadly Fake: Something of hers, a 425-word story about a grieving mother who lost her daughter to fentanyl poisoning. The prize honors compelling journalistic writing of less than 800 words in any medium.

Finalist

Poynter hosted the prizes for the first time this year after the NLA decided last year to transfer its awards program to the Institute. The NLA, a nonprofit organization dedicated to newsroom leadership, diversity and First Amendment issues, had run a journalism contest since 2019. But financial challenges forced the associations board to vote in October to dissolve the organization and transfer its assets including the NLA Awards to other nonprofit journalism groups.

The NLA Awards got its start after the American Society of News Editors and the Associated Press Media Editors merged in 2019 to form the NLA. Previously, the ASNE had run its own journalism competition. Most of the Poynter Prize Journalism categories come from the ASNE Distinguished Writing Awards, which began in 1979.

Though this is the first year Poynter has run the contest, it used to host the judging for the ASNE awards and published a book each year compiling winning entries. The ASNE awards were also inspired by Eugene Patterson, who served as ASNE president and Poynters chairman.

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Here are the winners of the inaugural Poynter Journalism Prizes - Poynter

If there are few hard and fast features of the journalism racket, its at least a safe bet that publishers and other top brass favor the First Amendment. After all, thats where the Framers forbid the government from abridging the freedom of the press. Not so the new head of National Public Radio, Katherine Maher, who frets that freedom of speech could hinder efforts to combat that latest bte noir of the left, so-called disinformation.

Ms. Maher appraises the First Amendment as the number-one challenge, as she put it, impeding government regulation of speech online. That assessment was turned up by journalist Christopher Rufo. He earned his stripes by bringing to light questions over plagiarism in the academic work of Harvards president, Claudine Gay. It helped precipitate her resignation. Mr. Rufo is now ramping up scrutiny on NPR.

NPRs censor-in-chief, is how Mr. Rufo describes Ms. Mahers comments about fighting disinformation, presenting her apparent unease over the First Amendment as a case of liberal petulance with the constitutional right to free speech. Ms. Maher has run afoul of conservatives lately in part because of an essay in the Free Press by an ex-NPR editor, Uri Berliner, who reckons the radio network has lost Americas trust by tilting to the left in its news coverage.

Such charges gained credence when Mr. Rufo aired left-leaning tweets by Ms. Maher, prior to her tenure at NPR. These include her observation, in 2018, that Donald Trump is a racist. Ms. Maher responded by noting that everyone is entitled to free speech as a private citizen. The remark takes on some added shades of meaning in light of Ms. Mahers First Amendment musings, which date from 2021 but were unearthed by Mr. Rufo but this morning.

At the time, Ms. Maher had just stepped down as chief executive of Wikimedia. She was being interviewed by an NBC News reporter about how, in contrast to the press, people do trust Wikipedia. Ms. Maher touted Wikimedias sense of humility and its refusal to bend to censorship. What about the 2020 election, though, the NBC reporter asked, describing it as rife with misinformation and disinformation, and just a real threat to democracy, actually.

The question failed to note that much of what the liberal press and social media firms at first called disinformation such as reporting about Hunter Bidens laptop proved to be the genuine article. Ms. Maher seemed unaware of that, noting that Wikimedia took a very active approach to disinformation at the time and sought to identify threats early on through conversations with government, though in many cases the government itself was a misleading source.

On this point, critics of President Bidens anti-disinformation efforts, decried by a Federal judge as an Orwellian Ministry of Truth, contend that the government in effect censored online speech it didnt like. The matter is currently being weighed by the Supreme Court in Murthy v. Missouri, and some justices appeared sympathetic to the governments claims that it sometimes needs to lean on social media firms to curb what it sees as disinformation.

One of the towering chairmen of the Wall Street Journal, Warren Phillips, used to tell his reporters that the First Amendment wasnt enacted to protect the responsible press, which didnt need protection. It was calculated to protect the irresponsible press. We took that to mean that the right to err was needed to protect the true freedom of the press. In other words, a free marketplace of ideas is the best way to sort out disinformation from truth.

Ms. Maher frames the First Amendment less as a way to protect freedom of expression, and more a protection of rights for social media platforms to regulate what kind of content they want on their sites. It reminds us of A.J. Lieblings remark about how Freedom of the Press is reserved for those who own one. In truth, though, press freedom benefits shines for, as we put it here at the Sun all. No wonder NPR has lost Americas trust.

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NPR Against the First Amendment - The New York Sun

House lawmakers are planning to attach a ban on the social media app TikTok to a broader package providing aid to Ukraine, Israel, and Taiwan that will be put to a vote as early as Saturday.

The proposed ban has generated furor on Capitol Hill and online since it first passed the House as a standalone bill last month. President Joe Biden has called on the House to pass the package and for the Senate to follow suit ahead of a congressional recess next week, indicating that he would sign it.

The bill would require TikToks Chinese parent company ByteDance to divest from the app within nine months, with the possibility of a three-month extension, or else it will be removed from US app stores. TikTok, however, has not actively pursued any buyers (despite former Treasury Secretary Steven Mnuchin, among others, having expressed interest) and has indicated that it would challenge any such legislation in court.

At least one key Democrat leading the divestment charge in the Senate, Sen. Maria Cantwell (D-WA), has endorsed the bill. But other lawmakers have expressed concerns about the bills constitutionality: Sen. Rand Paul (R-KY) previously told the Washington Post that he would oppose any measure that violates the Constitution and that Congress should not be trying to take away the First Amendment rights of [170] million Americans.

There has already been a revolt from users over First Amendment concerns. Last month, the social media app told its users to call their members of Congress in protest of the new bipartisan bill, arguing that a ban would infringe on their constitutional right to free expression and harm businesses and creators across the country.

Teens and older people alike reportedly pleaded with congressional staff, saying they spend all day on the app. Creators posted on TikTok urging their followers to do the same. Some offices decided to temporarily shut down their phone lines as a result, which meant that they couldnt field calls from their constituents about other issues either.

Lawmakers in both parties didnt take kindly to the impromptu lobbying frenzy. Some characterized it as confirmation of their fears that the Chinese-owned app which is already banned on government devices is brainwashing America. The overrun phone lines were merely making the case for the bill, Rep. Chip Roy (R-TX) wrote on X.

The White House has backed the bill from the beginning, reportedly providing technical support to legislators when they were drafting it (even as Bidens reelection campaign has started using TikTok for voter outreach).

Though the bill now has momentum, theres the crucial question of whether it would survive legal scrutiny even if passed. A federal court recently overturned a Montana law that sought to ban TikTok. Though legislators sponsoring the US House bill argue that it is narrow in scope and would not amount to a total ban on TikTok that would violate the First Amendment, some legal experts believe otherwise.

In my view, this loaded gun is a ban in all but name, and banning TikTok is obviously unconstitutional, said Ramya Krishnan, a staff attorney at the Knight First Amendment Institute at Columbia University. This ban on TikTok is materially the same [as the Montana ban] in all the ways that matter.

The constitutional law here appears straightforward: Congress cant outright ban TikTok or any social media platform unless it can prove that it poses legitimate and serious privacy and national security concerns that cant be addressed by any other means. The bar for such a justification is necessarily very high in order to protect Americans First Amendment rights, Krishnan said.

Lawmakers argue that the bill under consideration isnt actually a total ban. Rather, it would enact a new authority to ban apps in narrowly defined situations when they are controlled by a foreign adversary, New Jersey Rep. Frank Pallone, the ranking Democrat on the Energy and Commerce Committee, said before the committee in March. He compared the bill to historical efforts to prevent foreign ownership of US airwaves due to national security concerns.

It is no different here, and I take the concerns raised by the intelligence community very seriously, he said.

Other House lawmakers have criticized TikTok for attempting to portray the bill as a total ban.

But legal experts say that an indirect ban may still be unconstitutional under the First Amendment. Civil society groups including the American Civil Liberties Union and the Center for Democracy and Technology (CDT) wrote in a recent letter to federal lawmakers that jeopardizing access to TikTok home to massive amounts of protected speech and association also jeopardizes access to free expression. There are also arguably less restrictive and more effective means of protecting any national security interests at stake in this bill, they asserted, considering the Chinese government could continue to access Americans data in other ways.

This bill would functionally ban the distribution of TikTok in the United States, and would grant the President broad new powers to ban other social media platforms based on their country of origin, they said in the letter.

Many experts believe it is unlikely that the government will be able to meet the high standard to prove that TikTok poses privacy and national security concerns that cant otherwise be resolved, said Kate Ruane, director of CDTs Free Expression Project. Lawmakers have publicly cited concerns about the Chinese government using the app to spy on Americans and to spread propaganda that could be used to influence the 2024 presidential election.

Though TikTok has repeatedly insisted that it has never shared user data with the Chinese government nor been asked to do so, a former employee of ByteDance has alleged in court that the government had nevertheless accessed such data on a widespread basis for political purposes during the 2018 protests in Hong Kong. And in December, TikTok parent company ByteDance acknowledged it had fired four employees who accessed the data of two journalists while trying to track down an internal leaker.

TikTok is Communist Chinese malware that is poisoning the minds of our next generation and giving the CCP unfettered access to troves of Americans data, Rep. Elise Stefanik (R-NY) said in a statement. We cannot allow the CCP to continue to harness this digital weapon.

However, national security experts have also questioned the rationale behind a ban. Mike German, a former FBI special agent and fellow at the Brennan Center for Justices Liberty and National Security Program, told Al Jazeera that, like many American apps, TikTok collects data on its users that a foreign government could theoretically use for its own hostile purposes. But those governments could just as well buy Americans data on a legitimate open market, where the sale of that data remains unrestricted.

And even if lawmakers did provide more evidence of national security concerns, its still not clear that the ban would pass legal muster.

Courts have already applied strict scrutiny to previous attempts to ban TikTok. A federal judge blocked the Montana TikTok ban which also imposed a financial penalty on TikTok and any app store hosting it each time a user accesses or is offered the ability to access the app before it was scheduled to go into effect in November.

Montana lawmakers justified the ban as a means of protecting the privacy interests of consumers in the state. But US District Judge Donald Molloy wrote in his ruling that the law overstepped the Montana legislatures powers and left little doubt that Montanas legislature and Attorney General were more interested in targeting Chinas ostensible role in TikTok than with protecting Montana consumers.

Former President Donald Trump also twice tried to ban TikTok via executive action, only for courts to strike down his proposal both times. However, he recently changed his tune, arguing that banning TikTok would benefit Meta CEO Mark Zuckerberg and Facebook, which he referred to in a post on his social media platform Truth Social as a true enemy of the people.

If lawmakers are serious about protecting privacy and national security, Ruane said, they should instead pass comprehensive digital privacy legislation.

That would be a better path forward, she said.

Her organization, the Center for Democracy and Technology, has supported a bipartisan bill that passed a committee vote in 2022: the American Data Privacy and Protection Act. It included provisions requiring companies to allow consumers to consent to or reject the collection of their data, to allow consumers to download and delete the data being collected on them, to require consumers affirmative consent to share that data with a third party, and more.

It was the culmination of a decades-long effort to regulate the collection, use, and sale of consumer data, similar to the European Unions regulatory efforts. It would have tasked the Federal Trade Commission and state attorneys general with enforcing the law and preempted the patchwork of privacy laws that have been enacted at the state level in the absence of comprehensive federal legislation.

However, the privacy bill stalled in Congress and was not reintroduced; Ruane said its unclear why. Now lawmakers are moving forward instead with the bill that could ban TikTok without solving the underlying privacy concerns.

This bill would fail to protect us from the many threats to our digital privacy posed by criminals, private companies, and foreign actors, said David Greene, civil liberties director at the Electronic Frontier Foundation. Comprehensive data privacy legislation is the solution we need not bans of certain categories of apps.

Update, April 18, 3:45 pm ET: This story, originally published March 9, has been updated multiple times, most recently with additional reporting on the bills progression in the House and Senate.

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Can Congress actually ban TikTok? - Vox.com