Category Archives: First Amendment

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The University of Houston has settled with a conservative free speech group that sued the school over an anti-discrimination policy that the group argued was overly broad and violated students First Amendment rights.

As part of the settlement, UH officials will have to pay $30,000 in attorneys fees to Speech First and UH officials must keep in place its amended anti-discrimination policy.

In this case, Speech First, a group that actively litigates college policies they view as student censorship, targeted UHs anti-discrimination policy that has been in place since 2012. According to that policy, unlawful harassment was defined as humiliating, abusive, or threatening conduct or behavior that denigrates or shows hostility or aversion toward an individual or group or conduct that created a hostile living or working environment or interfered with an individuals academic or work performance.

Examples of such harassment included epithets or slurs, negative stereotyping and denigrating jokes.

It also stated [m]inor verbal and nonverbal slights, snubs, annoyances, insults, or isolated incidents including, but not limited to microaggressions, would be considered harassment if the actions occurred repeatedly and targeted a particular group of people based on their race, sex or gender or other status that keeps them protected from discrimination.

But in May, three months after Speech First filed its suit, the university amended its policy. Later that same month, U.S. District Judge Lynn Hughes, a Reagan appointee, blocked the university from reinstating its original anti-harassment policy.

This is a huge win for the First Amendment, said Cherise Trump, executive director of Speech First, a group that pushes back against what it calls toxic censorship culture on campuses. It sends a message to the University of Houston and other universities that they will be held accountable if they enact unconstitutional policies on campus.

In a statement, UH officials said they have come to an amicable agreement and consider the matter resolved.

As a result of our discussions, a revised anti-discrimination policy has been adopted, Chris Stipes, director of UH media relations, said in a statement. The UH System remains committed to protecting the constitutional rights of our students and employees.

Speech First filed the lawsuit on behalf of three conservative students identified only as A, B and C who said they felt they could not express their beliefs on campus for fear they would be punished under UHs older policy.

As examples, the lawsuit listed how the students feared retaliation if they shared personal beliefs such as affirmative action in college admissions is racist or allowing biologically male athletes who identify as female to compete in womens sports is fundamentally unjust. All three said they were uncomfortable acknowledging fellow students preferred pronouns outside of a cisgender identity.

In documents, lawyers for the university argued that its policy specifically addresses unlawful harassment of students and would not consider those statements and ideas provided by the students in the lawsuit as a violation of the policy.

University lawyers have also argued there is no evidence that the anti-discrimination policy has ever been used against students.

When the university amended the anti-discrimination policy in mid-May, it specified that harassment must rise to the level of creating a hostile work environment for employees or to deny a student equal access to education by creating a hostile learning environment. That is the standard set by the 1999 Supreme Court decision in Davis v. Monroe County Board of Education, which states that schools violate the Title IX ban on sex-based discrimination if they remain deliberately indifferent to sexual harassment to the point it prevents a student from receiving an equitable education.

Two years ago, the U.S. Department of Education Office of Civil Rights under former President Donald Trump used that definition of sexual harassment when it issued revised rules and standards for investigating Title IX violations on college campuses, which was a more narrow definition for sexual harassment than any previously used.

Speech First lawyers argue that many universities, including UH, adopt harassment policies outside of that guidance that are too broad, providing a chilling effect to students free speech.

A UH lawyer said the definition of sexual harassment in the Davis case did not limit schools from enacting other policies to address unlawful harassment and should not be considered the standard for universities as they craft disciplinary policies to address other instances of inappropriate behavior.

Speech First has tried to bootstrap Davis in numerous other cases, and to date none has held that Davis imposed the outer bounds for addressing unlawful harassment, they wrote.

But when Hughes, the federal district judge, granted a preliminary injunction late last month preventing UH from reinstating its original anti-harassment policy, he sided with Speech First.

Restraint on free speech is prohibited absent limited circumstances carefully proscribed by the Supreme Court. Any limitation deserves the upmost scrutiny, he wrote, stating the group would likely win the case. The University says that it will be injured if recourse is unavailable for harassment against students of faculty. As important as that is, students also need defenses against arbitrary professors.

This is the latest victory for Speech First, which has sued universities across the country over free speech policies, including the University of Texas at Austin. The case against UT-Austin took a similar path. Speech First sued the university in 2018 over language in multiple freedom of expression policies. UT-Austin amended some of the policies before settling with the organization and agreed to discontinue the universitys Campus Climate Response Team, part of the division of student affairs and the division of diversity and student engagement that investigated student reports of bias incidents on campus.

This lawsuit comes as other free speech debates have bubbled up on Texas college campuses throughout this past academic year.

At Collin College in North Texas, three professors have sued the school, arguing their contracts were not renewed in retaliation for exercising their First Amendment rights on a variety of issues, including one professor who publicly criticized the schools COVID-19 response.

Nearby at the University of North Texas in Denton, thousands of students and community members signed a petition calling on school administrators to expel a right-wing student, arguing her campus activism and statements opposing gender-affirming care for transgender children created an unsafe learning environment for transgender students on campus.

In that instance, administrators denounced the students comments, but they said she and her right-wing campus group had not violated any university policies.

Disclosure: Collin College, University of Texas at Austin, University of Houston and University of North Texas have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

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University of Houston settles lawsuit with conservative Speech First group - The Texas Tribune

Lawyers for Gov. Ron DeSantis and Attorney General Ashley Moody are fighting an attempt to block a state law and regulations that limit the way race-related issues can be taught in public schools and in workplace training.

In a court document filed last week, the lawyers argued Chief U.S. District Judge Mark Walker should reject a request for a preliminary injunction in a lawsuit filed in April after DeSantis signed the controversial law (HB 7). Walker is scheduled to hold a hearing June 21 on the preliminary-injunction issue, according to a court docket.

Plaintiffs in the case allege that the law and regulations violate First Amendment rights and are unconstitutionally vague. But in the 60-page document filed last week, lawyers for DeSantis and Moody disputed that the restrictions violate speech rights in schools and workplaces.

Here, the act does not prevent the states educators from espousing whatever views they may hold, on race or anything else, on their own time, and it does not prevent students from seeking them out and listening to them, the document said. All it says is that state-employed teachers may not espouse or advocate in the classroom views contrary to the principles enshrined in the act, while they are on the state clock, in exchange for a state paycheck. The First Amendment does not compel Florida to pay educators to advocate ideas, in its name, that it finds repugnant.

But in an April motion for a preliminary injunction, lawyers for the plaintiffs argued that DeSantis and other Republican leaders banned teachers and employers from endorsing a litany of opinions about race that had been stuck in their craw, such as institutional racism, white privilege and critical race theory.

This constitutional challenge is not about whether these ideas are right or whether they should be taught throughout Floridas schools and workplaces, the 53-page motion said. Rather, it is about an attempt by Floridas conservative politicians to silence exchange of these ideas and win a so-called culture war through legislative and executive fiat.

DeSantis this year made a priority of passing the law which he dubbed the Stop Wrongs Against our Kids and Employees Act, or Stop WOKE Act. It came after the State Board of Education last year passed regulations that included banning the use of critical race theory, which is based on the premise that racism is embedded in American society and institutions.

The law, which is scheduled to take effect July 1, lists a series of race-related concepts that would constitute discrimination if taught in classrooms or in required workplace-training programs.

As an example, part of the law labels instruction discriminatory if it leads people to believe that they bear responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, national origin or sex.

As another example, the law seeks to prohibit instruction that would cause students to feel guilt, anguish or other forms of psychological distress because of actions, in which the person played no part, committed in the past by other members of the same race, color, national origin or sex.

The plaintiffs in the lawsuit are two public-school teachers, a University of Central Florida associate professor, a child who will be a public-school student in the coming year and the president of a firm that provides workplace training.

In the motion for a preliminary injunction, the plaintiffs attorneys from the Jacksonville firm of Sheppard, White, Kachergus, DeMaggio & Wilkison, P.A. wrote that the law and regulations intrude on the free expression and academic freedom of Floridas teachers by imposing a pall of orthodoxy over the classrooms.

These provisions suppress a wide range of viewpoints accepted by academics for the sole reason that Floridas conservative lawmakers disagree with them, the motion said. Even if such disagreement could form a legitimate government interest, Governor DeSantis failed to identify any actual examples of what he calls critical race theory being taught in Florida public school classrooms.

The plaintiffs attorneys also alleged that the restrictions ensure students learn only a white-washed version of history and sociological theories that ignore systemic problems in our society that create racial injustices.

But in the document filed last week, the lawyers for DeSantis and Moody wrote that the plaintiffs who are educators have no constitutional right of academic freedom to override curriculum policies adopted by democratically elected lawmakers.

Plaintiffs First Amendment challenge to the educational provisions fails because the act regulates pure government speech the curriculum used in state schools and the in-class instruction offered by state employees and the First Amendment simply has no application in this context, the document said.

The states lawyers, who also separately filed a motion last week seeking to dismiss the case, argued in the preliminary-injunction document that the state restrictions are intended at stamping out discrimination.

The balance of the equities and the public interest weigh decisively against enjoining the act. (The) state has a compelling constitutionally imperative interest in ending discrimination based on race and other immutable characteristics, and enjoining the act will sanction conduct and curricular speech that Florida has determined, in the exercise of its sovereign judgment, is pernicious and contrary to the states most cherished ideals, wrote the states lawyers, including attorneys from the Washington. D.C. firm of Cooper & Kirk, PLLC.

Read more:
State fires back in race-related instruction fight - Palm Coast Observer

False statements, misdirection, half-truths and outright lies: When promoted and repeated in the echo chambers of social media, they can shape attitudes, influence policy and erode democracy. As the psychologist Daniel Kahneman has said, you can make people believe in falsehood through repetition, because familiarity is not easily distinguished from truth.

Disinformation and misinformation have undermined trust in our electoral systems, in vaccines and in the horrific reality of the Uvalde school shooting. They began to swirl in the immediate aftermath of the Jan. 6 attack on the United States Capitol. Intelligence officials warn that with the midterm elections approaching, there will likely be a tsunami of extremist disinformation.

To better understand the phenomenon, lets first define our terms. Disinformation is false speech designed to deceive you. Misinformation is speech that is wrong. Disinformation is intentional; misinformation may not be.

Disinformation isnt new its been around as long as information. But, today, disinformation seems to be everywhere. With the instantaneous and mass distribution of user-generated content social media, there are no gatekeepers and no barriers to entry. Anyone can create disinformation, share it, promote it. Were all accomplices. Were all victims.

The largest funnel of disinformation is domestic yes, extremists and nationalist groups, but also your Uncle Harry. Especially your Uncle Harry. Disinformation flourishes in times of uncertainty and divisiveness. But disinformation doesnt create divisions it widens them.

Russias role in sowing disinformation around their annexation of Crimea in 2014 became a template for their interference in the American elections of 2016 and 2020. But Russia is by no means the only bad actor the Chinese and the Iranians are also in the game.

Here is a smart starter set of books on disinformation that help explain its history, its techniques, its effects and how to combat it.

The English word disinformation comes from the Russian dezinformatsiya, a Soviet-era coinage describing one of the tactics of information warfare. Rids Active Measures is a colorful history of modern Russian disinformation. From the beginning, he writes, the Russians saw disinformation as an attack against open societies, against a liberal epistemic order. It was meant to erode the foundations of democracy by undermining trust and calling into question what was a fact and what was not.

The brilliant insight of Russian disinformation is that it neednt be false the most effective disinformation usually contains more than a kernel of truth. Sometimes it can be a single bogus paragraph inserted into an otherwise genuine document.

In the 1980s, the Russians popularized the false claim that H.I.V. was created in a U.S. lab in Ft. Detrick, Md. But that canard required bribing obscure journalists in remote countries and took decades to reach a wide audience. Now, a young Russian troll in St. Petersburg can create a false persona and push out dozens of tweets in an hour at almost no cost with almost no consequence and reach millions of people in an hour. The internet, Rid writes, was optimized for mass disinformation.

The purveyors of disinformation exploit certain basic cognitive biases. The most often cited is confirmation bias, which is the idea that we seek information that confirms what we already believe. In The Misinformation Age, the philosophers OConnor and Weatherall show that even scientists, who by definition are seeking the impartial truth, can be swayed by biases and bad data to come to a collective false belief.

All human beings have a reflexive tendency to reject new evidence when it contradicts established belief. A variation of this is the backfire effect, which states that attempts to disabuse someone of a firmly held belief will only make them more certain of it. So, if you are convinced of the absurd accusation that Hillary Clinton was running a child sex trafficking ring from Comet Ping Pong, a pizza restaurant in Washington D.C., you will double down when I explain how patently false the claim is.

The authors contend that mainstream media coverage can often amplify disinformation rather than debunking it. All the news stories about Cosmic Pizza likely confirmed the prejudices of the people who believed it, while spreading the conspiracy theory to potential new adherents. For decades, Russian information warfare and other state promoters of disinformation have exploited the presss reflex to write about both sides even if one side is promoting lies. This is a trap, the authors argue. Treating both sides of an argument as equivalent when one side is demonstrably false is just doing the work of the purveyors of disinformation.

The rise in disinformation aided by automatic bots, false personas and troll farms is leading some thinkers to conclude that the marketplace of ideas the foundation of modern First Amendment law is experiencing a market failure. In the traditional marketplace model, the assumption is that truth ultimately drives out falsehood. That, suggests Hasen in Cheap Speech, is hopelessly nave. Hasen, a law professor at University of California, Irvine, posits that the increase in dis- and misinformation is a result of what he calls cheap speech, a term coined by Eugene Volokh, a law professor at U.C.L.A. The idea is that social media has created a class of speech that is sensational and inexpensive to produce, with little or no social value.

In the pre-internet era, disinformation was as difficult and expensive to produce as truthful information. You still had to pay someone to do it you still had to buy ink and paper and distribute it. Now, the distribution cost of bad information is essentially free, with none of the liability of traditional media. In the age of cheap speech, the classic libertarian line that the cure for bad speech is more speech seems dangerously outdated.

Hasen puts forth a number of solid recommendations on how to combat disinformation more content moderation, more liability for the platforms, more transparency of algorithms but adds a very specific one: a narrow ban on verifiably false election speech. The idea is that elections are so vital to democracy that even though political speech has a higher standard of First Amendment protection, false information about voting should be removed from the big platforms.

Throughout history, mis- and disinformation have always been the tools of autocrats and dictators. Whats new in the 21st century, writes Nam, a political scientist, is the culture of post-truth. Post-truth is not untruth or lies it is the idea that there is no truth, that there is no such thing as objectivity or even empirical reality. This was beautifully described by Hannah Arendt in The Origins of Totalitarianism that people believe everything and nothing, think that everything was possible and nothing was true. Arendt published those words in 1951, but as Nam writes, the modern combination of technical empowerment and economic disempowerment has resulted in a frontal attack on a shared sense of reality.

Nam observes that what was different in Arendts day was that totalitarian rule was achieved through heavy-handed central control and censorship. Today, its accomplished through the opposite: radically open systems that can swamp the truth with falsehood, innuendo and rumor. Autocrats understand that social media is an unrivaled tool of populism and polarization. More information doesnt mean more democracy, as internet evangelists believed. Nam writes that the post-truth era was foreshadowed by 1980s intellectuals like Michel Foucault, who argued that knowledge and facts were a social construct manufactured by the powerful.

Each of these books sees disinformation as poison in the well of democracy. Each contains workable ideas for reducing the amount of disinformation in the world. All agree that the platforms should be neutral when it comes to politics, but not neutral about facts.

Yes, algorithms and bots and troll farms accelerate and increase disinformation, but disinformation is not just a supply problem its a demand problem. We seek it out. It would make things easier if we were all born with internal lie detectors until then, trust but verify, check your facts, beware of your own biases and test not only not only information that seems false, but also especially what you reflexively assume is true.

Richard Stengel was the under secretary of state for public diplomacy and public affairs from 2013 to 2016, and is the author of several books, including, most recently, Information Wars: How we Lost the Global Battle Against Disinformation and What We Can Do About It.

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The Best Books to Read on Disinformation: Its History, Techniques and Effects - The New York Times

[Editors note: This is a version of an article published in the Out of Frame Weekly, an email newsletter about the intersection of art, culture, and ideas. Sign up here to get it in your inbox every Friday.]

Politicians were quick to call for restrictions on "hate speech" in response to the mass shooting that took the lives of 10 people at a Buffalo, New York grocery storean attack that police are investigating as a hate crime.

Byron Brown, the mayor of Buffalo, called for "ending hate speech on the internet" in media interviews after the murders.

"Hate speech should not be considered free speech, and we have to put limits on the ability for people to spread hate through the internet and through social media," he told National Public Radio.

Kathy Hochul, the state's Democratic governor, echoed Brown's words. She told ABC: "We will protect the right to free speech, but there is a limit. There is a limit to what you can do and [...] hate speech is not protected."

These comments are starkly inaccurate. The Supreme Court has repeatedly affirmed that so-called hate speech is protected under the First Amendment. While authorities can certainly take action against individuals for planning or threatening violence online, prohibiting people specifically for expressing ideological beliefs (even hateful ones) is a bad idea.

Has anyone who wants to ban hate speech ever laid out a coherent reason why doing so will in fact reduce the number of people who believe in violent ideologies? Is there any evidence that it will not simply push people who believe these ideas underground, where they will become more violent in reaction to their persecution?

Also, the ambiguous, subjective nature of banning certain ideas as hate speech lends itself to abusenot just theoretically, but also in reality. You probably heard of people given convictions for Internet trolling, such as Scottish YouTuber Mark Meechan in 2018. In a world where one person's dark humor is another person's violent racism, such cases are common. But also, did you know that France and Canada have used hate speech laws to prohibit protests against the State of Israel?

Supporters of freedom of speech have stated time and time again why this liberty is necessary for these and other reasons. But supporters of censorship like Hochul and Brown by definition do not believe in conversation and do not want to have that discussion. They want to exploit tragedies like the Buffalo shooting to guilt their opponents into accepting their demands. Beating the gavel of shock and bloodshed, they call for revoking basic constitutional liberties.

This is an authoritarian mentality that we must wipe outnot by censoring it like they would do, of coursebut by effectively communicating why it should be condemned.

Originally posted here:
Hate Crimes Are No Excuse to Throw Away the First Amendment | Matt Hampton - Foundation for Economic Education

In court, "truth" is more subjective than you may think.

THIS CASE IS DEAD AS WELL. AN 18 YEAR-OLD. >> HI, EVERYBODY. HELLO THERE. I'M DAN HAGGERTY. THIS IS THE PART OF THE NEWSCAST. WE DISCUSS THE NEWS A LITTLE BIT NOW WORKING ON A FEW DIFFERENT THINGS. BUT I DO WANT TO CHECK IN CHECK IN WITH YOU QUICKLY TONIGHT IN JUST A COUPLE OF E-MAILS BECAUSE YOU'VE BEEN SENDING SO MANY OF THEM LIKE BETSY FROM CHAPEL HILL, WHO IS APPARENTLY A BIG FAN, BUT SHE'S A LITTLE CONFLICTED. SHE EMAILS DAN WRAL DOT COM AND SAID THIS. WE FIND OURSELVES TO BE JEOPARDY. LOYALISTS IN COMMERCIAL BREAKS. WE SWITCHED WRAL NEWS. IF YOU'RE RUNNING AN IN-DEPTH FEATURE, WE'VE CAUGHT A FEW, BUT WE DON'T KNOW WHEN YOUR SEGMENTS TYPICALLY RUN ARE THE WEEKLY OR ARE THEY ON A PARTICULAR DAY AND WE JUST HAVE NOT FOUND A PATTERN YET. THAT'S PROBABLY BECAUSE THERE ISN'T A PATTERN YET, BUT WE'RE WORKING ON THAT. I'M TRYING TO BUILD A LITTLE BIT OF A TEAM POSSIBLY AND HOPEFULLY SOON WILL BE DOING SOMETHING EVERY NIGHT. IN THE MEANTIME, THAT C. WHO CARES ABOUT JEOPARDY. HONESTLY, I KNOW IT'S ON THE SAME TIME AS ME. I KNOW IT RECENTLY PASSED 60 MINUTES TO BECOME THE MOST WATCHED NON-SPORTS SHOW ON TV. BUT LET'S SEE. DO YOU REALLY WANT TO FOLLOW THE PACK AND WATCH ONE OF THE MOST POPULAR THINGS IN AMERICAN CULTURE OR AND HEAR ME OUT HERE OR >> YOU WANT TO WATCH ME. >> A GUY SPENDS SOMETIMES 8 STRAIGHT MINUTES TALKING ABOUT THINGS LIKE BRIAN AND THE OLD SUPREME COURT OPINIONS TO A COOLER THAT WAY. IN FACT, YOU CAN FIND EVERYTHING I TALK ABOUT ON WRAL'S NEW YOUTUBE CHANNEL HAVE AN ENTIRE PLAYLIST CALLED IN DEPTH WITH DAN HAGGERTY WERE STILL KIND OF FINE TUNING THE VISUALS. IF YOU LOOK AT A COUPLE OF THE THUMBNAILS LIKE THIS ONE DOESN'T EXACTLY SAY LOOK AT ME, I'M GOING TO SAY SOMETHING SMART, BUT WE'RE WORKING ON IT. OKAY. SO PLEASE STICK WITH US. YOU'LL FIND ALL THE TOPICS THAT YOU EMAIL ME ABOUT THAT WE DISCUSS HERE DURING THIS SEGMENT LIKE MY RECENT DISCUSSION WITH YOU ABOUT POLITICAL ADS, YOU MAY REMEMBER THAT WE TALKED TO A LAWYER WHO WORKS WITH CAMPAIGNS TO CHECK THEIR ADS BEFORE THEY AIR. IT CONFIRMED TO US SOMETHING THAT WAS KIND OF HARD TO BELIEVE FOR A LOT OF PEOPLE THAT EFFECTIVELY THESE CANDIDATES CAN LIE IN THESE ACTS BECAUSE OF THE FIRST AMENDMENT. AND IN THAT SEGMENT, I DISCUSSED THE CONCERNS THAT A VIEWER NAMED CAROL SHARED WITH ME RECENTLY. CARROLL SAID DAN. I WONDER ABOUT THE ETHICS OF THE STATIONS TO RUN ADS. IF THE AD IS DECLARED FALSE, BY FACT, CHECKED, WHY IS THE AD NOT PULLED THE MONEY? IS THE MONEY VALUED ABOVE THE TRUTH. I'M DISTURBED BY AS NOT BEING PULLED THE NEGATIVE. CHERI BEASLEY AD IS ONE THAT STICKS OUT. AND I KNOW THAT IT FEELS KIND OF STRANGE, BUT THE TRUTH ISN'T NECESSARILY PART OF THAT TRANSACTION. AND IN COURT, TRUTH IS MORE SUBJECTIVE THAN YOU MAY THINK. THAT'S WHY WE HAVE PEOPLE LIKE PAUL SPAY AND POLITIFACT TO EXPLAIN THE FREE SPEECH THAT YOU HEAR DURING OUR COMMERCIAL BREAK. SOMETIMES PAUL CARROLL MENTION CHERI BEASLEY AND ADD THAT RUNS ON OUR AIR MAKING SOME CLAIMS ABOUT HER RULINGS AND A DEATH SENTENCE CASE AND AN ASSAULT ON A MINOR. >> THE FORMER SUPREME COURT JUSTICE CHERI BEASLEY GO EASY ON DEFENDANTS IN A PAIR OF SENSITIVE CASES. THAT'S WHAT THE NATIONAL REPUBLICAN SENATORIAL COMMITTEE SUGGEST ITS NEW ATTACK AD. TAKE A LOOK. >> THE WORST THING COMES. THE STATION AND CHIEF JUSTICE SHERRY BEASLEY FAILED TO PROTECT THEM. THE MURDERER SHOW DOUBLING THE FACE BC. THEY CAME TO HIS SON'S MEN CONVICTED OF SEXUALLY ASSAULTING A 7 YEAR-OLD GIRL. SHE THREW OUT THE INDICTMENT. >> BEASLEY IS A DEMOCRATIC CANDIDATE IN NORTH CAROLINA'S U.S. SENATE RACE WILL TAKE ON REPUBLICAN TED BUDD IN NOVEMBER. THE AD MAKES 2 CLAIMS ABOUT HER THAT SHE VACATED THE DEATH SENTENCE FOR SOMEONE WHO SHOT A TEENAGER AND THAT SHE THREW OUT THE INDICTMENT OF A MAN CONVICTED OF ASSAULTING A YOUNG GIRL. THE AD IS SOMEWHAT ACCURATE. BUT LET'S BE CLEAR ABOUT SOMETHING NEITHER OF THESE CASES WAS ABOUT THE DEFENDANT'S ACTIONS AND THE DEATH SENTENCE CASE. A MAN HAD BEEN CONVICTED OF MURDERING A 17 YEAR-OLD. HE WAS INITIALLY GIVEN THE DEATH PENALTY. BUT THEN YOU SOMETHING CALLED THE RACIAL JUSTICE ACT TO GET HIS SENTENCE REDUCED TO LIFE IN PRISON. STATE LAWMAKERS THEN REPEAL THE RACIAL JUSTICE ACT AND THE STATE SUPREME COURT WAS ASKED SHOULD THE MEN BE SENT BACK TO DEATH ROW BEASLEY IN THE COURT RULED NO, THAT WOULD BE DOUBLE JEOPARDY. SO HE'LL SERVE LIFE IN PRISON. AS FOR THE CASE WITH THE YOUNG GIRL, THE MAN WHO HAD BEEN CONVICTED ARGUED TO HAVE HIS CASE THROWN OUT BECAUSE PROSECUTORS DIDN'T COMPLY WITH STATE LAW AS IT APPLIES TO IDENTIFYING HIS ACCUSER. THE INDICTMENT REFERRED ONLY TO THE GIRL AS VICTIM ONE. THE COURT RULED 42 THAT THE INDICTMENT DID NOT DISTINGUISH THE DEFENDANT ACCUSER FROM OTHER VICTIMS. BEASLEY IN THE 3 OTHER CITED THIS STATE LAW WHICH SAYS INDICTMENTS MUST HAVE SOME FORM OF IDENTIFYING INFORMATION FOR THE VICTIM. SO ALTOGETHER, THAT AD HAD SOME ACCURATE INFORMATION, BUT IT LEAVES OUT A LOT OF IMPORTANT CONTEXT AND THAT'S WHY THE TREATIES OR A GET AFTER IT. >> TO READ MORE ABOUT THOSE CASES, GO TO WRAL DOT COM. THANKS TO PAUL TRYING TO HELP US TO UNDERSTAND WHAT YOU SEE IN THESE ADS AND THEY'RE GOING TO BE PLENTY MORE AS WE APPROACH THE NOVEMBER ELECTION. BUT THERE'S A LOT MORE IN GENERAL TO TALK ABOUT. SO PLEASE E-MAIL ME AT DAN. >> AT WRAL DOT COM, NOT TRY TO RESPOND TO EVERY SINGLE E-MAIL. PLEASE BE PATIENT. I GET A TON OF THEM. SO IF YOU HAVEN'T GOTTEN A RESPONSE YET, TRUST ME. I'M WORKING ON IT. IF YOU HAVE SOMETHING ELSE TO SAY BE PERSISTENT. LIKE KARL WHO SAID, I ENJOY YOUR PROVOKING DISCUSSIONS OF CONTROVERSIAL QUESTIONS, BUT I HAVE NOT SEEN ONE PRESSING ISSUE TREATED. WHAT HAPPENED WITH KAT CAMPBELL IS VISIT TO ICELAND. WE WERE SUPPOSED TO GET DAILY REPORTS WITH PICTURES OF WATERFALLS AND VOLCANOES, ET CETERA. BUT I SAW ONLY ONE ON THE FIRST DAY OF ARRIVAL WITH A HUGE CHURCH. THEN SUDDENLY SHE WAS BACK ON THE AIR AS IF NOTHING HAD HAPPENED. NO WORD MENTION OF ICELAND, WRAL TRYING TO COVER SOMETHING UP. YES. IS A SECRET AGENT.

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First amendment allows political ads to run -- even if they have misleading statements - WRAL News

Many drivers consider their cars an extension of themselves and their personalities. Thats why its not terribly uncommon for drivers to drop thousands of dollars on custom paint jobs or other body modifications. With a bit of mechanical expertise, you can even add custom horn sounds to your car. However, horns are, first and foremost, a car safety issue.

Most of us dont appreciate excessive car horn blaring, but its hard to control the actions of other drivers. In fact, some people would even say that limiting how much one can honk infringes on free speech. What do the courts have to say about honking your car horn and the First Amendment?

According to AAA, the first Klaxon car horn was introduced in the early 1900s. Back in those days, it was considered polite to fire off an ahooga at pedestrians and other drivers. Still, just like today, it was primarily installed as a safety feature.

Car horn units are located under the hood, usually behind the grille or the front firewall. When you press down on the horn at the wheel, it sends electric currents into a metal diaphragm. The vibrations caused by this diaphragm can produce between 100-110 decibels.

Eventually, the Klaxon was swapped out for electric car horns in the 1930s. Since then, the car horn has received minimal upgrades, though mostly just material swaps.

In most cases, judges wont recognize honking your horn as exercising your First Amendment rights. In 1985, one driver claimed that he was allowed to repeatedly honk in traffic because it was his right of expressive conduct.

According to the First Amendment Encyclopedia, New York law states that he only should have been honking his horn if he was in danger. In order to violate the First Amendment, something must restrict the viewpoint or content of an individual. New Yorks law to reduce noise pollution and traffic noise does neither.

Another driver, Lori Compas, contested that she was allowed to honk her horn as much as she pleased because it was in protest. She thought that a parking lot for recreational vehicles had no place in a national park, so she used her horn to express that. The judge argued that honking your horn to express displeasure at something is not the kind of protest protected by the Constitution.

One Oregon court argued that banning horn honking could be seen as restricting free expression. The court made the case that using your horn to sound off a friendly greeting shouldnt be illegal. Such a harmless act is one thing, but breaking another law or causing a public disturbance with your honking is another.

In many cities, its illegal to honk your horn unless you or another driver is in immediate danger. You know those quick, happy beeps you might make when passing a friend on the road or at a stoplight? An officer might give you a ticket for that, possibly costing a few hundred dollars.

It might seem harsh, but beeping your horn at a friend encourages your friend to honk back. Other drivers probably dont appreciate getting stuck in the middle of a screeching conversation between two vehicles. At that point, youre both disrupting traffic and possibly disturbing the peace.

Likewise, you shouldnt honk your horn just because someone is making you angry. Obviously, a quick honk before someone cuts you off can prevent injury to everyone. However, if someones music is too loud or you spy an ugly bumper sticker, its better to look the other way.

Unrestrained car horns arent just annoying: theyre also not that great for your ears. Any excessive noise louder than 70 decibels can cause hearing damage over a long period of time.

The bottom line is that were not in the 20th century anymore. Unless you live in another country with more pedestrian traffic, most drivers wont appreciate excessive honking on their morning commutes. Free speech is obviously important, but theres more value in using our voices (and honks) for constructive purposes.

RELATED: Is It Illegal to Beep Your Horn at a Cop Car?

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Is Honking Your Car Horn a First Amendment Right? - MotorBiscuit

AUSTIN (The Borowitz Report)A rattled Greg Abbott described for reporters the moment of abject terror that he endured when the gubernatorial candidate Beto ORourke suddenly talked to him.

Without warning, out of nowhere, there he appeared, saying things, the Governor of Texas said. Im still shaking just thinking about it.

Accusing ORourke of hiding behind the First Amendment, Abbott asserted, That amendment was written in the eighteenth century and was intended for use only in times of war, such as when Paul Revere warned that the British were coming.

Abbott said that he would secure twenty-four-hour police protection to shield himself from future terrifying incidents of ORourke speaking, and that he would take measures to safeguard fellow-Texans from similar outbursts.

One measure under consideration is a two-week waiting period between ORourke thinking of something to say and being permitted to say it, aides to the Governor confirmed.

The No. 1 problem facing Texas today is Beto ORourke making sudden, unprovoked comments, he said. We must pass new, strict laws to protect Texans from Beto ORourkes sentences.

The rest is here:
Shaken Greg Abbott Describes Moment of Terror When Beto ORourke Talked to Him - The New Yorker

The conservative United States Court of Appeals for the Fifth Circuit handed down a brief, unexplained order Wednesday evening that will throw the entire social media industry into turmoil if the Texas law at issue in this case is allowed to remain in effect.

The decision in NetChoice v. Paxton reinstates an unconstitutional Texas law that seizes control of the major social media platforms content moderation process, requiring them to either carry content that those platforms do not wish to publish or be so restrictive it would render the platforms unusable. This law is unconstitutional because the First Amendment prohibits the government from ordering private companies or individuals to publish speech that they do not wish to be associated with.

As the Supreme Court said in Rumsfeld v. Forum for Academic and Institutional Rights (2006), this Courts leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say.

The Texas law prohibits a social media platform that functionally has more than 50 million active users in the United States in a calendar month from banning a user or even from regulating or restricting a users content or altering the algorithms that surface content to other users because of that users viewpoint.

The law only applies to Texas residents, businesses that operate in Texas, or to anyone who shares or receives content on a social media platform in this state. Practically speaking, however, a social media company could struggle to identify which users view social media content within the state of Texas, and which businesses have Texas operations. So, if they dont want to be sued for violating the Texas law, they would likely end up applying Texass rules to all users.

The law applies broadly, moreover, to all forms of viewpoint discrimination, regardless of whether that viewpoint is political.

For these reasons, even setting aside the fact that this law is unconstitutional, it imposes a completely unworkable standard on social media platforms. Imagine, for example, that a man stalks his ex-girlfriend on Twitter, creating multiple accounts that harass her and call her ugly, while also encouraging others to do the same.

If Twitter bans this stalker for calling his ex ugly, the Texas law could be interpreted to also require Twitter to ban anyone who calls the same woman beautiful, because the law forbids discrimination on the basis of viewpoint.

Similarly, imagine that a member of the Ku Klux Klan starts a YouTube account called Black people are worthless, which posts videos of racial-slur laden rants claiming that Black people have contributed nothing valuable to society. If YouTube so much as tweaks its algorithm to prevent this klansmans videos from autoplaying for unsuspecting users, it would also have to do the same to any content on the same topic expressing the opposite viewpoint that is, the viewpoint that Black people have, in fact, made valuable contributions to society.

The law permits any user who believes that a social media platform has violated the Texas law, as well as the states attorney general, to sue that platform in order to force compliance. A victorious plaintiff is entitled to an injunction requiring the platform to comply with the state law, as well as attorneys fees. Courts may also hold the social media platform in contempt and use all lawful measures to secure immediate compliance if a social media company resists an unconstitutional court order requiring it to involuntarily publish content.

The Texas law, in other words, would effectively turn every single major social media platform into 4chan a cesspool of racial slurs, misogyny, and targeted harassment that the platforms would be powerless to control, unless they wanted to enact such sweeping content moderation policies that their platforms would become unusable. (Admittedly, the Texas law does permit social media companies to remove some racist and sexist content, but only if that content directly incites criminal activity or consists of specific threats of violence.)

The law was set to go into effect last December, but after two social media trade associations sued, a federal judge blocked the law one day before that could happen. The Fifth Circuits one-sentence order doesnt rule on the constitutionality of the law, but reinstates it while the lawsuits play out placing social media companies in immediate jeopardy if they engage in the most basic content moderation.

The Texas law is one of several recent attempts by Republican state governments to sanction media companies they perceive as insufficiently deferential to conservatives. In a statement released shortly after he signed the bill, Texas Gov. Greg Abbott (R) claimed that he did so to thwart a dangerous movement by social media companies to silence conservative viewpoints and ideas.

Although there are individual examples of conservatives being kicked off of social media platforms Twitter and Facebook famously banned former President Donald Trump after they found his actions on January 6 violated their policies the evidence that social media companies are engaged in any kind of systematic discrimination against conservative viewpoints is, to say the least, thin.

Even if companies like Twitter or Facebook were targeting conservative speakers, they have a First Amendment right to do so. Corporations, like individuals, are allowed to express whatever viewpoint they choose. And they are not required to give equal time to opposing viewpoints.

The rule that the First Amendment applies to corporations, and not just individuals, became controversial after the Supreme Courts campaign finance decision in Citizens United v. FEC (2010), but this rule long predates Citizens United. In New York Times v. Sullivan (1964), for example, the Court ruled that Jim Crow state officials could not use malicious libel suits to punish a media corporation that published an advertisement with a pro-civil rights viewpoint.

This rule that companies can publish whatever viewpoints they want, and can also exclude any viewpoint they want applies to newer platforms like social media as surely as it applies to traditional platforms such as a newspaper or a companys public statements. That was the holding of Reno v. ACLU (1997). Although Reno acknowledged that the internet offered speakers new ways to popularize their views, it held that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.

The First Amendment provides free speech protections that sometimes go beyond the protections afforded to social media companies under federal laws such as Section 230 of the Communications Decency Act. Section 230 establishes that internet platforms typically cannot be sued because they host content that may be libelous or that is otherwise unprotected by the First Amendment. In this way, they are more of a platform than a newspaper publisher legally responsible for the views expressed on their site.

But even if Section 230 were repealed tomorrow, the First Amendment would still prohibit the state of Texas from ordering a social media company (or any other company, for that matter) to publish content that it does not wish to publish.

To this, Texas says that the First Amendment should treat social media companies less like a newspaper, and more like a railroad. Specifically, the Texas law declares that major social media companies should be classified as common carriers, a term that has historically applied to buses, trains, airlines, and other transportation companies that offer their services to the general public.

As one federal appeals court explained in a 2016 opinion, common carriers have long been subject to nondiscrimination and equal access obligations without raising any First Amendment issues. And courts have long allowed some communication forums to be classified as common carriers, such as telephone companies and broadband providers.

But, as Judge Robert Pitman explained in his opinion blocking the Texas law the opinion that was just stayed by the Fifth Circuit there are very important distinctions between a company like Facebook or Twitter, and a phone company or internet service provider.

Common carriers, Pitman explains, act as a passive conduit for content posted by users. Your phone company does not monitor your calls to make sure that you arent saying anything offensive to the people that you speak with. And your broadband provider does not read your emails and refuse to deliver ones that contain racial slurs.

Social media companies, by contrast, are more akin to newspapers that engage in substantial editorial discretion. As Facebook told Pitman in a court filing, that company makes decisions about billions of pieces of content and [a]ll such decisions are unique and context-specific[] and involve some measure of judgment.

To be sure, social media platforms are not exactly the same as newspapers. The whole reason why laws like Section 230 exist is because internet platforms exist in a gray area between newspapers, which publish nothing that is not approved by a journalist employed by that paper, and telephone companies, which engage in no content moderation whatsoever. Congress enacted Section 230 because it understood that platforms that fall into this gray area should not always be subject to the same rules that apply to newspapers.

But that doesnt mean that social media companies are common carriers. Again, the sort of communications companies that are treated as common carriers phone companies and internet service providers are companies that typically engage in no content moderation. Social media platforms, by contrast, typically have terms of service that its users must comply with, and they employ teams of moderators who evaluate whether specific content violates these terms and must be taken down. Many also use algorithms that effectively give each user a customized experience tailored to whatever the platform thinks the user wants to see. Thats a far cry from a common carrier that acts merely as a passive conduit.

Even if a company like Twitter could be classified as a common carrier, the anti-discrimination rules applied to such carriers are rarely absolute. Amtraks terms of service, for example, permits it to remove passengers whose conduct is objectionable or whose personal hygiene makes them offensive. So why shouldnt Twitter be allowed to remove a user who, for example, bombards others with racial slurs?

The Fifth Circuits decision halting Pitmans order consists of only a single sentence IT IS ORDERED that the appellants opposed motion to stay preliminary injunction pending appeal is GRANTED and a single footnote indicating that the three-judge panel that heard this case is not unanimous.

Although the court did not identify which of the three judges dissented, its not hard to guess how the votes broke down. The panel includes Judge Leslie Southwick, a relatively moderate conservative appointed by President George W. Bush, as well as two notoriously right-wing judges.

Judge Edith Jones is a former general counsel to the Republican Party of Texas who was appointed by President Ronald Reagan when she was just 35 years old. Since then, shes developed a reputation as an especially caustic conservative Jones once told a liberal colleague to shut up during a court hearing, and she joined an opinion arguing that a man should be executed despite the fact that his lawyer slept through much of his trial.

The third judge, Andy Oldham, is a young Trump appointee who clerked for Justice Samuel Alito. Among other things, Oldham is the author of a Fifth Circuit opinion permitting a Trump-appointed district judge to seize control of much of the nations policy governing the US-Mexico border.

It is likely, but not entirely certain, that Jones and Oldham are right-wing outliers even when compared to the median justice on the Supreme Court. In 2021, Justice Clarence Thomas published an opinion expressing sympathy for the common carrier theory Texas relies on in NetChoice. But that opinion was joined by no other justice.

In any event, given the enormous disruption the Fifth Circuits NetChoice decision is likely to create for social media companies, it is likely that they will ask the Supreme Court to intervene very soon. We should know in very short order, in other words, whether the Supreme Court intends to write social media out of the First Amendment.

Original post:
Two GOP judges just gave Texas control over Twitter, Facebook, and YouTube - Vox.com

The closely watched privacy and First Amendment battle between Clearview AI (Clearview) and the American Civil Liberties Union (ACLU) came to a close on May 9, 2022 as the parties announced a settlement and proposed consent decree that would resolve all outstanding issues. ACLU v. Clearview AI, Inc., 2020 CH 04353 (Cir. Ct. Cook City., Ill.) (motion for settlement approval filed May 9, 2022). Clearview has gained prominence and market share in recent years by amassing over three billion facial images from public sources and building a business model premised on digitizing these images and making them available to a range of customer interests and industry sectors. Market demand for this database (the Clearview App) spans law enforcement agencies at the federal and state level, U.S. national security interests, artificial intelligence companies in need of data to develop and enhance facial recognition software and a wide array of other commercial, educational and other uses. Controversy has arisen as to potential surveillance implications and potential abuses of such a database, in the U.S. and around the world.

Concerned about individual privacy interests, as exemplified by the protections afforded biometric information by the Illinois Biometric Privacy Act (BIPA), the ACLU sued Clearview in the Circuit Court of Cook County in 2020, alleging widespread BIPA violations and arguing there is no First Amendment justification for the Clearview business model that would overtake BIPA or exempt the company from BIPAs requirements.

The case has been closely watched and was hard fought from 2020 to 2022. The settlement, which is sure to draw the attention of legislators, regulators, and other courts, provides the following key compromises:

1. A Private Entity Ban, in which Clearview has agreed to a nationwide injunction barring access to the Clearview App by: (i) any private entity or private individuals unless such access is compliant with BIPA; or (ii) any governmental employee not acting in his or her official capacity.

2. An Illinois State Ban, in which Clearview has agreed to a five-year injunction against access to the Clearview App: (i) by Illinois state and local agencies and their contractors; (ii) by any private entity located in Illinois even if permissible under BIPA; and (iii) by employees of Illinois state and local agencies and their contractors, whether in their individual or official capacities.

3. A Savings Clause, in which the parties agreed there will be no restrictions on Clearviews ability to work with or contract with: (i) third-parties outside Illinois; (ii) federal agencies whether in Illinois or outside Illinois; and (iii) state or local government agencies outside Illinois.

4. An Opt-Out Program for Illinois residents, by which an Illinois resident will be allowed to submit a photo to Clearview and compel Clearview, on a best-efforts basis, to block search results and prevent any future collection of facial recognition data or images of such person.

5. Illinois Photo Screening, in which Clearview has agreed, on a best-efforts basis, not to access or use any of its existing Illinois-based facial recognition data.

This continues to be a case to watch, as the parties move forward to seek court approval. Key takeaways include the following:

1. No Compensatory Relief Almost no money will change hands. Clearview will pay an agreed $50,000 to advertise the Opt-Out program and $250,000 in attorneys fees. The large number of BIPA class actions against Clearview, currently assigned to the Northern District of Illinois by the Judicial Panel on Multidistrict Litigation, are not part of the settlement and will proceed, as will the large number of class actions and other cases in state court in Illinois.

2. Policy by Consent Decree The Clearview-ACLU settlement, if approved by the court, will govern large areas of facial recognition and privacy policy in Illinois and across the U.S., both because of the dominant market position occupied by Clearview and the types of compromises hammered out by the parties in the proposed consent decree. While ongoing regulatory and legislative efforts will continue, in Illinois and around the country, the implementation of this consent decree is sure to be closely watched by federal and state policy makers as well as litigators in state attorney general offices who may wish to seek comparable relief in their states.

3. BIPA Compliance There is still no substitute for robust BIPA compliance efforts as the most cost-effective strategy to reduce or eliminate BIPA exposure in Illinois or other courts, on either an individual or class-wide basis. It bears emphasis that the largest public BIPA settlement to date was reached in the In re Facebook Biometric Information Privacy Litigation case in California in 2020 (for a class-wide settlement of $650,000,000). BIPA is still a significant litigation exposure for many companies, and the recent Clearview-ACLU settlement will not necessarily reduce or extinguish that exposure.

More:
Facial Recognition: Clearview-ACLU Settlement Charts a New Path for BIPA and the First Amendment - JD Supra

Says Pro-Choice Student Protesters Dont Have the Right to Protest

Richmond, VA Yesterday after 46 Virginia schools participated in a school walkout to protest the Supreme Courts pending decision to overturn Roe v. Wade, Attorney General Jason Miyaressaidthat these protests are incredibly disruptive and dont have the right to protest. This comes after Miyares on the campaign trailpraisedstudents for leading a walkout in Loudoun Schools this past fall. This begs the question, does Attorney General Miyares only believe in the first amendment when it fits his agenda?

When its aligned with his agenda:

When its against his agenda:

The ease at which Attorney General Miyares abandoned the first amendment is worrisome,said DPVA Spokesperson Gianni Snidle.The Attorney General is supposed to be Virginias chief law enforcement officer and took an oath to uphold the constitution. Yesterday he broke that oath. One thing is clear to Virginians Miyares is not fit to serve as the Attorney General of the Commonwealth of Virginia.

Original post:
AG Jason Miyares Only Believes in the First Amendment When It's Aligned with His Agenda - Blue Virginia