Category Archives: First Amendment

In yesterday's National Press Photographers Ass'n v. McCraw (W.D. Tex.), Judge Robert Pitman held that Texas statutes limiting drone photography were unconstitutional. A brief summary of the statutes:

Section 423.003 imposes criminal and civil penalties by declaring it unlawful to use "an unmanned aircraft to capture an image of an individual or privately owned real property with the intent to conduct surveillance on the individual or property captured in the image." Section 423.002 exempts certain uses of UAVs from liability under the Surveillance Provisions but does not exempt newsgathering. Exemptions include "professional or scholarly research and development or on behalf of an institution of higher education."

Texas Government Code Sections 423.0045 and 423.0046 (together "No-Fly Provisions") impose criminal penalties by making it unlawful to fly UAVs over a "Correctional Facility, Detention Facility, or Critical Infrastructure Facility" or "Sports Venue" at less than 400 feet. Critical infrastructure facilities are defined to include oil and gas pipelines, petroleum and alumina refineries, water treatment facilities, and natural gas fractionation and chemical manufacturing plants. In 2017, critical infrastructure was expanded though legislative amendments to include animal feeding operations, oil and gas drilling sites, and chemical production facilities, among others. The 2017 amendments also defined a "sports venue" to include any arena, stadium, automobile racetrack, coliseum, or any other facility that has seating capacity of more than 30,000 people and is "primarily used" for one or more professional or amateur sport or athletics events. Plaintiffs contend that when combined with Federal Aviation Administration ("FAA") regulations, which require UAVs to fly below 400 feet, the No-Fly Provisions effectively ban UAVs at the listed locations. The No-Fly Provisions exempt certain UAV users, including those with a "commercial purpose."

The court concluded that drone photography was covered by the First Amendment:

In the analogous context of filmmaking, the Fifth Circuit has noted that "the First Amendment protects the act of making film, as 'there is no fixed First Amendment line between the act of creating speech and the speech itself.'" Furthermore, courts have never recognized a "distinction between the process of creating a form of pure speech (such as writing or painting) and the product of these processes (the essay or the artwork) in terms of the First Amendment protection afforded.

Here, Plaintiffs have established that Chapter 423 restricts their use of drones to record the news, necessarily constraining their ability to disseminate the news. It is uncontested that budgetary and other constraints may make drones the only option for recording certain events. Defendants assert that other optionsnamely expensive helicopterscan fill the same role in facilitating news production. Yet they cannot dispute the extreme price and safety differences between these technologies. Furthermore, Pappalardo and the organizational plaintiffs' members have stated that drones are central to their journalistic pursuits, claims which Defendants do not refute.

The court concluded that the restrictions were content-based and thus subject to strict scrutiny:

The Surveillance and No-Fly Provisions are both content-based restrictions that regulate based on the subject of the expression. The Surveillance Provisions require the enforcing official to inquire into the contents of the image to determine whether it is prohibited. Specifically, the provisions apply to images of individuals and private real property only. Drone photography is permitted when the subject is public property, but when the subject is an individual or private property, the possession, disclosure, display, or distribution of the image is prohibited. In effect, the statute "identifies various categories" of images based on their content, "then subjects each category to different restrictions." An official must first ascertain the subject matter of the drone image to determine whether it is permissible under the statute. Therefore, it is the content of the image that determines its permissibilitythe definition of a content-based restriction.

The No-Fly Provisions are also subject to strict scrutiny by conditioning the legality of images based on their purpose. "Whether laws define regulated speech by particular subject matter or by its function or purpose, they are subject to strict scrutiny." Under the No-Fly Provisions, expression that would otherwise be prohibited is permissible if "used for a commercial purpose." Indeed, Calzada and Wade both note that, as journalists, they cannot take drone images of Nelson Wolff Stadium and Globe Life Park, respectively. But Wade was hired by the Rangers to take the very same images of Globe Life Park "for their own public relations purposes"that he was "not permitted to share with members of the news media." Here too, then, the purpose determines the legality of the speech. For both the Surveillance and No-Fly Provisions, the subject or purpose of the drone-captured image is the key to its applicability. Thus, both constitute content-based restrictions and trigger strict scrutiny under the First Amendment.

The Surveillance Provisions are separately subject to strict scrutiny as they discriminate based on the identity of the speaker. A regulation may also constitute a content-based restriction if it discriminates between speakers in a way that "disfavors" certain speakers in exercising their First Amendment rights. The Supreme Court has admonished that "[s]peech restrictions based on the identity of the speaker are all too often simply a means to control content." Section 423.003 provides an extensive list of individuals whose use of drones is not proscribed. Professors, students, employees of insurance companies, and real estate brokers all appear on this list; journalists do not. As Plaintiffs note, the same drone image taken legally by a professor would constitute a misdemeanor if captured by a journalist.

And the court concluded that the law failed strict scrutiny:

Here, Defendants cannot carry their burden to establish that Chapter 423 is "actually necessary" to protect any identified interests. In enacting the law, state legislators claimed the law would protect private property, individual privacy, and the safety of critical infrastructure facilities.

However, Defendants have failed to establish that alternative means are insufficient to sufficiently protect these interests. Plaintiffs note that "Defendants have a variety of tools to protect the privacy and private property of Texans from overly intrusive or dangerous drone use without Chapter 423." The Texas criminal trespass statute, recording and voyeurism statutes, and tort claims including intrusion upon seclusion all have been or could be used to protect the privacy of individuals from UAV recordings. As to safety of critical facilities, it is already a felony under Texas law to knowingly damage, impair, or interrupt a critical infrastructure facilities. Having failed to identify any interest that is unprotected absent Chapter 423, Defendants cannot establish that this provision is "actually necessary." Indeed, "[m]ere speculation of harm does not constitute a compelling state interest."

The Surveillance and No-Fly Provisions are [also] overinclusive and thus overbroad because they "unnecessarily circumscribe[s] protected expression." Plaintiffs have established that Chapter 423 effectively outlaws the use of UAVs for newsgathering on private propertyconstituting 95 percent of the state. As Plaintiffs note, the Surveillance Provisions "prevent[] journalists from using drones to record many scenes that could be recorded from a helicopter, or that anyone standing on public property could easily see and record." Wade explains that "even if I am physically over public property, I am violating the law by documenting private real property or a person on that property." Similarly, the No- Fly Provisions proscribe use of drones even when they "indisputably do[] not pose the risks that the State claims." In particular, restrictions on recording empty stadiums seem to belie explanation, and Defendants have done nothing to alter this impression.

The Surveillance and No-Fly Provisions are also underinclusive based on their carve-outs for uses of UAVs that pose the same risks as would drone journalism. If the interests in privacy and safety were indeed sufficient to uphold the law, the exceptions included in Chapter 423 would "leav[e] appreciable damage to [the government's] interest unprohibited." The Surveillance Provisions exclude 21 uses of drones, none of which obviate the purported privacy concerns of newsgathering. As such, the exceptions "raise[] serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint." As to the No-Fly Provisions, the exemption of drone photography for "commercial purposes" appears divorced from any asserted interest in safety or privacy.

The Court also held that the terms "surveillance" and "commercial purposes" were unconstitutionally vague:

Chapter 423 does not provide a definition of "surveillance," nor do Defendants put forth a single definition. ("Surveillance can involve 'close observation or listening of a person or place in the hope of gathering evidence.' Or it might be as broad as the 'act of observing or the condition of being observed.' Either might include journalism.").

Defendants further provide that surveillance may mean "the careful watching of a person or place, especially by the police or army, because of a crime that has happened or is expected"; "a watch kept over a person, group, etc., especially over a suspect, prisoner, or the like[;] continuous observation of a place, person, group, or ongoing activity in order to gather information"; or "the process of carefully watching a person or place that may be involved in a criminal activity." None of these definitions conclusively includes or excludes journalism, and none is found within the statute.

Defendants themselves double down on their refusal to define the term and its applicability to journalism, stating that "'journalism' may or may not constitute 'surveillance,' depend[ing] on factual determinations by a jury." Defendants claim that "surveillance" is distinct from "observation," because it "involves prolonged time periods and/or some degree of surreptitiousness or invasion of one's expectation that they are not being watched. But this contention only highlights the vagueness in the word's meaning, for it in no way clarifies whether journalism is covered.

The statute [also] does not define the term "commercial," and dictionary definitions do not provide conclusive guidance as to whether photojournalism is included in the definition. [Details omitted. -EV]

Read the original:
Drone On: Court Recognizes First Amendment Right to Use Drones for Newsgathering, Voids Texas Restrictions - Reason

In the wake of the 2020election, the machinery of disinformation began spreading the Big Lie that a massive and coordinated electoral fraud campaign led to President Trumps defeat. Some of this disinformation came from his legal team as well as the president himself, and these false claims wereamplifiedand spread by far-right broadcasts on networks such as One America News Network (OAN) and Fox News. While politician Sarah Palin recently failed in a defamation suit against theNew York Times, a company called Dominion Voting Systems Inc. may well succeed in its defamation suit against these two news organizations.

Each news organization trained its sights on Dominion Voting Systems Inc., a manufacturer of voting machines used in 28states. The accusations were so vile and repetitive that Dominion filed defamation suits against Fox, OAN, and attorney Sidney Powell, a member of Trumps legal team, among others. In the suit against Fox, Dominionstatedthat [i]f this case does not rise to the level of defamation by a broadcaster, then nothing does." In its filing on OAN, the complaintargued, OAN helped create and cultivate an alternate reality where up is down, pigs have wings, and Dominion engaged in a colossal fraud to steal the presidency from Donald Trump by rigging the vote.

After the 2020election, Powell alleged that Dominions voting machines were unreliable, hacked, or flipped votes. When she tried to get the Dominions defamation case dismissed, the district court ruled against her, stating, Powell contends that no reasonable person could conclude that her statements were statements of fact because they concern the 2020presidential election, which was both bitter and controversial. . . . It is true that courts recognize the value in some level of imaginative expression or rhetorical hyperbole in our public debate. But it is simply not the law that provably false statements cannot be actionable if made in the context of an election.

These suits test the reach of the First Amendment and the extent to which lies are considered protected speech. The Supreme Court has determined that published lies or inaccuracies are entitled to at least some First Amendment protection in many instances as the price of facilitating political debate and deliberation in our democracy. The Court also decided, however, that when actual malice is present, that protective coverage no longer extends. Is the Big Lie protected by the First Amendment? Or do the actions of the press and the presidents lawyers meet the actual malice standard?

The outcome of these suits may signal whether the Supreme Court is ready to overturn precedent and put tighter reins on speech or if it will offer a new set of guidelines to determine when election lies are unconstitutional and punishable by law.

Because some of Dominions defamation suits are against the press, they raise the issue of whether the actual malice standard from the landmark 1964case ofNew York Times v. Sullivanshould remain in place.

Sullivanwas a case where a public safety commissioner in Alabama, L.B. Sullivan, took offense to an ad in theNew York Timesthat was raising money for Martin Luther King Jr. and other civil rights leaders. The ad contained some factual errors that Sullivan claimed defamed him. He sued and won a $500,000judgment against theNew York Timesin lower courts. The Supreme Courtreversedthe decision, calling it constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct.

This case created the actual malice standard, whichstates, [t]he constitutional guarantees require . . . a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malicethat is, with knowledge that it was false or with reckless disregard of whether it was false or not. This was adeparturefrom the common law tradition, which had previously provided defamed individuals a greater ability to sue the press and win.

The rationale for the Courts decision in support of broader protection for freedom of the press including the freedom to publish errors and inaccuracies was that it consider[ed] this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.Sullivanprovides protection so that the press need not censor its critiques of elected and appointed government officials.

ThoughSullivanensured that the press could criticize those in political power, the Supreme Courtexpandedthe actual malice standard topublic figuresas well. While determining who qualifies as a public official is reasonably straightforward, public figure is inherently subjective and depends on how well-known a particular plaintiff is.

The Supreme Court did make clear that private individuals (non-public figures and non-government officials) were not covered by the actual malice standard in part because it was so much harder for a private, non-famous individual to get their good name back after it was defamed. As the Supreme Court noted inGertz v. Robert Welch, Inc., private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery. Thus, the Court left the rules for defamation of private individuals up to the 50states. And it made clear that someone experiencing 15minutes of fame did not mean that they were a public figure. As the Supreme Court explains inWolston v. Readers Digest, [a] private individual is not automatically transformed into a public figure just by becoming involved in or associated with a matter that attracts public attention.

There were criticisms of the actual malice standard from the beginning. In theirconcurrenceinSullivan, Justices Hugo Black and William Douglas warned that malice was an elusive, abstract concept, hard to prove and hard to disprove. The requirement that malice be proved provides at best an evanescent protection for the right to critically discuss public affairs and certainly does not measure up to the sturdy safeguard embodied in the First Amendment.

In the past few years, Justices Clarence Thomas and Neil Gorsuch have raised questions about whetherSullivans actual malice standard should persist in cases where public figures have their reputations tarnished by lies in the press. Thomas raised some eyebrows when he wrote a concurring opinion from a denial of certiorari inMcKee v. Cosby, a case in which a woman who accused entertainer Bill Cosby of sexual assault was deemed to be a limited public figure and consequently lost her defamation case because she could not satisfy the high actual malice standard. He went on to argue that New York Times [v. Sullivan] and the Courts decisions extending it were policy-driven decisions masquerading as constitutional law.

In 2021, Gorsuch joined Thomas criticism inBerisha v. Lawson, in which the Supreme Court declined to hear a case where the plaintiff sued an author for defamation based on his characterization in the authors book. Gorsuch wonders aloud, [a]sSullivansactual malice standard has come to apply in our new world, its hard not to ask whether it now even cut[s] against the very values underlying the decision.

Dominion is suing OAN and Fox News in separatesuitsfor repeatedly airing claims like the ones articulated above by Ms. Powell. Dominionssuit against OANis particularly stark in its allegations:

To capitalize on the interest its target audience had in the false Dominion narrative, OAN effectively deputized its Chief White House Correspondent, Chanel Rion, as an in-house spokesperson for all Dominion-related content. After priming its viewers with a steady diet of post-election programming falsely claiming Dominion rigged the 2020election, OAN and Rion began producing an entire line of programming exclusively devoted to defaming Dominion, descriptively named Dominion-izing the Vote, which branded OANs disinformation and defamation campaign against Dominion into a single catchy phrase that is now synonymous with fraudulently flipping votes.

The complaint alsoallegesthat in February 2021, months after the 2020election, OAN enlisted MyPillow CEO Mike Lindell to broadcast a series of multi-hour-long documentaries spreading disinformation about Dominion. Lindell falsely claimed that Dominion was behind the biggest cyber-attack in history, and that Lindell had absolute proof. Thus, OAN was tainting Dominions brand through its constant leveling of conspiracy theories against the company.

Dominion argued in its suit that OAN met the high burden of showing actual malice, statingthat OANs defamatory statements were accompanied with malice, wantonness, and a conscious desire to cause injury. OANs efforts to dismiss this suit are stillpending.

While Foxs actions were slightly less egregious than OANs behavior, Foxs considerably larger audience conceivably did more damage to Dominions reputation. As Dominionallegedin its complaint for defamation, [t]hese lies transformed Dominion into a household name. As a result of Foxs orchestrated defamatory campaign, Dominions employees, from its software engineers to its founder and chief executive officer, have been repeatedly harassed. Some have even received death threats. And of course, Dominions business has suffered enormous and irreparable economic harm.

Dominion tried to get Fox to correct its erroneous statements in real time by sending written rebuttals to false claims made by the network and its on-air personalities. As Dominionallegedin its complaint: even after Fox was put on specific written notice of the facts, it stuck to the inherently improbable and demonstrably false preconceived narrative and continued broadcasting the lies of facially unreliable sourceswhich were embraced by Foxs own on-air personalitiesbecause the lies were good for Foxs business. While Fox corrected the record with regards toSmartmatic, a different voting machine company, Fox did not relent on the matter of Dominion voting machines.

When the issue reached the courts, a Delaware state judge in theDominion v. Foxcase rejected all of Foxs First Amendment arguments and denied Foxs motion to dismiss the case. Fox attempted to argue that, as press, it was immunized from liability for defamation if what they were reporting was newsworthy. But this did not convince the judge, whoconcluded, [t]he United States Supreme Court has attempted to strike a balance between First Amendment freedoms and viable claims for defamation [and] declined to endorse per se protected categories like newsworthiness.

The courtnoted[t]he Complaint supports the reasonable inference that Fox either (i) knew its statements about Dominions role in election fraud were false or (ii) had a high degree of awareness that the statements were false. Moreover, the court found that the Complaint alleges facts that Fox made the challenged statements with knowledge of their falsity or with reckless disregard of their truth. The courtconcludedthat it could infer that Fox intended to avoid the truth.

Dominions billion dollar suits againstFoxand OAN raise a host of thorny questions: Should suits against the press for defamation be easier to win? Should statements about public figures and public officials be held to the same standard as statements about private citizens? Should a corporation like Dominion be deemed a public figure for libel purposes?

These questions seem destined to reach the Supreme Court in one form or another, as demonstrated in the recentlydismissedlibel suit brought by former Alaska governor and vice presidential candidate Sarah Palin against theNew York Times.

On the one hand, the ability of the free press to report on ongoing events will involve innocent errors. On the other, defamatory misstatements about persons or companies can do far more financial and reputational damage today than they could in 1964given the reach of cable news and internet audiences. The series of outrageous claims about Dominions voting machines could well make new case law and provide the Supreme Court a chance to articulate which types of lies about elections areactionable.

Dominions suits point to the direct harm to democracy that disinformation can cause. AsNPRreported, Dominions court filing alleges that Fox recklessly disregarded the truth and that some of its viewers believed the channels narrative with such fervor that they took the fight from social media to the United States Capitol and at rallies across the country to #StopTheSteal, inflicting violence, terror, and death along the way. And moreover, [t]he lies did not simply harm Dominion, the companys lawsuit says. They harmed democracy. They harmed the idea of credible elections. They harmed a once-unshakeable faith in democratic and peaceful transfers of power. In other words, the small-d democratic stakes could hardly be higher in these defamation cases about a voting machine company in the 2020election.

Read more from the original source:
Dominion Voting's Libel Suits, the First Amendment, and Actual Malice - brennancenter.org

Fueled by the pandemic, the nonconsensual distribution of sexual images requires federal regulatory solutions.

In late 2020, New York Attorney General Letitia James urged New Yorkers to protect themselves against a silent threat escalating across the United States. James was not referencing COVID-19, but another danger exacerbated by pandemic conditions: the nonconsensual distribution of sexually graphic imagery.

As COVID-19 drove people out of public spaces and onto their phones and social media sites, cases of nonconsensual image sharingalso referred to as cyber sexual abuse or revenge pornskyrocketed alongside other forms of domestic abuse. As a result, regulatory gaps in addressing revenge porn have grown more glaring.

Only in the past month has federal law moved toward prohibiting the distribution of revenge porn. Meanwhile, over the last decade, the American Civil Liberties Union (ACLU) has fought to narrow the scope of state statutes that criminalize such imagery. The ACLU has argued that laws aimed at stopping revenge porn tend to have a chilling effect on free speech rights protected by the First Amendment of the U.S. Constitution.

Although most states have now passed legislation against sharing revenge porn, the ACLUs prior litigation has led some states to limit the scope of their protective statutes. Today, state judiciaries remain split as to what level of judicial scrutiny should be applied to test the constitutionality of these laws.

Given the variation between state laws, the recent creation of a federal cause of action for revenge porn victims through the Violence Against Women Reauthorization Act (VAWA) is a promising step forward. But the VAWA is limited in scope, and raises as many questions as it does answersemphasizing the need for further legal reform and regulatory guidance.

Although nonconsensual sharing of explicit imagery on tech platforms exploded during the pandemic, the problem was already well-entrenched before COVID-19. Over 10.4 million Americans have been threatened or exploited by revenge porn. One out of every twenty-five Americans falls victim to threats or posts of nearly nude or nude images without their permission.

And such violations are gendered, with 90 percent of victims identifying as women. Young women are particularly targeted, with about 10 percent of American women under the age of 30 reporting threats of nonconsensual image sharing.

The vast majority of revenge porn victims experience significant emotional distress and impaired functioning in social settings or at work. More than half of victims report suicidal thoughts.

Such suffering may motivate some victims to file reports with law enforcement or to sue their abusersbut without a federal statute in place, their existing options to do so are limited.

In 1996, the U.S. Congress attempted to regulate pornographic material on internet platforms through the Communications Decency Act. But the U.S. Supreme Court quickly struck down the Acts anti-decency provisions as violations of free speech rights.

Still worse, a surviving section of the Act, Section 230, protects websites and service providers from liability for content from users. Platforms have no legal obligation to monitor or remove nonconsensual pornography, unless a separate violation of federal criminal law is also present.

From out of this gap in federal oversight, states have moved to provide victims with ways to legally fight revenge porn exploitation. Forty-six states and the District of Columbia now have statutes prohibiting the distribution or production on nonconsensual pornography.

But these laws often face limitations in scope due to previous challenges from an unexpected litigant: the ACLU.

From about 2014 to 2019, the ACLU pushed states to narrow their newly passed revenge porn statutes, potentially creating a high burden of proof for victims. For example, litigation from the ACLU may have prompted Arizona to alter its 2015 revenge porn statuteshifting the state from merely requiring proof that someone intentionally published or shared material, to instead requiring proof of wrongful intent.

Soon afterwards, the ACLU similarly challenged a Rhode Island statute, arguing that even the states careful efforts to protect sexual imagery that could serve the public interest, such as artistic expression, was not enough to vindicate First Amendment concerns.

Although subsequent state litigation has upheld these narrower statutes as lawful, courts remain divided as to the proper degree of judicial scrutiny for assessing statutes constitutionalitywith potentially serious implications for victims.

To start, none of the state courts that have examined revenge porn laws have reached a conclusion as to whether or not nonconsensual sexual imagery is protected speech under the First Amendment. This ambiguity has created a fractured landscape for victims effective rights. Some state courts recognize a strong, compelling government duty to protect revenge porn victims from the harm imposed by the publicization of any nonconsensual sexual imagery. But other states courts are left free to burden victims with the task of proving their abusers malicious intentions.

In applying strict scrutiny to such statutes, state courts in Vermont, Minnesota, and Texas have emphasized the harm imposed by nonconsensual sexual imagery on victims. In doing so, they have recognized that revenge porn statutes lie within a states definitive duty to protect the health and safety of their citizenseven if such a restriction would normally be precluded by First Amendment protections.

In contrast, the Illinois Supreme Court has applied intermediate scrutiny, based on its holding that revenge porn is a purely private matter and not the sort of public concern that justifies an imposition on First Amendment protections. The court also held that the states revenge porn statute was content neutralfocusing on a persons intent in disseminating nonconsensual sexual content, rather than the content itself.

The court upheld the statute, in the endbut in doing so, it appeared to avoid grappling with the devastating societal impacts of revenge porn. As a result, victim-litigants in states such as Illinois are burdened with proving that their abusers knew that they did not consent to the distribution of imagery.

In a landmark development earlier this month, Congress reauthorized the Violence Against Women Reauthorization Act (VAWA) of 2021 and added one pathway by which revenge porn victims may seek justice. Under an amendment to VAWA, victims can now sue perpetrators in civil court for knowingly distributing any intimate visual depiction of an identifiable individual.

But only time will tell if the amendment goes far enough toward combating cyber sexual abuse. Although the amendment does not bar the U.S. Department of Justice or other prosecutors from pursuing enforcement actions, the onus remains on victims to pursue their own costly legal battles. And communication platforms are only potentially liable if they solicit nonconsensual sexual imagery or primarily peddle revenge porn. This standard may exempt larger platforms that often traffic exploitative sexual imagery, but also engage in many other functions.

Finally, the interaction between the VAWA amendment, state laws, and judicial standards remains unclear. If victims were to bring a federal civil action, federal courts may be lenient toward First Amendment defenses. Similar to the state courts, federal court may also split and apply different degrees of scrutiny to the law itself.

Considering the continued escalation of cyber sexual abuse during COVID and the lack of cohesive, compassionate protection for revenge porn victims, comprehensive legal reform and more regulatory guidance remains more crucial than ever.

Read more from the original source:
Curbing the Pandemic of Cyber Sexual Abuse - The Regulatory Review

(NEXSTAR) A Texas student who says she was bullied over her refusal to participate in the Pledge of Allegiance has been awarded $90,000, according to the civil rights organization representing her.

In 2017, the student sued her 12th grade sociology teacher at Houston-area Klein Oak High School. The teacher, Benjie Arnold, allegedly singled her out for harassment, at one point forcing her to write out the Pledge against state law, American Atheists stated in a news release Tuesday.

The payment, made through a risk pool funded by Texas school districts, prevented the case from going to trial. The Texas Association of School Boards did not immediately respond to Nexstars request for comment.

During her four years at Klein Oak High School, the student declined to participate in the Pledge of Allegiance out of her objection to the words, Under God, and her belief that the United States does not adequately guarantee liberty and justice for all, especially for people of color, according to the group.

Arnold allegedly retaliated against her, threatening to giver her failing grades for refusing to write out the Pledge and at one point went on a tirade captured in an audio recording during which he offered to pay students to leave the country if they didnt like living in America.

It got so bad, according to the release, that the student was homeschooled for a time before returning to Klein Oak, at which point the alleged harassment intensified.

Nonreligious students often face bullying or harassment for expressing their deeply held convictions, said Nick Fish, president of American Atheists. No one should have to endure the years of harassment, disrespect, and bullying our client faced. The fact that this happened in a public school and at the hands of staff who should know better is particularly appalling. After nearly five years of litigation, the defendant finally made the only smart decision and agreed to settle this case.

In 1943, the U.S. Supreme Court ruled that forcing public school students to salute the flag or recite the Pledge of Allegiance violated First Amendment rights.

Texas law also protects students from having to recite a pledge of allegiance as long as they have a written request from their parent or guardian, which she did.

The classroom is not a pulpit. It is a place of education, not indoctrination, said Geoffrey T. Blackwell, Litigation Counsel at American Atheists, who handled the case and settlement negotiations in partnership with Texas civil rights attorney Randall Kallinen. This settlement serves as a reminder that students do not lose their First Amendment rights when they enter the classroom.

The school district did not fire Arnold, according to the Courthouse News Service, who is still at Klein Oak High School where he is teaching for his 51st year.

Originally posted here:
Student who says teacher bullied her over Pledge of Allegiance is awarded $90K - NewsNation Now

Last weeks decision by U.S. District Court Judge Scott Skavdahl ruling that a section of the Wyoming election code is unconstitutional will have greater impact on upcoming elections in the state as opposed to the case he ruled on.

The section of the election code in question deals with the balance between the First Amendment right to engage in political free speech and the need to require full disclosure of those who are promoting certain candidates or issues by funding media.

The ruling by Skavdahl originated from a 2020 case involving the Greater Cheyenne Chamber of Commerce filing a complaint against the Wyoming Gun Owners organization for running a series of attack ads without being registered with the Wyoming Secretary of States office as required.

Wyoming Gun Owners won the case with Skavdahl writing the Wyoming election code is unconstitutional because it chills speech.

What effect this decision will have on the upcoming midterms is unclear.

With Rep. Liz Cheney attempting to maintain her seat amid strong opposition from several other Republicans including Donald Trump-endorsed Harriet Hageman, expect a bunch of outside money to be spent on both campaigns.

Much of that money will be provided from organizations or individuals outside of Wyoming.

Will Skavdahls decision invite more dark money from outside the state? Most likely, but that is a question that cant be answered at this point.

Watch for the Wyoming elections law committee and the Wyoming Legislature to craft a law within the next two years that walks the fine line between the First Amendment right to free political speech and the right to know who or what organization is paying for political advertising.

See more here:
Editorial: Court decision will have an impact | Opinion | codyenterprise.com - Cody Enterprise

Patna (Bihar)[India], March 30 (ANI): The Bihar Legislative Assembly on Wednesday passed the Bihar Prohibition and Excise (Amendment) Bill, 2022 which empowers the state government to impose penalties for certain categories of offences instead of direct imprisonment.

The Bill permits the state government to prescribe fines, and imprisonment (in case of repeat offenders) for the consumption of liquor.

The Bill comes after the criticism of the Nitish Kumar government over the continuous increase in the number of cases pending in courts and undertrials in jails.

After the amendment, the offender will be presented before a duty magistrate, which will decide the seriousness of the offence.

After going through the circumstances, the magistrate can just impose a fine on the offender instead direct imprisonment, as prescribed earlier.

If the offender fails to pay the penalty then he/she will be liable to face imprisonment.

This is the third amendment in the Bihar Prohibition and Excise Act, 2016. The first amendment to the act was brought in 2018 and then subsequently in 2020.

The Bill seeks to amend the Bihar Prohibition and Excise Act, 2016 which enforces the complete prohibition of liquor and intoxicants in Bihar. (ANI)

This report is auto-generated from ANI news service. ThePrint holds no responsibility for its content.

Continue reading here:
Bihar assembly passes amendment Bill on liquor ban, first time offender will be penalised instead of imprisonment - ThePrint

Oh no! The dreaded heckle veto!

Being heckled and being the victim of the legal concept of the hecklers veto are two completely different things.

If someone botched this issue on a bar exam we wouldnt let them practice law. So how are we letting people who ostensibly teach constitutional law get away with pumping out disingenuously bad legal takes to pollute the publics already horrid legal literacy?

Perhaps its more fair to say I hope these takes are disingenuous and these people really know better. But whether theyre using their legal credentials to mislead the public for their own partisan aims or theyre genuinely incapable of grasping basic constitutional law, it seems like something we should care about.

Because whenever some legal expert takes to the media to bemoan the hecklers veto they genuinely earn this clip.

The phrase hecklers veto is pretty straightforward. It exists when cops use the real or hypothetical risk of heckler violence to charge the original speaker for either inciting the response or, more often, to stop that speaker from speaking in the first place.

The Supreme Court first used the term in Brown v. Louisiana, 383 U.S. 131 (1966) (link courtesy of Westlaw). In that case, civil rights protesters staged a library sit in. In a footnote, the majority noted the risk of a hecklers veto where law enforcement would charge someone with disturbing the peace based solely on the exercise of the speakers First Amendment rights.

Not only is a hecklers veto not the case of someone heckled me, in most cases it requires that no heckling actually occur since the whole point is that the cops use the risk of potential future violence as a prior restraint.

Transforming a hecklers veto into mere heckling does as much violence to the phrase as declaring a hot dog only means a flaming poodle.

We went through all this already with human issue-misser Jonathan Turley, who wrote a long tirade about the hecklers veto while managing to bungle the concept like it was his own work. Turley complained that a poll showed that students feel like its fine to protest against university speakers they disagree with which it is! But Turley branded this a hecklers veto, effectively lobotomizing the remaining semblance of his knowledge of the Constitution.

Unfortunately, Turley isnt alone in this use and abuse of this legal concept. In a Wall Street Journal op-ed yesterday, Ilya Shapiro, of lesser Black women fame, decried the mood during his recent trip to Hastings:

Youd think that law students should have a particular appreciation for spirited and open engagement with provocative ideas. Theyve chosen a career that centers on argument and persuasion.

But alas a hecklers veto prevailed.

No, it didnt. Because police didnt charge him with a crime for showing up. Its not a hecklers veto at all. Now, you could say the tactics of those protesters were unprofessional or counterproductive if you want. Thats an entirely fair debate. But stop pretending the protesters triggered a very specific legal concept when they didnt.

But theyre going to keep this misconception going because conservatives want to bolt hecklers veto onto their distaste for protesters. Because theres actually a legal legacy disfavoring the hecklers veto when theres exactly zilch legal legacy around protesters should let me give my speech uninterrupted.

Why take it to this level? Shapiros description of his Hastings event certainly makes it sound like the protesters crossed the line and committed real infractions. There would be no need to appeal to protesters as anti-free speech based on his description theres no free speech defense to assaulting someone after all.

Could it be that conservatives want to recast protesting as a hecklers veto because they know that, despite their breathless accounts, these student protests almost never result in protesters actually committing any crimes? Hmmmmm. [UPDATE: Speaking of breathless accounts, Ive heard from witnesses to the Yale event that recently made headlines that the WSJ account of shouting down is wildly exaggerated. Which tracks with this observation.]

When protests arent really crossing the line, just change the line.

As we put it in the earlier Turley piece:

William O. Douglas wrote in Terminiello v. Chicago a case much closer to a hecklers veto that speech achieves its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Turley argues that free speech achieves its high purpose when students are docile bullshit sponges for whatever crank comes along.

But, hey, were probably due for one of the scores of ABA non-qualified tweebs now sitting on the the federal bench to jam this reimagined interpretation into a decision further cluttering First Amendment law with the Con Law equivalent of replacing proximate cause with hey, you were in the area buddy!

Mob Rule and Cancel Culture at Hastings Law School [Wall Street Journal]

Earlier: Shut Up And Stop Heckle Vetoing Me, Law School Prof Yells At CloudsBanning Law School Protests To Protect Free Speech Marks New Orwellian Heights

Joe Patriceis a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free toemail any tips, questions, or comments. Follow him onTwitterif youre interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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'Legal Experts' Need To Stop Deliberately Misleading People About The First Amendment - Above the Law

Palin is expected to continue her fight, but given that the judge and jury sided with The Times, her appeal has been characterized as an uphill battle. What different strategies and/or new evidence would her legal team need to introduce to succeed in the court of appeals?

Ironically, a loss may have been exactly what Palin was going for. The judge and jury almost certainly got the result correct under the protective standard of Sullivan, which protects reporting about public figures unless journalists are reckless or intentionally wrong in their reporting. But judges and scholars are increasingly questioning whether Sullivans standard is too protective, and Palin could not have appealed a victory. She needed a loss in order to appeal up the chain of the courts, with hope of getting to the Supreme Court.

If she were to make it to the Supreme Court, how would you characterize Palins chances?

At least two of the current justices, Clarence Thomas and Neil Gorsuch, have indicated that they believe Sullivan should be overturned. Their point is that with the expansion of modern news, Sullivan is too protective of falsehood. I am not sure, however, where Palin could find three more votes to reverse Sullivan. One vulnerable aspect of the law is that the protective standard applies to reporting about any public figure, even those who do not intentionally thrust themselves into the public eye. (Justice Elena Kagan even made such a point in a law review article before she was on the court.) That is not Palin. I think the chance of overturning, or limiting Sullivan is higher in a case in which the plaintiff is more of an I-just-got-caught-up-in-a-public-controversy kind of person.

Some observers and commentators have expressed concern that any Supreme Court change to the Sullivan precedent would have significant detrimental effects on press freedoms. How would you characterize those prospective changes and their respective impact?

Compared to other modern democracies, our standards for libel are much more protective of journalists. There is little doubt that when Sullivan was decided, it was a crucial decision that led to a robust, vibrant journalistic culture. One prominent First Amendment scholar said at the time that Sullivan was occasion for dancing in the streets. But also true is that the Sullivan standard does not deter carelessnessonly recklessness or worseon the part of journalists. When I teach Sullivan, my students and I discuss how a legal rule that under-deters carelessness will increase the amount of carelessness in the system. And more carelessness leads to more falsehoods. In the end, it comes down to a choice between (1) a legal framework that protects journalists at the cost of more falsehoods or (2) a framework that restricts journalists but has fewer falsehoods.

Critics of the outcome have cited that there were no repercussions for James Bennet, who wrongly accused Palin of inciting the murders of six people, and his false accusation was then widely distributed through the papers multiple channels. Why should Sullivan allow this to happen without any penalties for the author? Are the protections for journalists afforded by Sullivan too broad and do they need to be revised?I am of the mind that a good amount of our free speech jurisprudence could use some updating. We in the United States have more protections of speech than any other country at any time in history. I would, for example, rethink the level of constitutional protections provided for corporate speakers, for campaign expenditures, and for violent or injurious speech, among other things. And I do think that reasonable people can disagree about the proper level of protection afforded journalists, especially since journalists now include everyone from reporters at The New York Times to social media influencers on TikTok. We live in a world created in part by Sullivan: a vibrant, pulsing world of news and commentary bombarding us constantlymuch of which contains falsehoods.

Phil Gloudemans | University Communications | March 2022

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Palin v. the First Amendment: what next? - Boston College

The Ninth Circuit has upheld a preliminary injunction stopping the filing or prosecution of new Prop. 65 lawsuits concerning acrylamide pending the outcome of a lawsuit by the California Chamber of Commerce challenging the Prop. 65 warning for acrylamide as violating the First Amendment.

The lawsuit by CalChamber asserts that scientific studies show that exposure to acrylamide in food does not increase the risk of cancer in humans, and requiring cancer warnings for acrylamide therefore compels false and misleading speech in violation of the First Amendment.

Finding that CalChamber had demonstrated a likelihood of prevailing in its lawsuit, in March 2021, U.S. District Judge Kimberly Mueller issued a preliminary injunction stopping both the attorney general and private enforcers from filing or prosecuting new acrylamide cases, stating: the State has not shown that the safe-harbor acrylamide warning is purely factual and uncontroversial, and Proposition 65s enforcement system can impose a heavy litigation burden on those who use alternate warnings. Cal. Chamber of Commerce v. Becerra, 529 F. Supp. 3d 1099, 1119 (March 30, 2021).

The Council for Education and Research on Toxics, also known as CERT, intervened in the lawsuit, filed an appeal from the preliminary injunction, and moved for an emergency stay of the preliminary injunction pending the outcome of the appeal. CERT argued that, as a private enforcer of Prop. 65, an injunction would place an unconstitutional prior restraint on its First Amendment rights.

Although the Ninth Circuit granted CERTs request for a stay in April 2021, allowing acrylamide lawsuits to briefly continue, the decision issued on March 17, 2022, halts new acrylamide lawsuits until a final decision in CalChamber.

In the published, 28-page unanimous opinion, the three-judge panel held that given the robust disagreement by reputable scientific sources over whether acrylamide in food causes cancer in humans, Judge Mueller did not abuse her discretion in concluding that the warning was controversial and misleading. The record also demonstrates, the court stated, that using an alternate warning could create a heavy litigation burden for defendants.

The panel rejected CERTs argument that the injunction was a prior restraint that violated its First Amendment right to petition, holding that the serious constitutional issue raised by CalChamber gave the district court sufficient reason to enjoin Prop. 65 acrylamide litigation until the case is finally decided on the merits.

The record supports the district court's findings," wrote Circuit Judge Mark J. Bennett for the panel. "First, the district court found that the safe harbor warning is controversial because of the scientific debate over whether acrylamide in food causes cancer in humans." Cal. Chamber of Commerce v. Council for Education and Research on Toxics, No. 21-15745, D.C. No. 2:19-cv-02019-KJM-JDP (March 17, 2022).

The record in the case includes declarations from groups such as the National Cancer Institute and American Cancer Society, which declared that dietary acrylamide has not been shown to increase the risk of cancer. However, other organizations, including the International Agency for Research On Cancer, the U.S. National Toxicology Program and the U.S. Environmental Protection Agency, contended that acrylamide is likely carcinogenic to humans.

"Given this robust disagreement by reputable scientific sources, the court did not abuse its discretion in concluding that the warning is controversial," the opinion stated. Id.

The Ninth Circuits decision stops the filing or prosecution of new acrylamide cases pending the outcome of the CalChamber case. Other acrylamide cases are likely to be stayed by stipulation or court order pending the outcome of CalChambers case.

[View source.]

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Ninth Circuit Upholds The Injunction Against New Cal. Prop. 65 Acrylamide Cases - JD Supra

Over a dozen members of the organization Mass Liberation Arizona gathered outside the Maricopa County Attorney's Office on Friday afternoon to celebrate Allister Adel's final day as the Maricopa County attorney.

The group, which spent years castigating the office for controversial practices, such as charging a group of protesters as gang members, cheered on as Adels resignation officially took effect 5 p.m. Friday.

A small marching band played jaunty tunes for a few minutes before Bruce Franks Jr., a spokesperson for Mass Liberation Arizona, approached a podium.

Weve come here today to name the victory that is our removal of Allister Adel from office and celebrate this historic win for the people and by the people, Franks said. Make no mistake, Adel did not resign because she felt accountable for the harm she caused. She resigned because the peoples movement concerned her she saw the writing on the wall.

Franks called on the State Bar of Arizona to disbar Adel for her and her offices role in pursuing felony charges against protesters.

This goes beyond misconduct, Franks said. What Allister Adel and this office set out to do was retaliatory and malicious and weaponized the law in collusion with the deadliest police force in the United States to silence her political critics and to make political prisoners out of hundreds of people who were just simply demanding police to stop killing Black people. Allister Adel must never practice law again.

The street gang charges were bought against 14 people who participated in an October 17, 2020, social justice protest in downtown Phoenix. Police claimed they worked together so they couldn't get arrested and turned violent when officers apprehended them.

The case drew public outcry and intense media scrutiny that ultimately revealed issues surrounding the case, including misleading testimony to a grand jury. By July, 2021, all of the charges against the protesters were dismissed.

Kathy Brody, an attorney who represented one of the protesters facing gang charges, also chastised Adel for failing to supervise her deputy attorneys and seek severe punishments for those exercising their First Amendment rights.

These are reflections of a deeper culture in the county attorneys office that tolerates misconduct by prosecutors and that has been festering for far too long, Brody said. In my years as a criminal defense lawyer in this community, weve seen these failures of leadership at MCAO over and over again.

Christina Carter, another defense attorney, said she has grown used to prosecutors misrepresenting facts, leading to situations where one of her clients faced over 100 years in prison for protesting while carrying an umbrella.

Even after this office was aware of the fact that its prosecutors had fabricated a street gang, the office still fought under Allister Adels leadership to continue prosecuting these cases in full recognition that the charges were false, Carter said. It is ethically unacceptable and it is morally reprehensible when the law is used as a weapon to silence the critics of law enforcement which includes prosecutors.

Heather Hamel, a local civil rights attorney, echoed the sentiments of her colleagues and pushed for others within the Attorneys Office who were involved in the controversial decision to pursue gang charges against protesters to also face consequences for their actions.

It took us a long time to get here, Hamel said. And the only reason why were here is because everybody, everybody here, refused to give up on one another, refused to give up on this community, refused to give up on our hopes for a better future and that power and those hopes are what are going to continue to drive us in holding each and every single person and politician and prosecutor and police officer for what happened. Adel resigning was just the first step and I cannot wait for even more wins.

Adel's resignation sparked a race among potential candidates to gather enough signatures by April 4 to appear on theAug. 2 primary ballot.

During the press conference, Franks declined to publicly endorse any particular candidate but said that he wanted a county attorney willing and able to rebuild the office from the ground up.

"We want to see somebody who understands that the system isn't broken it's doing exactly what it's designed to do," he said.

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Activists celebrate Allister Adel's last day at MCAO, call for others to be held accountable - The Arizona Republic