Category Archives: First Amendment

Legal battles over masks in schools are being fought across the country, including in Arkansas, California, Florida, Kentucky, Michigan, Oklahoma, Nevada and Texas.

Rather than clarifying policy, these legal challenges have led to more confusion.

As a new school year begins and COVID-19 hospitalizations rise across the country, the Centers for Disease Control and Prevention and the American Academy of Pediatrics recommend that students wear masks in school to help slow the spread of the coronavirus.

This guidance, and schools responses to it, has resulted in an intense debate. Some parents argue that they should be able to decide when and where their children wear masks, whereas others argue collective health and safety concerns take priority over individual choices. These arguments fall sharply along partisan lines, with 88% of Democrats supporting mask mandates and 69% of Republicans against the requirements.

State rules reflect this division. In eight states, as of Aug. 16, 2021, laws were enacted or governors issued orders banning public schools from requiring students to wear masks. On the opposite side of the debate, 12 states and the District of Columbia are requiring students to wear masks indoors.

Further complicating matters, some school districts have acted in outright defiance of their states regulations. These conflicts pose one key question: Who has the power to control the health and safety measures schools take state leaders or local officials?

Texas provides a good example of this conflict. Even after Texas Gov. Greg Abbott issued an executive order banning school mask mandates, local officials in several school districts adopted policies that required students to wear masks.

Simultaneous legal battles across multiple state court districts ensued and resulted in inconsistent rulings on whether banning masks in schools is constitutional.

On Aug. 15, the Texas Supreme Court weighed in, siding with the governor and saying that schools cannot require masks. Yet some schools still do, defying both the governor and the states highest court.

With all of the partisan rhetoric, lawsuits and conflict, many parents are left bewildered about how to proceed with the school year.

This is not the first time legal battles have erupted in the wake of a public health emergency. During the influenza pandemic of 1918, state and local governments enacted a variety of restrictions to combat the spread of the virus. As they must now, officials had to make hard decisions about whether to close schools or prevent public gatherings. Mask mandates even existed in some areas. State and local judges routinely upheld these measures.

Many of the same constitutional questions debated over 100 years ago arise today about mask mandates and other pandemic-related regulations.

Long-standing U.S. Supreme Court precedent recognizes that states have broad powers to regulate the health and safety of their citizens during a public health crisis.

But no right is absolute. When evaluating a states actions in a pandemic, courts weigh the governments interest in protecting the health and safety of its citizens against an individuals civil liberties.

Common challenges against COVID-19-related regulations argue that some requirements violate the First Amendment or an individuals right to liberty, including the right to make choices about ones own health.

Over the past year, the challenges that have been most successful in the courts argued that certain COVID-19 rules violated the First Amendment right to freely exercise ones religion.

For example, the U.S. Supreme Court recently blocked the state of California from enforcing COVID-19 restrictions on an at-home Bible study group and prevented New York state from enforcing occupancy limits on religious services.

But with respect to mask mandates, legal precedent supporting similar challenges is not as strong.

For example, in Maryland, a federal district court recently suggested in a decision that litigants were unlikely to succeed with claims that challenged mask mandates as unconstitutional violations of the First Amendment.

Arguments that mask mandates violate an individuals constitutional right to liberty defined by a leading legal resource as freedom from arbitrary and unreasonable restraint upon an individual face an even greater uphill battle. Courts have interpreted the Constitution as giving elected officials leeway when it comes to social policy, particularly in areas fraught with medical and scientific uncertainties.

This does not bode well for challenges like one recently filed in Nevada, which claims mask mandates infringe upon the fundamental right of parents to make child-rearing decisions.

On the other side of the debate, in some states litigants have gone to court to advocate for more stringent COVID-19 regulations.

In Florida, two different lawsuits seek to overturn the governors ban on school mask requirements. They claim that the Florida Constitution guarantees a safe school environment and grants local governments the authority to govern schools.

Some of the more successful lawsuits have focused on the fact that, by law, most states can regulate mask wearing in only public schools. This means that state laws and orders that ban mask requirements do not extend to private schools. In Arizona, Arkansas and Oklahoma, lawsuits claim that this creates unconstitutional distinctions between public and private students rights to a safe educational environment and therefore, they say, the state cannot ban mask mandates in schools at all.

All of this fighting within and among the states led the Biden administration to step into the fray. While the federal government cannot constitutionally command the states to do something, it can create incentives for them with money.

In response to the governors orders in Florida and Texas that prohibit mask mandates in schools, U.S. Secretary of Education Miguel Cardona reminded both states governors that federal CDC guidance recommends students wear masks. Cardona also suggested that the Biden administration would closely monitor whether the states were meeting requirements for federal relief funding under the American Rescue Plan Act of 2021. That law requires states to adhere to CDC guidance, including implementing mitigation strategies such as contact tracing or mask requirements, in order to receive the federal money the act provides.

President Joe Biden followed up Cardonas letters to the governors with a phone call of support to one of the superintendents who adopted mask mandates in violation of his governors executive order.

If it all sounds confusing and as if the law is all over the place regarding school mask mandates, thats because it is. The nations schools are subject to a complex web of local, state and federal laws that make it difficult to impose uniform standards.

Add in an intense political battle over the appropriate policies to adopt in the wake of the delta variant and you have precisely the kind of situation that may well end up at the U.S. Supreme Court.

Read more:
Who has the power to say kids do or don't have to wear masks in school the governor or the school district? It's not clear - The Conversation US

On August 2, 2021, the U.S. Food and Drug Administration (FDA) issued its final rule amending the intended use regulations codified at 21 CFR 801.4 and 21 CFR 201.128,1 marking the end of an effort FDA began in 2015.2 While the agencys 6-year rulemaking process took many turns along the way and stakeholders tried repeatedly to limit the broad scope of the intended use regulations in the end, FDA wound up right back where [it] started from,3 confirming that a manufacturers mere knowledge of an unapproved use cannot, standing alone, constitute evidence of a new intended use, but FDA may consider such knowledge along with a host of other factors as evidence of intended use.

While the final rule provides greater insight into FDAs evaluation of intended use than did some of the interim iterations (most notably the 2017 Proposed Rule, which included a vague totality of the evidence standard), questions remain about how the agency will address various manufacturer activities that extend beyond mere knowledge but may be entitled to protection under the First Amendment. Ultimately, FDA continues to construe intended use broadly, and pharmaceutical companies and medical device manufacturers should continue to tread carefully when making any statements or claims that stray beyond FDA-approved labeling, even when those claims are truthful and non-misleading.

FDAs proposed changes to the intended use regulations merit attention because intended use shapes enforcement actions, criminal prosecutions, and False Claims Act (FCA) cases. FDAs labeling regulations define intended use as the objective intent of the persons legally responsible for the labeling of the drug or device a definition that covers a broad array of activities and speech, which can then be used as evidence that a manufacturer is promoting its product beyond the indicated use.

Under this historical approach, FDA and the Department of Justice (DOJ) have cited a variety of relevant sources of evidence to establish intended use, including labels, labeling, advertisements, press releases, training documents, speeches and verbal statements offered in a variety of contexts to support enforcement actions based on the alleged sale of misbranded medical products. Industry has long argued that this approach overreaches and fails, among other things, to draw principled legal distinctions between promotional and non-promotional speech, a distinction FDA has rejected in the 2021 Final Rule.

In 2015, FDA proposed eliminating a provision in the intended use regulations that required a manufacturer to provide adequate labeling if the manufacturer knew that its approved product was being promoted or used for an unapproved use.4 This proposed revision eliminated the risk that the agency would bring an enforcement action based on a manufacturers mere knowledge that its product was being used off-label. Drug and device makers received the 2015 proposed rule with hope that the proposal signaled an understanding by FDA of the challenges inherent in the existing intended use definition and that FDA would take the opportunity to amend the intended use rule to align more closely with various judicial defeats it had sustained under the First Amendment.

In 2017, however, FDA withdrew its proposed revision and proposed new language indicating that although the agency was eliminating knowledge evidence as the sole source of intended use, FDA would still look to the totality of evidence to determine intended use. FDA stated that both the 2015 proposed rule and the new proposal were intended to clarify FDAs existing position on intended use, not to change it. Nevertheless, the totality of evidence standard sparked opposition from stakeholders who viewed it as introducing even more uncertainty to an already complex landscape and urged the agency to narrow or eliminate certain categories of intended use evidence.5

In September 2020, FDA withdrew the totality of evidence standard but declined to otherwise limit or exclude any of the types of intended use evidence on which the agency had traditionally relied. The agency clarified how it would treat a firms knowledge of off-label uses by stating that a firm would not be regarded as intending an unapproved new use solely on that firms knowledge that such [drug or device] was being prescribed or used by health care providers for such use.6 However, tracking language that had long been in the relevant regulations, FDA reiterated that intended use may be established by circumstances in which the product is, with the firms knowledge, offered or used for a purpose for which it is neither labeled nor advertised.7

The 2021 Final Rule remains largely unchanged from the 2020 Proposed Rule. The only change in the codified language clarifies the regulations applicability to devices that are exempt from premarket notification.8 Nevertheless, a careful read of the 66-page preamble to the 2021 Final Rule reveals more of FDAs perspective. In the preamble, FDA has attempted to reconcile years of legislative history, decades of case law and numerous excerpts from agency briefs that underlie FDAs approach to intended use.

Although the long rulemaking odyssey may not have produced significant changes to the scope of intended use evidence, the 2021 Final Rule gives stakeholders a comprehensive repository of FDAs views on the issue. Whether the agencys approach will survive First Amendment scrutiny remains a pressing question, and the evolving jurisprudence seems certain to impact what enforcement actions FDA and DOJ will bring, even armed with such a permissive regulation.

So what evidence does FDA consider relevant to determining a medical products intended use?

A number of comments to the 2020 Proposed Rule encouraged FDA to focus primarily or exclusively on promotional claims. Others challenged FDAs authority to look to any relevant source9 of evidence to determine intended use. Rejecting stakeholders arguments that looking beyond promotional claims to consider a variety of other manufacturer activities and knowledge creates significant uncertainty and potential First Amendment issues the agency declined to take an exclusively claims-based approach. Instead, the agency referred to decades of case law and legislative history to assert its authority to rely on a broad scope of intended use evidence, stating that intended use of a product may be determined from its label, accompanying labeling, promotional material, advertising, and any other relevant source.10

Most importantly, FDA continues to assert that it is not limited to statements made by the manufacturer in determining intended use. Rather, the agency can establish intended use based on knowledge of actual use by customers, consumer conduct, the environment in which the product is sold, the absence of labeling, witness testimony, training programs, internal documents and financial arrangements, to name a few evidentiary sources. The FDAs confirmation that it may rely on a broad scope of evidence in evaluating intended use means that manufacturers will continue to face challenges in navigating the intended use regulations.

The codified language of the 2021 Final Rule defines intended use to include a medical products design or composition.11 FDA states that the addition of design or composition to the meaning of intended use reflects long-standing and current policy that a products characteristics may be indicative of intended use. For example, in FDAs view, a stent sized for a use different from the approved use is relevant to intended use, as is a spacer made to extract one liquid but designed with holes to extract a more viscous substance different from the approved use.12 Unlike the broad scope of considerations otherwise identified as potentially relevant to intended use, this criteria appears to be more objective and, because it does not involve speech, not as susceptible to First Amendment complications.

In the 2021 Final Rule, FDA asserts that the intended use regulation does not implicate the First Amendment because intended use is only one element of a violation under the Federal Food, Drug, and Cosmetic Act (FDCA), and FDA is not seeking to regulate the speech itself. FDA notes that during premarket review and postmarket surveillance, the agency has always been required to review a firms speech in the form of appropriate labeling and states that [t]he categorical exclusion of all truthful speech from regulatory review would undermine FDAs ability to promote and protect the public health.13 To support this position, FDA looks to case law involving other industries whose operations involve communications with the public and takes the view that [i]t has never been deemed an abridgment of freedom of speech to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.14

While FDA has acknowledged stakeholders concerns regarding the First Amendment implications of the 2021 Final Rule, including the interest of health care professionals and patients in information about off-label uses, the agency ultimately dismisses those concerns. FDA confirms that nothing in the 2021 Final Rule changes the agencys policies and practices as set forth in guidance documents relating to circumstances in which FDA does not intend to object to a firms product communications or to view such communications as evidence of a new intended use. In doing so, it rejects the argument that recent First Amendment case law prohibits the 2021 Final Rule as a content-based restriction on free speech.15 And FDA asserts that it can consistent with the First Amendment prove misbranding by using promotional speech as evidence that a medical product is intended for a use that falls outside its FDA-approved label.

While FDA acknowledged stakeholders First Amendment concerns, it is not clear that FDA appreciates the complexity created by the intended use regulations. Under the Supreme Courts ruling in Central Hudson Gas & Elec. Corp. v. Pub. Serv. Commn of New York, commercial speech cannot be restricted unless: (i) the restriction is justified by a substantial government interest, and (ii) the means used to directly advance the government interest is not more extensive than necessary to serve the interest.16 The Supreme Court has recognized that the First Amendment is particularly important in the fields of medicine and public health, where information can save lives.17 FDA views its public health mandate as justifying restrictions on speech inherent in the intended use regulations.

Given the breadth of factors involving speech that FDA addresses in the preamble to the 2021 Final Rule such as training programs and internal documents, for example, whether FDAs approach is not more extensive than necessary to serve its public health goals is unclear. Coupled with the agencys insistence that it can pursue civil and criminal misbranding cases based, at least in part, on such activities, the application of the intended use regulation will likely continue to engender First Amendment challenges.

The preamble to the 2021 Final Rule similarly dismisses criticisms that the intended use regulations are unconstitutionally vague, with FDA relying on a litany of cases holding that use of an intent standard does not render a statute unconstitutionally vague, even in a statute regulating speech.18 FDA points out that courts have routinely rejected due process challenges to FDAs authority under the FDCA as unconstitutionally vague or ambiguous, and asserts that [o]ver nearly seven decades, medical product manufacturers have shown little difficulty in understanding how the [intended use] regulations are applied.19 FDAs view that the intended use regulations are clear may not relieve the concerns of manufacturers who continue to question how the agency will perceive various key product support activities, such as providing safety information regarding off-label uses.

In its preamble to the new rule, the agency reiterated that the 2021 Final Rule does not reflect a change in FDAs policies and practices regarding the types of firm communications that ordinarily would not, on their own, establish a new intended use.20 FDA noted that this includes policies and practices articulated in various guidance documents, including FDAs June 2018 Guidance for Industry, Medical Product Communications That Are Consistent With the FDA-Required Labeling Questions and Answers.

However, FDA did not expressly exclude safe harbor communications, such as scientific exchange and communications with health care providers about unapproved uses, as evidence of intended use. Instead, the agency expressed interest in continuing discussion around formalizing safe harbor communications, but stated that codifying such safe harbors was beyond the scope of this rulemaking. While such certainty would be reassuring, given FDAs statement that its policies and practices have not changed, its unwillingness to codify the safe harbors at this point should not create additional uncertainty as to their application.

Perhaps of most value in the record of the new intended use rule are the examples provided to illustrate facts that, standing alone, the agency would not consider as evidence of a new intended use. Although FDA notes that every situation will be evaluated on its own unique facts, the illustrations offer stakeholders insight in assessing the level of risk in their own conduct and operations.

A. A firm will not be regarded as intending an unapproved use of an approved product based solely on that firms knowledge of such use.

A pharmaceutical firm tracks sales and distribution metrics. The firm notes that one of its products, approved for use only in adults, is being ordered by and distributed to many medical practices that treat exclusively pediatric populations. The firm does not give any direction to its sales or marketing staff to disseminate samples or information about this product to these pediatric practices. 21

B. Knowledge combined with conduct that falls within an acknowledged safe harbor would not be determinative of intended use.

A pharmaceutical firm tracks sales and distribution metrics. The firm notes that one of its products, approved for the treatment of adult patients with acute lymphoblastic leukemia (ALL), is being ordered by and distributed to many medical practices that treat exclusively pediatric oncology populations. The firm also notes that the National Comprehensive Cancer Network clinical practice guidelines (CPG) for the treatment of ALL in pediatric patients recommends the firms drug product as a treatment option. The pharmaceutical firm distributes copies of the CPG at medical conferences, following all recommendations made in the revised draft guidance, Distributing Scientific and Medical Publications on Unapproved New Uses Recommended Practices. The firm does not give any direction to its sales or marketing staff to disseminate samples or information about this product to practices that treat pediatric cancer patients exclusively. 22

C. In certain circumstances, a firms dissemination of safety information about an unapproved use to health care providers to minimize risk to patients would not be dispositive of a new intended use.

The unapproved use of a firms approved drug is broadly accepted by the medical community and the firm has submitted an efficacy supplement to add the unapproved use to the labeling. The boxed warning and risk evaluation and mitigation strategy (REMS) materials for the drug warn of potential risks related to the unapproved use in general terms, but the firm disseminates additional specific safety and warning information to health care providers to minimize the risk to patients receiving the drug for the unapproved use. The safety and warning information does not expressly or implicitly promote the efficacy of the unapproved use.23

FDA also provided the following examples of fact patterns that firms may routinely encounter in the normal course of their business that would not trigger regulatory action.

Over the course of FDAs 6-year rulemaking process, the agency has made clear that knowledge of off-label use, standing alone, will not be sufficient evidence of intended use, absent circumstances showing objective intent by the firm to otherwise promote the unapproved use. FDAs effort to provide specific examples of how it intends to treat certain commonly occurring scenarios is helpful, both because statements in preambles to rulemakings are legally binding and because the examples seem to point to a larger message: Where the facts do not suggest affirmative conduct by a company to cause an off-label use unsupported by scientific consensus, FDA will be less likely to consider the conduct as evidence of intended use requiring adequate labeling.

Those hoping the 2021 Final Rule would dramatically limit FDAs legal options regarding intended use may be disappointed, but they should not be surprised. FDA continues to assert the obligation and need to look broadly to any relevant source of evidence to establish intended use. The agency believes it can do so without differentiating between promotional and non-promotional speech and without implicating the First Amendment.

In the final analysis, the 2021 Final Rule essentially repurposes FDAs old playbook. The critical question now is what will FDA do under the breadth of this rule: What types of misbranding cases will it initiate and which will it avoid as First Amendment cases against the agency continue to raise enduring questions about the governments regulatory relationship to truthful, non-misleading speech?

Associate Amanda Chan contributed to this article.

_______________

1 See 86 Fed. Reg. 41,383 (Aug. 2, 2021) (2021 Final Rule).

2 See 80 Fed. Reg. 57,756 (Sept. 25, 2015) (2015 Proposed Rule).

3 Maxine Nightingale, Right Back Where We Started From (United Artists, 1976).

4 Id.

5 82 Fed. Reg. 2,194 (Jan. 9, 2017).

6 85 Fed. Reg. 59,718, 59,720 (Sept. 23, 2020) (2020 Proposed Rule).

7 Id. at 59,729.

8 2021 Final Rule at 41,384.

9 Id. at 41,386.

10 Id. (citing United States v. Article of 216 Cartoned Bottles, Sudden Change, 409 F.2d 734,739 (2d Cir. 1969)).

11 Id. at 41,401.

12 Id. at 41,390.

13 Id. at 41,391.

14 Id. at 41,392, referencing Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 62 (2006).

15 Id. at 41,394-395.

16 447 U.S. 557, 566 (1979).

17 See Sorrell v. IMS Health, 564 U.S. 552, 566 (2011).

18 Id.

19 Id.

20 Id. at 41,396.

21 2020 Proposed Rule at 59,725, incorporated by reference into the 2021 Final Rule.

22 Id.

23 Id. at 59,725-726.

24 Id. at 59,726.

25 Id.

26 Id.

27 Id.

[View source.]

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FDAs Final Rule on Intended Use: Getting Right Back to Where We Started From - JD Supra

On June 24, the CCSD Board of Trustees meeting was delayed several times by disruptive behavior, heckling and verbal threats, which created, for many people, an atmosphere of hostility.

At the next Trustee meeting, on July 7, Trustee Lola Brooks laid the blame for the prior meetings disruption at the feet of board president Linda Cavazos.

Her admonishment was, hands down, the best audition I have ever seen for a reboot of Mean Girls. But it got me thinking, what are the limits of speech in a public meeting? What are the limits of speech at all? And, does tone matter?

Also, was Brooks correct? Despite the nasty tone, did what she say hold up to fact checking?

To find those answers, I set out to talk to First Amendment experts.

One of the things I have discovered over the years is that First Amendment experts are incredibly enigmatic. Their favorite answer is, It depends.

The First Amendment guarantees the right for people to peaceably assemble or speak or exercise their chosen religion. A lot that is up to interpretation.

Perhaps not surprisingly, this wide interpretation goes to the heart of what the board was discussing on June 24 an anti-racism policy. And the interpretation of peaceable assembly is, as we have seen in the last year, different for peace officers depending on whos assembling.

Lets add that for public meetings, speech is not the same as it is, say, on a street corner.

Its speech, but its still a limited public forum, said Rosalie Bordelove, the chief of the Boards and Open Government Division for the Nevada Attorney Generals Office. For instance, someone could not sign up for CCSD board public comments and talk about highway repairs. Or fire department funding.

They also can be disallowed from saying anything from the audience when its not their turn to speak.

If its not during the public comment period, then its not allowable speech, Bordelove said. Its important to note here that she didnt say heckling was automatically punishable. It is just one thing the chair of the meeting can decide not to allow and still not be abrogating someones speech rights.

Thats all in the Attorney Generals open meeting law manual, which Bordelove oversees. Page 83. In case you click through.

So, the First Amendment gives broad powers of speech to anyone. But in public meetings, that speech can be limited. As long as its not limited by only letting one point of view be heard.

You cant allow one side of the room to applaud loudly and then admonish the other side when they are heckling people, Brooks told Cavazos on July 7.

The experts I talked to dont exactly agree. Specifically, they dont necessarily see applauding and heckling as the same thing.

I dont think you want to say no applause, in a public meeting, said Gene Policinsky, a First Amendment expert from The Freedom Forum. But, said Policinsky, you can limit conduct that disrupts the meeting.

There were two kinds of speech being exercised in the June 24 meeting: people speaking at the podium during agendized public comment, and people speaking from the audience AT the people who were speaking at the podium. The six attorneys I talked to emphasized that at the podium, during public comment that is on the agenda, there is no limit to speech.

If its your turn to talk, you can say anything you want, said Marc Randazza, an attorney based in Las Vegas and Massachusetts.

Every lawyer I talked to mentioned time, place and manner restrictions. In this case, the time of the board meeting was set, and the time of public comment was limited to 1 minute, 30 seconds. The place was the CCSD board room. And the manner was restricted to signing up for public comment, having your name called, and going to the podium to speak.

As Bordelove noted, a public body absolutely has the right to say that the manner of speech cannot come from audience members speaking out spontaneously.

So, applause and heckling arent the same thing. What Brooks was trying to say is that the chair needs to be balanced in her rulings. Ill give her the benefit of the doubt that her wording came out wrong. Ill give her a 5 out of 10. Half true.

people do have freedom of speech, even horrible speech. The Supreme Court has upheld this numerous times. The claim you are making is a disturbance, Brooks told Cavazos on July 7.

The conduct that disrupted the June 24 CCSD meeting included words hurled at people that were meant to do damage: fag**t, wetback, n***@r, go back to your country (said to someone who had just explained she was from Hawaii, which was colonized against its will). When one mother was talking about trans kids, one man yelled, keep them away from me and my kids. Was that a threat? At one point, an audience member who just graduated law school came up to the podium with a limp. The same man who was there to protest the anti-racism policy snarled, Ill give you something to limp about. Yes. That was a threat.

When I mentioned that last incident to Bordelove, she hesitated. Just because something isnt in the open meeting law doesnt mean other prohibited speech doesnt apply. The fact that it was said at a public meeting doesnt exempt him from the criminal behavior.

Randazza was not as circumspect: Drag him out! Drag him out by his hair!

Threatening speech, then, is not allowed. But how do you define threatening?

Im going to get you after this meeting is a true threat, said Policinsky. I hope a meteor smashes you and your family is not a true threat.

Policinsky notes that assault is not a physical act that would be battery. Assault is putting a person in fear of being physically injured, and if speech in a public forum stops other people from attending that forum or getting up to speak, then it violates the First Amendment.

The Ill give you something to limp about line was clearly intended to put the speaker at the podium in fear or put others in fear of going up to the podium. The keep them away from me line could also be seen as a threat to trans kids and their parents, who might stay away from future meetings.

I should note that the Supreme Court has also ruled that sexual harassment is not protected speech. Arguably, both of the examples above fit into that definition.

Its complicated, though, by how we as a society have reacted to this kind of threatening speech. How many of us have heard something like that from a boy or group of boys in our class, and were told by the teacher, Its just talk. Ignore it.

This is where the First Amendment is murky. Is it a threat, which is not allowed? Or is it bullying speech, which is?

Erwin Chemerinsky, dean of Berkeley Law School, noted that in this case, in a school board meeting, time, place and manner restrictions play a role.

I can say in my classroom, anyone who uses a slur or epithet will be kicked out. But I cant prohibit that within the building or on message boards, Chemerinsky noted.

So, board president Cavazos can provide a list of slurs that cannot be expressed?

Chemerinskys answer is it depends.

I dont think theres a clear answer to it. I think they can certainly try and see what the courts say, given those words are certainly hurtful.

So, people are not allowed to disrupt a public meeting. But, they also arent given carte blanche on horrible speech during a public meeting. True threats are not allowed even if the people on the dais cant hear them. Ill score this a half-truth by Brooks.

One of the admonishments Trustee Brooks gave to Trustee Cavazos is you need to point out who needs to be escorted out, because the police dont have the discretion to do that, and that has always been the case.

Thats not necessarily true. The First Amendment experts I spoke with all said that the chair can deputize someone or a group of people to police the audience and throw out people making threatening speech or just disrupting. How much power do the crowd monitors have? Nobody quite agrees.

Most say the monitors, thus deputized, can simply pull out of the room someone who is making threatening speech, or just heckling after being warned not to, without having to get specific permission from the chair.

They could say at the beginning of the meeting, the police are here and we authorize the police on our behalf to remove them, said Daniel Stewart, who was chief counsel to former Gov. Brian Sandoval.

Randazza agrees, but he wants to make sure that the blanket permission was given, and the throwing out is the last resort. Hed like to see a system that is something like soccer officiating. Yellow card and red card, then a hearing for the future.

Bordelove disagrees. She noted her expertise is in open meeting law, not First Amendment law. But from her vantage point, the ultimate decision has to come from the chair. The police or crowd monitors can say to the chair, this person and the chair can say, yes. But, in Bordeloves view, the crowd monitor must get permission before kicking someone out.

Importantly to Trustee Brookss point, all the lawyers I talked to agreed the chair doesnt have to initiate the conversation about kicking someone out. That can come from whoever is monitoring the audience. And that doesnt just have to be for disruption. It can also be for a threat.

Bradley Schrager, who is an attorney who works on government issues, but also noted he is not a First Amendment lawyer, pointed to the fact that trustees at the June 24 meeting couldnt hear the threatening and non-threatening comments coming from the audience. In that case, the chair has to have the power to control the space for peoples safety, and that power cant be limited to her walking around listening for things. Thats absurd.

So on this point, Im giving Brooks a 3. The chair absolutely has to have control of the meeting, but she can deputize people to monitor heckling and threatening speech, and then, either make a decision about kicking them out, or make a decision about whether the monitor needs to ask the chair for permission.

I should note that Cavazos actually did give an order to expel anyone heckling on June 24. Four CCSD police officers came in after she gave that warning, and stationed themselves around the room. Within two minutes, they were gone. As if their job were to stand in the lobby.

While threatening speech is not allowed even at the podium Stewart posits that boards might do well to let them speak till their time is up. Sometimes its better to allow people to feel like theyve had their say and lose than feel like they havent gotten to say anything at all.

People also may feel heard if they had more time to speak to begin with. People seem to have a rhythm of about 2 minutes which is what public comment used to be.

It also might be helpful to not just have a beep when your time is up, but also a beep 15 seconds before your time is up. So people feel warned.

The next meeting, August 12, will take place at the County Commission boardroom. Cavazos said thats because the County Commission has metal detectors.

That, more than anything, is an indication to me that the board and the audience feel threatened by the speech at the last couple of meetings.

See the rest here:
The First Amendment and public meetings: It's complicated. - Nevada Current

(Photo by John Lamparski/Getty Images for Hulu)

Yesterday Alan Dershowitz made a guest appearance at Mike Lindells cyber symposium to explain to tens of thousands of people assembled online and in-person how his client is being censored.

Isnt it ironic, doncha think?

Introducing himself as a liberal Democrat who cares more about the First Amendment than I do about partisan politics, the famed Harvard professor launched into a broadside against censorship, which is the new McCarthyism by the left.

We cant have free speech for me but not for thee, and the opinion yesterday, I believe, does considerable damage to freedom of speech, he said, referring to yesterdays order by US District Judge Carl John Nichols allowing the defamation suit by Dominion Voting Systems against Lindell, Sidney Powell, and Rudy Giuliani to go forward.

If you cant express opinions about a presidential election where tens of millions of people disagree with the outcome Im not among those people, but there are many who do as an advocate of the First Amendment, I strongly support the right to disagree with the government, the right to disagree with politicians, he said, seemingly oblivious of the fact that Lindell was at that very moment exercising his First Amendment right to disagree with politicians, the government, and even objective reality itself.

The First Amendment today is in great danger, Dersh warned, before going on to list a whole bunch of entities which cannot possibly violate the First Amendment because they are not the government.

Its in great danger from corporations, from universities. Its in great danger from the social media, from YouTube and from Facebook and from Twitter, that are censoring certain points of view and not other points of view.

He failed to mention the gross violations of the First Amendment by Lindells own social media site Frank Speech at least under the Constitution according to Dersh which bans swearing, pornography, and blasphemy.

Then he accused the government of censoring Lindell by allowing Dominions defamation suit to survive a motion to dismiss for failure to state a claim.

One of the things that the judge said yesterday in the opinion is that the case can go forward against Mike and MyPillow because there were people in congress and the attorney general and others who disagreed with him. And if they disagreed with him, he should know he was wrong and theyre right. Thats not the way the First Amendment operates.

UH HUH.

It seems the eminent professor is confused. Mike Lindell wasnt sued for expressing an opinion about the outcome of the election hes free to scream until hes hoarse that the whole thing was rigged. He stated as fact that Dominion Voting Systems participated in the Biggest election fraud in world history!!!! Crime against the world!!! He said the companys machines were built to cheat and steal elections and claimed they used algorithms to flip votes from Trump to Biden.

As for the part about government officials disagreeing with him, the issue is whether Lindell was reckless as to the veracity of afake spreadsheet which pointed to a bunch of fake IP addresses as proof that the election was stolen in the face of massive countervailing evidence, including (1) public statements by election security specialists, Attorney General Barr, numerous government agencies, and elected officials; (2) independent audits; and (3) paper ballot recounts that disproved those claims.

As a preliminary matter, a reasonable juror could conclude that the existence of a vast international conspiracy that is ignored by the government but proven by a spreadsheet on an internet blog is so inherently improbable that only a reckless man would believe it, Judge Nichols wrote.

Which is not the same as saying that disagreeing with the government is prima facia evidence of actual malice, and, frankly speaking, it strains credulity to suggest that Prof. Dershowitz couldnt work that one out for himself. Particularly in light of his role as Supreme Court clerk in drafting a concurrence in New York Times v. Sullivan a role he reminded the crowd of in an effort to burnish his First Amendment bona fides.

In fact, the whole performance had a certain Old Man Yelling at Clouds quality, with Dershowitz hunched painfully close to his computers camera railing against the new McCarthyism.

I grew up during McCarthyism when the First Amendment didnt protect people who were on the left. I was a student in college, and I saw professors fired and other professors terrified to make statements that disagreed with the politically correct views of the day, he intoned ominously. Today McCarthyism has become a tactic of the extreme left, a tactic thats used to prevent people expressing views different from those expressed by the government.

Which makes complete sense if you ignore the fact that Lindell accused Dominion of doing actual crimes, and then got sued by the private company for damaging its reputation.

What does the government view on anything have to do with this? Dersh doesnt say. But hes very sure that if Dominion is allowed to recover for the lost business resulting from Lindells lies, well all end up with duct tape over our faces if we step out of line.

Do not censor him, he yelled, wagging his finger inches from the camera. Because if you censor him, you are weakening the First Amendment and whatever is true of Mike Lindell and MyPillows ability to speak is true of your ability to speak. Today its the election. Tomorrow it might be health and the vaccines and other controversial issues. It will be China, it will be Iran, it will be future elections. And yesterday was a bad day for the First Amendment.

Vaccines? DRINK. And after youve had a couple, watch this video.

Or skip the video and go right to happy hour. Because that there is some sorry, sorry bullshit.

Elizabeth Dyelives in Baltimore where she writes about law and politics.

See the rest here:
Alan Dershowitz Beams In To Pillowpallooza To Talk Sh*t About The First Amendment - Above the Law

Andrew C. Spiropoulos

Those who fear the arrival of the new conservative majority on the U.S. Supreme Court should have been calmed, at least for now, by the courts decisions in the last term. Many cases, including the most important case on religious freedom, most thought would divide the court along the predicted ideological lines were either decided unanimously or produced unexpected alliances between justices thought to be sunk in political stone.

The term confirmed that in one area of constitutional law relevant to state and local government policymakers, the enforcement of the right to free expression under the First Amendment, the court will vigorously protect Americans right to hold and express their opinions against both direct public censorship and the machinations of private individuals who seek, with the help of the state, to punish expression they find offensive.

The foundation of this wall of protection is the courts long-held principle that individuals must be afforded a nearly unlimited right to express themselves, even if the content of this expression offends or harms others. This term, the court affirmed this tenet in a case involving a high school student who, after she failed to make the varsity cheerleading squad, profanely expressed her rage and contempt for her team and school on a social media platform. Her coaches, supported by the school administration, threw her off the team for her offensive and immature rant. The court, while it acknowledged that the distinctive environment of a school affords it special authority to prevent the material disruption of its educational functions, held that, particularly with expression that took place off campus, the right of the student to express herself in her own way, no matter how vulgar or hurtful the speech, must prevail.

The courts other important free expression case of the term, despite the majoritys claim that it was just applying established principles to different circumstances, did provoke progressive dissent. The court struck down a California law requiring charitable organizations that solicit donations to disclose the identities of major donors because the coerced disclosure of ones identity will discourage many from donating to the charity of their choice because they fear retaliation either by the state or hostile private individuals who use the state disclosures to learn their identity. The court reasoned that the right to remain anonymous is a core component of the freedom of association protected by the First Amendment.

While the separate principles vindicated by these opinions are important and interesting, their true significance can only be appreciated when they are conjoined. These rulings arm threatened victims of todays ubiquitous and destructive cancel culture with a powerful two-pronged attack against the attempted silencing of ideologically unpopular views. If a state university, for example, attempts to squelch opponents of the regnant political correctness, the rule that all expression, no matter how offensive, must be protected should shield dissident students and faculty. If the progressive censors take a different tack and decide to single out supporters of dissident organizations for abuse and harassment, the rule against compelled disclosure should make such campaigns difficult to execute.

While it is disappointing that the courts progressives, at least this time, did not understand the need for strong protection of confidential association, when the arrows of political vitriol fly leftwards, these justices will likely realize their friends will also need to hide behind the courts constitutional shield.

Andrew Spiropoulos is the Robert S. Kerr, Sr. Professor of Constitutional Law at Oklahoma City University and the Milton Friedman Distinguished Fellow at the Oklahoma Council of Public Affairs. The views expressed in this column are those of the author and should not be attributed to either institution.

More here:
Right Thinking: Supreme Court safeguards First Amendment freedoms - Journal Record

Award will fund exhibition design that will inspire people to exercise their First Amendment freedoms

AUGUSTA The First Amendment Museum was awarded a highly competitive Museums for America grant from the Institute of Museum and Library Services in the amount of $249,000 to Complete the Permanent Exhibition Design for the First Amendment Museum. The FAM is a new nonpartisan museum focused on educating and inspiring individuals to exercise their First Amendment rights: religion, speech, press, assembly and petition.

The FAM is thrilled to receive this federal grant which will move our project forward in important ways, said Christian Cotz, CEO. The museums exhibitions will demonstrate how Americans have utilized their First Amendment rights as a tool to advance our society and to create that more perfect union that is our civic charge. But perhaps more importantly, these dynamic, thought-provoking, and interactive exhibitions will inspire people to live their freedoms and exercise their rights in more intentional and effective ways.

The First Amendment Museum has embarked on a sitewide restoration project to transform the historic Guy P. Gannett house, located next to the Maine State Capitol and Governors Mansion, into a 21st-century museum. The exhibition will be created by celebrated designer Helen Reigle of HER Design in Boston, whose portfolio includes the Boston Public Librarys Dear Boston: Messages from the Marathon Memorial, the National Baseball Hall of Fames A Whole New Game and America on The Move at the Smithsonians National Museum of American History.

This major grant will help us create a visitor experience that is unique, interactive, and relevant, said Genie Gannett, co-founder and president of the Board of Directors. Were tremendously grateful to the IMLS for their generous support of this effort.

The state-of-the-art exhibition will allow visitors to encounter, interact with, and reflect upon their rights by reinforcing the notion that we utilize and engage with our First Amendment freedoms daily, often inside our own homes. Incorporating best practices for exhibition design, each room of the museum will interpret a particular aspect of the First Amendment. For example, a dystopian kitchen will show what life would be like in a society without the First Amendment; the Library of Censorship will highlight books, movies, and music that have been banned throughout the years; a teen bedroom will explore youth speech and social media; and the exercise room will engage kinesthetic learners.

The completion of this exhibition will contribute to visitors understanding of their First Amendment rights and inspire them to practice and preserve the five freedoms of the First Amendment. We are in the beginning stages of this campaign to build an inspiring new museum here in Maine, said Jamie OBrien, chief development officer. The IMLS Grant is an important step, and we hope others will join us in this project to inspire and educate on the importance of utilizing our First Amendment rights for the betterment of our society and our country.

More articles from the BDN

View post:
First Amendment Museum receives a $249,000 grant from the Institute of Museum and Library Services - Bangor Daily News

"What Does the First Amendment Mean Today?" is a program series examining the text, history, and current state of the First Amendment, created by the Ridgefield Library, the Ridgefield Historical Society, the League of Women Voters of Ridgefield, the Drum Hill Chapter of the DAR and Keeler Tavern Museum & History Center.

The partners have developed four free educational programs exploring the concepts embodied in the First Amendment from both historical and contemporary perspectives.

The series kicks off on Thursday, September 9th at 7:00pm with a lecture by legal scholar and author Akhil Amar, Sterling Professor of Law and Political Science at Yale University, to be held in the Main Program Room at the Ridgefield Library.

On Monday, September 20th at 7:00pm, the Library will offer a book discussion of Jess Walters best-selling novel, The Cold Millions, which looks at free speech and the First Amendment through the lens of historical fiction. The discussion will take place in the Randolph Board Room at the Library.

The third program in the series will be an online lecture by Dr. Gloria Browne-Marshall of John Jay College of Criminal Justice, examining the freedoms of speech and assembly from the Civil Rights era to the social justice protests of today. This program will be presented in Zoom on Sunday, October 3rd at 5:00pm.

What Does the First Amendment Mean Today? will conclude with a panel discussion at the Library on Sunday, October 10th at 5:00pm, moderated by author, journalist and lecturer Todd Brewster, and featuring the following notable panelists: Professor Akhil Amar of Yale; Nadine Strossen, past president of the ACLU; New York Times journalist Mike McIntire; and Ridgefield Library Director Brenda McKinley.

For more information and to register for any of the programs in the series, visit the Events Calendar at ridgefieldlibrary.org

View post:
What Does the First Amendment Mean Today? Ridgefield Library Lecture by Akhil Amar on Sept. 9 - HamletHub

from the update-your-status,-Officer-Asshat dept

I went back to Ohio/but my First Amendment was gone

For those of you just joining us, allow me to catch everyone up. In the wake of protests against police violence and multiple people realizing that online anonymity only extends as far as anyone's personal opsec, an "anonymous" Ohio police officer decided to sue (anonymously!) people for claiming he was some sort of white extremist.

The pseudonymous "M.R." -- who filed a lawsuit in an Ohio court claiming he was "defamed" by people pointing out his questionable posts" -- is a Cincinnati police officer. Thanks to his quotation of social media posts referring to his questionable behavior, it was pretty easy for online, part-time sleuths to link "M.R." ("Michael Ryan") to Officer Ryan Olthaus.

Despite the fact that M.R. had been outed as Officer Ryan Olthaus, a local court allowed "M.R" to pursue his defamation lawsuit anonymously. Not only that, but it granted a temporary injunction forbidding the people M.R. had failed to de-anonymize from saying anything negative about the officer involved in two questionable shootings.

Hello, prior restraint! This order has been appealed and both the really-not-that-anonymous-cop and people on the side of free speech are arguing about the First Amendment. Since it's Officer Ryan "M.R." Olthaus on the early winning side (as appellee), we'll deal with his ridiculous motion [PDF] first. (h/t local lawyer Jeffrey Nye, who is challenging the unconstitutional gag order.)

According to M.R.'s lawyers, no one can appeal a TRO. Not only is it not appealable, but the larger issues show the aggrieved cop is right. To wit, an editorial:

But on deeper level, this case highlights the nefarious attempts of anti-police protestors, who, after maliciously defaming a police officer as a white supremacist on social media during a heightened anti-police climate, seek to circumvent the judicial process under the false guise of First Amendment protections.

Who wrote this, a police union? The perceived antipathy of non-party John Q. Public has zero bearing on this case. This case is between the cop being accused of being a white supremacist and those who accused him of being one. It has fuck all to do with Officer Ryan Olthaus' personal feelings about the mood of the (non-party) nation.

He goes on to call the appeal "improper," forgetting that TROs and other injunctions/restraining orders can almost always be appealed. Why? Because "doxing," I guess.

They make this claim even though the potential harm to the officer and his family from the publication of his personal information, occasioned by the protestors own baseless and malicious social media posts, far outweighs any burden from the limited restriction on doxing him.

Potential harm is indeed a factor when seeking injunctions. It all depends on whether the courts feel the unrealized harms are probable enough to warrant restrictions. And this goes at least doubly for cases where constitutional rights are implicated. Olthaus wants "because I said so." The legal system (at least the one lying beyond the one that granted the stupid order that violated citizens' free speech rights) will make the final declaration. Simply claiming to be the victim of unspecified (and undocumented) harassment isn't enough. This is evidence of nothing, as far as it applies to Officer Olthaus:

Recent FBI data show upticks in police officer killings during years when there have been major incidents of civil unrest across the country.

"FBI data" is not "evidence from the officer's personal experience." While Olthaus claims he's threatened, he provides no evidence of any threats beyond that to his reputation. The arguments made before the court are bad. Just irredeemably bad. For instance:

In a thinly veiled attempt to circumvent the appellate process, Niesen/White advance an outcome determinative argument that the TRO constitutes a prior restraint on constitutionally protected speech and is therefore automatically appealable.

LOL. Buddy, there's nothing "thinly veiled" about it. Multiple First Amendment lawyers agree this restraining order violates the First Amendment. They are not trying to "circumvent the appellate process." They are asking a higher court to weigh in on the Constitutional matter, which is not only normal, but should be expected when a cop claims he can only sue under a pseudonym and sues over statements of opinion that deal with matters of public interest. No one is "disguising" anything. The court granting the TRO was completely fucking wrong.

God forbid anyone dox Ryan Olthaus but the Cincinnati Police Department. That's the argument. This is also the argument: one that ignores Supreme Court precedent in favor of mid-level state opinion:

While prior restraint on speech carries a "heavy presumption against its constitutional validity," New York Times Co. v. United States, 403 U.S. 713, 723, 91 S.Ct. 2140, 2146, 29 L.Ed.2d 822, 830 (1971), not all prior restraints are per se unconstitutional. Connor Group v. Raney, 2nd Dist. Montgomery No. C.A. 26653, 2016-Ohio-2959, 56. The Court must consider the restriction in its context of litigation and in particular the temporary nature of the order, which must be viewed differently from limitations imposed in broader contexts. Id. at 56. While individuals have a right to communicate freely, a temporary restraint on speech is proper in compelling circumstances. Id. at 56.

On one hand, there's a Supreme Court decision that governs hundreds of defamation suits. On the other hand, the one that M.R. likes, the [squints at filing] Montgomery County decision doesn't even say what he thinks it says.

Unsurprisingly, those opposing the prior restraint have to waste far less paper offering their take on the TRO. The one [PDF] offered by the appellants only runs eight pages, once you subtract the table of contents and signature page. It points out the officer is wrong about the law, even while apparently represented by actual lawyers. And it's this complete wrongness that demands immediate review.

M.R.s confusion as to important points of First Amendment law including what kind of speech is protected, what standards apply to public officials in defamation cases, and how far a court may go in restricting speech that has not yet been uttered are precisely the kinds of questions a court can address through appellate review. In fact, M.R.s arguments about harm and the preservation of the status quo demonstrate precisely why an immediate appeal is required: so that the First Amendment interests of all parties can be resolved swiftly, fairly, and with accurate constitutional precision.

It doesn't matter what one Ohio court chose to focus on: it's still unconstitutional.

The trial courts order is a classic prior restraint. It silenced speech on a matter of public concern, and it altered the status quo by requiring Ms. Niesen and Ms. White to silence their ongoing dialogue about a public officials conduct. From the advent of the Supreme Courts prior restraint jurisprudence, immediate appellate review has been required under these circumstances, particularly when courts and not other branches of government impose the orders of restraint. The court of appeals departed from this requirement by hyperfocusing on the title of the order a temporary restraining order, as opposed to a preliminary injunction rather than its impact upon expression. As a result, the court of appeals erred in failing to provide Ms. Neisen and Ms. White the immediate appellate review to which they were constitutionally required.

The same goes for the amici brief [PDF], composed by several First Amendment lawyers and submitted by Jeffrey Nye. It only takes seven pages to rebut the 21 pages the defensive cop submitted. Is a cop more worthy of courtroom protection than the average accused person? Inquiring First Amendment minds what to know:

Nor can this First Amendment right be defeated simply by speculation that publishing a persons name might expose him to some risk of attack in the future. That risk, regrettably, is present whenever someones alleged misconduct is publicly discussed. An article mentioning an accused (or convicted) criminal might lead some people to attack or threaten the criminal. Likewise with an article discussing a business figure who is accused of unfair practices, or, as here, a post discussing a public official who is accused of acting improperly.

The bottom line is this when it applies to a public servant who has already been named publicly elsewhere:

Niesen and White have a First Amendment right to criticize M.R. by name. If their allegations are found to be defamatory at a later trial, M.R. may be entitled to a damages awardbut he is not entitled to a pretrial prior restraint, such as the one the trial court entered.

M.R. is Officer Ryan Olthaus. It doesn't matter what he does now. People already know. But if courts continue to entertain his baseless arguments, the First Amendment is going to suffer collateral damage from this officer's assertion that he should not be subjected to criticism, much less unspecified harassment for his actions. Fuck tha' Police indeed, but especially this guy who thinks the First Amendment should be subservient to his unverified allegations about potential threats to his safety.

When it comes to cases like these, the law shouldn't be impressed when you throw your badge around. In fact, your claim that you're a public servant should work against you. Criticism of government employees -- even when unfair or misguided -- receives the utmost of Constitutional protection. Except in this case where a court decided a cop was more worthy of protection than the people criticizing him and his actions. The lower court is wrong. Hopefully, this will be reversed, no matter how much money the cop (Ryan Olthaus) has to spend to be wrong about First Amendment rights.

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Filed Under: 1st amendment, cincinatti, defamation, free speech, m.r., police, prior restraint, protests, ryan olthaus

See the article here:
Not-So-Anonymous Cop Continues To Argue Courts Should Violate The First Amendment To Protect Him From The Consequences Of His Actions - Techdirt

The mainstream news industry has been in sharp decline since the 1990s, owing to a series of financial and cultural changes brought by the rise of the internet. Amid the closing or shrinking of newspapers, magazines, and other legacy news outlets, Americans have increasingly turned to social media and heavily partisan websites and cable networks as their main sources of news and information, which has led to a proliferation of disinformation and misinformation and fueled polarization.

Given the vital role a free and responsible press plays in American democracy and the unique protections the Constitution provides for it under the First Amendment, is it time for the government to get involved? Is it governments place to do so? And how could that happen without infringing on that freedom?

In a new book, Saving the News: Why the Constitution Calls for Government Action to Preserve Freedom of Speech (Oxford University Press, 2021), Martha Minow, 300th Anniversary University Professor at Harvard Law School, says the First Amendment not only does not preclude the federal government from protecting a free press in jeopardy, it requires that it do so. Minow spoke with the Gazette about some of the ways to potentially clean up social media and bankroll local news, and why arguing on Twitter isnt a First Amendment right.

GAZETTE: There seems to be broad misunderstanding about what speech is protected by the First Amendment and what is not. Underlying cancel culture and complaints about deplatforming is a belief that people should not be penalized for saying things online that others find objectionable or that are inaccurate or even false because of their right to freely express themselves. Can you clarify how the First Amendment applies and doesnt apply to social media platforms, like Twitter or Facebook, and online generally?

MINOW: I wrote a book to examine the challenges and decline of the news industry during a time of exploding misinformation and disinformation, a global pandemic, and great challenges to democracies in the United States and elsewhere. Certainly, one big dimension of this context is [what] some people are calling [an] infodemic: the flood of information that is enabled by the Internet, and particularly social media. But it is not just social media. Its conventional media, particularly cable news, but also some broadcast news.

Most of the sources of communications are private, and private communications are not governed by the First Amendment. Private companies are entitled to edit, elevate, suppress, remove [speech], whether its in broadcast, cable, or on a social media platform. Indeed, private companies have First Amendment freedoms against any government intervention. We in America are very fond of rights, and rights maybe are what hold us together more certainly than shared traditions, shared identities. And one of the ways thats really evolved is how we talk about rights as if its a cultural phenomenon or its part of our identities. But that kind of informal conversation about I have First Amendment freedom may be a metaphor on a social media platform, but it is not a legal right. We sign terms-of-service agreements with platform companies. Theyre the ones that control what is communicated and whats not. Thats much less edited than broadcast or cable or print media. So, were living in an unprecedented time of lowered barriers to communicating to mass audiences almost anybody can have access to a mass audience. But thats all enabled by private providers and the private providers are not restricted by the First Amendment in what they remove or amplify.

GAZETTE: What are a few of the measures that could effectively hold tech firms to account for what is published and shared on their platforms?

MINOW: When it comes to holding the platform companies responsible for conveying, amplifying, even escalating hateful communications, misinformation, [and] disinformation, there are some techniques, but we have to be careful because if the government is involved, then the First Amendment is front and center. The techniques include eliminating or reducing the immunity currently granted under the [1996] Communications Decency Act, which has a section, Section 230, that treats platform companies differently from any other media and specifically immunizes them from liabilities that apply to all these other entities. They include liabilities for fraud, for defamation, for violating contract terms. [But] even Section 230 does not immunize the platforms from criminal responsibility or from violations of intellectual property rights. So, one very direct step to hold companies responsible would be to either eliminate this immunity or make it conditional. I actually prefer that alternative.

Companies adopt and should adhere to standards of moderation, content moderation rules. They can develop their own, but the idea would be theyd have to announce standards; theyd have to report on them; and theyd have to have processes to act on anyone calling them out for violating their own standards. Thats pretty direct, and it would put them on the same par as all the other media entities that exist in the country.

Another possibility would be to take intellectual property seriously and make the platforms pay when they take or steal or promote information from other news sources. They dont put the revenues that they gain, particularly from advertising, back into investment in news. Its not a punishment; its simply the idea of holding them responsible like [the] grown-up companies that they are.

You know, the fact of the matter is, the big disinformation source is as much broadcast and cable [television as it is online] and on those, there is a basis for government regulation. The FCC could take that seriously and withhold licenses, remove them, terminate them, for companies that are misleading people, that are labeling as news something thats entirely opinion. Cable is largely a monopoly. Local communities grant franchises to cable companies; local communities could hold them more responsible. I dont look forward to a day, I hope we never see it, that the government, at any level, is deciding the content. But when there is scarce opportunity to amplify communications given to private companies, its only fair that they should have standards that they then deliver on [by] providing some quality control of what they amplify. There is no right to have your message sent to everybody in the world anywhere. What there is, is a right to be free from government restrictions on your speech. So, one very specific suggestion that I have is that when we deal with digital communications, there could be a delay, and there could be speed bumps. Before people can spread messages to large numbers of people, there could be a delay, they could even use artificial intelligence to monitor it before it can be spread beyond a handful of people.

GAZETTE: The era of self-policing hasnt worked very well so far, but you say there are things companies can and should be doing right now to act more responsibly and to help support the news. What are a few of those?

MINOW: I agree with you that self-regulation has not worked. Its striking to me that Mark Zuckerberg has said, in effect, We need help. We cant do it alone. And so, I think this is a problem thats bigger than any one company, and it does require government action. The government can act by enforcing, or strengthening and then enforcing, consumer protection rules, including rules about the uses of our data. The government can act by limiting the immunity granted to internet platforms and condition it on the development of codes of conduct that are then enforced. And the government can act by making rules that require sharing the information about the algorithms and their uses with a watchdog, whether academic or nonprofit organizations. We need to improve the entire ecosystem in which information circulates.

GAZETTE: Local news has been a vital part of that ecosystem. Government can support local news without necessarily wading into a First Amendment quagmire, you argue. What are some ways that could be accomplished?

MINOW: Local news is more trusted by people. Theres less polarization in local communities; theres more accountability. But with its decline, which is massive, theres a loss of accountability journalism in local communities and a loss of this ecosystem. And so, one thing to consider is to tax the big platforms and to cordon off the revenues that are generated and plow them back into supporting local news and public media and nonprofit media. Theres a Local Journalism Sustainability Act introduced in the Senate [in July], and it parallels a bipartisan [bill] in the House that uses tax deductions and tax credits to strengthen local news. One of the interesting ideas there is to give a tax break to local companies that buy ads in local news. Another is to relieve payroll taxes for nonprofits and for-profit local news if they hire more journalists. And finally, a dimension that I think is interesting but has its tricky elements, is to allow [tax] deductions for individuals who either subscribe to local news or make gifts to local news. Thats great in the sense that theres no government involvement. But its problematic in that we already know that they are disguises for disinformation, for foreign governments to pretend that they are nonprofit organizations in this country and to hijack whats otherwise a good idea. So that needs some work.

GAZETTE: So, not a government-funded news service, like Voice of America, but financial assistance for individual news organizations so they can continue working independently and ideally, thrive?

MINOW: That is whats being proposed, and it certainly poses many fewer worries. It is really to strengthen this ecosystem of public and private, multiple, diverse, news sources. [These are] especially needed in the local context where we have news deserts thousands of communities that have no local news. When Michael Brown was killed in Ferguson, Missouri, and the Department of Justice undertook a massive investigation exposing the way that the legal system relied on fines and fees on the backs of poor people, one of the things that emerged was there was no local news. Bad things happen where no one is watching.

Interview has been edited for clarity and length.

See the rest here:
Martha Minow looks at ways government can stop disinformation - Harvard Gazette

A man convicted after sending upward of a million Facebook messages to a Denver musician was not using free speech protected by the First Amendment, and was instead making threats, the Court of Appeals decided on Thursday in rejecting a constitutional challenge to Colorados stalking law.

In upholding the conviction of Billy Raymond Counterman, a three-judge panel for the Court of Appeals applied recent state Supreme Court guidance for interpreting threats in the age of social media, as well as a basic recognition that perpetrators are able to easily target their victims online.

Recent widely reported cases of online harassment and stalking of public figures particularly of women involve internet users who are strangers to the victims granted previously unavailable access to their targets through social media, wrote Judge Craig R. Welling in the panels July 22 opinion.

Beginning in 2014 when Counterman first sent a Facebook friend request to singer-songwriter Coles Whalen, she received messages from him that she deemed weird and creepy. She did not respond to any of them, and blocked Counterman on multiple occasions.

Over the next two years, she grew fearful of Counterman and was worried about being hurt or killed after the messages kept coming.

I miss you, only a couple physical sightings, youve been a picker upper for me more times than I can count, one of them read. Another asked Whalen ominously: "Was that you in the white Jeep?

Whalen was too frightened to book shows because it meant we had to post online where we would be and at what time, said one of Whalens friends and bandmates, according to Westword. Coles became afraid to talk to people; she was anxious, unhappy, and constantly checking in with security.

Police arrested Counterman in May 2016 and a jury subsequently convicted him of stalking. He received a sentence of four-and-a-half years in prison.

Counterman appealed his conviction, asserting the stalking law was used to punish his free speech. Under Colorado law, stalking can occur when a person repeatedly contacts, surveils or communicates with an individual in such a way that a reasonable person would feel serious emotional distress.

At issue was whether his messages to Whalen, which reportedly numbered over one million, constituted a true threat not shielded by the First Amendment.

Mr. Counterman did not intend to make a threat or didnt have knowledge that the communication would be perceived as a threat, public defender Mackenzie Shields argued to the appellate judges. She added that Counterman's messages were "overwhelmingly mild."

In June 2020, the Colorado Supreme Court revised its standard for what constitutes threatening speech. The Court outlined specific factors to consider like the medium, the relationship between the people involved and the reaction of the recipient but emphasized that context also matters.

In determining whether a statement is a true threat, a reviewing court must examine the words used, but it must also consider the context in which the statement was made, wrote Justice Monica M. Mrquez in the courts opinion.

Although Counterman went to trial before the Courts decision, the trial court judge in his case evaluated the Facebook messages along those lines. For example, Counterman wrote on one occasion that Staying in cyber life is going to kill you. Come out for coffee. You have my number.

Then-Arapahoe County District Court Judge F. Stephen Collins observed that a reader could interpret the message in a couple different ways. I mean, one, its it could be just expressing a concern to someone, but it also could be interpreted, given the totality of the circumstances, as an implied threat that if she stays in cyber life, shes going to get killed. And I find that troublesome.

Afederally-funded study in 2009noted that the intent of stalking laws is to protect victims from behaviors that are not criminal in isolation, but add up to unlawful abuse. Data from a 2006 survey found 20 out of 1,000 women had been victims of stalking, compared to seven out of 1,000 men.

The U.S. Supreme Court has established that true threats, meaning statements where someone communicates a serious intent to commit violence, do not have First Amendment protection. However, in 2015 a majority of the justices reversed a man's conviction because prosecutors had not proven he knowingly threatened his wife with his online posts.

Attorneys Lyrissa Barnett Lidsky and Linda Riedemann Norbut have written about about how easy it is for outsiders to misconstrue statements, even violent ones, as true threats on social media. They advocate for the ability of alleged perpetrators to cite the context of the communications in their defense.

In evaluating the circumstances of Counterman's communications, the appellate judges noted his messages were completely uninvited, given that Whalen never responded. Some of them implied that he wanted to see her dead, or that he felt an entitlement to interact with her. Counterman also sent Whalen messages privately, indicating that his remarks were only intended for her.

"Here, there are details that heighten the credibility of Countermans threats. The references to surveilling [Whalen] particularly to seeing her with her partner or friend and the white Jeep indicate that Counterman may have had a familiarity with [Whalen] gained from secretly watching her," wrote Welling in the appellate panel's opinion. "These details add to the threat implied in Countermans messages."

The court also rejected the remaining claims in Counterman's appeal. The case is People v. Counterman.

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Appeals court finds man's online threats to Denver musician not protected by First Amendment - coloradopolitics.com