Category Archives: First Amendment

White River Valley Electric Cooperative will be holding their annual election of board members, as well as proposing three new amendments.

The election will be online for the second year in a row, and will be held from Monday, Aug. 23 to Friday, September 3. The results of the election will be announced on Saturday, Sept. 11 at the annual meeting at 9 a.m.

All members of White River Valley Electric Cooperative are allowed to and encouraged to vote. To vote visit whiteriver.org, where you will be prompted to enter your member account number and unique pin number, provided from a paper bill received in the mail.

On the website, the option to request a paper ballot to be mailed to your home or business will be available. To request a paper ballot on the phone, call 877-978-3246.

All information about the election, the board members being voted on, and what the amendments are is available at the website as well.

The election is held by the Association of Missouri Electric Cooperatives, based out of Jefferson City.

All of that goes directly to them, they host the website, they tally all the votes, they send out pre-addressed, pre-stamped, watermarked ballots that member request, and deliver the election results live and certified at our annual meeting, Manager of Communications and Member Engagement for White River Valley Electric Cooperative Cassie Cunningham said. No one knows (the results) aside from the third party holding the election. We dont even know what the results of those are until the meeting that day.

The meeting will be livestreamed at whiterivermeeting.com.

Last year was the first year White River Valley Electric Cooperative held an online election, due to COVID-19.

We actually had a waiver from the governor to conduct business as safely as possible, but you couldnt really meet in person. So we were able to implement temporarily online voting last year, Cunningham said. Before all of COVID even came to play, we were planning to submit to the membership for a vote option to implement online elections anyway. So that was a bylaw proposed and did pass last year.

Moving forward, our members will have the convenience to vote at the meeting if we are having an in person meeting, if we are online they will be able to mail in ballots, whichever fits most convenient for an individuals lifestyle.

Economic Development and Key Accounts Specialist Devin Fisher said the cooperative thinks its important for everyone to know what they are voting for.

Being governed by a board, they make decisions and so whenever it comes to amendments, we just want to make sure everyone knows what theyre voting for, why it is important, and how it is going to affect you, Fisher said.

The biggest thing is that what makes the cooperative different is that we are member owned, so instead of just paying a bill for your electricity, you actually have a say in our business operations as a member. So its important and a responsibility to vote, Cunningham said. Were trying to move forward and make things more engaging and convenient for the membership, so everybody can have a voice and an opportunity to participate. Were just trying to modify and improve our governance practices to accommodate everyone.

Members will vote on filing three board seats: Taney County District B Representative, Christian County District C Representative, and Douglas County District D Representative.

Douglas County is the only board seat that is running unopposed, but will still appear on the ballot.

There will also be three amendments to the bylaws proposed.

The first amendment will ask:

If you are in favor of utilizing membership votes and removing the in person requirement for establishing a forum at the annual meeting of members.

A yes vote on this means it allows for your electronic or mail in ballot to count towards a forum, so that your participation is important in cooperative matters, Fisher said. Prior to, your vote did not count unless you were at the meeting; this allows you to be able to vote online and not have to be at the meeting.

The second amendment will ask:

If you are in favor of allowing the cooperative the flexibility to hold virtual, annual meetings, at a date and time set by the board with proper notice and the ability to adjust the order of the business for virtual meetings.

Adjusting the order does not mean changing anything about the meeting, that simply means that any new business would actually move to the front of the meeting, so that nobody gives up on the meeting to discuss it at the end, Fisher said. That puts you first, and all other business last. It just promotes another format, to put your concerns first and then moves everything to the end.

The third amendment will ask:

If you are in favor of clarifying the board of directors qualifications and elections.

For the committee it was very important they take a look at this bylaw, because right now anybody can run for a seat on the board. We are simply stating that sometimes we need to promote transparency among all of our members and look at our cost savings, Fisher said. We would just like for representation to be clarified.

For more information visit whiteriver.org.

As election results become available, check out bransontrilakesnews.com.

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White River Valley Electric to hold annual election - Branson Tri-Lakes news

Internet social-media platforms are granted broad safe harbor protections against legal liability for any content users post on their platforms. Those protections, spelled out in Section 230 of the 1996 Communications Decency Act (CDA), were written a quarter century ago during a long-gone age of nave technological optimism and primitive technological capabilities. So much has changed since the turn of the century that those protections are now desperately out of date. Its time to rethink and revise those protections and for all leaders whose companies rely on internet platforms to understand how their businesses might be affected.

Social-media platforms provide undeniable social benefits. They gave democratic voice to oppressed people during the Arab Spring and a platform for the # MeToo and #BlackLivesMatter movements. They helped raise $115 million for ALS with the Ice Bucket Challenge, and they helped identify and coordinate rescue for victims of Hurricane Harvey.

But weve also learned just how much social devastation these platforms can cause, and that has forced us to confront previously unimaginable questions about accountability. To what degree should Facebook be held accountable for the Capitol riots, much of the planning for which occurred on its platform? To what degree should Twitter be held accountable enabling terrorist recruiting? How much responsibility should Backpage and Pornhub bear for facilitating the sexual exploitation of children? What about other social-media platforms that have profited from the illicit sale of pharmaceuticals, assault weapons, and endangered wildlife? Section 230 just didnt anticipate such questions.

Section 230 has two key subsections that govern user-generated posts. The first, Section 230(c)(1), protects platforms from legal liability relating to harmful content posted on their sites by third parties. The second, Section 230(c)(2), allows platforms to police their sites for harmful content, but it doesnt require that they remove anything, and it protects them from liability if they choose not to.

These provisions are good except for the parts that are bad.

The good stuff is pretty obvious. Because social-media platforms generate social benefits, we want to keep them in business, but thats hard to imagine if they are instantly and irreversibly liable for anything and everything posted by third parties on their sites. Section 230(c)(1) was put in place to address this concern.

Section 230(c)(2), for its part, was put in place in response to a 1995 court ruling declaring that platforms who policed any user generated content on their sites should be considered publishers of and therefore legally liable for all of the user-generated content posted to their site. Congress rightly believed that ruling would make platforms unwilling to police their sites for socially harmful content, so it passed 230(c)(2) to encourage them to do so.

At the time, this seemed a reasonable approach. But the problem is that these two subsections are actually in conflict. When you grant platforms complete legal immunity for the content that their users post, you also reduce their incentives to proactively remove content causing social harm. Back in 1996, that didnt seem to matter much: Even if social media platforms had minimal legal incentives to police their platform from harmful content, it seemed logical that they would do so out of economic self-interest, to protect their valuable brands.

Lets just say weve learned a lot since 1996.

One thing weve learned is that we significantly underestimated the cost and scope of harm that posts on social-media can cause. Weve also learned that platforms dont have strong enough incentives to protect their brands by policing their platforms. Indeed, weve discovered that providing socially harmful content can be economically valuable to platform owners while posing relatively little economic harm to their public image or brand name.

Today there is a growing consensus that we need to update Section 230. Facebooks Mark Zuckerberg even told Congress that it may make sense for there to be liability for some of the content, and that Facebook would benefit from clearer guidance from elected officials. Elected officials, on both sides of the aisle, seem to agree: As a candidate, Joe Biden told the New York Times that Section 230 should be revoked, immediately, and Senator Lindsey Graham (R-SC) has said, Section 230 as it exists today has got to give. In an interview with NPR, the former Congressmen Christopher Cox (R-CA), a co-author of Section 230, has called for rewriting Section 230, because the original purpose of this law was to help clean up the Internet, not to facilitate people doing bad things.

How might Section 230 be rewritten? Legal scholars have put forward a variety of proposals, almost all of which adopt a carrot-and-stick approach, by tying a platforms safe-harbor protections to its use of reasonable content-moderation policies. A representative example appeared in 2017, in a Fordham Law Review article by Danielle Citron and Benjamin Wittes, who argued that Section 230 should be revised with the following (highlighted) changes: No provider or user of an interactive computer service that takes reasonable steps to address known unlawful uses of its services that create serious harm to others shall be treated as the publisher or speaker of any information provided by another information content provider in any action arising out of the publication of content provided by that information content provider.

This argument, which Mark Zuckerberg himself echoed in testimony he gave to Congress in 2021, is tied to the common law standard of duty of care, which the American Affairs Journal has described as follows:

Ordinarily, businesses have a common law duty to take reasonable steps to not cause harm to their customers, as well as to take reasonable steps to prevent harm to their customers. That duty also creates an affirmative obligation in certain circumstances for a business to prevent one party using the businesss services from harming another party. Thus, platforms could potentially be held culpable under common law if they unreasonably created an unsafe environment, as well as if they unreasonably failed to prevent one user from harming another user or the public.

The courts have recently begun to adopt this line of thinking. In a June 25, 2021 decision, for example, the Texas Supreme Court ruled that Facebook is not shielded by Section 230 for sex-trafficking recruitment that occurs on its platform. We do not understand Section 230 to create a lawless no-mans-land on the Internet, the court wrote. Holding internet platforms accountable for the words or actions of their users is one thing, and the federal precedent uniformly dictates that Section 230 does not allow it. Holding internet platforms accountable for their own misdeeds is quite another thing. This is particularly the case for human trafficking.

The duty-of-care standard is a good one, and the courts are moving toward it by holding social media platforms responsible for how their sites are designed and implemented. Following any reasonable duty-of-care standard, Facebook should have known it needed to take stronger steps against user-generated content advocating the violent overthrow of the government. Likewise, Pornhub should have known that sexually explicit videos tagged as 14yo had no place on its site.

Not everybody believes in the need for reform. Some defenders of Section 230 argue that as currently written it enables innovation, because startups and other small businesses might not have sufficient resources to protect their sites with the same level of care that, say, Google can. But the duty-of-care standard would address this concern, because what is considered reasonable protection for a billion-dollar corporation will naturally be very different from what is considered reasonable for a small startup. Another critique of Section 230 reform is that it will stifle free speech. But thats simply not true: All of the duty-of-care proposals on the table today address content that is not protected by the First Amendment. There are no First Amendment protections for speech that induces harm (yelling fire in a crowded theater), encourages illegal activity (advocating for the violent overthrow of the government), or that propagates certain types of obscenity (child sex-abuse material).

Technology firms should embrace this change. As social and commercial interaction increasingly move online, social-media platforms low incentives to curb harm are reducing public trust, making it harder for society to benefit from these services, and harder for legitimate online businesses to profit from providing them.

Most legitimate platforms have little to fear from a restoration of the duty of care. Much of the risk stems from user-generated content, and many online businesses host little if any such content. Most online businesses also act responsibly, and so long as they exercise a reasonable duty of care, they are unlikely to face a risk of litigation. And, as noted above, the reasonable steps they would be expected to take would be proportionate to their services known risks and resources.

What good actors have to gain is a clearer delineation between their services and those of bad actors. A duty of care standard will only hold accountable those who fail to meet the duty. By contrast, broader regulatory intervention could limit the discretion of, and impose costs on, all businesses, whether they act responsibly or not. The odds of imposing such broad regulation increase the longer harms from bad actors persist. Section 230 must change.

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It's Time to Update Section 230 - Harvard Business Review

11 August 2021

Duane Morris LLP

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Today, the U.S. Court of Appeals for the Eighth Circuit upheld,in part, the constitutionality of an Iowa law that makes it acriminal offense to obtain access to an agricultural facility byfalse pretenses. Animal Legal Def. Fund v. Reynolds, No.19-1364 (8th Cir. Aug. 10, 2021). The court reversed in part adistrict court ruling that the law violated the FirstAmendment.

In light of animal activist infiltration of farms and otheragricultural operations, the Iowa legislature passed a law in 2012that made it a crime (a misdemeanor) to commit "agriculturalproduction facility fraud." That crime could be committed intwo ways: (1) by obtaining access to an agricultural productionfacility by false pretenses (the Access Provision); or (2) bymaking a false statement as part of an employment application to anagricultural production facility if the person knows the statementis false and makes it with an intent to commit an act notauthorized by the owner (the Employment Provision). Iowa Code 717A.3A(1)(a)-(b).

This measure was characterized as an "ag gag" law byits detractors on the ground that it allegedly penalizes freespeech on animal abuse issues. But it was seen by its supporters asan appropriate response to the animal rights activist tactic ofeither trespassing on farmland or obtaining employment at a farmwith false statements and then secretly videotaping or otherwiseexposing what the advocates claim is inhumane treatment of farmanimals.

Plaintiffs, which included the animal rights groups Animal LegalDefense Fund (ALDF) and People for the Ethical Treatment of Animals(PETA), sued claiming that the law violated their First Amendmentrights. The district court agreed and enjoined enforcement of thelaw. A three-judge paned of the Eighth Circuit reversed as to theAccess Provision but affirmed as to the Employment Provision.

The Access Provision did not violate the First Amendment becauseit proscribes using false statements to obtain access to privateproperty. The court examined the leading Supreme Court case onwhether the First Amendment protects false statements theso-called "stolen valor" case of United States v.Alvarez, 567 U.S. 709 (2012) but found the pluralityopinion in that case to be inconclusive. Nonetheless, the EighthCircuit concluded that, in light of Alvarez,"intentionally false speech undertaken to accomplish a legallycognizable harm may be proscribed without violating the FirstAmendment." Slip op. at 7. In this regard, the court ofappeals specifically disagreed with the district court'sreasoning that trespassing on a farmer's land was not a legallycognizable harm because the farmer would only be able to recovernominal damages:

Even without physical damageto property arising from a trespass, these damages may compensate aproperty owner for a diminution of privacy and a violation of theright to exclude legally cognizable harms. . . . "Theright to exclude is one of the most treasured rights of propertyownership." . . . We therefore conclude that the AccessProvision's prohibition on assuming false pretenses to obtainaccess to an agricultural production facility is consistent withthe First Amendment.

Id. (citation omitted).

However, the court found the Employment Provision to beunconstitutional. The court noted that, while a narrowly tailoredstatute that prohibits making false statements to get a jobprobably would pass constitutional muster, the Employment Provisionwas broader because it penalized the making of the false statementwhether or not it influenced the offer of employment. Id.at 8. The Employment Provision therefore "proscribes speechthat is protected by the First Amendment and does not satisfystrict scrutiny." Id. at 9.

Two judges wrote opinions separate from the majority authored byJudge Colloton. Judge Grasz joined in the majority opinion but didso "hesitantly as to the Access Provision. The court'sopinion today represents the first time any circuit court hasupheld such a provision." Id. at 11. Judge Gruenderconcurred in part and dissented in part. He concluded that neitherthe Access Provision nor the Employment Provision violates theFirst Amendment:

In sum, the Alvarezplurality's reasoning implies that both the AccessProvision and the Employment Provision areconstitutional. Consequently, although ourjurisprudence leaves open two ways of resolving theMarks question in this case, both ways converge on thesame result: we must uphold both provisions.

Id. at 21.

This case is a significant victory for animal businesses thathave been subjected to property invasions by animal rightsactivists. At least in Iowa, lying to get access to a farmer'sproperty in order to expose purported animal abuse is a crime.Moreover, even though the Employment Provision was invalidated, theEighth Circuit indicated that the state legislature could fix thatproblem by narrowing the law to "proscribe only falsestatements that are material to a hiring decision."Id. at 9. Whether there are further steps in thislitigation at the Eighth Circuit or Supreme Court levels, thedecision in this case will reverberate throughout the animal rightscommunity.

Disclaimer: This Alert has beenprepared and published for informational purposes only and is notoffered, nor should be construed, as legal advice. For moreinformation, please see the firm's full disclaimer.

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Attorney Sidney Powell speaks at a press conference on election results in Alpharetta, Georgia, U.S., December 2, 2020. REUTERS/Elijah Nouvelage

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(Reuters) - Litigators can talk an awful lot of smack in court appearances and filings without having to worry about defamation. But when they step outside of the courtroom, its a different story: Litigation is not a license to lie.

Im borrowing that thoroughly delicious phrase from a brief by voting equipment maker U.S. Dominion Inc, opposing a motion by former Donald Trump campaign lawyer Sidney Powell to dismiss Dominions $1.3 billion defamation suit. As Ill explain, Powells lawyers argued, among other things, that she could not be liable for her accusations of vote manipulation because she made those statements in the context of Trump campaign litigation (or prospective litigation) to overturn 2020 election results.

On Wednesday, U.S. District Judge Carl Nichols of Washington, D.C., rejected that argument (and Powells other defenses) in a decision allowing Dominion to move ahead with its case against Powell and other defendants.

An attorney's out-of-court statements to the public can be actionable, even if those statements concern contemplated or ongoing litigation, Nichols wrote. Powell cannot shield herself from liability for her widely disseminated out-of-court statements by casting them as protected statements about in-court litigation.

Nichols opinion summarized a veritable parade of television interviews and press conferences in which Powell slung vote manipulation accusations at Dominion. In the judge's view, Powell clearly crossed the contextual line between protected litigation-related statements and unshielded commentary that's outside the bounds of litigation.

But his decision made me curious about where, exactly, that line is drawn. Powells brief, after all, cited U.S. Supreme Court precedent holding that you don't have to be in court to be engaged in litigation-related activity. The court's 1963 ruling in NAACP v. Button arose from Virginias allegation that the NAACP was illegally soliciting clients when it distributed desegregation petitions, among other activities. The Supreme Court ruled that the First Amendment protected the NAACPs lawyers and organizers when they advised prospective litigants about their rights.

Powell's lawyers contended that she, like the NAACP, was engaged in litigation and prospective litigation of momentous significance and immense public interest. According to them, her TV appearances and press conferences were intended to publicize the evidence and legal theories she was espousing (or planned to espouse) in the Trump campaign's litigation challenges to election results. So under the Supreme Courts reasoning in Button, Powells lawyers insisted, she was engaged in litigation-related activities protected by lawyers' First Amendment privilege in court proceedings.

It would make no sense, and serve no public purpose, to give immunity for statements made during the course of litigation which are themselves public but burden lawyers with the threat of billion-dollar defamation verdicts when the same allegations are made at press conferences and news releases announcing and discussing the case, wrote Powell lawyers Lawrence Joseph and Howard Kleinhendler.

Dominions counsel at Clare Locke and Susman Godfrey tore into that argument in their opposition brief. Powell, they said, was asking the court to manufacture a propaganda exception for wild accusation, defying precedent that has permitted defamation suits against lawyers for statements made outside of court proceedings.

The most compelling citation in Dominions brief, by my reading, is Seidl v. Greentree Mortgage, a 1998 Colorado federal case. (Powell argued that Colorado law applies in Dominions suit.) The underlying facts are incredibly complex, but all you need to know is that the mortgage company countersued a plaintiff's lawyer for defamation after she issued an online press release announcing her clients lawsuit against Greentree. The lawyer contended that she was immune, pointing to language in the Restatement (Second) of Torts that says lawyers have an absolute privilege to publish defamatory statements before or during litigation as long as the statements have some relation to the proceeding.

The Greentree court disagreed. Press releases and statements to reporters, the judge said, arent entitled to absolute privilege because press conferences arent judicial proceedings. The ruling explained that the key issue in determining whether the litigation privilege applies is the lawyer's audience: Were the allegedly defamatory statements addressed to people with a recognized interest in the case or to outsiders? Journalists and members of the public have no interest except as observers, the court said. Lawyers can therefore face defamation claims based on press releases. The decision quoted 1962 precedent: An attorney who wishes to litigate his case in the press will do so at his own risk.

Its probably telling that Powells lawyers, who did not respond to my email query, didnt offer a single example in their reply brief of a case in which a court ruled that a lawyers comments at a press conference or in a press release were protected under the litigation privilege. Powells brief did not attempt to argue that members of the press or public had a sufficiently specific interest in the Trump campaigns litigation to extend Powells privilege to out-of-court statements.

In Wednesday's opinion, Nichols noted a 2006 case from the District of Columbia U.S. Circuit Court of Appeals that highlights the critical question of the audience for allegedly defamatory statements. The case, Messina v. Krakower, stemmed from a dispute between two business partners. A lawyer representing one of them sent a letter to the other, outlining his clients grievances and warning that there would be litigation if the other partner didnt agree to negotiate a split.

The letters recipient argued that the litigation privilege didnt apply because the lawyer sent a draft of the letter to a third person, whom he had proposed as a mediator. The D.C. Circuit acknowledged that lawyers can lose litigation privilege immunity from defamation claims when they publish statements to outsiders but said the proposed mediator had an interest in the threatened litigation so the privilege remained intact.

Sidney Powell, on the other hand, told everyone listening to her press conferences and television interviews that Dominion manipulated the results of the 2020 election. And now shell have to prove that those statements were not defamatory.

Read more:

Trump allies including Giuliani lose bid to dismiss Dominion vote machine lawsuits

Ex-Trump lawyer Powell asks judge to toss voting machine company's $1.3 billion lawsuit

Voting machine company sues pro-Trump lawyer Sidney Powell over 'wild accusations'

Opinions expressed here are those of the author. Reuters News, under the Trust Principles, is committed to integrity, independence and freedom from bias.

Our Standards: The Thomson Reuters Trust Principles.

Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias.

Alison Frankel has covered high-stakes commercial litigation as a columnist for Reuters since 2011. A Dartmouth college graduate, she has worked as a journalist in New York covering the legal industry and the law for more than three decades. Before joining Reuters, she was a writer and editor at The American Lawyer. Frankel is the author of Double Eagle: The Epic Story of the Worlds Most Valuable Coin. Reach her at alison.frankel@thomsonreuters.com

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Sidney Powell and the limits on a litigator's 'license to lie' - Reuters

One of the most high-profile art censorship sagas of recent times is explored in a new book by Arnold Lehman, titled Sensation: The Madonna, the Mayor, the Media, and the First Amendment. The former Brooklyn Museum director dives into the furore around the 1999 exhibition Sensation: Young British Artists from the Saatchi Collection, which took place at the New York museum while he was at the helm. The show had first opened at the Royal Academy of Arts in London in 1997 where it had also drawn protests and made headlines.

In New York, Chris Ofilis painting The Holy Virgin Mary (1996)depicting a black Madonna amidst porn magazine cut-outs and elephant dungwas at the centre of the storm. In response to the painting, which he called anti-Catholic, New Yorks then-mayor Rudy Giuliani sought to cut the museum's funding and evict it from its city-owned building. It has taken Lehman two decades to fully absorb and reflect on events, and this book is his very personal account of what happened, says the publisher in a statement. In the extract below, Lehman describes presenting the controversial works in Sensation to Giuliani and his cohorts at New York City Hall.

Sensation: The Madonna, the Mayor, the Media, and the First Amendment by Arnold Lehman

Perhaps most surprising to me at the time, and certainly in retrospect, was the Bastille Day meeting, as I called it, with the mayor, in City Hall on July 14, 1999, a meeting that both our board chair, Bob Rubin, and I had requested on a number of occasions but with no response until we received a call a week before. With mayor Giuliani were DCA [Department of Cultural Affairs] commissioner Schuyler Chapin, deputy mayors Joseph Lhota and Randy Levine, and budget director Robert Harding. The mayors office had earlier that week indicated that we would have 15 minutes to present our capital funding request of $20m for Brooklyn Museums new front entrance. While the city had been providing operating funds for many decades to cultural organisations that were part of the CIGsthe Cultural Institutions Group, 33 organisations operating in city-owned buildings or on city-owned land, based on a formulaic annual allocationcapital funding was a hit-or-miss process most often dependent on political advocacy from the borough president, city council, mayor or some combination of those.

After a pleasant welcome, and before getting to talk about the museums pressing need for its proposed capital project, the mayor, Bob and I talked about Brooklyn, where both the mayor and I were born, and exchanged friendly jibes about his Yankees versus the Mets. I then used the first part of our slide presentation to show the major need for the new entrance as well as the highly engaging designs by our team of renowned Japanese architect Arata Isozaki and greatly respected New York architect James Polshek.

[]

I concluded my presentation with slides from Sensation, starting with Damien Hirsts The Physical Impossibility of Death in the Mind of Someone Livinga ferocious shark encased in hundreds of gallons of formaldehyde. This immediately got the attention of everyone in the room and gave me the opportunity to talk about the exhibition generally, the necessary ticketed admission fees and, most importantly, its provocative nature. I showed one image after another of what we had understood to be the most controversial works in the exhibition as reported from the Royal Academy and the media. I prefaced this part of my presentation by saying that the RAs distinguished Exhibitions Secretary for two decades, Norman Rosenthal, had personally selected the works for the Sensation exhibition from the premier contemporary art collection in Great Britain, that of Charles Saatchi.

Installation shot of Sensation: Young British Artists from the Saatchi Collection at the Brooklyn Museum showing works by Damien Hirst, Marcus Harvey and Sarah Lucas Image: Brooklyn Museum, 1999

Again thinking that I would prepare Giuliani for what might happen, I went on to say that in the months before the exhibition opened to the public in London, there were already attacks in the British press and by Royal Academicians on the controversial nature of the works to be shown and thattrying to make the connection as clear as possible to the mayorRosenthal had been quoted in the UK Times in February 1997 [saying] that such works were as shocking, difficult, and thought-provoking as Goyas Disasters of War and Picassos Guernica had been in their day and that art is good when it perplexes us. As I was quoting Rosenthal, I immediately thought that I might have overestimated the art-historical knowledge of the mayor and his lieutenants!

[]

As the meeting was ending, Mayor Giuliani shook hands with Bob Rubin, patted me on the back, and told Deputy Mayor Randy Levine to give them what they wanttheyre good guys. With that said, I was already banking that $20 million in city capital funding for the museums new entrance!

That was the last time I spoke with Rudy Giuliani.

[.]

However, on Wednesday morning, September 22, I answered a call from Schuyler to my office. After a few moments of nervous but cordial chitchat, he abruptly announced that he was delivering a message from Mayor Giuliani that unless the museum immediately cancelled the Sensation exhibition, the city would terminate all funding for the BMA. I was incredulous that he had agreed to deliver this preposterous message and remained silent on the phone. Schuyler asked nervously, Arnold? Arnold, are you there? I held my temper and spoke coolly, with great deliberation: Im here, Schuyler. But where are you in this ultimatum? Where are you in all of this? What about freedom of expression?

Installation image of Sensation at the Brooklyn Museum showing Chris Ofili's The Holy Virgin Mary (1996) Image: Brooklyn Museum, 1999

Im just the messenger. Im just the messenger, Schuyler responded even more nervously. With my voice raised but still under control (which, thinking about it later, amazed me), I responded, But youre the damn commissioner of cultural affairs for the city of New York! You have to take a stand! He hung up the phone. An hour later, he called again to tell me that the mayors position had not changed. I asked if he had spoken to Giuliani, but he didnt answer. I asked if he was going to do something about this destructiveness on the part of the mayor?

Like what? he asked.

Like quit, I replied.

Schuyler said something I couldnt make out, seeming almost to whimper in response to my now nearly shouted suggestion. This time, I hung up. Within minutes, Giuliani appeared for a City Hall press briefing, seemingly timed directly to Schuylers second warning. The New York Times reported that one of the mayors aides had prompted a CBS reporter at the briefing, Mary Gay Taylor, to ask a question about recent press coverage of Sensation. Giuliani jumped in with a clearly rehearsed answer denouncing the museum: You dont have a right to government subsidy for desecrating somebody elses religion and, therefore we will do everything that we can to remove funding for the Brooklyn Museum until the director comes to his senses and realises that if you are a government-subsidised enterprise, then you cant do things that desecrate the most personal and deeply held views of people in society. Needless to say, Giulianis message until the director comes to his senses rang louder in my ears than had I been standing in the belfry of Londons Big Ben.

Sensation: The Madonna, the Mayor, the Media, and the First Amendment, Arnold Lehman, Merrell Publishers, 248pp, 25 (hb)

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Extract | How Mayor Rudy Giuliani went from 'patting on the back' to trying to pull the plug on Sensation show - Art Newspaper

David Chipman testifies during a House Judiciary Committee hearing in Washington, September 25, 2019. (Leah Millis/Reuters)

So it turns out that Joe Bidens anti-gun nominee for the ATF, David Chipman, also has problems with the First Amendment, telling BBC in 2019 (hat-tip to The Federalist) that there is frustration in the United States over freedom of speech and the ability of people to say things is that largely cannot be regulated.

No, not, largely. Words cant be regulated, period.

Chipman, like most would-be censors, frames speech restrictions as a public-safety issue. The FBI, other federal agencies, have a tough job responding to these threats when they dont currently have the authority to remove weaponry just because people are saying hateful things, he explained.

First off, thousands of Americans have had their guns taken from them via red-flag and other laws usually after police and courts determine that the owners are putting themselves or others in danger. Just today, Floridas agriculture commissioner Nikki Fried strippedthe concealed-carry licenses of 22 people who have yet to be convicted of any crime. Authorities already have too much leeway in limiting Second Amendment rights.

Most mass shooters offer few, if any, clues about their plans. Most of them dont even have a criminal record. Even if they had, theres a big difference between threatening imminent violence and saying hateful things. Yet, Chipman seems to believe that cops, using their precrime clairvoyance, should be empowered to unilaterally determine what constitutes hate speech before seizing guns from people who have done nothing illegal an authoritarian twofer.

Theres of surplus of historical evidence demonstrating why such power should never be afforded the state. And one need only listen to Chipman conflate conservatism and white supremacy and exaggerate the prevalence of gun violence and domestic terrorism during his BBC interview to understand how quickly that power would be abused.

Maybe Im an outlier on this issue, but Ive gone my entire life without ever feeling frustrated about the right of others to publicly express opinions even reprehensible ones. Its not as if theyre going to stop believing or feeling stupid things simply because the ATF director threatens them. Of course, Chipman is free to believe whatever he likes, as well. Its appalling, however, that someone with such disdain for the Constitution has been nominated for a position that is charged with upholding the law.

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Apparently David Chipman Isnt Crazy About the First Amendment, Either - National Review

By PAM BONDI

Last week, White House press secretary Jen Psaki candidly stated that President Joe Bidens administration was making sure social media platforms are aware of the latest narratives of what the government deems to be misinformation.

This statement and accompanying comments from President Biden and Surgeon General Vivek Murthy underscore the very crux of the class action lawsuit former President Donald J. Trump and other censored Americans recently brought against Big Tech. Psaki also elaborated that the Biden administration works to create robust enforcement strategies that bridge their [Big Tech] properties and provide transparency about rules.

This acknowledgment of the governments role and involvement in choosing which posts Big Tech should censor goes to the factual assertions President Trump has made in the class action lawsuit.

When I stood with President Trump to unveil the America First Policy Institutes support of his class action lawsuit against Facebook, Twitter, and YouTube, many on the left quickly dismissed the suit by saying these are private companies and not government actors.

They failed to understand that Big Techs actions and government involvement have evolved recently to the point where the government empowers Big Tech to violate our rights. As former President Trump stated upon filing the lawsuit, If they can do it to me, they can do it to ANYONE and in fact, that is exactly what is happening.

Its no wonder then that Harvard Law Professor Alan Dershowitz has stated, This is the most important First Amendment case of the 21st Century.

Our government cannot sit idly by while Big Tech tramples on our freedoms.

Psakis statements further illustrate the Biden administrations work with Facebook and the other platforms to jointly determine what constitutes misinformation and then censor individuals viewpoints. These coordinated actions undercut any remaining pretense that these companies are independent actors.

Again, to quote Psaki when she explained that the White House had increased disinformation research and tracking within the Surgeon Generals office. Were flagging problematic posts for Facebook that spread disinformation. This is collusion, and these Big Tech giants can no longer be allowed to escape the First Amendment. Collaboration between the current administration and social media giants is further evidenced by Psakis comments if you are removed by one platform, you should be removed by all. Where is the private company in this statement?

And that should concern every American who values free speech. This isnt a partisan issue. Americans of every political stripe should be gravely concerned about the precedent this sets for curtailing our freedoms.

The Constitution constrains Congress from passing laws that would abridge the First Amendment rights of Americans. And when Big Tech companies serve as state actors, an arm of the government, they must be treated as the government is. This means being bound to the same First Amendment restraints that the Constitution applies to the rest of government.

Unlike most other private corporations, Facebook and other tech giants are dependent on protections from the federal government. Section 230 of the Communications Decency Act gives Internet companies immunity from many types of lawsuits if they agree to moderate their content in a neutral manner. Initially passed into law in 1996 when these social media giants didnt even exist, Congress intended Section 230 to protect children by allowing Internet companies to take down information that exploited them.

There is nothing neutral about Big Techs actions to censor Americans with whom the liberal elites disagree, especially when this censorship occurs at the direction of the government. Just ask the thousands of censored Americans who had their social media accounts flagged for misinformation when merely sharing news stories or expressing their opinions.

In the short two weeks since the America First Policy Institute launchedTakeonBigTech.com, we have received over 50,000 stories from Americans eager to share their experiences about being arbitrarily canceled by Big Tech. For all Americans who believe in the First Amendment: This lawsuit is for YOU.

Pam Bondiserves as the Chairman of the Constitutional Litigation Partnership at the America First Policy Institute. She previously served as the 37th Florida attorney general from 2011 to 2019 and was the first woman elected to the office.

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Pam Bondi: If you care about the First Amendment, this class action is for you - Must Read Alaska

Former House Majority Leader David Lust, who died last week, is remembered by colleagues as an intelligent debater.

That was on full display in 2018. He sparred with fellow legislator Mark Mickelson about an effort to limit out-of-state contributions to ballot questions.

More than $10 million in out-of-state money was poured into campaigns for and against ballot questions in 2016. One of those that passed was Marcys Lawa voter-approved crime victims rights law.

Former Speaker Mickelson says those debates were challenging and intellectually stimulating.

SDPBs Lee Strubinger digs into his audio archive and has this audio post-card from their debate over the first amendment and the role of out-of-state money in South Dakota politics. We first hear from Mickelson and then Lust.

The ban on out-of-state contributions was ultimately deemed unconstitutional by a federal court. Lust died suddenly last Friday night from cardiac arrest. A memorial service will be held on Saturday at the civic center in Rapid City. He was 53.

Continued here:
In Their Own Words: Lust Debates Mickelson On The Roll Of Political Money, The First Amendment - SDPB Radio

The federal courts eventually will have the last word on how heavily state policymakers can dictate what teachers teach.

Frank LoMonte| Guest columnist

What is Critical Race Theory?

CRT examines systemic racism as a part of American life and institutions and how it can give white people an advantage.

Erin Davoran and Dwight Adams, Wochit

As states and school districts started threatening teachers with disciplinary action for teaching about systemic racism, the question naturally arose: Does this violate the teachers First Amendment rights?

The First Amendment protects free speech against government punishment, of something as extreme as a threat of violence. A school district is a government agency. So anyone punished by a school district for nonthreatening speech seems to have the makings of a First Amendment case.

But from years of teaching and researching First Amendment case law, I know that this is where things get complicated.

Public school teachers are government employees. And thanks to a much-disputed Supreme Court decision from 15 years ago, government employees, including teachers, surrender quite a bit of free-speech protection when they clock into work.

Whether K-12 educators have any legally protected right to choose how and what to teach is sure to be tested soon, now that the furor over teaching kids about race and racism has reached a boiling point in communities across the country.

In recent months, right-wing media has fixated on critical race theory a field of inquiry about the impact of racism baked into criminal justice and other powerful institutions that is taught almost solely at the law school level. The phrase has been distorted into an anti-white conspiracy by the forces of wokeness to brainwash schoolchildren.

Surfing this wave of media-created rage, seven states have banned mentioning specified race-related topics in the classroom. Some 20 other states are considering it.

Arizonas newly enacted ban, signed into law on July 9, is typical of those popping up around the country. It imposes penalties, from suspension of a state teaching license up to permanent revocation, for anyone caught teaching certain taboo concepts.

The banned list includes teaching that anyone should feel discomfort, guilt, anguish, or any other form of psychological distress on account of race or ethnicity, or that meritocracy or a hard work ethic are concepts created to oppress people of particular races or ethnicities.

Normally, once a state sets the rules for acceptable on-the-job speech, public employees have no choice but to comply. Thats a product of the U.S. Supreme Courts 2006 Garcetti ruling, in which the justices said government employees cant rely on the First Amendment if theyre punished for on-duty speech that is part of an official work assignment.

Teaching is an official work assignment. So the First Amendment seems unlikely to rescue a teacher fired for teaching a forbidden subject.

At the college level, federal judges have given professors a bit of extra legal protection to teach and write without fear of retaliation. The Garcetti rule does not apply with full strength on college campuses, federal courts say, because the principle of academic freedom allows professors to explore edgy topics that push the boundaries of students comfort zones.

The likely explanation for why judges have hesitated to extend that same level of autonomy to K-12 teachers is that curriculum decisions are more standardized in public schools than in college.

A professor at one state university is free to teach history differently from a professor at a sister university in the same state. But K-12 curriculum has long been dictated by state and local school boards, so that American history is supposed to look more or less the same from one classroom to another.

Judges are reluctant to substitute their judgment for the presumed expertise of those school board members.

Still, its possible to win a constitutional challenge to a curricular decision if you are a student. A decade ago, students in Arizona devised a roadmap for successfully challenging racially motivated restraints on what schools can teach.

In 2010, conservative Arizona lawmakers, irked by the Tucson school districts course in Mexican-American history, passed a law banning ethnic studies in public schools.

A Tucson school administrator, 10 teachers and two students sued to challenge the forced cancellation of Mexican-American studies.

But a federal judge decided that only the students, not the school employees, had a viable claim. It wasnt clear that teachers or administrators had a constitutional right to offer particular courses.

But it was clear that students had a right to receive information, which couldnt be taken away for a discriminatory reason.

Students, Judge A. Wallace Tashima wrote, have a First Amendment right to receive information and ideas … a right that applies in the context of school curriculum design.

After multiple trials and appeals, a federal judge ruled in 2017 that the ban indeed violated the students rights, because it lacked any legitimate educational basis.

Are teachers entirely out of luck if theyre fired for what they teach? Not necessarily. Their speech might end up being constitutionally protected just not by the First Amendment.

The 14th Amendment curbs the authority of state and local governments to take away any benefit or privilege, including a job at a public school, for an arbitrary reason.

Legally, this is known as a due process claim, and heres how it works.

Lets say you are driving down the highway, sipping from a Starbucks cup. A state trooper pulls you over and issues you a ticket for violating the state law that requires hands-free cellphone calls. When you protest that a coffee cup isnt a cellphone, the trooper responds, Well, you shouldve known that drinking coffee is just as bad as talking on the phone.

Thats a due process problem. Nothing in the cellphone law put you on notice not to drink coffee.

Due process, I believe, not the First Amendment, will be the strongest argument for teachers who are intimidated by vaguely worded restrictions on what they can teach.

Tennessee, for instance, just enacted a sweeping new law that prohibits using classroom materials promoting division or resentment among people of different races or ethnicities.

Does that make it a firing offense to assign Richard Wrights classic novel Native Son, which deals bluntly with themes of hopelessness among young Black men confronting societal limits on their opportunities?

If the answer to that question is nobody knows, thats a constitutional red flag.

Regardless of who sues and when, the federal courts eventually will have the last word on how heavily state policymakers can dictate what teachers teach.

[Understand whats going on in Washington. Sign up for The Conversations Politics Weekly.]

Frank LoMonteis director of the Brechner Center for Freedom of Information at theUniversity of Florida.This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Opinion: Lawsuits on banning critical race theory are coming. Here's what won't work, and what could. - Des Moines Register

Washington, D.C. U.S. Senator Marco Rubio (R-FL) welcomed the Senate Select Committee on Intelligences passage of the Intelligence Authorization Act for Fiscal Year 2022 (IAA) with a bipartisan 16-0 vote. The bill authorizes funding, provides legal authorities, and enhances congressional oversight for the U.S. Intelligence Community (IC).Today the Senate Intelligence Committee voted to report legislation that rightly increases Intelligence Community resourcing focused on the threat posed by the Peoples Republic of China and the Chinese Communist Party, Vice Chairman Rubio said. The bill also reaffirms the Committees critical role in overseeing of the Intelligence Community through provisions that protect Americans First Amendment rights, ensure expenditures are made judiciously, and hold the intelligence agencies accountable for their activities. In addition, the bill prioritizes the Committees ongoing oversight of Chinas malign influence operations, unidentified aerial phenomena, and importantly, the safety of the men and women of the Intelligence Community, by expressly addressing the likely directed energy attacks that have inflicted brain injuries and the associated symptomology known as the Havana Syndrome, as well as other physical harms, on American personnel around the world.The Intelligence Authorization Act for Fiscal Year 2022 authorizes the funding for Americas intelligence agencies, and ensures they have the resources, personnel and authorities they need to keep our country safe, while operating under vigorous supervision and oversight, Committee Chairman Warner said. The funding and authorities provided in this bill will increase the Intelligence Communitys ability to detect and counter cyber threats, ransomware attacks, and other emerging threats, including those from near-peer adversaries such as China and Russia. This IAA will also reinforce oversight of the IC by strengthening protections for whistleblowers, reforming the security clearance process, and mandating a robust response to reported cases of Havana Syndrome.Background:The IAA for Fiscal Year 2022 ensures that the Intelligence Community can perform its critical mission to protect our country and inform decision makers, while under robust Congressional oversight, including in the following key areas:

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Rubio Welcomes Senate Select Committee on Intelligence Passage of the FY22 Intelligence Authorization Act - Senator Marco Rubio