Category Archives: First Amendment

Anti-Zionism is anti-Semitism.

Anti-Semitism is the dislike of the unlike.

Anti-Semitism is hatred of Jews, period.

An anti-Semite is someone who hates Jews more than is absolutely necessary.

Don't miss our top stories. Get The Jewish Week in your inbox. FREE SIGN UP

Defining anti-Semitism? Its not entirely objective. Perhaps the best approach paraphrasing U.S. Supreme Court Justice Potter Stewart in his famous comment about pornography is the old, clichd, I cant define it, but I know it whe r=n I see it. This approach, however, poses a problem that makes it difficult to measure Jew-hatred: All too often incidents or expressions are characterized as anti-Semitism when they are not, or ignored when they certainly are. The gut feeling the kishka factor is important. But gut reactions are not the same as hard data. In 2021, the conversation about anti-Semitism is not about anti-Semitism; it is about how anti-Semitism is processed, how anti-Semitism is defined.

So what is anti-Semitism?

Not an easy question to answer, these days, an era of BDS, of intersectionality, of campus instability. And, when it comes to anti-Zionism, the diciest question is at what point criticism of Israel becomes anti-Semitism.

That question is at the heart of an ongoing debate around the working definition devised by theInternational Holocaust Remembrance Alliance (IHRA), a resource group on the Holocaust for educators, museum professionals and policymakers. The IHRA definition, adopted in 2016, defines anti-Semitism as a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of anti-Semitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.

Not great, but so far so good.

Jerome A. Chanes

The problem began with a set of examples that the IHRA adopted to guide it in its work. These examples, which came under the rubric of targeting the State of Israel, included some dozen bullet-points, most of which describe legitimate anti-Semitism.

Some, however, would paint an overly broad indictment of anti-Israel rhetoric that critics say could result in the stifling of free speech when it comes to Israel and the Palestinians.

The debate has been heard in academia, in municipal politics, and in diplomatic circles. Most recently it was heard at CUNY, where the Student Senate voted down a resolution to adopt the IHRA definition. Proponents of the resolution, including the campus Hillel, said adopting the definition would make campus Jews safer. Opponents, including a Jewish student law association, said it would defame defenders of Palestinian rights.

Does the IHRA definition clarify when Israel criticismbecomes anti-Semitic? Or does it aid in the weaponization of anti-Semitism byhelping limit freedom of expression on the campus and elsewhere?

An example: When activists characterize certain policies of the State of Israel as racist is that vile anti-Semitism or protected speech and legitimate debate? My view is that criticism indeed, even harsh criticism of the policies of the government of Israel is entirely legitimate. The point at which it becomes anti-Semitism is the point at which thelegitimacyof the Zionist enterprise and, by extension, the legitimacy of the State, is questioned, because at that point the legitimacy of Jewish peoplehood is called into question and this, tautologically, is anti-Semitism. The Zionism-is-Racism movement of the 1970s is a good example. And the IHRA definition makes this distinction, saying that claiming that the existence of a State of Israel is a racist endeavor is a contemporary example of anti-Semitism.

The IHRA is less helpful in defining anti-Semitism as applying double standards by requiring of [Israel] a behavior not expected or demanded of any other democratic nation.

Many who want to weaponize anti-Semitism cite this bullet point to label the BDS movement as anti-Semitic. One pro-Israel group,StandWith Us, cites the application of double standards in encouraging Facebook to adopt the IHRA definition of anti-Semitism. Critics of the clause, however, say they have every right to pick their targets, and a pro-Palestinian campus group has no obligation to call out China for its treatment of Uighurs or Myanmar for its oppression of the Rohingya.

It is clear that incorporating the IHRA definition into federal and state legislation, as some wish, would be harmful. But there indeed may be IHRA legislation coming down the pike in the Congress, legislation that will be supported by many in the Jewish community. Recent anti-Semitic incidents have created a climate of fear. But such fear may lead people to act rashly, and to support policies with unintended consequences, such as stifling free speech.

Further, politically, when boycotting Israel is defined as anti-Semitism, it is a slippery slope, creating an atmosphere in which calling for a halt in settlement building and blocking funds for their construction even by the White House could be seen as anti-Semitic.

At bottom, codifying the IHRA into law or campus speech codes will have a chilling effect on criticism of Israel especially on the campus and put the Jewish community on the wrong side of the First Amendment.

More basic, as policy analyst Jonathan Jacoby suggests, is the agenda of those pushing for the adoption the IHRA agenda: The effort to define anti-Semitism in IHRA is largely a ploy of the pro-Israel Right to fight an anti-Israelism of the Left.

When boycotting Israel is defined as anti-Semitism, it is a slippery slope.

Additionally, there are objective consequences of fighting anti-Israelism at the expense of other forms of anti-Semitism. Anti-Semitism from white supremacist, radical Christian and other right-wing extremist groups has become a mainstay of social media, and has inspired physical attacks on Jews from Pittsburgh to Poway. Thanks in part to Donald Trump, conspiracy mongers like the Proud Boys and QAnon, whose dangerous theories often devolve into or echo vicious anti-Semitic expressions, have become part of segments of the political mainstream.

Yet our new definers of anti-Semitism including some Holocaust survivors groups and right-wing Israeli advocacy organizations choose to emphasize anti-Israel expression as a greater danger than real threats from the extreme right.

Political analyst Hank Sheinkopf, in a personal conversation, captured the moment: The IHRA definition, if codified in law, will set a standard that will allow for only limited discussion, and will, in fact counterintuitively permit more extremist action.

Definitions? I have always liked historian David Bergers workmanlike definition of anti-Semitism: Anti-Semitism means either of the following: (1) hostility toward Jews as a group that results from no legitimate cause or greatly exceeds any reasonable, ethical response to genuine provocation; or (2) a pejorative perception of Jewish physical or moral traits that is either utterly groundless or a result of irrational generalization or exaggeration.

Straightforward. No political or ideological baggage.

Works for me. It ought to work for our community.

Jerome Chanes, a senior fellow at the Center for Jewish Studies of the CUNY Graduate Center, has written extensively on anti-Semitism. He is the author of four books and numerous articles, reviews, and book-chapters on Jewish public affairs, history, and arts and letters. His current project is a book setting a context for 100 years of Israeli theatre.

Read more here:
The IHRA Definition of Anti-Semitism Puts Jews on the Wrong Side of the First Amendment - Jewish Week

I am suing Twitter for defamation because they said, I, James OKeefe, operated fake accounts. This is false, this is defamatory, and they will pay, the infamous Project Veritas filmmaker said on his website.Section 230 may have protected them before, but it will not protect them from me. The complaint will be filed Monday.

He then went on to suggest that Twitter was perma-banning him for his most recent video of a CNN sound guy bragging to his date that his employer took down Trump with biased coverage. (So much for the claim that Dominion rigged the vote.)

Twitter permanently suspended James OKeefes personal account on the platform today, following a series of bombshell undercover videos of a CNN employee, he said, before taking to Facebook to complain some more about not being allowed to speak his truth.

Heres OKeefes lawyer Harmeet Dhillon, fresh off her stunning success (AHEM) in getting that Biden win in Pennsylvania overturned, explaining to Sean Hannity that only a manly man like James OKeefe would have the spine to take on CNN, the New York Times, and Twitter.

You may not register or create fake or misleading accounts or use multiple accounts to manipulate Twitter conversations, Twitter support said in an email to OKeefe. While you may use Twitter pseudonymously, or as a parody, comedy, or fan account, you may not use misleading account information in order to engage in spamming, abusive, or disruptive behavior, including attempts to manipulate the conversation on Twitter.

The fact that OKeefe himself published the email may make it more difficult to prove that he was grievously defamed when the company turned around and made roughly similar statements to the media.

Theres also the small matter of whether the suggestion that OKeefe operated sock puppet accounts, even if defamatory, would actually harm his reputation. Pretending to be something hes not is kind of James OKeefes calling card.

This is a guy whose breakthrough move was filming himself dressed as a pimp, complete with faux fur coat and cane, trying to get an ACORN employee to help him dummy-up a mortgage application for a prostitute.

In 2017, a woman associated with Project Veritas pretended to have been impregnated as a teenager by Alabama Senate candidate Roy Moore in a bizarre attempt to discredit his other accusers and the Washington Post.

In 2010, he and two compatriots were arrested for sneaking into the office of then-Senator Mary Landrieu dressed as telephone repairmen. They pleaded guilty to a misdemeanor and paid a fine.

Also in 2010, OKeefe tried to lure a CNN reporter onto a sex boat where he would secretly film himself seducing her in an attempt to discredit the network.

Even the latest sting video the one that supposedly got Twitter to shut OKeefe up as a favor to CNN was shot by an actress claiming to be a nurse who catfished the CNN employee on Tinder. So there may be some difficulty establishing damages to the reputation of a person whose reputation is, umm, mixed.

Theres also the minor detail that Twitter can kick anyone off the site they like, and that the terms of service are not exactly favorable to user lawsuits. Just ask Devin Nunes.

But other than that, knock yourself out, fella.

James OKeefe RESPONDS to TWITTER ACCOUNT SUSPENSION Following BOMBSHELL CNN TAPES: Says He Plans to SUE THE PLATFORM FOR DEFAMATORY STATEMENTS [Project Veritas]James OKeefe vows to sue Twitter for defamation after ban for alleged use of fake accounts [Fox]Project Veritas founder wants to sue Twitter for defamation over recent suspension

Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.

Read more:
Project Veritas Gonna Sue Twitter For Defamatory Section 230 Censorship And First Amendment Assault Or Something - Above the Law

The First Amendment of the Constitution says, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...

This amendment clearly meant something far different to the Constitutional framers than many today assume it means.

Jefferson began editing the New Testament in 1804 while a sitting president, attempting to make his version the U.S. government-sanctioned version; thus insuring it would be read in every American classroom. After drafting the First Amendment, Madison said it would aid in the spread of Christianity. Franklin, a self-proclaimed deist, complained the framers werent seeking Gods guidance enough while drafting the Constitution, the opposite of how deism is defined today.

The term, church, in the 18th century referred to institutional religion. This term does not equate with God anywhere within the writings of Americas founders. And, the Declaration clearly defines a Creator actively involved in the affairs of humanity.

Legitimate secular university polls report 80% of American educators, 75% of physicians and 50% of U.S. scientists believe in God. Even though so many agree the evidence demonstrates design, the ACLU refuses to protect their credentialed scientific conclusions. Instead, the ACLU demands American educators deliberately lie to our children by omission, leaving out the fact that most major historical and nearly half of living scientists agree the scientific evidence demonstrates design.

The God question is central to the scientific thought and inquiry of nearly every major historical scientist. Yet, many today pretend God isnt a question for science, including some of the same progressives angry over the one-sidedness of talk radio. To allow only one myopic view is to teach our children questioning what is true and presenting differing viewpoints isnt relevant to education.

Many educators do, in fact, address the God question. Any theory assuming universal reality is a result of unguided natural processes is claiming there is no Grand Designer is non-verifiable and therefore irrational. Our extremely tiny window inside such an immense fishbowl cant possibly determine the universal reality is either not created or unguided. Atheism has no more protection under the First Amendment than any other view. Is science really served when our children are taught only one non-evidence-based superstition?

The Encyclopedia Britannica and most scientists today admit science doesnt know how life came to be. Life may predate our own sun. Thus, it is an obvious lie to say life came about by natural, unguided processes, as the television series, Cosmos, grandly proclaims, without providing a shred of supporting evidence. Elsewhere, this series contradicts itself. It says scientists shouldnt be afraid to admit what they dont know. If science doesnt know how life came to be, this is what American textbooks should teach.

When 87% of Americans claim to believe in God, is it reasonable or fair for our childrens textbook authors to pretend there is no Creator, as if they somehow would know? What evidence do they have for magically existing universes, and why should we believe them or entrust our childrens education to them?

Richard Aberdeen

Hermitage

Visit link:
Letter: On God and the First Amendment | Communities | mainstreet-nashville.com - Main Street Nashville

After months of delay, on April 5 the Supreme Court finally granted certiorari and ruled in Biden v. Knightthe case, renamed after President Biden took office, concerning whether the First Amendment prevented then-President Trump from blocking his critics on Twitter. The justices vacated the ruling by the U.S. Court of Appeals for the Second Circuit and instructed the lower court to dismiss the case as moot.

That could have been that. But Justice Clarence Thomas issued a concurrence in the case that could have implications well beyond the Twitter accounts of politicians. The justices speculations on the possibilities for regulating social media platforms are already changing the tone of the debate on the political right, where commentators have pointed to unsubstantiated claims of political bias by social media platforms in order to push for greater regulation. Thomass concurrence is just a nonbinding statement, issued without briefing, in which one of the courts nine justices speculates about what legal theories might justify curtailing social media websites First Amendment rightsbut conservatives are celebrating it as a roadmap for reining in the social media giants.

It is no such thing. Thomas raises three questions about the legal status of social media websites. First, are they de facto state actors subject to First Amendment restrictions? Second, might they be compelled, as common carriers, to carry speech against their will? And third, might they be barred, as public accomodations, from discriminating against certain content or viewpoints? In an effort to promote the idea that the sites right to exclude speech might be permissibly curtailed, Thomas treats these questions as though they are unexplored, unsettled, even wide open. As we will explain, however, the answer to all three questions is no.

Applying old doctrines to new digital platforms is, Thomas submits, rarely straightforward. Yet in the case before him, it really was. When the government opens a space to free expression, it creates a designated public forum in which it may not discriminate based on content or viewpoint. At issue in the case was whether Trump, by using his Twitter account for government business, leaving the account open to replies, and then blocking certain users, had discriminated among viewpoints in a designated public forum. The Second Circuit reached the conclusion that Trump had done so and that the First Amendment barred him from blocking the individual plaintiffs in the case.

While the governments petition for certiorari was pending, the parties agreed that the case was mootthough they disagreed about why. The government argued that the mootness arose from Trumps ceasing to be president. The respondents contended that it arose when Twitter suspended Trumps account following the Jan. 6 riot.

In Thomass view, the suspension of Trumps account informs the merits of the case. It seems rather odd, he proposes, to say that something is a government forum when a private company has unrestricted authority to do away with it. But its actually not odd at all. Suppose a mayor regularly offered commentary on his administration at events, open to the general public, held at a large conference room at a local Hilton. The room would constitute a designated public forum, yet Hilton, a private company, would still retain unrestricted authority to do away with that forum. If the mayor used the room to incite a riot, for example, Hilton would have every right to kick him out.

Thomas seems to think that Twitter is not like the Hilton because digital platforms are highly concentrated and have enormous control over speech. Both propositions are dubious. On the one hand, a mayor who got himself booted by Hilton, Marriott and Hyatt hotels might find himself quickly running out of large conference rooms in his city. On the other, Trump can easily speak, and attract widespread attention for his speech, from an alternative social media website, a new network of his own, or even his own personal website.

The key question in the case at hand was whether the interactive space in Trumps Twitter accountwhere an unblocked user can respond to his tweetswas a designated public forum. As the Second Circuit explained, the space clearly met that standard: it was intentionally opened for public discussion when [Trump], upon assuming office, repeatedly used [his account] as an official vehicle for governance and made its interactive features accessible to the public without limitation. But Thomas focuses on an entirely distinct question in discussing Twitter and public-forum doctrine: whether the whole of Twitter is a public forum. That question turns not on any action Trump took in regard to his account, but on the very different issue of whether Twitter itself is a de facto state actor.

Thomas acknowledges that because Twitter had unbridled control of [Trumps] account, the First Amendment restrictions that restrain the government, in the operation of a public forum, may not apply to Twitter. In fact, in Manhattan Community Access Corp. v. Hallecka decision Thomas joinedthe Supreme Court confirmed that only the equivalent of a state actor can be deemed to operate a public forum, and that a private entity that opens its property for speech by others is not transformed by that fact alone into a state actor.

As Halleck explains, a private entity can qualify as a state actor in only a few limited circumstances. One is when the private entity performs a traditional, exclusive public functionand there is nothing either traditionally or exclusively governmental about running a social media website. Another circumstance is when the government compels the private entity to take a particular action. Thomas speculates that plaintiffs might have colorable claims against a digital platform if it took adverse action against them in response to government threats. He acknowledges, however, that no threat is alleged here, and that its unclear what sort of government threat could turn the likes of Twitter into a state actor. Thomas cites cases holding that the threat must be so coercive that the private partys action is not voluntary and is in effect that of the State.

The public forum doctrine is the sole topic at issue in the case at hand. The doctrine, however, is not even the primary subject of Thomass concurrence. Thomas devotes most of his attention to exploring two legal theories that might allow greater government control over content moderation. The first is common carriage. Riffing on a single academic article by Adam Candeub, Thomas suggests that digital media might be like toll bridges, railroads or telephone networkswhich must offer service indiscriminately and on general terms.

By contrast, newspapers actively curate content. The presentation of an edited compilation of speech generated by other persons is a staple of most newspapers opinion pages, declared the Supreme Court in Miami Herald Publishing Co. v. Tornillo. Thus, newspapers cannot be compelled to carry speech they find objectionable. Their editorial judgments fall squarely within the core of First Amendment security, wrote the Miami Herald court. The same goes for social media, which actively exercise editorial judgment in moderating contentand thus deserve the same constitutional protections as newspapers. As Justice Antonin Scalia once declared: [T]he basic principles of freedom of speech and the press, like the First Amendments command, do not vary when a new and different medium for communications appears.

On multiple levels, social media sites are more like newspapers than any of the examples Thomas cites. Unlike newspapers or social media, railroads and telephone networks hold themselves out as serving everyone equally, without editorial intervention. In 1974, the Federal Communications Commission (FCC) extended traditional common carriage regulation to nascent cellular telephonybut not to wireless dispatch services such as those operated by police departments, fire departments, and taxicab companies, for their own purposes. The U.S. Court of Appeals for the D.C. Circuit upheld the classification of the latter as private carriage: What appears to be essential to the quasi-public character implicit in the common carrier concept is that the carrier undertakes to carry for all people indifferently. Likewise, the FCCs 1985 Computer II order created the distinction that still undergirds telecommunications law: Services that offer pure transmission are common carriers while those offering data processing are private carriers. The key, as Thomas explained in his 2005 Brand X decision, is how the consumer perceives the service being offered.

Thomas argues that, even absent such perception, common carrier regulation may be justified when a business, by circumstances and its nature, rise[s] from private to be of public concern, quoting a 1914 decision involving insurance regulation. He also cites an 1894 decision in which telegraph network operators demanded limitations on their liability as a benefit of traditional common carriage regulation. Neither case says when communications platform operators are not merely conduits, but speakers with their own speech rightslike newspapers.

Where courts have upheld imposing common carriage burdens on communications networks under the First Amendment, it has been because consumers reasonably expected them to operate conduits. Not so for social media platforms. To understand why, consider net neutrality.

In 2015, the FCC reissued rules requiring most mass-market internet service providers (ISPs) not to block or throttle lawful internet trafficand formally classifying them as common carriers. The D.C. Circuit upheld the order, and concurring with the courts denial of a rehearing, the two judges who wrote the panel decision explained that the order did not implicate the First Amendment because it applied only insofar as broadband providers represented to their subscribers that their service would connect to substantially all Internet endpoints. This merely requires ISPs to act in accordance with their customers legitimate expectations. Conversely, the judges wrote, ISPs could easily avoid the burdens of common carriage status, and exercise their First Amendment rights: [T]he rule does not apply to an ISP holding itself out as providing something other than a neutral, indiscriminate pathwayi.e., an ISP making sufficiently clear to potential customers that it provides a filtered service involving the ISPs exercise of editorial intervention.

Every social media service provides just that kind of filtered service, spelling out detailed terms of service that expressly reserve the right to remove content that violates those terms. Although subscribers to standard broadband service might legitimately expect to obtain access to all lawful internet content, users of a social media service cannot reasonably expect that they may use the service to say whatever they want.

Thomas cites Turner Broadcasting v. FCC, in which the Supreme Court upheld forced carriage under the First Amendment. In that case, the court ruled that cable companies must carry local broadcasters channels for free. Turner seems to parallel conservatives contemporary arguments about Big Tech: When an individual subscribes to cable, the physical connection between the television set and the cable network gives the cable operator bottleneck, or gatekeeper, control over most (if not all) of the television programming that is channeled into the subscriber's home. A cable operator, unlike speakers in other media, can silence the voice of competing speakers with a mere flick of the switch.

But the comparison between cable companies and social media platforms doesnt hold water. Prior to the advent of direct broadcast satellite television, cable operators controlled the only pathway for bringing multichannel video programming services to consumers. This was thanks, in part, to exclusive local franchises granted by municipalities, which controlled access to rights of wayclear state action. Today, no platform controls the only pathway to expression, and the government confers no monopoly privileges on any particular tech service.

Whats more, Turner is not, fundamentally, a speech case. Although the law at issue in Turner gave some broadcasters a right to cable carriage (and therefore favored their speech over the cable providers), the majority nonetheless concluded that the law was not content based. The cable providers had not objected to any content or viewpoints expressed in the broadcasters programming; rather, as the majority noted, cable operators suffered an economic loss from not being able to charge for the one-third or so of their channel capacity allotted to broadcasters. The majority therefore applied only intermediate scrutiny.

When it comes to the regulation of speech on social media, however, the presumption of content neutrality does not apply. Conservatives present their criticism of content moderation as a desire for neutrality, but forcing platforms to carry certain content and viewpoints that they would prefer not to carry constitutes a content preference that would trigger strict scrutiny.

Under strict scrutiny, any gatekeeper power exercised by social media would be just as irrelevant as the monopoly power of local newspapers was in Miami Herald. Ironically, Thomas himself wanted to apply strict scrutiny in Turner because, as a dissent he joined put it, Congresss interest in platforming diverse and antagonistic sources was not content-neutral. Yet a platform mandate for diverse and antagonistic sources is essentially what many conservatives are arguing for now. Whether must carry for cable was really content neutral in Turner was debatablethe majority saw no subtle means of exercising a content preferencebut the agenda behind must carry for social media is unmistakable.

Thomas asserts, in his Knight concurrence, that common carriage could be imposed on social media companies especially where a restriction would not force the company to endorse the speech. But a second reason Turner did not apply strict scrutiny was its conclusion that forcing cable companies to carry local broadcasters channels would not force cable operators to alter their own messages to respond to the broadcast programming they are required to carry. Noting that the FCC had first instituted some form of must-carry mandate in 1966, the Supreme Court concluded: Given cables long history of serving as a conduit for broadcast signals, there appears little risk that cable viewers would assume that the broadcast stations carried on a cable system convey ideas or messages endorsed by the cable operator. Similarly, Thomas alludes to Pruneyard Shopping Center v. Robins, which forced a mall to let students protest on its private property. The views expressed by members of the public on the malls property, Pruneyard declared, will not likely be identified with those of the owner.

Although users cannot reasonably expect social media services to operate as pure conduits, they can and do associate websites with the content they allow. Like newspapers, and unlike telephone networks, social media sites are increasingly held accountable for the consequences of the speech they carry. They are regularly boycotted by usersand, increasingly, by advertisers, under growing pressure from their own investorsfor refusing to take down objectionable content. This is business reality for Facebook, as reflected in the multiple references in its most recent quarterly report to risk factors related to how the companys handling of content is perceived. In Facebooks last quarterly earnings call, CEO Mark Zuckerberg spent most of his time explaining how the company would handle misinformation about the then-impending election.

Section 230 of the Communications Decency Act allows platforms to moderate what shows up on their services without fear of liabilitywhether they choose to leave content up or take it down. Clearly, Congress did not want social media to be forced to function as mere conduits (like telegraph and telephone networks) for the speech of others.

But Thomas makes another argument, too. Even if digital platforms are not close enough to common carriers, he suggests, legislatures might still be able to treat digital platforms like places of public accommodation. But in two key cases that Thomass concurrence does not address, the Supreme Court ruled that anti-discrimination laws could not trump private entities First Amendment rights to speak, to refrain from speaking, or to decline to associate with others speech. The same goes for newspapers and social media companies.

In Masterpiece Cakeshop v. Colo. Civil Rights Commission, the Supreme Court ruled that the commission violated the First Amendments Free Exercise Clause though its hostility toward the religious beliefs of a baker whom it sanctioned for refusing to create a custom cake for a same-sex wedding because of those beliefs. [A]s a general matter, Thomas opined, in a concurrence, public-accommodations laws do not target speech but instead prohibit the act of discriminating against individuals in the provision of publicly available goods, privileges, and services. Thomas drew this language from a ruling that, in turn, invoked Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, a landmark decision barring the city of Boston from dictating which signs or messages a private organization had to allow at its St. Patricks Day parade. Notably, Thomas cites neither Masterpiece Cakeshop nor Hurley in his Biden v. Knight concurrence.

Much as activists today press for more detailed social media moderation policies, LGBT rights groups had complained that the parade lacked written procedures for selecting participants, and that what procedures there were were not applied uniformlyresulting in discrimination against LGBT groups wishing to participate in the St. Patricks Day parade. Although the state courts accepted these objections, the Supreme Court held that in doing so, they had, in effect, improperly turned the parade sponsors speech itself into a public accommodation. In excluding LGBT signs, the sponsors had decided not to propound a particular point of view, the Supreme Court concluded, and that choicewhatever the sponsors reason for itlay beyond the governments power to control.

After quoting Miami Heralds affirmation of a newspapers First Amendment right to compile, curate, and edit opinions as it sees fit, Hurley rejected the notion that a parade is merely a conduit for the speech of participants, rather than itself a speaker. The parade sponsors were intimately connected with the communication advanced in the parade. Letting the LGBT groups use the parade to disseminat[e] a view contrary to the sponsors own would, the Supreme Court ruled, compromise the sponsors First Amendment right to autonomy over the[ir] message. Again, the same goes for social media platforms.

So which decisionTurner or Hurleyapplies to social media? Are social media platforms more like cable companies, which can be compelled to carry others speech, or more like parade sponsors, which cannot? Like the parade sponsors in Hurley, social media operators all refuse to carry certain content and viewpoints. The cable operators in Turner, by contrast, raised no such objections. They had, the record showed, an incentive to drop local broadcasters and to favor affiliated programmers. The more channels over which [they] exercise[d] unfettered control, therefore, the higher their profits. Their complaint turned on their bottom line; they raised no argument about their right to free expression.

That cable operators never objected to the content of broadcast channels is unsurprising. Broadcast content is usually highly sanitizedpoliced by the FCC for indecency and by broadcasters themselves for anything that might offend advertisers targeting mass audiences. Halleck expressly declined to address the constitutionality of forcing cable operators to carry objectionable content. If cable operators object to carrying, say, QAnon content, the case will be altogether different from, and harder than, Turner.

Much as parade organizers decide who may march, under what conditions, and in what order, social media sites algorithmically rank, order, and present a newsfeed parade of user-generated content. And just as organizers can exclude some would-be marchers whose views are antithetical to the message of the parade, social media moderators ban certain content, users, and groups whose views are antithetical to the message of the site.

Hurley itself raised another important distinction between parades and cable. Unlike the programming offered on various channels by a cable network, it said, while discussing Turner, the parade does not consist of individual, unrelated segments that happen to be transmitted together for individual selection by members of the audience. Although usually composed of distinct units, Hurley observed, a parade is expressive of a common theme.

Do social media sites have such a common theme? The platforms themselves clearly think so. Facebook sees itself as a place for expression, one that give[s] people a voice. Twitter, for its part, says that it aims to enable people to participate in the public conversation freely and safely. While these themes might make for a dull parade, they are nonetheless the makings of a specific, curated, expressive messagea message that is destroyed if calls for violence, harassment, misinformation and the like are allowed. Hurley should therefore protect the right of social media to decide what messages not to associate themselves with.

These are just some of the legal questions and factual details that Thomas does not address. More questions remain, such as what role the Takings Clause might play in any legislation that follows Thomass proposed model; indeed, the dissent Thomas joined in Turner specifically noted that Fifth Amendment issues would have to be addressed before cable networks could be treated as common carriers. Only when the arguments Thomas raises make their way to the Supreme Courtperhaps after a state legislature enacts the kind of law he proposeswill the justices have a complete legal and factual record on which to base sound and impartial analysis.

Here is the original post:
Justice Thomas's Misguided Concurrence on Platform Regulation - Lawfare

Buy Photo

Alexander Cullen, who moved to Appleton in February, stops to take a picture of competing signs on Friday in Appleton. In response to a sign with homophobic language on a building along Richmond Street, the city of Appleton has placed a sign nearby that reads "Hate has no home here."(Photo: Wm. Glasheen/USA TODAY NETWORK-Wisconsin)

APPLETON - In response to an electronic sign on a privately owned building that usesa homophobic slur, the city of Appleton put up its own sign Friday with a message letting the community know that all people are welcome in Appleton.

The city's sign reads, "Hate has no home here," and is in the parking lot of the Good Company restaurant. Good Company is next door to 200 N. Richmond St., where an electronic sign displays a picture of Sen. Joseph McCarthy and a series of messages that read"Where did the f-----s... Put My Head?" ... "I'm Joe McCarthey (sic)" ... "I was right."

The city received multiple complaints about the McCarthy sign, but there's nothing the city could do about it, Appleton Mayor Jake Woodford said. The sign itself doesn't violate any city codes and the speech is protected under the First Amendment.

"What we've been saying to members of our community is (the language used on the sign)has no home in this community," Woodford said. "We want Appleton to be a place where all people feel welcomed, and that the First Amendment applies to all of us and belongs to all of us."

RELATED:Appleton sign displays homophobic slur, images of senator Joseph McCarthy

"We put the sign out as areminder of our values as a community, which is that we believe hate has no home here," Woodford said. "And we believe in the dignity and respect of all people."

The city owns the sign it's an extra the Appleton Police Department uses during events, Sgt. Meghan Cash said and Good Company allowed the city to put the sign in the restaurant's parking lot, Woodford said.

Public messages and statements that make any community member feel threatened or disrespected is not acceptable and we are proud of our citys community statement," Appleton Police Chief Todd Thomas said in a statement. "First Amendment rights apply to all of us, and with that right we believe there is also a responsibility take ownership of your words. We are proud of ours.

In response to a sign with homophobic language on a building along Richmond Street, the city of Appleton has placed a sign nearby that reads Hate has no home here, seen here on Friday in Appleton.(Photo: Wm. Glasheen/USA TODAY NETWORK-Wisconsin)

Members of the community have planned a protest of the McCarthy sign at 2 p.m. Saturday outside of 200 N. Richmond St., according to a Facebook event posting.

Woodford said it was important for the city to acknowledge when events or language in the community hurt people, and they feel the city's sign is a way to show that.

"I would argue a vast majority of people in this community believe people should be treated with dignity and respect," Woodford said. "So that's why we did this."

OTHER NEWS:Appleton Area School District plans full reopening next school year after a topsy-turvy pandemic year

OTHER NEWS:Recount confirms Sheri Hartzheim's razor-thin victory over incumbent Kyle Lobner in Appleton Council race

Contact Natalie Brophy at (715) 216-5452 or nbrophy@gannett.com. Followher on Twitter @brophy_natalie.

Read or Share this story: https://www.postcrescent.com/story/news/2021/04/16/appleton-city-leaders-put-up-sign-counter-one-homophobic-slur/7257601002/

See the original post here:
'Hate has no home here': City of Appleton puts up sign countering sign with homophobic slur - Post-Crescent

When Christians met in each others homes for prayer or Bible study, they had to be careful. Such gatherings were illegal, and the organizers never knew who might inform the authorities.

Although that sounds like a scene from the Soviet Union, it actually describes the situation in California under COVID-19 regulations that the Supreme Court blocked last Friday. By issuing an injunction against Gov. Gavin Newsoms restrictions, the court reaffirmed that politicians must comply with the Constitution when they decide how to deal with an epidemic.

The main rule at issue in this case limited at-home religious gatherings, whether inside or outside, to people from no more than three households. If two people from different households joined a host for a prayer meeting or Bible study session, for example, no one else was allowed to come.

As the petitioners noted, that limit does not permit an individual to gather with others in her own backyard to study the Bible, pray or worship with members of more than two other households, all of which are common (and deeply important) practices of millions of contemporary Christians in the United States. Meanwhile, California was allowing much larger groups to gather in other settings: inside of stores, barbershops, nail salons, tattoo parlors, movie studios and (in some counties) restaurants, for example, or outdoors at restaurants, wineries, gyms, movie theaters, zoos, museums, sporting events, concerts, political demonstrations, weddings and funerals.

The upshot was that Californians could sit for a haircut with 10 other people in a barbershop, eat in a half-full restaurant (with members of 20 different families), or ride with 15 other people on a city bus. But they were not allowed to host three people from different households for a Bible study indoors or in their backyards.

Justice Elena Kagan, who objected to the Supreme Courts injunction in a dissent joined by Justices Stephen Breyer and Sonia Sotomayor, argued that Californias regulations did not implicate the First Amendment because they were neutral and generally applicable. The state has adopted a blanket restriction on at-home gatherings of all kinds, religious and secular alike, she noted.

The petitioners argued that Gov. Newsoms rules nevertheless amounted to a subtle but unmistakable religious gerrymander. Five justices were inclined to agree, saying the plaintiffs were likely to prevail in their claim that the restrictions on private religious meetings violated the First Amendment.

This is not the first time that the Supreme Court has called attention to the impact of COVID-19 control measures on religious freedom. It blocked enforcement of New York Gov. Andrew Cuomos onerous restrictions on houses of worship last November, vacated a decision upholding Colorados limits on religious services in December, and reached similar conclusions in four cases involving state and local regulations in California two months later.

By now, the court said, it should be clear that public health regulations are subject to strict scrutiny whenever they treat any comparable secular activity more favorably than religious exercise and that the relevant consideration is the risks various activities pose, not the reasons why people gather. To pass strict scrutiny, a state has to show that measures less restrictive of the First Amendment activity such as face masks, physical distancing and more generous group limits could not address its interest in reducing the spread of COVID.

Kagan is certainly right, based on the Courts pre-pandemic precedents, that disease control measures can be constitutional even if they incidentally impinge on religious freedom. But Kagan, Breyer and Sotomayor always seem willing to accept politicians public health judgments, even when they are scientifically dubious, change in the midst of litigation, or result in policies that privilege politically influential industries or explicitly treat religious gatherings as a disfavored category.

At this point, it is not clear that Kagan et al. can imagine a disease control policy that would violate the Free Exercise Clause, provided it was presented as necessary for the protection of public health, as such policies always are.

Jacob Sullum is a senior editor at Reason magazine.

Send letters to letters@suntimes.com.

See original here:
Prohibited prayer and the limits of government authority even in a pandemic | Sullum - Chicago Sun-Times

Supreme Court Justice Clarence Thomas flaunted a dangerous ignorance regarding matters digital in an opinion published today. In attempting to explain the legal difficulties of social media platforms, particularly those arising from Twitters ban of Trump, he makes an ill-informed, bordering on bizarre, argument as to why such companies may need their First Amendment rights curtailed.

There are several points on which Thomas seems to willfully misconstrue or misunderstand the issues.

The first is in his characterization of Trumps use of Twitter. You may remember that several people sued after being blocked by Trump, alleging that his use of the platform amounted to creating a public forum in a legal sense, meaning it was unlawful to exclude anyone from it for political reasons. (The case, as it happens, was rendered moot after its appeal and dismissed by the court except as Thomas temporary soapbox.)

But Mr. Trump, it turned out, had only limited control of the account; Twitter has permanently removed the account from the platform, writes Thomas. [I]t seems rather odd to say something is a government forum when a private company has unrestricted authority to do away with it.

Does it? Does it seem odd? Because a few paragraphs later, he uses the example of a government agency using a conference room in a hotel to hold a public hearing. They cant kick people out for voicing their political opinions, certainly, because the room is a de facto public forum. But if someone is loud and disruptive, they can ask hotel security to remove that person, because the room is de jure a privately owned space.

Yet the obvious third example, and the one clearly most relevant to the situation at hand, is skipped. What if it is the government representatives who are being loud and disruptive, to the point where the hotel must make the choice whether to remove them?

It says something that this scenario, so remarkably close a metaphor for what actually happened, is not considered. Perhaps it casts the ostensibly odd situation and actors in too clear a light, for Thomas other arguments suggest he is not for clarity here but for muddying the waters ahead of a partisan knife fight over free speech.

In his best Im not saying, Im just saying tone, Thomas presents his reasoning why, if the problem is that these platforms have too much power over free speech, then historically there just happens to be some legal options to limit that power.

Thomas argues first, and worst, that platforms like Facebook and Google may amount to common carriers, a term that goes back centuries to actual carriers of cargo, but which is now a common legal concept that refers to services that act as simple distribution bound to serve all customers alike, without discrimination. A telephone company is the most common example, in that it cannot and does not choose what connections it makes, nor what conversations happen over those connections it moves electric signals from one phone to another.

But as he notes at the outset of his commentary, applying old doctrines to new digital platforms is rarely straightforward. And Thomas method of doing so is spurious.

Though digital instead of physical, they are at bottom communications networks, and they carry information from one user to another, he says, and equates telephone companies laying cable with companies like Google laying information infrastructure that can be controlled in much the same way.

Now, this is certainly wrong. So wrong in so many ways that its hard to know where to start and when to stop.

The idea that companies like Facebook and Google are equivalent to telephone lines is such a reach that it seems almost like a joke. These are companies that have built entire business empires by adding enormous amounts of storage, processing, analysis and other services on top of the element of pure communication. One might as easily suggest that because computers are just a simple piece of hardware that moves data around, that Apple is a common carrier as well. Its really not so far a logical leap!

Theres no real need to get into the technical and legal reasons why this opinion is wrong, however, because these grounds have been covered so extensively over the years, particularly by the FCC which the Supreme Court has deferred to as an expert agency on this matter. If Facebook were a common carrier (or telecommunications service), it would fall under the FCCs jurisdiction but it doesnt, because it isnt, and really, no one thinks it is. This has been supported over and over, by multiple FCCs and administrations, and the deferral is itself a Supreme Court precedent that has become doctrine.

In fact, and this is really the cherry on top, Associate Justice Kavanaugh in a truly stupefying legal opinion a few years ago argued so far in the other direction that it became wrong in a totally different way! It was Kavanaughs considered opinion that the bar for qualifying as a common carrier was actually so high that even broadband providers dont qualify for it. (This was all in service of taking down net neutrality, a saga we are in danger of resuming soon). As his erudite colleague Judge Srinivasan explained to him at the time, this approach too is embarrassingly wrong.

Looking at these two opinions, of two sitting conservative Supreme Court justices, you may find the arguments strangely at odds, yet they are wrong after a common fashion.

Kavanaugh claims that broadband providers, the plainest form of digital common carrier conceivable, are in fact providing all kinds sophisticated services over and above their functionality as a pipe (they arent). Thomas claims that companies actually providing all kinds of sophisticated services are nothing more than pipes.

Simply stated, these men have no regard for the facts but have chosen the definition that best suits their political purposes: For Kavanaugh, thwarting a Democrat-led push for strong net neutrality rules; for Thomas, asserting control over social media companies perceived as having an anti-conservative bias.

The case Thomas uses for his sounding board on these topics was rightly rendered moot Trump is no longer president and the account no longer exists but he makes it clear that he regrets this extremely.

As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms, he concludes. The extent to which that power matters for purposes of the First Amendment and the extent to which that power could lawfully be modified raise interesting and important questions. This petition, unfortunately, affords us no opportunity to confront them.

Between the common carrier argument and questioning the form of Section 230, Thomass hypotheticals break the seals on several legal avenues to restrict First Amendment rights of digital platforms, as well as legitimizing those (largely on one side of the political spectrum) who claim a grievance along these lines. (Slate legal commentator Mark Joseph Stern, who spotted the opinion early, goes further, calling Thomass argument a paranoid Marxist delusion and providing some other interesting context.)

This is not to say that social media and tech do not deserve scrutiny on any number of fronts they exist in an alarming global vacuum of regulatory powers, and hardly anyone would suggest they have been entirely responsible with this freedom. But the arguments of Thomas and Kavanaugh stink of cynical partisan sophistry. This endorsement by Thomas accomplishes nothing legally, but will provide valuable fuel for the bitter fires of contention though they hardly needed it.

Here is the original post:
Clarence Thomas plays a poor devils advocate in floating First Amendment limits for tech companies - TechCrunch

EFF applauds the U.S. Court of Appeals for the First Circuit for holding that the First Amendment protects individuals when they secretly audio record on-duty police officers. EFF filed an amicus brief in the case, Martin v. Rollins, which was brought by the ACLU of Massachusetts on behalf of two civil rights activists. This is a victory for people within the jurisdiction of the First Circuit (Massachusetts, Maine, New Hampshire, Puerto Rico and Rhode Island) who want to record an interaction with police officers without exposing themselves to possible reprisals for visibly recording.

The First Circuit struck down as unconstitutional the Massachusetts anti-eavesdropping (or wiretapping) statute to the extent it prohibits the secret audio recording of police officers performing their official duties in public. The law generally makes it a crime to secretly audio record all conversations without consent, even where participants have no reasonable expectation of privacy, making the Massachusetts statute unique among the states.

The First Circuit had previously held in Glik v. Cunniffe (2011) that the plaintiff had a First Amendment right to record police officers arresting another man in Boston Common. Glik had used his cell phone to openly record both audio and video of the incident. The court had held that the audio recording did not violate the Massachusetts anti-eavesdropping statutes prohibition on secret recording because Gliks cell phone was visible to officers.

Thus, following Glik, the question remained open as to whether individuals have a First Amendment right to secretly audio record police officers, or if instead they could be punished under the Massachusetts statute for doing so. (A few years after Glik, in Gericke v. Begin (2014), the First Circuit held that the plaintiff had a First Amendment right to openly record the police during someone elses traffic stop to the extent she wasnt interfering with them.)

The First Circuit in Martin held that recording on-duty police officers, even secretly, is protected newsgathering activity similar to that of professional reporters that serve[s] the very same interest in promoting public awareness of the conduct of law enforcementwith all the accountability that the provision of such information promotes. The court further explained that recording play[s] a critical role in informing the public about how the police are conducting themselves, whether by documenting their heroism, dispelling claims of their misconduct, or facilitating the publics ability to hold them to account for their wrongdoing.

The ability to secretly audio record on-duty police officers is especially important given that many officers retaliate against civilians who openly record them, as happened in a recent Tenth Circuit case. The First Circuit agreed with the Martin plaintiffs that secret recording can be a better tool to gather information about police officers, because officers are less likely to be disrupted and, more importantly, secret recording may be the only way to ensure that recording occurs at all. The court stated that the undisputed record supports the Martin Plaintiffs concern that open recording puts them at risk of physical harm and retaliation.

Finally, the court was not persuaded that the privacy interests of civilians who speak with or near police officers are burdened by secretly audio recording on-duty police officers. The court reasoned that an individuals privacy interests are hardly at their zenith in speaking audibly in a public space within earshot of a police officer.

Given the critical importance of recordings for police accountability, the First Amendment right to record police officers exercising their official duties has been recognized by a growing number of federal jurisdictions. In addition to the First Circuit, federal appellate courts in the Third, Fifth, Seventh, Ninth, and Eleventh Circuits have directly upheld this right.

Disappointingly, the Tenth Circuit recently dodged the question. For all the reasons in the First Circuits Martin decision, the Tenth Circuit erred, and the remaining circuits must recognize the First Amendment right to record on-duty police officers as the law of the land.

See the rest here:
First Circuit Upholds First Amendment Right to Secretly Audio Record the Police - EFF

Supreme Court Justice Clarence Thomas issued a concurrence in a case over former President Donald Trump's Twitter account in which Thomas suggested that social media companies should be regulated like a common carrier, like a telephone company. Patrick Semansky/AP hide caption

Supreme Court Justice Clarence Thomas issued a concurrence in a case over former President Donald Trump's Twitter account in which Thomas suggested that social media companies should be regulated like a common carrier, like a telephone company.

The Supreme Court on Monday dismissed a lower court ruling that former President Donald Trump violated the First Amendment rights of critics he blocked on Twitter.

Lawyers for those Trump blocked on Twitter argued that the former president's Twitter account functioned as an official source of information about the government, leading a federal appeals court to rule that Trump's blocking amounted to illegally silencing their viewpoints.

But Trump is no longer in office, and Twitter has permanently banned him from its platform over glorifying violence. So the lower court's ruling from the 2nd U.S. Circuit Court of Appeals should be tossed, the Supreme Court ruled, instructing the court to dismiss the case as "moot," or no longer active.

While the case can no longer be cited as precedent, other courts have held that an elected official's social media accounts can be treated as public forums. And so the dismissal "is unlikely to affect the development of the law," said Jameel Jaffer, director of the Knight First Amendment Institute at Columbia University, which sued Trump over his blocking of critics.

"I think public officials are and should be on notice that if they block people from their social media accounts on the basis of viewpoint, they are violating the First Amendment," Jaffer told NPR.

The decision from the high court did not surprise court watchers, but a concurrence in the ruling from Justice Clarence Thomas has drawn intense attention in technology circles.

In it, Thomas took broad aim at social media networks, attacking Section 230 of the Communications Decency Act, the landmark law that protects technology companies from lawsuits and also provides platforms wide latitude in patrolling speech on their sites.

To Thomas, Twitter's ban of Trump exposed the potential abuses of this legal protection, noting how "applying old doctrines to new digital platforms is rarely straightforward."

Thomas went on: "As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms. The extent to which that power matters for purposes of the First Amendment and the extent to which that power could lawfully be modified raise interesting and important questions," Thomas wrote.

Big Tech companies Facebook and Google, Thomas pointed out, have vast and largely unchecked control over online marketplaces.

"It changes nothing that these platforms are not the sole means for distributing speech or information. A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail," Thomas wrote. "But in assessing whether a company exercises substantial market power, what matters is whether the alternatives are comparable. For many of today's digital platforms, nothing is."

In Thomas' view, social media companies are "sufficiently akin" to a common carrier, like a public utility, such as a telephone company, and should be "regulated in this manner," he wrote, suggesting that social networks should be federally regulated in the same way that, say, a phone company cannot prevent a person from making a call.

Several legal experts told NPR that this reading of common carrier law represents a fringe view popular among partisan conservatives but not shared by federal regulatory agencies and the Supreme Court's own precedents.

No other justice joined Thomas' concurrence.

The remarks from Thomas are not the first time he has written that Big Tech should be reined in. He wrote in October 2020 that it "behooves" the justices to narrow the scope of Section 230, the law shielding tech companies from litigation.

Harvard Law School's Evelyn Douek argued that Twitter's booting of Trump may just be the action that leads to a stripping of social media platforms' legal protections.

"I've said this repeatedly, but it was terribly short-sighted of liberals to unquestioningly celebrate the unaccountable deplatforming of Trump (not to mention everyone else swept up) as an exercise of private power and cede the point that regulation might actually be beneficial," she tweeted.

Legal scholars of Section 230 greeted Thomas' position on the law dubiously, noting that it is not an indication of how the entire court stands on the matter.

"I'm not sure what to make of how much support Justice Thomas's reading of 230 has among the other eight Justices, particularly because they've denied [certiorari] in a few high-profile 230 cases recently," tweeted lawyer Jeff Kosseff, referring to the Supreme Court's recent decisions not to accept some Section 230 cases. "I do think that Thomas's statement increases the chances that at least two judges on a randomly chosen circuit court panel will rule in favor of must-carry rules for social media platforms," tweeted Kosseff, who wrote a book on Section 230 called The Twenty-Six Words That Created the Internet.

In an interview, Kosseff said lawyers readying cases and state legislatures may be emboldened by Thomas' remarks.

"It is an invitation for plaintiffs' lawyers to bring cases challenging Section 230," he said. "And I would not be surprised if we would start seeing more states passing laws that attempt to regulate content moderation."

Daphne Keller, former general counsel for Google and now with Stanford Law School, said any legal analysis of Section 230 that ignores a long history of cases that have upheld platforms' First Amendment right of policing troubling content "are either ignorant or intellectually dishonest."

Others applauded Thomas' remarks, including Rachel Bovard, senior director of policy at the Conservative Partnership Institute.

"The Thomas concurrence regarding Big Tech has everything: 1) legitimizing the threat of concentrated corporate power; 2) Google gatekeeping info for 90% of the world; 3) gov't outsourcing censorship; 4) justifications for common carrier regulation," Bovard tweeted.

View post:
Justice Clarence Thomas Takes Aim At Tech And Its Power 'To Cut Off Speech' - NPR

Comment:

The panel sounds interesting and certainly timely!However, I wanted to offer my concerns on the example chosen regarding demonstrably false statements about public health such as Masks dont slow the spread of COVID.

Given the tragic politicization of science over the past 12 months, and the debate over the most appropriate public health measures to implement to respond to CV-19, I think it is particularly problematic to use a highly contested health protocol as if one particular scientific view is truth and any opposing scientific/medical views are dangerous (and thus permissibly banned) fake news.Specifically, although there is certainly a dominant view being put forth on community masking, there are quite a few opposing scientific/medical professional views on this, as well as numerous scientific studies showing that masks may make little to no difference to the spread of COVID.In fact, the WHO, in its most recent interim December 2020 Guidance, indicates that:

Guidance on mask use in community settings

Evidence on the protective effect of mask use in community settings

When the WHO itself is indicating that there is only limited and inconsistent scientific evidence to support the masking of healthy people, and there are numerous studies coming out to the contrary, it is hardly a demonstrably false statement to make a statement about masks like the one indicated in your announcement, let alone be considered reckless for asserting/disseminating it.While there is of course scientific/medical opinions and studies to the contrary, and that position may even be the current dominant opinion in the scientific community, the point is that using this as an example of problematic fake news demonstrates the significant danger we are facing of labeling any opposing views as fake news, in order to eliminate all but the preferred dominant narrative.

I realize that under the model statute you plan to discuss, and under existing law, there is a distinction between provably false statements of fact and opinion, and that statements that are substantially true are excepted.However, my concern is that statutes like this could be used to intimidate, dissuade, or harass scientists/medical professionals/persons with knowledge and/or the information sources disseminating such opposing views from disseminating information that he/she believes to be true and beneficial to society.This would of course have a chilling effect on free speech and the dissemination of potentially truthful and beneficial information, leaving us only with state-sanctioned dominant narratives that may or may not be truthful themselves.

For anyone really paying attention, the last 12 months have revealed increasingly terrifying Ministry of Truth levels of censorship of any and all opposing scientific/medical views regarding all public health measures related to CV-19 i.e., masks, society-wide lockdowns, and available/existing treatment protocols for CV-19 vs. mRNA gene therapies.I have watched in horror, for example, as the scientists behind the Great Barrington Declaration -- Sunetra Gupta (Oxford), Jay Bhattacharya (Stanford) and Martin Kulldorff (Harvard) or even Stanfords Scott Atlas have had their reputations tarnished, their motives questioned, and their opinions silenced, simply for expressing opinions critical of the dominant narrative regarding society-wide public health responses. In the U.S., of course, it has largely become politicized along party lines, which is a tragedy in my opinion, as we as a society only benefit from hearing all medical and scientific viewpoints when dealing with unprecedented/unchartered public health measures that have affected society so drastically and so devastatingly.

As an attorney and professor focusing on First Amendment issues, I am sure you are well aware of the importance of allowing intelligent debate and opposing viewpoint discourse to take place on issues crucial to the public.Labeling an opposing view fake news in order to ban it or intimidate/harass its disseminator because it legitimately questions a dominant narrative on public health or any other dominant narrative is a slippery slope towards despotism.The model statute banning fake news that your panel will discuss/analyze is fraught with ethical and legal minefields that one may not see clearly enough when one is currently in agreement with the particular dominant narrative, but which can become an obvious tool for tyranny when one is not.

In any event, I am reaching out with the hope that you will consider/discuss the problems with using this public health/mask example as an example of a demonstrably false statement, and that your panel will explore the very real ethical, legal, democratic, and societal dangers of labeling or trying to ban unpopular or anti-dominant narrative information as dangerous fake news.

Rita Barnett-Rose

Comment:

I don't see it being an effective method, nor it bringing more trust or reliability to media outlets when they have consistently reported the same type of "fake news" saying it is a "first amendment right", yet injecting personal opinion, summation, and perspective while claiming these aspects as "facts" or "news", with most reporting being biased toward the entities of government wh ich has heavily vested amd invested interests in the media outlets to control content as well.

Harry Haggard

Comment:

The material harm requirement of the model statute greatly narrows its potential scope, which to my mind is probably a good thing. Assuming hypothetically that this statute had been universally in effect over the past year, what fake news harms might have been subject to prosecution under its terms?

James Stark

Comment:

"Free speech" that infringes on other people's rights or that may harm another person's civil rights, life, liberty, or their pursuit of happiness: IS NOT FREE SPEECH!

LeeronMorraes

Comment:

Hi! I love your Statute. I think sections 3(h)(i) and 3(h)(iii) could be easily circumvented. I have my own ideas for a statute to regulate fake news that uses Rule 10b-5 of the Securities Exchange Act of 1934 as a model, switching the words "in the sale of securities" with "in the dissemination of political ads." I also think Fox News, One America News, Brietbart News, and similar organizations use the word & quot;news" to represent themselves as what the constitution means by "press," when in actuality they are PR organizations that incidentally use "news" as a product. So they would qualify as BFNO's under your statute, but would be able to avoid its purpose. I think you could address the problem of misinformation by regulating the PR industry, which may seem tangential at first, but would actually address misinformation more directly.

Alex Berg

Comment:

MUST BE LABELED FAKE BEFORE DURING AND AFTER THE BROADCAST TO INSURE IT IS NOT TRUE TO THE VIEWER!!!!

Lynn Rotzell

Comment:

Remember that you yourself are the best secretary of your task, the most efficient propagandist of your ideals, the clearest demonstration of your principles, the highest standard of higher education that your spirit embraces and the living message of the high notions that you pass it on to others. Do not forget, also, that the greatest enemy of your noblest achievements, the complete or incomplete denial of the sublime id ealism that you proclaim, the discordant note of the symphony of good you intend to perform, the architect of your afflictions and the destroyer of your lifting opportunities - it's you.

Britney Horrzt

Comment:

Trolling legitimate voices with intentional falsehoods, drowning out the truth with a sea of misinformation, attempting to mislead the public for financial gain, and intentionally trying to destroy political opponents with lies - none of these do anything to serve the interests and values underlying the First Amendment. The First Amendment protects our most sacred rights, but it has become a shield for the corrupt and insince re who use it to promote their intentional lies. Even though many recognize these threats to the First Amendment , few have offered solutions. Despite the many problems this model statute raises, it's a good first step in deciding what we can do to save the First Amendment by outlawing the aberrations some believe it protects.

Dan Taylor

View post:
"Fake News" and the First Amendment - University of Dayton - News Home