Category Archives: First Amendment

In a victory for free speech, the rule of law, and common sense, a three-judge panel of the U.S. Court of Appeals for the 6th Circuitrecently ruledthat a philosophy professor at Shawnee State University in Portsmouth, Ohio, could not be forced to use a transgender students preferred pronouns, and that his suit against the university for violation of his First and 14th Amendment rights could proceed.

The courts decision is the first of its kind, and establishes a needed boundary against American cultures new, brutish sexual orthodoxy.

At least within academia, one can no longer be compelled to say things one doesnt believe.

The incident that precipitated this suit occurred in January 2018, when Shawnee State philosophy professor Nicolas Meriwether responded to a male students question during a Socratic dialogue in his political philosophy class by saying, Yes, sir. After class, the student approached Meriwether, stated that he was transgender, and demanded that the professor refer to him as a woman, with feminine titles and pronouns.

Instead, Meriwether offered to use the students last name, or any other name of the students choosing, but politely declined to use the transgender students pronouns. The student became belligerent and promised to get Meriwether fired.

The student then filed a complaint with the university, which launched a formal investigation through the universitys Title IX office. Meriwether again offered various compromises in an attempt to protect his rights of conscience while being respectful to the transgender student, but the university rejected any arrangement other than the use of preferred pronouns, or the elimination of sex-based pronouns altogether (a virtual impossibility in a scholastic setting).

When Meriwether refused, the university formally charged him with a violation of Title IX, claiming he [had] effectively created a hostile environment for the student. The university placed a written warning in Meriwethers personnel file and threatened further corrective actions unless he articulated the universitys groupthink.

Two years prior, in 2016, Meriwether had received a faculty-wide email from Shawnee State leadership, directing all faculty to refer to students by their preferred pronouns. At that time, Meriwether, a devout Christian, had approached his department chair, Jennifer Pauley, with concerns about the policy. Pauley was not only dismissive of Meriwethers concerns,she was patently hostile.

Knowing Meriwether had successfully taught courses on Christian thought for decades, Pauley claimed Christians are primarily motivated out of fear, and should be banned from teaching courses regarding that religion. In her view, even the presence of religion in higher education is counterproductive.

Meriwether was told that even if a professor had moral or religious objections to the use of preferred pronouns, the policy would still apply.

Two years later, Meriwethers spotless record was marred by a disciplinary note, and he was teaching under the threat of further discipline, including suspension without pay or termination, unless he agreed to fall in line with Shawnees pronoun policy.

In November 2018, Meriwether sued the university in Ohio federal court for violation of his rights of free speech and religious liberty under the First Amendment, and violation of his due process and equal protection rights under the 14th Amendment. U.S. District Judge Susan Dlottthrew out Meriwethers lawsuiton Feb. 12, 2020, and among other things, held that a professors speech in the classroom is never protected by First Amendment. Meriwether appealed to the 6th Circuit.

InMeriwether v. Hartop et al., an impatient panel for the 6th Circuit wasted no time with perfunctory legalese or institutional pandering. It cut right to the chase in its frustration with Shawnee States stamping out of debate and open dialogue vis-a-vis its malignant speech policy.

Theopinion, which was written by Judge Amul Thapar and joined by Judge Joan Larsen and Senior Judge David McKeague, begins:

Traditionally, American universities have been beacons of intellectual diversity and academic freedom. They have prided themselves on being forums where controversial ideas are discussed and debated. And they have tried not to stifle debate by picking sides. But Shawnee State chose a different route: It punished a professor for his speech on a hotly contested issue. And it did so despite the constitutional protections afforded by the First Amendment.

The district court dismissed the professors free-speech and free-exercise claims. We see things differently and reverse.

The court went on to clarify that theSupreme Court has recognizedthat the government may not compel a speaker to affirm a belief with which the speaker disagrees. It added that courts haverecognizedthat the free speech clause of the Constitution applies at public universities, and that professors do not shed their constitutional rights to freedom of speech or expression at the [university] gate.

Thapar, the first South Asian federal judge in American history, and the son of self-made immigrants from India, seemed hard-pressed in containing his displeasure at the universitys looseness with long-standing judicial principles. Its clear he doesnt take kindly to Shawnee States loutish attempts at conformity.

In relaying a dizzying body of precedent, Thapar stressed that the court has rejected as totally unpersuasive the argument that teachers have no First Amendment rights when teaching, or that the government can censor teacher speech without restriction.

Simply put, the judge wrote, professors at public universities retain First Amendment protections at least when engaged in core academic functions, such as teaching and scholarship because the need for free exchange of ideas in the college classroom is unlike that of other workplace settings.

In a critical discussion on the use of pronouns themselves, Thapar wrote:

[T]itles and pronouns carry a message. The university recognizes that and wants its professors to use pronouns to communicate a message: People can have a gender identity inconsistent with their sex at birth. But Meriwether does not agree with that message, and he does not want to communicate it to his students.

Thats not a matter of classroom management; thats a matter of academic speech Never before have titles and pronouns been scrutinized as closely as they are today for their power to validateor invalidatesomeones perceived sex or gender identity. Meriwether took a side in that debate. Through his continued refusal to address Doe as a woman, he advanced a viewpoint on gender identity

Shawnee State allegedly flouted [a] core principle of the First Amendment. Taking the allegations as true, we hold that the university violated Meriwethers free-speech rights.

The courts opinion in Meriwether v. Hartop is long overdue comfort to those who refuse to bend the knee on leftist groupthinkthe kind that forces a subjective and manipulable view of one persons self to become a defining reality for everyone else. It is a stake in the ground on behalf of religious dissenters and academic freedom.

Andwith poetic suitability to a Socratic dialoguethe decision reminds us that there are no personal truths, but only truths immemorial: realities that exists independent of our wishes to the contrary.

This piece originally appeared in The Daily Signal.

See the original post here:
The 6th Circuit Reached the Right Conclusion on Preferred Pronouns. Other Courts Should Follow Suit. - Heritage.org

Douglas Storys white supremacist street cred was easy to find. He had a white pride tattoo and a neo-Nazi license plate. In extremist online forums he made ominous, N-word-filled posts about President Obama: If someone puts a 30.06 round into the base of his skull, huh ya think?" The Aryan Nations even booted Story from its website when he sought help for converting his AK-47 rifle into a fully automatic machine gun a federal crime.

But none of that factored into his 2012 sentencing after the FBI arrested him in Virginia for possession of that modified gun. A federal judge blocked prosecutors from discussing Storys white supremacist views, because the First Amendment protects speech, no matter how offensive. Prosecutors could only focus on Storys illegal weapon.

Storys path to a prison cell reveals a common workaround that police and prosecutors use when investigating those who spew white supremacy, far-right or violent anti-government rhetoric. Its easier to send someone to prison for traditional crimes, often involving guns or drugs, than to convince a judge that repulsive hate speech breaks the law.

In the wake of the Jan. 6 attack on the Capitol, federal law enforcement is fending off complaints that it goes easy on white supremacists while monitoring Black and Muslim activists. These frustrations escalated after last months mass shooting in Atlanta that killed six Asian women. Many Democrats, advocates and even some within the ranks of law enforcement have long criticized the FBI and federal prosecutors for not doing more to crack down on white extremists. Some are now pushing again for a law that labels such crimes as domestic terrorism, but civil rights proponents worry that would also increase policing of communities of color.

On Tuesday, Attorney General Merrick Garland acknowledged the increasing problem with hate crimes and ordered a 30-day review of how the Justice Department combats it.

To understand how white supremacists are policed and punished, The Marshall Project analyzed nearly 700 federal prosecutions from 2012 to 2020 that involved what the FBI calls racially and ethnically motivated violent extremism and hate crimes. Academics at the University of North Carolina mined Justice Department press releases for cases involving extremism. Almost all the cases involved White men.

The research did not include Black extremist groups because few exist, said Ashley Mattheis, a communications expert at the University of North Carolina who studies violent extremism and propaganda. Its an incredibly small percentage, she said.

Two-thirds of the 671 cases The Marshall Project analyzed involved gun and drug charges against white supremacist gangs that formed in prison and spread to the outside world. Convictions and lengthy prison sentences were common.

But when we dug into the remaining 194 cases, we found that:

A third of the non-prison gang cases involved guns, silencers and bombs. Given the First Amendment complications, prosecutors say they prefer to bring these easier-to-win criminal charges as a workaround. Often these investigations featured lone wolves flagged for advocating ethnic hatred. If they had a criminal past, federal prosecutors slapped them with charges such as a felon in possession of a firearm. "Federal firearm laws are the Achilles heel of white supremacists," said Tom Brandon, recently retired acting director of the Bureau of Alcohol, Tobacco, Firearms and Explosives.

A quarter of the cases involved threats made online, in person or on the phone but not carried out. The victims were diverse: Tulsas district attorney and his daughter, who are White, received death threats; a Black city council candidate in Charlottesville, Virginia, was pressured to quit the race after a torrent of racist vitriol; a pair of halal grocers in Florida complained that law enforcement ignored threats to blow up their stores.

In a handful of threat cases, prosecutors resorted to other workarounds, such as accusing people of lying on federal job applications or failing to disclose mental health histories to the military.

Our analysis reflects only a portion of the FBIs work: investigations that ended with charges filed. It doesnt include the untold hours agents spend watching people they think could end up breaking the law.

FBI guidelines prohibit launching any investigative activity solely on the basis of someone's race, religion or identity. The guidelines allow agents to explore publicly available information such as social media posts and to do knock and talks unannounced visits where agents ask people to talk voluntarily.

The FBI doesnt release data on knock and talks and other surveillance activity. Nor does the agency share information about its investigations unless charges are filed in court.

We are not seeing that full picture, said Hugh Handeyside, an attorney for the American Civil Liberties Union, which is suing the FBI for surveillance files on Black demonstrators.

Activists in the Muslim community and the Black Lives Matter movement say these knock and talks are terrifying and all too common. The Council on American Islamic Relations said the FBI visited more than 100 Pakistani families across the country in 2016 on the grounds agents were investigating threats to the election, said Zahra Billoo, who heads the organizations office in the San Francisco Bay Area.

The bar for prosecutions is much higher. While Black Lives Matter activists and Muslim communities have sued the government over what they say is unfair surveillance, we found that criminal charges for racially motivated extremism which require probable cause, a much higher standard of proof involved almost exclusively White men.

The Justice Department shared an annual tally of people charged with either a federal hate crime, or threatening someone over state lines whether in person, online or by phone. But that tally also includes incidents that dont involve political or racist motives. A spokesperson said the agency didnt have a nationwide breakdown detailing if a suspect had ties to any racist extremists or anti-government groups.

In a recent letter to Congress, the FBI said half its 120 domestic terrorism arrests for the year ending Sept. 30 were linked to racism, with a vast majority involving people who advocate for the superiority of the White race. And 45% were listed as anti-government or anti-authority.

Tom OConnor, a retired FBI agent who specialized in domestic terrorism for 23 years, said the 2012 case he led against Douglas Story in Virginia was a textbook example of the challenges of investigating white supremacists.

Storys vanity license plate, 14CV88, alluded to a white supremacist slogan and a Hitler salute. He hung out on white extremism forums where he vowed to kill police if martial law was ever declared or if a neo-Nazi race war erupted. Story posted that a 30.06 rifle bullet was his preferred way to remove then-Attorney General Eric Holder, the first Black person to hold the office.

Citing such language, the FBI opened a preliminary investigation, but the threats against Obama and Holder were not specific enough to file criminal charges.

Hes not saying hes going to do something, hes not telling someone else to do something, said OConnor. Hes saying that if someone is shot in the head theyre going to die.

The FBI managed to work around the free speech obstacles after Story posted a message on a neo-Nazi website, wanting to convert his AK-47 to a fully automatic machine gun, a felony that could bring up to 10 years in prison.

An FBI agent posing as an underground gunsmith got the job done, leading to Storys arrest.

But when prosecutors detailed Storys hate speech in court documents, his defense lawyer acknowledged it was inflammatory language, but said it had nothing to do with his client owning a machine gun.

The judge ordered prosecutors not to talk about Storys white supremacist posts or his vitriol toward Obama at sentencing. The judge gave him one year in prison, a sentence OConnor described as a heartbeat.

Story did not respond to requests for an interview, but in an email denied being an extremist. I wasn't some wild eyed white supremacist, he wrote. My arrest, in my head, anyway, I consider a combination of FBI entrapment plus stupidity and naivete on my part.

Former federal officials say workarounds are inevitable because threat cases are hard to win. They are certainly more legally complicated than a gun case or a drugs case, said David J. Freed, the former U.S. Attorney in central Pennsylvania who left the post in January.

His office generally chose to forgo threat charges if there were more typical crimes involving violence or vandalism, Freed said. Prosecutors want to avoid courtroom debates over whether threats were a crime or protected speech. Any responsible prosecutor will know, you are buying yourself a fight, he said.

The Marshall Projects analysis showed that prosecutors generally pursued the most severe winnable charge, usually those involving guns and drugs. At least in one case, however, the opposite happened.

In 2016, Omar Rabbo, a halal grocer in Fort Myers, Florida, was angry that local police wouldnt arrest James Benjamin Jones, a 35-year-old White man who threatened to blow up Rabbos store, according to court records.

Frustrated, the Palestinian immigrant called the FBI; an agent was at his shop within an hour.

When the FBI went to Jones home, a psychedelic mushroom farm and illegal moonshine distillery were in plain sight. State prosecutors slapped Jones with felony drug and alcohol manufacturing charges. He faced up to 20 years in a Florida prison.

Prosecutors had a sure win with the drug and alcohol charges, according to Jones defense attorney, Christopher H. Brown, who described what happened next as the strangest swaps in history. Instead of pursuing the state felonies, the U.S. attorneys office told county prosecutors to drop the case, as part of a deal that let Jones plead guilty to two federal hate crimes instead which Brown saw as a way for the feds to win a hate crime prosecution.

In my personal opinion, the U.S. attorney saw it as a statistical thing, to say in this district we have a threat conviction involving Muslims, Brown said. I did the best interest for my client.

The best criminal justice reporting from around the web, organized by subject

A spokesman for the U.S. Attorneys Office in the Middle District of Florida said the Justice Department is still reviewing facts of the case. The crimes Jones admitted to carried a maximum of 10 years in prison for someone with a long criminal history. That was not the case for Jones, who got probation in the deal.

The plea agreement didnt bother Rabbo, the store owner, who believes Jones was mentally ill and brainwashed by people on the internet. I asked the judge for mercy, he told The Marshall Project.

That was an unusual sentence. Out of the nearly three dozen suspects convicted of federal threat crimes in the eight-year period analyzed, only five were placed on probation. The average prison sentence was 2.5 years, the longest being 10 years.

The Jan. 6 attack on the Capitol reignited a debate over how the country should handle domestic terrorism. There is no official tally of domestic terrorism crimes because there is no law that expressly bans Americans from using or threatening violence for political motives.

After the Charlottesville Unite the Right rally in 2017, Mary McCord, a Georgetown law professor and former federal prosecutor, began urging Congress to create a new criminal charge without increasing police powers. The new law would plainly label racist or extremist plots and attacks as terrorism, which could help thwart future violence, she argued.

McCord pointed to The Base, a violent neo-Nazi group that was building machine guns to trigger a civil war to create a white ethno-state. Prosecutors charged them with firearm violations and harboring an undocumented resident.

"Having crimes that fit the threat you are trying to thwart drives more resources and provides a more appropriate match between the resources and the crime," McCord said. "A statute would say this is a priority."

Proponents also argue a new law would address the lack of consistent punishment when a white extremist threatens to harm someone even high-profile politicians. In recent years a New York man was sentenced to 46-months for threatening to kill Obama and U.S. Rep. Maxine Waters. Yet another New York man got a year in prison for threatening to kill U.S. Rep. Ilhan Omar, who requested mercy in the case.

Civil rights advocates who oppose a new domestic terrorism law argue that it would only increase police surveillance in communities of color.

"The real solution here is certainly not to expand their budgets or their legal authorities, said Ramzi Kassem, a law professor at the City University of New York, referring to law enforcement. Kassem directs the CLEAR project, which provides legal counseling to people targeted by national security investigations.

When asked why she requested mercy for the man who threatened her, Omar said white nationalism poses a serious criminal threat. But we must also understand that no matter how odious these acts are, taking a punitive approach will not rehabilitate white supremacists, she wrote in a statement. Instead of treating this as a purely criminal matter, we must stay rooted in respect for justice and of human rights and of civil liberties as we respond.

Steve Kunzweiler, the district attorney in Tulsa whose family received threats, still feels cheated. As his office prepared to charge a Tulsa police officer who fatally shot an unarmed Black man, a Connecticut resident began to post the online threats. The poster vowed to kill the families of Kunzweiler, the police chief and other investigators.

Kunzweiler hoped that the judge would rule in favor of iron bar therapy, referring to a lengthy prison sentence. Instead, the suspect received probation for using the internet to send threats across state lines.

We are in this world of criminal justice reform, and I guess courts can look at that and say well, it was just words, Kunzweiler said. Yes, it was just words, but those words were directed at me and directed at my daughter.

Correction: An earlier version of this story incorrectly reported the academic specialty of Ashley Mattheis. She has a doctorate in communications.

Go here to read the rest:
Why It's So Hard to Prosecute White Extremists - The Marshall Project

One year into the launch of online classes, the Nackey S. Loeb School of Communications has announced a spring session of first-time topics requested by students.

Eight free online classes of a single session each will run from April 6 to May 4. They include:

-- Finding Facts in a Sea of Misinformation, with PolitiFact Senior Correspondent Jon Greenberg (April 6);

-- Getting More out of LinkedIn, with content strategist Beth LaMontagne Hall (April 7);

-- Smart Marketing: Using Emotional Intelligence to Reach Your Audience, with consultant and coach Liza Dube (April 14);

-- Introduction to Speechcraft, with Toastmasters leader Lorraine Ratchford (April 16);

-- Virtual Meeting Readiness: Setting Yourself and Your Team Up for Success, with facilitator and mediator Sasha Tracy (April 19);

-- Communicating for Social Change Telling a Well-Framed Narrative, with the Frameworks Institutes Moira ONeil, Ph.D. and Kelly Lafamme, MPA (April 21);

-- Listen Up: Starting a Podcast, with National Public Radio producer Jonathan Smith (May 3);

-- Business Writing Basics: Financial Storytelling, with Bloomberg Intelligence editorial team leader Rik Stevens (May 4).

Two online writing workshops also are open for registration:

-- Expressing Ourselves Using Poetry to Tell the Story of our Lives, with writers, poets and publishers Stacy Milbouer and Tom Long (April 24, $50 per person);

-- Are you Ready to Write Your Book? with author and writing coach Kimberly Marlowe Hartnett (April 10, $90 per person, including an individual coaching session with instructor). Both workshops have limited space available.

All Loeb School classes and workshops require advance registration. See full class and workshop descriptions for more detailed information. Register at loebschool.org/register.

The Nackey S. Loeb School of Communications Inc., promotes and defends the First Amendment and fosters interest, integrity and excellence in journalism and other forms of communication by educating students of various ages and providing them with the tools and knowledge to improve their skill. More information can be found at loebschool.org.

See more here:
Loeb School announces free spring classes and writing workshops - The Union Leader

from the delicious dept

Parler -- the social media cesspool that claimed the only things that mattered to it were the First Amendment and, um FCC standards -- has reopened with new web hosting after Amazon decided it no longer wished to host the sort of content Parler has become infamous for.

Parler has held itself up to be the last bastion of the First Amendment and a protector of those unfairly persecuted by left-wing tech companies. The users who flocked to the service also considered themselves free speech absolutists. But like far too many self-ordained free speech "absolutists," they think the only speech that should be limited is moderation efforts by companies like Twitter and Facebook.

And, like a lot of people who mistakenly believe the First Amendment guarantees them access to an active social media account, a lot of Parler users don't seem to understand the limits of First Amendment protections. Parler, like every other social media service, has had to engage in moderation efforts that removed content undeniably protected by the First Amendment but that it did not want to host on its platform. It has also had to remove illegal content and that's where its most recent troubles began.

Over the weekend, the resurrected Parler crossed over into meta territory, resulting in an unintentionally hilarious announcement to its aggrieved users upset about the platform's decision to forward Capitol riot related posts to law enforcement. It really doesn't get any better than this in terms of schadenfreude and whatever the German word is for an ad hoc group of self-proclaimed First Amendment "experts" having their second favorite right explained to them.

Here's Matt Binder for Mashable:

The reaction to the news that Parler "colluded" with the FBI in order to report violent content was so strong on the right wing platform, the company was compelled to release a statement addressing those outraged users.

In doing so, Parler found itself unironically explaining the First Amendment to its user base filled with members who declare themselves to be "Constitutionalists" and "Free Speech" advocates.

Parler's statement spells it out: the First Amendment does not protect the speech shared with law enforcement by the social media platform.

In reaction to yesterday's news stories, some users have raised questions about the practice of referring violent or inciting content to law enforcement. The First Amendment does not protect violence inciting speech, nor the planning of violent acts. Such content violates Parlers TOS. Any violent content shared with law enforcement was posted publicly and brought to our attention primarily via user reporting. And, as it is posted publicly, it can properly be referred to law enforcement by anyone. Parler remains steadfast in protecting your right to free speech.

That's a very concise and accurate reading of the First Amendment and how it applies to the content Parler forwarded to the FBI. It's not covered. But that hasn't stopped a few vocal complainants from telling Parler to try reading the Constitution again and, apparently, decide it means not only hosting violent content, but refusing to pass these threats on to law enforcement.

The core user base being unable to understand the limits of the right it believes allows it to say anything anywhere is partially a byproduct of Parler's promise to erect a Wild West internet playground for bigots and chauvinists who had nowhere else to go. Once it had some users, Parler realized it too needed to engage in moderation, even if only to rid itself of porn and outsiders who showed up solely to troll its stable of alt-right "influencers."

The January 6th insurrection appears to have forced the platform to grow up a little. Of course, some of that growth was forced on it by the leak of thousands of users' posts, which were examined by journalists and forwarded to law enforcement to assist in identifying Parler users who attended the deadly riot in DC earlier this year. Illegal content is still illegal, and being beholden only to the First Amendment doesn't change that.

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Filed Under: 1st amendment, content moderation, fbi, insurrection, public infoCompanies: parler

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Parler Forced To Explain The First Amendment To Its Users After They Complain About Parler Turning Over Info To The FBI - Techdirt

The United States has an historic opportunity to work with democracies around the world to address dangerous online content, including white supremacist terrorism. In 2019, a lone wolf live-streamed via Facebook his massacre of 51 people at two mosques in Christchurch, New Zealand. In direct response, dozens of the worlds leading democracies joined with major social media companies to issue a call to action. The Trump administration, however, did not join them, vaguely referring to First Amendment concerns to explain its absence.

With the coming anniversary of the Christchurch Call to Action (May 15) and the Summit of Democracy, its high time to reconsider the U.S. posture. Whatever the merits or demerits of any multilateral effort to address dangerous online content, one purported basis for the U.S. failure to join such initiatives cannot withstand scrutiny. Thats the claim that the United States has a policy of refraining from supporting international agreements that would call on other countries to act inconsistently with the First Amendment.

One of us served as the State Departments most senior human rights official and the other has served on the State Departments advisory committee on international law during Democratic and Republican administrations. Based on our experience and assessment of U.S. practices, we question any assertion of such a general or consistent U.S. approach toward international agreements.

Indeed, some of the main cases cited to show such a policy, on further scrutiny, demonstrate the opposite: The United States takes a pragmatic approach often issuing statements that stress that its own commitment to an agreement do not run afoul of the First Amendment (and asserting carve outs for U.S. domestic purposes). At the same time, it supports the adoption of international agreements by other countries who apply these treaties in accord with international human rights standards. In bilateral human rights dialogues with countries like China, Vietnam, Myanmar and Uzbekistan, U.S diplomats have routinely urged ratification of international human rights treaties without referring to its own reservation relating to free speech. In these and other diplomatic exchanges, U.S diplomats constantly rely on this international framework, rather than the U.S. Constitution and laws. It makes good practical sense to do so.

Were it otherwise, the United States efforts to advance human rights around the world would be stymied and seen as simply trying to impose its own constitutional standards on other governments including in political contexts where an absolutist First Amendment approach could wreak havoc or far worse.

Consider how the United States approached the main human rights treatythe International Covenant on Civil and Political Rights. That treaty requires any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. In submitting the treaty to the Senate for ratification, the George Herbert Walker Bush administration acknowledged that this provision directly conflicts with the First Amendment by requiring the prohibition of certain forms of speech and expression. The solution was simple. The United States ratified the agreement but entered a reservation opting out of that provision for itself, that is, to the extent the obligations were inconsistent with the First Amendment. (The reservation read: Article 20 does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States.)

What about the treaty as it applied to other States? That would be up to them to decide. The United States would go on to promote the treaty as a global agreement, including urging other States to ratify the Covenant, and proceed to support the treatys supervisory body. The latter is a committee of 18 independent experts, including a member nominated by the United States from 1995 until 2018 and again in 2020. The Human Rights Committee monitors the application of the Covenant (including Article 20) for States that have committed to comply with it.

The same pattern holds true for other treaties. The Convention on the Elimination of Racial Discrimination, for example, requires States to criminalize all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin (Article 4). In proposing ratification of the treaty, the Clinton administration acknowledged to the Senate, The requirements of Article 4 of the Convention are thus inconsistent with the First Amendment. During the drafting of Article 4, the U.S. delegation expressly recognized that it posed First Amendment difficulties. The solution, once again, was to join the agreement but enter a simultaneous reservation to ensure that parts of that provision did not apply to the U.S. governments own actions. As with the Covenant on Civil and Political Rights, the United States went on to support the treaty on racial discrimination, including joining multilateral calls for other States to ratify the instrument. The treaty also has a supervisory committee, which long included a U.S. member, and it too monitors all States compliance with their own obligations under the agreement including Article 4.

This sort of pragmatic approach by U.S. delegations toward multilateral efforts dates back to the Universal Declaration of Human Rights itself. Consider the incitement provision of the Universal Declaration. Article 7 states that all people are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. During the drafting process, the head of the U.S. delegation, Eleanor Roosevelt, opposed this text. The diplomatic record states: Speaking as United States representative, she supported deletion of the words against any incitement to discrimination, The United States opposed the provision against incitement to discrimination because it feared that such a provision might be used to justify the enactment of repressive measures, laws that would curtail freedom of speech and the press. However, the United States ultimately acceded to the provision in its final form, and has ever since been a leading backer of the Universal Declaration as a whole.

Finally, we should note the United States has also supported international efforts to counter online support for Islamic terrorism, despite turning away from the Christchurch Call to Action following the terrorist attack on Muslims in 2019. In 2015, the Security Council Counterterrorism Committee, in which the United States serves as a leading member, adopted the Madrid Guiding Principles. In addressing foreign terrorist fighters, Principle 26 states:

Member States should build and strengthen public-private partnerships, in particular with social media service providers, while respecting international obligations and commitments regarding human rights, including freedom of expression, and recalling that any restrictions thereon shall only be such as are provided by law and are necessary on the grounds set out in paragraph 3 of article 19 of the International Covenant on Civil and Political Rights. In this regard, Member States should encourage the ICT industry to voluntarily develop terms of service that target content aimed at recruitment for terrorism and recruiting or inciting others to commit terrorist acts, while respecting international obligations and commitments regarding human rights.

In 2018, the Security Council Committee adopted an Addendum to the Madrid Guiding Principles for foreign terrorist fighters, in which principle 39 provides:

In undertaking efforts to effectively counter the ways that ISIL, Al-Qaida and associated individuals, groups, undertakings and entities use their narratives to incite and recruit others to commit terrorist acts, Member States should:(g) Consider continuing, building on or fostering new strategic and voluntary partnerships with many different actors, such as private sector actors, in particular social media and other communications service providers, including for the purposes of blocking, filtering or removing terrorist content, and civil society actors who can play an important role in developing and implementing more effective means to counter the use of the Internet for terrorist purposes, to counter terrorist narratives and to develop innovative technological solutions;

(h) Encourage information and communications technology service providers to voluntarily develop and enforce terms of service that target content aimed at recruitment for terrorism and recruiting or inciting others to commit terrorist acts, while respecting international human rights law, and publish regular transparency report.

There are other cases in which the United States has invoked the freedom of speech as a basis for its withdrawal from or non-participation in multilateral meetings (e.g., the 2009 Durban review conference against racism) or to advance a negotiated diplomatic outcome (e.g., 2011 Human Rights Council Resolution 16/18 on combating religious intolerance). These assertions need to be understood in their political contexts. The Durban Review Conference became embroiled in a larger political debate about Israel, and several other countries also withdrew based on concerns that the review conference would repeat the anti-Semitic attacks that took place at the 2001 Durban Conference. The United Nations Human Rights Council debate about combatting religious intolerance focused an overbroad proposal from Pakistan and others aimed at declaring any negative commentary on Islam examples of religious intolerancesuch as through national blasphemy laws . That said, there are other examples that may support the claim that First Amendment concerns have more directly precluded U.S. participation in an international initiative (e.g., 2020 UN General Assembly Resolution on Combating Glorification of Nazism). Yet thats also consistent with our general point. There is no settled, uniform, or required U.S. approach to these multilateral initiatives. The United States has adopted a pragmatic approach rather than asserted its First Amendment is a necessary model for the world.

When the Biden administration convenes its Summit of Democracy, many of the participating States will be the same ones that supported the Christchurch Call to Action. It is these venues in which the United States can work with fellow democratic countries and tech companies to address the most dangerous online content. Our First Amendment is no cause for completely holding back.

Editors Note: Readers may also be interested in Christchurch Calls and Washington Isnt Answering by Eric Rosand and Why the Christchurch Call to Remove Online Terror Content Triggers Free Speech Concerns by Evelyn Aswad.

Excerpt from:
Terrorism and Other Dangerous Online Content: Exporting the First Amendment? - Just Security

They dont send out the DEA to bust people for eating deadly poisonous toadstools. That behavior is, ahem, self-limiting. But the federal government does forbid the sale of mushrooms that make people feel like theyre at a rainbow jamboree with the Care Bears, because lawmakers know lots of people would gobble them up.

We have little trouble understanding why we have and enforce laws: The forbidden conduct would otherwise be too attractive. We punish people for everything from toxic waste dumping to breaking the speed limit precisely because lawmakers think too many people otherwise would engage in conduct thats harmful to society as a whole.

While we understand why we have prohibitions against certain conduct by citizens, we tend to forget that our system forbids certain conduct by the government for precisely the same reason: The harmful misconduct is too attractive to otherwise resist.

Many Americans claim to revere the First Amendment and its hard line against government limitations on the beliefs of our citizens and the expression of those beliefs. Yet very often the same souls who rhapsodize over free speech are eager to limit it.

Heres a powerful, influential progressive senator who wants to make sure a company cant heckle her in a snotty way. Or how about a new member of the executive branch who wonders whether the First Amendment is obsolete and thinks the federal government should try to engineer a news media marketplace to its liking? Try an esteemed conservative federal judge who wants to make it easier for powerful people to sue reporters and news outlets because he doesnt like the bias he perceives against his viewpoints.

At the state and federal level, were witnessing a full-spectrum attack on free expression (not to mention property rights). Progressives and nationalists arent mounting this assault at risk to their own careers. Indeed, many are finding lots of political advantage in trying to suppress speech they and their constituents do not like.

Though Thomas Jefferson is most assuredly out of favor with the modern progressives who are his heirs, in 1787 he identified the same problem with American politics many in todays Democratic Party now decry. Jefferson blamed what today is called fake news for the Constitutions version of the presidency that he believed was inclined toward monarchy.

The British ministry have so long hired their gazetteers to repeat and model into every form lies about our being in anarchy, that the world has at length believed them, Jefferson wrote to John Adams son-in-law from Paris. The English nation has believed them, the ministers themselves have come to believe them, and what is more wonderful, we have believed them ourselves.

He was calling Adams and the other Federalists a bunch of dupes who created an undemocratic presidency because of the impudent and persevering lying of pro-British journalists. We could say the same thing today about American outlets and politicians who echo Chinese talking points about the prevalence of racism in our country or Russian propaganda about the legitimacy of the 2020 elections.

Unlike many in his party today, though, Jefferson didnt suggest controlling the information Americans could receive. In fact, he said misinformation was an inevitable consequence of life in a free society. The people can not be all, and always, well informed, he wrote. The part which is wrong will be discontented in proportion to the importance of the facts they misconceive.

Aint that the truth

Racism is tolerated less now than it has been at any point in American history, but if you misconceive that important fact, you are likely to be quite discontented. The same goes for election fraud. If you are ignorant of the truth that American elections now are far more secure than in even the fairly recent past you might believe Boss Tweed and Big Bill Thompson were still stuffing ballot boxes. You might even storm the Capitol.

Jeffersons remedy, however, would please few Americans today. He brushed off Shays Rebellion, a tax revolt in Western Massachusetts the year before that left nine dead, as no big deal. Let them take arms, he wrote. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The alternative, he said, was worse. If they remain quiet under such misconceptions it is a lethargy, the forerunner of death to the public liberty.

The anti-police riots of last year and the pro-Trump attack on the Capitol would have been to circa-1787 Jefferson what we now callforgive meteachable moments. The perpetrators were misinformed, but according to their misshapen views of the world, their violent actions were justified. When the river of misinformation overruns its banks, Jeffersons advice was not to build the levees higher but to address its source.

Adams did not agree. As president in 1798, he signed the Alien and Sedition Acts partly to crack down on Bonapartist propaganda from France during a period of high tensions between the former allies. It just so happened that what the federal government deemed false statements against it were very often claims and criticisms from newspapers supportive of his old rival, Jefferson, who was preparing to take on his foe in the election of 1800. Limiting speech, he argued, was necessary for preserving domestic tranquility. Fortunately, the rules were far less popular in practice than in concept and were allowed to expire by 1801.

After defeating Adams, Jefferson learned to love the powers of the presidency he had as a younger man disdainedand the awful failures and excesses of the French revolution had also taught him about the practical considerations of armed revolts and foreign propaganda. That tree of liberty must be refreshed from time to time with the blood of patriots and tyrants jazz didnt sound as great when he was worried about Aaron Burr cooking up an insurrection with the help of the Spanish.

We dont have a First Amendment to protect free speech because people love the freedom, but because limiting free expression will always be attractive to those in powerand often to their political advantage.

Read the original:
The First Amendment: Rarely Popular, Always Necessary - The Dispatch

A very timely Join the Conversation event from WSHU

The First Amendment is cited daily in reference to the Capitol insurrection, cancel culture and hate speech posted on social media. But our right to free speech is more nuanced than many people realize. In this fascinating discussion with noted experts, we will examine exactly what the First Amendment covers, what it doesnt cover and how it pertains to some of the timely issues at hand.

Our online Join the Conversation event will be moderated by WSHU Senior Reporter Ebong Udoma, and features these expert panelists:

Event Details:

The First Amendment: What It Is & What It IsntAn online WSHU Join the Conversation eventTuesday, April 13, 2021, at 7 p.m.Event is free register to get the linkDo you have a question for our panelists? Submit it via our WSHU Community page.

Event generously sponsored by Petroske Riezenman & Meyers, PC

Go here to see the original:
The First Amendment: What It Is & What It Isn't - WSHU

For government social media managers, the ability to navigate the online world and the trolls that dwell within it has become a necessary skill set. While the wide variety of platforms offer unprecedented access to constituents, they also offer an avenue for all types of feedback some much less productive than the rest.

What to do about an onslaught of negative feedback was a topic of discussion during the 2021 Government Social Media Conference earlier this week. Experts from agencies large and small discussed the pitfalls and rules that must be considered before going to battle with the worst of parts of the Internet.

For example, does deleting a negative comment run afoul of the First Amendment? The consensus among experts is that the creation of rock-solid policy can make all the difference when answering this question.

Shawna B. Washington, marketing and communications manager for the city of Columbia, S.C., Police Department, noted in a session that her agencys profile has a stipulation stating what may be deleted, including comments with curse words and the like.

Washington said sometimes negative feedback is just that and isnt being directed at starting a larger, productive conversation.

Kaitlin Keeler, digital editorial manager for Oakland County, Mich., explained in another session focused on policymaking that extra care should be taken in assessing whether or not negative feedback crosses a line.

She argued that government should generally not remove comments because of an inherent responsibility to protect First Amendment rights. When deleting comments becomes necessary, she said, it should be clear why the comment was removed and which policies it violated.

We need to be transparent, Keeler stated. A disclaimer policy is a great first place to start, and youre going to want to specifically disclaim what you can and cannot delete.

She added that if comments are deleted, they must be archived to protect the agency in case the Freedom of Information Act is invoked.

These sentiments were echoed by ArchiveSocial CEO Ray Carey, who has seen agencies struggle with blocking users and deleting comments. He emphasized the importance of an agency ensuring that these instances are archived and well documented.

Carey said that trolls arent looking to start a dialogue and in many cases are just spamming official accounts for one reason or another. He points to the case of someone commenting that all taxation is theft 15 times a day.

How do you have free and open dialogue with people that are trying to ruin the free and open dialogue and make a mess of your site? Carey asked. How do you balance those two things?

At the end of the day, however, the overall goal of government social media accounts is to engage with the public, said Matt Turner, social media specialist for the National Park Service, during a keynote address. As he sees it, responding to comments from the public on social media posts is a tool to increase visibility.

Engagement is critical to really moving that cycle forward, Turner said. You really want to generate the interest and followers. You want that feedback no matter what it is that overall growth.

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See original here:
Drawing a Line Between Internet Trolls and the First Amendment - Government Technology

Well folks, it just doesnt get any more important than this.

The first ever appellate decision analyzing whether a discriminatory statute impacting speech can be applied in a discriminatory manner following an equal treatment First Amendment determination is set to be handed down in Lindenbaum

As ACLU attorney David Carey explained to Unprecedented today if the statutes like the TCPA can be applied in a discriminatory manner than free speech can be blocked as favored speakers are free to violate a restriction and disfavored speakers are unconstitutionally silenced.

This has HUGE implications for society at large and really threatens to make a nullity of the First Amendment protections we all hold so dear.

And, of course, the TCPA is right at the center of this existential battle over the fate of the First Amendment.

Why?

Because courts have shown time and again they are willing to throw out First Amendment protections when it comes to battling the robocall epidemic.

With these considerations in mind the ACLU has joined the critical fight to protect the First Amendment from robocall-induced erosion and submitted a BRILLIANT amicus brief in the critical Lindenbaum appeal, that you can read here.

We break down all of this with David, and hear from University of Michigan, 3L Jonah Rosenbaum about his impressive and critical assistance on the brief that helps highlight why the battle over Creasy is really a battle to protect our civil rights more broadly.

You will not want to miss this HUGE interview, which will drop next week right here.

To get you ready for the big interview, feel free to peruse my commentary on the First Amendment dimensions of the TCPA over the years, and my extremely-well read article on the dire impact of AAPC on the First Amendment landscape.

Chat soon.

Read the original here:
BREAKING: ACLU Representatives Join Unprecedented Podcast to Discuss HUGE Ramifications of Creasy/Lindenbaum/TCPA on First Amendment Rights - Lexology

New York last summer cemented into law the publics right to record police officers as they do their jobs.

After protests against the police killing of George Floyd in Minneapolis, Gov. Andrew M. Cuomo in June signed the New Yorkers Right to Monitor Act. The law affirms that citizens may video officers in public, as long as they do not hinder the officers actions.

Federal courts though not yet in the circuit covering New York have also ruled that recording police is covered by the First Amendment prohibition against government abridging freedom of speech or the press.

The Nassau and Suffolk police departments have each paid six-figure settlements within the last seven years to people that alleged their civil rights were violated following arrests while recording officers.

At least one case with similar allegations remains active.

With the prevalence of cameras both in the public and private sectors, members should assume that their actions are being recorded at all times, Nassau Police Commissioner Patrick Ryder wrote to officers in a memo last August.

The memo notes that members shall not interfere with individuals recording a law enforcement activity by intentionally preventing or attempting to prevent that person from recording.

Suffolks policy was updated in 2013, two years after officers arrested a videographer documenting the end of a police pursuit in Bohemia. The county paid the man, Phil Datz, $200,000 to settle a false arrest claim.

The department recognizes the taking of photographs and/or videos by private citizens and media personnel is permitted within areas open to general public access and occupancy, Suffolks policy reads.

In December 2019, Nassau County paid $175,000 to settle civil rights claims by Kassim Oliver and Joanna Pippins, who alleged that they were tackled and arrested outside their North Bellmore home in 2012 because they were attempting to record officers struggle with a family member. The county in 2020 also agreed to pay $30,000 to Adonay Pineda Alcantara, who alleged that officers beat and arrested him after he picked up his cellphone to record a disturbance between police and partygoers outside a New Cassel home in May 2016.

In the active case against Suffolk, Antonio Cruz, then 16, was gathered with friends in the backyard of a St. James home in April 2016 when police arrived and dispersed the crowd. After being directed across the street, Cruz began recording officers and attempted to photograph their badge numbers to document unprofessional behavior, according to his civil rights complaint.

In response, the complaint alleged, the officers threw him to the ground and punched, kicked and struck him with a flashlight.

The county has engaged in settlement negotiations under a confidentiality order that bars parties to the lawsuit from disclosing details, according to court records. Cruzs attorney didnt respond to requests for comment.

Whats clear is that police cant just demand someone stop recording, said Stephen D. Solomon, a New York University professor of First Amendment law. There has to be some kind of interference by the person recording.

Constitutional law experts said that a bystander pointing a cellphone camera can unlawfully obstruct officers by, for example, making physical contact during a disturbance or ignoring an order to back up. On its own, taunting or commenting on an arrest while recording generally does not justify arrest, the experts said.

John Jay College of Criminal Justice Professor Hermann Walz said he believes most officers accept being recorded, even if some react negatively.

When you watch some of these videos, clearly they dont want to be taped, said Walz, a former prosecutor in Brooklyn and Queens. But I dont think they care as much anymore, because if theyre realistic, they cant do anything about it.

MAIN STORY Cameras and consequences

See more here:
Courts: Bystanders have right to record police under the First Amendment - Newsday