Category Archives: First Amendment

By Claudia Yaw

The (Centralia) Chronicle

After a heated and lengthy debate, the state House of Representatives passed a bill this weekend prohibiting open carry on Capitol grounds or at permitted demonstrations across the state.

The 57-40 vote means the bill clears a major hurdle, and if the Senate concurs with adopted amendments, the bill heads to the governors desk to be signed into law.

On the House floor this weekend, Democrats said the bill balances first and second amendment rights by preserving space for protesters to assemble without fear of intimidation. The Capitol grounds are traditionally where constituents have gathered to protest and show support for issues considered by lawmakers.

Southwest Washingtons Republican lawmakers stood fast in their opposition. Ultimately, 19th District state Rep. Jim Walsh, R-Aberdeen, refused to cast a vote.

I refuse to vote on this bill, Madam Speaker. Its unconstitutional, he said.

Walsh, who called debate on the bill a profound matter, suggested that it could embolden sexual predators and encourage bad actors to terrorize citizens and attack law enforcement officers.

The staunch conservative also referenced the recent stabbing of a Thurston County Sheriffs Deputy in Yelm an incident unrelated to any demonstration saying we get there by trying to draw equivalence between feelings of intimidation and foundational rights to self protection.

20th District State Rep. Ed Orcutt R-Kalama, added that many folks who open carry at demonstrations are not threatening in any way.

Thats what Im hearing from my constituents: Why are you turning me into a criminal? he told lawmakers.

The legislation comes after months of what became regular armed demonstrations at the Capitol building. It also comes on the heels of armed protesters breaking through the gates of the governors mansion, as well as an incident last year in which more than 100 armed, angry and unpermitted demonstrators made their way into the statehouse.

Rep. Drew Hansen, D-Bainbridge Island, pointed to similar laws that prohibit firearms during court proceedings in order to insulate judicial proceedings from intimidation.

The right to petition for redress of grievances is no less worthy of that protection, he said.

Several Republicans argued that, under the bill, unknowing citizens could find themselves in zones where carrying weapons is criminalized. Many others said that brandishing weapons is not only a Second Amendment right, but a First Amendment right.

Rep. Tana Senn, D-Mercer Island, who introduced similar legislation last year, argued that civil discourse critical to democracy does not require the type of tactical gear and long guns that have become commonplace at demonstrations. She pointed to the incident last February in which supporters of Rep. Matt Shea ousted by his colleagues after he was found to have planned acts of domestic terrorism flooded the Capitol building.

These people were here banging on this House chambers doors, shouting for (Shea). We and our staff were told to shelter in place or leave the premises if we could, Senn said. Is this political speech? Or intimidation versus debate?

Read the original here:
Rep. Walsh refuses to vote as House approves firearms ban at Capitol grounds - The Daily World

When is a students sexuality a fit topic for classroom debate?

All day, every day, at least according to the Sixth Circuit which ruled last week that a university violated a professors First Amendment rights by forcing him to use appropriate pronouns for students in his class. Because academic freedom to discuss a hotly contested matter of public concern makes an individual students gender a fit topic for classroom debate.

Professor Meriwether, a professor at Shawnee State University is a devout Christian who strives to live out his faith each day and believes that God created human beings as either male or female, that this sex is fixed in each person from the moment of conception, and that it cannot be changed, regardless of an individuals feelings or desires.

Being faithful to his religion was never a problem at Shawnee State, Judge Amul Thapar recounts ominously. But in 2016, things changed.

UH OH. What changed? Well, heres how Prof. Meriwether described it in an opinion piece at The Hill.

On the first day of my political philosophy class at Shawnee State University in the spring of 2019, a biologically male student raised his hand and I called on him, unwittingly using the now-incendiary words, Yes, sir.

Because the real victim here is the teacher who refused to address a female student using appropriate pronouns, not the student who was singled out for repeated misidentification or addressed only by her last name when everyone else was Ms. X or Mr. Y, a Socratic practice Prof. Meriwether insists is vital to help[] them view the academic enterprise as a serious, weighty endeavor and foster an atmosphere of seriousness and mutual respect.

Mutual respect being the professors highest priority, obviously.

The school told Prof. Meriwether to cut it out. He could either refer to all students by their last names only, something the court refers to as a practical impossibility that would also alter the pedagogical environment in his classroom, or he could just treat the student the way he did every other woman in the room, even though doing so would violate Meriwethers religious beliefs.

And even though the Supreme Court already ruled that discrimination on the basis of gender identity violates Title VIIs prohibition on discrimination on the basis of sex, the Sixth Circuit is still dribbling out nonsense about the publics interest in exposing our future leaders to different viewpoints.

Wouldnt these future leaders benefit from forcing one of their cohort to defend her gender identity via robust and insightful in-class discussion with the teacher every time she was called on?

Judge Thapar is so committed to the bit that he invents a strawman university which might order teachers to misgender all students, codifying sex discrimination into university code and inviting a million anti-discrimination lawsuits. It could happen!

Remember, too, that the universitys position on titles and pronouns goes both ways. By defendants logic, a university could likewise prohibit professors from addressing university students by their preferred gender pronounsno matter the professors own views

Then the court goes on to endorse, not just the right of academics to express personal opinions on issues of gender identity, but the right to treat students differently on the basis of those opinions.

Meriwether did just that in refusing to use gender-identity-based pronouns. And the point of his speech (or his refusal to speak in a particular manner) was to convey a message. Id. at 1187. Taken in context, his speech concerns a struggle over the social control of language in a crucial debate about the nature and foundation, or indeed real existence, of the sexes. Professors Amicus Br. at 1. That is, his mode of address was the message.

Referring to it as a Hobsons Choice between adhering to the universitys orthodoxy or betraying his religious faith, the court finds that the university policy violates both the Free Exercise Clause and Freedom of Speech. Because if you cant treat trans women differently from every other woman, then the woke terrorists win.

Not to put too fine a point on it, this opinion isfucking gross. Fingers crossed for a better en banc panel.

Meriwether v. Hartop

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

Read the original:
Sixth Circuit Rules That Religious Freedom Entitles Professor To Debate Students Gender Identity In Class - Above the Law

The attorney for Karl Manke says the Owosso barber wont pay $9,000 in fines ordered by a state professional board. The board found Manke violated state COVID-19 restrictions as well as other health rules.

Half the citations were aimed specifically at a protest last May. Manke and other barbers and stylists cut hair in front of the state Capitol.

David Kallman is Mankes attorney.

Thats a clear violation of his First Amendment rights to free speech and to protest, and thats what he did and theyre imposing fines for simply exercising his 1st Amendment rights.

Kallman said other sanctions were for minor violations that dont deserve such heavy penalties.

I mean $6,000 of the $9,000 in fines are for Operation Haircut and Karl cutting hair at the state Capitol," Kallman said. "They were not these minor violations. They were the protests that happened at the Capitol."

Kallman said the Capitol protests are protected by the First Amendment. He says a court challenge to the fines will be filed in Shiawassee County.

See the rest here:
Attorney: Owosso Barber Won't Pay $9000 In Fines Following 'Operation Haircut' Protest - WKAR

IOWA CITY University of Iowa administrators should have known better when they discriminated against religious student groups several years ago amid an uproar over a Christian organizations refusal to let a gay member become a leader of the group, a federal appeals court ruled Monday.

Nearly four years after the Business Leaders in Christ student group sued the UI for violating its free-speech, free-association and free-exercise rights by deregistering it for barring a gay member from a leadership post, a U.S. Court of Appeals found individual UI officials can be held personally accountable.

A District Court in 2018 had ruled they could not granting them qualified immunity because the law was not clearly established. But the 8th Circuit Court of Appeals disagreed at least regarding the free-speech and free-association claims from the student group, which goes by BLinC.

We note at the outset what is not at issue in this appeal. The university defendants have not appealed the District Courts holding that they violated BLinCs First Amendment rights to free speech, expressive association, and free exercise through their disparate application of the universitys Human Rights Policy, according to a majority opinion from the three judges. Instead, the focus of this appeal is limited to whether, for purposes of qualified immunity, the law was clearly established that the individual defendants conduct violated those rights.

The majority agreed the law was clear on BLinCs free-speech and free-association claims, but not its free-exercise assertions, making UI administrators liable for two of the three issues.

In a statement, the UI said it is currently reviewing the decision and its options.

Mondays decision doesnt necessarily mean individual UI administrators will have to pay the defendants any money.

This is not a big money case, said Daniel Blomberg, senior counsel for the Washington, D.C.-based Becket Fund for Religious Liberty, representing BLinC.

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What was at issue was making sure this doesnt happen again, he said. Thats what makes the ruling today so significant is that it sends a message. Not only that a constitutional violation occurred but that its clearly established that this kind of selective enforcement violates the First Amendment.

That, Blomberg said, is precedent-setting.

Thats going to be very important for religious student groups across the country, and at the University of Iowa, he said.

While the appellate court judges didnt agree the law was clear on BLinCs free-exercise assertions one judge, Jonathan A. Kobes, argued it was.

I write separately because I think the law is clearly established on its free exercise claim, too, Kobes wrote. The individual defendants choice to deny BLinC an exemption from the Human Rights Policy while allowing exemptions for other secular and religious groups (that they approve of) shows that they sought to advance their interests only against specific religious conduct.

He argued BLinC should have been entitled to the benefits afforded other student groups, including secular ones allowed to limit leadership posts to those who affirm their beliefs or who meet gender or racial qualifications,

The purpose of qualified immunity is to shield good-faith actors who make mistaken judgments about unresolved issues of law, and it protects all but the plainly incompetent or those who knowingly violate the law, which Kobes argued describes the UI administrators who had more than fair warning that their conduct was unconstitutional.

The law is clear: state organizations may not target religious groups for differential treatment or withhold an otherwise available benefit solely because they are religious, he wrote. That is what happened here. The individual defendants may pick their poison: they are either plainly incompetent or they knowingly violated the Constitution. Either way, they should not get qualified immunity.

The decision comes amid a state legislative session rife with debate over free-speech issues across Iowas public universities including Republican bills and oversight hearings aimed at improving the campus climate for conservative students, faculty, and staff.

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Rep. Bobby Kaufmann, R-Wilton, is among legislators who have hammered the universities for disparate treatment of conservatives. This court ruling is more confirmation of his constituents concerns, he said Monday.

This just is further proof that on university campuses in Iowa, there seems to be two different sets of rules one for conservative students and one for everybody else, he said. This is unacceptable. It needs to stop. And it will stop.

Comments: (319) 339-3158; vanessa.miller@thegazette.com

Go here to see the original:
Court: University of Iowa officials can be held liable for First Amendment violations - The Gazette

BALTIMORE U.S. Rep. Andy Harris, R-Md.-1st, is upset with government officials for cracking down.on church services over violations of COVID-19 orders.

Harris is a Republican representing the Eastern Shore and areas near Baltimore.

He is criticizing Baltimore officials over trying to shut down and restrict services at Greater Grace World Outreach Church in northwest Baltimore over alleged violations of COVID orders. State and local mask and social distancing orders apply to churches and other houses of worship.

Regardless of what this congregation did, the government has no right to shut them down. Anything along that line is a clear and gross violation of First Amendment freedom, Harris said in a statement.

The church held in-person services on Sunday. Baltimore city allows for churches to meet at 25% capacity with plans to go to 50% on March 26.

We just are thankful we can assemble tonight, said Thomas Schaller, senior pastor for Greater Grace World Outreach Church during services on Sunday.

We want to say to the city of Baltimore that we are on the same team. That we love Baltimore, Schaller said.Baltimore is our home. So we care. We are praying for our government authorities, he said.

The church has been warned and restricted over violations of the citys COVID orders related to masks and social distancing.

Schaller said he feels the church should welcome those without masks along with those who want to wear masks. In my heart, I say you are welcome, he said of the unmasked at a recent service. He said the church has canceled or changed numerous events to abide by COVID orders.

Many of us dont care about it anymore. We are hugging and kissing. We are embracing and living, he said referring to the pandemic.

Gov. Larry Hogan has lifted statewide COVID capacity restrictions on churches including on the Eastern Shore. But six-foot social distancing rules hamper a number of churches ability to fully reopen. The U.S. Centers for Disease Control has eased social distancing rules for K-12 schools to three feet for elementary schools and for middle and high schools with lower rates of the virus. Restaurants owners and churches would like to see six-foot social distancing rules revisited for them also.

Baltimore city has also kept more restrictive COVID rules than the state orders though some of those local restrictions are being eased some by Mayor Brandon Scott.

Stefanie Mavronis, deputy director of communications for Mayor Scott, said the city has been meeting with the church about its reopening plans and would continue to enforce city COVID orders including related to masks.

The mayors office and health department met with Greater Grace Church last week. Since then, the health department has received the churchs safety plan for Easter and anticipates a general reopening plan in the near future. The city will continue to enforce the mayors executive order, which is rooted in the public health data and in line with the statewide mask requirement. We remain encouraged by the vast majority of faith institutions that continue to find ways to worship safely during this pandemic, she said.

Still, Harris said government officials especially in Baltimore should not be restricting church and religious services because of COVID orders.

Its truly disturbing to hear government officials chose to completely shutdown a church in response to alleged COVID capacity or mask regulations. Irrespective of what may have been done, this is a gross and egregious violation of the First Amendment. When it says government shall make no law prohibiting the free exercise of religion, the Constitutional authors didnt say a public health emergency was an exception which the Supreme Court has made quite clear in recent rulings. said Harris. The right to practice our faith is essential, and shuttering a congregation for alleged violations of this caliber shows what those in charge really think about individuals practicing their faith. With drugs and violent crime rampant, the problem in Baltimore City is not having too many church goers.

There have been 7,999 deaths attributed to COVID in Maryland since the pandemic began. That includes 14 new deaths reported Monday, March 22 by the Maryland Department of Health.

More here:
'Clear and gross violation of First Amendment freedom': Andy Harris faults government over COVID battle with church - KPVI News 6

from the ooooooh-boy dept

Two years ago, Supreme Court Justice Clarence Thomas shocked a lot of people by arguing -- somewhat out of nowhere -- that the Supreme Court should revisit the NY Times v. Sullivan ruling. If you're unaware, that 1964 ruling is perhaps the most important and fundamental Supreme Court ruling regarding the 1st Amendment. It's the case that established a few key principles and tests that are incredibly important in stopping vexatious, censorial SLAPP suits -- often by those in power, against those who criticize.

Now, a DC Circuit appeals court judge -- and close friend of Thomas's -- is suggesting that the court toss that standard. And his reasons are... um... something quite incredible. Apparently, he's mad that the media and big tech are mean to Republicans, and he's worried that Fox News and Rupert Murdoch aren't doing enough to fight back against those evil libs, who are "abusing" the 1st Amendment to spew lies about Republicans. As you'll see, the case in question isn't even about the media, the internet, or Democrats/Republicans at all. It's about a permit in Liberia to drill for oil. Really. But there's some background to go through first.

The key part of the Sullivan case is that, if the plaintiff is considered a "public figure," then they need to show "actual malice" to prove defamation. The actual malice standard is widely misunderstood. As I've heard it said, "actual malice" requires no actual malice. It doesn't mean that the person making the statements really dislikes who they're talking about. It means that the person making the statements knew that the statements were false, or made the statements "with reckless disregard for the truth." Once again, "reckless disregard for the truth" has a specific meaning that is not what you might think. In various cases, the Supreme Court has made it clear that this means that the person either had a "high degree of awareness" that the statements are probably false or "entertained serious doubts as to the truth" of the statements. In other words, it's not just that they didn't do due diligence. It's that they did, found evidence suggesting the content was false, and then still published anyway.

This is, obviously, a high bar to get over. But that's on purpose. That's how defamation law fits under the 1st Amendment (some might argue that defamation law itself should violate the 1st Amendment as it is, blatantly, law regarding speech -- but by limiting it to the most egregious situations, the courts have carved out how the two can fit together). Five years ago, 1st Amendment lawyer Ken White noted that there was no real concerted effort to change this standard, and it seemed unlikely that many judges would consider it.

Unlike, say, Roe v. Wade, nobody's been trying to chip away at Sullivan for 52 years. It's not a matter of controversy or pushback or questioning in judicial decisions. Though it's been the subject of academic debate, even judges with philosophical and structural quarrels with Sullivan apply it without suggesting it is vulnerable. Take the late Justice Scalia, for example. Scalia thought Sullivan was wrongly decided, but routinely applied it and its progeny in cases like the ones above. You can go shopping for judicial candidates whose writings or decisions suggest they will overturn Roe v. Wade, but it would be extremely difficult to find on... chemtrail-level, but several firm strides in that direction. Nor is the distinction between fact and opinion controversial at least not from conservatives. There's been some back and forth over whether opinion is absolutely protected (no) or whether it might be defamatory if it implies provably false facts (yes) but there's no conservative movement to make insults and hyperbole subject to defamation analysis. The closest anyone gets to that are liberal academics who want to reinterpret the First Amendment to allow prohibitions of "hate speech" and other "hurtful" words. It seems unlikely that Trump would appoint any of these.

In short, there's no big eager group of "overturn Sullivan" judges waiting in the wings to be sent to the Supreme Court. The few academics who argue that way are likely more extreme on other issues than Trump would want.

And that's why Clarence Thomas's attack on the Sullivan standard was so shocking two years ago. It came basically out of nowhere. Thomas tried to make it all about "originalism", suggesting that if the framers of the Constitution didn't set up different standards for public figures, neither should the Supreme Court. Indeed, what was motivating Thomas' anger at the Sullivan standard seemed to be... that it let too many people be mean to public figures. He even seemed to argue that defamation law should be flipped to be more protective of public figures, since apparently those public figures are delicate little flowers who can't be forced to face pointed criticism. From his statement:

Far from increasing a public figures burden in a defamation action, the common law deemed libels against public figures to be, if anything, more serious and injurious than ordinary libels. See 3 Blackstone *124 (Words also tending to scandalize a magistrate, or person in a public trust, are reputed more highly injurious than when spoken of a private man); 4 id., at *150 (defining libels as malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule (emphasis added)). Libel of a public official was deemed an offense most dangerous to the people, and deserv[ing of] punishment, because the people may be deceived and reject the best citizens to their great injury, and it may be to the loss of their liberties.

In the two years since he wrote that, thankfully, there's been little other movement in the courts to attack the Sullivan standard. Indeed, as White had suggested, any move to do so seems to be viewed as blatantly conspiratorial. However, now an appeals court judge has done exactly what Thomas seemed to be signaling he wanted. And, perhaps not surprisingly, that judge happens to be not just a close friend of Clarence Thomas, but the judge who convinced Clarence Thomas to become a judge in the first place.

Judge Laurence Silberman has been on the DC Circuit since 1985, and has been on "senior status" since 2000. But apparently he's got a real bone to pick with the Sullivan standard. In an absolutely incredible back-and-forth majority opinion and dissent in a defamation case, it is made quite clear that Silberman hates the Sullivan actual malice standard, believes the media is super biased and mean to conservatives, and is no fan of the two other judges on the panel, Judge Sri Srinivasan (currently the Chief Judge on the DC Circuit) and Judge David Tatel.

Both the majority opinion, by Tatel with Srinivasan joining, and the dissent, snipe at the other side in quite pointed ways. But we'll get to that. First, the details of the case. Without going too deep into the weeds, it involves a deal in which Exxon sought to buy an oil drilling license from Liberia. There had been concerns about corruption regarding oil licensing deals in Liberia in the past -- including the very specific plot that Exxon was seeking to drill in. Liberia had put together a committee to help oversee these kinds of negotiations. After the deal -- the largest ever for Liberia -- was completed, the National Oil Company of Liberia awarded bonuses to the negotiators on the committee. Two of those negotiators, Christiana Tah and Randolph McClain, were Liberia's Minister of Justice and the CEO of the National Oil Company of Liberia. Each received a $35,000 bonus.

Global Witness, a non-profit that tries to highlight corruption and human rights violations related to "natural resource exploitation" put out a report alleging that these bonuses were bribes to get the deal to go through. Accusing someone of accepting a bribe is, at least on its face, a much more serious claim and could actually be defamatory (unlike many cases we see where people scream defamation over opinions). However, this case ran into a big problem: the lack of actual malice, which allowed the district court to dismiss the case relatively quickly (as an aside, Global Witness also sought to use DC's anti-SLAPP law, but unfortunately since the DC Circuit has said for years that DC's anti-SLAPP law cannot be used in federal court that failed at both the district and the appeals court level).

Here, the majority opinion explains (in quite readable fashion!) the actual malice standard, and why Tah and McClain failed to establish it. For those who want a nice summary of how actual malice works, the opinion is a good summation:

The actual malice standard is famously daunting.McFarlane v. Esquire Magazine, 74 F.3d 1296, 1308 (D.C.Cir. 1996). A plaintiff must prove by clear and convincingevidence that the speaker made the statement withknowledge that it was false or with reckless disregard ofwhether it was false or not. Jankovic III, 822 F.3d at 58990(second part quoting New York Times Co., 376 U.S. at 27980).[A]lthough the concept of reckless disregard cannot be fullyencompassed in one infallible definition, the Supreme Courthas made clear that the defendant must have made the falsepublication with a high degree of awareness of probablefalsity, or must have entertained serious doubts as to the truthof his publication. Harte-Hanks Communications, Inc. v.Connaughton, 491 U.S. 657, 667 (1989) (alteration omitted)(internal quotation marks omitted); see also id. at 688 (usingthese formulations interchangeably). The speakers failure tomeet an objective standard of reasonableness is insufficient;rather the speaker must have actually harbored subjectivedoubt. Jankovic III, 822 F.3d at 589.

But soon after this, the barbs at Silberman begin. The ruling notes that Silberman seems to have his own objective in dissenting -- even highlighting that the plaintiffs in the case didn't even make the argument Silberman so desperately seems to want them to make.

The dissent thinks this is an easy case. In GlobalWitnesss story, the dissent asserts, Exxon was the briber,Dissenting Op. at 1, yet the report admits that Global Witnessha[d] no evidence that Exxon directed NOCAL to pay Liberianofficials, nor that Exxon knew such payments were occurring,Report at 31.

Critically, however, neither Tah nor McClain advancesthis theoryin their briefing to us, they never even mention thesentence on which the dissent relies. They make four specificarguments in support of their claim that Global Witnesspossessed actual malice, supra at 8, not one of which is thatGlobal Witness had no evidence that Exxon was the briber, andfor good reason. At most, the report implies that NOCAL, notExxon, was the briber, thus rendering any lack of evidence asto Exxons direction or knowledge of the payments totallyirrelevant.

The opinion then even calls out Silberman for trying to coax the lawyers to make the argument he wanted them to make instead of the argument they were actually making:

Indeed, when ourdissenting colleague surfaced his theory at oral argument, itwas so foreign to appellants counsel that our colleague had tospoon-feed him after he failed to get the initial hint. See OralArg. Tr. at 10 (Well, no, its worse. Isnt it stronger than that,counsel? We have no evidence.). As our dissenting colleaguehimself has made clear, we do not consider arguments notpresented to us. Diamond Walnut Growers, Inc. v. NLRB, 113F.3d 1259, 1263 (D.C. Cir. 1997) (en banc). Or put anotherway, appellate courts do not sit as self-directed boards of legalinquiry and research, but essentially as arbiters of legalquestions presented and argued by the parties before them.Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983).

Ooof. And, indeed, when you read the dissent, you can see why Tatel was so annoyed. Silberman pretty clearly has a point he wants to make and he's going to make it whether or not Tah and McClain raised the issue in the case or not. And that point is (1) the actual malice standard is bad, (2) mainstream media companies are bad because they support Democrats, (3) big tech is bad because it support Democrats, and (4) to some extent, Silberman thinks his colleagues on the bench are bad. Oh, but Fox News, Rupert Murdoch, and his buddy Clarence Thomas are all good. It's... quite incredible. I mean, check out this statement:

My disagreement with the district court is limited to theactual malice question (my disagreement with the Majority ismuch broader).

A key part of the disagreement is whether Exxon or NOCAL was considered the "briber" in this case, though the reason that's important seems fairly tortured, so I won't even get into it here. Suffice it to say, Silberman believes that the story Global Witness wrote is "inherently implausible" and therefore that should satisfy the standard for defamation. But in discussing it, Silberman again throws tremendous shade on his colleagues:

The Majoritys assertion that this argument was nevermade by the Appellants leads me to wonder whether wereceived the same briefs. In my copy, Appellants argue thatGlobal Witness subjectively knew that it had not been able todetermine whether the payments of $35,000 to Christiana Tahand Randolph McClain were corrupt bribery payments.Yet . . . Global Witness proceeded to present to readers thedefamatory message that in fact [] Tah and [] McClain hadtaken bribes. Appellant Br. 36 (emphasis in original). Thatsounds to me a whole lot like accusing Global Witness ofpublishing its story with no evidence to back it up. TheMajority, moreover, faults me for assessing the inherent(im)plausibility of Global Witnesss story, without a specificrequest from Tah and McClain to do so. But (as discussed)inherently implausible is a legal standard by which we assessAppellants argumentsnot an argument to be advanced.

And from there, Silberman is off to the races, he spends a few pages accusing the majority of making stuff up, before finally getting around to the point he really wants to make. He wants to take Justice Thomas up on the offer to get rid of the actual malice standard entirely:

After observing my colleagues efforts to stretch theactual malice rule like a rubber band, I am prompted to urge theoverruling of New York Times v. Sullivan. Justice Thomas hasalready persuasively demonstrated that New York Times was apolicy-driven decision masquerading as constitutional law. SeeMcKee v. Cosby, 139 S. Ct. 675 (2019) (Thomas, J., concurringin denial of certiorari). The holding has no relation to the text,history, or structure of the Constitution, and it baldlyconstitutionalized an area of law refined over centuries ofcommon law adjudication. See also Gertz v. Robert Welch,Inc., 418 U.S. 323, 38088 (1974) (White, J., dissenting). Aswith the rest of the opinion, the actual malice requirement wassimply cut from whole cloth. New York Times should beoverruled on these grounds alone.

He at least acknowledges that it would be "difficult" to get the Supreme Court to "overrule such a 'landmark' decision," noting correctly that it would "incur the wrath of press and media." And it would, because it would open up the media (and basically everyone else) to a bunch of censorial SLAPP suits. Silberman then reminisces about pushing the Supreme Court to overrule another "similarly illegitimate constitutional decision" -- one that has been quite important in allowing people whose civil rights were violated by police to seek redress. He goes on to whine that other judges, including then Supreme Court Justice Kennedy, got upset with him for urging such an overturning of precedent. Kennedy, responding to Silberman, suggested that "we must guard against disdain for the judicial system." Silberman seems to relish his contrarian position:

To the charge of disdain, I plead guilty. I readily admitthat I have little regard for holdings of the Court that dress uppolicymaking in constitutional garb. That is the real attack onthe Constitution, in whichit should go without sayingtheFramers chose to allocate political power to the politicalbranches. The notion that the Court should somehow act in apolicy role as a Council of Revision is illegitimate. See 1 TheRecords of the Federal Convention of 1787, at 138, 140 (MaxFarrand ed., 1911). It will be recalled that maintaining theBrezhnev doctrine strained the resources and legitimacy of theSoviet Union until it could no longer be sustained.

He then goes through the details of the Sullivan ruling, arguing that it was clear judicial activism, and insists that such a ruling would never have happened today. Then he complains that it has given the press way too much power:

There can be no doubt that theNew York Times case has increased the power of the media.Although the institutional press, it could be argued, needed thatprotection to cover the civil rights movement, that power is nowabused. In light of todays very different challenges, I doubtthe Court would invent the same rule.

As the case has subsequently been interpreted, it allowsthe press to cast false aspersions on public figures with nearimpunity.

And then it's all "those media orgs are so mean to my friends."

Although the bias against the Republican Partynotjust controversial individualsis rather shocking today, this isnot new; it is a long-term, secular trend going back at least tothe 70s. (I do not mean to defend or criticize the behavior ofany particular politician). Two of the three most influentialpapers (at least historically), The New York Times and TheWashington Post, are virtually Democratic Party broadsheets.And the news section of The Wall Street Journal leans in thesame direction. The orientation of these three papers isfollowed by The Associated Press and most large papers acrossthe country (such as the Los Angeles Times, Miami Herald, andBoston Globe). Nearly all televisionnetwork and cableisa Democratic Party trumpet. Even the government-supportedNational Public Radio follows along.

Uh... what?

Also, big tech is bad:

As has become apparent, Silicon Valley also has anenormous influence over the distribution of news. And itsimilarly filters news delivery in ways favorable to theDemocratic Party. See Kaitlyn Tiffany, Twitter Goofed It, TheAtlantic (2020) (Within a few hours, Facebook announced thatit would limit [a New York Post] storys spread on its platformwhile its third-party fact-checkers somehow investigated theinformation. Soon after, Twitter took an even more dramaticstance: Without immediate public explanation, it completelybanned users from posting the link to the story.).

What does this have to do with a case regarding oil drilling in Liberia? You know as much as I do. But don't worry, Judge Silberman wants you to know that at least there's Rupert Murdoch to step in and balance the scales at least somewhat. Really. I'm not kidding.

To be sure, there are a few notable exceptions toDemocratic Party ideological control: Fox News, The NewYork Post, and The Wall Street Journals editorial page. Itshould be sobering for those concerned about news bias thatthese institutions are controlled by a single man and his son.Will a lone holdout remain in what is otherwise a frighteninglyorthodox media culture? After all, there are serious efforts tomuzzle Fox News. And although upstart (mainly online)conservative networks have emerged in recent years, theirvisibility has been decidedly curtailed by Social Media, eitherby direct bans or content-based censorship.

He also has another footnote attacking the 1st Amendment rights of the internet companies, which he insists -- without any actual evidence, because none exists -- are "biased" against his Republican friends.

Of course, I do not take a position on the legality of bigtechs behavior. Some emphasize these companies are private andtherefore not subject to the First Amendment. Yeteven if correctit is not an adequate excuse for big techs bias. The First Amendmentis more than just a legal provision: It embodies the most importantvalue of American Democracy. Repression of political speech bylarge institutions with market power therefore isI say thisadvisedlyfundamentally un-American. As one who lived throughthe McCarthy era, it is hard to fathom how honorable men andwomen can support such actions. One would hope that someone, inany institution, would emulate Margaret Chase Smith.

He then proceeds to complain about how the media and big tech are helping Democrats.

There can be little question that the overwhelminguniformity of news bias in the United States has an enormouspolitical impact. That was empirically and persuasivelydemonstrated in Tim Grosecloses insightful book, Left Turn:How Liberal Media Bias Distorts the American Mind (2011).Professor Groseclose showed that media bias is significantly tothe left. Id. at 192197; see also id. at 16977. And thisdistorted market has the effect, according to Groseclose, ofaiding Democratic Party candidates by 810% in the typicalelection. Id. at ix, 20133. And now, a decade after this bookspublication, the press and media do not even pretend to beneutral news services.

It should be borne in mind that the first step taken byany potential authoritarian or dictatorial regime is to gaincontrol of communications, particularly the delivery of news.It is fair to conclude, therefore, that one-party control of thepress and media is a threat to a viable democracy. It may evengive rise to countervailing extremism. The First Amendmentguarantees a free press to foster a vibrant trade in ideas. But abiased press can distort the marketplace. And when the mediahas proven its willingnessif not eagernessto so distort, it isa profound mistake to stand by unjustified legal rules that serveonly to enhance the press power.

And that's how it closes. Even if there are legitimate reasons to question the "actual malice" standard, to go on an unhinged Fox News-style rant about "anti-conservative bias" seems particularly ridiculous. It sure looks like Silberman has been spending a bit too much time believing propaganda, and is seeking to torpedo a free press in response.

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Filed Under: 1st amendment, actual malice, bias, big tech, clarence thomas, dc circuit, free speech, laurence silberman, liberia, media, news, oil drilling, section 230, supreme court

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Appeals Court Judge Attacks Fundamental Principle Of 1st Amendment Law, Because He Thinks The Media Likes Democrats Too Much - Techdirt

Forum held in response to Nov. 2019 protests, opposing views shared

Comparing:Revision 12-C (Rubino, Jeremy)vs.Revision 12-C (Rubino, Jeremy)

In an effort to continue the discussion surrounding students constitutional rights on-campus, multiple Binghamton University groups teamed up to facilitate a conversation among student panelists about campus police and First Amendment rights.

Policing the First Amendment: A Roundtable Debate on Police and First Amendment Rights was a collaboration between the BU Scholars, BU Speech and Debate, Center for Civic Engagement (CCE), the Graduate Student Organization (GSO), Multicultural Resource Center (MRC), Student Association (SA) and the UDiversity Educational Institute. The forum discussed policing for the campus community and the right to assemble, specifically protected by the First Amendment of the U.S. Constitution. Sponsors and hosts of this forum were the CCE and the Division of Diversity Equity and Inclusion (DEI). Joseph Leeson-Schatz, director of BU Speech and Debate and lecturer of English, was the primary organizer and moderator.

Brian Rose, vice president for student affairs, provided the opening remarks for the forum, stating that he was impressed by the attendance and audience questions.

I am grateful to [the sponsors and hosts] and to the student participants for modeling how we can discuss sometimes divisive questions in a manner that allows us to listen to and learn from each other, Rose said. As [Leeson-Schatz] noted in pointing to an April program, this is not a single event, but rather part of a larger effort to continue to provide similar opportunities for community dialogue. I hope the takeaways are that we can talk to one another from different points of view while still respecting each other and that we should always be open to reexamining our own perspectives.

Nicole Sirju-Johnson, director of the MRC and assistant vice president for DEI, said the part of the series being held April 14 will be a campus deliberation on First Amendment rights. The entire campus community is invited to attend. The committee is currently recruiting interested individuals and will provide training to those wishing to serve as deliberation facilitators.

According to Leeson-Schatz, the forum was in response to two student-led protests that occurred on-campus in November 2019. On Nov. 14, 2019, approximately 200 students protested the BU College Republicans and Turning Point USAs tabling event in support of gun rights hours after a high school shooting in Santa Clarita, California. On Nov. 18, 2019, economist Arthur Laffer, who worked as an adviser to former President Donald Trump and former President Ronald Reagan, was scheduled to speak at the BU College Republicans and Young Americas Foundations (YAF) Trump, Tariffs, Trade Wars event. Over 200 attendees at the lecture were part of a sit-in protest, which resulted in Laffer being removed from the lecture hall by Binghamtons New York State University Police (UPD) and two hired protective agents from Pinkerton Consulting & Investigations, Inc.

Following these events, the Young Americas Foundation (YAF), a national conservative youth organization, filed a civil rights lawsuit against those they felt were violating their First and 14th Amendment rights. Other plaintiffs listed on the court document include the BU College Republicans and Jon Lizak, then president of the BU College Republicans and a sophomore majoring in business administration. BU President Harvey Stenger, Rose, UPD Chief John Pelletier, BU College Progressives, the SA and Progressive Leaders of Tomorrow (PLOT) were named as defendants in court documents.

Sirju-Johnson said this most recent forum was part of the Universitys effort to give students an opportunity to explore campus safety, including freedom of speech, the limits of the First Amendment rights and student engagement with campus police.

Since the November 2019 incidents, more recently, several racist incidents have taken place on-campus, some of which have centered on freedom of speech, Sirju-Johnson said. And while we do not condone the vile comments made, we thought it important to have a discussion on some of the tenets of free speech.

Prior to this weeks forum, the University had put together a roundtable free speech debate in the fall [link here: https://www.bupipedream.com/news/118842/auto-draft-571/%5D. Leeson-Schatz said topics of the most recent debate were decided based on last semesters roundtable and by talking with students directly through the planning committee. Students were also consulted directly through the CCE and MRC. The two most requested topics were centered around free speech and police brutality.

We workshopped the specific questions with our group and through communicating with students, and then finally our speakers, Leeson-Schatz said. Our hope was to create a series of events that produced an intelligent dialogue between the various perspectives to enable a better understanding and a path forward. I think it was great to see the diversity of the panel agree on certain aspects of the topics and disagree on others, but in all situations have an understanding of what the other side was saying and treating them with respect.

Coleen Watson, a social, political, ethical and legal (SPEL) philosophy doctoral candidate and SPEL philosophy GSO president, was a panelist at the forum. She said the debate was constructive and hopes the forum will empower students to discuss controversial issues with each other and improve the campus environment.

I wanted to share my views that I think are both nuanced and correct while hearing out what others had to say, Watson said. At the end of this, I was pretty surprised how much we all agreed on despite ostensibly being from all over the political spectrum.

Logan Blakeslee, another panelist at the forum and a sophomore majoring in history, agreed the debate was a collegial experience.

I hope [attendees] took away the idea that there is hope for compromise and mutual understanding, Blakeslee said. Pitting liberal and conservative students against on another constantly is unproductive, whereas the recent debate showed that there is common ground where a reasonable solution can be found to modern problems.

Kate Marin, a third panelist and a junior double-majoring in psychology and linguistics, proposed an alternative security team outside the context of an actual police force. According to Marin, this group would operate under the authority of the University. All panelists reached a consensus that this alternative force would have its benefits.

Our goal is to continue the dialogue on the importance of listening to one another, even when we have varying, polarizing opinions, Sirju-Johnson said. To continue the conversation about differing viewpoints and yet, create a space and time for members of the community to come together to listen to one another respectfully all of which can be done to bridge relationships.

Riccardo Monico contributed reporting to this article.

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Roundtable debate discusses UPD and First Amendment rights - Binghamton University Pipe Dream

Despite the lack of any actual confusion, other states have waged their own wars on plant-based food. Arkansas, Kentucky, Louisiana, Missouri, Montana, North Dakota, South Carolina, South Dakota and Wyoming all impose rules governing the use of specific meaty words.

Not to be outdone, federal lawmakers tried to force companies to put the word imitation on plant-based meat products in 2019. And the U.S. Food and Drug Administration has threatened to crack down on companies that describe almond milk as milk.

Some of these efforts twist the common meaning of words, essentially changing the dictionary. Prior to a 2019 lawsuit from the Institute for Justice in Mississippi, lawmakers even attempted to ban phrases like veggie burger.

Besides being unconstitutional, such oversight is expensive for companies that have to design different packages for different states. On a more basic level, the rules insult the intelligence of grocery shoppers.

Companies worried about consumer complaints sometimes create over-the-top disclaimers voluntarily. They warn that gasoline is flammable, blades are sharp and ice is slippery. Comedian Chris Porter makes fun of the absurdity, but overeager lawmakers miss the joke.

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How the meat lobby is waging war on the First Amendment - Crain's Chicago Business

California Attorney General Xavier Becerra says he wants to prevent charitable fraud, while the House Democrats who approved the For the People Act last week say they want to fortify democracy, fight corruption and block foreign interference in U.S. elections. But the methods they have chosen pose a serious threat to freedom of speech and freedom of association.

Under a policy at the center of a First Amendment case the Supreme Court will hear this term, Becerra requires that all 115,000 nonprofit organizations operating in California report information about their major donors. That information is supposed to be confidential, but in practice it is not, because California has a history of accidentally posting it online and making it easily available to anyone with rudimentary hacking skills.

In a 1958 case involving Alabamas demand that the National Association for the Advancement of Colored People disclose its membership lists, the Supreme Court recognized that such requirements can have a chilling effect on freedom of association, because they expose supporters of controversial groups to harassment and threats of violence.

When the government compels disclosure of organizational information that may result in reprisals against and hostility to the members, the Court has said, it must show that the policy is substantially related to a compelling government interest and narrowly tailored for that purpose.

Becerras blanket demand for the names and addresses of nonprofit donors plainly fails that test, since he can always seek such information from an organization that is actually suspected of fraud.

The challenge to his overreaching nosiness has attracted support from a broad coalition of civil liberties groups and nonprofits representing all sorts of causes and political preferences.

Unlike Becerra, the legislators who supported the For the People Act are not even pretending to keep the information required by the bill confidential. To the contrary, they aim to force public disclosure of donor information through a sweeping definition of election-related speech.

The 791-page bill, which passed the House by a party-line vote of 220 to 210, expands the definition of electioneering communications to include any communication which is placed or promoted for a fee on an online platform and mentions a federal officeholder or candidate within 30 days of a primary or 60 days of a general election.

It also expands the category of federally regulated public communications to cover any paid internet or paid digital communication, which apparently would include organizational websites and staff-written social media posts.

So-called electioneering communications need not target a politicians constituents or advocate his election or defeat. They would nevertheless have to reveal the organizations top donors, whether or not they sponsored the message or approved of its content.

The bill also would require that nonprofits file publicly accessible reports of vaguely defined campaign-related disbursements, including donor information, with the Federal Election Commission. The reports would declare support of or opposition to particular candidates, even when the organizations have taken no such stand.

For example, says Institute for Free Speech Senior Fellow Eric Wang, left-leaning organizations calling on President Biden to adopt a more left-leaning agenda could be required to affirmatively and publicly declare to the FEC that their ads oppose Biden, even when that is not actually true.

The bill also requires a public file of expenditures for online ads related to any national legislative issue of public importance, which Wang warns may expose organizers of contentious but important political causes like Black Lives Matter to harassment by opponents or hostile government officials.

Such requirements are bound to make advocacy groups, especially small ones, think twice before speaking out on the issues that motivate them and discourage donors from supporting them. But that seems to be the point.

Senate Majority Leader Chuck Schumer, D-N.Y., thinks its good to have a deterrent effect when somebody is trying to influence government for their purposes. Call that policy what you like, but it assuredly is not for the people.

Jacob Sullum is a senior editor at Reason magazine.

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Requirements are an assault on the First Amendment - Antelope Valley Press

With Judge Merrick Garlands confirmation as attorney general this past Wednesday, incoming leadership at the Justice Department will confront a number of tricky cases and issues inherited from the Trump administration implicating technology and media law. Reporters Committee Executive Director Bruce Brown and TPFP Director Gabe Rottman published a comprehensive survey of these matters inLawfarelast week.

The first set of cases deals with the Trump administrations bans of Chinese-owned social media apps WeChat and TikTok. The Biden Justice Department has sought to stay proceedings in these cases, potentially indicating a rethinking of the underlying executive orders. The cases challenge the Trump administrations attempts to shutter the apps through emergency international economic powers on the governments theory that business-to-business transactions can be prohibited without First Amendment scrutiny. The Justice Departments position would logically extend to use of emergency economic powers to prevent a newspaper from purchasing basic business supplies, and, in so doing, interfere with its publication so a possible rethinking of this litigation position would be a welcome development for the press.

The First Amendment challenge to then-President Trumps blocking of Twitter followers is also in a state of limbo, thanks to a debate about what renders a case moot, or unhearable, by a court. This challenge is based on the theory that the former president used his Twitter account for official business, thus creating a public forum from which he, as a government official, cant exclude anyone because of their viewpoints. The outgoing Trump administrationaskedthe Supreme Court to moot the case and void the ruling by the U.S. Court of Appeals for the Second Circuit, which validated this First Amendment theory. The Knight First Amendment Institute at Columbia University, which brought the suit, agreed that the case is moot but asked that the Second Circuits decision stand.

The Biden administration also may push for changes to Section 230 of the Communications Decency Act. In January 2020, then-presidential-candidate Bidenstatedthat Section 230 should be revoked, immediately. Section 230 shields online platforms from liability for content posted or hosted by third parties. The law has consequences for news outlets, which may host comment sections or citizen-journalism sections. Regardless of whether the Biden administration actually takes up this revoke position, momentum for Section 230 reform continues to grow and the Justice Department is likely to continue some work on the topic.

The Justice Department will also inherit long-standing policy debates about Fourth Amendment rights, including a push for law enforcement access to encrypted data pursuant to a warrant or other legal process. Both the Obama and Trump administrations supported these backdoors, and the Biden Justice Department will likely take a similar stance. Indeed, intestimonybefore the Senate Judiciary Committee earlier this month, FBI Director Christopher Wray explicitly called for lawful access to encrypted communications.

Like what youve read?Sign up to get the full This Week in Technology + Press Freedom newsletter delivered straight to your inbox!

The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy combining the law, policy analysis, and public education to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Mailyn Fidler.

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Biden Justice Department inherits tricky tech, media law issues - Reporters Committee for Freedom of the Press