Category Archives: First Amendment

Is America still governed by the Constitution? Back in the 1980s, the Columbia Law Review advocated clarifying the law to protect journalists First Amendment, rights even on private property. Just today, though, Blaze reporter Steve Baker was wasarrested by the FBI for his January 6 investigations, on charges including knowingly entering a restricted building.

Blaze commentator Auron Macintyre fears that this documents glory days are over: Whatever we are governed by now, he said, it is not the Constitution. He may have a point: this isnt the only recent instance of progressive concerns that the Constitution is an obstacle to American values. According to MSNBC legal analyst Barbara McQuade, the First Amendment is an obstacle to truth. Promoting her new book in conversation with MSNBC anchor Rachel Maddow, McQuade declared that Americas deep-rooted cultural commitment to free speech meant disinformation was rampant, while attempts to impose common-sense solutions implicitly, McQuades preferred restrictions on speech were impossible in that context, due to widespread resistance to censorship.

Wherever people stand on the desirability of free speech, this illustrates a growing crisis in one of the modern democratic (which is to say, American) worlds most cherished beliefs: that as long as you have a robustly written constitution, the political order will remain stable forever. But back at the end of the eighteenth century, the Savoyard reactionary Joseph de Maistre argued in Studies on Sovereignty (1794) that the real constitution of a people is actually only secondarily written down; the true, living constitution emerges from a peoples dispositions, habits, accumulated cultural patterns and everyday conditions. And these, he argued, are only written down when they become contested in a way that requires clarification. Conversely, its possible to impose any paper constitution you like on a people for which its ill-suited, and find it ignored in practice.

It is characteristically American, though, to imagine it works the other way round. This view of the relation between the aggregate culture of a people, and that cultures achievable political forms, has produced some of Americas more quixotic recent international adventures, such as the attempt to impose democratic constitutional government on the tribal peoples of Afghanistan.

Now, though, a similar principle is at work in the Land of the Free itself. There, a growing chorus of progressive voices now critiques the American Constitution itself as an impediment to American values. McQuade isnt the first: just a few days earlier, Politicos Heidi Przybyla framed perhaps the central premise of post-revolutionary America that individual rights are divinely given as not a sacred foundational principle so much as a political manoeuvre by the progressive worlds new bogeyman, so-called Christian nationalism.

Never mind that the inalienable rights to which men are, in the Declaration of Independence, entitled, are described there as having been endowed by their Creator: Nature and Natures God. For Przybyla, the fact that it falls to fallible humans to interpret those divine givens means this supposed origin is critically vulnerable to weaponisation by malign (that is, conservative) forces.

American culture is revolutionary by design, and structurally opposed to the kind of demographic homogeneity that might support a stable unwritten constitution over the long term. It was thus always predisposed to support radical rewritings even over a relatively short national lifespan as America to date. Indeed, if critics such as Christopher Caldwell are correct, such a transformation already took place in 1964, when the Civil Rights Act was passed.

But even if this is so, the conservative backlash to commentators such as McQuade and Przybyla makes clear that the contest is far from over. So it remains to be seen what kind of arrangements will emerge, in practice, from the unwritten constitution of the American people as it now is, rather than as it was in 1787.

Link:
Progressive attacks on the US constitution escalate - UnHerd

The U.S. Court of Appeals for the Eighth Circuit recently affirmed a judgment that the city of St. Louis violated the First Amendment because its now-former President of the Board of Aldermen, Lewis Reed, blocked on his Twitter account someone who posted a hostile tweet. See Felts v. Green, 91 F.4th 938 (8th Cir. 2024). The district court had classified Reeds account as a designated public forum and the blocking action as a form of viewpoint discrimination. The case did not become moot either when Reed unblocked the poster after she filed her complaint or when Reed resigned. The Eighth Circuits substantive holding was that the vast powers of the President of the Board of Aldermen made him the final decisionmaker for thecity for Monell liability purposes, even for something like blocking a social-media user.

The case involves an account on the social-media platform formerly known as Twitter. Reed created the account in 2009. According to the district courts findings, the account was public, which means that it could be accessed by any user who was not blocked by the owner. When a user is blocked from a public account, the user cannot view the account, react to posts (tweets) by liking them, replying, or retweeting them, or participate in comment threads under the account.

See the rest here:
Eighth Circuit: Fun With the First Amendment - Law.com

State Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington Washington D.C. West Virginia Wisconsin Wyoming Puerto Rico US Virgin Islands Armed Forces Americas Armed Forces Pacific Armed Forces Europe Northern Mariana Islands Marshall Islands American Samoa Federated States of Micronesia Guam Palau Alberta, Canada British Columbia, Canada Manitoba, Canada New Brunswick, Canada Newfoundland, Canada Nova Scotia, Canada Northwest Territories, Canada Nunavut, Canada Ontario, Canada Prince Edward Island, Canada Quebec, Canada Saskatchewan, Canada Yukon Territory, Canada

Zip Code

Country United States of America US Virgin Islands United States Minor Outlying Islands Canada Mexico, United Mexican States Bahamas, Commonwealth of the Cuba, Republic of Dominican Republic Haiti, Republic of Jamaica Afghanistan Albania, People's Socialist Republic of Algeria, People's Democratic Republic of American Samoa Andorra, Principality of Angola, Republic of Anguilla Antarctica (the territory South of 60 deg S) Antigua and Barbuda Argentina, Argentine Republic Armenia Aruba Australia, Commonwealth of Austria, Republic of Azerbaijan, Republic of Bahrain, Kingdom of Bangladesh, People's Republic of Barbados Belarus Belgium, Kingdom of Belize Benin, People's Republic of Bermuda Bhutan, Kingdom of Bolivia, Republic of Bosnia and Herzegovina Botswana, Republic of Bouvet Island (Bouvetoya) Brazil, Federative Republic of British Indian Ocean Territory (Chagos Archipelago) British Virgin Islands Brunei Darussalam Bulgaria, People's Republic of Burkina Faso Burundi, Republic of Cambodia, Kingdom of Cameroon, United Republic of Cape Verde, Republic of Cayman Islands Central African Republic Chad, Republic of Chile, Republic of China, People's Republic of Christmas Island Cocos (Keeling) Islands Colombia, Republic of Comoros, Union of the Congo, Democratic Republic of Congo, People's Republic of Cook Islands Costa Rica, Republic of Cote D'Ivoire, Ivory Coast, Republic of the Cyprus, Republic of Czech Republic Denmark, Kingdom of Djibouti, Republic of Dominica, Commonwealth of Ecuador, Republic of Egypt, Arab Republic of El Salvador, Republic of Equatorial Guinea, Republic of Eritrea Estonia Ethiopia Faeroe Islands Falkland Islands (Malvinas) Fiji, Republic of the Fiji Islands Finland, Republic of France, French Republic French Guiana French Polynesia French Southern Territories Gabon, Gabonese Republic Gambia, Republic of the Georgia Germany Ghana, Republic of Gibraltar Greece, Hellenic Republic Greenland Grenada Guadaloupe Guam Guatemala, Republic of Guinea, Revolutionary People's Rep'c of Guinea-Bissau, Republic of Guyana, Republic of Heard and McDonald Islands Holy See (Vatican City State) Honduras, Republic of Hong Kong, Special Administrative Region of China Hrvatska (Croatia) Hungary, Hungarian People's Republic Iceland, Republic of India, Republic of Indonesia, Republic of Iran, Islamic Republic of Iraq, Republic of Ireland Israel, State of Italy, Italian Republic Japan Jordan, Hashemite Kingdom of Kazakhstan, Republic of Kenya, Republic of Kiribati, Republic of Korea, Democratic People's Republic of Korea, Republic of Kuwait, State of Kyrgyz Republic Lao People's Democratic Republic Latvia Lebanon, Lebanese Republic Lesotho, Kingdom of Liberia, Republic of Libyan Arab Jamahiriya Liechtenstein, Principality of Lithuania Luxembourg, Grand Duchy of Macao, Special Administrative Region of China Macedonia, the former Yugoslav Republic of Madagascar, Republic of Malawi, Republic of Malaysia Maldives, Republic of Mali, Republic of Malta, Republic of Marshall Islands Martinique Mauritania, Islamic Republic of Mauritius Mayotte Micronesia, Federated States of Moldova, Republic of Monaco, Principality of Mongolia, Mongolian People's Republic Montserrat Morocco, Kingdom of Mozambique, People's Republic of Myanmar Namibia Nauru, Republic of Nepal, Kingdom of Netherlands Antilles Netherlands, Kingdom of the New Caledonia New Zealand Nicaragua, Republic of Niger, Republic of the Nigeria, Federal Republic of Niue, Republic of Norfolk Island Northern Mariana Islands Norway, Kingdom of Oman, Sultanate of Pakistan, Islamic Republic of Palau Palestinian Territory, Occupied Panama, Republic of Papua New Guinea Paraguay, Republic of Peru, Republic of Philippines, Republic of the Pitcairn Island Poland, Polish People's Republic Portugal, Portuguese Republic Puerto Rico Qatar, State of Reunion Romania, Socialist Republic of Russian Federation Rwanda, Rwandese Republic Samoa, Independent State of San Marino, Republic of Sao Tome and Principe, Democratic Republic of Saudi Arabia, Kingdom of Senegal, Republic of Serbia and Montenegro Seychelles, Republic of Sierra Leone, Republic of Singapore, Republic of Slovakia (Slovak Republic) Slovenia Solomon Islands Somalia, Somali Republic South Africa, Republic of South Georgia and the South Sandwich Islands Spain, Spanish State Sri Lanka, Democratic Socialist Republic of St. Helena St. Kitts and Nevis St. Lucia St. Pierre and Miquelon St. Vincent and the Grenadines Sudan, Democratic Republic of the Suriname, Republic of Svalbard & Jan Mayen Islands Swaziland, Kingdom of Sweden, Kingdom of Switzerland, Swiss Confederation Syrian Arab Republic Taiwan, Province of China Tajikistan Tanzania, United Republic of Thailand, Kingdom of Timor-Leste, Democratic Republic of Togo, Togolese Republic Tokelau (Tokelau Islands) Tonga, Kingdom of Trinidad and Tobago, Republic of Tunisia, Republic of Turkey, Republic of Turkmenistan Turks and Caicos Islands Tuvalu Uganda, Republic of Ukraine United Arab Emirates United Kingdom of Great Britain & N. Ireland Uruguay, Eastern Republic of Uzbekistan Vanuatu Venezuela, Bolivarian Republic of Viet Nam, Socialist Republic of Wallis and Futuna Islands Western Sahara Yemen Zambia, Republic of Zimbabwe

View post:
Ninth Circuit Court of Appeals: First Amendment doesn't protect senators who walked out from consequences - Herald and News

After almost three years of litigation, CCIAs First Amendment challenges to two Florida and Texas social media laws have been heard by the Supreme Court. On Monday, February 26, the Justices heard oral arguments on what are being considered the First Amendment cases of the internet age. Florida and Texas passed these laws to expressively bring more government control over online content after several websites barred former President Trump for violating their terms of service in the weeks following the 2020 election.

The Florida and Texas laws would require websites to give all viewpoints equal treatment.

The question before the Court is whether the states can compel privately owned websites to disseminate content even if they disagree with it or the material violates their commitments to their users. CCIA and its co-plaintiff NetChoice have argued that no business from a newspaper to a bookstore to a website should be forced to distribute content. The First Amendment protects individuals and companies from government interference in speech, and that protection applies to both blocking speech and compelling it.

The Justices asked questions about the editorial decisions a website makes compared to a newspaper. At one point Justice Kavanaugh raised a question about the Florida Solicitor Generals characterization, noting he left out the most key part: that the First Amendment only applies to government interference in peoples speech.

This is a key point as people often misunderstand the protection of various stakeholders. The First Amendment protects individuals and businesses from the government not the other way around. There is nothing more Orwellian than the government demanding what viewpoints are distributed in the name of free expression.

But freedom of speech doesnt mean consequence-free speech. Speech can have consequences; thats why we protect it. A business saying we dont want to host Nazi Party candidates is exercising its own First Amendment rights. It has a right to determine what is said under its roof.

When Texas and Florida say websites must treat all viewpoints neutrally, what does that mean? As Schruers told CNNs The Lead with Jake Tapper, companies are in the trenches making millions of decisions in real time and not everyone is going to agree with every decision on every topic but thats where we have a marketplace of ideas. Websites get to compete on the different kinds of policies they provide. Some have very broad policies about what kind of content is appropriate in their community, while others have very strict policies. People vote with their mouse and decide where they want to hang out online. Advertisers will of course do the same.

In an interview with the Austin Fox station Monday, Schruers was asked what the Supreme Courts decision means for users. He emphasized the internet would have more harmful content if companies were forced to treat all viewpoints equally. Companies could be forced to display teen internet challenges, like a recent one encouraging them to eat detergent pods, on equal footing with Poison Control.

For internet users, the danger of the Florida and Texas social media laws is that they would tie the hands of companies trust and safety operations. They are in the trenches every day fighting against foreign disinformation and trolls.

Free speech does not mean consequence-free speech. If a website says they dont want to host Nazi party candidates, that website is exercising its own First Amendment rights.

Schruers told KTBS the Austin Fox station in a live interview the morning before Court arguments that,

Its difficult to imagine a world where the government could decide which viewpoints are disseminated on the internet. I think we can expect a decision by the end of June. A decision for Florida and Texas would be catastrophic for internet users because all kinds of harmful content would run rampant online.

However, based on the court arguments, the questions asked, and the strong First Amendment precedent in cases like Miami Herald v. Tornillo 50 years ago, it is likely the First Amendment will prevail.

There is broad consensus across all aspects of the political spectrum, and across time, that the government has no role making decisions in the marketplace of ideas and deciding which expression should be favored and which should not even if it purports to be leveling the playing field, Schruers told DCs Fox News in an interview.

More here:
What Is at Stake in the Florida, Texas First Amendment Cases - Disruptive Competition Project

According to a new poll from the Foundation for Individual Rights and Expression (FIRE), a First Amendment organization, nearly a third of Americans, including similar numbers of Republicans and Democrats, say that the First Amendment goes "too far" in the rights it guarantees. More than half agreed that their local community should not allow a public speech that espouses a belief they find particularly offensive.

"Those results were disappointing, but not exactly surprising," said FIRE Chief Research Adviser Sean Stevens in a Tuesday press release. "Here at FIRE, we've long observed that many people who say they're concerned about free speech waver when it comes to beliefs they personally find offensive. But the best way to protect your speech in the future is to defend the right to controversial and offensive speech today."

The survey, which was conducted in partnership with the Polarization Research Lab (PRL) at Dartmouth College, asked 1,000 Americans about their opinions on free speech and expression. The survey found that "when it comes to whether people are able to freely express their views," over two-thirds of respondents said they believed America was headed in the wrong direction. Further, only 25 percent of respondents agreed that the right to free speech was "very" or "completely" secure.

The survey also asked respondents to read a dozen controversial statements and pick the one they found most offensive. The most disliked beliefs were that "all whites are racist oppressors," followed by statements like "America got what it deserved on 9/11" and "January 6th was a peaceful protest." The survey then asked respondents whether they'd agree with allowing this opinion to be expressed in different circumstances.

Half of the respondents said that their community "definitely" or "probably" should not permit a public speech expressing the opinion they found most offensive. A whopping 69 percent said a local college should "definitely" or "probably" not allow a professor who holds such an opinion to teach there. Over a quarter of respondents said that someone who previously said the offensive opinion should be fired from their job.

These results indicate that though the average American is concerned about protecting free speech rights, a significant portion of the populationseem poised to welcome increasing censorship.

"The average American already thinks that free speech in America is in dire straits. Most worryingly, they think it will get worse," said Stevens. "These findings should be a wake-up call for the nation to recommit to a vibrant free speech culture before it's too late."

See the original post here:
Poll: Almost a third of Americans say the First Amendment goes 'too far' - Reason

What a constitutional spectacle: Two states, two trade associations, four lawyers, almost 300 briefs, nine Justices, and four hours of argument. The two First Amendment cases argued earlier this week wereMoody v. NetChoice, LLC andNetChoice, LLC v. Paxton. The lawyers arguing those cases were Floridas solicitor general Henry C. Whitaker, Texas Solicitor General Aaron Nielson, Paul D. Clement who represented the trade groups, and U.S. Solicitor General Elizabeth Prelogar who largely agreed with Clement.

Here are a few revealing excerpts:

Regulating Content on Social Media Platforms

Justice Sonia Sotomayor: I have a problem with laws that are so broad that they stifle speech just on their face.

Justice Ketanji Brown Jackson: The law on its face is really broad, Jackson said of the Florida measure. To the extent the entire law goes, other lawful applications would go, too.

Justice Elena Kagan: [W]hy isnt [it] . . . a classic First Amendment violation for the state to come in and say, we're not allowing . . . you to enforce those sorts of restrictions even thoughit's like an editorial judgment, you're excluding particular kinds of speech?"

Justice Brett Kavanaugh: When the government censors, when the government excludes speech from the public square, that is obviously a violation of the First Amendment. When a private individual or private entity makes decisions about what to include and what to exclude, that's protected generally editorial discretion, even though you could view the private entity's decision to exclude something as private censorship.

Chief Justice John G. Roberts: The First Amendment restricts what the government can do, and what the government is doing here is saying, you must do this, you must carry these people; you've got to explain if you don't[t]hats not the First Amendment.

Justice Amy Coney Barret: Floridas law, so far as I can understand it, is very broad.

Justice Samuel Alito, Re: social medias content moderation policies: Is it anything more than a euphemism for censorship? . . . So you say this is just like a newspaper, basically. Its like The Miami Herald. And the states say no, this is like Western Union. Its like a telegraph company. I look at this and I say it's really not like either of those. I dont know how we can decide this case by jumping to one side or the other.

Regulating the likes of Gmail, Venmo, Google, Uber and Etsy

Justice Samuel Alito: Does Gmail have a First Amendment right to delete, lets say, Tucker Carlsons or Rachel Maddows Gmail accounts if they dont agree with his or her viewpoints?

Justice Elena Kagan: When youre running Venmo youre not engaged in speech activities and so when a state says to you, You know what, you have to serve everybody irrespective of whether you like their political opinions or not, then it seems you have a much less good argument.

Section 230

Justice Amy Coney Barrett: If what we say about this is that this is speech thats entitled to First Amendment protection, I do think then that has Section 230 implications for another case. And so its always tricky to write an opinion when you know there might be landmines that would affect things later . . .We have to look at the statute as a whole. We dont have a lot of briefing on this. And this is a sprawling statute and it makes me a little bit nervous.

Related

This term, the Supreme Court will decide a cluster of cases the most consequential in my 40-year career practicing First Amendment law that will markedly shape the relationship between the government and social media.

The twomostimportantcases, which the Supreme Court will hear on Monday, were brought by NetChoice, an internet industry group, after Florida and Texas passed laws regulating social media platforms content moderation practices. Together they will determine who controls the levers of content moderation on platforms like Facebook and X: the platforms themselves or state government.

The NetChoice cases should be easy for the nine justices to decide the power should remain with the platforms

[ . . . ]

Dont let the newness of the medium and the culture war hysterics surrounding it fool you. The arguments at play here are as old as our country itself. And the conclusion, from the standpoint of the First Amendment, is clear: Allowing the government to control the platforms moderation choices is not a cure it is the very disease the Framers sought to prevent. They would abhor the notion of giving state legislatures the power to settle partisan disputes about editorial policies.

Giving state legislatures such power over social media platforms, to paraphraseP.J. ORourke, would be like giving whiskey and car keys to teenage boys. Nothing good can come of it.

Related

Thanks to our First Amendment, American victims of Cancel Culture are shielded from being arrested for their speech but thats not the case everywhere. In Britain, the story is quite different. During the age of Cancel Culture there, the number of speech-related arrests in Britain have reachedastoundingnumbers.

In 2003, the United Kingdom passed theCommunications Act, Section 127 of which targets speech that cause[s] annoyance, inconvenience, or needless anxiety to another online, as well as posts that are grossly offensive or of an indecent, obscene, or menacing manner.

In practice, that provision has resulted in a startling number of arrests:6,150 from just 2015 and 2016. That far outstrips the number of arrests in the first Red Scare in a country that has roughly half as many people as the United States did in 1920. This works out to roughlynine people a dayarrested for posting allegedly offensive messages online.

Worse yet, British police track non-crime hate incidents. In essence, this means anyone who takes offense to someones speech about a protected characteristic can report the speaker to the police. Horrifyingly, guidance for policestatesthat the victim does not have to justify or provide evidence of their belief, and police officers and staff should not directly challenge this perception.

From 2014 to 2019, almost 120,000 such incidents were cataloged across the U.K.

This is truly terrifying.

We should all be hugely grateful that our First Amendment protects us from that fate here but lets not forget thatmanypeopleargueAmerica should follow thelead of Europein terms of speech codes. Thismust nothappen, and the fallout in Britain is a perfect cautionary tale as to why.

When public school libraries remove books based on the views expressed in the books, are they violating the First Amendment? What if the librarians stocking the shelves have a political agenda? It all comes down to a precedent called Pico, and Eugene and Jane disagree about which Supreme Court justices got the rule right.

Coming soon: Stephen Rohde reviewing Hate Speech Is Not Free: The Case Against First Amendment Protection (2024) by W. Wat Hopkins.

Abstract of Hate Speech is Not Free:

Hate speech has been a societal problem for many years and has seen a resurgence recently alongside political divisiveness and technologies that ease and accelerate the spread of messages. Methods to protect individuals and groups from hate speech have eluded lawmakers as the call for restrictions or bans on such speech are confronted by claims of First Amendment protection. Problematic speech, the argument goes, should be confronted by more speech rather than by restriction.

Debate over the extent of First Amendment protection is based on two bodies of lawthe practical, precedent determined by the Supreme Court, and the theoretical framework of First Amendment jurisprudence. InHate Speech is Not Free: The Case Against Constitutional Protection, W. Wat Hopkins argues that the prevailing thought that hate is protected by both case law and theory is incorrect.

Within the Supreme Courts established hierarchy of speech protection, hate speech falls to the lowest level, deserving no protection as it does not advance ideas containing social value. Ultimately, the Supreme Courts cases addressing protected and unprotected speech set forth a clear rationale for excommunicating hate speech from First Amendment protection.

In the wake ofStudents for Fair Admissions, Inc. v. President & Fellows of Harvard College, affirmative-action proponents should pursue a First Amendment approach. Private universities, which are speaking associations that express themselves through the collective speech of faculty and students, may be able to assert an expressive-association right, based onBoy Scouts of America v. Dale, to choose their faculty and students. This theory has been recently strengthened by303 Creative LLC v. Elenis.

I discuss various complexities and counterarguments: (1) Race is not different than sex or sexual orientation for purposes of the doctrine. (2) The market context may not matter, especially after 303 Creative. (3) The conditional-federal-funding context does give the government more power than a simple regulatory context: the government will still be able to induce race-neutrality by the threat of withdrawing federal funds. But the unconstitutional conditions doctrine precludes draconian penalties like withdrawing all funds from the entire institution based only on affirmative action in some units. (4) This theory doesnt apply to public institutions.

I also explore the potential flexibilities of this theory, based on recent litigation. The scope of the Boy Scouts exception might vary based on (1) what counts as substantial interference with expressive organizations, (2) what counts as a compelling governmental interest, and (3) most importantly, what it takes for activity to be expressive. Because the test for expressiveness relies largely on social expectations about what particular actions mean, there is some chance that behavior beyond the university context like affirmative action in charitable donations might be brought within the Boy Scouts exception.

It started with David Coles New York Review of Books essay titled Whos Canceling Whom? (Feb. 8). The main focus of that essay was that [c]onservatives often charge their opponents with cancel culture, but the right poses as significant a threat to free speech as the left. Building on that theme he started by discussing that infamous congressional hearing on December 5 between Representative Elise Stefanik and the presidents of Harvard, the University of Pennsylvania, and the Massachusetts Institute of Technology [and noted how it] laid bare once again the fragility of our collective commitment to free speech. In the process of a thoughtful critique of cancel culture, Cole, though by and large laudatory, took a few respectful swipes at Laurence Tribe (he joined Stefanik in denouncing the response of the presidents) and Greg Lukianoff (he disputed the supposed assertion that cancel culture began in 2013 and is worse today than ever before).

Against that backdrop, the March 7th issue of the NYRB contains a full-page debate titled Free Speech on Campus: An Exchange Laurence H. Tribe and Greg Lukianoff, reply by David Cole. This informative and nuanced exchange is well worth the read.

Here are a few excerpts:

Tribe

I did, indeed, describe the presidents failure to answer that simple yes-or-no question as hesitant, formulaic, and bizarrely evasive. Far from joining the congresswoman, however, I criticized Representative Stefaniks hypocritical and opportunistic attack on universities; defended Harvards initial decision to resist what I described as dangerous outside meddling with academic freedom; and continue to lament Harvards ultimate decision to cave to the pressure from wealthy donors and politicians like Representative Stefanik.

I write not principally to correct this distortion of my views but to address the way the public debate over free speech on college campuses is in danger of being reduced to an oversimplified binary:either you are for college students feeling safe, or you are for virtually absolute freedom of speech. The current doctrinaire insistence that we cannot restrict speech unless it falls within previously recognized narrow exceptions such as the incitement of violence, fighting words, or true threats wrongly elevates free speech above all other freedomsincluding the bedrock principle that every student should be free to access education without discrimination.

Lukianoff

Cole claims that Rikki [Schlott] and I assertthat the past decade has seen repression of speech akin to or worse than that of the McCarthy era. In fact, we only referenced McCarthyism (as the second Red Scare) three times in the book. First, to say that we believe cancel culture will be studied the same way we study the 1798 Sedition Act or the two Red Scares. Second, to point out that the Hollywood Red Scare only targeted about three hundred people, giving a sense of the comparative scale of cancel culture, which has seen more than one thousand attempts to cancel professors since 2014. In the third, we simply noted that an estimated one hundred professors were fired during the eleven years of McCarthyism/the Second Red Scare, whereas almost two hundred have been fired in the past nine and a half years of cancel culture.

[. . .]

Cole also disputed our supposed assertion that cancel culture began in 2013 and is worse today than ever before, but were always careful to say that cancel culture is the worst period of censorship since the First Amendment began to be strictly interpreted on campus, following a series of cases that ended in 1973. The state of free speech was far worse before that, and we never claim otherwise. But when the first generation who grew up with social media and smartphones hit college, which happened around 2014, a dramatic shift took place. I ran a more thorough response to Coles review in my Substack newsletter, The Eternally Radical Idea, with several graphs and comprehensive data.

Cole

Im sorry that Laurence Tribe, whom I deeply respect as one of the nations leading constitutional scholars, feels that I misrepresented him when I noted that while Stefanik, a staunch Republican, led the charge, she was joined by many prominent liberals, includingLaurence Tribe. But heres what Tribe said, in his own words, on his Twitter page, retweeting with approval Stefaniks attack on then Harvard President Claudine Gay: Im no fan of @RepStefanik but Im with her here. Claudine Gays hesitant, formulaic, and bizarrely evasive answers were deeply troubling to me and many of my colleagues, students, and friends. In my book, when you say Im with her, youve joined her.

[. . .]

[W]e appear to part company on two points. First, Tribe (with Stefanik) thinks that any statement calling for genocide of the Jews can be prohibited on campus, even if it is merely a stupid choice of words at a spirited rally. Would he say the same about calls for intifada, which Stefanik equated with calling for genocide? What about from the river to the sea? What about calls supporting the Israeli military offensive against Gaza, which has led to more than 25,000 deaths? Can all such speech be prohibited because it calls for violence, no matter how rhetorical and no matter how far removed from actual violence on campus? Where would Tribe draw the line? He doesnt say.

Second, Tribe argues that while speech must be free in the classroom, it need not be free at other places on campus. With respect, I think that gets it backward. Speech is appropriately subject to much greater control in the classroom than on the campus lawn.

[. . .]

I also have tremendous respect for Greg Lukianoffand the work FIRE has done to protect speech on campus. As I wrote in my review, cancel culture is undoubtedly real; in fact, in both my ACLU and Georgetown capacities, I am actively engaged in trying to promote free speech on campus. So I share Lukianoffs and his coauthor Rikki Schlotts concern. But I question their claims that intolerance is worse today than in prior periods. Their comparison of cancel culture to McCarthyism fails to acknowledge the stark difference between a campaign of censorship coordinated and compelled by the government, carried out through criminal convictions, loyalty hearings, blacklists, and widespread political spying ultimately directly affecting millions of Americans and a private culture of intolerance on campuses.

Nor do the authors provide convincing evidence that campuses are substantially less tolerant today than in decades past. The fact that there are more conflicts and more complaints on todays heterogeneous campuses does not mean that the more homogeneous campuses of the past were islands of tolerance.

[. . .]

[Yes,] intolerance on campuses today is a real concern. But exaggerating the scope of the problem, much less likening it to periods of officially sanctioned state repression, is unnecessary to make the point.

Constitution Day symposium in Washington, D.C., which examined the Supreme Courts 2022-23 term, as well as upcoming cases in the 2023-24 term. Law professors from the University of Florida, the University of Mississippi, and the University of Baltimore examined the impact of recent cases decided in the Court. Among the cases discussed was303 Creative LLC v. Elenis, which ruled that the First Amendment prohibits a Colorado anti-discrimination law from forcing a wedding website designer who opposes same-sex marriage to create content for gay and lesbian couples.

Cases Decided

[W]e conclude that the Fifth Circuit should not have ventured into so uncertain an area of tort law one laden with value judgments and fraught with implications for First Amendment rights without first seeking guidance on potentially controlling Louisiana law from the Louisiana Supreme Court. We express no opinion on the propriety of the Fifth Circuit certifying or resolving on its own any other issues of state law that the parties may raise on remand. We therefore grant the petition for writ of certiorari, vacate the judgment of the United States Court of Appeals for the Fifth Circuit, and remand the case to that court for further proceedings consistent with this opinion.

Review granted

Pendingpetitions

State action

Reviewdenied

Free speech related

Previous FAN

FAN 412: Mary Anne Franks targets antidemocratic, racist, misogynistic, and corporate self-interest speech in forthcoming book

This article is part ofFirst Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are thoseof the articles author(s) and may not reflect the opinions of FIRE or Mr. Collins.

Read the rest here:
Certainty and uncertainty: The tech platform cases First Amendment News 413 - Foundation for Individual Rights in Education

PEN America calls on the Supreme Court to protect the First Amendment against government overreach

(WASHINGTON) The government does not have the right to force private social media companies to carry content they would otherwise not allow on their sites. A pair of laws from Florida and Texas would do just that.

In Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton, the Supreme Court today considered the constitutionality of a pair of laws from Florida and Texas that restrict social media platforms content moderation practices.

In an amicus brief filed in December, PEN America said the laws are unconstitutional and seek to control public discourse much in the same way that book bans, educational gag orders, and other censorial policies do around the country.

These laws strike at the heart of the First Amendment. The state cannot compel private entities to platform speech that favors a government viewpoint or that the companies deem in their editorial judgment to be dangerous or deceptive, said Hadar Harris, interim Washington director for PEN America. We are sliding down a slippery slope of government control of public discourse which has gone from book bans to educational gag orders and now overreach on platform regulation. Its a foundational constitutional right in this country that the state does not get to substitute its viewpoint for that of private actors.

After several social media platforms barred President Trump following the Jan. 6, 2021, riots, Florida passed legislation prohibiting technology companies from banning a candidate for office from their platforms. Texas passed a law prohibiting platforms from taking down political content. Two tech industry groups are suing to block the laws. The cases before the Court have the potential to reshape public debate online by giving government the power to dictate what content platforms must carry.

As PEN America explains in its amicus brief, the past three years have seen an explosion in state legislatures using government power to suppress speech they disagree with. These laws could have disastrous consequences, paving the way for even more extreme attempts by the government to impose its viewpoint. PEN America calls on the Supreme Court to protect the First Amendment against government overreach in these cases.

PEN America stands at the intersection of literature and human rights to protect open expression in the United States and worldwide. We champion the freedom to write, recognizing the power of the word to transform the world. Our mission is to unite writers and their allies to celebrate creative expression and defend the liberties that make it possible. Learn more atpen.org.

Contact: Suzanne Trimel,[emailprotected], (201) 247-5057

Originally posted here:
Social Media Content Moderation Laws 'Strike at the Heart of the First Amendment' - PEN America

Sign up for The Brief, The Texas Tribunes daily newsletter that keeps readers up to speed on the most essential Texas news.

WASHINGTON D.C. (Texas Tribune) The U.S. Supreme Court on Monday will consider whether the First Amendments freedom of speech clause applies to social media companies content moderation. Their decision could render a Texas law unconstitutional.

The lawsuit challenges whether Texas and Florida can legally prohibit large social media companies from banning certain political posts or users. Both states passed laws in 2021 to stop what Republican state leaders considered censorship of conservative viewpoints.

The laws came on the heels of the Jan. 6, 2021 attack on the U.S. Capitol, which led Facebook, Twitter and other social media platforms to suspend former president Donald Trumps social media accounts because his posts were thought to glorify violence.

Tech industry groups then brought a lawsuit in which they argued those laws are unconstitutional because they conflict with the First Amendment, which protects against government infringement of speech.

Tech trade groups NetChoice and Computer & Communications Industry Association sued Texas and Florida and asked a federal court to stop the laws from going into effect, claiming they illegally impede upon private companies ability to regulate the speech on their platforms. The justices put the Texas law on hold last year while the challenges moved through the court system.

The Supreme Courts review of the laws represents the first major examination of if and how free-speech laws apply to social media companies. Legal experts say that the high courts decision could have significant implications for statehouses across the country as they begin writing laws to address misinformation online.

The stakes for free speech online are potentially enormous, said Scott Wilkens, senior counsel at the Knight First Amendment Institute at Columbia University. The court here is being presented with diametrically opposed interpretations of the law, and what the court does could, on the one hand, allow the government free rein to regulate social media platforms, or, on the other, prohibit the government from regulating them at all.

The free speech provisions included in the First Amendment do not mean that private companies are forced to allow certain speech. Instead, the Constitution states that the government cannot compel or prohibit speech from private actors.

Willkens said he believes the Court should take a middle ground and rule that while the platforms have a right to make editorial judgements, states can still regulate the platforms in ways that would promote democracy. For example, he said the platforms should be required to disclose how they curate their content.

Texas social media law, referred to as House Bill 20, would mandate that tech companies publicly disclose how they curate their content. The Supreme Court is not considering the legality of that portion of the law. They are focusing on other provisions of law, including its prohibition on social media companies with more than 50 million active monthly users from banning users based on their viewpoints. The court will also consider the laws requirement that platforms produce regular reports of removed content and create a complaint system to allow users to raise flags about removed content.

Tech companies argue that giving the government any control over their content opens the door to a flood of misinformation that would be harmful to users.

What could end up happening is that websites are flooded with lawful but awful content, said Carl Szabo, vice president and general counsel at NetChoice, one of the groups suing Texas. That renders our ability to access the information we want and not see the information we dont want, impossible.

Szabo said social media companies remove billions of pieces of content from their platforms each month, including sexually explicit material, spam, or other content that violates their terms of services.

Gov. Greg Abbott, who made the bill a priority during a special legislative session in 2021, said after the law was passed that it was intended to protect individuals freedom of speech.

Allowing biased social media companies to cancel conservative speech erodes America's free speech foundations, Andrew Mahaleris, a spokesperson for Abbott, said in a statement to The Texas Tribune. Social media websites are a modern-day public square. They are a place for healthy debate where information should be able to flow freely but there is a dangerous movement by social media companies to silence conservative viewpoints and ideas.

Disclosure: Facebook has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

We cant wait to welcome you to downtown Austin Sept. 5-7 for the 2024 Texas Tribune Festival! Join us at Texas breakout politics and policy event as we dig into the 2024 elections, state and national politics, the state of democracy, and so much more. When tickets go on sale this spring, Tribune members will save big. Donate to join or renew today.

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2024/02/26/texas-social-media-law-supreme-court/.

"Does the First Amendment apply to social media moderation? The U.S. Supreme Court will decide." was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans and engages with them about public policy, politics, government and statewide issues.

The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.

Continue reading here:
Does the First Amendment apply to social media moderation? The U.S. Supreme Court will decide - 25 News KXXV and KRHD

State Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington Washington D.C. West Virginia Wisconsin Wyoming Puerto Rico US Virgin Islands Armed Forces Americas Armed Forces Pacific Armed Forces Europe Northern Mariana Islands Marshall Islands American Samoa Federated States of Micronesia Guam Palau Alberta, Canada British Columbia, Canada Manitoba, Canada New Brunswick, Canada Newfoundland, Canada Nova Scotia, Canada Northwest Territories, Canada Nunavut, Canada Ontario, Canada Prince Edward Island, Canada Quebec, Canada Saskatchewan, Canada Yukon Territory, Canada

Zip Code

Country United States of America US Virgin Islands United States Minor Outlying Islands Canada Mexico, United Mexican States Bahamas, Commonwealth of the Cuba, Republic of Dominican Republic Haiti, Republic of Jamaica Afghanistan Albania, People's Socialist Republic of Algeria, People's Democratic Republic of American Samoa Andorra, Principality of Angola, Republic of Anguilla Antarctica (the territory South of 60 deg S) Antigua and Barbuda Argentina, Argentine Republic Armenia Aruba Australia, Commonwealth of Austria, Republic of Azerbaijan, Republic of Bahrain, Kingdom of Bangladesh, People's Republic of Barbados Belarus Belgium, Kingdom of Belize Benin, People's Republic of Bermuda Bhutan, Kingdom of Bolivia, Republic of Bosnia and Herzegovina Botswana, Republic of Bouvet Island (Bouvetoya) Brazil, Federative Republic of British Indian Ocean Territory (Chagos Archipelago) British Virgin Islands Brunei Darussalam Bulgaria, People's Republic of Burkina Faso Burundi, Republic of Cambodia, Kingdom of Cameroon, United Republic of Cape Verde, Republic of Cayman Islands Central African Republic Chad, Republic of Chile, Republic of China, People's Republic of Christmas Island Cocos (Keeling) Islands Colombia, Republic of Comoros, Union of the Congo, Democratic Republic of Congo, People's Republic of Cook Islands Costa Rica, Republic of Cote D'Ivoire, Ivory Coast, Republic of the Cyprus, Republic of Czech Republic Denmark, Kingdom of Djibouti, Republic of Dominica, Commonwealth of Ecuador, Republic of Egypt, Arab Republic of El Salvador, Republic of Equatorial Guinea, Republic of Eritrea Estonia Ethiopia Faeroe Islands Falkland Islands (Malvinas) Fiji, Republic of the Fiji Islands Finland, Republic of France, French Republic French Guiana French Polynesia French Southern Territories Gabon, Gabonese Republic Gambia, Republic of the Georgia Germany Ghana, Republic of Gibraltar Greece, Hellenic Republic Greenland Grenada Guadaloupe Guam Guatemala, Republic of Guinea, Revolutionary People's Rep'c of Guinea-Bissau, Republic of Guyana, Republic of Heard and McDonald Islands Holy See (Vatican City State) Honduras, Republic of Hong Kong, Special Administrative Region of China Hrvatska (Croatia) Hungary, Hungarian People's Republic Iceland, Republic of India, Republic of Indonesia, Republic of Iran, Islamic Republic of Iraq, Republic of Ireland Israel, State of Italy, Italian Republic Japan Jordan, Hashemite Kingdom of Kazakhstan, Republic of Kenya, Republic of Kiribati, Republic of Korea, Democratic People's Republic of Korea, Republic of Kuwait, State of Kyrgyz Republic Lao People's Democratic Republic Latvia Lebanon, Lebanese Republic Lesotho, Kingdom of Liberia, Republic of Libyan Arab Jamahiriya Liechtenstein, Principality of Lithuania Luxembourg, Grand Duchy of Macao, Special Administrative Region of China Macedonia, the former Yugoslav Republic of Madagascar, Republic of Malawi, Republic of Malaysia Maldives, Republic of Mali, Republic of Malta, Republic of Marshall Islands Martinique Mauritania, Islamic Republic of Mauritius Mayotte Micronesia, Federated States of Moldova, Republic of Monaco, Principality of Mongolia, Mongolian People's Republic Montserrat Morocco, Kingdom of Mozambique, People's Republic of Myanmar Namibia Nauru, Republic of Nepal, Kingdom of Netherlands Antilles Netherlands, Kingdom of the New Caledonia New Zealand Nicaragua, Republic of Niger, Republic of the Nigeria, Federal Republic of Niue, Republic of Norfolk Island Northern Mariana Islands Norway, Kingdom of Oman, Sultanate of Pakistan, Islamic Republic of Palau Palestinian Territory, Occupied Panama, Republic of Papua New Guinea Paraguay, Republic of Peru, Republic of Philippines, Republic of the Pitcairn Island Poland, Polish People's Republic Portugal, Portuguese Republic Puerto Rico Qatar, State of Reunion Romania, Socialist Republic of Russian Federation Rwanda, Rwandese Republic Samoa, Independent State of San Marino, Republic of Sao Tome and Principe, Democratic Republic of Saudi Arabia, Kingdom of Senegal, Republic of Serbia and Montenegro Seychelles, Republic of Sierra Leone, Republic of Singapore, Republic of Slovakia (Slovak Republic) Slovenia Solomon Islands Somalia, Somali Republic South Africa, Republic of South Georgia and the South Sandwich Islands Spain, Spanish State Sri Lanka, Democratic Socialist Republic of St. Helena St. Kitts and Nevis St. Lucia St. Pierre and Miquelon St. Vincent and the Grenadines Sudan, Democratic Republic of the Suriname, Republic of Svalbard & Jan Mayen Islands Swaziland, Kingdom of Sweden, Kingdom of Switzerland, Swiss Confederation Syrian Arab Republic Taiwan, Province of China Tajikistan Tanzania, United Republic of Thailand, Kingdom of Timor-Leste, Democratic Republic of Togo, Togolese Republic Tokelau (Tokelau Islands) Tonga, Kingdom of Trinidad and Tobago, Republic of Tunisia, Republic of Turkey, Republic of Turkmenistan Turks and Caicos Islands Tuvalu Uganda, Republic of Ukraine United Arab Emirates United Kingdom of Great Britain & N. Ireland Uruguay, Eastern Republic of Uzbekistan Vanuatu Venezuela, Bolivarian Republic of Viet Nam, Socialist Republic of Wallis and Futuna Islands Western Sahara Yemen Zambia, Republic of Zimbabwe

Go here to read the rest:
Jacob Sullum - Sacrificing the First Amendment to save it? - Defiance Crescent News

Look, you dont have to like Brett Kavanaugh. You can hate him now, and you can go on hating him after you read this. But the fact is he was the hero, yesterday, at the oral argument in the most important internet speech case for decades.

In 2021, Republican politicians in Texas and Florida convinced themselves that Big Tech silences conservative views, and they got big mad about it. So they enacted a pair of laws, HB 20 (Texas) and SB 7072 (Florida), that co-opt large social media platforms right to control what speech appears on their services. HB 20 requires, for instance, that platforms treat all viewpoints the same. If a platform allows a government agency to post about a vaccination campaign, it must allow Roger Stone to post about how the vaccines have microchips in them.

We care about what speech a platform chooses to host or to block precisely because these choices are themselves expressive. Even the red-state legislators who enacted HB 20 and SB 7072 get this. Its why they enacted those lawsthey want to force the platforms to adopt an editorial bent more favorable to conservatives. (The laws would do more than intended, opening the floodgates for hate speech, harassment, and more.)

Yesterdays oral argument should have been straightforward. Content moderation is an expressive exercise of editorial judgment. Which means that its protected by the First Amendment. Which means that HB 20 and SB 7072two overbroad, poorly crafted, highly partisan online speech codesare unconstitutional.

Sadly, though, things didnt go so smoothly. Some of the justices got drawn into side issues. (Could the government make Gmail carry all emails? Could it make Uber carry all riders?) Some of them weighed the idea of declining to rule and ordering more discovery. (Maybe the laws are not invalid in every situation, they worried. Better have the lower courts look into the matter further.) Some of them tried to switch the subject to whether Section 230a key protection for online speechshould be narrowed.

Kavanaugh wasnt interested in any of this bullshit. He didnt shotgun a beer, crunch the can against his head, rip his robe off, and scream First Amendment forever, motherfuckers! But that was the vibe. Inside serious, soft-spoken Justice Kavanaugh, yearbook-page Brett was yearning to be free.

While a judge on the federal court of appeals, Kavanaugh had already written that it would be basically insane to let the Government regulate the editorial decisions of Facebook and Google. Going into the argument, his take on these cases wasnt a mystery. But Kavanaugh has kept pretty quiet since joining the Court, so it was a bit surprising to see him absolutely bring it yesterday.

With his first words, Kavanaugh went right at these laws diseased root. The concept that the government may restrict the speech of some elements of our society in order to enhance the relative voice of others, he said, quoting Supreme Court precedent, is wholly foreign to the First Amendment. By claiming to level the playing field for conservatives on social media, Kavanaugh made clear, Texas and Florida are admitting that their laws violate the Constitution.

Next, Kavanaugh called the states out for trying to turn the First Amendment upside down. In your opening remarks, he told Floridas solicitor general, you said the design of the First Amendment is to prevent suppression of speech. And you left outthree words, by the government. When the government boots you from its public forum, thats (often) a First Amendment violation. When a private platform boots you from its service, thats its right to free speech and free association in action.

Kavanaugh wasnt done on this score. He noted that the word censorship was being used in lots of different ways at the argument. Indeed, content moderation by private services is mislabeled as censorship in HB 20 and SB 7072. Kavanaugh was having none of that. Its the government that censors, he explained, when it excludes speech from the public square in violation of the First Amendment. When, by contrast, a private individual or private entity makes decisions about what to include and what to exclude, thats protectededitorial discretion.

Kavanaugh wasnt interested in any of this bullshit. He didnt shotgun a beer, crunch the can against his head, rip his robe off, and scream First Amendment forever, motherfuckers! But that was the vibe.

Then came Kavanaughs finest moment, when he shut down the most obtuse point made by any justice during the argument.

No one on the Court is more steeped in paranoia about Big Tech tyranny than Justice Samuel Alito. Perhaps, Alito wondered aloud, the term content moderation is a psy-op. Perhaps, Alito suggested, its a euphemism that they are using to get you comfortable with a practice that actually amounts to censorship. Perhaps, Alito mused, we need to resist the Orwellian temptation to recategorize offensive conduct in seemingly bland terms.

If youve read Nineteen Eighty Four, you know how preposterous it is to throw the word Orwellian around like this. Alito is using a book about totalitarian surveillance and control to whine about people (most of them jerks) getting kicked off social media appsvery much a First World problem.

Kavanaugh set things straight. When I think of Orwellian, he responded, I think of the state, not the private sector, not private individuals.

Orwellian, he went on, is the state taking over media, like in some other countrieslike in North Korea. And the First Amendment confirms, Kavanaugh said, that we dont want to be that country, that we have a different model here and have since the beginning.

You dont have to like Brett Kavanaugh. But hes in the right in this crucialand, alas, closecase. You want him casting the decisive vote. You even want him writing the Courts opinion. Free speech on the internet needs saving, and, like it or not, hes the man for the job.

Follow this link:
God Help Us, but Brett Kavanaugh Could Save the First Amendment - The Daily Beast