Category Archives: Free Speech

The First Amendment to the Constitution protects speech no matter how offensive its content. Restrictions on speech by public colleges and universities amount to government censorship, in violation of the Constitution. Such restrictions deprive students of their right to invite speech they wish to hear, debate speech with which they disagree, and protest speech they find bigoted or offensive. An open society depends on liberal education, and the whole enterprise of liberal education is founded on the principle of free speech.

How much we value the right of free speech is put to its severest test when the speaker is someone we disagree with most. Speech that deeply offends our morality or is hostile to our way of life warrants the same constitutional protection as other speech because the right of free speech is indivisible: When we grant the government the power to suppress controversial ideas, we are all subject to censorship by the state. Since its founding in 1920, the ACLU has fought for the free expression of all ideas, popular or unpopular. Where racist, misogynist, homophobic, and transphobic speech is concerned, the ACLU believes that more speech not less is the answer most consistent with our constitutional values.

But the right to free speech is not just about the law; its also a vital part of our civic education. As Supreme Court Justice Robert Jackson wrote in 1943 about the role of schools in our society: That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes. Remarkably, Justice Jackson was referring to grade school students. Inculcating constitutional values in particular, the value of free expression should be nothing less than a core mission of any college or university.

To be clear, the First Amendment does not protect behavior on campus that crosses the line into targeted harassment or threats, or that creates a pervasively hostile environment for vulnerable students. But merely offensive or bigoted speech does not rise to that level, and determining when conduct crosses that line is a legal question that requires examination on a case-by-case basis. Restricting such speech may be attractive to college administrators as a quick fix to address campus tensions. But real social change comes from hard work to address the underlying causes of inequality and bigotry, not from purified discourse. The ACLU believes that instead of symbolic gestures to silence ugly viewpoints, colleges and universities have to step up their efforts to recruit diverse faculty, students, and administrators; increase resources for student counseling; and raise awareness about bigotry and its history.

A:The First Amendment does not require the government to provide a platform to anyone, but it does prohibit the government from discriminating against speech on the basis of the speakers viewpoint. For example, public colleges and universities have no obligation to fund student publications; however, the Supreme Court has held that if a public university voluntarily provides these funds, it cannot selectively withhold them from particular student publications simply because they advocate a controversial point of view.

Of course, public colleges and universities are free to invite whomever they like to speak at commencement ceremonies or other events, just as students are free to protest speakers they find offensive. College administrators cannot, however, dictate which speakers students may invite to campus on their own initiative. If a college or university usually allows students to use campus resources (such as auditoriums) to entertain guests, the school cannot withdraw those resources simply because students have invited a controversial speaker to campus.

A:In Brandenburg v. Ohio, the Supreme Court held that the government cannot punish inflammatory speech unless it intentionally and effectively provokes a crowd to immediately carry out violent and unlawful action. This is a very high bar, and for good reason.

The incitement standard has been used to protect all kinds of political speech, including speech that at least tacitly endorses violence, no matter how righteous or vile the cause. For example, in NAACP v. Clairborne Hardware, the court held that civil rights icon Charles Evans could not be held liable for the statement, If we catch any of you going in any of them racist stores, were going to break your damn neck. In Hess v. Indiana, the court held that an anti-war protestor could not be arrested for telling a crowd of protestors, Well take the fucking street later. And In Brandenburg itself, the court held that a Ku Klux Klan leader could not be jailed for a speech stating that there might have to be some revengeance [sic] taken for the continued suppression of the white, Caucasian race.

The First Amendments robust protections in this context reflect two fundamentally important values. First, political advocacy rhetoric meant to inspire action against unjust laws or policies is essential to democracy. Second, people should be held accountable for their own conduct, regardless of what someone else may have said. To protect these values, the First Amendment allows lots of breathing room for the messy, chaotic, ad hominem, passionate, and even bigoted speech that is part and parcel of American politics. Its the price we pay to keep bullhorns in the hands of political activists.

People often associate the limits of First Amendment protection with the phrase shouting fire in a crowded theater. But that phrase is just (slightly inaccurate) shorthand for the legal concept of incitement. (Although, if you think theres a fire even if youre wrong youd better yell!)The phrase, an incomplete reference to the concept of incitement, comes from the Supreme Courts 1919 decision in Schenck v. United States. Charles Schenck and Elizabeth Baer were members of the Executive Committee of the Socialist Party in Philadelphia, which authorized the publication of more than 15,000 fliers urging people not to submit to the draft for the First World War. The fliers said things like: Do not submit to intimidation, and Assert your rights. As a result of their advocacy, Schenck and Baer were convicted for violating the Espionage Act, which prohibits interference with military operations or recruitment, insubordination in the military, and support for enemies of the United States during wartime.

Writing for the Supreme Court, Justice Oliver Wendell HolmesJr. held that Schencks and Baers convictions did not violate the First Amendment. Observing that the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic, Holmes reasoned by analogy that speech urging people to resist the draft posed a clear and present danger to the United States and therefore did not deserve protection under the First Amendment. This is the problem with the line about shouting fire in a crowded theater it can be used to justify suppressing any disapproved speech, no matter how tenuous the analogy. Justice Holmes later advocated for much more robust free speech protections, and Schenck was ultimately overruled. It is now emphatically clear that the First Amendment protects the right to urge resistance to a military draft, and much else.

A:The Supreme Court ruled in 1942 that the First Amendment does not protect fighting words, but this is an extremely limited exception. It applies only to intimidating speech directed at a specific individual in a face-to-face confrontation that is likely to provoke a violent reaction. For example, if a white student confronts a student of color on campus and starts shouting racial slurs in a one-on-one confrontation, that student may be subject to discipline.

Over the past 50 years, the Supreme Court hasnt found the fighting words doctrine applicable in any of the cases that have come before it, because the circumstances did not meet the narrow criteria outlined above. The fighting words doctrine does not apply to speakers addressing a large crowd on campus, no matter how much discomfort, offense, or emotional pain their speech may cause.

In fact, the Supreme Court has made clear that the government cannot prevent speech on the ground that it is likely to provoke a hostile response this is called the rule against a hecklers veto. Without this vital protection, government officials could use safety concerns as asmokescreen to justify shutting down speech they dont like, including speech that challenges the status quo. Instead, the First Amendment requires the government to provide protection to all speakers, no matter how provocative their speech might be. This includes taking reasonable measures to ensure that speakers are able to safely and effectively address their audience, free from violence or censorship. Its how our society ensures that the free exchange of ideas is uninhibited, robust, and wide-open.

A:Symbols of hate are constitutionally protected if theyre worn or displayed before a general audience in a public place say, in a march or at a rally in a public park. The Supreme Court has ruled that the First Amendment protects symbolic expression, such as swastikas, burning crosses, and peace signsbecause its closely akin to pure speech. The Supreme Court has accordingly upheld the rights of students to wear black armbands in school to protest the Vietnam War, as well as the right to burn the American flag in public as a symbolic expression of disagreement with government policies.

But the First Amendment does not protect the use of nonverbal symbols to directly threaten an individual, such as by hanging a noose over their dorm room or office door. Nor does the First Amendment protect the use of a non-verbal symbol to encroach upon or desecrate private property, such as by burning a cross on someones lawn or spray-painting a swastika on the wall of a synagogue or dorm. In R.A.V. v. City of St. Paul, for example, the Supreme Court struck down as unconstitutional a city ordinance that prohibited cross-burnings based solely on their symbolism. But the Courts decision makes clear that the government may prosecute cross-burners under criminal trespass and/or anti-harassment laws.

A:Yes. Speech does not merit constitutional protection when it targets a particular individual for harm, such as a true threat of physical violence. And schools must take action to remedy behavior that interferes with a particular students ability to exercise their right to participate fully in the life of the university, such as targeted harassment.

The ACLU isnt opposed to regulations that penalize acts of violence, harassment, or threats. To the contrary, we believe that these kinds of conduct can and should be proscribed. Furthermore, we recognize that the mere use of words as one element in an act of violence, harassment, intimidation, or invasion of privacy does not immunize that act from punishment.

A:Historically, restrictions on speech have proven at best ineffective, and at worst counter-productive, in the fight against bigotry. Although drafted with the best intentions, these restrictions are often interpreted and enforced to oppose social change. Why? Because they place the power to decide whether speech is offensive and should be restrained with authority figures the government or a college administration rather than with those seeking to question or dismantle existing power structures.

For example, under a speech code in effect at the University of Michigan for 18 months, there were 20 cases in which white students charged Black students with offensive speech. One of the cases resulted in the punishment of a Black student for using the term white trash in conversation with a white student. The code was struck down as unconstitutional in 1989.

To take another example, public schools throughout the country have attempted to censor pro-LGBT messages because the government thought they were controversial, inappropriate for minors, or just wrong. Heather Gillmans school district banned her from wearing a shirt that said I Support My Gay Cousin. The principal maintained that her T-shirt and other speech supporting LGBT equality, such as I Support Marriage Equality, were divisive and inappropriate for impressionable students. The ACLU sued the school district and won, because the First Amendment prevents the government from making LGBT people and LGBT-related issues disappear.

These examples demonstrate that restrictions on speech dont really serve the interests of marginalized groups. The First Amendment does.

A:Bigoted speech is symptomatic of a huge problem in our country. Our schools, colleges, and universities must prepare students to combat this problem. That means being an advocate: speaking out and convincing others. Confronting, hearing, and countering offensive speech is an important skill, and it should be considered a core requirement at any school worth its salt.

When schools shut down speakers who espouse bigoted views, they deprive their students of the opportunity to confront those views themselves. Such incidents do not shut down a single bad idea, nor do they protect students from the harsh realities of an often unjust world. Silencing a bigot accomplishes nothing except turning them into a martyr for the principle of free expression. The better approach, and the one more consistent with our constitutional tradition, is to respond to ideas we hate with the ideals we cherish.

A:Free speech rights are indivisible. Restricting the speech of one group or individual jeopardizes everyones rights because the same laws or regulations used to silence bigots can be used to silence you. Conversely, laws that defend free speech for bigots can be used to defend civil rights workers, anti-war protestors, LGBT activists, and others fighting for justice. For example, in the 1949 case of Terminiello v. City of Chicago, the ACLU successfully defended an ex-Catholic priest who had delivered a racist and anti-Semitic speech. The precedent set in that case became the basis for the ACLUs defense of civil rights demonstrators in the 1960s and 1970s.

A: Universities are obligated to create an environment that fosters tolerance and mutual respect among members of the campus community, an environment in which all students can exercise their right to participate meaningfully in campus life without being subject to discrimination. To advance these values, campus administrators should:

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Speech on Campus | American Civil Liberties Union

CAPE CORAL, Fla. Should Florida doctors be able to spread information that isnt medically accurate?

A new bill could give your doctor more free speech and make it harder to discipline them for spreading questionable information. While free speech is a right it does have its limits.

Some medical experts say House Bill 687 could make it harder to discipline doctors for spreading misinformation.

Sometimes they can base opinions on their religious beliefs or their background, said Teresa Melendez who has concerns with the bill.

She, like many, feels a doctors right to free speech should not affect her health.

We want something that is scientifically proven for the sake of my health and anybody else, Melendez stressed.

The new bill would give doctors more free speech on social media and it makes it harder to discipline medical experts for spreading misinformation.

Barbara Garret of Fort Myers called it horrible.

Its scary and we trust them for science and information. Thats why you go to them because you feel like youre safe, Garret said.

Dr. Sue Hook runs The Samaritan Health Clinic in Cape Coral and also has concerns with the proposed bill.

Personally Im not going to tell my patients something that I dont know for sure, Hook said.

Dr. Hook, a nurse practitioner with a doctorate degree and specializes in family medicine said she fears HB 687 could muzzle licensing boards meant to hold doctors medically accountable.

If somebody is out there touting untruths and we can prove that is not true and its hurting people they should definitely be placed under some kind of discipline, Dr. Hook said.

The bill requires licensing boards to prove beyond a reasonable doubt that the medical experts post was harmful.

I think this particular bill may have gone a little bit too far, said Dr. Pamella Seay

FGCU Constitutional Law Professor Dr. Pamella Seay stresses that free speech has limits and causing harm is one of those limits.

How far do we go in saying you can talk about everything. Are we going to have snake oil salesmen again? What is it that were going to have, Dr. Seay asked.

The bill also applies to nurses, dentists and massage therapists. The house bill does not have a companion bill yet in the senate, something needed before it could proceed to becoming law.

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Should doctors be allowed to spread medically inaccurate information under free speech? - WZVN-TV

After a jury awarded more than $26 million in damages in a lawsuit against White nationalists who organized and participated in a violent rally in 2017, the mother of a woman who was killed there said the verdict proves speech may be protected but violent actions are not.

Heather Heyer was killed and dozens were injured when James Alex Fields Jr. drove a car into a crowd of counterprotesters to the rally. Fields is serving multiple life sentences for killing Heyer.

The jury in a civil trial on Tuesday found the defendants, which included some of the most prominent figures of the alt-right -- Jason Kessler, Matthew Heimbach, Richard Spencer and Christopher Cantwell -- liable on a state conspiracy claim and other claims regarding the Unite the Right rally in Charlottesville, Virginia.

"The defendants seemed to want to argue that their speech was protected by First Amendment rights, and I would say speech is protected. Action from that speech is not protected," said Susan Bro, Heyer's mother. "So when you speak and you, yourself and others act on that speech, it is no longer protected."

Half of the punitive damages awarded were against Fields. In addition, the jury awarded punitive damages against Kessler, Spencer and Cantwell at $700,000 each, and Heimbach for $500,000.

The events surrounding August 11-12, 2017, saw White nationalists and supremacists marching through Charlottesville and the University of Virginia campus chanting, "Jews will not replace us," "You will not replace us" and "Blood and soil," a phrase evoking Nazi philosophy on ethnic identity.

The violence -- which enveloped the rally to protest the planned removal of a statue of Confederate Gen. Robert E. Lee -- reached a crescendo when Fields, who was protesting the statue's removal, sped his car through the crowd, injuring dozens and killing Heyer.

Bro said she wanted people to "stop putting Heather on a pedestal."

"She was a normal 32-year-old, feisty woman," Bro told CNN's John Berman. "She had rough edges, just like anybody, and she was a random murder in a mass car attack. She just happened to be the one that took the brunt force."

"So what I want you to take away from that is, stand up and do the right thing. You don't know what kind of impact that will have," Bro said.

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The jury's decision "speaks volumes to trying to set things straight" in her daughter's murder, Bro said.

"This is the first, and God knows I hope, the only murder in my life," she said. "I don't know that you ever feel complete justice. But I don't know what else could be done."

The plaintiffs included town residents and counterprotesters injured in the violence, and Bro said she was proud of them "for not buckling under pressure when questioned by the defendants."

Attorneys for the plaintiffs said on Tuesday they were "thrilled" with the verdict.

"Today's verdict sends a loud and clear message that facts matter, the law matters, and that the laws of this country will not tolerate the use of violence to deprive racial and religious minorities of the basic right we all share to live as free and equal citizens," plaintiffs' attorneys Robert Kaplan and Karen Dunn said Tuesday.

Despite the large jury award, there's the question of whether the plaintiffs will see much of that money. While Fields is serving multiple life sentences, some of the other defendants -- individuals and White supremacist organizations -- have indicated they are financially stressed.

"The defendants in the case are destitute, none of them have any money," said attorney Joshua Smith, who represented three defendants. "I don't know how any of the plaintiffs are going to get anything for any of this."

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Heather Heyer's mom on Unite the Right verdict: Free speech is protected, but violent actions are not - jacksonprogress-argus

Tom Leatherbury| Special to the Avalanche-Journal

To use his words, Texas Gov.Greg Abbott has a problem when it comes to censorship and double standards. Abbottrecently assertedthat Big Tech companies are the ones with a big problem when it comes to censorship and double standards, but those claims could be easily used to categorize one of the host of new laws that the governor encouraged the Texas Legislature to pass to compel speech the government approves and suppress speech the government disapproves the new social media censorship law, House Bill 20.

This unconstitutional law attacks the very companies that facilitate safety and well-being for their users by combating misinformation the same companies that Abbott is courting to bring good-paying jobs to Texas.

Abbott has praised House Bill 20, signed into law on Sept.9, 2021, for protecting Texans from wrongful censorship on social media platforms. The law prevents tech companies with 50 million monthly users or more from banning users based on political or religious viewpoints wherever those viewpoints are expressed. The law also requires multiple disclosures about content moderation practices and processes by these companies, sets a 48-hour deadline for the review and removal of illegal content, and creates nearly insurmountable obstacles for email service providers to block spam and other unwanted messages.

While the bills supporters may claim the law is protecting the First Amendment rights of Americans, in reality, the law tramples the free speech of private American companies. House Bill 20 is even more draconian than a recent Florida law that a federal judge held unconstitutional on multiple grounds and preliminarily enjoined from taking effect.

Judge Hinkles injunction against this Florida law set the record straight, stating that the First Amendment says "Congress"shall make no law abridging the freedom of speech or of the press. The Fourteenth Amendment extended this prohibition to state and local governments. The First Amendment does not restrict the rights of private entities not performing traditional, exclusive public functions. In short, the First Amendment provides that a state government, like Florida and Texas, cannot abridge the speech rights of a private company, like Google.

The Florida federal court concluded that tech companies are private entities with First Amendment rights of editorial discretion and that state governments do not possess the power to disregard these rights. However, Gov.Greg Abbott and the Texas Legislature do not seem to care about this federal court ruling or the United States Constitution. They disregarded both by passing House Bill 20 and signing it into law.

Texas taxpayers will bear the financial burden of watching House Bill 20 being declared unconstitutional now that NetChoice and the Computer and Communications Industry Association have filed a lawsuit against the state of Texas to invalidate House Bill 20.

Aside from infringing on companies constitutional rights, laws like House Bill 20 make it more difficult and expensive for companies to create enjoyable and secure products for users. Technology companies have stepped up and have made robust investments to keep products family-friendly, clean from hate speech and misinformation, and safe from illegal activity.

House Bill 20s drastic measures could easily impose significant additional costs on tech companies. Preventing companies from moderating content might score Texas politicians some cheap political points, but it will cost users and taxpayers severely. Texas officials should be empowering tech companies to continue their efforts to enhance safety from hate speech and misinformation, not disincentivizing them with costly, unfair, and unconstitutional laws and regulations.

Perhaps the largest insult to tech companies and Texans can be attributed to Abbotts double standards. He is using House Bill 20 to target and hurt the very companies that he is actively recruiting to invest in the state of Texas. On one hand, Texas is courting tech companies to bring good-paying jobs and economic vitality to the people of Texas, but on the other, the governor and other Texas officials are on a mission to punish the same companies who could bring those immense benefits to our economy.

It's time for Abbott to embrace the economic free market principles that have made Texas attractive to so many businesses and stop encouraging the passage of unconstitutional legislation.

Tom Leatherbury is the director of the First Amendment Clinic at Southern Methodist University Dedman School of Law and Texas counsel to Electronic Frontier Foundation in NetChoice v. Paxton, the constitutional challenge to House Bill 20. The views expressed are his own.

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Leatherbury: Meet Greg Abbott: The governor of censorship and double standards - LubbockOnline.com

Heather Cox Richardson| Letters from an American

On Nov. 22, the International Institute for Democracy and Electoral Assistance, based in Stockholm, Sweden, released its 2021 report on The Global State of Democracy.

Democracy is at risk, the reports introduction begins. Its survival is endangered by a perfect storm of threats, both from within and from a rising tide of authoritarianism. The world is becoming more authoritarian as nondemocratic regimes become even more brazen in their repression and many democratic governments suffer from backsliding by adopting their tactics of restricting free speech and weakening the rule of law.

The report identifies the United States as one of the democracies that is backsliding, meaning that it has experienced gradual but significant weakening of Checks on Government and Civil Liberties, such as Freedom of Expression and Freedom of Association and Assembly, over time.

The United States, the bastion of global democracy, fell victim to authoritarian tendencies itself, and was knocked down a significant number of steps on the democratic scale, the report says.

That fall continues to be pushed by malign foreign actors. An investigation by Jordan Liles ofSnopes.comshows that foreign social media accounts are magnifying right-wing voices. In the wake of the Rittenhouse acquittal, for example, foreign accounts posing as Americans appeared to celebrate the jurys decision.

FrankFigliuzzi, the former assistant director for counterintelligence at the FBI, tweeted that of 32,315 pro-Rittenhouse hashtag tweets from Nov.19-20, 29,609 had disabled geolocation. Of them, 17,701 were listed as foreign, and most of those were in Russia, China, and the EU.

Plenty of Americans are along for the authoritarian ride, too. A story by David A. Fahrenthold, Josh Dawsey, Isaac Stanley-Becker, and Shayna Jacobs in theWashington Postthis week reveals that the Republican National Committee (RNC) is using party funds to pay some of former president Donald Trumps legal bills. Allies of RNC chair Ronna McDaniel note that since Trump is the biggest draw the party has for fundraising, it is important to cultivate his goodwill.

This dumps the RNC into the Jan.6 insurrection mess by aligning the partys central organization with Trump.

That mess is deepening. Today the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol issued five new subpoenas to people involved in planning the rallies in Washington, D.C., on Jan.6 and the subsequent march to the Capitol.

Committee chair Bennie Thompson (D-MS) said: We need to know who organized, planned, paid for, and received funds related to those events, as well as what communications organizers had with officials in the White House and Congress.

Two days ago, Representative Zoe Lofgren (D-CA), who sits on the committee, toldCNNthat many of the people theyve interviewed so far more than 200 have been Trump officials who testified voluntarily and wanted to be subpoenaed for cover.

In Washington, D.C., today, at a hearing for one of those charged in the riot at the Capitol that day, U.S. District Court Judge Carl Nichols, a Trump appointee, sought to define what it means to interfere with an official federal government proceeding. About a third of those charged in the attack on the Capitol have been charged with this crime, which carries a penalty of up to 20 years in prison. Nichols asked a prosecutor today whether calling Vice President Pence to seek to have him adjudge the certification in a particular way would be obstruction.

Thats a key question.

Trumps influence took some hits today. Sean Parnell, the Trump-backed candidate for Pennsylvania senator, suspended his campaign after losing a custody battle with his ex-wife. She accused him of physical and emotional abuse of her and their children.

Today, conservative columnist Max Boot called out Republican lawmakers for fomenting violent extremism and noted that they have also become hostage to the extremists in their ranks because they fear for their safety should they stand up to the Trump loyalists. Right-wing extremists have threatened the lives of the 13 Republicans who voted for the bipartisan infrastructure bill.

Two long-standingFox News Channelcontributors, Steve Hayes and Jonah Goldberg, quit the enterprise today over Tucker Carlsons three-part seriesPatriot Purge. That series, they wrote, is presented in the style of an expos, a hard-hitting piece of investigative journalism. In reality, it is a collection of incoherent conspiracy-mongering, riddled with factual inaccuracies, half-truths, deceptive imagery, and damning omissions.

They say they could no longer work at theFox News Channelbecause we sincerely believe that all people of good will and good judgment regardless of their ideological or partisan commitments can agree that a cavalier and even contemptuous attitude toward facts, truth-seeking, and truth-telling, lies at the heart of so much that plagues our country.

Heather Cox Richardson is a professor of American History at Boston College and author of the blog, Letters from an American.

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The United States of Authoritarianism - Palm Beach Post

By Joan Biskupic, CNN legal analyst & Supreme Court biographer

Since his first job as a young lawyer in Washington, John Roberts work has been entangled with Roe v. Wade, the 1973 decision that gave women a right to end a pregnancy.

He helped hoist the banner against Roe in the Ronald Reagan and George H.W. Bush administrations. But years later, during 2005 Senate hearings for the chief justice post he now holds, Roberts testified that Roe should be respected as precedent, particularly after being affirmed in 1992. And he has largely held to that.

Now, Roberts, the Supreme Court and the country face a pivotal moment for abortion rights. And Roberts action in a dispute the court will take up this week, over Mississippis 15-week abortion ban, could be his most consequential. He leads a conservative bench that, since last years succession of Amy Coney Barrett for Ruth Bader Ginsburg, has appeared on the precipice of reversing Roe v. Wade.

Dueling parties in the Mississippi case known at Dobbs v. Jackson Womens Health Organization have laced their briefs with lines from Roberts opinions regarding abortion rights and the value of adhering to precedent or, alternatively, discarding it. The chief justice writes with care, never leaving himself in cement, which lets both sides emphasize the words that suit their purpose.

Roberts represents more than one vote among the nine. As chief, he steers the discussion. If he is in the majority, he also assigns the opinion that will speak for the court. Further, Roberts has tried to inspire public confidence in the federal judiciary and repeatedly argued that its opinions reflect justices neutral, impartial views rather than any political instincts.

Polls show that public approval of the court has dropped in recent months, notably since September 1 when the majority allowed a Texas ban on abortions after roughly six weeks of pregnancy to take effect even as litigation over the law that plainly conflicts with Roe v. Wade was underway. Roberts broke from his colleagues on the right wing in that case, dissenting as he wrote that the court should at least temporarily suspend the ban while courts assessed the validity of the law. The court heard oral arguments on November 1 and has yet to rule.

Unlike the distinct procedural dispute in the Texas case, the Mississippi abortion controversy goes right to the heart of abortion rights, testing whether women nationwide have a right to end a pregnancy before viability. That is, when a fetus can live outside the womb, at 22-24 weeks.

Both Roe v. Wade, nearly a half century ago, and the decision that affirmed it two decades later, Planned Parenthood v. Casey, declared viability to be the cutoff line for when the pregnant womans interest could be eclipsed by protection for the fetus.

Casey reaffirmed the most central principle of Roe v. Wade, a womans right to terminate her pregnancy before viability,' Roberts wrote in a 2020 Louisiana case as he quoted the 1992 decision.

The question now is whether that line will hold.

After graduating from Harvard law school and completing a Supreme Court clerkship with then-Associate Justice William Rehnquist, Roberts joined the Reagan administration in 1981.

Reagan had campaigned on a platform against Roe v. Wade and a declaration of the sanctity of innocent human life. His administration worked against reproductive rights in its policy agenda and court filings.

Roberts, who was a junior lawyer in the Reagan Justice Department and then White House counsels office, assumed more responsibility for the administrations legal agenda when the first President Bush came to office in 1989. Roberts became deputy US solicitor general, representing the federal government before the high court.

Roberts shepherded the 1991 case of Rust v. Sullivan, as the administration argued it could forbid family planning clinics that received federal funds from providing abortion counseling. The case tested whether that prohibition impinged the free speech of physicians and other health care providers.

We continue to believe that Roe was wrongly decided and should be overruled, the Bush administration asserted in the brief signed by Roberts. It contended Roe v. Wade lacked any support in the Constitutions text or history. The high court had grounded the right to end a pregnancy in the Fourteenth Amendments due process guarantee of personal liberty and relied on past cases affirming personal privacy rights.

The Supreme Court ruled narrowly for the Bush administration in Rust v. Sullivan, letting the government forbid abortion-related counseling at federally funded clinics, but forgoing any new review of Roe.

The following year, in the 1992 Planned Parenthood v. Casey case, justices in the majority highlighted at the outset that the Reagan and Bush administrations had argued in a total of six cases over the previous decade for reversal of Roe: Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a womans right to terminate her pregnancy in its early stages, that definition is still questioned. Joining the respondents as amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe.

During Senate hearings when President George W. Bush chose him first for a US appellate court and then elevated him to the Supreme Court, Roberts said his arguments on behalf of past administrations reflected his professional advocacy and not necessarily his personal views. He also said Roe was entitled to respect under principles of stare decisis, that is, adherence to precedent.

Unlike fellow conservative Justices Clarence Thomas, Samuel Alito and Neil Gorsuch, Roberts has declined to publicly press for reconsideration of Roe in his writings as a justice.

He also has not voted as rigidly against abortion rights as Justice Brett Kavanaugh or been as personally outspoken as Barrett. Before becoming a judge, Barrett, a Notre Dame law professor, was a vocal critic of Roe v. Wade, including signing a statement that denounced Roes barbaric legacy and called for the unborn to be protected in law.

Roberts is a lifelong Catholic whose wife, Jane, provided pro bono legal counsel to anti-abortion nonprofit Feminists for Life. Roberts told senators in 2005 that his faith would not be a factor in his rulings.

Two years after his confirmation, Roberts helped forge a five-justice bloc to rule that the federal government could ban an abortion procedure in which the womans cervix is dilated and the fetus is removed intact. Critics called it partial birth abortion. The 2007 Supreme Court decision essentially reversed a 2000 ruling that had invalidated a similar prohibition on the procedure under Nebraska law.

The Supreme Courts next major abortion case came nearly a decade later, in 2016, and Roberts dissented as the majority struck down Texas requirements that physicians who perform abortions obtain admitting privileges at a local hospital and clinics convert to costly, hospital-grade facilities.

But in a 2020 dispute over similar physician credentialing requirements in Louisiana, Roberts voted against the law based on that 2016 precedent. Roberts said he still disagreed with the 2016 decision but would follow it as precedent. His rationale and key decisive vote in that case of June Medical Services v. Russo would, however, bolster states ability to defend abortion regulations.

The Mississippi case stands to transform reproductive rights. It centers not on a discrete regulation of abortion but a wholesale ban after 15 weeks of pregnancy. The state wants the high court to reverse the holding of Roe that protects a womans decision to end a pregnancy before viability.

Mississippi officials assert that Roe and Casey are indefensible, and they retrieve lines from Roberts opinion in the 2020 Louisiana case suggesting the balancing of government interests and womens reproductive rights should be left to legislators, not judges.

Mississippis lawyers highlight Roberts vote and concurring opinion in the 2010 case of Citizens United v. Federal Election Commission, when the justices by a 5-4 vote reversed precedent and lifted regulations on corporate independent expenditures in election campaigns.

Stare decisiss greatest purpose is to serve a constitutional ideal the rule of law,' the Mississippi state lawyers write, adopting Roberts phrasing from 2010 and arguing that adhering to Roe and Casey does more to damage this constitutional ideal than to advance it.'

A group of constitutional law scholars backing the Jackson Womens Health Organization counter those arguments with other lines from Roberts Citizens Union opinion, noting he wrote that Fidelity to precedentthe policy of stare decisisis vital to the proper exercise of the judicial function. Even as he voted to overturn precedent, Roberts had observed in that case that stare decisis promotes predictable development of the law, fosters reliance on rulings and contributes to perceptions of judicial integrity.

Jackson Womens Health Organization itself briefly cites Citizen United as it asserts that while some may disagree with past rulings, it is critical that judicial protection hold firm absent the most dramatic and unexpected changes in law or fact, so justices not be seen as merely exercising their own preferences.

Other supporters of Jackson Womens Health Organization, including the Department of Justice, represented by the administration of Joe Biden, revive Roberts assertion from the June Medical Services case that for precedent to mean anything, the doctrine (of stare decisis) must give way only to a rationale that goes beyond whether the case was decided correctly.

And that is the essence of the Supreme Courts loyalty to precedent. The principle goes beyond whether a decision can be called correct or incorrect, to whether it remains so central to the fabric of American law and sufficiently relied on to in the end preserve.

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Chief Justice John Roberts is at the epicenter of an abortion dispute before the Supreme Court - KTVZ

Rob Miraldi| Special to the USA TODAY Network

Patricia Dilascio and her daughter, Andrea Dick, live in Roselle Park, New Jersey 15 minutes from Newark Airport, 40 minutes from New York City.Theyre supporters of former President Donald J. Trump.They think he won the last election, that it was stolen. Which a lot of people believe although it is kind of like saying the earth is flat.

But they wanted to declare their anger and everlasting support for the former President and so they put up four posters on their property: [Expletive] Biden, Socialism Sucks, Biden Blows, and Joe Biden Sucks. Their opinion was clear.

But the boroughs officials took offense at the F-word, in part, because an elementary school was around the corner.Not that kids havent heard that word before, but understandably one might not want to have them see it every day on the way to school. The town sued and a judge agreed, saying, "Freedom of speech is not simply an absolute right. We cannot simply put up the umbrella of the First Amendment and say everything and anything is protected speech.

And he is correct but he misses the forest for the trees.

This Roselle Park family is angry at the political outcome and, above all, the First Amendment allows people to vent their political opinions and criticize their government.

They dont like President Joe Biden.Fair enough.

There is a troubling aspect to protecting their speech, however, and it has nothing to do with their opinion.After all, government cannot discriminate against any opinion.But can they try to keep some sense of decency and decorum in the public forum? In this case, it is not the opinion that is offensive, but the language, the dirty words that upset so many people.

And the crude language, the hostility in our relationships, the coarsening of the culture it is all spreading like another virus with no vaccination in sight.In Kokomo, Indiana, Brandon Adams was told to take down a flag he put up in September. It read, [Expletive] Biden and [Expletive] you for voting for him! He was upset that the president had told a federal agency to mandate vaccinations for employees. A heated and legitimate issue, for sure.It was the F word that led to the cringing, not the opinion.

Citing a town law that bans statements, words, or pictures of an obscene, indecent, or immoral character, such as will offend public morals or decency, Adams was facing a $1,000 a day fine.

For subscribers: In a Jersey suburb, a vulgar flag sparks a battle over free speech

So, what takes precedence decency or free speech? Or are they so intermingled as to be inseparable?

The U.S. Supreme Court weighed in back in 1971, when Paul Robert Cohen walked the corridors of a California court with the Vietnam War still raging wearing a jacket emblazoned with [Expletive] the Draft. He was arrested, charged with maliciously and willfully disturb(ing) the peace or quiet of a neighborhood.

But he was not really looking to curse out anyone in particular, similar to the New Jersey and Indiana protestors. He just displayed what the Court daintily called this unseemly expletive while also making an important statement. It was, clean and simple, political speech which has always gotten the highest level of First Amendment protection.

When he wore the jacket in 1968, forced conscription to the military the draft was controversial and despised by a generation, especially so during an unpopular war that was increasingly questioned as a fiasco with no real purpose. The use of the F-word spoke to the depth of the opinion about a conflict that would kill 58,000 Americans and cost $25 billion a year.

At first blush, the austere Supreme Court said, this case may seem too inconsequential to find its way into our books, but the issue it presents is of no small constitutional significance.

And that is why I take it up: [Expletive] Biden is the new rage. Its chanted at football and baseball games; its on mugs and t-shirts and bumper stickers. Search Amazon and youll find dozens of items with this logo as well as dozens with the same profanity directed at Trump.

Comedian George Carlin called it one of the most interesting words in the English language. The only word that is referred to as the F-word. One magical word just by its sound can describe pain, pleasure, hate and love.

And the Supreme Court recognized this.

It conveys not only ideas, but otherwise inexpressible emotions as well, wrote Justice John Harlan.

When you attach the word to a political message, it is powerful indeed.As Carlin pointed out in his famous Seven Dirty Words comedy sketch, it is the word you save for the end of argument: [Expletive] you and everyone that looks like you.Its meant to be offensive and as the court put it, emotive.Stirring deep emotions.

If the word was used in a public setting in a purely sexual way, we might have a different discussion about whether its protected.But the banners and flags under fire were about politics, not sex.The idea that Trump won the last election is absurd, frankly, but it is not up to the government, nor me, to decide if that message should survive.The marketplace of ideas decides what speech survives.Even if the F-word is attached.

But is there no limit to how we can be assaulted with words without the government policing the public sphere, acting as guardian of public morality?

The Court answered: We are often 'captives' outside the sanctuary of the home and subject to objectionable speech.

Only an invasion of substantial privacy would lead to government intervention. And these posters are not it. hey are protected political speech. So long as it is peaceful.

Hear that, Jan. 6 protestors?

The Supreme Court understood that the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance. That the air may seem filled with verbal cacophony, however, is not a sign of weakness but of strength.

Indeed, as Justice Felix Frankfurter has famously noted, one of the rights of citizenship is the ability to criticize public people and policy and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation."

Maybe, just maybe, if we spoke in more civil terms, protestors could be convinced to take down the offending word.

Roselle Park ultimatelyrelented and dropped its sanctions againstDilascio.

You cant legislate being a good neighbor, says Roselle Park Mayor Joe Signorello. I hope, personally, she takes down the indecent signs because its the right thing to do.

And moral suasion might help, but overriding the First Amendment is not the solution.

Rob Miraldis teaches journalism at the State University of New York. He can be reached via Twitter @miral98 and e-mail: miral98@aol.com.

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Free speech can still be offensive speech. Here's why | Miraldi - Poughkeepsie Journal

By Austin Campbell

News Editor

acampbell@unca.edu

Trends in America and globally have blurred the line between true freedom of speech and limited freedom of speech. As a result, moral questions tied to our rights have taken place. Is it OK to say something offensive if it hurts another? Should we control or limit someones speech if we want to silence a disagreeable opinion collectively?

In recent years, society has taken shape to become a great echo chamber of thoughts, ideas and reactions, a seeming hive-mind collective of the moral dos and donts, of what to say, think or how to react to events.

Many trends in the US will have young people regurgitating trendy words or ideas off social media. Unfortunately, the consistent stimuli doesnt give anyone the ability to think over a thought long enough to form their own opinions.

We see and hear provocative things on a day-to-day basis now, and more often than not, some of the things we encounter can be pretty violent or enraging. For example, in the political limelight shines a hot-topic, controversial and highly polarizing court case, WI v. Rittenhouse. Everyone you encounter who knows about the case has an opinion, and more often than not, its not very neutral.

The case highlights a dissonant split in America at the moment. You think Rittenhouse is innocent? You must be a Trumpster-loving gun-toting maniac. or the contrary, You think hes guilty? I bet youre a liberal snowflake who voted for sleepy Joe.

Realistically speaking, most people choose their stances in life because what theyve been told aligns with their political parties, not because they feel that way. So how would anyone who hasnt professionally or legally analyzed this case know what theyre talking about?

Most people have seen the videos of the shootings in Kenosha, but without being there, people have seriously uninformed opinions about the case. Americans on both sides of the political spectrum echo the repeat-after-me style phrases from their political parties or friends.

The public education system honed Americans not to think too critically about the information presented to them, to not retain essential facts and learn the exact phrasing needed to pass the tests. Unfortunately, that imprinting doesnt simply wash away after high school graduation, it also bleeds into our beliefs on freedom of speech.

Weve got a modern society of worker drones who are trying to pass the collective test of their peers and what they think is the answer to being an American.

Our actual free speech and concept of self-originality have been overruled by societal groupthink and the cozy ideals of not making people uncomfortable.

The definition, why does it not make sense?

The definition of free speech is blurry at best and downright confusing at worst. The definition has only loosely taken shape through court cases over the previous centuries. Free speech has its limitations, typically drawing the line of legality over the term obscenity.

In the court case Miller v. California (1973) the US Supreme Court legally defined obscenity. First, the average person, applying contemporary community standards, must find that the work, taken as a whole, appeals to prurient interests. Second, the material in question depicts or describes, in a patently offensive way, sexual conduct as defined by state law; and third, that the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.The issue arose when the defendant, Miller, sent a large number of pornographic advertisements to houses in support of the sale of adult films or items. Though we have a clear definition of what actions or ideas are considered obscene, with the inclusion of child pornography in New York v Ferber (1982), actions that large sections of America find offensive are still legally protected. In the US, there is no legal definition of hate speech. Even more so, some statements regarded as hate speech are legally protected by the constitution. We have decided to allow the horrific extremes of free speech because the minute we start to control expression, no one truly knows what the legislation will manipulate next. In Virginia v. Black (2003) the case ruled that the Klu Klux Klan burning crosses was a true threat, to freedom of speech in America. The court case is essentially stating that its legally OK to be racist or in a hate group, until your actions start to terrify or cause terror in public.Cohen v. California (1971) a court case over free speech regarding clothing, protecting individual rights to wear what they want. A man wore a jacket that said Fuck the draft, stop the war! about the Vietnam war. The supreme court ruled in favor that he was allowed to wear it. One mans vulgarity is anothers lyric, said Justice John Marshall Harlan, in regard to the case.These shifts in tone between cases can leave a large sense of legal ambiguity and confusion on what the American government and constitutional rights properly protect. Where does the legal line for free speech genuinely rest, and who does it protect in America? As for confusion, its legally OK to wear a Nazi brown shirt and Totenkopf SS death camp hat to Ingles so long as theyre not handing out child porn to the crowd. Though sounding like an extreme example I created, this was a true instance I witnessed in Black Mountain, N.C. this month.Free Speech: Choosing legality over morality In Western North Carolina and the entirety of the South-Eastern US, there are undeniable actions of racism or hate that are present in our culture.

According to the Southern Poverty Law Center, there are 29 known and active hate groups in N.C. as of 2020. These groups, as defined by the law center, range from white supremacy-based, anti-immigration-based, anti-white-based, to generalized hate groups. However, these varying groups have one major thing in common: they exhibit hate and publicly express it through actions and words.

So long as these groups or hateful individuals are not harassing a person, their words and actions are legally protected.

First amendment protections also extend beyond speaking. They also protect the actions that Americans take, including how we dress or represent ourselves.

This is why its legally, though not morally, acceptable to be a neo-Nazi in the US. Only in a country so supportive of true freedom of speech could people take these controversial political stances.

There is a certain irony with Americans exercising their right to free speech to take on Nazi ideology. Only by having that American freedom are they allowed to have those viewpoints and essentially live action role play as Nazi soldiers. Historically, the Nazi regime did not support free speech or freedom of expression. If these neo-Nazis openly expressed themselves in a similar way that they are in the US, they would have been executed.

American and Allied military members fought and killed millions of Nazis to protect the American right to free speech, and now you have these neo-Nazi Americans who dress up as a disgusting adversary of the American ideaology of equality for all. Hundreds of thousands of Americans have fought and died to protect our rights as a country. I was a former active duty US Air Force member, now a disabled veteran. I was willing to kill or be killed to protect our rights as Americans. There were people I served with who I disagreed with politically. There are millions of Americans I dont agree with on a single personal or political issue, but I would still die to ensure their ability to believe what they want to think.

Therein lies another question should America allow freedom of expression for political groups that dont support any expression in their platform? Fascist and communist governments worldwide dont let their citizens take any view unparalleled to their government beliefs, yet America does. Take the extreme examples of censorship in countries such as Eritrea or North Korea or Mexico, countries that kill and jail journalists and citizens for expressing their thoughts.Equal opportunity for all includes equality for hatred, equal opportunity for political ideology and equal opportunity for expression. Anyone can hate anyone, can offend anyone and can say whatever they want. In the same way that someone can express an offensive idea, its an equal right for people to take offense. Typically, the strongest emotions evoked on free speech factor during displays of hatred or bigotry toward another person or group. However, contrary to popular belief, controversial opinions are also protected under the first amendment. Though there are significant gaps in the legal definition of free speech, many Americans should consider their morality with choosing their actions.

To have such a great right, such as freedom of speech, we must accept the consequences of unrestricted freedom. We cannot censor our fellow citizens just because we dont like their opinion. We need to pride ourselves on our extraordinary diversity and spectrum of people that live in this country. Above all, remind ourselves that were all American, no matter what our beliefs are.

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Our amendment rights, where to draw the line The Blue Banner - The Blue Banner

The Faculty Senate voted Thursday to table a vote on endorsing recommendations from the Planning and Policy Board (PPB) Subcommittee on Campus Climate and bring the matter back for discussion before the end of the academic year.

David Palumbo-Liu, chair of the Planning and Policy Board Subcommittee on Campus Climate, provides a report during Thursdays Faculty Senate meeting. (Image credit: Andrew Brodhead)

The recommendations focused on addressing personal attacks over disagreements around ideas, which the subcommittee said in its report are demeaning and damaging to free speech.

We are deeply concerned that as national politics have become increasingly polarized and militant, so too has the climate on our campus, the report reads. We fear this will only worsen as we approach the 2022 midterm elections, and the 2024 presidential election. Since the Civil War, our country has never been as radically split, and our belief is that issues of race and diversity lie at the heart of this deepening discord, both nationally and at Stanford.

The issue, involving concerns of free speech and academic freedom, drew lengthy and passionate discussion from senators during their last meeting of the fall quarter, before the vote to table the issue.

Also at the meeting, the senators heard an update on the new school focused on climate and sustainability, and Provost Persis Drell during her report to the senate talked about the results of the campus-wide Diversity, Equity and Inclusion survey released this week.

While disagreement and criticism are a sign of a robust campus climate, when disagreement lapses into harassment, threats and violence designed to silence or drive other students from the University, it has left the domain of free speech and become a form of assault, the PPB Subcommittee report reads. And when anyone of any persuasion engages in this kind of behavior, they are violating Stanfords core principles.

In a presentation on the PPB Subcommittees report, which culminates two years of work, Subcommittee Chair David Palumbo-Liu said: These kinds of attacks are meant to use up our energy. They are meant to shackle administrators, make scholars afraid of saying anything because anything can be distorted and put on the web with devastating effects. Palumbo-Liu is the Louis Hewlett Nixon Professor and a professor of comparative literature and, by courtesy, of English.

The PPB Subcommittees report included four recommendations that it asked the Faculty Senate to endorse:

Some senators, such as Condoleezza Rice, former U.S. Secretary of State and current Tad and Dianne Taube Director of the Hoover Institution, said they didnt feel like conservative students or faculty members could see themselves in the report.

However, Palumbo-Liu underscored that it was not a conservative or liberal issue, but rather about a pattern of behavior.

Why not use this as an aspirational document to say lets bring in all interested parties and reach a consensus of non-harm? he said.

The report noted that this same form of conflict also occurred at Stanford in the late 1980s when the university first chose to diversify its curriculum and made strides in addressing sexual violence. Today, some are still carrying out personal attacks in response to social and cultural change, the report reads, but are now using well-developed networks and media, making them more dangerous.

Stanfords commitment to diversity must include protecting and supporting a person from all forms of harassment, attack and malice throughout their time at Stanford, the report said.

Debra Satz, the Vernon R. and Lysbeth Warren Anderson Dean of the School of Humanities and Sciences, said she agreed on the importance of protecting members of campus but expressed concern that the recommendations are vague, including what counts as malicious and what it means to actively protect all those who are targeted.

Subcommittee member Richard Ford, the George E. Osborne Professor in Law at the Law School, responded that drafting precise rules wasnt the subcommittees charge, adding that terms like malicious and harm are often used in legal statutes.

Senators who supported tabling the motion emphasized that it would come back to the senate for consideration after further work was done on it. David Miller, the W.M. Keck Foundation Professor in Electrical Engineering, said he was very much in favor of tabling, noting its not because I dont want this to happen. I want us to get it right and I think if we get it wrong, it will be more harmful and may have adverse repercussions.

This is really a tough time and learning to be able to have this conversation seems to me an extremely important situation and way to model for our community, said senate Chair Ruth OHara, the Lowell W. and Josephine Q. Berry Professor, professor of psychiatry and behavioral sciences and senior associate dean for research at the School of Medicine. There are disagreements here and I totally believe we can reach consensus here. I do hope we can engage the committee that did so much hard work in the dialogue going forward.

The Faculty Senate also heard from Kathryn Kam Moler, vice provost and dean of research, and Stephan Graham, the Chester Naramore Dean of the School of Earth, Energy and Environmental Sciences (Stanford Earth), about progress toward creating the new school focused on climate and sustainability, which will launch September 2022.

When it launches, the new school will join together Stanford Earth, the Stanford Woods Institute for the Environment, the Precourt Institute for Energy, the facilities of Hopkins Marine Station and the Department of Civil and Environmental Engineering (joint with the School of Engineering) and will expand those to include faculty from across the university and new hires that will bring new scholarship in emerging disciplines.

Moler and Graham, who are leading efforts to develop the school, said two teams of faculty are working toward creating a school based on the blueprint that was announced in July 2021. That blueprint includes departments organized into transitional divisions, an accelerator and three institutes, including the Stanford Woods Institute for the Environment, the Precourt Institute for Energy and a new Sustainable Societies Institute.

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Faculty Senate votes to table recommendations for addressing attacks designed to silence free speech - Stanford Report - Stanford University News

What can't be taught in North Dakota and Texas Schools now that they've banned critical race theory? How can a teacher discuss slavery, civil rights or the history of redlining?

Critical Race Theory is the latest under attack by conservatives. Now American history is being erased by the GOP in North Dakota and Texas. Will your child's school be next?

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Civil Rights Critical Race Theory Redlining Slavery The Thom Hartmann Program Thom Hartmann

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Slavery, Civil Rights & the History of Redlining - Free Speech TV