Category Archives: Free Speech

On March 27, the Liberty Justice Center filed an amicus brief urging the U.S. Supreme Court to hear No on E v. Chiu, a case challenging San Franciscos compelled disclosures for political speech.

Under Proposition F, the City of San Francisco requires independent groups who wish to express their views on political issues to fill up most of their ads with disclosuresnot only of their own donors, but also their donors donors, monopolizing the communication with redundant and often misleading disclaimers.

In its amicus brief, the Liberty Justice Center urges the Supreme Court to hear the case, arguing that hijacking political expression with onerous disclosure requirements violates the First Amendmentboth directly, by compelling speech, and indirectly, by chilling speech due to privacy concerns.

These overbearing disclosure requirements force individuals and organizations to censor their speech or convey a message from the governmentboth commandeering and chilling speech in violation of the First Amendment, said Reilly Stephens, Counsel at the Liberty Justice Center.

These restrictions are especially offensive to the First Amendment because they interfere with core political speech, such as discussion of elections, by removing the focus of a communication from the issue actually being discussed and redirecting it to a groups donorsand to its donors donors, continued Stephens.

The Liberty Justice also filed an amicus brief in No on E v. Chiu when the case was at the U.S. Court of Appeals for the Ninth Circuit.

The Liberty Justice Centers amicus brief with the Supreme Court is available here.

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The Liberty Justice Center Urges the U.S. Supreme Court to Uphold Protections for Free Speech in Donor Disclosure ... - Liberty Justice Center

Republicans are pushing anti-free speech legislation as they try to restrict antisemitism in their states.

Free speech, particularly at college campuses, has been a primarily conservative issue in the US for well over a decade. But in response to anti-Israel activism from Left-wing student groups, Republicans have made exceptions to their commitment to free speech both in law and spirit.

Texas Governor Greg Abbott published an executive order on Wednesday urging universities to change their free speech rules in order to punish antisemitism. Review and update free speech policies to address the sharp rise in antisemitic speech and acts on university campuses and establish appropriate punishments, including expulsion from the institution, the order read, explicitly singling out the campus groups Palestine Solidarity Committee and Students for Justice in Palestine.

In a press release, the Governor said he wanted universities to be safe spaces for Jewish students, a phrase that has been widely mocked by conservatives in recent years. Abbott himself signed legislation bolstering campus free speech in 2019.

The Foundation for Individual Rights and Expression (FIRE) has said the Texas order is a form of state-mandated campus censorship which suggests particular organisations should be punished for their views in violation of the First Amendment.

The move was also met with criticism from some on the Right. How is such a policy different from DEI programs promising to prohibit anti-black speech? asked activist Christopher Rufo. The problem, to me, seems to be conduct, rather than speech: shutting down speakers, threatening students, mobilizing mobs, calling for violence all of which can be regulated as prohibited conduct, with a universal, rather than particular, policy.

Texas is just the latest example of a broader Republican push against free speech. A few months earlier, Florida Governor Ron DeSantis ordered Students for Justice in Palestines University of Florida chapter to be disbanded for allegedly supporting terrorists after its national organisation said Palestinian students in exile are PART of this movement, not in solidarity with this movement. Providing material support for terrorist organisations is illegal under Florida law, but some free speech advocates have argued that the groups support for Hamas was rhetorical, not material, and thus the crackdown violated the groups free speech rights.

Other efforts to restrict antisemitism similarly hover near the line of free speech violations: a number of states, led by both Republicans and Democrats, have adopted official definitions of antisemitism aligned with that of the IRHA, which includes the act of denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a state of Israel is a racist endeavor as a form of discrimination.

The American Civil Liberties Union (ACLU) argues that this definition penalises constitutionally protected criticism of the state of Israel. About half of states, including Democratic strongholds such as New York and Colorado, have adopted definitions along these lines, but the latest to join in have been Republican-led: South Dakota, Florida and Indiana have all recently passed such measures.

Months before the 7 October attacks, House Republicans, joined by a sole Democratic cosponsor, introduced legislation that would have barred universities from authorising, facilitating or funding events promoting antisemitism under the IHRA definition, meaning the federal government would have required schools to restrict certain forms of anti-Israel speech.

Some of these restrictions on speech will do doubt end up in court, as DeSantiss rules already have. But regardless of the constitutionality of these measures, they demonstrate that some conservatives are moving away from free speech as a cultural value.

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GOP pushes anti-free speech bills to fight antisemitism - UnHerd

A proposal floated during ongoing contract negotiations between management at the freedom of expression nonprofit PEN America and its staff union, PEN America United (PAU), has led to charges by the union that the organizations leadership is trying to stifle union members free speech rightsan assertion PEN management firmly disputes.

According to a PAU release, the controversy stems from a proposal made during a March 14 bargaining session, at which, PAU contends, management proposed what the union categorizes as vague and broad language under which PAU members could be disciplined for engaging in any political activity that impacts the ability of PEN America to engage in its mission. The threat of discipline could extend to activity, conducted off-hours, that management determines could bring negative attention to PEN America, the union continued.

Under the suggested language, union members could be subject to discipline for activity such as signing onto an open letter criticizing PEN or attending a protest," the union contends. Union members may also be subject "to discipline for activity conducted off-duty, off-premises, and on their own equipment.

In a statement, the PAU executive board wrote: PEN America Managements language chills free expression while asking union members to surrender their rights as workers and renounce a safeguard from retaliation. Sweeping restrictions like these coming from a leading free-expression organization would set a very dangerous precedent for employees everywhere."

It added: Given current events, the need for robust protections to employees rights to political activity and speech in their personal time is of increased importance. It is incredibly disappointing to see Management does not respect this internally, despite PENs guidance to other organizations.

In its own statement, PEN America management said that the language in question is from a proposal relating to political activity that was intended to ensure compliance with our legal obligations as a 501(c)(3) non-partisan organization and the avoidance of conflicts of interest for the organization that could result from an employee playing a public role in a political campaign or running for office.

The proposed language, PEN management continued, was informed by prior experience with a staff member who had launched a campaign for local political office as a partisan candidate while employed at PEN Americaan activity that would have involved working hours, raising compliance. and conflict of interest concerns, for the organization.

Stressing that it does not interfere with the free expression of its employees, PEN management added that the proposed contractual language has been under discussion with the union in recent weeks, and we have reiterated our position that the organization does not seek to curtail the political activities of staff, except insofar as they may compromise PEN Americas legal compliance with non-profit law, and thus our mission as well.

PEN management also provided its counterproposal, which reads, in full: PEN America believes in the free expression of employees personal religious, political, social, or economic beliefs. Employees shall not be disciplined for the expression of such beliefs while off-duty, except where such conduct impacts the ability of PEN America to engage in its mission. Notwithstanding the foregoing, PEN Americas policies prohibiting discrimination, harassment, and retaliation shall continue to apply.

According to PEN management, during the March 14 negotiations, they suggested removing the paragraph on political activity entirely so that the collective bargaining agreement would include no language at all on the subject. At that meeting, management said, the union indicated that it did not wish to delete the provision and that it would counter the proposal with language that management says it is now awaiting.

In response to PEN management's assertion, PAU explained that it understands that the organization is prohibited by law from engaging in partisan political activity and has no desire to interfere with such legal obligations, insisting that the conversation that has taken place during 'recent weeks' has not revolved around nonprofit administration or partisan activity, but around whether it is appropriate to discipline union members for political activity, expression, and association. It added: PEN America has repeatedly rejected attempts from PAU to include language that would explicitly protect union members from retaliation, such as Employees will not be penalized or terminated for any political activity or speech engaged in while off-duty, solely in their personal capacity.

On March 14, PAU continued, management suggested removing the clause altogether and relying solely on the grievance and arbitration process to protect unit members rights to express themselves in the event of discipline or termination following off-hour political activity. Removing explicit protections would allow management to proceed with discipline in these cases, and this is why we have rejected their suggestion to remove the clause.

Internal and External Turmoil

The controversy comes as negotiations between PAU and PEN management continue to drag on. Employees first formed a union, which PEN America recognized, in June 2022, and began bargaining with the organization that October. In March 2023, PAU voted to affiliate with United Auto Workers Local 2320, Region 9A. According to the union, PAU and PEN America have only reached six tentative agreements out of 25 total proposals to date.

The internal spat over conflicting definitions of protected free expression also comes as PEN America faces increasing public criticism from some of its membership and others in the literary world over its handling of issues relating to Palestine. (While criticism of PEN has reached new heights since the latest war in Gaza began, such critiques have dogged the organization at least since 2013, when former New York Times editor Middle East and Balkan bureau chief Chris Hedges resigned from the organization's board.)

On January 31, six protesters from the group Writers Against the War on Gaza disrupted a PEN America event in Los Angeles featuring a conversation between comedian Moshe Kasher and actor Mayim Bialik, the latter of whom is an outspoken supporter of Israel. One of the protesters, author Randa Jarrar, was physically removed from the scene by security.

In the weeks leading up to the January 31 event, novelists Angela Flournoy and Kathleen Alcott withdrew their participation from PEN's New Year, New Books event, slated to take place in Los Angeles on January 25, over the organization's involvement with Bialik, which Flournoy called "unconscionable."

On February 3, an open letter that has since been signed by more than 1,200 writers demanding that "PEN America release an official statement about the 225 poets, playwrights, journalists, scholars and novelists killed in Gaza and name their murderer." The letter continued: "As this letter circulates, the death toll among Palestinian writers and reporters will likely grow," adding: "If PEN continues to remain silent, it will become absolutely clear to the public whose lives and voices matter to it and whose dont."

By March 15, more than a dozen authors had withdrawn from this years PEN World Voices Festival, also citing PENs response to the war in Gaza. Those authors include this year's winner of the National Book Critics Circle Award for fiction, Lorrie Moore, as well as Michelle Alexander, Isabella Hammad, and Naomi Klein, among others.

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PEN Union Cries Foul in Contract Talks as Criticism of PEN America Intensifies - Publishers Weekly

Harvard has little difficulty professing its commitment to the free exchange of ideas. It has a harder time putting that principle into practice.

On Wednesday, a scheduled panel entitled Islamophobia, Antisemitism, and Religious Literacy was canceled after Lowell House and the Edmond & Lily Safra Center for Ethics pulled official support amid public backlash.

Because the Editorial Board calls for unattainable balance in the name of ideological diversity and censoriousness in the name of neutrality, we dissent.

The planned event was advertised as a discussion of religious bigotry and literacy. The intended panelists were a professor of Modern Jewish studies at the Harvard Divinity School, a Ph.D. student focusing on the history of religion, and another Ph.D. student studying Islam. In other words, all three were more than qualified to engage in an academic discussion of antisemitism and Islamophobia.

Yet, todays editorial suggests that the panelists views on the Israeli-Palestinian conflict a related, but distinct issue compromise their scholarly expertise on the study of religion.

Discourse is not synonymous with debate. Events that bridge divides between disciplines in this case, theology, history, and philosophy or elucidate connections between different forms of hate can be deeply educational.

In a time in which misinformation about Judaism and Islam abounds, the voices of these panelists could have been clarifying or thought-provoking. Instead, they went regrettably unheard.

The Board has correctly lamented the state of dialogue on our campus and urged students to learn across differences. When an expert panel attempts to convene for that purpose, however, our colleagues fail to defend it.

Even if you share the Boards concerns that the planned event would not have featured sufficient viewpoint diversity, thats hardly a reason to endorse pulling institutional support much less at the eleventh hour. No panels or speaker events evenly represent every viewpoint on an issue, nor must they.

Today, the Institute of Politics will host a forum on diversifying college admissions would we require that a vociferous opponent of diversity be included alongside the three academics featured for it to go forward?

Ideological diversity must be a goal that we strive for in the aggregate, not a mandate for every individual event. Dissenting students should be allowed and encouraged to organize their own panels with institutional support. But they shouldnt be granted a hecklers veto to wield at will.

This incident represents a failure not on the part of dissenting students for voicing their criticisms, but of the University for bending to them, and of our Board for handing Harvard a blank check to do so.

Puzzlingly, the Board cites its support for institutional neutrality to argue that Houses and other non-academic spaces should not sponsor events that are deemed too political.

We agree that Harvard should steer clear of word salad statement-making. But the very reason our University should remain neutral is so that our students and faculty can be proudly opinionated.

By yanking institutional support with little warning, Lowell House and the Safra Center broadcast a clear message about what viewpoints are preferred inside Harvards gates.

Their decision is doubly troubling given reports of outside doxxing and hate mail that contributed to the events cancellation. Our Board has counseled against capitulating to malicious outside actors again and again. Its a shame they faltered here.

Saul I.M. Arnow 26, an Associate Editorial editor, is a Social Studies concentrator in Adams House. Violet T.M. Barron 26, an Associate Editorial editor, is a Social Studies concentrator in Adams House. E. Matteo Diaz 27, a Crimson Editorial editor, lives in Grays Hall. Zakiriya H. Gladney 27, a Crimson Editorial editor, lives in Matthews Hall. McKenna E. McKrell 26, an Associate Editorial editor, is a Classics concentrator in Adams House. Itzel A. Rosales 27, a Crimson Editorial editor, lives in Stoughton Hall. Jasmine N. Wynn 27, a Crimson Editorial editor, lives in Thayer Hall.

Dissenting Opinions: Occasionally, The Crimson Editorial Board is divided about the opinion we express in a staff editorial. In these cases, dissenting board members have the opportunity to express their opposition to staff opinion.

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Dissent: When It Comes To Free Speech, the Editorial Board Is All Talk. | Opinion - Harvard Crimson

Gov. Greg Abbott called for public universities to review and update free speech policies, and punish potential violators of these policies, in an executive order on Wednesday.

Abbott called the rapid increase of antisemitism at public universities after Hamass Oct. 7 attack particularly concerning in the order. He noted graffiti on Jewish buildings and parking lots and the use of phrases like from the river to the sea, Palestine will be free at student organization-led protests as examples of antisemitism.

Antisemitic incidents increased nationwide by 360% between Oct. 7 and Jan. 7, according to the Anti-Defamation League, an organization that aims to stop the defamation of the Jewish people and to secure justice and fair treatment to all.

Abbott said universities should establish appropriate punishments for policy violations, including expulsion from institutions. He named UTs Palestine Solidarity Committee and Students for Justice in Palestine, a national organization with chapters at multiple Texas universities, as potential violators in the order.

Each public university system is required to report with documentation the actions theyve taken to comply with the order to the Office of the Governor within the next 90 days, the executive order said.

The University declined to comment.

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Gov. Abbott calls for universities to update free speech policies, discipline violators to address antisemitism on campuses - The Daily Texan

Did you know that Cascade Bicycle Club not only hosts bike rides on streets but also advocates for investing in infrastructure to make streets safer for biking? What a scandal!

Or at least the Editorial Board of the Seattle Times decided all of a sudden that this behavior is somehow scandalous.

Whats not to like about a refreshing bike ride on a Sunday morning?

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Turns out, its not so simple.

Im picturing a colorful video of a happy family riding bikes that turns black-and-white while their eyes all start glowing red. What horrible truth have they uncovered?

Well, Cascade is paying for event permits and police staffing and then charging people to participate. And maybe, if things go well, they will even raise some extra money on top. An event promoter hopes to make money by hosting an event. But thats not all. They are even going to use any extra funds to support their stated mission: Improving bicycling.

But the policy the Ed Board is suggesting here would be a major infringement on free speech. Why would a board that claims to believe in the First Amendment and the importance of free speech be arguing that the city should deny permits to an organization because that organization engages in public policy advocacy? I was genuinely shocked when I read this.

Are they arguing that any organization that tries to influence the transportation levy should not be able to receive street use permits? Or just the organizations they disagree with? The Downtown Seattle Association will surely lobby the city about the transportation levy, so should they also stop receiving street use permits? Should unions be denied permits for marches and rallies? Should marathon organizers be banned from lobbying? Imagine a city official saying, You better shut up or you can kiss your permits goodbye. Now THAT would be a scandal.

I think yall should probably go ahead and take this one back, cuz I suspect you havent fully thought through the implications of the policy youre suggesting here. Or if you still stand by it, boy, what a sad state our citys only remaining daily paper is in.

WSDOT and SDOT used to fund these kinds of rides, making them free to everyone. Theres a whole section about it in my book. I would actually prefer the free public-hosted version. But imagine the Seattle Times editorial if SDOT did this exact same event using public funds: We shouldnt spend honest tax payer money on such frivolities! The city should leave these kinds of events to Cascade Bicycle Club!

Cascade itself was even founded initially to organize a Bicycle Sunday-style event on Mercer Island more than 50 years ago, then it immediately shifted into an advocacy organization that raises money in part by holding paid events. This is how Cascade has always worked. Its how they market it. Theres nothing secret or hidden about it. Its weird that the Ed Board decided today that it is some kind of scandal.

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The Times Ed Board picks a confusing fight against the Emerald City Ride, free speech - Seattle Bike Blog

How much is a non-binding assurance worth from people who probably want to see you dead?This is the linchpin question as a British court deliberates on the Biden administrations latest conniving to bring Julian Assange to America for his legal destruction.

Since Julian Assange was indicted in 2019 for 17 charges of violating the Espionage Act, the U.S. Justice Department has sought his extradition from Belmarsh, the supermax prison in Britain where he has spent almost five years.The fight against extradition is probably the last best chance for even a facade of due process for Assange.

On Tuesday, the British High Court announced that it had effectively accepted assurances from U.S. politicians to British politicians that the Assange case is non-political, but the British judges did recognize three potential grounds for appeal.That courtgave the U.S. government three weeks to provide satisfactory assurances that Assange is permitted to rely on the First Amendment to the United States Constitution that he is afforded the same First Amendment protections as a United States citizen and that the death penalty is not imposed, and that the U.S. court would not be prejudiced against him because he is a foreigner.

None of the British or American officials recognized the supreme irony of the court decision. Assange and Wikileaks exposed deceptions and depredations by many governments around the world. Yet his legal fate depends on whether the British government chooses to trust the U.S. governmentregardless of the endless lies that Assange exposed.

Stella Assange, Julians wife, scoffed that the decision was astounding: What the courts have done is to invite a political intervention from the United States, to send a letter saying, Its all okay.Amnesty International stated, While the U.S. has allegedly assured the UK that it will not violate Assanges rights, we know from past cases that such guarantees are deeply flawedand the diplomatic assurances so far in the Assange case are riddled with loopholes.

If Assange is brought to the U.S., his fate will be settled in an Alexandria, Virginia federal courtroom notorious for stacking the deck against anyone who exposed government crimes or wrongful killings. Ask John Kiriakouthe former CIA agent and torture whistleblower who was convicted there and sentenced to 30 months in prison. Ask Daniel Halethe whistleblower who exposed the coverup ofmass killings of innocent people by Obamas drones, convicted and sentenced to prison for 45 months.EdwardSnowden was charged in the same court but prudently omitted showing up for a kangaroo trial.

Assanges fate threatens to be a bellwether for the destruction of journalists who vex officialdom. David Davis, a Conservative member of Parliament, warned, The successful extradition of Julian Assange would effectively criminalize investigative journalism as espionage. It would set a legal precedent allowing the prosecution of anyone who breaks the duty of silence on classified American information and state sponsored crime.Jodie Ginsberg, chief of the Committee to Protect Journalists, warned that Assanges prosecution would have disastrous implications for press freedom. It is time that the U.S. Justice Department put an end to all these court proceedings and dropped its dogged pursuit of the WikiLeaks founder.

The U.S. government has been vilifying Assange ever since he and Wikileaks commenced revealing that thousands of innocent Iraqis and Afghanis were killed by the U.S. military. Vice President Joe Biden denounced Assange in 2010 as a high-tech terrorist.But even Biden admitted at that time: I dont think theres any substantive damage from the Wikileaks revelations.Look, some of the cables that are coming out here and around the world are embarrassing, he said.

Federal agencies also never proved that any of the information that Assange and Wikileaks released was false.At the court martial of former Army Corporal Bradley (now Chelsea) Manning, who leaked the documents, prosecutors failed to show that any information Wikileaks disclosed had led to the death of a single person in Afghanistan or Iraq. That conclusion was re-confirmed by a 2017 investigation by PolitiFact. But Assange was guilty of violating the U.S. governments divine right to blindfold the American people.

The fact that Assange disclosed classified documents is sufficient to seal his legal doomat least according to how the game is played in federal courts. After Britain arrested Assange on behalf of the U.S. government in 2019, Sen. Joe Manchin, a West Virginia Democrat, whooped that Assange is our property and we can get the facts and the truth from him. But Manchin had no recommendations on how Americans can get the facts and the truth from the federal government.Federal agencies are creating trillions of pages of new classified secrets each year.

Ironically, while howling for Assanges scalp, the Biden White House purportedly launched a new war on secrecy and is especially concerned about potentially illegal [government] activities that have been shielded from the public for decades, POLITICO reported in late 2022.A Biden administration official, speaking anonymously, declared that it is in the nations best interest to be as transparent as possible with the American public. Sen. Elizabeth Warren, a Massachusetts Democrat, groused, We spend $18 billion protecting the classification system and only about $102 million on declassification efforts... That ratio feels off in a democracy. But inside the Beltway, rigging the game 176-to-1 is close enough for government work for transparency.Thus far, Bidens war on secrecy has apparently not gone beyond self-serving White House statements.

Perhaps the most important testimony for Assange dribbled out during a sometimes scatter-brained interview last October conducted by Special Counsel Robert Hur.As Hur was pressing President Biden about the stashes of confidential documents discovered illicitly stored in his garage, his den, his think tank, his office, etc., Biden declared, We over-classify everything.... And 99.9 percent of it has nothing to do with anything I couldnt pick up and read out loud to the public.Special Counsel Hur deigned not to file charges against Bideneven though his violations of federal law had plenty of similarities to the conduct that spurred 40 felony charges against former President Donald Trump. The bizarre dichotomy in the Biden and Trump cases is showcasing the arbitrariness and absurdities of federal classification policy.

Another key to the Assange case is whether he is permitted to rely on the First Amendment, as the British judges wrote.Assange cant rely on the First Amendment when telling the truth is the only war crime now recognized by the U.S. government. Defendants on espionage act cases routinely face so many piled-on court charges that they plea bargain, muzzling themselves as the price for not being locked up forever.

There are lessons from an early American landmark court case that could help resolve the Assange case. In 1735, John Peter Zenger was charged with seditious libel for an article he published on the Royal Governor of New York. Zengers criticism was accurate but that was irrelevant.In Britain and its colonies, truth was no defense against seditious libel; thus, any criticism of the government risked personal destruction.But a jury of New Yorkers heroically refused to convict Zenger, thereby revolutionizing both freedom of speech and the relation of citizens to government.

Could a similar legal standard be used to end persecution of anyone who publicly reveals official documents that never should have been classified? Instead of rubberstamp convictions, the government should be obliged to prove that a disclosure harmed the public interest or endangered the nation.That would also undermine the perverse incentive that perpetually propels overclassification.Unfortunately, it would not be possible to get the same positive impact simply by relying on jury trials.Since that federal court is inside the Beltway, the jury pool would be overstocked with people who work for the feds and/or believe everything they hear on National Public Radio.Washington jurors are prone to behave like Soviet mobs in the 1930s who howled for death sentences for anyone the Communist Party accused of being a wrecker.

Almost all the media coverage of the Assange case is failing to credit him for revealing how blindfolding citizens defines down democracy. Self-government is a sham if citizens are prohibited from knowing what elected officials are doing in their name. Politicians and Washingtons best and brightest have long been accustomed to covertly and recklessly intervening around the world with none of the usual checks and balances of democracy.But there is never a penalty for officialdom deceiving the public they claim to serve.

Bidens Justice Department and Assanges lawyers have reportedly discussed a possible plea deal that would drop the most serious charges against him. Fair play would be satisfied ifAssange pleadsguilty to lese majesteembarrassing the government by exposing its follies, frauds, and crimes. I still believe that Assange deserves a presidential Medal of Freedom, as I recommended in USA Today in 2018.

But that would never satisfy people like Hillary Clinton,who joked about seeing Assange dead, or former CIA chief Mike Pompeo, who plotted on kidnapping and killing Assange. Hell-raisers like Assange are necessary to prevent America from becoming an Impunity Democracy in which government officials pay no price for their abuses.

The next hearing in the Assange case will be May 20 in London, a few weeks after the annual World Press Freedom Day. Biden marked that day last year by proclaiming, Courageous journalists around the world have shown time and again that they will not be silenced or intimidated. The United States sees them and stands with them. Except, of course, for any courageous journalist that Biden seeks to destroy.

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Convicting Julian Assange Would Mean the End of Free Speech - The American Conservative

The battle over free speech and criminal conduct is at the heart of the pretrial motions surrounding former President Donald Trump and his allies in the Georgia election interference case. Fulton County Superior Court Judge Scott McAfee is set to preside over the hearing this Thursday, where Trump's attorneys will argue that the indictment attempts to criminalize constitutionally protected political expression. According to FOX 5 Atlanta, Trumps legal team asserts that their client's charges should be dismissed because they infringe on First Amendment rights and that the indictment is unconstitutional.

Central to the defense's argument is the claim that Trump's activities which include the submission of Republican elector certificates in Georgia, an attempt to convene a special legislative session, and various communications with state officials are in fact political speech that not only embraces but encourages exactly the kind of behavior under attack in this Indictment, Trump's lawyers stated as reported by FOX 5 Atlanta. Meanwhile, David Shafer, the former chair of the Georgia Republican Party and a co-defendant in the case, is arguing that his actions were legal and that terms like duly elected and qualified presidential electors should not be prejudicially included in an indictment, according to information obtained by the same outlet.

On the prosecution's side, the argument rests on the premise that "the indictment is based on criminal acts, not speech." They contend that where speech is involved, it is tied directly to nefarious activities such as fraud, perjury, and criminal solicitation. The prosecutions stance, according to the Associated Press, rebuffs the defenses free speech claim by emphasizing that the charges are rooted in actions that "threaten to deceive and harm the government."

The broader context for these legal skirmishes is the sweeping indictment brought by Fulton County District Attorney Fani Willis last August. The indictment charges Trump and 18 others with engaging in a concerted effort to overturn the 2020 presidential election results in Georgia, which Trump lost to Joe Biden. This case has been fraught with tension, as evidenced by rejections and resignations within Willis' team. Despite some counts being dismissed for lack of detail, as reported by the Associated Press, Willis has proposed starting the trial in August, though a date remains undecided.

The upcoming Thursday hearing will mark a crucial juncture in a case that continues to unfold amid intense legal and political scrutiny. With no trial date set and the Georgia Court of Appeals set to review McAfee's decision regarding the prosecution team, the proceedings carry implications not just for the defendants, but for the integrity of the electoral process and limits of political speech.

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Trump's Free Speech Defense on Trial in Georgia Election Interference Case - Hoodline

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Column: Banning TikTok is a blow to free speech - Redmond Spokesman

Professor Philip Hamburger has posted a response to my critique of his post on the social media free speech cases currently before the Supreme Court. The latter, in turn, responded to my earlier argument that courts should focus on coercion in Murthy v. Missouri. For those keeping track, this is now the fifth post in this series.

In his latest post, Prof. Hamburger accuses me of repeating my "errors." But I remain unrepentant. It is in fact Hamburger himself who has doubled down on his mistakes.

Most notably, he continues to neglect the significance of the fact that the First Amendment protects "freedom of speech." By its very nature, freedom is voluntary choice. Therefore, it cannot be restricted in the absence of some kind of coercion. That's true even if Prof. Hamburger is right (as he surely is) to describe the Free Speech Clause of the First Amendment as a "limit on government." The limit it imposes on government is preventing it from using compulsion to restrict speech. By contrast, it does not prevent the government from using persuasion to influence private speech, or from engaging in coordination with private speakers.

Prof. Hamburger continues to emphasize the fact that the First Amendment bans "abridging" of freedom of speech, as opposed to the ban on "prohibiting" freedom of religion. I agree this means free speech gets somewhat greater protection than religious freedom does. But the thing that it is protected against must still be some form of compulsion. Absent compulsion, there can be no restriction of freedom. the distinction in wording just means that relatively mild forms of coercion that may not rise to the level of "prohibition" might still qualify as "abridgement."

Hamburger claims my view would allow the government to "buy off" its critics. But conditioning government benefits on the exercise of constitutional rights (or refraining from exercising them) raises other constitutional problems. Among other things, it implicates the doctrine of "unconstitutional conditions," which prevents the government (at least in many instances) from discriminating on the basis of speech with respect to the distribution of government benefits. Thus, for example, the government cannot adopt a law restricting Social Security benefits to people who express support for the Democratic Party, or at least refraining from criticizing it. Activities like persuasion or "jawboning" do not qualify as such discrimination.

Prof. Hamburger also doubles down on the dubious claim that social media platforms don't have free speech rights over the material they post on their websites. But, as discussed in my previous post, platforms do in fact exercise editorial control over what speech they allow on their sites, through their terms of service. In that respect, they are similar to media entities like Reason or the New York Times.

Hamburger responds that the platforms sometimes took down speech even without changing their terms of service. But he is missing the point. The existence of terms of service with substantive limitations on the types of speech platforms allow on the site shows that it is not the case that they are "public squares" where anyone can say whatever they want. Rather, they are private property where the owners exercise editorial control over speech. They can do that through terms of service. But, unless prohibited by freely undertaken contractual obligations, they can also do that in other ways.

In his latest post, Prof. Hamburger continues to promote a double standard under which he has an extremely broad view of what is prohibited by the First Amendment when it comes to non-coercive government persuasion to bar social media posts, but a very narrow one with respect to Texas's and Florida's attempts to force social media firms to host speech they disapprove of. He now tries to justify this by claiming that social media platforms are "common carriers." This analogy is badly flawed for reasons I outlined here.

Social media firms have never been legally considered common carriers in the past. And state governments cannot make them so just by legislative fiat. If they could, the same strategy could be used to force other private entities to publish speech they disapprove of, by passing laws declaring them to be "common carriers," as well. Thus, they could force Fox News to air more left-wing views, compel the New York Times to publish more right-wing ones, and so on.

Prof. Hamburger accuses me of departing from libertarian principles, due to my focus on coercion. But the distinction between coercion and voluntary action is actually fundamental to libertarianismand, indeed, to most other forms of liberalism. It is, in fact, usually opponents of libertarianismparticularly left-wing onesthat seek to efface the distinction between the two, thereby justifying government intervention to protect people against supposedly oppressive voluntary relationships. Such arguments are a standard justification for restrictive labor regulation, for example, where it is said that voluntary agreements to work more than certain amount of hours or for pay below the minimum wage are actually "exploitative" coercive.

Finally, Prof. Hamburger complains about my pointing out that speech can be a "public bad," and worries that it is somehow a justification for suppression. I think it is pretty obvious that at least some speech is a public bad, in so far as it can lead to horrific government policies. That was true of Nazi and Communist speech, for instance.

It doesn't follow that the government is justified in suppressing such speech. Even speech advocating awful ideas is still an exercise of an important individual liberty. And there isto make an obvious pointgood reason to distrust government judgments about which speech is harmful and which is not. Thus, there should be at least a strong presumption against allowing the government to deal with this public bad through coercive censorship.

By contrast, the use of non-coercive suasionwhether by the government or private partiesdoesn't pose anything like the same risks. Private entities who differ with the government's position will remain free to publish opposing views. And so long as there is a market demand for such views, there will be incentives to publish them. If the government persuades, say, Twitter or Facebook, to take them down, that just creates a market incentive for others to publish them.

In sum, there is good reason to worry about government use of coercion to either suppress speech (as the Biden Administration may well have done in Murthy v. Missouri), or to compel it (as Texas and Florida are trying to do). But the First Amendment does not bar the governmentor anyone elsefrom using non-coercive persuasion.

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More on Coercion, Social Media, and Freedom of Speech: Rejoinder to Philip Hamburger - Reason