Category Archives: Free Speech

The political developments in Rajasthan have thrown up some interesting legal and constitutional issues.

The legal battle started with the Congress party filing a petition before the speaker of the assembly seeking the disqualification of the rebel Congress MLAs led by Sachin Pilot. The term whip used in the petition before the speaker has created a good deal of confusion in the legal circles. A whip is usually issued by a political party to its members in the legislature asking them to vote in a particular way in the house. In the face of a whip, if those members do not vote or abstain from voting, they are liable to be disqualified. But how can a party issue a whip to its members asking them to attend the party meeting and how can those members who do not attend that meeting be disqualified? This doubt naturally arose in the minds of laymen as well as lawyers. The arguments in the Rajasthan high court by the lawyer representing the rebel Congressmen indicate this was one of their key points.

The 10th schedule of the constitution (para 2 (1)(a) and (b)) specifies two grounds on which a member of the legislature can be disqualified. These are: (i) He has voluntarily given up his membership of the party, and (ii) He has voted or abstained from voting contrary to any direction issued by his party.

Whip Much ado about nothing

In the Rajasthan case, the second ground is inapplicable because there was no occasion for a vote in the assembly. The Congresss petition to the speaker, therefore, cites the first ground, namely, the rebel MLAs voluntary surrender of party membership. In this context, the confusion surrounding the term whip needs to be removed. It is obvious that this term has been used rather loosely in the petition before the speaker.

However, it must be noted that the term whip does not even figure in the 10th schedule, which uses the term directions. Of course, whip is a commonly used and understood term in the legislatures which only means a direction issued by a political party to its members to vote or not to vote in the house. The term whip used in the Congress petition before the speaker simply means a direction which was issued to the members to attend the legislature party meeting and it has nothing to do with voting in the house. The ground on which disqualification is sought makes this point absolutely clear.

Also Read: Indias Politicians Have Turned the Anti-Defection Law on Its Head

This being so, it is very surprising that one of the top lawyers who appeared for the rebel Congressmen raised the whip point and suggested that the Congress cannot issue one in the context of a party meeting and, therefore, the petition before the speaker should be quashed. Since the 10th schedule itself does not use the term whip, this argument has no merit.

Giving up membership of a party

The expression voluntarily given up the membership of the party has not been defined in the schedule. But it has been interpreted by the Supreme Court in a number of cases in the past. These judgments make one thing clear there is no universally recognised standard to ascertain whether a member has voluntarily given up his membership of the party. Each case has to be decided on its own facts are circumstances. However, a political party is not required to wait for rebels to do a series of acts before it can move the speaker seeking the disqualification on this ground. Just one action on the part of a member is enough to invite disqualification if it seriously affects the interest of the party.

In Rajendra Singh Rana Vs Swamy Prasad Maurya (2007), the Supreme Court says that one visit by the MLAs of the ruling party along with the membersof the opposition to the governor seeking dismissal of their own government is sufficient to prove that they have voluntarily given up the membership of their party.

In this context, the court says, no further evidence or enquiry is needed to find that their action comes within paragraph 2 (1)(a) of the 10th schedule. This sums up the approach of the court to the issue of disqualification on the ground that a member has voluntarily given up the membership of his party.

In the Rajasthan case, things are fairly clear. The crucial meeting of the Congress legislature party was convened to ensure the support of its members to the government in the context of an alleged attempt to topple the government. So far as the ruling party is concerned, it was thus a very crucial meeting which had a bearing on the survival of the government. It was quite natural for that party to conclude that those who stayed away from the meeting had decided not to support the government, which could ultimately cause its fall. So, the ruling party moved the speaker to disqualify them on the ground that they have voluntarily given up the membership of their party. There is nothing unconstitutional about it.

When a speakers decision can be challenged

The rebel Congressmen deployed two heavyweight lawyers to defend their petition before the high court. It must be stated here that a petition at this stage is absolutely premature. The high court has the power to review the decision of a speaker. But the speaker needs to take a decision on merit first. Issuing a notice to the respondents by the speaker is not a decision on merit. Notice is issued as per the rules framed under the 10th schedule. Through the notices, the speaker asks the respondents to submit their replies to the petition so that he could go ahead and decide the question of disqualification. The courts have made it clear in a number of cases that it can step in only after the speaker has taken a decision on merit, not otherwise.

Also Read: To Avoid Future Karnatakas, the Supreme Court Must Lay Down Clear Principles

Even a review of the speakers decision on disqualification has a limited scope. The Supreme Court, in Dr Mahachandra Prasad Singh Vs Chairman, Bihar Legislative Council (2004), while explaining the scope of review, said as follows, the decision of the chairman or the speaker of the house can be challenged on very limited grounds, namely, violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity.

The courts have always approached the speakers decisions with caution and case. They have taken the view that if a speakers conclusion is reasonable, it will stand even if another equally reasonable view is possible.

Constitutionality of 10th schedule a settled matter

It is a bit surprising that the constitutionality of the 10th schedule has also been challenged in the petition before the Rajasthan high court.

This issue of constitutionality of the 10th schedule was settled long back by the landmark judgment of the Supreme Court in Kihoto Hollohan Vs Zachillu (1992). The five-judge bench summed up the point in the following words, this is pre- eminently an area where judges should defer to the legislative perception of and reaction to the pervasive dangers of unprincipled defections to protect the community. It is difficult to imagine how a high court can now reopen the question of the constitutionality of the 10th schedule.

A petition challenging the constitutionality of the notice issued by the speaker is a sheer waste of the courts time. The speaker has acted in accordance with the rules. How can a notice become unconstitutional when it has been issued in accordance with the rules? The high court has got an opportunity to reaffirm the various decisions of the Supreme Court on this issue.

P.D.T. Achary is former Secretary General Lok Sabha

Continued here:
Pilot Vs Gehlot: Law Allows Speaker to Decide Where Free Speech Ends and Defection Begins - The Wire

Prime Minister Justin Trudeau holds a press conference at Rideau Cottage in Ottawa on July 13, 2020.

Sean Kilpatrick/The Canadian Press

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Re Civil Servants Testimony Fails To Clear Up All WE Charity Questions (July 17): From 1975 to 1995, my husband, the actor and writer George Robertson, and I were deeply involved with UNICEF Canada and UNICEF Ontario. Notable celebrities including Sir Peter Ustinov, Audrey Hepburn, Danny Kaye, Harry Belafonte, Maggie Smith, Sharon, Lois and Bram and many others joined us in giving countless hours of time to UNICEF. There were also television commercials where all creative work and time was donated.

Not a penny was ever paid for appearances. George went across Canada speaking to youth (his role in the Police Academy films made him quite popular with all age groups). It is a very sad day for me when notable figures cannot donate time and energy to charitable causes they believe deserve support.

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Adele Robertson Toronto

Re Parents. Trapped. (Report on Business, July 11): Lack of child care may both prevent women from going back to work and cripple our economy. But Ottawa says the solution might be expensive. Expenses be damned! Lets get more child-care spaces and give women the opportunity to get back to work.

My daughter-in-law is looking after three kids, ages 6, 3 and eight months, on her own. Her husband works from home but, because of firings at his company, has to attempt the work of three. He is on the computer day and night.

Its extremely stressful. And there are thousand of families in similar situations.

Fiona McCall Toronto

Re These Revolutionary Times Have A Downside (July 11): Racism, in its most common forms, means systems, policies and attitudes that create unfair disadvantages for people because of the colour of their skin. Cognitive studies of the brain and the way we think have demonstrated that every one of us white, Black, brown has unconscious biases based on our upbringings.

Science has proven that this affects the way we make decisions about hiring and promotion, entitlement to government or other benefits and arrests, charges and sentences in criminal cases. It also affects the way our fast brain reacts when we hear a particular accent or see a person of a particular race in the course of daily activities. It is a reality in Canada, where racialized people have lived these experiences since they were born or arrived in this country.

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Progress begins with the recognition and elimination of these everyday human reactions, so that life is more fair and equal for all of us. Frustration, fear and suspicion of motives arise when people are unable to reach this starting point.

Raj Anand Former chief commissioner, Ontario Human Rights Commission; Toronto

Re Whatever Happened To Nuanced Disagreement? (Opinion, July 11): Columnist Robyn Urback supports the claim by authors of an open letter in Harpers Magazine that cancel culture has gone too far. It could also be argued that this is exactly how the process of achieving equilibrium, or the middle ground, works.

When the pendulum has swung so far in one direction, it often needs to swing all the way back before coming to rest in the middle. We have tolerated hate speech, police brutality and racial discrimination for so long that we may need to allow a period of intolerance toward those things, before we can achieve the ideal of fair and open dialogue.

As I see it, the problem is not with the message of the letter, but with the timing.

Elizabeth Causton Victoria

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Who gets published and who does not is inherently political. For a movement to demand that some voices be elevated, and that others take a backseat, should not be seen as signs of the illiberalism of our times, but rather necessary correctives to the current forums of social debate.

The real crisis of free speech can be found in the violent repression of protesters in the streets. Curfews and tear gas are censorship who cares what people are saying about J.K. Rowling on Twitter!

Ella Bedard Toronto

Theres a lot of wounded outrage in the air.

First there is the defensive reaction of senior Liberal officials to public scrutiny of family connections with WE Charity. Then there is the open letter to Harpers Magazine about the threat posed by so-called cancel culture to the free expression of ideas.

I believe the Liberals and the letters signatories share some things in common: one is the belief that they are decent, thoughtful people with virtuous motives. Such may be true, but it is complicated by a second thing: the possession of a kind of privilege that makes it possible to conflate your own beliefs and interests with the public good.

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Privilege also dampens the impulse to self-reflect, which might have prompted Justin Trudeau to wonder whether his personal connections constituted a conflict of interest, or the letter writers to think how far and to whom freedom of expression ever actually extended. I find these appeals to liberal values amount to self-defence: of an entitled world of mostly white privilege that is experiencing some ripples of resistance, and signs of radical change that are long overdue.

Susie OBrien Hamilton

Re Hidden Canada (Arts & Pursuits, July 11): The irony was not lost on this southern Alberta resident that Oldman River, one of the pristine areas in Canada highlighted by The Globe, is near the site of provincial plans for a major metallurgical coal-mining venture. Granted, the development will create much-needed employment and cash flow for Alberta but at what cost?

The sparkling waters of the river would be at risk of contamination; the richness of critical wildlife corridors at risk of increased vehicular traffic. Alberta seems to be misinformed and devoid of compassion for provincial wild-lands and the associated flora and fauna.

John Nightingale Lethbridge, Alta.

Re Getting The Fans Back In The Stands (Sports, July 11): On professional sports, Marshall McLuhan once said: In sport there is no game without an audience. The greatest game minus an audience is a rehearsal which is quite the opposite of a reply.

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In losing its live spectators, a game loses something essential to its nature, namely its dramatics, its back-and-forth hesitations and heated interactions with other fans. It would no longer be a game we know and love.

Notwithstanding the vast viewing audience, a game on television seems not so much a game as a show the two experiences are not the same. No matter how creative or involving a TV production, I do not believe it can make up for the experience of riding on the roar of the crowd.

Patrick ONeill Toronto

Letters to the Editor should be exclusive to The Globe and Mail. Include your name, address and daytime phone number. Try to keep letters to fewer than 150 words. Letters may be edited for length and clarity. To submit a letter by e-mail, click here: letters@globeandmail.com

Excerpt from:
July 18: An entitled world of mostly white privilege. Readers debate WE Charity, free speech and systemic racism, plus other letters to the editor -...

June 23, 2020 | :

With students and faculty posting heated and in some cases, racist reactions to current events on social media, universities find themselves in a legal minefield as they navigate First Amendment rights and the educational ideals of tolerance and respect.

In the past month alone, many college students and faculty have posted inflammatory comments on social media about the death of George Floyd in police custody and about the Black Lives Matter protests. Some posts have also been anti-Semitic.

Earlier this month, Drew Dollar, an incoming freshman at Louisiana State University (LSU), yelled I hate n*****s in one of his Instagram stories. On June 1, a photo surfaced on Twitter of Penn State student Ryann Milligan smiling over her shoulder, displaying a swastika drawn on her back. And Dr. Mike Adams, a criminology professor at the University of North Carolina Wilmington (UNCW), compared COVID-19 closures to living in a slave state. Adams tweeted, Massa Cooper, let my people go! about North Carolina Gov. Roy Cooper.

It didnt take long for the photo, the Instagram story and the tweet to circulate and for thousands of people to sign petitions demanding that Penn State swiftly expel Milligan, LSU rescind its offer of admission to Dollar and UNCW fire Adams.

This is a direct hate crime and a threat to my safety, wrote student Miriam Waters on a petition to rescind Dollars admission from LSU. I am a tuition paying student just like him and I should not have to worry about my livelihood because this institution wants to add a number to their student population.

A petition for disciplinary action against Penn States Milligan has garnered close to 157,000 signatures. Allowing her to remain a student of Penn State is a disservice to all Jewish people, living or dead, said the petition. And two petitions to fire UNCWs Adams for hisinflammatory commentshave collected a total of nearly 90,000 signatures.

But Penn State did not expel Milligan, LSU did not rescind its offer of admission to Dollar and UNCW did not fire Adams. Instead, each university released versions of the same sentiment: While we condemn racism, were beholden to the First Amendment and a students right to free speech.

Many on Twitter are unconvinced the schools have done everything in their power and that the First Amendment could tie a universitys hands in acting against inflammatory speech or symbols.

But according to most legal experts, if a college or university is a public institution, the First Amendment does limit the action it can take.

The First Amendment states that the government cant discriminate on the basis of content or dictate the words people can use to express their views, said Dr. H. Jefferson Powell, a law professor and director of the First Amendment Clinic at Duke University. It cant say, Okay, were going to allow nice, well-thought-out speech about race issues, but were not going to allow hateful and inflammatory speech.

In other words, he said, a public institution cannot censor speech on a certain topic such as race or religion and it cannot censor viewpoints on that topic, even if they are hateful. Thats because hate speech, when it does not amount to a true threat or fighting words, is legally protected under the First Amendment.

There is no categorical exception to the First Amendment for hateful expression, said Adam Steinbaugh, a legal expert at the nonprofit Foundation for Individual Rights in Education (FIRE). So, when Nicholls State University witnessed what was happening at other institutions and issued an email to students stating, Free speech does not protect hate speech, FIRE intervened with a correction.

This is not an accurate statement of the law, but instead a roadmap to violating the well-established First Amendment. If followed, it will do nothing to meaningfully address racial harassment and misconduct. Instead, it will expose the university to needless civil liability, FIRE wrote in a letter to Dr. Jay Clune, Nicholls president.

But what if, as many students pointed out, a public university has an honor code that condemns derogatory or hateful speech? Would that trump the First Amendment?

No, unless its a private university, said Steinbaugh. At a public college, the First Amendment overrules the honor code.

At a public university, its student code of conduct has to comply with the First Amendment, Steinbaugh said. A public university could not require students to agree to give up their First Amendment rights as a condition of enrolling. So, if a public university has a code of conduct that purports to limit protected expression, it risks being sued.

Indeed, a host of schools have fallen into legal rabbit holes after firing or expelling a faculty member or student for controversial statements. And those students or faculty members have often had the support of civil liberties groups that are staunch defenders of the First Amendment.

The American Civil Liberties Union (ACLU), for instance, has notoriously defended hateful speech from the likes of the Ku Klux Klan, arguing that protecting even the ugliest of speech protects all speech from censorship.

Still, public institutions arent completely powerless in the face of hate. With almost everything else in First Amendment law, and, for that matter, in all of law, there are exceptions, said Powell. And one of those exceptions involves the educational mission of a university.

The question for students is, Are they acting in ways that are consistent with or inconsistent with the community necessary for education? said Dr. Robert Post, Sterling Professor of Law and former dean at Yale Law School. We cant have students learn if they treat each other in certain ways. And so, if one student is harassing another, they get to be expelled because they are stopping the institutions educational commitment.

For that reason, misogynistic or racist slurs thrown in the classroom can be construed as educational interference, or even a Title IX violation, and lose First Amendment protection.

For instance, for both Powell and Post, one word, if hurled in a classroom, is an immediate disruption to learning: the N-word.

I dont think there is any place in any university setting for it, said Powell. There are some professors who think, For educational purposes, I need to say it in order to draw anti-racist points, but I think theyre wrong. The word is too destructive of anyones ability to think about things. And when it comes out of an older, White persons mouth, its too reminiscent of its [past use].

Things become complicated, however, when those racial slurs are hurled off campus or outside the classroom. As a general rule, Post said, the closer an incident gets to campus, the more likely it will affect other students and the educational mission of the university.

But because so many variables can change the dynamic of a situation, experts agreed incidents must be investigated on a case-by-case basis.

One of the things that a university administrator, who is trying to do her job right, faces is [that] on the one hand, she needs to be respectful of the First Amendment, and on the other hand, I think shes fully entitled to make the university a place of education where people learn, for example, that you cant just walk up to somebody and say hateful things to them, said Powell.

In the case of the Penn State student who displayed a swastika on her shoulder, Powell said the university must decide whether she did something so serious as to not allow the institution to function as an institution of education or whether she made a stupid, insensitive mistake. After all, he added, people, including people a lot older than Penn State undergraduate students, do stupid things and make mistakes. And so, theres a matter of judgement about what you should do.

For faculty who are protected by academic freedom rights, however, things are a bit different. Thats because, Post explained, academic freedom doesnt necessarily entail the equality of ideas but the freedom to engage in professionally competent teaching and research.

In other words, faculty must demonstrate competence and relevance to do their job. So, if a controversial post indicates incompetence in ones field such as a history professor denying the Holocaust on social media then thats potential grounds for firing or discipline, he said.

However, if that Holocaust denier is an accounting professor who satisfactorily teaches that subject, Powell said its a different story. That means, in the case of UNCWs Adams, the university would have to find substantial evidence that his controversial viewpoints on Twitter interfere with his competence as a criminology professor.

Post added that the necessity to show competence can extend in some ways to students, too. If a student writes about the merits of eugenics in a biology paper, the professor is entitled to grade them accordingly. And in some cases, especially for students entering health fields, a student could be removed from a certain academic program if they show incompetence in that program.

Thats what happened to nursing student Craig Keefe in 2016 at the public Central Lakes College. After Keefe made multiple, offensive posts on Facebook, college administrators removed him from the Associate Degree in Nursing program for behavior unbecoming of the Nursing Profession and transgression of professional boundaries.

When he sued citing First Amendment violations, the Eight U.S. Circuit Court of Appeals backed college officials. Given the strong state interest in regulating health professions, teaching and enforcing viewpoint-neutral professional codes of ethics are a legitimate part of a professional schools curriculum that do not, at least on their face, run afoul of the First Amendment, wrote the court.

So, in the absence of legal recourse, professors and university officials do have some say in directing their students toward thoughtful, civic ideas, said Post.

The purpose of universities is to teach students how to discriminate between better and worse ideas, as well as to determine what we know on the basis of our best possible ideas. No university, public or private, could perform its mission were it not permitted to evaluate the merit of ideas, wrote Post in an editorial for Vox in 2017, in which he argued the First Amendment is often too narrowly defined in university settings.

For Powell and Steinbaugh, the best way to counteract hateful or repugnant speech is to counteract it with more speech.

The First Amendment doesnt mean that universities are powerless and cant respond at all, said Steinbaugh. Universities and their administrators have their own First Amendment rights, which they can use to criticize or condemn speech they find offensive. They can use instances of controversy to be effective, meaningful learning opportunities for the broader community.

Students, too, have the power to fight hate speech with more speech. And thats what theyve been doing on social media by circulating screenshots of questionable comments, denouncing racism when they see it and creating petitions. For many students, this call-out culture can feel like a form of justice.

In addition to fighting speech with more speech, the ACLU stresses the importance of building diversity within a universitys community, too, and creating forums and workshops that raise awareness and promote dialogue on issues of race, religion, sex and gender.

Silencing a bigot accomplishes nothing except turning them into a martyr for the principle of free expression, the ACLU writes. The better approach, and the one more consistent with our constitutional tradition, is to respond to ideas we hate with the ideals we cherish.

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In the Face of Hate, Public Universities Struggle to Balance... - Diverse: Issues in Higher Education

Free speech is under attack today, but more in spirit than in lawand thats the problem. The First Amendment, which precludes the government from abridging a citizens right to speak their mind, doesnt apply to the reactions citizens have when others offer unsavory opinions. That means the core sensibility the Founders wanted to protectthe culture of free expressionis vulnerable not only to unconstitutional attacks from the state, but from what are perfectly permissible attacks from citizens and employers.

That problem cant be solved in the courtsit needs to be addressed in the public square. And at the moment, the spirit of free speech has too few champions.

Lets be clear: There are plenty of noxious, racist and objectionable ideas floating around in America today. Few believe that the Justice Department should prosecute those who articulate those points of viewlegal restrictions would be clear violations of the First Amendment. But legal prohibitions arent the only barriers to free expression.

Set the Constitution aside for a moment: At what point does the social or economic cost of expressing an idea others find unsavory become so high that democratic discourse is fundamentally undermined? At what point does fear of being a social outcast suffocate the democratic discourse that is the lifeblood of democracy?

President TrumpDonald John TrumpTrump rally sparks self quarantine of dozens of Secret Service agents GOP: Trump needs a new plan Trump faces ObamaCare court deadline as political ground shifts MORE skirted a line ahead of his rally in Tulsa, Okla. By suggesting that protesters would be treated differently than they had been treated in other cities, he didnt specify how things would be differentor who would do the treating. Would it be government officials? Would it be counter-protesters acting of their own volition?

As president, many will assume hes threatening to use law enforcement to stifle free speecha clear First Amendment violation. But we shouldnt fall down the rabbit hole of legal wrangling. The issue is whether people who oppose the presidents agenda should, absent government interference, be able to voice their opinion in the public squareand Trump seems to be saying no. Thats a problem regardless of the legal implication. We should want our president to see and hear and consider the objections of those who oppose the administrations agenda. Thats how democracy is supposed to work.

But its not just Trump and his supporters who seem inclined to silence their opposition. Something remarkable has happened on the left as well. The haste with which individuals are canceledfired from jobs, castigated on social media, treated almost like lepers in their own social circlesfor expressing unpopular opinions is chilling. Theres too often no recourse for those who have expressed ideas at odds with the prevailing culture, and no tolerance for mistakes.

As The Washington Post reported recently, two people who attended a Halloween party hosted by the newspapers award-winning columnist took exception to another attendees costume: In an attempt to poke fun at NBC News host Megyn Kellys comments on the legacy of blackface, a woman had dressed up as Megyn Kelly in blackface. The attendees were angry that the host had not passed along the womans name. A New York Times story recently revealed the degree to which young people now apply the tactics of online bullying to peers who hold various political opinions.

People should be confronted when they reveal prejudice. But in the age of social media, transgressions may never be lived down, no matter how you atone. We can all believe in accountability without embracing the notion that anyone uttering the words All Lives Matter should forever be emblazoned with a scarlet R.

"I disapprove of what you say, but I will defend to the death your right to say it." That famous turn of phrase has long been used to explain the value and importance of the First Amendment. And few Americans would dispute that the government should be prevented from stifling free expression. Thats why, decades ago, the ACLU fought to allow Nazis to march through Skokie, Ill., despite the chilling effect their march was likely to have on the Holocaust survivors who lived nearby.

Today, the nations democratic discourse is threatened less by a shift in the government policythough, frankly thats at issue too. Whats happening in the wider culture should be of real concern. None of us are obligated to befriend a racist or invite a bigot over for a picnic in the backyard. But free expression doesnt exist de facto if expressing an opinion at odds with the prevailing view of either the left or the right leads to dire, immutable consequences.

The spirit of democracy depends on providing citizens the opportunity to talk through their differences. It cannot survive if citizens are too fearful to divulge what they really think.

Margaret White is executive director of No Labels, a group that seeks to move Washington beyond partisan gridlock and toward solutions to challenges faced by the country.

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The First Amendment may be safe, but free expression is not | TheHill - The Hill

Donald Trumps sneering attitude toward freedom of speech has been a feature, not a bug, since long before he descended the golden escalator. During his presidency, he has painted journalists as the enemy of the people and, according to John Boltons new tell-all The Room Where It Happened, called for them to be executed. He has also been litigious (before and after running for president), attempting to block the publication of a number of unflattering books, likely including a forthcoming book by his niece, Mary Trump. And, of course, theres The Room Where It Happened, which was cleared for publication by a judge on June 19, though the former national security advisor might still be liable for having published without a White House sign-off.

All this has made a lot of work for 1st Amendment scholars, including Stanley Fish. A literary theorist and legal scholar associated (sometimes unwillingly) with postmodernism, Fish is most recently the author of 2019s The First: How to Think About Hate Speech, Campus Speech, Religious Speech, Fake News, Post-Truth, and Donald Trump. (His publisher, Simon & Schuster, is also Boltons.) Fish spoke with The Times by phone from his home in Florida, in a conversation edited for clarity and length, on the case of Trump v. Bolton, the Twitter bully pulpit, the era of fake news and deep fakes, and the possibility that speech may be too free.

Did the president have a real case against John Bolton?

On the historical record, I would say that the case was very weak. There is a longstanding hostility, older than the United States, to prior restraint, by which we mean restraining publication rather than attacking something after it has been published. There is always a suspicion that the act of prior restraint has been committed not in order to provide safety to the commonwealth, but to avoid embarrassment.

What do you think of the judges decision so far?

Leaving open the possibility that the administration might have some recourse in putting a lien, as it were, on the potential profits of Boltons book think it was a nice judicial split down the middle. He didnt want to have his decision criticized either by political commentators or levels above him in the Judiciary. So hes being evenhanded. I think it was a perfectly OK.

Could Bolton be convicted under the Espionage Act?

No, there has to be absolute evidence that the country was somehow in imminent danger from this publication. And thats thats too high a bar to hurdle. I also dont believe the Trump administration is going to follow through on this, although I expect them to continue making lots of noise about it.

Why did the president even bother?

I think he wants to signal to his core voters that he will not allow the forces of the Deep State to harass him or prevent him from carrying out the policies he believes in. And he is confident, Im sure, that this is a posture that his fervent supporters want him to assume. They wish to see him as someone who and this is of course, a semi-technical term will not take any [crap].

John Bolton at right with his former boss and current legal adversary, Donald Trump.

(Susan Walsh / Associated Press)

Recently, the president said he will consider every conversation with me as president highly classified. Is that even legal?

That fits into another argument, under the rubric of the so-called unitary executive: The idea that some people have that the presidents powers are extraordinarily great. Richard Nixon gave voice to a version of this when he famously said that if the president does it, it cant be wrong. That turned out, in his case, not to be true. But that seems to be a point of view that is attractive to Trump. You recall that he approved the premier of China making himself, in effect, the lifetime leader of that country. So this is all of a piece. Now as political theater, this may end up being effective, because John Bolton is not the most attractive person in the public square, and never has been.

Bolton was forbidden to speak about the book during the review process, but Trump had been tweeting about it constantly. Does that present some sort of legal conflict?

Not that I can see. Does it suggest one to you?

Youre the expert! I just found it interesting that a president insisting that the entire situation is classified is going out of his way to speak about how classified it is on Twitter.

This is part of the general and in some ways extremely sophisticated strategy behind the presidents use of Twitter. At times, he and his supporters say that its just the moment-to-moment exclamations of someone reacting and that we shouldnt take them seriously. And there are other times he and his supporters insist that certain of the tweets are pronouncements of the head of state. Now, if you have these two positions firmly established, you can bounce back and forth between the two of them.

Does the power of the speaker matter when it comes to free speech?

In legal terms, probably not. The 1st Amendment does not make distinctions on the basis of the status of the person speaking. But politically, of course, it makes a huge amount of difference. Many of those who have been the targets of Trumps tweets and have spoken of how distressing it is to be excoriated by the president of the United States in public. Whereas if I excoriated that same person, he or she wouldnt care less, because Im just a guy sitting in my study in Florida, as opposed to a guy whos sitting in his luxury resort about 25 miles from where I am at this moment.

Twitter has been slapping labels on Trumps tweets, and Trump and others have been arguing that this restrains free speech. Do they have an argument, legally or morally?

The deeper issue is whether or not Twitter or Facebook are merely devices for displaying messages or whether they are more like newspapers or books. This is a battle thats been going on for a long time, around Section 230 of the Communications Decency Act, where it is said that servers do not have editorial responsibility theyre merely relays. Thats the position Mark Zuckerberg has long taken and the position that Twitter used to take. Jack Dorsey seems now to have turned the page. Theres now a public will, it seems to me, to somehow curb and control this hugely powerful engine of communication. And I would suspect that Congress will be increasingly sensitive to the publics unease.

(Atria / One Signal Publishers)

Which do you think is right, Twitter or Facebook?

I just published a book that expands on my longstanding position against 1st Amendment absolutism. First Amendment rights are extremely important, but they are not, I believe, to be placed in the position of a deity. Chief Justice Roberts often does this in his 1st Amendment decisions: If its free speech being infringed in any way, thats the end of the case. For me, the wise course was announced long ago by the great American jurist Learned Hand, who said that when it comes to matters of free speech, what you have to do is calculate the possible harms of allowing the speech in question to flourish and then calculate the possible harms of censoring or monitoring it. Then add up the two columns and see where the preponderance of harm lies.

When Twitter decides to be a gatekeeper, conservatives argue its biased making a fact-based move political. What does one do with that?

Well, if I were conservative, which I sometimes am in some areas, I might ask, Are they tagging the statements made by... and then you list a whole bunch of people. They have to be doing this in a way that doesnt suggest that its directed at the president or his supporters. But the president, from the beginning, has said that the press is out to get him. Hes right. The press is out to get him! Every president has had his difficulties with the press, but the designation of the press as the enemy of the people is something that we havent had before. If you declare someone to be your enemy, then its not surprising that they agree to act as your enemy.

Youve written a lot about fake news. Do stories about deepfakes and other manipulated media trouble you?

We should always fear that, we should just not believe its new. Manipulation has always been happening. Whats different now is that the institutions in which we used to repose our trust mainstream newspapers, TV networks, scientific experts, universities, the Library of Congress, etc. have in recent years been subjected to a campaign of distrust, and of course the internet abets this campaign. The result has been the possibility of many, many narratives being presented and no trusted, authoritative institution acting as a check. Fake news has been with us forever, but Im not worried about fake news. I am worried about the fact that, for example, there are people who believe that the scientists who are talking to us about social distancing and the importance of wearing masks are somehow part of a conspiracy against the president. Thats disturbing.

Is there too much speech right now?

The mantra that has for a long time ruled 1st Amendment discussions has been the more speech the better. The idea is that the more speech is free and unfettered, the less it is curated or monitored or given to us by gatekeepers, the better it is. The general word for this is transparency. And I think that that entire way of thinking is a disaster. Because if what you have is the proliferation of speech without any mechanism for determining which forms of speech are worth attending to, all you have is the proliferation of perspectives and the disinclination of everyone to make any distinction between them. And thats where the internet, to some extent, has brought us.

Theres a 1st Amendment theorist at Columbia, Timothy Wu, who wrote a really good essay last year called Is the First Amendment Obsolete, and his large point, which I agree with, is that the 1st Amendment was formulated when the opportunities for speech were scarce, and the enemy was the government, which was attempting to arrogate to itself all the opportunities for speech, as perhaps Trump is trying to do now in his conflict with John Bolton. But Wu says that now, the danger that we face is produced by the endless proliferation of speech, which acts as a kind of censornot in the heavy-handed way of government forces, but because it reduces everything to a matter of indifference and sameness. Truth has receded as an effect of the proliferation of speech, so much so that perhaps the 1st Amendment is out of date.

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Scholar Stanley Fish on Bolton, Trump and why there's too much free speech - Los Angeles Times

St. Louis Aldermanic President Lewis Reed oversees debate at St. Louis City Hall among aldermen expressing their support and opposition to Board Bills 215 and 2016 that deal with tax issues around the MLS soccer stadium on Friday, Feb. 21, 2020. Both bills were moved forward in the process by a 26-1. Photo by David Carson, dcarson@post-dispatch.com

ST. LOUIS Board of Aldermen President Lewis Reed and U.S. Sen. Roy Blunt are violating the First Amendment rights of constituents in the way they mute criticism on their social media accounts, according to two federal lawsuits filed Tuesday.

The American Civil Liberties Union and the Washington University law schools First Amendment clinic filed the suits on behalf of Sarah Felts of St. Louis and Dennis Enloe of Union, Missouri.

The fact that a public official disagrees with you on an issue doesnt mean they can silence you, Tony Rothert, legal director of the ACLU of Missouri, said in a news release Tuesday. That holds true whether youre speaking out in a public park, at a town hall meeting, or on social media.

Felts suit filed in U.S. District Court for the Eastern District alleged that Reeds Twitter account, @PresReed, blocked Felts account from his page because she made a post that was critical of President Reeds actions and policies. As a result, Felts suit claimed, Reed has prevented Ms. Felts from participating in public discourse in a government-controlled public forum.

A screenshot of @sarahfelts' Twitter account included in a federal lawsuit against Board of Aldermen President Lewis Reed allegedly shows Felts was blocked by Reed in 2019.

Mary Goodman, Reeds legislative director, said neither she nor Reed were aware Felts was blocked on Twitter until a Post-Dispatch reporter called Tuesday about the lawsuit. Goodman said it seems like a minor issue that Felts was blocked and that it can literally be fixed at the click of a button.

Originally posted here:
Reed, Blunt violated users' free speech on Facebook and Twitter, lawsuits claim - STLtoday.com

EDWARDSVILLE The DREAM (Dismantling Racism through Education, Advocacy and Mobilization) Collective at Southern Illinois University Edwardsville will host a webinar featuring LaWanda Ward, JD, PhD, at 2 p.m. CDT Friday, June 26.

Ward, an assistant professor of education and research associate in the Center for the Study of Higher Education at the Penn State College of Education, will speak on the topic Still Searching for Justice: Free speech and anti-Blackness in U.S. Higher Education.

Register for the webinar at http://bitly.ws/8Q2T.

Wards commitment to social justice, equity and inclusion in higher education is influenced by her family of educators. Her research agenda centers on critically analyzing legal issues in higher education including race-conscious admissions, free speech and academic freedom.

This is the second public offering coordinated by the DREAM Collective. The Collective is committed to serving the southern Illinois and greater St. Louis area through supporting community members, educational organizations and professionals in the process of naming, addressing and dismantling racism through education, advocacy and mobilization.

Its team of faculty activists seek to create effective programming and foster cultural competency in responsive educators and community members. Members include the SEHHBs Dean Robin Hughes, PhD, and education faculty Jennifer Hernandez, PhD, Jessica Krim, EdD, J.T. Snipes, PhD, and Nate Williams, PhD.

For more information, visit the DREAM Collective on Facebook at @DREAMCollective20, Twitter at @DREAMcollect20 or Instagram at @DREAMCollective20, or email TheDREAMCollective@siue.edu.

The SIUE School of Education, Health and Human Behavior prepares students in a wide range of fields including public health, exercise science, nutrition, instructional technology, psychology, speech-language pathology and audiology, educational administration, and teaching. Faculty members engage in leading-edge research, which enhances teaching and enriches the educational experience. The School supports the community through on-campus clinics, outreach to children and families, and a focused commitment to enhancing individual lives across the region.

$10 for $20 Half Price Deals at deals.riverbender.com

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DREAM Collective To Host Webinar On Free Speech And Anti-Blackness In US Higher Education - RiverBender.com

In a 2017 New York Times column headlined "America's Best University President," Bret Stephens praised Robert Zimmer of the University of Chicago as a defender of free speech.

The column quoted speeches and letters from Zimmer and other University of Chicago administrators and professors, including a committee that, as Stephens quoted it, issued a 2015 report finding that, "Concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some members of our community."

So it was surprising to see ablog post from John Cochrane, who until recently was a professor at the University of Chicago's Booth School of Business. Cochrane wrote on June 15, "I spent much of my last few years of teaching afraid that I would say something that could be misunderstood and thus be offensive to someone.Many of my colleagues report the same worries."

If that level of fear accurately describes the situation at the University of Chicago, where the university administration has deservedly won national attention for coming down clearly, decisively, and publicly on the "open debate" side of the campus speech wars, imagine just how bad things are in the rest of academia.

In a moment when black Americans fear being killed by police, the concern that tenured professors might be inconvenienced might seem trivial. The worry at Chicago as described by Cochrane was less that university administrators would, on their own initiative, rule speech out of bounds, and more that a student would lodge a grievance that would, in turn, generate an investigation that would then accumulate a momentum of its ownwith no due process. It could end with a teacher falsely labeled as a racist, one of the worst things a person can be called in contemporary America.

David Brooks, another New York Times columnist who is a member of the University of Chicago'sboard of trustees,tweeted over the weekend that the story of "radically shifting attitudes and awareness on race" is ten times more important than the story that "the hardcore cancel culture is losing its mind."

Perhaps. But the two stories are not unrelated. Among the people getting canceled are those whose "attitudes and awareness on race" have not shifted rapidly enough to suit the hard core's vanguard. At FutureOfCapitalism.com I have published a still-growing list of20 people who have lost their jobs in these purges. The list includes the CEO and co-founder of the Wing, a coworking community for women, Audrey Gelman, who hadconceded, "Employees were required to attend diversity and antibias trainings, but it was a one-time requirement and didn't go deep enough." It also includes thepresident of the Poetry Foundation, Henry Bienen, and its board chairman, Willard Bunn III,who resigned after issuing a George Floyd-related statement that critics said was "vague and lacking any commitment to concrete action," the Associated Press reported.

These aren't people who committed hate crimes. They are people who committed thought crimes or people who appear guilty, at most, of being well-intentioned but clumsy. They were antiracist but they were mediocre at it rather than excelling. That didn't used to be a firing offense in most places. Maybe those of us who favor excellence rather than mediocrity, in general, should welcome the expansion of high-stakes high standards to the field of diversity and inclusion.

This is complicated stuff, in part because it is a good thing that there is a stigma attached to racism, and it is a good thing that people in power, as professors are, are motivated to choose their words with care rather than without it.

But as important a value as antiracism is, there are other closely related values as well, among them the rule of law and seeing everyone as fully human and, in many cases, capable of improvement and repentance. Another recent New York Timescolumnquoted the longtime national director of the Anti-Defamation League, Abraham Foxman, bemoaning what he described as, "one wrong picture, and you are finished for life."

Zimmer is recovering from emergency brain surgery, but the University of Chicago website carries aspeech he gave at Vienna in September 2019. "As frequently the case for groups filled with self-righteousness, many simple well-meaning behaviors are given malignant interpretations followed by demands for corrective action," Zimmer said. "On some campuses there is a tone of discourse ostracizing those with currently unpopular views, faculty are concerned about bringing up certain topics and ideas for fear not of disagreement but of being demonized, and some university administrators are actually fostering an environment in which students' feelings of discomfort with ideas take precedence over the importance of actually discussing ideas."

Those words are as true now as they were then.

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The University of Chicago Took a Stand for Free Speech. Faculty Say They Live in Fear Anyway. - Reason

Columnist Jack DeVine both warns of and greases a slippery slope in his column Can we talk?

His warning is that the current climate of students using force to keep unpopular people from speaking on campus and public pressure causing speakers to be fired or have to recant unpopular statements is undermining the U.S. Constitution's protection of free speech.

(It must be noted that government inaction failing to protect the property rights of those who host speakers is not merely a slippery slope but a direct failure to uphold the Constitutions purpose of protecting individual rights.)

Mr. DeVine greases the slope that ends free speech by writing that we should not allow government, private corporations, or popular culture to hamper unfiltered communication. Hes not worried that our government is interfering with free speech although many other governments do with their laws against blasphemy and hate speech. And because his column disparages 1984"-ish controls, he cant be serious about preventing popular culture from filtering communication.

This leaves private corporations as the target of his desire to ensure unfiltered communication. In particular, he is opposed to Twitter filtering Trumps communication." But Twitters fact-checking Trump does not interfere with Trumps free speech because he can still tweet lies there. Im glad Mr. DeVine recognizes that people are free not to deal with private corporations, and that he stops short of calling for legal force to remove their freedom to filter communication.

Unfortunately, many other conservatives slide to the bottom and call for anti-trust action to stifle the speech of large media organizations. This reveals the conservatives belief in freedom to be less than skin-deep.

Robert Stubblefield

Aiken

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Letter: Beware of slippery slopes | Opinions and Editorials - Aiken Standard

Published June 23, 2020 by Pride in Publishing

Being a book publisher comes with a set of tough moral responsibilities. You provide livelihoods for authors and booksellers, your hiring decisions can greatly influence...

Being a book publisher comes with a set of tough moral responsibilities. You provide livelihoods for authors and booksellers, your hiring decisions can greatly influence how UK culture is shaped, and youre also a company with a duty of care towards your staff. Sometimes these duties come into conflict, and when that happens - as weve seen recently with Hachettes response to some of their staff objecting to working on JK Rowlings new childrens book - the reflexive instinct is to retreat behind the defence of free speech.

Lets clarify what free speech is and is not. Free speech does not entitle an author to a publishing contract. But it does protect the right of a worker to raise the alarm when theyre asked to participate in something that can cause them or someone else harm or trauma. Transphobic authors are not a protected group. Trans and non-binary people are.

When we launchedPride In Publishingin 2017, part of our mission was to create a safe space for the queer community working across the trade, and shine a light on the lack of inclusivity and often poor provision for supporting its LGBTQ+ workforce at many publishers. We have a lot of work to do to fulfil that mission, and our urgency has only been increased by both the individual hostility of the leak that lead to the Hachette story becoming public, and the institutional indifference represented by the companys response.

Publishing a globally famous author with a controversial record is not a moral decision around freedom of speech (particularly for a billionaire well versed in self-publishing their own content), it is a commercial one driven by cold and hard P&Ls. Book publishing is, of course, a business, and each publisher has to follow its own moral compass in terms of factoring in potential reputational harm when standing by a controversial figure. But as many other big book deal collapses have shown, no-one should be immune to scrutiny.

However, employees should never have to work on content which is detrimental to their mental health or which causes them unnecessary turmoil as a spokesperson acknowledged, no-one would force someone to work on a book containing potentially harmful content such as domestic abuse, substance use or something fundamentally against their religious beliefs. LGBTQ+ staff and their allies deserve the same human decency and compassion.

We stand in total solidarity with those at Hachette Childrens Books who voiced their objections to JK Rowlings recent conduct. They are valid, their identities and sexualities are valid and HCBG has ample staff who could have been asked to work on the forthcoming title instead of creating a media circus to their detriment.No one should be mocked or dismissed for standing up for their owned experience as part of a minority community.

Please, do better, book industry we are a dedicated and passionate resource of diverse talent as part of your workforce. From pay transparency to safeguarding, acquisitions to advances, we are consistently letting ourselves down. Were still an industry where to be anything but white, straight, cis presenting and middle class is a hostile experience. Where the work to progress is happening at all, its happening far too slowly.

If publishing doesnt get better at reconciling its moral responsibilities and commercial priorities, dont blame us as valuable queer, non-white and working class talent continues to walk out of the door. Well take our stories with us and leave you with an ever more irrelevant status quo.

(If you want to delve further into the myriad ways in which Rowlings recent statements misrepresented trans people, Mermaids, the trans youth charity, wrote abrilliant and constructive response.)

Pride in Publishing

Link:
"Let's clarify what free speech is and is not": An open letter to the industry from Pride in Publishing - The Bookseller