Category Archives: Freedom of Speech

Testimony Before The Tennessee General Assembly House Banking and Consumer Affairs Subcommittee on House Bill 859 In Reference to Censorship on Social Media Platforms

The Heartland Institute

March 2, 2022

Chairman Powers and Members of the Committee,

Thank you for holding a hearing on House Bill 859, legislation intended to challenge Big Tech when it comes to Tennesseans rights to political and religious free speech.

My name is Samantha Fillmore, and I am a State Government Relations Manager at The Heartland Institute. The Heartland Institute is a 38-year-old independent, national, nonprofit organization and our mission is to discover, develop, and promote free-market solutions to social and economic problems. Heartland is headquartered in Illinois and focuses on providing elected officials on all levels reliable and timely research on important policy issues such as Big Tech censorship.

Throughout 2021 and the beginning of this year we have had 85 pieces of legislation in 36 states all attempting to challenge Big Tech censorship. The volume of bills on this topic throughout the nation is indicative of the fact that many Americans recognize we are entering into a dangerous period of censorship at the hands of Big Tech oligarchs.

In the blink of an eye, the emergence of social media platforms has elevated the national conversation and political discourse to a size and scope nearly unimaginable a decade ago. The associated emerging technologies and mediums promised democratization of free speech in a way never dreamed of. Free speech and political activism, once the realm of partisans and professional pundits, was accessible such that people who were once spectators were now engaged.

However, this mass communication network is managed by a handful of powerful tech titans, who are shielded from liability and operate as monopolies. The consolidation of this power to these titans has now effectively erased the empowerment of millions of Americans and their newfound voices.

Where it has empowered voices and people across the political spectrum, it has also empowered the voices that seek to divide, misinform, and manipulate us. I would like to tell you that the very platforms on which those messages are spread have been fair and impartial, yet the truth is that they havent been.

The number of social network users worldwide reached 3.6 billion in 2020 and is projected to increase to 4.4 billion by 2025. This phenomenon was further exacerbated by the coronavirus pandemic. A Harris Poll conducted in the spring of 2020 found that 46 to 51 percent of American adults were using social media at higher rates than they were pre-pandemic. In addition, U.S. social network ad spending is projected to rise 21.3 percent from the already staggering $40 billion spent in 2020.

All of these statistics provide ample evidence that social networks have become so much more than a host for expression, memes, and life updates among friends and family. In todays world, social media companies have become a major sector of the U.S. economy, influencing corporate successes and failures.

Opponents of this legislation would argue that such censorship is appropriate because "market forces" have allowed these titans to rise to power. To that, I submit to you that these instances are not the product of a healthy free market but rather the result of a corrupted market.

Moreover, private corporations have no more of a right to suppress Americans free speech than does the government. Americans would never stand for a neighbor breaking into their house to forcibly take their possessions, just as the same would not stand for a rogue policeman. In this case, one is a private entity while one is a government entity. Similarly, Big Tech corporations have no more right to suppress your free speech rights than does the government. Government exists to defend our unalienable rights and especially our unalienable free speech rights from being suppressed by third parties.

Our right to free speech rights exist independent of the First Amendment. Our free speech rights do not exist because the government benevolently gave them to us in the First Amendment; our free speech rights exist because they are innate human rights that are unalienable, either by the government or any other actor. Tennessee has every right to independently safeguard our unalienable free speech rights from suppression by private corporations and that is what is HB 859 aims to accomplish.

This legislation would inject autonomy back to the state level for Tennessee lawmakers and constituents alike.

So here we are today, challenging the behavior of Big Tech for citizens of the state we all live in. To challenge the argument Big Tech perpetuates. The argument that they have a free-speech right to suppress other peoples free speech. This rationale would appear in a George Orwell novel. It is evident that Big Tech lacks transparency and respect for the moral obligation it has as a primary outlet for political discourse in our nation and the dissemination of information of public import.

A dominant user platform for speech simply does not have any right to silence Americans free speech rights. That is especially the case, given that social media and the internet are the primary means by which Americans today share information and ideas with each other. Respecting free speech rights on the primary means by which Americans communicate with each other is not forced speech in violation of the First Amendment.

House Bill 859 is good legislation, promoting overall free speech for residents of the Volunteer State. This bill sends the message to Tennessee constituents that clear and robust public debate is sacrosanct and any action or failure to act to ensure a robust debate will be met with hard questions, and if necessary, enabling policies.

Finally, I would like to submit to you that on the issue of freedom of speech, more speech is always the answer, never less.

Thank you for your time today.

For more information about The Heartland Institutes work, please visit our websites at http://www.heartland.org or http:/news.heartland.org, or call Samantha Fillmore at 312/377-4000. You can reach Samantha Fillmore by email at SFillmore@heartland.org.

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Publications - Testimony Before The Tennessee General Assembly House Banking and Consumer Affairs Subcommittee on House Bill 859 In Reference to...

On February 24, 2022, the U.S. Court of Appeals for the Federal Circuit, in In Re: Elster, overturned the Trademark Trial and Appeal Boards (TTAB) refusal to grant a trademark registration on the phrase TRUMP TOO SMALL for use on T-shirts. The Federal Circuit held that the Lanham Acts prohibition on the registration of marks including the surname of a living individual unconstitutionally restricted free speech in violation of the First Amendment as applied to this mark.

The U.S. Patent and Trademark Office (PTO) initially rejected Elsters proposed trademark on two grounds: (1) the mark used former President Trumps name without his written consent, in violation of section 2(c) of the Lanham Act; and (2) the mark falsely suggested a connection with former President Trump, in violation of section 2(a) of the Lanham Act. Elster appealed both decisions, and the TTAB affirmed based on section 2(c) grounds. Section 2(c) of the Lanham Act prohibits in relevant part the registration of a trademark that [c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent. 15 U.S.C. 1052(c). Elster appealed to the Federal Circuit, which reversed the TTABs decision.

This ruling extends a trend of courts striking down Lanham Act trademark restrictions based on the First Amendment right to freedom of speech. In the last five years, the U.S. Supreme Court held unconstitutional two Lanham Act provisions: (1) prohibiting the registration of marks containing derogatory terms and phrases (Matal v. Tam); and (2) prohibiting the registration of immoral or scandalous matter (Iancu v. Brunetti). While those Supreme Court cases did not address the provision at issue in Elster, the Federal Circuit noted that they do establish that a trademark represents private, not government, speech entitled to some form of First Amendment protection.

Before diving into the analysis, the Federal Circuit observed that [t]he First Amendment interests here are undoubtedly substantial. . . . The right to criticize public men is one of the prerogatives of American citizenship. Indeed, the Federal Circuit called criticism of government officials speech that is . . . at the heart of the First Amendment. In response, the TTAB argued that the First Amendment interests implicated by section 2(c) are outweighed by the governments substantial interest in protecting state-law privacy and publicity rights, grounded in tort and unfair competition law.

The Federal Circuit considered both of the TTABs arguments. First, as to the right of privacy, the Court held that the government has no legitimate interest in protecting the privacy of President Trump, the least private name in American life, from any injury to his personal feelings caused by the political criticism that Elsters mark advances. Without any actual malice, there can be no plausible claim that President Trump enjoys a right of privacy protecting him from criticism.

Second, the Court held that the right of publicity does not support a government restriction on the use of a mark because the mark is critical of a public official without his or her consent. Indeed, all the law that the government cited recognized this. For example, the only case that the government cited involving parody or criticism of public figures held that the sale of parody baseball cards featuring MLB players names and likenesses was protected speech under the First Amendment and did not violate the players right of publicity.

The Court acknowledged that the government does have interests to do with the right of publicity: first in protecting against copying or misappropriation of an existing mark, and second in preventing the issuance of marks that falsely suggest that President Trump has endorsed a particular product or service. However, the Court held that these interests arent implicated here, as there is no claim that this mark misappropriates Trumps name or an existing trademark, nor is there a claim that the mark suggests that Trump endorsed Elsters product.

In sum, the Court held that the government does not have a privacy or publicity interest in restricting speech critical of government officials or public figures in the trademark contextat least absent actual malice. The Court left open what would be necessary to prove actual malice. It did not address, whether, for example, biting criticism like calling former President Trump too small could be actual malice in some contexts.

The Court also stopped short of holding that Section 2(c) was facially unconstitutional. Since Elster raised only an as-applied challenge, the Court did not decide that issue, but commented that the provision may be overbroad insofar as it leaves the PTO no discretion to exempt trademarks that advance parody, criticism, commentary on matters of public importance, artistic transformation, or any other First Amendment interests. So, this question is left for another day.

Given that, as Elster wrote in his opening brief in 2021, [t]his case marks the third time in six years that this court must decide whether a statutory restriction on trademark registration complies with the First Amendment, it is probable that the question of whether Section 2(c) is unconstitutional will come up again.

Politicians and popular figures that are already open to public criticism are also now more likely to be open to criticism through trademark registrations. This increases their need to add monitoring trademark applications to their reputation management effortsespecially since phrases such as I hate XYZ Company or I dont really like Ted Cruz are now more likely to be granted trademark registration.

After all, those marks do not infringe on XYZ Company or Ted Cruzs right of privacy, do not misappropriate XYZ Companys or Ted Cruzs name or existing trademarks, and do not suggest that XYZ Company or Ted Cruz endorse a product showing that mark. If finding actual malice is the only way for the TTAB to reject a trademark registration for a phrase criticizing a public figure, Elster may have opened the gates for such marks.

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The First Amendment Trumps Another Restriction on Trademark Registrations - JD Supra

DAVID M. SHRIBMAN

We have just heard the president's State of the Union address. It was delivered in a fraught time by a man freighted with responsibility. He hit the right notes and struck the right tone. We have domestic differences, to be sure, but we are united in our disdain for Vladimir Putin, his expansionist impulses, his delusional view of history. Men and women of both parties generally applauded at the appropriate times. It was the sort of American moment that is rare in today's America.

The invasion of Ukraine has had many effects on us. It has caused us to reflect on the nature and value of freedom at a time when both are contested because of the spread of the coronavirus and the controversies about mask and vaccine mandates. It has prompted us to think about the role of government and elections at a time when the integrity of both have been challenged like never before, or at least since the onset of the Civil War. It has moved us to examine our views of what is a civil society and how we can build one together while retaining our separate views on the issues of the day.

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It also has caused us to think anew about the value of studying and knowing a bit about history. The number of history majors in our universities has fallen, dropping especially after the Great Recession and amid legitimate concerns about future employment. Unless you are seeking to teach in a classroom or take over my column, the study of history may seem like a luxury, an indulgence.

But this period may have changed all that. And as proof, let me go back in history and offer another president's State of the Union address, given at another time of challenge. Let's tune in, if just for a few excerpts, to what Franklin Delano Roosevelt said in his 1940 remarks -- and let's ponder whether Joe Biden might have delivered these very remarks Tuesday.

FDR: I have repeatedly warned that, whether we like it or not, the daily lives of American citizens will, of necessity, feel the shock of events on other continents. This is no longer mere theory; because it has been definitely proved to us by the facts of yesterday and today.

This was "definitely proved to us" by the facts of the past week, when "a quarrel in a far away country between people of whom we know nothing" -- the history-minded among you will recognize the phrase from Neville Chamberlain that captured his view of world affairs, leading to his capitulation to Adolf Hitler in 1938 -- sent shock waves across the United States.

FDR: To say that the domestic well-being of ... Americans is deeply affected by the well-being or the ill-being of the populations of other nations is only to recognize in world affairs the truth that we all accept in home affairs.

Here Roosevelt was stating the obvious to a nation where large portions of the population were oblivious to the obvious. We are more conscious of this now, and yet fresh voices continue to question whether the country should curtail its global engagement.

FDR: We must look ahead and see the effect on our own future if all the small nations of the world have their independence snatched from them or become mere appendages to relatively vast and powerful military systems.

This is a chilling sentence, aimed at Czechoslovakia (already in tatters) and Poland (divided by the Nazis and Soviets), and looking ahead to Romania (at the time neutral, but seven months from a fascist coup) and Greece (victim of the Nazis within a year).

FDR: It is, of course, true that the record of past centuries includes destruction of many small nations, the enslavement of peoples, and the building of empires on the foundation of force. But wholly apart from the greater international morality which we seek today, we recognize the practical fact that with modern weapons and modern conditions, modern man can no longer lead a civilized life if we are to go back to the practice of wars and conquests of the seventeenth and eighteenth centuries.

This is a passage with special resonance today, as Mr. Putin, fashioning himself the heir to Peter the Great (1672-1725) and behaving as the heir to Josef Stalin (1878-1953), is operating out of a worldview centuries old, even as he possesses nuclear weapons invented in the last century and enhanced hypersonic weapons refined only in the last decade.

FDR: Of course, the peoples of other nations have the right to choose their own form of Government. But we in this nation still believe that such choice should be predicated on certain freedoms which we think are essential everywhere. We know that we ourselves shall never be wholly safe at home unless other governments recognize such freedoms.

In these three sentences, Roosevelt harkens to one of his political heroes, Woodrow Wilson, who is in disrepute today for racist views and for the airy idealism that filled his Fourteen Points. But some of those Points are relevant to us today; several directly covered the broad thesis of national self-determination. Mr. Putin might be reminded that one of them asked for special consideration for Russia, where the Communist Revolution had occurred months earlier: "The treatment accorded Russia by her sister nations in the months to come will be the acid test of their good will, of their comprehension of her needs as distinguished from their own interests, and of their intelligent and unselfish sympathy."

A year later Roosevelt would use his State of the Union address to set out his Four Freedoms -- freedom of speech, freedom of worship, freedom from want and freedom from fear. The artist Norman Rockwell made them part of American iconography.

The freedom from fear seems especially poignant to us today. No one who has viewed Rockwell's portrayal -- a worried couple tucking their two children into bed -- can fail to contrast that with the image shot 'round the world on CNN of the worried mother of two seeking shelter in a Kharkiv subway station. "We woke up at 5 because we heard some explosions," she said. "We were scared."

The American father in the Rockwell painting held a newspaper. The words "BOMBINGS" and "HORROR" were in the headline. The Ukrainian mother in the subway station held her family's food. It was a bag of potato chips.

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Commentary: Reexamining the value of studying history | Columnists | elkodaily.com - Elko Daily Free Press

This opinion column was written by RGJ engagement editor Brett McGinness.

It was disheartening to see two grown men harassing Gov. Steve Sisolak and First Lady Kathy Sisolak in a Las Vegas restaurant this past weekend.

Despite Nevadas fast-growing population and increasing business and political clout, it still can feel less like a state and more like a large neighborhood, where its not surprising to see state officials out and about without an entourage or security detail.

This weekends incident pushes us further away from that neighborly small-town mentality.

Youre in here without security? one of the men asked. Im surprised you have the balls to be out here in public, punk.

Set aside (for now) the abhorrent threats of violence and theracist, baseless conspiracy theories these men shouted at the Sisolaks. This confrontationalbehavior isn't fit for political disagreements, or anywhere else in polite society it'sbehavior that would get anyone immediately kicked out of any bar in the state.

None of us should be OK with this.

And most of us arent. State Republicans and Democrats alike condemned the confrontation.Nevada GOP chair Michael J. McDonald wrote, "There is no place for the behavior and violent threats against the Governor."Attorney General Aaron Ford wrote on Twitter, Real patriots don't act like this, and anyone perpetuating these actions should be held accountable. Clark County Sheriff Joe Lombardo, the current front-runner to challenge Sisolak for the governorship, wrote, "Hateful verbal abuse and violent threats have no place in our political system."

On the other hand, Las Vegas City Councilwoman and Sisolak challenger Michele Fiore hastried to playit both ways, saying she does"not condone the personal attacks made in that confrontation" but also, "If you look at the history of dictators, pitchforks will be next."

Reno lawyer Joey Gilbert, another Republican gubernatorial candidate, said he couldn't condemn the actions due to freedom of speech concerns.

"While the comments directed toward Sisolak's job performance as Governor could not have been pleasant for him to hear," Gilbert said, "I'm sure he joins with me in agreeing with the following historical statements about the importance of supporting our First Amendment right to free speech."

Joey Gilbert is right. The men dohave the legal right to speak their minds about politics. But it sets an extremely low and shameful bar for our political discourse to simply say,"Hey, it'snot illegal."

Were swiftly descending into Rule by Incivility deferring to whoevers willing to be the loudest, make the biggest scene, act like the biggest jackass. In the absence of solid, fact-basedarguments, just be louder, repeat yourself more, and shout over their responses.

One of our two major political parties used to call itself The Party for Grown-ups but have proven to be anything but. The other one says, When they go low, we go high but have engaged in similar public harassment of politicians and pundits for years.

Its long past time to get back to the fundamentals of democracy. Its a good start to see voices throughout the political spectrum condemn the ambush of the governor and first lady. But we need to demand better from ourselves, from our neighbors, and especially members of our political tribes.

Were the worlds oldest democracy. Lets start acting like grown-ups again.

Brett McGinness is the engagement editor for the Reno Gazette Journal. He's also the writer of The Reno Memo a free newsletter about news in the Biggest Little City.Subscribe to the newsletter right here. Considersupporting the Reno Gazette Journal,too.

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Opinion: Jackass-ocracy harassment of Sisolaks another example of how far we've fallen | McGinness - Reno Gazette Journal

By BOB BIRD

In the recent debate with former Alaska State Sen. John Coghill, a true gentleman if ever there was one, I could not broach all of the flaws that exist in our current state constitution. One of them is Article 1, Section 5:

Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.

When one looks at the federal Bill of Rights and in most of our own in the Alaska constitution, they are worded with restrictions placed upongovernment, rather than granting permission tocitizens. The rights then are seen as pre-existing, given to us by Natural Law from the Almighty.

No law shall be made and No person shall be denied is how all of them should properly and justly read. It is easily understood that were it not this way, we would suffer under the rule, The Government giveth, and the Government taketh away.

But read Section 5 of Alaskas Constitution again. That is precisely what it does it grants us permission, with a finger-wagging warning that should we abuse it, we would pay a penalty. It goes without saying that abuse of the freedom of speech was already thoroughly ensconced in American statutes and Anglo-Saxon common law, and was not necessary to be included.

Even during the debates held in 1955, this was seen as a danger. None other than the last living convention survivor, and the Dean of Alaskan liberals Vic Fisher, understood that the wording was fraught with potential mischief. He was assured that Idahos state constitution had similar wording and had therefore been tested as if it could never be abused in the future.

The liberal Mr. Fisher was on to something important in 1955. I wonder what his thoughts are today regarding the abuse that is now ongoing in the state legislature with the heroic Rep. David Eastman.

But the template of our vaunted state Constitution of 1955 came out of a liberal think-tank associated with the Rockefeller created-and-funded University of Chicago, called the Public Administration Service, or PAS. Their various officers, who were Socialist New Deal retreads, were even invited to advise, observe, and speak at the 1955 confab in Fairbanks.

A word on the term holocaust, which Eastman used in reference to something other than the Jewish Holocaust. I hate to say it, but the term seems to have been patented by the liberals, and I am here to inform them that it is not.

The prolife movement has used it for nearly 50 years, and willneverstop using the term. If it doesnt actually parallel the Jewish holocaust, it is because the body count of aborted babies in the US alone now exceeds 10 times the number of Jews murdered by the Nazis.

But they dont count, you see. And why?

Because the liberals told us so.

The politically conservative Jews, such as Andrew Barr, the secretary of the UKsJews for Justice,are also warning us that we are going down a terrible path with cancel culture. If the witches brew that is the Democratic Party succeeds in ousting Rep. Eastman, the rest of us will be next in our workplace, schools and churches.

House Speaker Louise Stutes and House Majority Leader Chris Tuck are not the sharpest knives in the drawer. Legislative bodies must extend courtesy to their confreres. If you want to pass bills, todays opponent is tomorrows ally. Throwing bean-balls at the head of conservative mavericks by inviting childish and bed-wetting witnesses, eager to throw mud through guilt by association is a threat to the other members, and is deliberately meant to be. It will result in an end to legislative comity. It might eventually lead to a modern version of Sen. Preston Brooks and the caning of Sen. Charles Sumner.

Aside from having to modify Article 1, Section 5 of the Alaska Constitution, it appears that the hellbent, dangerous, and evil witch hunters in the state legislature will have to be voted out ifwe can restore election integrity.

Should Eastman suffer some sort of legislative discipline, or expulsion, a bone-chilling nightmare will descend on us here in the Last Frontier.

To quote Donald Trumps speech: They werent really after me, they were afteryou. I was just in their way.

Bob Bird is chair of the Alaskan Independence Party and the host of a talk show, the Talk of the Kenai on KSRM radio, Kenai.

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Bob Bird: Attack on Eastman is a direct attack on freedom of speech - Must Read Alaska

By Christine Jordan SextonFor FloridaPolitics.com

Over objections from some members that the bill could protect internet grifters and neuter Floridas health care regulatory boards, a House panel on Monday voted 12-5 to pass a bill that protects doctors freedom of speech on the internet.

The legislation is aimed at preventing a crackdown on doctors accused of spreading misinformation about COVID-19, a trend that has been occurring across the country and drawing scrutiny from regulators who say such actions are unethical.

Before passingHB 687, members of the House Professions and Public Health Subcommittee beat back a pair of amendments offered by Rep.Carlos Guillermo Smith, including an amendment to delete from current law the gag clause that prevents physicians from discussing guns with their patients.

While a federal appeals court in Atlanta struck down the so-called Docs v. Glocks law, the language remains in two sections of state statutes. Smiths proposed amendment struck the language, which cannot be enforced.

Smith also offered an amendment to the bill that would have ensured freedom of speech protections also apply to Department of Health physicians. Smith is from the same county where a top DOH official was removed after raising concerns with the departments vaccination rates in an email

Rep.Anna Eskamanispoke in favor of the amendment saying that the state cannot pick and choose which speech to protect.

Let the Department of Health follow the priorities established in this legislation, she said.

While the committee members shot down both of Smiths amendments, lawmakers agreed to take up an amendment to HB 687 drafted by committee staff that removes the $1.5 million fine the Department of Health could face if it violated a practitioners right to free speech.

The proposed committee bill would continue to make it illegal for the state to reprimand, sanction, or revoke or threaten to revoke a license, certificate or registration of a health care practitioner unless it can prove beyond a reasonable doubt that the free speech leads to the direct physical harm of a patient. But the department wouldnt have to pay the steep fine for violating the law.

Bill sponsor Rep.Brad Draketold committee members the bill does not offer physicians any freedom of speech protections they are not offered today.

Drake said he filed the bill after hearing about physicianJoel Rudman. Rudman testified in committee that the American Board of Family Medicine tried to take action against him after he made comments about the COVID-19 vaccine.

Gov.Ron DeSantisthrew his support behind HB 687 and its Senate counterpart,SB 1184, earlier this month.

The bills are not supported by organized medicine.

The legislation comes at a time when theFederation of State Medical Boardshas reported an uptick in complaints against licensed medical professionals for disseminating false or misleading information. The organization found 67% of medical boards reported an increase in complaints and 21% had taken some sort of disciplinary action.

The federation has come out in support of scrutinizing medical professionals amid the ongoing COVID-19 pandemic.

We are encouraged by the number of boards that have already taken action to combat COVID-19 disinformation by disciplining physicians who engage in that behavior and by reminding all physicians that their words and actions matter, and they should think twice before spreading disinformation that may harm patients, said Dr.Humayun Chaudhry, the president and CEO of the federation said in a December statement.

Christine Jordan Sexton is a Tallahassee-based health care reporter who focuses on health care policy and the politics behind it. Medicaid, health insurance, workers compensation, and business and professional regulation are just a few of the things that keep me busy.

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Guns, COVID-19 and the internet: House panel Oks 'freedom of speech bill - Clay Today Online

When we think of freedom of speech, the spoken word is usually what comes to mind. But the First Amendment of the federal Constitution (and, hence, Article II, section 7 of Montanas Constitution) also protect symbolic speech.

Symbolic speech is non-verbal action that clearly conveys a specific message to anyone who sees and reads it. It can take the form of public protests, such as sit-ins and marches, demonstrations, wearing buttons, armbands or clothing items such as t-shirts, nudity, flag-waving, flag-burning, burning draft cards and bras, braille, sign language and even non-criminal actions that others might find offensive (the universal one finger salute), to name a few.

My friend, Alan Nicholson, and I were exchanging emails, and he raised an interesting question:

Could the right to vote be an exercise of free speech? I believe that Alan is correct, voting is the exercise of free speech. I suggest that it is a form of symbolic speech.

One commentator put it this way: Voting is an act of pure expression. It is one of the most consequential expressive acts in a persons life, when a voice becomes an action, and those actions dictate how we are governed.

Another author states: It seems like an obvious proposition that a citizen registering to vote or casting a ballot is engaging in free speech, a fundamental right entitled to full protection under the First Amendment to the United States Constitution.

This commentator notes, however, that the US Supreme Court rarely interprets the regulation of voting as it does other regulation of speech that is, with the most stringent form of review, strict scrutiny, applying robust First Amendment law.

Ironically, this from the Court that determined in Citizens United that money equals speech. However, keep in mind a fundamental principle of constitutional law: under its own constitution, a state can provide more protection of a right protected under the federal constitution; but a state cannot provide less protection.

With that principle in mind, assume that registering to vote, filling out a ballot (either mailed or at a polling place) and casting that ballot are actions that are, at the very least, forms of symbolic free speech an expressive non-verbal action that clearly conveys a specific message to anyone who sees and reads it.

Then, add to that the mandates and prohibitions of Montanas Article II, section 13, which states: All elections shall be free and open, and no power, civil or military shall at any time interfere to prevent the free exercise of the right of suffrage. One could hardly craft a stronger protection of the right to vote a constitutional guarantee that all elections must be free and open and prohibiting any civil power (including the legislature, of course) from interfering to prevent the exercise of this right.

Thus, reading together the rights in Articles II, section 7 (free speech and expression) and section 13 (right of suffrage) it is clear (as Alan also observed) that under Montana constitutional law, the right to vote must be protected with no less rigor than is the right of free speech and expression. That is, that both rights, being fundamental rights, any restrictions on the right to vote must be subjected to free speech strict scrutiny analysis.

To that point, Montanas right of free speech proclaims, in pertinent part that: No law shall be passed

impairing the freedom of speech or expression.

Voting being a form of speech and expression means that no law shall be passed impairing the right to vote. And the mandates and prohibitions of Article II, section 13 double-down on that point!

There is simply no constitutional basis by which the legislature, the governor or any public official or branch of government can impair or interfere with Montanans right of suffrage. No law shall be passed .

This article was originally published as: Voting is Free Speech.

Courtesy: Counterpunch.org

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Right to vote - The News International

Most people know, or think they know, that the U.S. Constitution guarantees free speech.

Well, yes and no. What the First Amendment to the Constitution actually says is this:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Congress shall make no law ... means that the government cannot criminalize speech, and we all know that there are exceptions, the most well known being falsely shouting Fire! where that would create a panic and possible loss of life.

We have laws criminalizing lying when one has sworn to tell the truth (perjury), and a somewhat obscure law making it a crime to lie to the FBI. I didnt even know about this one until 2002 Louisiana state Insurance Commissioner James Brown was charged and convicted for it. So if the FBI ever wants to talk to you, about anything, either decline or have a lawyer present should anything you tell them turn out to be untrue.

There is also a long history of cases in which the government has tried to limit political speech. In recent years, rarely has the government prevailed, and if it did, it was later overturned.

As Supreme Court Justice Hugo Black stated in Mills v. State of Alabama, Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.

As for dangerous political speech, in Schenck v. U.S., the court articulated the clear and present danger standard, but in Brandenburg v. Ohio, the court modified it to speech advocating violence that was imminent and probable for speech to be curtailed.

This constitutional provision does not stop private actors from stifling speech. The biggest offenders are employers, who often place restrictions on what you can say about the company, at risk of firing. Bad news, but no state action, so no violation of free speech in the constitutional sense, unless, of course, you work for the government. Then you may be covered.

The difference bears on the current kerfuffle regarding free speech over Spotify podcaster Joe Rogan, who has hosted people who give out incorrect medical information on COVID-19, which, if believed, could result in deaths. Some musicians whose music is on Spotify asked that their work be taken off.

Some people screamed, Censorship! Others said, Good for them! Cries of Free speech! rang on both sides.

This is not a free speech issue. The podcaster has not been arrested. Nothing he did violates the law. The musicians who object are exercising their rights to not be associated with his content.

This brings me back to what free speech means. If you believe the First Amendment does not apply to lies, well, yes, mostly it does. And if you argue that Rogans right to free speech is being curtailed, no, it is not. We are allowed to speak as we please, even if what we say isnt true, but we are not immunized from the consequences of what we say.

The late writer Christopher Hitchens said in his memoir, Hitch 22, that one of the main reasons he decided to become an American citizen was his respect for the protections of speech, and the press, in our First Amendment, protections not explicitly provided in his native Great Britain.

Lets not misconstrue what these great rights mean.

Now retired, J. Michael Malec of Albany formerly worked as a legislative lobbyist for the American Civil Liberties Union in Louisiana.

Read more:
Commentary: What the First Amendment does and what it doesn't do - Albany Times Union

Introduction

On 12 January 2010, the Coroners and Justice Act 2009 (the Act) came into force and, with it, the end of the offences of seditious libel, defamatory libel and obscene libel in England and Wales. Writers, publishers and free-speech advocates celebrated the Act as an historic victory and reminded naysayers that criminal libel had long been used by the state as a cudgel against satirists, incendiaries, malcontents and revolutionaries alike.[1]

Criminal libel is the collective term for a range of offences, all of which relate to the publication of defamatory material in permanent form (as opposed to spoken words or gestures). While criminal libel fell out of use during the 20th century, it continued to exist under the laws of England and Wales and, according to some, this helped legitimise its more active use in overseas jurisdictions.

For repressive governments, criminal-defamation laws have been deployed to silence critics and commentators the threat of imprisonment and a criminal record has a chilling effect on press activity and can deter or inhibit investigative journalists. Having well-publicised criminal-defamation laws can keep opponents quiet, as opposed to more overt methods, such as detaining them or using violence.

The manner in which criminal libel can be used by undemocratic regimes was part of the rationale for section 73 of the Act, which abolished criminal libel laws in England and Wales. Based on the sweeping impact of this section, the government clearly subscribed to the view that this kind of offence has no place in a vibrant democracy. In the words of former Parliamentary under Secretary of State for Justice, Claire Ward:

Sedition and seditious and defamatory libel are arcane offences from a bygone era when freedom of expression wasnt seen as the right it is today The existence of these obsolete offences in this country had been used by other countries as justification for the retention of similar laws which have been actively used to suppress political dissent and restrict press freedom Abolishing these offences will allow the UK to take a lead in challenging similar laws in other countries, where they are used to suppress free speech.[2]

However, the world is a different place than it was ten years ago. Today, anyone can set up a website, purport to report on the news and carry out character assassinations online (all while remaining relatively anonymous). Arguably, new checks and balances are needed on free speech. The Online Safety Bill (the Bill) (currently in draft-form) is the governments answer to the wild-west online. With this Bill, the government is seeking to address the fact that misinformation and harmful content is now rife online.

Perhaps most notably, the Law Commission has suggested incorporating new criminal offences into the Bill. These include the offences of sending knowingly false communications and making hoax calls to the emergency services.[3] The introduction of these new harm-based communications offences, which regulate what people can and cannot say, has aggrieved the same advocates who applauded the Coroners and Justice Act in 2009.[4] According to one organisation, the Bill poses a greater threat to freedom of speech in the UK than any other law in living memory.[5] Strong divergent views on this topic raise various questions should the criminal law be used to regulate freedom of expression? Do criminal defamation laws have a place in todays ultra-connected world, where misinformation is spread with such ease?

The right to free speech

It is widely recognised that defamation and misinformation laws are necessary to protect our society and the people within it. Just as physically attacking someone carries legal consequences, so too should spreading harmful lies about them. However, such laws (whether civil or criminal in nature) do infringe the right to freedom of expression, one of our fundamental human rights, as outlined in Article 10 of the European Convention on Human Rights (the ECHR). This right is framed in the following terms:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

In the 1976 Strasbourg case Handyside v United Kingdom, the European Court of Human Rights provided guidance on the scope of Article 10, confirming that it protects the right to say things that offend, shock or disturb the State or any sector of the population.[6] With that said, the right to freedom of expression is not absolute. The legislation itself states that interference with this right may sometimes be appropriate. Article 10(2) of the ECHR states that interference may be justified in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.[7]

A negotiation of the right to free speech is always ongoing and its parameters depend (to an extent) on the zeitgeist and what society is prepared to accept. For example, in the recent Duchess of Sussex case, Associated Newspapers Limited (ANL) argued that Lord Justice Warby had given inadequate weight to the newspapers Article 10 rights and Thomas Markles right to reply. According to ANL, publishing large portions of the Duchesss letter was necessary to correct inaccuracies about the letter that were published in a People magazine article.

However, in its judgment on 2 December 2021, the Court of Appeal held that the disclosures were manifestly excessive.[8] According to the Court of Appeal, the true purpose of ANLs articles was to reveal to the world the full content of a sensational letter written by the Duchess to her estranged father shortly after her wedding. The core of this judgment was that ANLs right to freedom of expression could legitimately be infringed in order to protect the Duchess of Sussexs right to privacy.

Criminal libel

As the right to free speech is not absolute, a natural question is whether it ought to be regulated by the criminal law. In exploring this point, its instructive to look at countries where defamation is still treated as a criminal matter. When defamation falls within the remit of the criminal law, governments can (and do) go beyond fining people for what they say some countries imprison citizens for it.[9]

For example, Thailand has one of the worlds strictest defamation regimes, which insulates its monarchy from criticism. Under section 112 of the Thai Criminal Code, the so-called royal defamation law, criticising certain members of the royal family can result in a prison sentence of 15 years.[10] The legislation reads as follows:

Whoever defames, insults or threatens the King, the Queen, the Heir-apparent or the Regent, shall be punished with imprisonment of three to fifteen years.

Bucking the trend of many other countries, this royal defamation law has been enforced strictly in recent years. In 2017, a Bangkok military court sentenced a man to 35 years imprisonment for sharing Facebook posts that were deemed to deride the royal family.[11] Over the course of 2020, pro-democracy rallies escalated in Thailand, leading to the arrest and charging of over 150 Thai citizens under section 112. Section 112 was a focal point for Thai protestors, who argued that abolishing this offence does not equate to overthrowing their much-revered monarchy. [12]

Criminal defamation laws can also be deployed by private entities to powerful effect. In 2008, an Indonesian woman emailed several friends telling them that a hospital had misdiagnosed her with dengue fever when she actually had the mumps. Her friends posted this complaint to Facebook and, following further circulation on social media, the hospital filed a defamation claim against her. This case made it to the Indonesia Supreme Court, at which stage the defendant was convicted of libel under the Electronic Information and Transactions Law. While the defendant received a six-month suspended prison sentence, the law allows for jail time of up to six years for this offence.[13]

Conclusions that may be drawn from these sorts of cases are that (1) defamation laws should be narrowly drawn (2) defamation should only give rise to a civil cause of action and (3) criminalising libel is perhaps a step too far. Freedom of speech is widely seen as a vital safeguard against tyranny as it creates space for citizens to criticize their government, state bodies and political parties. The importance of free speech to governmental oversight is reflected in the fact that, in England and Wales, governmental bodies cannot bring a defamation claim. This rule was confirmed in a 1992 case, Derbyshire CC v Times Newspapers Ltd the House of Lords held that the ability of citizens to critique their government without fear of reprisal is essential to democracy.[14]

Conclusion

With the aforementioned Bill, we can see UK legislators attempting to strike a balance between protecting free speech and making the internet a truly safe place. While some see further regulation of online content as long overdue, others see introducing criminal offences that regulate the transmission of ideas as a step too far.

A recent parliamentary report (published by a committee on 14 December 2021) argued that certain definitions within the Bill would benefit from more precise wording. The report expressed concerns about the definition of harmful content and a person of ordinary sensibilities.[15] The report quoted the analysis of journalist Matthew dAncona, who spoke at a parliamentary committee meeting. Mr dAncona said as follows:

I think that with words like harm and safety there is a slippage or a kind of semantic mission creep going on in their use. We used to talk about safety, and what we really meant was physical safety. Now, when people talk about safety, they often mean convenience or comfort. It is not the task of democratic legislators to make people feel comfortable. I think that is stretching the job description.[16]

For better or worse, defamation and the right to transmit ideas remain dynamic areas of the law. For example, in November 2018 the Maldives Parliament passed a Bill to repeal the Anti-Defamation and Freedom of Expression Act 2016, which had re-criminalised defamation.[17] The oscillation in Maldives legislation and the ongoing debate around the UKs Online Safety Bill illustrates a key point that the right to free speech and how it should be regulated will likely continue to be fought over.

See the original post:
Defamation, free speech and the criminal law - Lexology

First Amendment rights on the University of Iowa campus have been violated.

Recently, *The Daily Iowan* sat down with University of Iowa President Barbara Wilson to discuss, among other things, her thoughts on the new mandatory Freedom of Speech training on campus. Wilson was quoted as praising the training by saying it reminds us what our efforts should be around encouraging open dialogue, even if its sometimes hurtful and difficult and involves conflict.

Further,Wilson said that there will exist a tension between the legal underpinnings of the First Amendment and our ability to make sure people feel like they belong here [on campus].

The DI editorial board did not share Wilsons praise for the new training, and instead took it as an opportunity to attack Iowa Republicans hypocritical free speech platform. Lumping recent university and statewide events together into one piece, the editorial board decried Republicans for taking a freedom of speech for me, but not for thee stance. This includes mandatory training.

However, those close to what has happened at the College of Dentistry and the College of Public Health understand that this is hardly the case. The new Freedom of Speech training is about the First Amendment because First Amendment rights on campus have been violated. Both details of these two cases are public knowledge and uniquely hit on the tension Wilson mentioned.

Instead of exploring this tension or doing a myriad of other things in the spirit of honest journalistic inquiry, the editorial board squandered an opportunity to use its voice by simply blaming Republicans. In other words, the board did nothing in its editorial to lead readers into open dialogue with alternate viewpoints. This makes me believe that though the First Amendment is plastered on the wall of [their] newsroom, the DI editorial board needs a refresher like all of us, too.

-Jacob Olson, Iowa City resident

Read more here:
Letter to the Editor | We need First Amendment training - UI The Daily Iowan