Category Archives: Freedom of Speech

A bill seeking to address financial barriers and access to higher education, along with speech on campuses, is now headed for House review after the Ohio Senate passed it nearly unanimously.

In a 31-2 vote, Senate Bill 135 cleared one chamber of the Ohio legislature, pressing forward new rules for student debt transparency and a pilot program for those who dropped out of school, but want a second chance.

The proposed legislation also requires not only higher education institutions, but K-12 facilities as well to adopt a policy on speech on campus and and establish a process to appeal allegations of free speech violations.

This bill is about protecting the free speech of all students and faculty to ensure that our campuses and school districts are not only beacons of free speech and individual expression, but that the focus is on critical thinking skills, to ensure that students can thoughtfully develop their own opinions and make their own decisions, bill sponsor state Sen. Jerry Cirino, R-Kirtland, said.

The measure hits the Senate floor one day after two bills were introduced in the House to control teaching in all tax-funded educational forums that would promote certain ideologies over others. One bill targeted K-12 education specifically, the other was more broad.

Cirino said SB 135 would provide $3 million over the next two years for scholarships that would allow 1,500 students who left higher education in the past five years to try again.

Under the measure, an initiative would also be put in place to allow community college students to transfer credits to state universities and requires partnerships between state universities and community colleges and technical colleges for dual enrollment and programming.

For those just beginning the process of secondary education, the bill targets high school guidance counselors in an effort to make sure students receive all their post-graduation options, including trade schools, community schools and four-year colleges.

That advice should also include the actual cost of a chosen education path, Cirino said of the bill.

The solution to student debt is not wholesale forgiveness, because that does not solve future problems, Cirino said. The solution to student debt is to make sure that students know early on in their career what their lower cost options are, for us to help make them available, and to make sure that they are better counseled on these options.

In the Senate floor vote, the bill received bipartisan support, with the only criticism stemming from the clauses on freedom of speech. Sen. Nickie Antonio, D-Lakewood, said she was encouraged by the rest of the language in the bill, but heard concerns on whether the free speech language actually encourages or quashes that.

We want people to have the freedom to express their ideas and do that in an environment thats safe and open, Antonio said before voting against the bill. Its what our democracy was founded on.

Antonio said she hopes the bill will evolve under House consideration.

The bill had the support of several community colleges and higher education advocates in previous committee hearings, despite the free speech language.

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Higher ed access, speech on campus bill moves on for House review - Ohio Capital Journal

In a ruling last week, the U.S. Supreme Court moved closer to allowing LGBTQ+ discrimination.

In a surge of recent court cases, businesses open to the publicin industries ranging from photography to florists, and wedding services to foster care placementhave invoked constitutional rights to refuse to serve LGBTQ+ people. The most prominent case to date was Masterpiece Cakeshop v. Colorado Civil Rights Commission, a 2018 case that involved a bakery asserting the right to refuse to sell a wedding cake to a gay couple.

Today, court cases in which businesses claim a right to deny employment to LGBTQ+ people in the face of antidiscrimination regulations are similarly accumulating following the Supreme Courts ruling last year in Bostock v. Clayton County, Georgia. The Court in Bostock held that Title VII of the Civil Rights Act of 1968the federal employment nondiscrimination lawforbids discrimination against employees for being gay or transgender under the Acts prohibition on discrimination because of sex.

Although in some sense these cases are a new and important development, they also form part of a larger arc of entities claiming that they have the right to refuse service or employment to certain groupssuch as Black people, immigrants, or womenthat reaches back at least a hundred years. Over many decades, the Supreme Court considered and rejected the arguments of employers and public accommodations, such as restaurants and hotels, that claimed constitutional exemptions from antidiscrimination laws.

After the passage of the Civil Rights Act of 1968, which prohibited discrimination in both employment and public accommodations, the Supreme Court rejected the argument of an Atlanta motel that the Fifth Amendment gave it the right to refuse service to Black customers. The Court similarly rejected the contention of the prominent law firm King & Spalding that the First Amendment protected its freedom of association right to make only men, not women, partners. The Supreme Court described as patently frivolous a barbeque restaurants argument that the Civil Rights Act of 1968 was invalid because the requirement to serve Black patrons assertedly contravenes the will of God and constitutes an interference with the free exercise of the Defendants religion. And in two casesone involving a federal law that required private schools to desegregate, and another involving the tax-exempt status of Bob Jones University, which prohibited interracial dating and marriage as part of its religious missionthe Court held that private schools do not have constitutional rights to adopt racially discriminatory policies or admissions practices.

These decisions made two related moves. First, they restored the common law duty of businesses open to the public to serve the public on a nondiscriminatory basis. This duty prevailed before the Civil War but was abrogated after Reconstruction by racially discriminatory southern laws. Second, these decisions reflected the view that schools and employers are institutions that are open to the public and critical for public participation in what it later described as the basic transactions and endeavors that constitute ordinary civic life in a free society.

Masterpiece again raised this question of whether the Constitution protects a right to refuse service or employment to a class of people on religious or moral grounds. Importantly, in addition to a free exercise of religion claim, the cakeshop made a free speech claim. Masterpiece argued that it could not be required to sell a cake to a gay couple because doing so would compel it to express a message of support for gay marriage.

Court watchers speculated that the Supreme Court might change course in Masterpiece from its consistent rejection of such claims because, for over three decades, the Court had adopted an increasingly robust and libertarian view of the freedom of speech, particularly in economic life. The Court had expanded the sorts of activities that are protected as speech or expression and are subject to heightened judicial review.

By contrast, free exercise jurisprudence had remained relatively stable. For example, the Courts 1990 decision Employment Division v. Smith had remained good law. Smith held that generally applicable laws that are neutral toward religionthat is, do not target or disfavor religionreceive the lowest level of judicial scrutiny, rational basis review.

Many observers speculated at the time of Masterpiece that Justice Kennedy was looking to carve out a free speech right not to sell wedding cakes to gay couples, to balance the scales after granting major wins to the gay community. The bakerys argument, however, turned out to be too expansive for the Court to accept. Why? Humans are expressive animals and almost anything they do can be understood as expressive. For this reason, recognizing an expressive right not to serve a customer would not only threaten most civil rights laws but potentially government regulation more broadly. If refusing to abide by a nondiscrimination law is a constitutional right, why not refusing to abide by any other type of law because of what adhering to it might express?

The Court did not take the course urged by the bakery. Instead, it emphasized the general rule that religious objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law. In doing so, the Court affirmed established constitutional principles. The bakery won the battle but lost the war.

The law around religious exemptions, however, is swiftly changing. The Supreme Court is now stocked with Justices for whom religious liberty is a central or perhaps even primary concern. The new majority has already begun dramatically remaking religion law in ways that may provide religious exemptions to refuse service or employment to the LGBTQ+ community.

Although the Courts recent decision in Bostock held that Title VII protects LGBTQ+ people against discrimination as part of its prohibition against discrimination because of sex, the Court also noted that it was deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution. It observed that the Religious Freedom Restoration Act of 1993 is a kind of super statute that might supersede Title VIIs commands in appropriate cases. Such cases have not yet reached the Supreme Court, but the Bostock opinion certainly invited them.

The Supreme Courts highly anticipated decision in Fulton v. City of Philadelphia also addressed these issues. The case presented the question of whether the City of Philadelphia could, consistent with the First Amendments protections for religion and speech, refuse to renew its contract with Catholic Social Services to provide foster care placements because the organization refuses, on religious grounds, to place children with gay couples. Although providing foster services is distinct from selling cakes, it is a service that is open to the publicindeed a service that the City contracted to provide the public. Fulton squarely presented the questions of whether Smith should be overturned and whether antidiscrimination rules are unconstitutional if applied to religious dissenters.

To the surprise of many, the Supreme Court jumped the queue to make new law on religious exemptions before it decided Fulton, via what University of Chicago Law School professor William Baude has called its shadow docket, decisions it makes by summary order without briefing or argument. By a 5-4 vote in Tandon v. Newsom, the Court earlier this year issued an emergency injunction blocking Californias COVID-19-related restrictions on in-home gatherings as violating the free exercise clause, in what one scholar described as the most important free exercise decision since 1990.

The majority reasoned that, because California allowed some secular businesses to bring together more than three families at a timesay, at a grocery storea three-family limit on in-home gatherings for any purpose, including religious ones, was unconstitutional. The Court adopted what some have called a most favored nation view of the free exercise clause, under which otherwise neutral laws are constitutionally suspect if they create any exceptions for comparable secular activities. Tandons approach, it would turn out, foreshadowed Fultons.

The Court in Fulton ostensibly declined to overturn Smith. Nor did it extend a general constitutional right to discriminate against LGBTQ+ people on religious grounds, as Catholic Social Services had sought and as court watchers believed was the near certain outcome. That is a significant win for LGBTQ+ rights advocates.

Nonetheless, the Court ruled 9-0 in favor of Catholic Social Services, with the majority ruling on seemingly narrow, fact-bound grounds, arguably similar to its decision in Masterpiece Cakeshop. Why? Expanding on the logic of Tandon, the Court reasoned that the Philadelphias foster care contracts included a system of individual exemptions available at the sole discretion of the Commissioner that invites the government to consider the particular reasons for an agencys noncompliance with the rule. The Citys antidiscrimination policies, therefore, did not constitute generally applicable law. Accordingly, strict scrutiny, rather than Smiths rational basis review, applied, and the City failed to justify sufficiently its refusal to grant Catholic Social Services an accommodation not to serve LGBTQ+ couples.

Several points are worth noting here. As University of Pennsylvania professor Cary Coglianese and Penn State Law professor Daniel Walters compellingly argue, provisions explicitly authorizing exceptions to otherwise seemingly general rules are in fact rife throughout the law. As a result, as they contend, in Fulton the Supreme Court would seem to have opened the barn door for anyone with religious objections to escape from their duty to obey vast swaths of the law. Although seemingly narrow, Fulton (along with Tandon) may render Smith largely inapplicablelikely with more far-reaching consequences than LGBTQ+ rights alone. As University of Virginia School of Law professor Douglas Laycock has observed, if a law with even a few secular exceptions isnt neutral and generally applicable, then not many laws are. Indeed, if governmental discretion to enforce a law or any under-inclusiveness constitutes an exception, the domain of Smith becomes vanishingly small.

At the same time, Fultons negotiated 15-page majority opinion and nearly 100 pages of concurrences by the Courts conservatives suggest far more. At least three important implications follow from this collection of opinions.

The first and most important implication may be what all of the opinions declined to address: the speech claim made by Catholic Social Services. By deciding the case on religious grounds, the Court, as in Masterpiece, avoided the broadest rule it could have adopted, namely that individuals have a right to break laws if they believe their breakingor followingthat law expresses something. Such a holding would deal a fatal blow to regulation at all levels, serving to render self-government impossible. But in Fulton, not a single Justice gave the speech argument any air time. Will this Court more broadly shift its focus from speech to religion jurisprudence? Fulton suggests it might.

Second, it is clear there already exist five votes on the Court to expressly overrule SmithJustices Alito, Barrett, Gorsuch, Kavanaugh, and Thomasbut the justices do not (yet) agree on what should replace it. Of note, the Court has still before it the possibility to hear appeals in both Arlenes Flowers v. Washington and Ricks v. Idaho Contractors Board, either of which could provide swift vehicles to overrule Smith.

Of the separate opinions in Fulton, Justice Barretts concurrence, joined in full by Justice Kavanaugh and in part by Justice Breyer, is no doubt the most important. It disputes the prevailing assumption that, if Smith were overruled, strict scrutiny would categorically apply to all neutral and generally applicable laws that burden religion, in favor of a more nuanced approach informed by other First Amendment doctrines.

What might that mean? Perhaps a more context-dependent approach, akin to what free speech jurisprudence has long required. Speech jurisprudence has long used different rules and levels of scrutiny depending on the context of expression. Consider, for example, ordinary contracts. Although written in words, contract law generally falls outside of the domain of the Speech Clause, as does the speech of public school teachers dolling out bad grades or of doctors offering advice that constitutes malpractice. Or consider the rules that apply to the speech of a government lawyer, to flag burning, to nutrition labels, or to a law regulating noise levelsall of which receive not only context-bound levels of scrutiny but also legal tests that advance context-dependent constitutional values.

Justice Barrett may attempt to bring religion law to the more complex, and indeed nuanced, world of speech jurisprudenceinstead of moving speech law, perhaps, toward the blunt one-size-fits-all rule that the Kennedy Court had increasingly embraced. Barretts move, if accepted by the Court, might forge something of a middle path in the conflict between religion and secular laws, and might even benefit speech law in the process.

Third, and finally, a majority of the CourtChief Justice Roberts and Justices Barrett and Kavanaugh, along with the Courts liberals, Breyer, Kagan, and Sotomayornonetheless appear to agree that the heartland of public accommodations laws are neutral, generally applicable, and constitutional. How does that square with their holding in Fulton? Considering the Philadelphia ordinance, it appears that the majority reasoned de novoif perhaps in the shadow of constitutional avoidancethat foster services are not covered by Philadelphias public accommodations law. Foster care services, the majority reasoned, are not available to the public in the sense that the services of ordinary public accommodations, such as restaurants, are publicly available. Foster services, the Court stressed, involve a customized and selective assessment that bears little resemblance to staying in a hotel, eating at a restaurant, or riding a bus. That move is important, insofar as it suggests that the Court may in fact uphold against a religion challenge a public accommodations law that does not contain exceptions in contexts such as hotels, restaurants, or transportation. Of course, court watchers will have to wait and see how that question looks to Justices Roberts, Kavanaugh, and Barrett once a concrete case is before them.

If a majority does adhere to the longstanding, general position that public accommodations laws are constitutional, at least in some contexts, what services other than foster care might it exempt from that rule, if any? And if the general position does not hold in the future, will the Court require religious exemptions from public accommodations laws for anyone who would like to refuse to serve or employ LGBTQ+ people on religious grounds in the heartland of economic life?

It would seem that the answer will depend in significant part on what Chief Justice Roberts and Justices Barrett and Kavanaugh view as open to the public. Are businesses that make custom wedding flowers or cakes, or dresses or table settings for that matter, open to the public? At this point, I remain relatively optimistic as to the core of public accommodations, if perhaps not as to so-called personalized wedding services.

The statutory interpretation path taken by the Court in Fulton might allow the Court to avoid some of the knottiest questions and implications raised by the possibility of a flat exemption for any religious entity that provides public accommodationsso-called faithful public accommodations. This possibility constituted a central focus of oral argument in Fulton. Specifically, if a faithful public accommodation possessed a right to refuse service to LGBTQ+ people, could another such faithful entity then assert a right not to serve people based on their race, sex, religion, or disability? The federal governments lawyer attempted to dodge that thorny question, stating that race discrimination might be different, but without explaining why. Indeed, it is hard to see how a constitutional rule granting a right to refuse service to LGBTQ+ people on religious grounds would not create a general right for religious entities to refuse service on the basis of race, disability, family status, religion, or other protected status, especially when an antidiscrimination law treats those categories identically.

By tinkering with the domain of what is truly open or available to the public, the Court may be able to avoid an outcome in which all businesses are able to choose their customers and employees. That would be a happy result for LGBTQ+ advocates. But the Court is nonetheless already on its way to creating enclaves of exclusion and increasing the balkanization of the nations social and economic life. Straight Couples Only signs can now be posted with full constitutional protectionat least in some contexts.

How far will the newly configured Supreme Court go in its remaking of religion law? And how will it reshape the opportunities of LGBTQ+ people and the openness of institutions that constitute ordinary civic life in a free society for all of us? We will have to wait and see.

Amanda Shanor is an assistant professor at the Wharton School of the University of Pennsylvania.

Shanor was part of the ACLU team that represented Charlie Craig and David Mullins, the gay couple denied service by Masterpiece Cakeshop, before the U.S. Supreme Court. She also advised ACLU counsel for the transgender plaintiff and joined an amicus brief of scholars of philosophy on behalf of the employees in the cases consolidated in Bostock.

This essay is part of a 9-part series, entitled LGBTQ+ Rights and Regulation.

See the original post:
LGBTQ+ Need Not Apply - The Regulatory Review

Linda Larson, Times Writers Group Published 7:30 a.m. CT June 13, 2021

His mother washed the inside of his mouth with soap. Thats what happened to a neighborhood boy when I was a kid. Standing on the sidewalk with a youthful swagger, he had yelled colorfulswear words at my family.

While the punishment was harsh, the culture when I was growing up expected us to be polite. To be clear, Im not longing for the good old days. However, Im suggesting kind and polite speech, free from hateful slurs.

Our United States Constitution gives us freedom of speech. Generally, the government cannot censor our words, even hateful ones. Social media are not bound by the same rules because they arent the government. Their aim is to make money, and to make money they need people using their apps. Im guessing thats why the apps have been slow to block users and negative content.

Linda Larson(Photo: Times photo)

At the beginning of this month, Facebook had been criticized for not removing antisemitic posts, according to USA Today. The Anti-Defamation League states that there is a connection between hateful online images and words and real-world speech and violent actions and called on Facebook to step up as incidents of antisemitic violence have risen. Facebook responded saying that it has taken steps to ban hateful words and organizations.

Facebook and other social media sites should be proactive about banning hate-filled language. The rhetoric of war is to demonize the other side, and with the unrest in the Middle East and other parts of the world, we need words that show our common humanity so we dont want to kill each other. Closer to home, using racial slurs or homophobic slogans gives offenders a rationalization for vicious violence.

Do we need a law that addresses hate speech? As a writer, I really dont like limiting the freedom of speech. However, as a human, I see the damage derogatory words do. Germany has had difficulties finding the right balance. After World War II, the country saw how hateful words and images had helped create Nazism. It became illegal to display Nazi images, use racial slursor influence hate against groups. More recently, the law included banning hate on social media, according to Politico. Yet Germany has been criticized for going too far with enforcement, which may curtail free speech.

If Americans cant depend on social media administrators or government officials to stop the hate, who will stop words that inspire violence?

It has to be us, each individual, one word at a time.

Words are powerful. They inspire us. When I feel overwhelmed with life, I read essays and poems to uplift me. When Im sad, I sing the words of songs that comfort me. Supporting people online or in person with kind words makes the readers and listeners feel better and makes me feel better, too. My goal is to write compassionate words that make our world a kinder, gentler, safer place for all humans. And we can do it without soap.

This is the opinion of Times Writers Group memberLinda Larson, a St. Joseph resident. She is the author of the national award-winning "Grow It. Eat It,"and "A Year In My Garden." Her column is published the second Sunday of the month.

Read or Share this story: https://www.sctimes.com/story/opinion/2021/06/13/ending-hate-speech-starts-all-us-linda-larson-times-writers-group/7595971002/

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Ending hate speech starts with all of us - SC Times

How much academic freedom do K-12 teachers actually have to teach what they want? How far does the First Amendment go in shielding them? And where would they stand in the face of new state laws taking aim at the use of critical race theory or the teaching of antiracist lessons?

Measures introduced in at least 20 state legislatures to rein in teaching about race and other controversial and divisive topics have thrust teachers into uncertainty over what they can discuss in the classroom and whether they would face discipline or other legal consequences if they overstep.

This would make me hesitate now on some lessons about race, said August Plock, a social studies teacher at Pflugerville High School, near Austin, Texas. It potentially puts a chill over teachers.

Texas is one of five states where legislators have passed proposals so far this year limiting how teachers may address race issues in the classroom, with laws already signed by governors in Idaho, Iowa, Oklahoma, and Tennessee.

These measures pose a host of legal questions. For example, John Rumel, a law professor at the University of Idaho, said the measure passed in his state raises First Amendment free speech issues.

If Im a K-12 teacher, Im not sure what I can do, said Rumel, a former general counsel to the Idaho Education Association. Can I mention there is a rubric known as critical race theory that exists? Im not espousing it. This measure would give me pause as a teacher and might chill my speech.

While its too early for any of the new laws to have been challenged, the wave of legislation has teachers wondering how much leeway they have to veer from approved curricula or to address issues proscribed by state laws.

The blunt answer: While K-12 teachers retain some protections for their comments on issues of public concern, they dont have much in the way of academic freedom to veer from the curriculum or infuse their own experiences and views into the classroom.

I am reluctant to come to this conclusion, but in the K-12 sector, teachers do not really have any academic freedom, said Richard Fossey, a recently retired professor who taught education law at the University of Louisiana at Lafayette and has co-written several journal articles on the topic.

Suzanne Eckes, an education professor at Indiana University-Bloomington who has also written about the issue, said that under a series of decisions from the U.S. Supreme Court and the federal courts of appeals, K-12 teachers do not have the type of academic freedom that courts have recognized for college professors.

You dont have a lot of leeway, Eckes said she tells teachers. If a teacher called me and said, I want to teach the 1619 Project or about the Tulsa race massacre but my supervisor has advised me not to, I would sympathize with them, but would add that they could get in trouble for teaching those concepts.

The laws passed or proposed so far generally prohibit schools from teaching that one race or sex is inherently superior, that any individual is consciously or unconsciously racist or sexist because of their race or sex, and that anyone should feel discomfort or guilt because of their race or sex.

Some adopted or pending measures specifically mention critical race theory, a decades-old academic framework that examines how racism has shaped the U.S. legal system and has become the crux of controversies across the country.

Richard Fossey, retired law professor, University of Louisiana at Lafayette

At least two proposals specifically singled out as a prohibited topic for the schools the 1619 Project, a long-term reporting effort by The New York Times that has been turned into a curriculum centered around the year that enslaved Africans were first brought to colonial America.

But it remains unclear to what degree the various pieces of legislation address specifics of whats actually being taught in the nations schools.

Very few school districts will say out loud, Were adopting critical race theory, said Daniel R. Suhr, a lawyer with the Chicago-based Liberty Justice Center, which has sued a Nevada charter school and a Virginia school district over some of their anti-racism curricula or policies. They might say, Were embracing equity.

Critics often cite critical race theory as the basis for many diversity and inclusion efforts, regardless of how much the framework has actually informed those programs.

Many teachers, of course, freely express their opinions in their classrooms and make instructional decisions that veer from the approved curriculum.

I was a high school teacher, and I was always giving my political opinion and nothing ever happened to me, said Eckes, the Indiana University education professor. But that was due more to the grace of school administrators than any legal protections.

The U.S. Supreme Court has recognized academic freedom for professors and institutions at the higher education level, with a 1967 decision calling the college classroom the marketplace of ideas.

When it comes to K-12 teachers, the high court has made some lofty pronouncements, such as its language in the landmark Tinker v. Des Moines Independent Community School District decision on student speech, which declared that neither students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

Education law scholars also can point to a handful of cases in which K-12 teachers did win court rulings in support of their classroom expression. In the 1960s and 1970s, teachers won cases after being fired for uses of the F-word, for using a controversial role-playing method to teach about Reconstruction, and for distributing surveys to students about sex, drugs, and euthanasia.

But in 2006, the Supreme Court ruled in Garcetti v. Ceballos that public employees generally do not have First Amendment protection for their on-the-job speech.

In a friend-of-the-court brief submitted in the Garcetti case, the National Education Association had argued that to teach is to communicateoften on matters of the greatest public importance and controversy. A decision that failed to recognize First Amendment protection for job-related speech would have a devastating impact on teachers, the union said in its brief.

Garcetti involved an employee of a prosecutors office. In his majority opinion, Justice Anthony M. Kennedy said the court was not deciding whether its analysis would apply in the same manner to a case involving speech related to scholarship or teaching. The line was perhaps a response to a dissent by Justice David H. Souter, who expressed concerns about the effect of the majoritys principle on academic freedom in public colleges and universities.

Since Garcetti, numerous courts have ruled that the potential exception for scholarship and teaching did not apply to K-12 educators.

In a 2007 case, a federal appeals court upheld the non-renewal of an Indiana middle school teacher who had expressed her opposition to the U.S. war in Iraq to her students, which had led to parent complaints.

Another federal appeals court, in a 2016 decision, upheld the discipline of a Chicago 6th grade teacher whose principal overheard him teaching his students not to use the N-word. The teacher was suspended for five days for using verbally abusive language in front of students, even though the teacher was trying to explain why the word was offensive.

In a 2010 decision, a federal appeals court upheld the non-renewal of an Ohio high school teacher who had centered a lesson around banned books that included some selections parents considered inappropriate. The U.S. Court of Appeals for the 6th Circuit, in Cincinnati, analyzed the competing interests at stake in that case, Evans-Marshall v. Tipp City Exempted Village School District.

On the one side, doesnt a teacher have the First Amendment right to choose her own reading assignments, decide how they should be taught and above all be able to teach a unit on censorship without being censored or otherwise retaliated against? the court said. On the other side, doesnt a school board have the final say over what is taught, and how, in the public schools for which it is responsible? Who wins depends on which line of legal authority controls.

The appeals court sided with the school district, holding that Garcetti applied because the teacher was acting pursuant to her job duties and the First Amendment does not extend to the in-class curricular speech of teachers in primary and secondary schools.

Stuart Stuller, Colorado attorney representing school boards

The 6th Circuit court recently appeared to reaffirm the distinction on academic freedom between college professors and K-12 teachers. A 6th Circuit panel ruled in March that an Ohio college professor who refused to use the preferred pronouns of a transgender student because of the professors religious beliefs was protected by academic freedom.

The college had punished a professor for his speech on a hotly contested issue, in violation of the First Amendment, the court held. The court said in a footnote that its 2010 ruling in Evans-Marshall was limited to schoolteachers.

Fossey, the University of Louisiana professor, said the Supreme Courts Garcetti decision has been really hostile to the view that K-12 teachers have any control over the curriculum or even their teaching style.

Stuart Stuller, a veteran Colorado attorney representing school boards, said the rationale for districts supervision of teachers on-the-job speech is that when the teacher is standing in front of the classroom, that teacher is a representative of the state.

The First Amendment doesnt necessarily give subordinate employees the right to do something the supervisor has told him not to do, said Stuller, who is nonetheless sympathetic to academic freedom concerns of teachers and once wrote a law journal article on the subject.

Teachers and other public school personnel still have First Amendment protections for speaking out on matters of public concern outside of their job duties, even when those matters involve the operations of their employer.

That was underscored by another controversy this month in the 82,000-student Loudoun County, Va., district outside Washington, D.C. A state judge ordered the reinstatement of an elementary school teacher who was suspended after speaking up at a school board meeting against a proposed gender-equity policy that would include requiring teachers to address transgender students by names and pronouns used by those students. The district received several complaints about the teachers public comments and placed him on administrative leave because of the disruptive impact his remarks had on his school, court papers say.

The state judge on June 8 issued a temporary injunction in favor of the teacher after analyzing the case under Pickering v. Board of Education of Township High School District 205, a 1968 Supreme Court decision that a teachers speech on a matter of public concern is protected under the First Amendment if it outweighs the employers interests in workplace efficiency and lack of disruption.

Alice OBrien, the general counsel of NEA, said the new state laws limiting what teachers and schools may say about racism and other matters are certain to be challenged in court, though likely not on the grounds of teacher academic freedom.

These are situations where the state legislature is prohibiting the instruction of certain concepts in the schools, she said. These laws are aimed at instruction across a state, and that is a different context than that of an individual teacher right.

Such challenges will likely be based on the 14th Amendments equal-protection clause because the measures were enacted with racial animus, OBrien said. And they could be subject to challenge based on the First Amendment right of students to receive information, she said.

OBrien pointed to rulings that resulted in the invalidation of an Arizona law that barred public schools from instituting an ethnic studies curriculum, such as by holding classes or programs that promoted resentment toward a race or class of people, that were designed primarily for pupils of a particular ethnic group, or that advocated ethnic solidarity instead of treating students as individuals.

The law was pushed for by a Republican state superintendent of public education and was targeted at a Mexican American Studies program in the Tucson school district and challenged in court.

The U.S. Court of Appeals for the 9th Circuit, in San Francisco, in 2015 held that the law was not unconstitutional on its face, but allowed the challenge to proceed based on evidence of discriminatory purpose in the enactment and enforcement of the law. A federal district judge in 2017 struck down the Arizona law on equal protection and First Amendment grounds.

These statutes want schools to impart a particular view of America, said OBrien. They are intended, at the very least, to chill speech. And they seem to be having that impact.

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If Critical Race Theory Is Banned, Are Teachers Protected by the First Amendment? - Education Week

The UK is ruled by a government that struggles with reality. Whether the consequences of Brexit for Northern Ireland, the implications of a herd immunity policy for a coronavirus-type pandemic, or the result of building a coal mine in response to the climate emergency, Johnsons government is constitutionally incapable of making its rhetoric line up with the real world. But, while these other examples may be more harmful in the long-term, the most absurd example of this Conservative governments obtuseness might its inability to wrap its head around the universality of rights like freedom of speech.

When Gavin Williamson, the Education Secretary, discovered on Tuesday that Magdalen College Oxfords MCR the student body representing its graduate students had voted to take down a print of the Queen from their common room, his response was not to shrug and say that students can decorate their common spaces in any way they see fit. Instead, he tweeted an outraged statement, criticising the decision as absurd, and praising the Queen as a symbol of what is best about the UK.

For those of us aware that the Education Secretarys rants on freedom of speech are arrant nonsense, it is easy to dismiss him as a tragic joke, Frank Spencer from Some Mothers Do Have Em incarnated and elevated to an unjustifiably high office of state. The interior design choices of a student body even one at as illustrious an institution as Magdalen College should never spark a response from one of the most senior politicians in the UK. It is equally easy to dismiss this as a storm in a teacup, with right-wing newspapers like the Daily Mail and Daily Express splashing the controversy over their front pages in a desperate attempt to spark yet another battle in the culture war.

But we should not forget the more serious implications that such an attitude towards free speech, as well as towards other rights and liberties, can have, especially on those who are particularly vulnerable to abuses of state power, such as refugees and asylum seekers. One such group are those asylum seekers kept at Napier Barracks, which was controversially repurposed as accommodation for them by the Home Office last autumn.

Even though Public Health England warned the Home Office that the conditions would be unsafe given the pandemic, it forced refugees into overcrowded dormitories, with almost four hundred residents, at one point, living at the facility, while reports of inadequate food, hunger strikes, and substandard hygiene continued to leak out. For the Home Office to ever house refugees in overcrowded, unsanitary barracks is distressing. For it to choose to do so in the middle of a pandemic is callous and negligent.

Inevitably, the High Court ruled last week that housing migrants in such squalid conditions was irrational, and that the Home Office had unlawfully failed to ensure a standard of living which was adequate for the health of the claimants. But despite this criticism from the Court, the Home Office has simply interfered further with the residents rights, with its contractors allegedly forbidding them from speaking to the media about living conditions in the barracks, and warning them that if they do so, it may harm their chances of being granted asylum.

It is a tragic irony that as the UK is welcoming Hong-Kongers to its shores, offering visas to those at risk of persecution from the Chinese government for speaking out against Xi Jinpings authoritarian regime, it is simultaneously attacking the freedom of speech of those hailing from less desirable countries. If freedom of speech means anything, it must include the right to criticise the government even if it is the government that you are simultaneously asking to grant you refuge.

More harmful, however, than this petty intimidation of refugees many of who, given their precarious position, will be deterred from speaking about their living conditions is the refusal of the government to effectively engage with the decision of the High Court. Rather than admitting the barracks are unfit for purpose, closing them, and rehousing the refugees and asylum seekers in safe accommodation, the Home Office has continued to use the barracks with little apparent improvement in conditions. Minnie Rahman, campaigns director for the Joint Council for the Welfare of Immigrants told the Financial Times yesterday that residents are still being housed in dorms of 14contravening public health advice, and that sanitation at the camp remains poor.

Nor does the reaction of Priti Patel in the House of Commons earlier this week suggest that this situation is likely to improve. Addressing the chamber, she refused to apologise for re-purposing the barracks in the face of warnings from PHE, and instead implicitly suggested that the asylum seekers should be grateful for what they received, giving accommodation to people who otherwise would have been sleeping in dirty makeshift tents in France and other European countries.

Setting aside the inexplicable, yet inevitable, British exceptionalism in her statement, rights are not contingent on a persons past living conditions, nor are they contingent on what passes muster in other nations. The Home Office had an ethical and more importantly now has a legal obligation to remedy the living conditions. Instead, the Home Secretary is doggedly denying the only rational conclusion, which is that the barracks must be closed, and is instead trying to shift the narrative through criticising the media for glamourising migrants crossing the Channel and encouraging the police to get back to zapping criminals.

Rights and liberties are universal. Just as a college MCR is free to put up a picture of the Queen for any reason, so it is equally free to take it down. The fact that some may view their reasons as feeble in Magdalen MCRs case, because the Queen is apparently a symbol of colonial oppression does not justify the government wading into student politics, or mean that senior fellows at the college should be required to profess loyalty to the monarch. And much as students at the University of Oxford have the right to speak out against the Queen, or the institution of monarchy, or the government, so too do asylum seekers, even as they seek refuge on British shores from persecution and oppression in their mother country. Indeed, it is because of freedoms like this that refugees risk life and limb to find safe harbour in the UK. If the government had any decency, it would celebrate such freedoms. Instead, it degrades them.

Continued here:
Free speech and the culture wars The Justice Gap - thejusticegap.com

University College London, a self-proclaimed institution of disruptive thinking, takes great pride in its origins. And rightly so. At a time when only white men of the Church of England could benefit from tertiary education, the opening of the Godless institution of Gower Street to people of all backgrounds, was groundbreakingly disruptive. It angered the establishment and the prevailing orthodoxies of 19th-century England.

For the Scottish clergyman, Edward Irving, London University (as it was known then) was the Synagogue of Satan. King George IV was so incandescent by the opening of Londons new secular university, that he ordered the creation of a new place of learning in London, Kings College London (KCL) which set out to imbue the minds of youth with a knowledge of the doctrines and duties of Christianity.

Thankfully, despite the widespread condemnation against UCL, it survived. And it has produced some of the worlds greatest minds, including John Stuart Mill, Mahatma Gandhi, Roger Penrose and Frances Crick. These individuals have made invaluable contributions to their fields. This is UCL at its finest. This is UCL, as a true academic institution of disruptive thinking.

Tragically, almost 200 years later, this university is no longer so welcoming to those who dare challenge the prevailing orthodoxies of our age. Just look at how students and academics have responded to the question of the Israeli-Palestine conflict.

In recent weeks and months, there has been a great deal of pressure put on the provost to retract the IHRA definition of antisemitism. UCLs governing body adopted the IHR definition in 2019. In December 2020, a working group of academics produced a report rejecting the definition. This was followed in February 2021 by UCLs academic board concluding that the IHRA definition was not fit for purpose.

In response, the UCL Students for Justice in Palestine Society (SJP) in a statement said: UCL was founded upon principles of acceptance and tolerance, academic autonomy, and freedom of speech. As a university that prides itself in being the home of disruptive thinking, the academic boards decision shows its continuous commitment to tackling discrimination and carving a new, innovative path.

And yet, despite the SJPs apparent enthusiasm for freedom of speech and disruptive thinking, on a recent Instagram post, they said that they would not engage in dialogue with Zionists. The society also refuses to engage with anyone who rejects the narrative of ethnic cleansing in Palestine and does not acknowledge apartheid within Israel, those who do not accept BDS as a legitimate form of resistance, and lastly, those who do not agree with the so-called right of return idea. In other words, the groups mindset is: if you do not agree with us, we refuse to debate you. They must enjoy talking to themselves!

Back in 2016, protesters disrupted a talk by Hen Mazzig, a former IDF soldier, organised by the UCL Friends of Israel. The protests turned violent and the police had to be called. At the time, UCL stood up for Mazzigs free speech, disciplining five of the students involved and inviting Mazzig back to speak in 2018. But now UCLs academic board seems to be in agreement with No Platform advocates, all while professing a commitment to free speech.

There is a great deal of hypocrisy here. It seems the only time free speech matters to these activists is when it comes to the vilification of Israel. Whenever Israel is brought up, suddenly, they become staunch advocates of free speech.

Defenders of Israel, on the other hand, are often silenced on UK campuses. Take, for example, an incident from November 2019 at KCL. One evening, a former senior IDF officer was set to give a talk on Israels humanitarian work for Syrians caught up in the civil war. A loud mob of 80 pro-Palestinian students protested this outside the event calling for him to be No Platformed. Despite the attempts of the few pro-Israel activists to engage in respectful dialogue, they were subjected to insults and abuse. The pro-Palestinians in attendance could have voiced their views on Israel and Zionism at the event. They could have challenged the IDF officer. But no. They chose division over discussion.

To be clear, I am not for one moment suggesting that Israel should be immune from robust criticism.The Israeli-Palestinian conflict is one of the most complicated and multifaceted conflicts on earth. The beauty of free speech is that it allows us to hear different perspectives. This paves the way for understanding, and understanding, of course, is the backbone of peace and tolerance. What is unacceptable, however, is for free speech to only exist for those who wish to demonise the worlds only Jewish state.

Free speech matters for all, and so does disruptive thinking. We should never forget that.

Harry is a student at UCL and the incoming president of the UCL Friends of Israel Society.

Read more:
Free speech matters for all at UCL, and so does disruptive thinking - Jewish News

Twitter is under siege in two countries that are critical for its global growth plans.

The social media giant has been ensnared in a battle with the Indian government for months over free speech and other issues, and is contending with restrictive new rules pushed by New Delhi. If that wasn't enough, even more dramatic events are unfolding thousands of miles away along Africa's Western coast.

Nigeria last week "indefinitely" blocked Twitter after the company deleted a post from President Muhammadu Buhari that threatened a brutal clampdown on unrest in Africa's most populous nation. The Nigerian government also ordered federal prosecutors to arrest users of the app.

The restrictions in India and the ban in Nigeria are troublesome for Twitter. While the company does not break down user data for these countries, independent research suggests India is among its top five markets. Asia's third-largest economy with its 700 million internet users and many more yet to come online is also Twitter's top growth market. Meanwhile, nearly 20% of Nigeria's population of 200 million have Twitter accounts, according to NOI Polls.

Now that Nigeria has shown it isn't afraid to ban Twitter, some worry India might be next if the tussle between New Delhi and the company can't be resolved.

"If this continues, the Indian government's China Envy will become Nigeria Envy," tweeted internet activist Nikhil Pahwa, the Delhi-based founder of tech website MediaNama.

"You may see more calls for banning Twitter in India, if it continues to defy the government," Pahwa told CNN Business.

The Silicon Valley-based company's response to political pressure in these countries will decide its trajectory in fast-growing economies that are critical to any global expansion strategy. Successfully navigating the tensions could give other American technology firms a roadmap for dealing with governments that have increasingly authoritarian tendencies.

New challenges abroad coincide with strains at home, where Washington has shown a willingness to rein in American tech giants. And it doesn't help that former US President Donald Trump who is currently banned from Twitter and Facebook has urged other countries to follow Nigeria's example.

Months of tensions have led to Twitter's problems in both Nigeria and India.

Nigerians felt snubbed by Twitter when the company decided earlier this year to set up its first Africa base in Ghana, instead of the continent's largest economy.

Even though almost 40 million Nigerians have a Twitter account more than the entire population of Ghana there are some geopolitical considerations that might have influenced Twitter's decision. Ghana ranked 13 places higher than Nigeria in 2019 on the World Bank's "Ease of Doing Business Index." When announcing the decision in April, Twitter described Ghana "as a champion for democracy, a supporter of free speech, online freedom, and the Open Internet."

Tensions escalated this month when Twitter deleted the post by Buhari for violating its policies on abusive behavior.

The country countered Twitter's decision by banning the platform for allowing the use of "activities that are capable of undermining Nigeria's corporate existence," according to Nigeria's Ministry of Information and Culture. In an interview with news agency AFP, the ministry said it would reinstate Twitter if it "registers as a company in Nigeria."

The company, meanwhile, has said it "will work to restore access for all those in Nigeria who rely on Twitter to communicate and connect with the world."

"The Nigeria ban will definitely get many other emerging economies thinking about how to also get the attention of platforms," Gbenga Sesan, executive director of Paradigm Initiative, which works on digital inclusion and rights in Africa, told CNN Business. He added that if Twitter meets Nigeria's new registration requirements, "then such countries could try the same approach in order to get tax revenues."

In India, tensions were ignited in February as protesters used Twitter to voice their opinions against Prime Minister Narendra Modi's new agriculture laws. The company clashed with the government over an order to take down accounts at the IT Ministry's behest, ultimately complying in part but refusing to take action against journalists, activists or politicians.

In May, police turned up at Twitter's office in New Delhi after the company decided to label a tweet from a spokesperson for Modi's ruling Bharatiya Janata Party as "manipulated media." Police said the visit was "part of a routine process" to get Twitter to cooperate with its investigation. The social media company blasted the move as "intimidation tactics" and said that it was "concerned" about the safety its employees in the country.

India's new rules for social media have only intensified the chill. They include demands that companies create special roles in India to keep them in compliance with local law, and for firms to stay in contact with law enforcement 24/7. There are also requirements that services remove some types of content, including posts that feature "full or partial nudity."

Twitter has said it has concerns about "core elements of the new IT Rules," and the "potential threat to freedom of speech" in the country. But Modi's government says the company is trying to "undermine India's legal system" by its "deliberate defiance" of the rules.

"Twitter needs to stop beating around the bush and comply with the laws of the land," the government said in a statement in May. "Law making and policy formulations is the sole prerogative of the sovereign and Twitter is just a social media platform and it has no [place] in dictating what ... India's legal policy framework should be."

For many in India, the debate around social media usage in the country is not so much about freedom of speech but rather about a foreign company challenging the might of the Indian government, Pahwa told CNN Business. He added that the ban in Nigeria "adds more fuel to that fire."

In order to survive and thrive in these emerging economies, companies like Twitter may have to invest more in local teams and understanding local laws, experts said.

And government pressure may already be weakening Twitter's resolve.

After signaling its reservations with the new social media rules last month, the company has now said it remains "deeply committed" to India, which is among its largest markets in the world.

"We have assured the Government of India that Twitter is making every effort to comply with the new guidelines, and an overview on our progress has been duly shared," the company said in a statement this week. "We will continue our constructive dialogue with the Indian government."

For Vivan Sharan, partner at Delhi-based tech policy consulting firm Koan Advisory Group, the Nigeria shutdown and the debate in India may be a "wake-up call" for western social media companies to "grow local capacity to moderate content, and devolve decision making to country offices."

"This is of course a tall order for new-age companies that are used to global scale and presence, without commensurately large investments on the ground," he said.

"Most social media majors spend the largest share of their operational bandwidth on developed markets. This paradigm is untenable and is now beginning to shift," he added. "Companies that don't double down on localization in emerging markets, may find themselves on the wrong side of the splinternet."

Stephanie Busari in Lagos contributed to this report.

Excerpt from:
Twitter needs India and Nigeria to grow. It's running into trouble in both - KCTV Kansas City

Milo Yiannapolous speaking at UC Davis in 2017

By David M. Greenwald

On Sunday, the NY Times ran a provocative story: Once a Bastion of Free Speech, the A.C.L.U. Faces an Identity Crisis. In it, they argued, An organization that has defended the First Amendment rights of Nazis and the Ku Klux Klan is split by an internal debate over whether supporting progressive causes is more important.

In his own piece, ACLU Legal Director David Cole responds: Has the ACLU lost its way? This appears to be a perennial question. His answer: But the answer remains the same. The ACLU is committed to the principle of free speech today, just as it was in the 1990s, 1970s, and long before that. And we are specifically committed to the proposition that the First Amendments guarantees (like those of the rest of the Constitution) apply to all, not just to those with whom we agree.

But, he says, At the same time, the ACLU also remains devoted to defending other fundamental civil rights and civil liberties, including equal protection of the law as we always have been. Addressing the tensions that sometimes arise between these commitments is not easy. But we seek to do so, today as always, not by abandoning any of our core commitments, but by acknowledging and confronting the conflicts in as forthright, inclusive, and principled a way as we can.

The NY Times notes that 79-year-old longtime lawyer, David Goldberger, who argued the Skoki, Illinois, case defending the free speech rights of Nazis in the 1970s was recently honored in a luncheon (actually in 2017), where he listened to one speaker after another and felt a growing unease.

He heard: A law professor argued that the free speech rights of the far right were not worthy of defense by the A.C.L.U. and that Black people experienced offensive speech far more viscerally than white allies. In the hallway outside, an A.C.L.U. official argued it was perfectly legitimate for his lawyers to decline to defend hate speech.

I got the sense it was more important for A.C.L.U. staff to identify with clients and progressive causes than to stand on principle, he said in a recent interview. Liberals are leaving the First Amendment behind.

The Times writes: The A.C.L.U., Americas high temple of free speech and civil liberties, has emerged as a muscular and richly funded progressive powerhouse in recent years, taking on the Trump administration in more than 400 lawsuits. But the organization finds itself riven with internal tensions over whether it has stepped away from a founding principle unwavering devotion to the First Amendment.

Its an interesting question.

Then again, it is one we are all facing.

George Washington Law Professor Jonathan Turley, for example, yesterday pointed out: This week is the one-year anniversary of one of the lowest points in the history of modern American journalism. During the week of June 6, 2020, the New York Times forced out an opinion editor and apologized for publishing the editorial of Sen. Tom Cotton (R., Ark.) calling for the use of the troops to restore order in Washington after days of rioting around the White House.

Turley points out: While Congress would call in the troops six months later to quell the rioting at the Capitol on January 6th, New York Times reporters and columnists called the column historically inaccurate and politically inciteful. Reporters insisted that Cotton was even endangering them by suggesting the use of troops and insisted that the newspaper cannot feature people who advocate political violence. One year later, the New York Times published a column by an academic who has previously declared that there is nothing wrong with murdering conservatives and Republicans.

The Times points out these debates mirror those of the larger culture, where a belief in the centrality of free speech to American democracy contends with ever more forceful progressive arguments that hate speech is a form of psychological and even physical violence. These conflicts are unsettling to many of the crusading lawyers who helped build the A.C.L.U.

There are a lot of organizations fighting eloquently for racial justice and immigrant rights, Ira Glasser, former ACLU president, said. But theres only one A.C.L.U. that is a content-neutral defender of free speech. I fear were in danger of losing that.

David Cole defended their policy, arguing: Some of our critics argue that by considering the content and impact of the speech in assessing how to proceed, we are walking away from a commitment to all free speech. Thats an ahistorical and overly simplistic analysis of our free speech work: One must consider the content of the speech and the nature of any regulations to assess whether a First Amendment claim is likely to prevail.

He argued instead, One thing we rejected was any abandonment defending those with whom we disagree. Yet a small number of disgruntled voices continue to charge that we have done just that. But the record demonstrates otherwise.

He notes for the record: Since 2017, we have supported the constitutional rights of the NRA, the Koch-funded Americans for Prosperity Foundation, anti-Semitic protesters, Trump supporters, Trump himself, Republican challengers to a Democratic gerrymander, right-wing provocateur Milo Yiannopoulos, and conservative and anti-gay student groups, to name but a few. We have filed multiple Supreme Court briefs with the Cato Institute, the American Conservative Union, and the Institute for Justice.

I feel their dilemma. I have long been a free speech advocate. I argued for instance that Milo Yiannopoulos should have been allowed to speak on the UC Davis campus. In fact, not only did I write a number of columns to that effect, but I also gave a number of guest lectures on campusoften opposed by progressive voices.

For me, while Milo is offensive and perhaps even threatening to people of color, it was a fairly easy call. However, I have noted with growing alarm the large amount of false information posted on social media.

A much more difficult call for me is whether private social media companies can pull demonstrably false content from their feed and whether they were justified in the ban on Donald Trump.

The Times noted, Some A.C.L.U. lawyers and staff members argue that the First Amendment, which guarantees freedom of speech and the press as well as freedom of religion, assembly and petitioning the government is more often a tool of the powerful than the oppressed.

First Amendment protections are disproportionately enjoyed by people of power and privilege, said Dennis Parker, who directed the organizations Racial Justice Program until he left in late 2018.

David Cole responded, Everything that Black Lives Matter does is possible because of the First Amendment.

He later argued, In our view, the First Amendment protects everyone, whether you are on the left, the right, or somewhere in between. For a century, the ACLU has not only defended that right on behalf of others, but has exercised the right in all that we do. Its the First Amendment that protects our organizations rights to speak out, to organize, to demonstrate, and to petition for a redress of grievances. Its the lifeblood of democracy, and the oxygen of a civil society. And most important, the First Amendment is what ensures that those without political power can work to demand justice.

We should recognize the cost to our allies but we are committed to represent those whose views we regard as repugnant, Mr. Cole said in an interview with The New York Times.

But Floyd Abrams, one of the leading private First Amendment attorneys in the country, thinks the ACLU has compromised itself.

The last thing they should be thinking about in a case is which ideological side profits, he said. The A.C.L.U. that used to exist would have said exactly the opposite.

From my perspective this is an interesting debate. Then again, there is blood on everyones hands. Turley can point to the NY Times. I would also point out that the same people up in arms over Trump being banned by Twitter have no problem when Colin Kaepernick is blacklisted by the NFL, or are all too happy to boycott the NFL and others over allegations of Cancel Culture.

This debate is healthy, but we live in times of turmoil that are upsetting traditional norms and values. Check in again in a few years and see where we are.

David M. Greenwald reporting

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Monday Morning Thoughts: Has the ACLU Lost Its Way in Protecting Speech They Hate? - The Peoples Vanguard of Davis

The government has published its higher education (freedom of speech) bill. Under it, universities will have a new duty to secure freedom of speech for staff members, students and visiting speakers. Anyone (a person) will be able to sue (bring civil proceedings) where they believe that a university or student union has failed to protect free speech. An official with the Orwellian title of director for freedom of speech and academic freedom will have to decide if courses, talks and university policies maintain academic freedom.

It is not wrong to think that free speech is often threatened. But much of the intimidation in recent years has come from Conservatives and the right. Take the equalities minister publicly criticising a journalist for doing their job. Or the culture secretary intervening in the curatorial decisions of museums.

As for the university sector, in 2019, Warwick lecturer Dr Goldie Osuri was accused of telling students: The idea that the Labour party is antisemitic is very much an Israeli lobby kind of idea. This year, Conservative MP Jonathan Gullis (a man who signed a letter that made use of the trope cultural Marxism) said that not just Osuri but the staff who investigated her and even her vice-chancellor all need to go.

In 2020, the Daily Mail newspaper published a story accusing a Cambridge professor, Priyamvada Gopal, of inciting racism. Later, it admitted it had libelled her, apologised and paid her 25,000 in compensation. The conservative commentator Douglas Murray argued, in relation to a tweet that Gopal had authored, that only her race protected her from dismissal.

There is no limit to the range of orders that can be sought under the governments new bill. Under it, Osuri or Gopal could sue their universities requiring them to say that free speech was absolute and the university would not dismiss them. (It would not give either lecturer any protection against Conservative MPs lobbying for their dismissal.)

But the bill empowers a much wider group of people than lecturers. It is almost unique in British law in the breadth of its provision. Compare, for example, our rules on judicial review: if someone wants to challenge a decision of government they must have standing they must be affected by the decision they challenge. But in the bill there is no standing requirement. Any person, any business, any campaign can sue.

Think of what this will do to ministers other policies: for example, their insistence that universities must implement the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism. Critics argue that the definition prohibits criticisms of Israel. If the bill is passed, then any university that has adopted the IHRA definition would be making themselves vulnerable to being sued by a student, a lecturer, by anyone for an order requiring the university to rewrite its policies and permit absolute free speech.

Isnt it a good thing if anyone can sue? Not if the result is that every lecture, every seminar, every guest speech could end up in court action. In civil litigation, the loser must pay the winning sides costs. The law is always, therefore, more attractive to the sorts of public campaigns that can find a wealthy sponsor to pay the bills if they lose.

Given the context in which it has emerged, the bill is clearly intended to protect rightwing campaigns, giving them a right to threaten universities in two ways at once. They will use the bill as a shield, demanding that their own speech is protected. They will use it as a sword, complaining that any radical speech is an attack on them.

If the bill passes then every time a university celebrates International Womens Day there will be mens rights organisations insisting that the university platform them, too. Every historian found to be teaching a course on the slave trade will give rise to demands that another lecture is provided, prioritising the slave owners view.

The civil servants who drafted the consultation for the bill took the view that all speech should be allowed so long as it was speech that the speaker supported. Equality law, they argued, agreed with them in favour of the maximum possible speech: A speaking event where the content has been clearly advertised in advance is unlikely to constitute harassment if attenders attend with prior knowledge of the views likely to be expressed.

This assumes that speakers at controversial events will push a certain distance and no further. But the past few years have seen university events with provocateurs such as Milo Yiannopoulos, in the US, who during a 2016 speech mocked a trans student, and at a 2017 event encouraged attenders to call immigration enforcement on local undocumented people, even publicising the phone number. Is this the kind of free speech that we need protected?

The legislation creates a director for freedom of speech and academic freedom tasked with maintaining academic freedom in universities. Maintaining a university community in which as many people as possible get to speak requires tact, political sophistication, and the ability to see each individual event and the people protesting against it on their own terms.

Ministers may pretend that they have the skills to choose a free speech tsar who is capable of giving universities the right advice. But what we have seen from the Conservatives other appointments is a determination to bring the public sector under one-party control, with fellow travellers put forward for roles in the BBC, EHRC and Ofcom.

Would the new director for freedom have the independence of mind to reprimand Jonathan Gullis when he called for Osuris dismissal? To ask the question is to answer it. This will be a conservative appointee who will see their job as being to discipline people associated with the left, and to promote the narrow demands of rightwing culture warriors.

Excerpt from:
The free speech law will make university debate harder, not easier - The Guardian

Marchio Irfan Gorbiano (The Jakarta Post)

PREMIUM

A regulation that grants the government sweeping authority to censor content deemed inappropriate on digital platforms starting on Monday has raised concerns that it might further restrict freedom of speech and informationin the digital space.

The ministerial regulation, signed by Communication and Information Minister Johnny G. Plate in November, allows the ministry to remove prohibited content on digital platforms owned by the public, individual and private companies, known as digital service providers (PSEs).

The provision is applicable to a wide range of registered domestic and foreign private digital platforms, including social media, search engines, fintech and data processing, whose services are accessible in Indonesia.

This power came into effect on Monday, when the six-month deadline for all private PSEs to register with the ministry expire...

Starting from IDR 55,000/month

See the original post here:
'Tool for censorship': Newly effective regulation could curb free speech in Indonesia - Jakarta Post