Now that the bill to force the sale of TikTok has passed the U.S. Senate, and its signature by President Biden is certain, Protect The 1st as a First Amendment organization must speak out.
We believe the bill – soon-to-be-law – is reasonable. Many of our fellow civil liberties peers make the valid point that if the government can silence one social media platform, it can close any media outlet, newspaper, website, or TV channel. We would oppose any such move with forceful public protest. But this is a compelled divestiture, which seems like the least restrictive way to protect the speech rights of TikTok’s American users while protecting their data. TikTok’s content is not the issue. The issue is one of ownership and operations. The fundamental problem, of course, and the problem that gave rise to this legislation, is that TikTok is obligated by Chinese law to share all its data with the People’s Liberation Army, the military wing of the Chinese Communist Party. Under President Xi Jinping, Beijing has crushed democracy in Hong Kong, and silenced a newspaper – Apple Daily – while imprisoning its publisher, Jimmy Lai. Xi’s regime also frequently expresses malevolent intentions toward the United States. It arms Russia’s imperialist war to conquer Ukraine, a democracy. And it frequently advertises its own imperialist plan to conquer Taiwan, another democracy. It doesn’t make sense to treat a publication utterly beholden to a regime that shutters newspapers, imprisons publishers, and supports wars on democracies as if it were just another social media platform. Caution is warranted. A crisis between the United States and China is growing increasingly likely. TikTok gives China the means to dig into the private data of 150 million Americans, including families with parents working in the U.S. military, government, and business. To mandate a sale to an owner outside of China would begin the protection of Americans’ data, while allowing TikTok to remain the popular and vivid platform that people enjoy. For more background on this issue, check out this recent PT1st post. Just before folding up its presidential bid, No Labels won its court battle to block candidates from using its ballot line to run for office in Arizona. No Labels is a “centrist” political party that had been gearing up for a potential third-party presidential campaign to take on Joe Biden and Donald Trump. Despite No Labels collapse, this decision is a big win for the freedom of association – held by the U.S. Supreme Court to be the logical outcome of the First Amendment’s rights of free speech, assembly, and petition.
No Labels in October sued Adrian Fontes, the Secretary of State for Arizona, in an effort to keep potential down-ballot contenders from running as No Labels candidates without authorization. This should not have been necessary since No Labels did not plan to run congressional candidates. No Labels filed suit shortly after Richard Grayson, a man who has run for office at least 19 times, announced he would run as candidate for a minor state office under the party’s banner. Under Arizona law, this would have forced the fledgling movement to reveal its donors. Some Democrats have accused No Labels of being a spoiler that will poach votes from Biden, helping to pave the way for Trump to return to the White House. “I will use the campaign to expose the scam of No Labels (and to) excoriate the selfish and evil people who have organized this effort and their attempt to make sure that Donald Trump wins in November,” Grayson said. Courts have long recognized that for the freedom of association to mean anything we must respect its flip side – the freedom to refuse association. Both rights are subject to reasonable limitations, but such reciprocity is necessary in any relationship. Dr. Benjamin F. Chavis, Jr., a No Labels national co-chair, and former Missouri Gov. Jay Nixon, the group’s director of ballot integrity, said in a statement that, “Our ballot line cannot be hijacked. Our movement will not be stopped.” Just like Vivek Ramaswamy could not automatically declare himself Trump’s running mate, a No Labels party member should not be able to unilaterally declare himself or herself a candidate on the ballot with no input from party leaders. Federal Judge John J. Tuchi ruled that to enable Grayson to run as a No Labels candidate without prior authorization from the party would violate the party’s chosen structure and rights. “The Party has substantial First Amendment rights to structure itself, speak through a standard bearer, and allocate its resources,” Judge Tuchi wrote. Protect The 1st strongly supports Judge Tuchi’s ruling. This clear stand for association rights is a significant reaffirmation of the Constitution, regardless of any political implications. A House hearing on the protection of journalistic sources veered into startling territory last week.
As expected, celebrated investigative journalist Catherine Herridge spoke movingly about her facing potential fines of up to $800 a day and a possible lengthy jail sentence as she faces a contempt charge for refusing to reveal a source in court. Herridge said one of her children asked, “if I would go to jail, if we would lose our house, and if we would lose our family savings to protect my reporting source.” Herridge later said that CBS News’ seizure of her journalistic notes after laying her off felt like a form of “journalistic rape.” Witnesses and most members of the House Judiciary subcommittee on the Constitution and Limited Government agreed that the Senate needs to act on the recent passage of the bipartisan Protect Reporters from Exploitative State Spying (PRESS) Act. This bill would prevent federal prosecutors from forcing journalists to burn their sources, as well to bar officials from surveilling phone and email providers to find out who is talking to journalists. Sharyl Attkisson, like Herridge a former CBS News investigative reporter, brought a dose of reality to the proceeding, noting that passing the PRESS Act is just the start of what is needed to protect a free press. “Our intelligence agencies have been working hand in hand with the telecommunications firms for decades, with billions of dollars in dark contracts and secretive arrangements,” Attkisson said. “They don’t need to ask the telecommunications firms for permission to access journalists’ records, or those of Congress or regular citizens.” Attkisson recounted that 11 years ago CBS News officially announced that Attkisson’s work computer had been targeted by an unauthorized intrusion. “Subsequent forensics unearthed government-controlled IP addresses used in the intrusions, and proved that not only did the guilty parties monitor my work in real time, they also accessed my Fast and Furious files, got into the larger CBS system, planted classified documents deep in my operating system, and were able to listen in on conversations by activating Skype audio,” Attkisson said. If true, why would the federal government plant classified documents in the operating system of a news organization unless it planned to frame journalists for a crime? Attkisson went to court, but a journalist – or any citizen – has a high hill to climb to pursue an action against the federal government. Attkisson spoke of the many challenges in pursuing a lawsuit against the Department of Justice. “I’ve learned that wrongdoers in the federal government have their own shield laws that protect them from accountability,” Attkisson said. “Government officials have broad immunity from lawsuits like mine under a law that I don’t believe was intended to protect criminal acts and wrongdoing but has been twisted into that very purpose. “The forensic proof and admission of the government’s involvement isn’t enough,” she said. “The courts require the person who was spied on to somehow produce all the evidence of who did what – prior to getting discovery. But discovery is needed to get more evidence. It’s a vicious loop that ensures many plaintiffs can’t progress their case even with solid proof of the offense.” Worse, Attkisson testified that a journalist “who was spied on has to get permission from the government agencies involved in order to question the guilty agents or those with information, or to access documents. It’s like telling an assault victim that he has to somehow get the attacker’s permission in order to obtain evidence. Obviously, the attacker simply says no. So does the government.” This hearing demonstrated how important Fourth Amendment protections against unreasonable searches and seizures are to the First Amendment’s guarantee of freedom of the press. If Attkisson’s claims are true, the government explicitly violated a number of laws, not the least of which is mishandling classified documents and various cybercrimes. And it relies on specious immunities and privileges to avoid any accountability for its apparent crimes. Two proposed laws are a good way to start reining in such government misconduct. The first is the PRESS Act, which would protect journalists from being pressured by prosecutors in federal court to reveal their sources. The second proposed law is the Fourth Amendment Is Not For Sale Act, which passed the House this week. This bill would require the government to get a warrant before it can inspect our personal, digital information sold by data brokers. And, of course, these and other laws limiting government misconduct need genuine remedies and consequences for misconduct, not the mirage of remedies enfeebled by improper immunities. A group of pro-Palestine student activists recently hijacked a private dinner at the home of Erwin Chemerinsky, dean of Berkeley Law School, disrupting one of several such events intended to honor the graduating class of 2024. It’s a lesson in decorum, which these students clearly lack. More importantly, it’s a lesson that Chemerinsky himself might cover in one of his constitutional law classes or legal tomes: You have no First Amendment right to public speech on private property.
Chemerinsky himself summarized the disruption in a written statement: “On April 9, about 60 students came to our home for the dinner. All had registered in advance. All came into our backyard and were seated at tables for dinner. While guests were eating, a woman stood up with a microphone, stood on the top step in the yard, and began a speech, including about the plight of the Palestinians. My wife and I immediately approached her and asked her to stop and leave. The woman continued. When she continued, there was an attempt to take away her microphone. Repeatedly, we said to her that you are a guest in our home, please stop and leave. About 10 students were clearly with her and ultimately left as a group.” Alarmingly, the incident followed the publication and display of a poster calling for a boycott of the dinner events, with accompanying cartoon imagery depicting the dean holding a knife and fork covered with blood. The caption read: “No dinner with Zionist Chem while Gaza starves.” The link between Chemerinsky and Israel’s military campaign in Gaza is nebulous, to say the least. Chemerinsky is an American constitutional scholar, not an Israeli war planner. The only inference to be made is that the dean was targeted solely due to his Jewish heritage. For their part, the protestors (seen here in a video of the incident) asserted a First Amendment right to their interruption. To parse the legitimacy of such claims, we might turn to an actual First Amendment scholar, Eugene Volokh, who wrote about the dinner in a recent The Volokh Conspiracy post. He wrote: “Some people have argued that the party was a public law school function, and thus not just a private event. I’m not sure that’s right – but I don’t think it matters. “Even if Berkeley Law School put on a party for its students in a law school classroom, students still couldn’t try to hijack that for their own political orations. Rather, much government property is a ‘nonpublic forum’ – a place where some members of the public are invited, but which is ‘… not by tradition or designation a forum for public communication.’ (Minnesota Voters Alliance v. Mansky (2018) ...” Outside of the protestors’ erroneous legal argument, one might also consider the efficacy of their outburst. Above the Law founder David Lat contrasted the Berkeley protestors’ behavior with that of protestors at the University of Virginia, who recently turned out against a speech by Justice Jay Mitchell of the Alabama Supreme Court (author of the infamous IVF case). There, the protestors “didn’t heckle or harass Justice Mitchell, me, or anyone else who went into his talk. They stood outside the room, quietly holding signs. And once his talk got underway, they left to attend a counter-event …” How refreshing. Inasmuch as the protestors got it wrong here, Berkeley (for once) got it right. In a statement to Law 360, UC Berkeley Chancellor Carol T. Christ said: “I am appalled and deeply disturbed by what occurred at Dean Chemerinsky's home last night. I have been in touch with him to offer my support and sympathy. While our support for free speech is unwavering, we cannot condone using a social occasion at a person's private residence as a platform for protest.” UC Board of Regents Chair Rich Leib, meanwhile, said: “The individuals that targeted this event did so simply because it was hosted by a dean who is Jewish. These actions were antisemitic, threatening, and do not reflect the values of this university.” Berkeley’s reputation as the home of the Free Speech Movement (the name became somewhat Orwellian), continues a decidedly spotty record in recent years. The university’s unequivocal embrace of actual, settled First Amendment doctrine in this instance represents an encouraging development. Naturally, the protestors have since hoisted the banner of victimhood, claiming “pain, humiliation, trauma, and fear” following the incident. With time, we hope they learn the lesson that, in the words of Ronald K.L. Collins in a FIRE blog: “the First Amendment is a shield against government suppression. It is not an ax to swing at compassionate and freedom-loving people in their own homes.” Law schools might further promote First Amendment education by turning to disciplinary action for law students who refuse to learn the nuances of this central principle of American life. Donald Trump’s hush money trial is bringing new meaning to the term “hush” following Justice Juan Merchan’s issuance of a gag order to protect his and the prosecutor’s family members from attack.
Trump recently posted a photo of the judge’s daughter on Truth Social claiming that she “has just posted a picture of me behind bars, her obvious goal, and makes it completely impossible for me to get a fair trial.” According to the court, the Twitter account in question is not hers. A court spokesperson said of the account: “It is not linked to her email address, nor has she posted under that screenname since she deleted the account. Rather, it represents the reconstitution, last April, and manipulation of an account she long ago abandoned.” Whether Trump knew his post was untrue or just didn’t care is uncertain. Even assuming Justice Merchan’s daughter is likely no fan of Trump -- she works for a Democratic consulting firm – there are limits to how far one can go in attacking family members of those involved in a criminal trial. Defendants are limited in what they can say all the time out of concern for the integrity of the trial process and the safety of its participants. Trump should not receive special treatment – neither more nor less restrictive – than any other defendant. Following the seemingly false and inflammatory statements targeting his daughter, Justice Merchan issued an expanded gag order against Trump, noting (vehemently) that: “It is no longer just a mere possibility or a reasonable likelihood that there exists a threat to the integrity of the judicial proceedings. The threat is very real. Admonitions are not enough, nor is reliance on self-restraint. The average observer, must now, after hearing defendant's recent attacks, draw the conclusion that if they become involved in these proceedings, even tangentially, they should worry not only for themselves, but for their loved ones as well. Such concerns will undoubtedly interfere with the fair administration of justice and constitutes a direct attack on the Rule of Law itself.” While such concerns must indeed factor into the analysis of any gag order, a delicate balancing act is needed for court-ordered restrictions on speech. Courts uphold free speech and the First Amendment, yet they are themselves not venues for free speech, but rather islands of due process, less free-wheeling and more deliberative than the public square. When the raucous freedom of the public square intrudes upon the judicial process, limited and narrowly tailored protections to safeguard the judicial process can be necessary. This is an odd point of tension between competing constitutional and legal principles in the American system, but it is one necessary for the proper functioning of our judicial system. As with so many issues these days, this case is fraught with dilemmas. On the one hand, it is extremely problematic for a presidential candidate to face a judicial gag order. On the other hand, harshly (and perhaps falsely) attacking a judge’s family member is one of those situations – like falsely yelling “fire” in a crowded theater – where “imminent lawless action,” and an imminent threat to the integrity of the judicial proceeding in question, could arguably materialize. Whatever you think of this case against Donald Trump – some would characterize it as “lawfare” against him, some might flip the characterization around in the other direction – Donald Trump crossed a line. A limited – very limited – gag order is an acceptable response in a society that values the impartial administration of justice as well as speech. Judge Merchan should nonetheless remain vigilant to keep his own emotions in check, not be provoked into over-reacting, and give as much leeway as possible to the sometimes-hyperbolic speech inherent in the political process while still ensuring the integrity of the judicial process. Lindke v. Freed The U.S. Supreme Court is set to address several critical free-speech cases this session related to speech rights in the context of social media. One of those questions was recently settled, with the Court ruling on whether an official who blocks a member of the public from their social media account is engaging in a state action or acting as a private citizen. Answer: It depends on the context.
Writing for a unanimous Court in the case of Lindke v. Freed, Justice Amy Coney Barrett reaffirmed that members of the public can sue a public official where their actions are “attributable to the State” (consistent with U.S.C. §1983). In order to make that determination, the Court issued a new test, holding that: “A public official who prevents someone from commenting on the official’s social-media page engages in state action under §1983 only if the official both (1) possessed actual authority to speak on the State’s behalf on a particular matter, and (2) purported to exercise that authority when speaking in the relevant social-media posts.” This is a holistic analysis, consistent with the Protect The 1st amicus brief filed in O’Connor-Ratcliff v. Garnier. We argued that “no single factor is required to establish state action; rather, all relevant factors must be considered together to determine whether an account was operated under color of law.” That case, along with the Court’s banner case, Lindke v. Freed, is now vacated and remanded for new proceedings consistent with the Court’s novel test. When, as the Court acknowledges, “a government official posts about job-related topics on social media, it can be difficult to tell whether the speech is official or private.” So the Court set down rules. A state actor must have the actual authority – traced back to “statute, ordinance, regulation, custom, or usage” – to speak on behalf of the state. However, should an account be clearly designated as “personal,” an official “would be entitled to a heavy (though not irrebuttable) presumption that all of the posts on [their] page were personal.” In Lindke v. Freed, the public official’s Facebook account was neither designated as “personal” nor “official.” Therefore, a fact-specific analysis must be undertaken “in which posts’ content and function are the most important considerations.” As the Court explains: “A post that expressly invokes state authority to make an announcement not available elsewhere is official, while a post that merely repeats or shares otherwise available information is more likely personal. Lest any official lose the right to speak about public affairs in his personal capacity, the plaintiff must show that the official purports to exercise state authority in specific posts.” When a public official blocks a citizen from commenting on any of his posts on a “mixed-use” social media account, he risks liability for those that are professional in nature. Justice Barrett writes that a “public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.” It's always been good policy to keep official and private accounts separate. The public must be able to have access to government-issued information, whether through a social media account or a public notice posted on the door of a government building. Moreover, citizens should be able to speak on issues of public concern, whether through Facebook or in a public square. Officials – presidents and former presidents included – should take note. In November, we reported on a controversy in the San Antonio suburb of Castle Hills, which epitomizes the growing trend of using the law to punish disfavored speech. The Supreme Court’s recent argument reveals several justices showing solidarity with the arrested party.
Here are the facts: Sylvia Gonzalez was elected to a seat on the Castle Hills city council in 2019. During her first council meeting, a resident submitted a petition to remove the city manager – a petition spearheaded by Gonzalez – and it wound up in Gonzalez’s personal binder of documents. After being asked for the petition by the mayor, Gonzalez found it among her effects and handed it over. The mayor initiated an investigation into Gonzalez under a Texas statute providing that “[a] person commits an offense if he […] intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record.” A warrant was subsequently served against Gonzalez, who was taken to jail and resigned from the council in humiliation. Gonzalez claims her arrest was retaliatory – trumped-up charges based on a little enforced statute and stemming from her support for removing the city manager. At issue is a legal doctrine known as the “jaywalking exception,” which guards against law enforcement arresting people for protected speech under the guise of some other petty statutory violation. In Nieves v. Bartlett, the Supreme Court held that retaliatory arrest claims may proceed where probable cause exists – as it technically did with Gonzalez – but a plaintiff is arrested in a situation where officers “typically exercise their discretion not to do so.” In such circumstances, a plaintiff must present “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” Attempting to satisfy the exception, Gonzalez presented evidence that not one of 215 grand jury felony indictments in Bexar County under a tampering statute over the preceding decade involved an allegation remotely similar to the one levied against her. The Fifth Circuit found this insufficient, holding that Nieves requires comparative evidence of individuals who engaged in the “same” criminal conduct but were not arrested. In other words, going by the Fifth Circuit’s interpretation, Gonzalez would have to find specific instances of people who misplaced government documents but were not arrested. How would anyone even find such instances? The Fifth Circuit tasked her with proving a negative. If the Fifth Circuit’s decision is left in place, Protect The 1st explained it would make it easier for law enforcement or other government officials to punish critics for expressing protected speech based on novel applications of relatively minor criminal laws. It also sets the evidentiary bar so high that few could ever hope to prove their case in a court of law. During oral arguments, several justices seemed to agree. Justice Gorsuch, speaking about the many unenforced statutes on the books, said: “You're saying they can all sit there unused, except for one person who alleges that ‘I was the only person in America who's ever been prosecuted for this because I dared express a view protected by the First Amendment,’ and that's not actionable?” Justice Kagan, clearly thinking along the same lines, said the plaintiff has “solid objective evidence” that they were treated differently than similarly situated persons, noting: “You should be able to say, ‘They've never charged somebody with this kind of crime before and I don't have to go find a person who has engaged in the same conduct.’” Justice Jackson made similar remarks, while Chief Justice Roberts, who authored Nieves, seemed to take the other side, questioning whether expanding the evidentiary basis for refuting probable cause is consistent with the Court’s earlier ruling. It “seems to me to be inconsistent,” he said. Justice Kavanaugh likewise noted, "If you intentionally stole a government document at a government proceeding — that's not nothing.” Why Gonzalez would want to hide a petition she helped organize is far from clear. Her conduct was so benign that the only inference one can reasonably draw is that she was the target of retaliation. Protect The 1st hopes the Court sides with her and makes it clear they will hold public officials accountable for weaponizing the law against those who speak their minds. A video depicting a recent interaction between an Oklahoma woman and three FBI agents has become a Rashomon-style meditation on the power of perception, with advocates and activists from across the ideological spectrum drawing their own object lessons from it. Review the video and you will see that the underlying issue at hand is fundamentally about the speech rights of an American citizen.
Here are the facts: Early in the morning of March 19, Rolla Abdeljawad of Stillwater, Oklahoma, answered her front door to find three FBI agents. Their purpose: To discuss some of the Egyptian-American’s Facebook posts. Abdeljawad is critical of Israel’s actions in the Gaza Strip. According to Washington Post, she regularly refers to Israel as “Isra-hell” and calls the Israeli Defense Forces “terrorist filth.” What she has not done is advocate for violence. You may find her posts unfair, but they do not rise to the level of a First Amendment exception, such as a true threat. Abdeljawad proved herself savvy regarding her civil rights. She recorded her interaction with the FBI agents, in which they can be heard claiming that Facebook “gave us a couple of screenshots of your account.” "So we no longer live in a free country, and we can't say what we want?" Abdeljawad responded. “No, we totally do. That's why we're not here to arrest you or anything," replied another agent. “We do this every day, all day long. It's just an effort to keep everybody safe and make sure nobody has any ill will.” (Emphasis added.) The implication here is that the FBI undertakes door-knocking expeditions “every day, all day long” to grill civilians about their protected speech online so no one has “ill will.” If someone is not calling for violence, as is the case here, there is no reason for a visit from the FBI. After all, such a visit by armed agents will never be taken as a benign consultation. It can’t help but have a chilling effect on speech. According to a report from Reason, “Meta's official policy is to hand over Facebook data to U.S. law enforcement in response to a court order, a subpoena, a search warrant, or an emergency situation involving ‘imminent harm to a child or risk of death or serious physical injury to any person.’” Clearly, judging from Abdeljawad’s encounter with the FBI, that policy can be misconstrued or ignored entirely. Law enforcement should never be harassing rank-and-file citizens over protected speech. Abdeljawad’s lawyer, Hassan Shibly, posted the video of the interaction across platforms with some good advice for others who may find themselves with unwanted visitors with FBI badges and spurious questions:
Americans should not accept as routine government agents coming to our homes to question us about opinions they find abrasive. There is no federal bureau of civil discourse, nor should there be in a First Amendment society. Donor privacy is under unprecedented threat across the country. According to a report last month from the non-partisan People United for Privacy, efforts to curb historical privacy protections are underway in no fewer than 31 states.
Matt Nese of People United for Privacy details this threat in a recent RealClear Policy piece, describing the means by which politicians of all political stripes ceaselessly endeavor to dox nonprofit donors, often under the guise of curbing the influence of “dark money” or foreign sources of funding. In practice, it’s rank-and-file domestic contributors – exercising their fundamental speech rights – who end up being harmed the most by such efforts. Look no further than Arizona’s Prop 211, the misleadingly titled “Voters Right to Know Act.” That measure was marketed as requiring disclosure of political “campaign” donors. Instead, it targets any group that speaks out on public policy issues – including nonprofits. It opens the door not just to self-censorship by those who may otherwise be inclined to donate to a cause, but also the possibility of doxing, intimidation, harassment, and cancellation. Multiple legal challenges to Prop 211 are ongoing. Should these challenges make it to the U.S. Supreme Court, history suggests it’s unlikely the justices will uphold the law. The Court first established our bedrock principle regarding donor privacy and the First Amendment in 1958 when it struck down a State of Alabama requirement that the NAACP reveal its donors. That potential for compelled disclosure would almost certainly have led to “harassment, economic reprisal, and physical harm” – danger enough for the Court to act to protect the First Amendment. Such reasoning carried through to 2021 when the Supreme Court struck down a California requirement for compelling donor disclosure for nonprofits. In the majority opinion, Chief Justice John Roberts noted “that it is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as [other] forms of governmental action.” The 2021 ruling hasn’t dissuaded the political class from continuing to push the boundaries when it comes to donor privacy. In Hawaii, SB 997 would require donor disclosure in the case of “[c]ommunications that advocate or support the nomination, opposition, or election of a candidate, regardless of whether the communication expressly advocates the election or defeat of a candidate.” In Washington, legislation is being developed purporting to ban so-called “foreign influenced” entities from participating in the political process if so much as 1 percent of their equity is owned by a foreign interest. Currently, foreign participation in elections is illegal; this is a clear attempt to curb the speech rights of Americans – and particularly non-profits who may rely on donations from large corporations. In these states, the war on donor privacy is not yielding to well-established precedent. This nationwide campaign is predicated on the not-unlikely hope that enough assaults will exhaust the courts and strip donors of privacy, bringing cancellation policies and doxing to donors of all stripes. Protect The 1st will continue to monitor these threats to the privacy necessary to protect free speech in America. The U.S. Supreme Court recently set aside a Fourth Circuit decision in Speech First v. Sands, declining to wade into a snowballing collection of campus speech controversies. Washington Post columnist George Will called this a “passive dereliction of duty.” We wouldn’t go that far. Given the ongoing circuit split regarding campus speech policies, the Court will have to address the issue eventually. They may just need a better avenue – or moment – for doing so.
This case concerns Virginia Tech, which created a “Bias Intervention and Response Team” policy that encourages students to anonymously report to school officials any perceived expressions of bias amongst their cohorts, after which the accused may be referred for discipline. Virginia Tech defined “bias incidents” as “expressions against a person or group” based on “age, color, disability, gender, gender identity, gender expression, genetic information, national origin, political affiliation, race, religion, sexual orientation, veteran status, or any other basis protected by law.” In 2021, advocacy group Speech First sued Virginia Tech on behalf of several students, arguing that the policy unconstitutionally chills speech by creating “a literal speech police” and forcing students to self-censor. The Fourth Circuit ruled for the university in May, siding with the Seventh Circuit (which ruled similarly in another case) and against the Fifth, Sixth, and Eleventh Circuits (which found that campus policies chilling speech constitute sufficient harm to support standing). Speech First estimates that more than 450 colleges have bureaucratic thought police operations similar to Virginia Tech’s – though, likely expecting a negative result in the Supreme Court, Virginia Tech recently modified its policy, leading to the March 4 holding, rendering the controversy moot. Still, Justices Thomas and Alito didn’t hold back in their dissenting opinion urging a resolution in the circuit split. Thomas writes: “This petition presents a high-stakes issue for our Nation’s system of higher education. Until we resolve it, there will be a patchwork of First Amendment rights on college campuses: Students in part of the country may pursue challenges to their universities’ policies, while students in other parts have no recourse and are potentially pressured to avoid controversial speech to escape their universities’ scrutiny and condemnation. We should grant certiorari to resolve this issue.” Until the Court acts, colleges and universities in much of the country will be free to pursue Orwellian surveillance operations against students who fail to embrace predominating dogmas. When another case ripens, the Supreme Court should step in. The U.S. Supreme Court heard oral arguments Monday in Murthy v. Missouri, a case addressing the government's covert efforts to influence social media content moderation during the Covid-19 pandemic. Under pressure from federal and state actors, social media companies reportedly engaged in widespread censorship of disfavored opinions, including those of medical professionals commenting within their areas of expertise.
The case arose when Missouri and Louisiana filed suit against the federal government arguing that the Biden Administration pressured social media companies to censor certain views. In reply, the government responded that it only requested, not pressured or demanded, that social media companies comply. Brian Fletcher, U.S. Principal Deputy Solicitor General, told the Court it should “reaffirm that government speech crosses the line into coercion only if, viewed objectively, it conveys a threat of adverse government action.” This argument seems reasonable, but a call from a federal agency or the White House is not just any request. When one is pulled over by a police officer, even if the conversation is nothing but a cordial reminder to get a car inspected, the interaction is not voluntarily. Social media companies are large players, and an interaction with federal officials is enough to whip up fears of investigations, regulations, or lawsuits. In Murthy v. Missouri, it just so happens that the calls from federal officials were not just mere requests. According to Benjamin Aguiñaga, Louisiana’s Solicitor General, “as the Fifth Circuit put it, the record reveals unrelenting pressure by the government to coerce social media platforms to suppress the speech of millions of Americans. The District Court which analyzed this record for a year, described it as arguably the most massive attack against free speech in American history, including the censorship of renowned scientists opining in their areas of expertise.” At the heart of Murthy v. Missouri lies a fundamental question: How far can the government go in influencing social media's handling of public health misinformation without infringing on free speech? Public health is a valid interest of the government, but that can never serve as a pretense to crush our fundamental rights. When pressure to moderate speech is exerted behind the scenes – as it was by 80 FBI agents secretly advising platforms what to remove – that can only be called censorship. Transparency is the missing link in the government's current approach. Publicly contesting misinformation, rather than quietly directing social media platforms to act, respects both the public's intelligence and the principle of free expression. The government's role should be clear and open, fostering an environment where informed decisions are made in the public arena. Perhaps the government should take a page from Ben Franklin’s book (H/T Jeff Neal): “when Men differ in Opinion, both Sides ought equally to have the Advantage of being heard by the Publick; and that when Truth and Error have fair Play, the former is always an overmatch for the latter …” Protect The 1st looks forward to further developments in this case. The growth of the surveillance state in Washington, D.C., is coinciding with a renewed determination by federal agencies to expose journalists’ notes and sources. Recent events show how our Fourth Amendment right against unreasonable searches and seizures and our First Amendment right of a free press are inextricable and mutually reinforcing – that if you degrade one of these rights, you threaten both of them.
In May, we reported that the FBI raided the home of journalist Tim Burke, seizing his computer, hard drives, and cellphone, after he reported on embarrassing outtakes of a Fox News interview. It turns out these outtakes had already been posted online. Warrants were obtained, but on what credible allegation of probable cause? Or consider CBS News senior correspondent Catherine Herridge who was laid off, then days later ordered by a federal judge to reveal the identity of a confidential source she used for a series of 2017 stories published while she worked at Fox News. Shortly afterwards, Herridge was held in contempt for refusing to divulge that source. This raises the question that when CBS had earlier terminated Herridge and seized her files, would network executives have been willing to put their freedom on the line as Herridge has done? In response to public outcry, CBS relented and handed Herridge’s notes back to her. But local journalists cannot count on generating the national attention and sympathy that a celebrity journalist can. Now add to this vulnerability the reality that every American who is online – whether a national correspondent or a college student – has his or her sensitive and personal information sold to more than a dozen federal agencies by data brokers, a $250 billion industry that markets our data in the shadows. The sellers of our privacy compile nearly limitless data dossiers that “reveal the most intimate details of our lives, our movements, habits, associations, health conditions, and ideologies.” Data brokers have established a sophisticated system to aggregate data from nearly every platform and device that records personal information to develop detailed profiles on individuals. To fill in the blanks, they also sweep up information from public records. So if you have a smartphone, apps, or search online, your life is already an open book to the government. In this way, state and federal intelligence and law enforcement agencies can use the data broker loophole to obtain information about Americans that they would otherwise need a warrant, court order, or subpoena to obtain. Now imagine what might happen as these two trends converge – a government hungry to expose journalists’ sources, but one that also has access to a journalist’s location history, as well as everyone they have called, texted, and emailed. It is hardly paranoid, then, to worry that when a prosecutor tries to compel a journalist to give up a source through legal means, purchased data may have already given the government a road map on what to seek. The combined threat to privacy from pervasive surveillance and prosecutors seeking journalists’ notes is serious and growing. This is why Protect The 1st supports legislation to protect journalistic privacy and close the data broker loophole. The Protect Reporters from Exploitive State Spying, or PRESS Act would grant a privilege to protect confidential news sources in federal legal proceedings, while offering reasonable exceptions for extreme situations. Such “shield laws” have been put into place in 49 states. The PRESS Act, which passed the House in January with unanimous, bipartisan support, would bring the federal government in line with the states. Likewise, the Fourth Amendment Is Not For Sale Act would close the data broker loophole and require the government to obtain a warrant before it can seize our personal information, as required by the Fourth Amendment of the U.S. Constitution. The House Judiciary Committee voted to advance the Fourth Amendment Is Not For Sale Act out of committee with strong bipartisan support in July. The Judiciary Committee also reported out a strong data broker loophole closure as part of the Protect Liberty Act in December. Now, it’s up to Congress to include these protection and reform measures in the reauthorization of Section 702. Protect The 1st urges lawmakers to pass measures to protect privacy and a free press. They will rise or fall together. The U.S. Court of Appeals for the Second Circuit recently heard oral arguments in the case of Volokh v. James. It’s another in a series of critical recent cases involving government regulation of online speech – and one the Empire State should ultimately lose.
In 2022, distinguished legal scholar and Protect The 1st Senior Legal Advisor Eugene Volokh – along with social media platforms Rumble and Locals – brought suit against the state of New York after it passed a law prohibiting “hateful” conduct (or speech) online. Specifically, the law prohibits “the use of a social media network to vilify, humiliate, or incite violence against a group or a class of persons on the basis of race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression.” The law also requires platforms to develop and publish a policy laying out how exactly they will respond to such forms of online expression, as well as to create a complaint process for users to report objectionable content falling within the boundaries of New York’s (vague and imprecise) prohibitions. Should they fail to comply, websites could face fines of up to $1,000 per day. There are a number of problems with New York’s bid to regulate online speech – not least of which is that there is no hate speech exception to the First Amendment. As the Supreme Court noted in Matal v. Tam, “speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’” Moreover, the law fails to define key terms like “vilify,” “humiliate,” or “incite” – leaving its interpretation up to the eye of the beholder. As Volokh explained in a piece for Reason, “it targets speech that could simply be perceived by someone, somewhere, at some point in time, to vilify or humiliate, rendering the law's scope entirely subjective.” Does an atheist’s post criticizing religion “vilify” people of faith? Does a video of John Oliver making fun of the British monarchy “humiliate” the British people? The hypotheticals are endless because one’s subjective interpretation of another’s speech could cut a million different ways. In February 2023, a district court ruled against New York, broadly agreeing with Volokh’s arguments. As Judge Andrew L. Carter, Jr. wrote: “The Hateful Conduct Law both compels social media networks to speak about the contours of hate speech and chills the constitutionally protected speech of social media users, without articulating a compelling governmental interest or ensuring that the law is narrowly tailored to that goal.” To be fair, there is a purported government interest at play here, even if it’s not compelling in the broader context of the law’s vast, unconstitutional reach. The New York law is a legislative response to a 2022 Buffalo supermarket shooting perpetrated by a white supremacist who was, by all accounts, steeped in an online, racist milieu. Every decent person wants to give extremist views no oxygen. But incitement to violence is already a well-established First Amendment exception – unprotected by the law. Broadly compelling websites to create processes for addressing subjective, individualized offenses simply goes too far. Anticipating New York’s appeal to the Second Circuit, a number of ideologically disparate organizations joined with the Foundation for Individual Rights and Expression, or FIRE, (which is prosecuting the case), submitting amicus curiae briefs in solidarity with Volokh and his co-plaintiffs. Those groups – which include the American Civil Liberties Union, the Electronic Frontier Foundation, the Cato Institute, and satirical website the Babylon Bee – stand in uncommon solidarity against the proposition that government should ever be involved in private content moderation policies. As the ACLU and EFF assert, "government interjection of itself into that process in any form raises serious First Amendment, and broader human rights, concerns." True to form, the Babylon Bee’s brief notes that “New York's Online Hate Speech Law would be laughable – if its consequences weren't so serious.” When the U.S. Supreme Court renders its opinion on the Texas and Florida social media laws, it will give legislatures a better guide to developing more precise, articulable means of addressing online content. Less than a year after his children were nearly murdered in the 2022 school shooting at Robb Elementary School in Uvalde, Texas, Adam Martinez was banned from school property and school board meetings for two years. His offense? Daring to raise his concerns for the safety of schoolchildren with the chief of police.
The world watched the Uvalde shooting at this school in horror: A former student fatally shot 19 students and two teachers. Security camera footage during the shooting showed Uvalde police officers standing by for more than an hour while this atrocity unfolded. Had police intervened, it is entirely likely many lives would have been saved. The police have been roundly condemned and a full investigation and reorganization is underway, so you might think the police would be more receptive to criticism, especially from Robb Elementary parents. It turns out that’s not the case. Martinez has been a leader in his community since the shooting. He started a local group that organized fundraisers for victims of the shooting, engages in community service in Uvalde, and advocates for improvements in school safety. Martinez has spoken out online, at school board meetings, and directly with Uvalde administrators in support of these goals. According to FIRE, in February 2023, Martinez discovered the school district had recently hired an officer the sheriff’s office deemed ineligible for rehire. At a school board meeting that month, Martinez approached Uvalde Schools Police Chief Josh Gutierrez to express his concerns about the hire. Though Gutierrez was initially receptive, he quickly sought to shut down the conversation when it became clear that Martinez was criticizing him. Gutierrez told Martinez to sit down, who refused and pressed his point. Gutierrez then “verbally banned” Martinez from school district property and told him and his family to leave. The following day, Martinez received a letter stating that he was banned from school district property for the next two years. FIRE quickly became involved and sent a letter to the district in May, threatening to sue if the district did not lift the unconstitutional ban. The school district responded in July, formally dropping the ban against Martinez. Protect The 1st commends FIRE on a job well done. We hope the resolution of this incident will encourage school boards around the country to respect the right of parents to speak up. In districts with concerns less fraught than those of Uvalde, disagreements over ideological instruction often become heated. Democracy has always been disputatious. While we recognize exceptions for true threats and obscene language, the speech rights of angry parents should not be diminished by their anger. When does a legal reporting requirement for a social media company become a violation of the First Amendment? When it drums up public and political pressure to enforce viewpoint discrimination.
This is the conclusion of legal scholar Eugene Volokh and Protect The First Foundation, which filed an amicus brief late Wednesday before the Ninth Circuit Court of Appeals asking it to overturn a lower court ruling that upheld a California law requiring social media companies to disclose their content moderation practices. California Bill AB 587, signed into law by Gov. Gavin Newsom in 2022, compels social media companies to produce two such reports a year on their moderation practices and decisions, to be published on the website of the California Attorney General. This law “violates the First Amendment’s stringent prohibition on viewpoint discrimination” by “requiring social media companies to define viewpoint-based categories of speech,” declared Volokh, Senior Legal Advisor to Protect The 1st. “The law also requires these companies to report their policies as to those viewpoints, but not other viewpoints ...” This brief supports the challenge from X Corp.’s lawsuit filed in September 2023 that also asserted that AB 587 violates the First Amendment, which “unequivocally prohibits this kind of interference with a traditional publisher’s editorial judgment.” Volokh and Protect The 1st cited the landmark U.S. Supreme Court case, NAACP v. Alabama (1958), in which the Court overturned an Alabama law that would have compelled disclosure of the NAACP’s membership lists. The threat behind this law, the Court noted, relied on governmental and private community pressures that would result in the harassment of individuals and discouragement of their speech. “Generating either massive fines or public ‘pressure,’ a euphemism for public hostility, triggers the most exacting scrutiny our Constitution demands,” Volokh told the court. “California Assembly Bill 587 violates the First Amendment’s stringent prohibition on viewpoint discrimination. And AB 587 does so by leaning on social media companies to do the government’s dirty work, either through fear of fine or public pressure.” The brief cites a Supreme Court opinion that states “what cannot be done directly [under the Constitution] cannot be done indirectly.” Volokh writes: “The intent behind the law is clear from its legislative history, comments by its enforcer (Attorney General Rob Bonta), and common sense. That intent is to strongarm social media companies to restrict certain viewpoints—to combine law and public pressure to do something about how platforms treat those particular viewpoints, and not other viewpoints. That confirms that the facial viewpoint classification in the statute is indeed a viewpoint-based government action aimed at suppressing speech—and that violates the First Amendment.” Protect The 1st will continue to report on X Corp.v. Bonta as an important flashpoint in the continuous struggle to keep speech free of official regulation. Should we move to a post-Section 230 internet? Is liability-free content hosting coming to an end?
In Wired, Jaron Lanier and Allison Stanger argue for ending that provision of the Communications Decency Act that protects social media platforms from liability over the content of third-party posts. The two have penned a thoughtful and entertaining analysis about the problems and trajectory of a Section 230-based internet. It’s worth reading but takes its conclusions to an unjustifiable extreme – with unexamined consequences. The authors assert that while Section 230 may have served us well for a time, they argue that long-running negative trends have outpaced the benefits that Section 230 provided. The authors write that modern, 230-protected algorithms heavily influence the promotion of lies and inflammatory speech online, which it obviously does. “People cannot simply speak for themselves, for there is always a mysterious algorithm in the room that has independently set the volume of the speaker’s voice,” Lanier and Stanger write. “If one is to be heard, one must speak in part to one’s human audience, in part to the algorithm.” They argue algorithms and the “advertising” business model appeal to the most primal elements of the human brain, effectively capturing engagement by promoting the most tantalizing content. “We have learned that humans are most engaged, at least from an algorithm’s point of view, by rapid-fire emotions related to fight-or-flight responses and other high-stakes interactions.” This dynamic has had enormous downstream consequences for politics and society; Section 230 “has inadvertently rendered impossible deliberation between citizens who are supposed to be equal before the law. Perverse incentives promote cranky speech, which effectively suppresses thoughtful speech.” All this has led to a roundabout form of censorship, where arbitrary rules, doxing, and cancel culture stifle speech. Lanier and Stanger call this iteration of the internet the “sewer of least-common-denominator content that holds human attention but does not bring out the best in us.” Lanier and Stanger offer valid criticisms of the current state of the net. It is undeniable that discourse has coarsened in connection with the rise of social media platforms and toxic algorithms. Worse, the authors are correct that algorithms provide an incentive for the spreading of lies about people and institutions. Writing that John Smith is a lying SOB who takes bribes will, to paraphrase Twain, pull in a million “likes” around the world before John Smith can tie his shoes. So what is to be done? First, do not throw out Section 230 in toto. As we previously said in our brief before the U.S. Supreme Court with former Senator Rick Santorum, gutting Section 230 “would cripple the free speech and association that the internet currently fosters.” Without immunity, internet platforms could not organize content in a way that would be relevant and interesting to users. Without Section 230 protections, media platforms would avoid nearly any controversial content if they could be frivolously sued anytime someone got offended. Second, do consider modifications of Section 230 to reduce the algorithmic incentives that fling and spread libels and proven falsehoods. Lanier and Stanger make the point that the current online incentives are so abusive that the unhinged curtail the free speech of the hinged. We should explore ways to reduce the gasoline-pouring tendency of social media algorithms without impinging on speech. Further reform might be along the lines of the bipartisan Internet PACT Act, which requires platforms to have clear and transparent standards in content moderation, and redress for people and organizations who have been unfairly deposted, deplatformed, and demonetized. Lanier and Stanger are thinking hard and honestly about real problems, but the problems they would create would be much worse. A post-230 social media platform would be either be curated to the point of being inane, or not curated at all. Now that would be a sewer. Still, we give Lanier and Stanger credit for stimulating thought. Everyone agrees something needs to change online to promote more constructive dialogue. Perhaps we are getting closer to realizing what that change should be. Earlier this year, the student senate at Columbia Law voted to deny official recognition to Law Students Against Antisemitism, a student group seeking to “raise awareness and educate about both historical and contemporary antisemitism.” Nine other organizations requested official recognition this year, with LSAA being the only group to be denied so far. The reason? According to FIRE, “the rejection appeared to rest on objections to LSAA’s definition of antisemitism, which some pro-Palestine students opposed.”
Although the student senate quickly reversed course, the American Bar Association took it as an opportunity to formalize speech protections. This month, the ABA House of Delegates passed a resolution to adopt Standard 208, a new rule requiring law schools to “protect the rights of faculty, students and staff to communicate ideas that may be controversial or unpopular, including through robust debate, demonstrations or protests.” ABA accreditation requires adhering to Standard 208, or else law schools could be denied accreditation or have it revoked for failing to protect free speech. The importance of this rule should not be missed. As the ABA Journal states, Standard 208 is “the first accreditation standard to address free speech for the entire community within law schools.” Protect The 1st Senior Legal Advisor Eugene Volokh said: “the standard is another tool in the toolbox of a dean who wants to protect free speech and academic freedom … The dean can tell student activists, ‘Look, do you want us to lose our accreditation?’” Nevertheless, Standard 208 is only a Band-Aid to the broader cultural decay for the respect of free speech and intellectual diversity in law schools. “I’ve had a lot of students complain to me that they are reluctant to speak out in class – not because they’re afraid of discipline, but because they’re afraid their classmates will ostracize them,” Volokh said. “But you can’t have a rule to stop that.” The past few years have seen no shortage of campus incidents that would certainly have gone against Standard 208 had it been in effect. Stanford Law students shouted down Judge Stuart Kyle Duncan of the Fifth Circuit Court of Appeals when he came to give a talk in March of last year. Similarly at Yale, Kristen Waggoner of the Alliance Defending Freedom was harassed by an ugly protest over a (irony alert) panel discussion about free speech. Law schools increasingly resemble the hostile and immature playgrounds that undergraduate institutions have become. While Standard 208 will help, we have a long way to go before free speech will be fully restored. The Foundation for Individual Rights and Expression, in collaboration with the Academic Freedom Alliance and the Heterodox Academy, has penned an open letter urging the trustees and regents of American universities to “put neutrality above politicized institutional statements that threaten open debate on college campuses.”
The letter is specifically addressed to the trustees of universities, who wield considerable power to set institutional policy. “It is time for those entrusted with ultimate oversight authority for your institutions to restore truth-seeking as the primary mission of higher education by adopting a policy of institutional neutrality on social and political issues that do not concern core academic matters or institutional operations,” the letter says. “In recent years, colleges and universities have increasingly weighed in on social and political issues. This has led our institutions of higher education to become politicized and has created an untenable situation whereby they are expected to weigh in on all social and political issues." The letter specifically calls on every university to adopt an institutional neutrality policy, much like that espoused by the Kalven Report of the University of Chicago authored in 1967. The letter quotes that report, noting that institutional neutrality is necessary “to pursue truth through ‘the discovery, improvement, and dissemination of knowledge.’ And to accomplish this mission, ‘a university must sustain an extraordinary environment of freedom of inquiry and maintain an independence from political fashions, passions, and pressures.’” Greg Lukianoff, President and CEO of FIRE, said that “a top-down, father-knows-best mentality is absolutely no way to support the next generation of free thinkers. Students and faculty deserve the freedom to experiment with different perspectives and explore entirely new ways of thinking without the college claiming to have done all the thinking for them.” The open letter follows on the heels of FIRE’s annual college free speech index, in which not a single university received a score higher than 79 out of 100. If this were a college class, that would be a C+ ranking. Many of America’s most prestigious institutions receive abysmal rankings. Harvard received a score of zero, which was rounded up because the index couldn’t accommodate negative numbers. Protect The 1st applauds FIRE’s open letter to university trustees and regents. The state of free inquiry in American universities is dire. We need bold leadership to right the course. We look forward to further developments in this story. Woman Arrested for Social Media Snark While High Court Protects Suspect’s Right to Tell Police to “Worry About a Head Shot”A woman in Morris County, New Jersey, was arrested in December for her social media posts that officials say constituted threats of terrorism, harassment, and retaliation. The last two of those “threats” seem to pertain to the authorities, who stretched statements from the merely obnoxious to appear as a “true threat.”
Monica Ciardi had been posting to Facebook for weeks about her child custody dispute. Her posts, coming by the dozens, criticized her ex-husband and the Morris County judges presiding over her case. In late December, police finally arrested Ciardi for posting “Judge Bogaard and Judge DeMarzo: If you don’t do what I want then you don’t get to see your kids. Hmm.” Here’s the catch, Ciardi was parroting what the two judges said to her, accidentally forgetting to use quotation marks. Ciardi had meant to post what the judges had declared in court – that if she didn’t do what they wanted, then she wouldn’t get to see her children. Ciardi offered an insightful metaphor: “This is my personal Facebook page with 50 people on it. They came to my page and then turned around and said I harassed them. That’s like if I know you don’t like me, I go to your house, I stand on your front porch, I overhear you saying bad things about me, and then I call the cops and say, ‘She’s harassing me. I know I’m on her porch, but you should just hear what she said.'” Ciardi’s attorney said the incident amounted to “the government punishing and jailing a woman for simply speaking her mind.” Ciardi claims her experience in jail was a nightmare. While there, she says that she received death threats, saw several assaults, and got caught in the line of fire of correctional officers’ pepper spray twice. She says she suffered panic attacks, lost 15 pounds, and was placed in protective custody, which meant she didn’t leave her cell “for more than 45 minutes two to three times a week, max.” That’s stiff punishment for venting frustrations online. Ciardi spent 35 days in jail until Superior Court Judge Mark Ali, who had originally ordered her detention, ordered her release. Ali cited a recent New Jersey Supreme Court ruling that raised the bar for terroristic threat charges. That case, too, is problematic, but for the opposite reason. Even a First Amendment organization like our own is agog at that ruling. The New Jersey high court ruled on Jan. 16 that a man who told police during a domestic disturbance call to “worry about a head shot” if they enter his property. He also posted online that he knew where the officers lived and the cars they drove. The court ruled that prosecutors had failed to prove that such statements were credible threats that “instill fear of injury in a reasonable person in the victim’s position” and are not merely “political dissent or angry hyperbole.” While we are pleased to see that Ciardi has been released, we disagree with the New Jersey court’s new precedent. In the case of the “head shot,” the threat was made against the putative target, the police. Unless the comment was made in an obviously sarcastic way or in some manner that indicated its insincerity, law enforcement should be able to take such claims seriously. There must be an easy line to be drawn between arresting a woman for her Facebook posts about a pending trial and a true threat of violence against law enforcement officers. We look forward to further developments in this latest case. “Here in America, we do not arrest our political opponents,” begins a recent opinion and order out of an Ohio federal district court. Yet, the case in question involves exactly that: the arrest and detention of a Trumbull County commissioner after she criticized the county sheriff during a commission meeting.
Now the courts have weighed in, finding the commissioner’s arrest constituted a First Amendment violation. It’s another example of local officials seemingly failing to understand our most fundamental of constitutional freedoms. Niki Frenchko is the only Republican commissioner on the three-member Trumbull County Board of Commissioners. As the ruling describes, the other commissioners “viewed her as ignorant of the basic workings of county government and a nuisance, to put it mildly.” This personal enmity came to a head in July 2022. A month prior, during a commission meeting, Ms. Frenchko read into the record a letter detailing allegations of improper treatment of prisoners jailed in Trumbull County. Sometime thereafter, Sheriff Monroe wrote a response letter expressing displeasure with Ms. Frenchko’s accusations, suggesting the claims had not been verified. In the July meeting another commissioner ordered the clerk to read the sheriff’s letter into the record, at which point Ms. Frenchko repeatedly interrupted the clerk and further criticized the sheriff. (Perhaps with some reason – according to the Cincinnati Inquirer, seven lawsuits alleging civil rights violations have been filed against the Trumbull County Jail in recent years.) Soon after, two sheriff’s deputies arrested Ms. Frenchko for violating Section 2917.12 of the Ohio Revised Code, prohibiting any person “with purpose to prevent or disrupt a lawful meeting,” from engaging in conduct that “obstructs or interferes” with the meeting or engaging in any speech that “outrages the sensibilities of the group.” Dwell on that phrase for a moment – since when does outraging the sensibilities of a group justify a restraint on political speech under the First Amendment? Although federal Judge Philip Calabrese found the statute in question to be content-neutral and neither overbroad nor vague, he did find the arrest to be retaliatory and a clear violation of Ms. Frenchko’s First Amendment rights. Judge Calabrese writes: “Without question, the disruption that led to Commissioner Frenchko’s removal and arrest was her speech itself. And not just any speech. The speech of an elected official, delivered at a public meeting, addressing a matter of public concern. Speech that communicated a message disfavored by those in power. Speech highly critical of another elected official.” Readers of this blog might remember a similar case in the San Antonio area in which personal animosity between elected officials led to the arrest of a 72-year old city council member on trumped charges. The Supreme Court is set to hear that case, Gonzalez v. Trevino, later this year. If an elected official is obnoxious and overtalks her colleagues, a commission may be in the right to ask her to leave the meeting. But this commission overreached, punishing this elected official for her speech with handcuffs. This trend – weaponizing the law to punish disfavored speech – is troubling, but Judge Calabrese’s ruling in favor of Ms. Frenchko is a reminder that many courts are still willing to enforce respect for the First Amendment. In the closing days of 2023, Elon Musk and X Corp lost the first round of their bid in a state court to overturn a California law that would require social media platforms to disclose their content moderation policies. The law in question came into effect in 2022 and was advertised as a way to tamp down on hate speech, disinformation, harassment, and extremism.
The suit alleged that that the law’s real purpose was to coerce social media platforms into censoring content deemed problematic by the state. While District Judge William Shubb ruled that the law does impose a substantial compliance burden, he found it does not unjustifiably infringe on First Amendment rights. Protect The 1st believes X has a strong basis to appeal under settled precedent. For example, in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985), the U.S. Supreme Court found that states can require an advertiser to disclose information without violating the advertiser's First Amendment free speech protections. But the disclosure requirements must be reasonably related to the state’s interest in preventing deception of consumers. This is not a case of selling gummies and advertising them as cures for cancer. It is reasonable to assert that some social media companies might do themselves a favor by releasing simple, clear content moderation policies to the public. But we should never forget that these policies are confidential, proprietary information. Requiring their forced disclosure could tip the scales in favor of state-enforced censorship of social media, which at least one federal judge believes is already occurring on a mass scale. Worse, the California law violates the First Amendment by compelling speech on the part of the companies themselves. Protect The 1st expects X to appeal with good prospects to overturn this ruling. No Labels just won its court battle to block candidates from using its ballot line to run for office in Arizona. No Labels is a “centrist” political party gearing up for a potential third-party presidential campaign to take on Joe Biden and Donald Trump if they are the nominees. Whatever your politics, this decision is a big win for the freedom of association – held by the U.S. Supreme Court to be the logical outcome of the First Amendment’s rights of free speech, assembly, and petition.
No Labels in October sued Adrian Fontes, the Secretary of State for Arizona, in an effort to keep potential down-ballot contenders from running as No Labels candidates without authorization. No Labels does not plan to run congressional candidates. No Labels filed suit shortly after Richard Grayson, a man who has run for office at least 19 times, announced he would run as candidate for a minor state office under the party’s banner. Under Arizona law, this would have forced the fledgling movement to reveal its donors. Some Democrats have accused No Labels of being a spoiler that will poach votes from Biden, helping to pave the way for Trump to return to the White House. "I will use the campaign to expose the scam of No Labels (and to) excoriate the selfish and evil people who have organized this effort and their attempt to make sure that Donald Trump wins in November," Grayson said. Courts have long recognized that for the freedom of association to mean anything we must respect its flip side – the freedom to refuse association. Both rights are subject to reasonable limitations, but such reciprocity is necessary in any relationship. Dr. Benjamin F. Chavis, Jr., a No Labels national co-chair, and former Missouri Gov. Jay Nixon, the group’s director of ballot integrity, said in a statement that, “Our ballot line cannot be hijacked. Our movement will not be stopped.” Just like Vivek Ramaswamy could not automatically declare himself Trump’s running mate, a No Labels party member should not be able to unilaterally declare himself or herself a candidate on the ballot with no input from party leaders. Federal judge John J. Tuchi ruled that to enable Grayson to run as a No Labels candidate without prior authorization from the party would violate the party’s chosen structure and rights. “The Party has substantial First Amendment rights to structure itself, speak through a standard bearer, and allocate its resources,” Judge Tuchi wrote. Protect The 1st strongly supports Judge Tuchi’s ruling. This clear stand for association rights is a significant reaffirmation of the Constitution, regardless of any political implications. We look forward to further developments in this case. Jewish students at Harvard are suing the university for failing to address rampant antisemitism on campus. Their case, Kestenbaum v. Harvard, raises sharp questions about free speech and the responsibilities of a private university. Harvard is not required by law to observe the principles of the First Amendment the way a state-sponsored school would. But Harvard must live up to its self-proclaimed commitment to open discourse.
The plaintiffs, Students Against Antisemitism, contend that “since October 7, 2023, when Hamas terrorists invaded Israel and slaughtered, tortured, raped, burned, and mutilated 1,200 people – including infants, children, and the elderly – antisemitism at Harvard has been particularly severe and pervasive.” One of the central claims of the case is that “Harvard selectively enforces its policies to avoid protecting Jewish students from harassment, hires professors who support anti-Jewish violence and spread antisemitic propaganda, and ignores Jewish students’ pleas for protection.” This, combined with the university's reluctance to discipline students engaging in antisemitic behavior, paints a disturbing picture. The lawsuit points out a stark contrast: while Harvard mandates training classes to address various forms of discrimination – including “sizeism,” fatphobia, racism, and transphobia – it seems lackadaisical about antisemitic incidents. This was memorably captured by former Harvard President Claudine Gay who suggested “that calls for the genocide of the Jewish people do not necessarily violate Harvard’s policies.” Furthermore, the case highlights instances where Harvard faculty members have not only condoned but actively participated in rallies characterized as antisemitic. The suit claims the university's response to a student mob taking over a campus building for antisemitic purposes was not disciplinary action but the provision of burritos and candy. The suit alleges that while the university aggressively enforces policies against bias towards other minority groups, it turns a blind eye to antisemitic incidents. The plaintiffs propose disciplinary measures, including the termination of faculty and administrators involved in antisemitic discrimination, as well as suspension or expulsion for students engaged in such conduct. It also calls for antisemitism training for all members of the Harvard community and the rejection of donations implicitly or explicitly conditioned on the promotion of antisemitic views. We commend Students Against Antisemitism for their bold stance against Harvard’s obvious double standard, but some of the lawsuit’s remedies might deepen Harvard’s problematic relationship with free speech – a serious concern for the university with the lowest-ranked commitment to speech in the nation, according to the free-speech organization FIRE. This ranking could actually get worse with the further expansion of diversity, equity, and inclusion (DEI) programs. Under the DEI banner, expansive bureaucracies have already cast a pall over campus speech. We need less of this, not more. Consider how DEI was used at Harvard to defenestrate Carole Hooven, a distinguished author and longtime Harvard lecturer on evolutionary biology who committed the thought crime of asserting that there are two biological sexes. We need fewer such codes, not more, for speech to thrive again on campus. The critical distinction to be drawn is between harsh language and justifications for what constitutes a just war, and the celebration of outright hatred, violence, and heinous acts. As we previously wrote, “if someone is highly critical of Israel, the bombing of Gaza, or is pro-Palestine, they are well within the parameters of a fair debate. But if someone can respond to the murder of babies and find it ‘exhilarating,’ (as one Cornell professor did), they may be within the bounds of the First Amendment, but we have to ask if it’s just the speech that’s evil. At some point, for private entities in particular, the heinous uses some make of free speech rights raise serious questions regarding the freedom of association (or disassociation) choices of the institutions themselves. Educational institutions cannot always hide behind the laissez faire ethos of free speech when choosing the administrators and the professors that represent them, or even the students who form part of the community the university actively creates. Public institutions, like all of society, are challenged to adapt principles spelled out by the U.S. Supreme Court in its 1968 Brandenburg v. Ohio opinion, which gave maximum berth to speech – even hate speech. How do the principles of this ruling apply given the new technological reach of speech and the ability to use social media to incite others to violence in the form of swatting, anthrax, bombs, or doxing? How do we apply that ruling’s maximum respect for speech in modern circumstances so that if only a tiny percentage of followers is responsive to incitement, it still amounts to a high probability of violence? Or, as former U.S. Senator and current University of Florida President Ben Sasse told The Wall Street Journal, the U.S. Constitution “draws a deep, deep line at speech and action,” that “threats are the front edge of action,” and that “orchestrated plans, or getting to a definable way of targeting specific people, is when speech ceases to be deliberation.” The risk with such speech is unlawful violence, not just war or self-defense. On the other hand, universities must accept much controversial but benign speech today, even if it might “trigger” someone. For Harvard, better approaches to free inquiry are emerging from the Council on Academic Freedom, a faculty organization dedicated to expanding respect for speech on campus. For society at large, perhaps the principles of Brandenburg need to be updated for the digital age. In the meantime, when the murder-adjacent speak out and self-identify, they should suffer the social and career consequences. National Rifle Association v. Vullo In this age of “corporate social responsibility,” can a government regulator mount a pressure campaign to persuade businesses to blacklist unpopular speakers and organizations? This is the central question the U.S. Supreme Court faces in National Rifle Association v. Vullo.
Here's the background on this case: Maria Vullo, then-superintendent of the New York Department of Financial Services, used her regulatory clout over banks and insurance companies in New York to strongarm them into denying financial services to the National Rifle Association. This campaign was waged under an earnest-sounding directive to consider the “reputational risk” of doing business with the NRA and firearms manufacturers. Vullo imposed consent orders on three insurers that they never again provide policies to the NRA. She issued guidance that encouraged financial services firms to “sever ties” with the NRA and to “continue evaluating and managing their risks, including reputational risks” that may arise from their dealings with the NRA or similar gun promotion organizations. “When a regulator known to slap multi-million fines on companies issues ‘guidance,’ it is not taken as a suggestion,” observed Gene Schaerr, PT1st general counsel. “It’s sounds more like, ‘nice store you’ve got here, it’d be shame if anything happened to it.’” The U.S. Court of Appeals for the Second Circuit reversed a lower court’s decision that found that Vullo used threats to force the companies she regulates to cut ties with the NRA. The Second Circuit reasoned that: “The general backlash against gun promotion groups and businesses … could (and likely does) directly affect the New York financial markets; as research shows, a business's response to social issues can directly affect its financial stability in this age of enhanced corporate social responsibility.” You don’t have to be an enthusiast of the National Rifle Association to see the problems with the Second Circuit’s reasoning. Aren’t executives of New York’s financial services firms better qualified to determine what does and doesn’t “directly affect financial stability” than a regulator in Albany? How aggressive will government become in using its almost unlimited ability to buy or subpoena data of a target organization to get its way? Can government stymie the speech rights of a national advocacy organization with 5 million supporters? Even if you take Vullo’s justifications at face value, the government cannot override the Bill of Rights to slightly reduce the rate of corporate bankruptcies. The dangers of a nebulous, government-imposed “corporate social responsibility standard” is a grave threat to all constitutionally protected individual rights. Protect The 1st is far from alone in this view. The ACLU, which also filed a brief in favor of the NRA, writes: “This is a critically important First Amendment fight: if government officials can pressure the businesses they regulate to blacklist the NRA in New York, then officials in other states can punish other advocacy organizations in the same way – including the ACLU itself.” Other not aligned with the NRA are alarmed as well. James P. Corcoran, former New York Superintendent of Insurance, in his amicus brief writes that while he does not support the National Rifle Association, he believes “that the threat to free speech at issue here could equally harm groups aligned with his own political views if left unchecked." For all these reasons, we urge the Supreme Court in this case to put the First Amendment first. A new poll by RealClear Opinion Research offers a compelling and, for many, likely unsurprising rebuttal to breathless media reports about the decline in religious belief among Americans and the rise of the “nones.”
The survey of 1,000 adults, conducted from December 19-21, found that 85 percent of respondents believe in God – with the same 85 percent also reporting a belief in heaven. Fifty-eight percent of those polled self-identified as Christian (with 36.8 percent identifying as Protestant and 22 percent as Catholic). Some 2.9 percent identify as Members of the Church of Jesus Christ of Latter-Day Saints. The poll revealed the pluralistic wealth of religious belief in America: 3.2 percent consider themselves Muslim; 1.9 percent are Jewish; Buddhists account for 1.6 percent; and Hindus make up 0.5 percent. Despite the clear Christian majority, respect for religious pluralism is strong, with an overwhelming majority of all Americans – 94 percent – saying they believe religious freedom is a fundamental human right. Despite assertions that so-called “nones” make up a large and growing percentage of Americans, only 3.8 percent of respondents claim to be atheist while only 3.7 percent identify as agnostic. The religious pessimists are right about one thing: While the RealClear poll did find that those who consider themselves religiously affiliated far outnumber those who do not, regular attendance at worship services is well below where it once was. Only 30 percent of respondents regularly attend a formal religious service once a week or more. The good news for the First Amendment’s guarantee of the free exercise of religion remains. Large majorities believe that prejudice against Jewish and Muslim people is a very serious or somewhat serious problem in the United States. As RealClear writes, “Americans strongly believe that they have the right to practice the religion of their choice in the manner they choose or not to practice at all.” With National Religious Freedom Day approaching tomorrow, this poll is a clear reminder that Americans overwhelmingly reject religious bigotry in all its forms. This RealClear poll is an excellent set up for our next report Tuesday on another poll from Becket’s Religious Freedom Index that will drill down deeper into Americans’ beliefs about the freedom of religious expression. Read more of the RealClear poll’s top-line results here. |
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