TikTok Under the FBI’s Microscope
It could not have happened at a worse time for TikTok, the fourth most popular social media platform in America. Just days before TikTok CEO Shou Zi Chew was grilled before the House Energy and Commerce Committee, with calls echoing off the walls of the hearing chamber to ban TikTok in the U.S. market for scraping Americans’ data for China, news broke that the Department of Justice and FBI opened an investigation into the social media platform’s Chinese parent company, ByteDance. Investigators want to know if ByteDance used the app to track the location and movements of American journalists.
According to Emily Baker-White, a Forbes reporter who was herself surveilled by ByteDance, the department and U.S. Attorney for the Eastern District of Virginia have hit the Chinese firm with subpoenas about its purported surveillance of U.S. journalists.
If this story holds up, it will likely kill any serious consideration by the U.S. government of the proposal advanced by TikTok to compartmentalize its data inside the United States. As a series of leaks from inside the company show, for all practical purposes TikTok seems to have little independence from its owners. The use of TikTok to surveil American journalists would be an astonishing show of bad faith at a time when the company is pledging transparency and accountability.
In the Thursday hearing, Rep. Tim Walberg (R-MI) asked: “Today, do ByteDance employees in Beijing have access to American data?” Chew replied: “We rely on global interoperability, and have employees in China, so yes, the Chinese engineers do have access to global data.” He said data stored in the United States and Singapore is accessed in China only for “business purposes.”
As this story unfolds, we look forward to learning what Chinese intelligence believed was so important that it had to surveil U.S. journalists at this sensitive time. Were they following reporters who were speaking to dissidents or whistleblowers inside the company?
TikTok’s purported intrusion into journalists’ locations should remind us that confidentiality for sources is the lifeblood of journalism. Without being able to protect a source, journalists would struggle to reveal malfeasance in government and business. The TikTok story should prompt civil libertarians to double down on the need to protect journalists at home – as well as their sources – from the prying eyes of U.S. prosecutors.
As Members of Congress debate a ban of TikTok, we recommend that they also debate and pass the PRESS Act, which would bar prosecutors, except in emergency national security circumstances, from requiring the production of the notes and sources of journalists in court. This is a practice that has worked well in 49 states.
While there is a big difference between spying on journalists and using lawful domestic means to reveal their sources, the need to protect the independence of a free and unfettered press is unchanged.
Luke Goodrich of the Becket Law Firm held his ground in the face of skeptical questioning from several judges on the Ninth Circuit Court of Appeals in the Oak Flat case.
“What is a substantial burden?” one judge asked. He wanted to know if the congressional deal that would allow a foreign mining company to dig up the sacred land of the Apache in the Tonto National Forest in Arizona – known as Oak Flat – and transforming it into a giant crater would quality as a substantial burden violation under the Religious Freedom Reformation Act (RFRA).
“Completely barring access or denying access is a substantial burden,” Goodrich replied, citing precedent in Supreme Court decisions, Little Sisters of the Poor, and Hobby Lobby.
“What is an unsubstantial burden?” asked one judge. He returned to this question again and again, asking how trivial does a violation of someone’s religion have to be before it can be discounted?
In response, Goodrich kept returning to idea of a “baseline” from which to evaluate the impact of an action on a religious practice. He implied that the destruction of a people’s religious site would certainly qualify as a substantial burden under any meaning of the law.
One such baseline that was brought up repeatedly by Judge Ronald M. Gould is the 1852 treaty between the Apache and the federal government.
That treaty, Judge Gould noted, promised that the government would respect the “prosperity and happiness” of the Apache. Can the Apache be happy if the government allows the destruction of their sacred religious site? Goodrich replied that the Apache indisputably have property rights that the land swap and mine would abrogate, creating a substantial burden. A government lawyer dismissed that assertion, calling the 1852 document “just a peace treaty” that cannot convey enforceable property rights – an answer that seemed to have left Judge Gould nonplussed.
The Apache and their defenders, including the Protect The 1st Foundation (whose amicus brief was cited by one judge in his questioning), were elated when the Ninth Circuit agreed to rehear this case after finding for the government with a three-judge panel. In a dissent, Judge Marsha Berzon had called her peers’ ruling “absurd,” “illogical,” “disingenuous,” and “incoherent,” seeming to set up a reversal.
The tone of today’s questioning should leave both sides uncertain. While several judges seemed skeptical of the Apache’s case, many of the 11 judges of the Ninth’s en banc panel did not ask questions. How the majority will vote is unpredictable. In the meantime, the Apache are holding prayer vigils asking the Creator to guard the centerpiece of their heritage and religion from destruction.
We let some time pass for all the details to come in about the auto-da-fé that students and staff inflicted on Judge Stuart Kyle Duncan of the 5th Circuit Court of Appeals. Let us review these details and then suggest some next steps for Stanford.
Multiple sources and video confirm the judge was shouted down, berated, and abused during a lecture he had been invited to give to the Federalist Society chapter at Stanford Law on “The Fifth Circuit in Conversation with the Supreme Court: Covid, Guns, and Twitter.”
In the leadup to Judge Duncan’s talk, students at Stanford Law put up flyers that not only targeted Judge Duncan, but also students in the Federalist Society, posting their pictures and saying they “should be ashamed.” Over 70 students also emailed the FedSoc chapter asking it to cancel the event or move it to Zoom, arguing that Duncan has “proudly threatened healthcare and basic rights for marginalized communities.”
On the day of the event, around 100 protesters picketed outside the event, booing attendees, and calling out individual classmates. Protesters came into the room, holding signs with political slogans and shouting over any attempt by Judge Duncan to speak. For about ten minutes, Judge Duncan tried to give his planned remarks, but the protestors simply yelled over him.
Tirien Steinbach, Stanford Law’s Associate Dean for Diversity, Equity, and Inclusion, and the University's student-relations representative, initially allowed protestors to continue to disrupt the event. She failed to enforce the school's policy against disrupting speakers, despite assurances given to this speaker that he would be protected.
Finally, Dean Steinbach stood up to control the crowd, but only after taking time to criticize Judge Duncan, saying that he “has caused harm.” Rather than telling disruptive students to respect the speech of a sitting federal judge and ask challenging questions later, Steinbach stated that “this event is tearing at the fabric of this community that I care about and am here to support.”
Steinbach repeatedly asks: “Is the juice worth the squeeze?” She clarified “is it worth the pain that this causes and the division that this causes?” Apparently free expression is only worth defending if a diversity administrator finds it not divisive (a standard as old as the trial of Socrates).
Steinbach finally encourages the students to allow Judge Duncan to speak, but without any serious reprimand to the protesters who violated school disruption policies, who lobbed verbal abuse at fellow students and the judge, and who held the most power in this situation. Thus, she validated their tactics and set a terrible precedent.
Although Judge Duncan was eventually allowed to speak, he never gave his prepared remarks as the audience moved directly to Q&A. The questions were predictably unbecoming of law students at one of the nation’s top schools. One heckler hurled lewd insults, and Judge Duncan had to be escorted out by federal marshals.
After the event, Stanford President Marc Tessier-Lavigne and Stanford law school dean Jenny Martinez issued a joint statement apologizing to Judge Duncan. Citing Dean Steinbach’s speech, the statement said that “staff members who should have enforced university policies failed to do so, and instead intervened in inappropriate ways that are not aligned with the university’s commitment to free speech.”
This incident was beyond unacceptable. You don’t have to agree with the judge’s views on jurisprudence or gender to worry about where such behavior is heading. While Protect The 1st is pleased by Stanford’s statement, it is only a baby step in the right direction. Stanford must commit itself to restoring freedom of speech, academic freedom, and respect for diversity of thought.
Stanford can begin by inviting Judge Duncan back to speak. Such a gesture would send a strong message that Stanford is truly interested in what a sitting federal Judge has to say. In January, Yale Law did much the same when it reinvited Kristen Waggoner, CEO, President, and General Counsel of the Alliance Defending Freedom, to speak after undergoing a similar struggle session. That protest caused a firestorm, with some judges announcing they would not consider Yale Law graduates for clerkships.
Stanford could also take a hard look at the culture of censorship and surveillance that it, like many schools around the country, has built in the last few years. Last month, Protect The 1st reported on Stanford’s bias reporting system, which is used to anonymously report on students or faculty who commit wrongthink. Scores of Stanford faculty have called on the university to investigate free speech and academic freedom on campus, and to abolish the anonymous reporting system. What happened to Judge Duncan is just one flare-up of the chronic problem of intolerance, fear, and repression present on some college campuses.
And if Dean Steinbach and students do this to another speaker, Stanford must defend its reputation by firing Dean Steinbach and suspending or expelling students.
The lawyers are already at work contesting the decision by the governing board of Arizona’s Washington Elementary School District to exclude student-teachers from a Christian university after a long and productive relationship.
In recent years, more than 100 students and teachers-in-training from Arizona Christian University have taught in the district’s elementary schools. ACU’s president, Len Munsil, said that many of these students have been hired as full-time teachers. Munsil also said that the high quality of ACU student-teachers prompted school administrators to ask for more trainees from the university.
Then the board noticed the mission statement of the ACU website. The university holds to “biblically informed values that are foundational to Western civilization, including […] the centrality of family [and the] traditional morality and lifelong marriages between one man and one woman.”
No one has alleged that any of ACU’s student-teachers have brought religion or discrimination into the district’s public schools. So, what’s the problem? School board president Nikkie Gomez-Whaley said that she doesn’t believe Christian student-teachers can separate their Christian values from their professional obligations, making them unable to treat students equally. “For me,” she told The Christian Post, “this is not a concern about Christianity, there are plenty of Christian denominations who are LGBTQ friendly.”
But what about the denominations and religions that hold doctrines similar to that of the ACU?
For example, what will the Washington Elementary School District do now about teachers drawn from the pool of more than 60 million Roman Catholic Americans? Despite the softening of Pope Francis on criminalizing same-sex relations, he has not changed the Catechism of the Catholic Church, which calls same-sex relations as “intrinsically immoral and contrary to the natural law.”
That’s a stronger statement than the one made by ACU. Is the Washington Elementary school board now going to exclude Roman Catholics?
Opposition to same-sex marriage is also prevalent in Orthodox Judaism and Sunni and Shia Islam, as well as many Eastern religions. Is the Washington Elementary school board also going exclude Jewish and Muslim teachers?
Let us suggest a way out for the school board: acknowledge that people can belong to faiths that have dogmas with which you disagree or even find offensive. Understand also that all the great world religions endorse the fair treatment of all people. As long as teachers do not bring their faith into the classroom, they should be judged by the quality of their teaching.
Anything less than that is a gross violation of the First Amendment’s guarantee of the free exercise of religion.
The Ninth Circuit Court of Appeals denied an en banc rehearing in Green v. Miss United States of America LLC, a lawsuit that sought to compel the Miss United States of America beauty pageant to change its eligibility requirements for “natural born females” by including transwomen in its contests.
A lower court had held that the First Amendment protects the pageant’s expressive association rights. The Ninth Circuit differed from the district court by basing its ruling not on the First Amendment’s right of free association, but on its protection against compelled speech. The Ninth’s majority opinion from last November is worth recounting:
“As with theater, cinema, or the Super Bowl halftime show, beauty pageants combine speech with live performances such as music and dancing to express a message. And while the content of that message varies from pageant to pageant, it is commonly understood that beauty pageants are generally designed to express the ‘ideal vision of American womanhood.’ In so doing, pageants ‘provide communities with the opportunity to articulate the norms of appropriate femininity both for themselves and for spectators alike.’”
This decision does not preclude another pageant from voluntarily electing to include transwomen. Indeed, this decision should uphold that as well. But the idea of government compulsion to force pageants and spectators to end their traditional format is offensive to a free society. The Ninth’s decision means there will be no rehearing en banc, thus making this likely a matter of settled law.
The school choice movement has achieved liftoff.
It took decades to get to this point. The school choice movement, supported by parents and reform-minded educators, for years crept along state by state, incremental program by program. Thirty-one states, Washington, D.C., and Puerto Rico have adopted school choice programs that grant educational savings accounts, tax credits, and vouchers. But the rights of parents to choose the best and most appropriate school for their children has often been a bit player, tolerated but not celebrated. School choice has been more of an educational outlier than a paradigm shift.
Protect The 1st is convinced the school choice movement is vital to the future of American children and society. Decades of research show that choice brings powerful improvements to educational outcomes and to children’s lives. The First Amendment’s guarantee of the free exercise of religion must also include room for parents to choose schools that reflect their beliefs, while adhering to state standards in learning.
In 2021, a year supporters deemed “The Year of Educational Choice,” saw 19 states enact 32 new or expanded school choice programs. In that year, West Virginia became the first state to enact a publicly-funded choice program for all students. The following year, Arizona followed suit. In 2023, momentum is building into a breakout year. The adoption of school choice polices in one state is spurring other states to adopt or expand school choice policies.
Last week, Gov. Sarah Huckabee Sanders signed a school-choice bill that made Arkansas the fifth state in two years to pass universal school choice, following the most recent examples of Iowa and Utah. Last week as well, Nebraska’s unicameral legislature advanced a bill to establish tax credits to encourage donations to private-school scholarships for students in need.
From Florida, to Idaho, to Utah, parents and policymakers are embracing choice as the means to give children access to better schools while challenging traditional public schools to do a better job of educating children.
The obvious need and success of school choice is based on growing bipartisan support. The Nebraska bill advanced with the support of three Democratic state senators. It is no surprise that 82 percent of Republicans support school choice, but 68 percent of Democrats and 67 percent of independents support school choice as well. Protect The 1st applauded Democratic leaders in Illinois and Pennsylvania for committing to expand private scholarship programs. We look forward to more action by leaders in both parties in states and cities across the country.
The movement and the moment have come together. The school choice movement is finally fast on the move.
In a recent ruling, the United States Court of Appeals for the Second Circuit held that a “Cops Ahead” sign is speech protected by the First Amendment. The decision came after a man in Connecticut was arrested for holding up such a sign on a public street.
The plaintiff in the case, Michael Friend, was arrested in 2018 for violating a Connecticut statute that prohibits interfering with a police officer. Friend was holding a cardboard sign that read “Cops Ahead” down the street from a distracted-driving enforcement operation conducted by the Stamford Police Department. Sergeant Richard Gasparino initially confiscated Friend's sign twice and ultimately arrested him. Friend argued that his sign was protected by the First Amendment's guarantee of free speech.
The resulting case made its way to the U.S. Court of Appeals for the Second Circuit, which ultimately agreed with Friend. In his ruling, Judge Steven Menashi noted that restrictions on speech have historically been justified only when the speech in question is “integral to criminal conduct.” As the opinion notes, “the First Amendment is quite irrelevant if the intent of the actor and the objective meaning of the words used are so close in time and purpose to a substantive evil as to become part of the ultimate crime itself.” For example, it would be a crime to tell drug dealers a bust is coming, but as the court has just ruled, it would not be a crime to warn drivers to slow down. If anything, such a sign encourages safe driving.
The only offense with which Friend was arrested and charged was interference with a police officer, not aiding and abetting criminal activity. As the opinion states, “the Connecticut Supreme Court has long construed the statute ‘to proscribe only physical conduct and fighting words that by their very utterance inflict injury or tend to incite an immediate breach of the peace.’” Furthermore, the relevant section of the Connecticut penal code does not extend to traffic violations.
While this is a limited ruling, the court's decision is significant because it spotlights the tiny incidents that can chip away at our First Amendment rights. The ruling reaffirms the principle that the First Amendment protects a wide range of speech, including non-verbal forms of expression like holding up a sign.
Why Do Some on the Right and the Left Seem to Lack Basic Understanding of the First Amendment?
We were relieved to hear Gov. Ron DeSantis repudiate the bill introduced in the Florida legislature that would have required bloggers who write about state-elected officials to register with the state government. The bill, which the American Civil Liberties Union says is “un-American to its core,” will not enjoy the governor’s support or signature. What the news giveth with one hand, however, it taketh with the other.
The Federal Trade Commission is now demanding that, in the wake of Twitter’s release of data about government coordination with its content management, the company must now “identify all journalists” granted access to company records, including the “nature of access granted each person.” FTC also asked if Twitter had conducted background checks on the journalists, among other things. The Wall Street Journal observed: “So here we have a federal agency demanding that a private company disclose its interactions with a free press, including how much it snooped on those reporters. None of this is the business of the government.”
It certainly isn’t the business of the Federal Trade Commission, any more than a blogger in Florida should have to comply with a Republican state senator’s proposal that former House Speaker Newt Gingrich called “insane.”
First Amendment, folks. Not that hard.
Protect The 1st Asks HHS to Estimate How Many Doctors Will Leave Profession as a Result of Watered-Down Protections of Religious Rights
How Many of the Underserved Will Lose Their Healthcare?
Protect The 1st on Monday filed a comment with HHS detailing many of the ways in which the proposed recension of a 2019 rule to protect the religious conscience rights of physicians, nurses, and other health-care providers will hurt access to care among low-income and underserved Americans.
In 2019, the Department of Health and Human Services (HHS) reported that a poll showed that more than 80 percent of healthcare providers who are religious would likely limit their scope of practice if they were required to participate in practices and procedures – such as abortion or sex reassignment surgery – to which they have a moral, ethical, or religious objection.
“If the existing rule is rescinded, many of these physicians will be forced to choose between obeying their conscience or violating their most cherished beliefs,” said Gene Schaerr, general counsel of Protect The 1st. “There is no lack of health-care providers who are willing to provide these procedures. Trying to force the minority of doctors and other providers to violate their conscience is a pointless exercise in religious discrimination and enforced ideological conformity.”
Protect The 1st asks HHS:
Please explain why, in the Department’s view, religious freedoms do not warrant protective regulatory provisions similar to those protecting other civil rights.
Please estimate how many doctors will likely leave the medical profession if they are required to perform medical procedures to which they are religiously opposed.
Please estimate the effect on underserved communities if religious hospitals and other entities choose to shut down rather than perform procedures to which they are religiously opposed.
Please estimate the rate at which patients will be unable to obtain what the Department considers healthcare if the 2019 final rule is largely rescinded.
The Protect The 1st comment also noted that the HHS proposal to move from reviews of systemic offenders to a “case-by-case” basis will shift the burden of litigation to injured parties. The department’s removal of all compliance requirements will almost certainly encourage the recent rash of local laws that discriminate on the basis of religion.
The Protect The 1st filing also said that the “proposed new rule is so deficient as to appear half-hearted in its attempt to protect religious freedoms.” In seeking to purportedly protect religious liberty and expand healthcare, the department’s new rule “cuts its own feet out from under it.”
Protect The 1st will work to communicate the dire nature of this rule change – and its impact on those who can least afford a restriction of access to health care – to the Biden Administration and to Congress.
If Florida state Sen. Jason Brodeur gets his way, paid bloggers who cover that state’s governor, lieutenant governor, cabinet, or legislature must register with the state, much as lobbyists do, or face fines that can reach $2,500.
“Paid bloggers are lobbyists who write instead of talk,” Brodeur is quoted in floridapolitics.com. “They both are professional electioneers. If lobbyists must register and report, why shouldn’t paid bloggers?”
Brodeur’s point seems to be that if the enumerated First Amendment rights of lobbyists (the right to petition the government for a redress of grievances) can be regulated, why can’t we regulate the rights of bloggers (freedom of speech and the press)?
If this sounds reasonable on its face, it isn’t when you look at it closely.
In Florida, lobbyists are government relations professionals who are paid to visit legislators to present the views of their corporate, union, NGO, or other special-interest employers. The U.S. Supreme Court has held that government can require such lobbyists to register. Other Floridians can write, petition, or go to their legislator’s office, without any registration or restrictions. That’s called democracy.
The same freedom applies to bloggers. They don’t show up at the Capitol on a daily basis. They may be paid or unpaid. They may work for the common good or spread disinformation. They may shed light or start fires. They can disrespect, criticize, ridicule, and skewer state officers – including Sen. Jason Brodeur – because, you see, the First Amendment says that Congress shall make no law “abridging the freedom of speech, or of the press.” And more than two centuries of American law makes it clear these principles apply to government at all levels, from Tallahassee, Florida; to Laredo, Texas; to Sacramento, California, where youth sporting groups have had to go to court to defend themselves against a law that degrades both their First and Second Amendment rights.
It is easy to see why some people – and politicians – get upset with commentary from the shadier precincts of social media, especially content subsidized by special interests with partisan, ideological, or personal axes to grind. There is no way to stamp this out; however, that doesn’t justify the far worse problem of censorship. The only solution is to marshal facts, be a good communicator, and be vocal in response.
Requiring millions of people who blog about state politicians to register or face fines would be an onerous burden on speech. It would subject political speech to regulation, an impulse far too close to practices in Venezuela, Russia, or China for comfort. And yet, there is increasing interest from the right and the left to find new ways to restrict speech.
The 11th Circuit Court of Appeals had to strike down Florida’s social media law that would have placed restrictions on how social media platforms can moderate content. “Put simply, with minor exceptions, the government can't tell a private person or entity what to say or how to say it,” said Judge Kevin Newsom, appointed by President Trump. A court had to hold up several provisions of a Florida law that would have attempted to fine-tune academic speech.
Many people agree when you complain that the media and the academy have become unfair or increasingly one-sided. But passing one poorly-crafted, unconstitutional messaging bill after another won’t change anything.
Should this bill become law, expect mass civil disobedience from bloggers, including from us. If Florida wants to reduce criticism in the blogosphere, we suggest refraining from proposing and passing unconstitutional laws. That would do more good than trying to regulate free speech.
Protect the First to SCOTUS: Sidewalk Preacher Case Is an “Excellent Vehicle” to Resolve Public Forum Speech Issue
Protect The 1st on Wednesday filed a reply brief answering claims from the University of Alabama against our petition for the U.S. Supreme Court to hear Keister v. Bell.
We told the court that this case is an “excellent vehicle” to resolve a split in appellate courts on the proper analysis of what constitutes a public forum. The case revolves around the right of evangelist Rodney Keister to stand on city-owned sidewalks on a public street in Tuscaloosa, Alabama, near the University of Alabama. The UA campus police enforced an agreement with the city to clamp down on expressive activity at that portion of the sidewalk, warning Keister not to preach on this portion of a public sidewalk.
At stake is the right of Americans to use public spaces to engage in speech – a practice that was embedded in American life long before colonials handed out Thomas Paine’s Common Sense pamphlets. The Tenth Circuit Court of Appeals, for example, recognizes that “traditional public fora are open for expressive activity regardless of the government intent.” On the other hand, the Eleventh Circuit ruled against Keister with a multifactor balancing test and allowed the University to forbid expressive activity on the sidewalk.
Protect The 1st wrote: “Even assuming the propriety of a balancing test, the Eleventh Circuit’s circular reliance on the University’s intent to suppress speech was an improper fulcrum for converting the most quintessential of traditional public fora into a limited forum allowing suppression.”
Protect The 1st is hopeful the Court will take this chance to resolve a split in the courts and uphold the traditional right of Americans to use public property for expression and speech.
The Educational Choice for Children Act is a House-Senate bill that aims to provide tax credits for charitable donations to expand choices in quality education. The legislation, introduced by Sens. Cassidy, Scott, Daines, and Young, and Reps. Owens and Smith, would allow individuals and businesses to receive tax credits for donations to Scholarship Granting Organizations (SGOs) that provide scholarships to eligible students for attending private or religious schools, homeschooling, or other non-public educational options.
The bill’s supporters make the point that private options are often superior choices over available public schools.
“I’ve always said that when you give parents a choice, you give kids a better chance at achieving their dreams,” said Senator Scott. “By empowering families with more education resources, this bill could change the lives of millions of high-potential students who deserve every opportunity to succeed.”
The bill includes provisions that would allow SGOs to determine the amount of scholarship awards given to individual students. An estimated two million students in any elementary or secondary education setting, including homeschooling, would be eligible to receive scholarships that can cover tuition, fees, books, supplies, and equipment necessary for enrollment or attendance in non-public educational options.
The bill is supported by religious and educational organizations. Rabbi Abba Cohen of Agudath Israel of America said: “We encourage lawmakers, Republican and Democratic, to put a bipartisan stamp on the common-sense policy that is at the heart of this bill: assisting parents to access the learning environment and the educational benefits that are best suited for their children, and that will enhance educational achievement for all of America’s students. We call for its favorable consideration and passage by both House and Senate.”
The bill was also endorsed by the U.S. Conference of Catholic Bishops.
“Like other private schools, religious schools fulfill a critical role in the education of our youth,” said Gene Schaerr, Protect the First general counsel. “Religious schools provide state-mandated instructional material while allowing parents to raise their children in accordance with their faith, a vital component of the free exercise of religion protected by the First Amendment. The Educational Choice for Children Act would provide parents with more educational options that are consistent with their religious beliefs.”
The pandemic and remote learning brought many surprises to Iowa parents. Parents heard lessons plans and language that sounded ideologically tinged. They objected to books for elementary school students that were sexually explicit. But local school administrators and school boards were not responsive to their complaints.
Then parents found an answer. They went to Des Moines and demanded action by state legislators and the governor – and got it – in the form of the Students First Act. This law will provide Iowa families with education savings accounts (ESAs) to put toward private school tuition, tutoring, textbooks, curricular materials, and a variety of other education expenses.
Iowa’s ESAs are funded with a portion of the per-pupil spending. They are worth $7,500 a year, more than enough to cover the average Iowa private elementary school tuition of about $4,500. These ESAs come close to covering the average private high school tuition of $9,200.
Two lessons from Iowa stand out as a model for other states to pursue.
First, enacting school choice takes political savvy. According to Fox News reporting, public schools are big employers in rural areas and their administrators have big sway with their local legislators. To pass the Students First Act, Gov. Kim Reynolds had to aggressively lobby for the bill – even to the point of supporting challengers to recalcitrant incumbents.
The second lesson is that supporting widened school choice is a way for parents to address all the aspects they don’t like about public schools. Iowa’s ESAs will support quality private schools, including religious schools, which uphold state standards in education while offering parents a wider array of choices more consistent with their beliefs. And ESAs will have the added benefit, perhaps, of bringing competition that may instill reforms and improvements to public school education.
Exporting this model would work wonders. Today Iowa, maybe Illinois tomorrow?
Protect The 1st recently reported on a Stanford student who was being investigated for reading Mein Kampf while on campus. Stanford became aware of the situation through its Protected Identity Harm reporting system, a portal for students to report instances of harm done to their person. The Foundation for Individual Rights and Expression (FIRE) has called the system “Orwellian,” arguing that it is used to “pressure students to confess, ‘take accountability,’ and promise to ‘change…’”
Now, a group of professors at Stanford is speaking out, calling for an end to the anonymous reporting system that they say threatens free speech on campus. Although the system has been in place since the summer of 2021, faculty members at the university say they did not know of its existence until the Mein Kampf incident occurred and sparked widespread student outrage.
Russell Berman, a professor of comparative literature, said the system “reminds me of McCarthyism.” Yet the university has said the system is designed to help students get along with one another.
Across the country, about half of all colleges and universities have similar reporting systems. At Stanford, students can report any incident where an individual or group was harmed on the basis of characteristics including race or sexual orientation. These reports trigger an inquiry within 48 hours. While participating in the inquiries are voluntary for students who are targets of a complaint, Juan Santiago, a professor of mechanical engineering, has argued it may not feel that way. He says, “If you’re an 18-year-old freshman and you get contacted by an administrator and told you’ve been accused of some transgression, what are you going to do?”
So far, 77 Stanford faculty members have signed a petition requesting the school investigate free speech and academic freedom on campus and calling for the university to abolish the anonymous reporting system. Protect The 1st applauds these petitioners’ efforts to abolish this Orwellian system.
Professor’s Suit Against UT Austin: University Wanted Police to Watch Out for Speech that Could Reach Politicians
Finance Professor Dr. Richard Lowery is suing the University of Texas at Austin for allegedly threatening to punish him after he criticized the university’s administration. His lawsuit claims that the university threatened to reduce his pay, remove his affiliation with UT's Salem Center for Public Policy, and even his job. (A hat tip to Eugene Volokh for providing the facts of the case).
According to the lawsuit, Lowery was targeted by the university for criticizing the administration's approaches to critical race theory, affirmative action, academic freedom, competence-based performance measures, and the future of capitalism. Lowery is an outspoken commentator on university affairs, publishing articles in The Hill, the Texas Tribune, the Houston Chronicle, and The College Fix.
But after Lowery recently criticized the university’s Diversity, Equity, and Inclusion (DEI) policies, the professor claims the administration "responded with a campaign to silence" him. In the lawsuit, Lowery asserts that a senior UT official attempted to pressure Carlos Carvalho, the Executive Director of the Salem Center, to reprimand him. At first, Carvalho resisted, believing that the First Amendment protected Lowery from punishment. When Carvalho refused, Professor Lillian Mills, Dean of the McCombs School of Business at the university, reportedly threatened to remove Carvalho, saying “I don't need to remind you that you serve at my pleasure.”
The lawsuit also details another incident, where one UT employee requested that the police surveil Lowery’s speech. As the lawsuit states, the university “allowed, or at least did not retract, a UT employee's request that police surveil Lowery's speech, because he might contact politicians or other influential people.”
Why not call out the National Guard?
Lowery has garnered a large public following for his outspoken views on campus affairs, and as one employee wrote, "We are more worried about the people he reaches than him. Some of his supporters are authors, podcasters, and politicians.”
Imagine that! Speech that reaches podcasters and politicians. Is this what constitutes an on-campus conspiracy these days?
The lawsuit contends that the university violated Lowery’s academic freedom by depriving him of his right to critique ideas, policies, hiring, and participate in the academic life of the university. Protect The 1st looks forward to further developments in this case.
In a significant victory for the First Amendment, the U.S. District Court for the Southern District of New York issued a preliminary injunction against a misguided New York law targeting online speech. The lawsuit challenging the law was brought by constitutional law professor and Protect The 1st Senior Legal Advisor Eugene Volokh, and online platforms Rumble and Locals, which filed an amicus brief arguing that the law was unconstitutional. The group was represented by the Foundation for Individual Rights and Expression (FIRE). The court's decision is a clear recognition of the First Amendment and a win for the plaintiffs, who argued the law's vague definition of "hateful" speech would have a chilling effect on First Amendment rights.
The plaintiffs argued that the law, which required the removal of “hateful” posts, violated the First Amendment by imposing a content-based restriction on speech without a compelling government interest. The court noted that the law's definition of "hateful" speech was too broad and could encompass a wide range of protected speech, including political speech and satire.
The court also found that the law's requirement that online platforms remove "hateful" speech within 24 hours of receiving a complaint would be difficult to comply with and could lead to the removal of lawful speech. The court concluded that the plaintiffs were likely to succeed on their First Amendment claim and that the public interest favored an injunction.
"New York's vague and overbroad law sought to stifle robust debate on the internet," said FIRE attorney Daniel Ortner in a press release. "Today's decision is a victory for the First Amendment that should be celebrated by everyone who hopes to see the internet continue as a place where even difficult and contentious issues can be debated and discussed freely."
Observers of the U.S. Supreme Court have long wondered if Justice Clarence Thomas would lead his colleagues to hold internet companies that post users’ content to the same liability standard as a publisher.
In a concurrence last year, Justice Thomas questioned Section 230 – a statute that provides immunity for internet companies that post user content. Justice Thomas noted that the “right to cut off speech lies most powerfully in the hands of private digital platforms. The extent to which that power matters for purposes of the First Amendment and the extent to which that power could lawfully be modified raise interesting and important questions.”
In the case heard today, Gonzalez v. Google, the family of a woman murdered by terrorists in Paris is suing Google not for a direct post, but for a YouTube algorithm that temporarily “recommended” ISIS material after the crime. In oral argument, Justice Thomas posed a more skeptical note.
“If you call information and ask for al-Baghdadi’s number and they give it to you, I don’t see how that’s aiding and abetting,” he said. Justices returned to precedents about lending libraries and bookstores not being held accountable for the content in their books.
Protect The 1st joined with former Sen. Rick Santorum in an amici brief before the Court arguing that Section 230 protections are absolutely needed to sustain a thriving online marketplace of ideas. Social media companies make a good faith effort to screen out dangerous content, but with billions of messages, perfection is impossible.
Google attorney Lisa Blatt brought this point home in a colorful way, noting that a negative ruling would “either force sites to take down any content that was remotely problematic or to allow all content no matter how vile. You’d have ‘The Truman Show’ versus a horror show.”
The tone and direction of today’s oral argument suggests that the Justices appreciate the potential for an opinion that could have negative unforeseen consequences for free speech. Justice Brett M. Kavanaugh added that the court should not “crash the digital economy.”
Protect The 1st looks forward to reading the Court’s opinion and seeing its reasoning.
Can the NFL Horse-Collar Your Speech?
A Phoenix resident struck a victory for the First Amendment in the Maricopa County Superior Court (hat tip to Eugene Volokh for detailing the arguments of this case.)
In October, the Phoenix City Council adopted Resolution 22073 to establish a Special Promotional and Civic Event area in downtown Phoenix in anticipation of events and activities related to Super Bowl LVII. The resolution stipulated that all temporary signs needed to be authorized by the NFL or the Arizona Super Bowl Host Committee.
Bramley Paulin, the owner of two downtown properties, went to court to defend his First Amendment rights. Paulin claimed that Resolution 22073 constituted prior restraint because it prospectively forbade the expression of any message until it could be reviewed and approved by a private third party. That made it a content-based restriction on speech.
The court agreed with Paulin, also stating that Resolution 22073 is doubly unconstitutional: since the resolution provided no standards to guide decision-makers' discretion, the resolution’s delegation of governmental authority was illegitimate. Judge Bradley Astrowsky wrote that his court “finds that handing over power to an unaccountable third party is totally antithetical to the principles of limited government enshrined in Arizona's Constitution.”
Protect The 1st is pleased to see First Amendment rights protected in Arizona. Enabling private third parties to determine what is or isn’t permissible speech, with unaccountable powers granted to them by state authorities, portrays either startling ignorance of the Constitution or contempt for it.
Reading Mein Kampf at Stanford
“Reading is not an end to itself, but a means to an end,” one bestselling author wrote.
We beg to disagree. Reading is often a pleasure that is an end to itself. But in this case, this quote from the author of Mein Kampf makes an excellent point about one book – the author’s book. We’ve read Adolf Hitler’s screed in college as a means to an end, to understand the diseased thinking and rhetoric that led to the world’s biggest war and its most horrific atrocity.
We would point out that Winston Churchill took the trouble to read Mein Kampf, and referred to it often in warning about the gathering storm while others breezily dismissed Hitler’s views as mere prejudices that would fall by the wayside once he was in office.
These thoughts were prompted by a back-and-forth between the Foundation for Individual Rights and Expression (FIRE) and what it called an “Orwellian reporting” system that ensnared a student – a young woman who posted a Snapchat picture of herself reading Mein Kampf with a quizzical expression on her face.
“It is an ambiguous photo, and everyone sees what they want to see,” Rabbi Jessica Kirschner, executive director of Stanford’s Hillel chapter, told Inside Higher Education.
In the ensuing fury, fair points emerged. Jewish students have reason to be sensitive about resurgent antisemitism, as we reported about comments made in a Stanford Diversity Equity and Inclusion program (a gobsmacking irony if ever there was one). On the other hand, FIRE reports that this Stanford student may face questioning as a result of her book-reading being reported to Stanford’s Protected Identity Harm reporting system.
Which brings us back to Rabbi Kirschner’s shrewd observation that the photo could be interpreted in many ways. Was it a juvenile joke? Was it an incitement? Was it a show of appropriate and cautionary skepticism?
Only the woman who posted the picture knows. And we would suggest that instead of spending any more time trying to deduce her thinking, perhaps it should be enough to trust the good heart and mind of a woman who got accepted into Stanford and affirm that good people read bad books for good reasons.
Imagine hearing the news that former presidents George W. Bush and Barack Obama, after serving several years in a minimum-security facility, will soon be released on parole. Both men were convicted of lying: President Bush for asserting that there were weapons of mass destruction in Iraq, President Obama for promising that he would enforce a “red line” with severe consequences if the dictator of Syria used chemical weapons.
Defenders of each continue to stoutly maintain that neither president lied. Rather, President Bush was the victim of bad intelligence as were allies from London to Tel Aviv. President Obama violated his promise to take military action in response to a Syrian chemical attack by picking a flexible diplomatic approach that ultimately led to the removal of 1,300 tons of Syria’s chemical weapons. Nevertheless, the law’s the law. Both men told lies and deserved to go to prison…
The saga of Rep. George Santos (R-NY) is inciting some commentators and a few officeholders to want to criminalize “lying” by politicians. Making such distinctions is not as simple as it seems.
To be sure, Rep. George Santos’ claims to have graduated from schools he never attended are demonstrable lies. But what about common assertions in American political campaigns? Do tax cuts exacerbate the deficit and thereby hurt the economy, or do they stimulate economic growth that eventually curb the deficit? Do tax increases take money out of the productive economy, or do they provide funds for investments in health and education that ultimately spur economic growth?
There are plenty of Republican and Democratic politicians who can argue these cases. Are they liars or politicians with conviction?
Then there are lies that in the judgment of history protected the nation. How do we judge Franklin Delano Roosevelt’s white lies about Lend Lease assistance that kept the United Kingdom from succumbing to Nazi Germany? Or John F. Kennedy’s initial pretense of normalcy at the beginning of the Cuban Missile Crisis?
This issue is about to be tested in court. A 1931 statute in North Carolina prohibits the spread of “derogatory” information about candidates for state office that the speaker knows to be false or which is spoken with “reckless disregard” for its accuracy. It is on this basis that a state prosecutor is investigating North Carolina Attorney General Josh Stein for breaking the law by accusing his Republican opponent of being responsible for a backlog of rape kit testing. The Republican candidate had argued that this resulted from dysfunction with the police, not his office.
Was Stein’s criticism a lie? It is really a matter of perspective.
Imagine putting such a law into the hands of partisans as President Joe Biden and former president Donald Trump eye a bid for the White House. Campaigns would become blizzards of subpoenas and grand juries. Partisans would have the tool to criminalize politics, as it is in many countries from Venezuela to Russia. Besides, if we criminalized lying in politics, how many new prisons would we have to build?
The attempted prosecution of a state official is unlikely to stand. A court is allowing Attorney General Stein to contest the law on First Amendment grounds. Protect The 1st is optimistic that Stein will prevail. In 2012, the U.S. Supreme Court in U.S. v. Alvarez voided the conviction of a minor politician in California who violated the Stolen Valor Act by falsely claiming that he had been a U.S. Marine and had won the Congressional Medal of Honor.
The Court recognized that such lies are eventually revealed. When exposed, such lies bring punishment in the form of widespread public contempt and ridicule, ending political careers – as it surely will for Rep. Santos. The beauty of the First Amendment is that claims and resumes are eventually subjected to the crucible of public inspection.
We should hold to the conviction that, as Shakespeare put it, at length the truth will out.
Florida Gov. Ron DeSantis recently attracted a fusillade of criticism by canceling an Advanced Placement African American studies course for public high school students that he deemed too “woke.” This is just one of many such controversies that erupt when elected officials, from school boards to governors, struggle over curriculum, as well as over library books.
Regardless of personal ideology, the problem with these debates over whether, say, a history curriculum veers into 1619 ideology, or perhaps glosses over the ugly warts in our country’s history is that the average parent will often shrug and justifiably answer, “how would I know?”
For some reason, some of the content taught in schools – material that will literally be read by millions of school children – can be treated like classified information by local school boards. How are common-sense deliberations between school boards and parents going to yield a productive answer unless the actual material can be discussed?
Otherwise, parents are left to react to impressions and rumors.
A minor victory occurred in Forsyth County, Georgia, at the end of January, when a U.S. District Court permanently enjoined the local school district from prohibiting speakers from reading or quoting verbatim from the text of any book or written words available in any Forsyth County library or classroom, while addressing the school board during the public comment period.
The parents’ group, Mamma Bears of Forsyth County, told the court that their lawsuit does not try to “resolve the question of which books should be available in school libraries, but instead, addresses unlawful attempts to sanitize how parents speak about those books in the presence of elected officials and other adults.”
The plaintiffs’ attorneys sought $17.91 in nominal damages – in case anyone on the board needed to be schooled on the passage of the Bill of Rights.
The People’s Republic of China Could Be Influencing Your Kid’s Education—While Stifling Truthful Speech
It may sound like paranoia from the era when conspiracy theorists were worried about fluoride in drinking water and communists under every bed. But it was with good reason that the U.S. House recently voted to establish the Select Committee on the Strategic Competition Between the United States and the Chinese Communist Party, opening a formal process with which to investigate how China is infiltrating our country and, among other things, attempting to stifle public debate about China-related issues. This examination must include K-12 classrooms.
Chinese espionage in the U.S. has grown into a significant problem. The Chinese government directs agents to infiltrate American corporations, pilfer vital research worth billions of dollars, and secret it back to China. Often overlooked, however, is how the PRC maintains a powerful influence network in education, known as Confucius Institutes. According to the National Association of Scholars (NAS), since 2004 the Chinese government has sponsored Confucius Institutes on college and university campuses around the world, providing teachers, textbooks, and operating funds.
What could be wrong with that?
In 2020, the U.S. State Department designated the U.S. headquarters of these institutes “as a foreign mission of the People’s Republic of China.” The State Department noted that a senior Chinese Communist Party official, Li Changchun, has called these institutes “an important part of China’s overseas propaganda setup.” Other officials have said that the design of Confucius Institutes is to counter concerns about China’s threats to Taiwan and activities in Tibet and Xinjiang, the latter the home of the persecuted Uighurs.
The NAS reports that contracts between Confucius Institutes and scholars are often secret, and that universities are presented with financial incentives to toe the party line and avoid sensitive topics such as human rights abuses.
These institutes not only use their soft power to undermine academic integrity, they also import censorship and intimidate dissidents, including such incidents as the vandalization of posters and physical intimidation of a Cornell University student protesting China’s treatment of Uighurs.
The response to the one-sided approach of Confucius Institutes is well underway in higher education. State and federal policies targeted at Confucius Institutes have caused 106 centers across the country to shutter their doors. Only about 15 remain, and some of those are slated for closure.
Few are aware, however, that Confucius Institutes also have an impact on American K-12 schools. The NAS claims that around 500 American K-12 schools have hosted the affiliated Confucius Classrooms. Confucius Classroom teachers are assigned to teach in language immersion programs, where they teach not only language, but also primary subjects of interest to China, including what the State Department calls a “skewed” take on issues.
These Confucius Classrooms continue to operate around the country even while Confucius Institutes close. For that reason, the Departments of Education and State have issued warning notices to school districts with Confucius Classrooms. The NAS has urged the federal government to commission a study on the full extent of Confucius Classrooms around the United States.
Protection of speech requires protection against government-funded institutions that would themselves try to stifle free speech on issues of public interest and replace it with one-sided presentation of official propaganda.
Confucius Institutes have already proven to be a challenge to academic freedom and speech on campus. It is important that the American public receives the full picture of the extent to which the PRC is influencing our educational system, and our democracy.
The media is aflame with stories about the mishandling of classified material by President Joe Biden and former President Donald Trump, with partisans arguing why one or the other is in greater breach of the law. When we look beyond the partisan wrangling, these stories point to the underlying problem of the Espionage Act. Like a deep trawl scraping the ocean floor, the Espionage Act is broad enough to catch almost everything, including the wrong fish.
The Espionage Act is the worst kind of law: as vague as it is broad. It weaponizes the tendency of government to put a “classified” stamp on even anodyne material. “No one is ever punished for overclassifying information, yet plenty of people go to prison for disclosing information to journalists that never should have been classified to begin [with],” Trevor Timm, executive director of the Freedom of the Press Foundation, wrote in The Guardian. “Even efforts to reform the secrecy system end up being classified themselves.”
The Espionage Act, combined with overclassification, are menaces to the First Amendment. They inhibit the ability of Americans to know what our government is up to, and for whistleblowers to expose wrongdoing hidden behind a classified stamp.
President Obama, worried about this tendency of the government to overclassification, in 2009 issued a remedy: Executive Order 13526. This order was meant to stem the tide of classification and prevent government agents from classifying documents “for self-serving reasons or simply to avoid embarrassment.” In the wake of President Obama’s executive order to curb overclassification, the number of U.S. classified government documents rose from almost 55 million to 77.5 million documents in five years. Less than one percent of federal money spent on the classification system is spent on de-classification today.
“Tens or hundreds of millions of documents are classified per year,” Timm wrote. “A tiny fraction will ever see the light of day, despite the fact the vast majority never should have been given the ‘secret’ stamp in the first place.”
Responses to FOIA requests filed by civil liberties organizations reveal that documents are classified when they shouldn’t have been. Documents are classified at the wrong level. Information is classified for a longer duration than necessary. The government is self-forgiving, allowing itself to be free to make these mistakes, but an American accused under the Espionage Act is apt to get rough treatment and a good stretch in a federal prison.
We should remember that the 1917 Espionage Act was the centerpiece of the police state erected by President Woodrow Wilson. Socialist Charles T. Schenck went to prison for violating that law. His crime? He passed out a leaflet opposing America’s military draft during World War One. These outrages against free speech paved the way for the even more draconian anti-speech amendment, the Sedition Act (which, thankfully, Congress repealed).
Justice Oliver Wendell Holmes Jr., writing for the majority in the Schenck case, found an exception to the First Amendment. Speech that “creates a clear and present danger” may be prohibited and speakers prosecuted. The blacking out of a wide swath of government activities from public view, and criminalizing discussion about those activities, remains a disturbing exception to the First Amendment.
Whatever your opinions concerning the current and former presidents, the breadth of this law in enforcing an overclassification system run amok is a sure sign that reform is needed. Perhaps it will take two presidents of both parties getting snared in the Espionage Act’s net to spur Congress to pass limits on the classification system, curb the secret state, and address the judicial test that treats some speech as a “clear and present danger.”
Former U.S. Sen. Rick Santorum and Protect The 1st Tell Supreme Court that Curtailing Section 230 Would Harm Americans’ First Amendment Rights
Former U.S. Senator Rick Santorum today joined with Protect The 1st to urge the U.S. Supreme Court to reject the petitioners’ argument in Gonzalez v. Google that the algorithmic recommendations of internet-based platforms should make them liable for users’ acts.
Santorum and Protect The 1st told the Court that curtailing Section 230 “would cripple the free speech and association that the internet currently fosters.” As a senator, Santorum had cast a vote for Section 230 to send the bill to President Bill Clinton’s desk for signature in 1996.
The Protect The 1st amicus brief informed the Court:
The brief described for the Court the harm to society that would occur if the Court were to disregard Section 230’s inclusion of First Amendment-protected editorial judgments. The brief tells the Court:
And there is no need for the Supreme Court to rewrite Section 230: As amici explained, Congress can choose to amend Section 230 if new challenges necessitate a change in policy. For example, Congress recently eliminated Section 230 immunity when it conflicts with sex trafficking laws, and Congress is currently debating a variety of bills that would address specific concerns about algorithm-based recommendations.
The Protect The 1st’s brief states: “The judiciary is never authorized to interpret statutes more narrowly than Congress wrote them, but it is especially inappropriate to do so when Congress is already considering whether and how to amend its own law.”
This Protect The 1st amicus brief answers the question before the U.S. Supreme Court in Gonzalez v. Google: “Does Section 230(c)(1) of the Communications Decency Act immunize interactive computer services when they make targeted recommendations of information provided by another information content provider?”
Th case pending before the Court centers around the murder of Nohemi Gonzalez, a 23-year-old American who was killed in a terrorist attack in Paris in 2015. A day after this atrocity, the ISIS foreign terrorist organization claimed responsibility by issuing a written statement and releasing a YouTube video that attempted to glorify its actions. Gonzalez’s father sued Google, Twitter, and Facebook, claiming that social media algorithms that suggest content to users based on their viewing history makes these companies complicit in aiding and abetting international terrorism.
No evidence has been presented that these services played an active role in the attack in which Ms. Gonzalez lost her life. A district court granted Google’s motion to dismiss the claim based on Section 230 of the Communications Decency Act, a measure that immunizes social media companies from content posted by users. The U.S. Court of Appeals for the Ninth Circuit affirmed the lower court’s ruling.
The Supreme Court is scheduled to hear oral arguments Feb. 21.
CLICK HERE FOR THE AMICUS BRIEF
Arrest of Wall Street Journal Reporter by Phoenix Police Reveals Arizona’s First Amendment Hang-ups
Last year, Attorney General Merrick Garland announced an investigation into whether the Phoenix Police Department “engages in a pattern or practice of violations of the Constitution or federal law.”
As if to say, “I resemble that remark,” a Phoenix police officer was recently revealed by local TV news as having handcuffed a Wall Street Journal reporter doing man-on-the-street interviews with customers in front of a bank. “No journalist should ever be detained simply for exercising their First Amendment rights,” The Journal reacted to this event in a public statement.
The reporter, Dion Rabouin, was approached by bank executives but was not asked to leave the premises. When confronted by a Phoenix Police officer, Rabouin offered to leave – which was appropriate, given that he was on private property. But Rabouin was handcuffed nevertheless. No less important, a bystander who recorded the incident on a video phone was ordered to stop by the police officer.
“You wanna get arrested as well?” the police officer asked.
There are several important takeaways from this incident. First, the officer had no authority to tell the bystander to quit filming.
Last summer, we reported on Arizona’s space-squeezer law on citizens’ right to record the police. The law was an Arizona statute that allowed police to charge citizens who record them within eight feet, or who don’t stop recording when told to do so by an officer, with a misdemeanor. News organizations protested that this prohibition would easily dragoon protestors and news photographers on the move in an active protest.
But later in the year, a federal judge blocked the law, and the Arizona legislature declined to defend it. The arrest of the reporter that was recorded by the bystander demonstrates the need to respect citizens’ right to record.
Second, this incident is Exhibit A in a pattern identified by the Reporters Committee for Freedom of the Press that there is an “alarming number of incidents we’ve seen over the last several years where police have detained, arrested, or assaulted journalists who were doing their jobs.” Witness the treatment of local Laredo, Texas, news blogger Priscilla Villarreal (aka “La Gordiloca”), who was arrested and humiliated in a police station for “misuse of official information.” Villarreal did beat the rap in court, but she did not beat the ride, enduring jeers and insults as she went through the booking process.
The Freedom of the Press Association recently reported that two North Carolina reporters who were filming an eviction of people from a homeless encampment were arrested after police instructed the crowd to disperse. Police seized one of the reporters’ phone, even though she identified herself as a reporter.
“Regardless of the outcome, the fact that these charges were even filed, let alone brought to trial, is an affront to press freedoms, and everyone involved should be ashamed,” wrote Seth Stern of the Freedom of the Press Association. “The First Amendment requires the government to let reporters gather news firsthand – not rely on self-serving spin from official sources. Courts tolerate restrictions on reporters’ access to public land only in exceptional circumstances, like serious public safety risks, and then restrictions must be narrow enough to avoid unduly interfering with newsgathering.”
In the DOJ’s Arizona investigation, the department says it is interested in investigating the Phoenix PD for violating “conduct protected by the First Amendment.” The Phoenix New Times – a long-time critic and bête noir of the local police – reports that DOJ may be interested in exploring overly aggressive use of rubber bullets and tear-gas against protestors, as well as the alleged targeting of activists for arrest and smearing them as gang members.
These concerns should lead Congress to renew and pass the PRESS Act, which would bar prosecutors, except in exigent circumstances, from requiring the revelation of the notes and sources of journalists in court – as 49 states already do. While this law curbs the actions of prosecutors, not police, and does so in court, not on the streets, the impulse of authorities to suppress the press is the same. So is the need to protect one of the most sacred guarantees of the First Amendment: freedom of the press.