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Free Speech/First Amendment

All articles with the "Free Speech/First Amendment" tag.

Published: Mon, 24 Oct 2016 00:00:00 -0400

Last Build Date: Mon, 24 Oct 2016 14:18:59 -0400


How Heterodox Is Your University?

Mon, 24 Oct 2016 11:40:00 -0400

(image) The folks over at the Heterodox Academy have devised and published a rating of the intellectual diversity and free speech friendliness of 150 of America's more prominent universities and colleges. The goal of the Heterodox Academy group is to find "ways of improving the academy by enhancing viewpoint diversity and the conditions that encourage free inquiry." The founding academicians of the Heterodox Academy all endorse this statement:

"I believe that university life requires that people with diverse viewpoints and perspectives encounter each other in an environment where they feel free to speak up and challenge each other. I am concerned that many academic fields and universities currently lack sufficient viewpoint diversity—particularly political diversity. I will support viewpoint diversity in my academic field, my university, my department, and my classroom."

The group has just published its new Heterodox Academy Guide to Colleges that rates America's top 150 universities (as listed by US News and World Report) ranking them according to their commitment to viewpoint diversity. The rankings are based on four sources including whether they've endorsed the University of Chicago Principles on Free Expression; the Foundation for Individual Rights in Education rating; Intercollegiate Studies Institute's Choosing the Right College Guide; and reports in 2014 of relevant events that suggest support or lack of support for free inquiry on the rated campuses. They assign each criteria a value between 0 to 1 and then multiply the result by 25 to create a "Heterodoxy Score" for each school.

A few highlights are University of Chicago which achieves the highest score (most open to viewpoint diversity) at 93.75 followed by Purdue University at 87.5 points. The lowest scores at 0 points are achieved by University fo Missouri at Columbia and University of Oregon at Eugene. Next tier of intellectually conformists schools with scores of 6.25 is occupied by Rutgers University, Northwestern University, New York University, Harvard University, and Brown University.

I am somewhat happy to report that my alma mater, the University of Virginia is in the tier just below Chicago and Purdue with a score of 62.5 points. Speak up more Wahoos!

I will a bit self-indulgently note that the initiation oath of the Jefferson Literary and Debating Society (founded July 14, 1825) of which I was a proud member reads:

I, ________, a student at the University of Virginia, holding it to be true that opinions springing out of solitary observation and reflection are seldom, in first instance, correct; that the faculties of the mind are excited by collision; that friendships are cemented, errors corrected, and sound principles established by society and intercourse, and especially in a country where all are free to profess and, by argument, maintain their opinions; that the powers of debate should be sedulously cultivated--therefore associate myself with the Jefferson Society at the University of Virginia.


Facebook Employees Wanted Trump Posts Removed as ‘Hate Speech'

Mon, 24 Oct 2016 07:30:00 -0400

(image) Some employees of Facebook argued that the social network company should remove some of Donald Trump's posts because they allegedly violated community standards about hate speech, the Wall Street Journal reported. Facebook CEO Mark Zuckerberg ultimately decided, last December, that such a move would be inappropriate, according to the Journal, which also reported that a number of employees complained about this, with those responsible for censoring content even threatening to quit.

The Journal report, based on anonymous sources, comes on the heels of a purportedly leaked internal Facebook memo from Zuckerberg, defending Peter Thiel's position on the Facebook board from "questions and concerns." Thiel, a Silicon Valley investor has come under fire for being a prominent Trump supporter.

"There are many reasons a person might support Trump that do not involve racism, sexism, xenophobia or accepting sexual assault," Zuckerberg wrote in the post. "It may be because they believe strongly in smaller government, a different tax policy, health care system, religious issues, gun rights or any other issue where he disagrees with Hillary."

"I know there are strong views on the election this year both in the US and around the world," Zuckerberg reminded employees. "We see them play out on Facebook every day."

Zuckerberg continued, explaining how diversity works: "Our community will be stronger for all our differences, not only in areas like race and gender but also in areas like political ideology and religion."

Calls to ban hate speech, from Facebook employees or anyone else, are deeply misguided. Such bans have the opposite of the intended effect, protecting the forbidden speech from critical engagement and giving it a martyr-like status. Unpopular speech is the most important speech to protect, otherwise free speech is an illusion. Facebook, a U.S.-based company that enjoys First Amendment protections, nevertheless regularly block contents around the world—honoring 20,000 such requests from 92 national governments in the first half of 2015 alone.

Earlier this year, Facebook was criticized for perceived political bias when it was revealed that the network's trending topics were curated by human editors, while on Friday Facebook announced it would be loosening its community standards for "items that people find newsworthy, significant, or important to the public interest."

Clinton Is a Threat to the 2nd Amendment—and the 1st

Mon, 24 Oct 2016 00:01:00 -0400

Donald Trump is a clear menace to our democratic form of government, the rule of law and my James Madison bobblehead. The teenage Ted Cruz could recite the entire Constitution from memory. Trump wouldn't know it from Two Corinthians. But it's not exactly safe to entrust your copy of the Constitution to Hillary Clinton, either. You might get it back with some parts missing or mutilated—like the First Amendment and the Second. When it comes to gun rights, Clinton has taken a position appreciably to the left of Barack Obama's. From his first presidential campaign, he has assured gun owners he respects their cherished prerogatives and would never take away their weapons. When the Supreme Court issued its landmark 2008 decision in D.C. v. Heller, he applauded it. "I have always believed that the Second Amendment protects the right of individuals to bear arms," Obama said. Not Clinton. When asked in June whether she endorses that interpretation, she conspicuously declined to do so. "For most of our history, there was a nuanced reading of the Second Amendment, until the decision by the late Justice Scalia," she groused. Asked whether she agrees "that an individual's right to bear arms is a constitutional right," Clinton replied, "If it is a constitutional right, then it, like every other constitutional right, is subject to reasonable regulations." If? In her final debate with Trump, Clinton was asked again about the Heller decision. She reiterated her opposition, insisting that "what the District of Columbia was trying to do was to protect toddlers from guns, and so they wanted people with guns to safely store them." She eventually said, "I also believe there's an individual right to bear arms." So Clinton rejects the Supreme Court decision that established constitutional protection for that right—but now agrees the right has constitutional protection? As former Federal Reserve Chairman Alan Greenspan once said, "If I seem unduly clear to you, you must have misunderstood what I said." She and Obama both favor universal background checks for gun purchases, a ban on "assault weapons" and denying guns to anyone on the federal no-fly list. But her cramped view of the Second Amendment suggests she would favor additional curbs that she knows the Supreme Court would not abide. Clinton seems to think that a new justice or two might set the Second Amendment right. On the First Amendment, however, she sees the Supreme Court as a lost cause. Her target is the 2010 Citizens United decision, which established the right of corporations and labor unions to participate in electioneering. In the debate, she said it "has undermined the election system in our country because of the way it permits dark, unaccountable money to come into our electoral system." But all the decision did was to prevent the government from suppressing speech about political matters. The justices noted that under the law it struck down, it would be a felony for the Sierra Club, within 60 days of a general election, to run an ad urging "the public to disapprove of a Congressman who favors logging in national forests." The court ruled that speech doesn't lose protection merely because it comes from corporations—a category that includes many advocacy groups. Such expression would be censored if Clinton had her way. She proposes a constitutional amendment to overturn the decision—which would alter the Bill of Rights to restrict our freedoms. The idea has drawn opposition from the American Civil Liberties Union, which says, "Our system of free expression is built on the premise that the people get to decide what speech they want to hear; it is not the role of the government to make that decision for them." Her alarms about "dark money"—contributions to politically active groups that don't have to reveal their donors—are misplaced. In the 2014 campaign, 77 percent of political spending was fully disclosed, according to the Center for Responsive Politics, up from 45 percent in 2010. What Clinton omits is that Co[...]

This Racist Student’s Conversion Is the Best Argument Against Safe Space Culture

Fri, 21 Oct 2016 15:03:00 -0400

Derek Black used to be an up-and-coming leader of the white nationalist movement. His father created Stormfront, the online forums for the white nationalist community. His godfather is David Duke. That was then. Black is now a liberal who supports immigration, doesn't believe race should divide people, and admires President Obama. The story of Derek's incredible transformation is many things: a lesson to never give up on people, an affirmation of the power of reason to undermine racism, an inspirational tale of good winning out in the end. But it's also a subtle repudiation of the kind of emotional safe space that liberals want to foist on college campuses. Indeed, if this faction of the left got its way, people like Derek would probably never be allowed on campus in the first place. Derek himself might still be an ardent racist. The Washington Post's story on Black is worth reading in full—it's one of the very best things you'll read this year. To summarize Derek's childhood: His father, Don Black, was a former Ku Klux Klan member who founded Stormfront and kept close ties to David Duke; Duke, in fact, was Derek's godfather and former romantic partner of his mother; Derek spent his teenage years travelling with his father, meeting other white supremacists, giving speeches, and learning web coding so that he could help run Stormfront. Derek was essentially groomed from birth to lead the white nationalist community—a calling he was eager to heed: So many others in white nationalism had come to their conclusions out of anger and fear, but Derek tended to like most people he met, regardless of race. Instead, he sought out logic and science to confirm his worldview, reading studies from conservative think tanks about biological differences between races, IQ disparities and rates of violent crime committed by blacks against whites. He launched a daily radio show to share his views, and Don paid $275 each week to have it broadcast on the AM station in nearby Lake Worth. On the air, Derek helped popularize the idea of a white genocide, that whites were losing their culture and traditions to massive, nonwhite immigration. "If we say it a thousand times—'White genocide! We are losing control of our country!'—politicians are going to start saying it, too," he said. He repeated the idea in interviews, Stormfront posts and during his speech at the conference in Memphis, when he was at his most certain. After high school, Derek decided to enroll in the New College to study history. He decided to keep a low profile: He wouldn't share his views with anyone until after he had made friends. He enjoyed his first semester, and felt like he fit in. But eventually, the campus learned exactly who he was. His friends were shocked. Many people on campus wanted to ostracize him. Others threatened him. But some students had another idea: "Ostracizing Derek won't accomplish anything," one student wrote. "We have a chance to be real activists and actually affect one of the leaders of white supremacy in America. This is not an exaggeration. It would be a victory for civil rights." "Who's clever enough to think of something we can do to change this guy's mind?" One of Derek's acquaintances from that first semester decided he might have an idea. He started reading Stormfront and listening to Derek's radio show. Then, in late September, he sent Derek a text message. "What are you doing Friday night?" he wrote. That friend was Matthew Stevenson, an Orthodox Jew, and his idea was to invite Derek over for weekly Shabbat dinners attended by a small gathering of students. The idea worked: Some members of the Shabbat group gradually began to ask Derek about his views, and he occasionally clarified them in conversations and emails throughout 2011 and 2012. He said he was pro-choice on abortion. He said he was against the death penalty. He said he didn't believe in violence or the KKK or Nazism or even white supremacy, which he insisted was different from white natio[...]

PEN America’s Report on Campus Free Speech Gets the Yale Debacle Really Wrong

Fri, 21 Oct 2016 11:30:00 -0400

Is free speech in a state of crisis on American college campuses? Not quite, says anti-censorship organization PEN America in its recent hundred-page report on the subject. "PEN America's view, as of October 2016, is that while the current controversies merit attention and there have been some troubling incidences of speech curtailed, there is not, as some accounts have suggested, a pervasive 'crisis' for free speech on campus," the authors note. It's a verdict more than a little at odds with the rest of the report, which exhaustively details a number of beyond troubling incidents. As First Amendment lawyer Floyd Abrams told The New York Times, "I find it hard to read [the report's] extraordinarily powerful depiction of things that have happened on campus without concluding there is a crisis of great magnitude." Note that Abrams nevertheless considers the report "a big step forward." I agree. It's an impressive document that emphasizes sensible solutions to the situation on campus. PEN America's criticism of Title IX—and its demand for clarification on the difference between protected speech and illegal sexual harassment—is particularly notable. But the report gets some things wrong, and shows too much deference to anti-speech agitators, on grounds that these students' demands for censorship are actually an exercise in free speech—a point that's not as persuasive as its articulators seem to think. The report ventures into particularly shaky territory for its "case study" of the Nicholas and Erika Christakis incident at Yale University last fall. The case study quotes student-activists, activist-sympathetic writers, and activist-sympathetic administrators, all of whom think the mob that hounded Christakis was merely exercising free speech. While it's true that these students were indeed exercising their free speech rights, the more important question was whether the administration should humor their demands for emotional protection—and, in doing so, deprive other students, faculty members, and the Christakises of their free speech rights. The report quotes Yale Dean Jonathan Holloway as saying: I don't see it as a free speech challenge at all. Erika Christakis had every right to send that email. She had every right to do it. No one said she didn't have a right to do it. Free speech is not going to be free from consequence, so we saw consequence. Students getting upset and demanding her ouster: That is free speech as well. It is free speech to make that demand, yes. But if Yale met that demand—if it fired every professor or administrator who offended anyone—the college would foster an anti-speech campus. The report also describes the incident as "a young woman screaming at a seemingly mild-mannered faculty member in an open square on campus." But that's not completely accurate: as subsequent videos revealed, more than one student lost their cool with Christakis. Neither Holloway nor Yale President Peter Salovey seem to appreciate the censorious nature of their students' demands, which ultimately resulted in the Christakises resigning most of their duties (Nicholas Christakis is still teaching). The report continues: As historian and Yale College dean Jonathan Holloway asked in an interview with PEN America: "Whose speech matters enough to be defended?" At times these controversies have led some groups of students to question the value of free speech itself. Students have asked whether free speech is being wielded as a political weapon to ward off efforts to make the campus more respectful of the rights and perspectives of minorities. They see free speech drawn as a shield to legitimize speech that is discriminatory and offensive. Some have argued that free speech is a prerequisite of the privileged, used to buttress existing hierarchies of wealth and power. Some have gone so far as to justify censorship as the best solution to protect the vulnerable on campus. Indeed, these are all anti-speech argum[...]

Former Heads Say Pimping Charges Motivated by Politics, Not Facts

Thu, 20 Oct 2016 12:52:00 -0400 Chief Executive Carl Ferrer and the classified-ad company's former owners are seeking a dismissal of the pimping and conspiracy charges filed against them in California, which they describe as unconstitutional, unjustified by facts, and a violation of federal communications law, as well as a blatant ploy for publicity from California Attorney General (AG) Kamala Harris. The state "cannot pursue the charges asserted and, in fact, is expressly precluded from doing so under Section 230 of the Communications Decency Act," their attorney, James Grant, wrote in a letter to Harris, who is currently running for U.S. Congress. She can't claim ignorance: three years ago, Harris was one of several state attorneys general who pleaded with Congress to change the law so that they could prosecute Backpage, specifically admitting that, as is, Section 230 "prevents state and local law enforcement" from doing so. Congress said no. "It is troubling that the State is now pursuing a prosecution you admitted you have no authority to bring," Grant wrote. Ferrer and his co-defendants, Michael Lacey and James Larkin, were booked for pimping, pimping a minor, attempted pimping of a minor, and conspiracy, based on the state's contention that they know some of the tens of millions of user-generated posts on are veiled ads for prostitution, sometimes involving teenagers. As evidence of this, the state pointed out that Backpage blocks ads explicitly offering prostitution, states clearly that ads in the "adult" section can only be posted by adults, and promptly removes posts that are reported to advertise sex or underage women. In the topsy-turvy logic of the criminal complaint, the fact that Backpage policies are designed to prevent commercial-sex advertising and the prostitution of minors shows that execs actually condone these things, because said policies encourage posters of illicit sex ads to conceal their true intentions. "The AG's Complaint and theory of prosecution are frankly outrageous," state the defendants in a formal objection to the changes, filed October 19. "The basis for the AG's charges is that third-party users posted ads on, and the AG's office determined by responding to the ads that the users were offering prostitution." In total the complaint mentions nine ads, for which Backpage received $79.60. It does not allege that Ferrer, Lacey, or Larkin knew the ad-posters were discreetly offering sex for cash, knew the ad posters personally at all, had ever seen the ads in question, or had any direct knowledge of these ads. In his letter to the AG, the Backpage attorney notes that a recent federal court ruling against the Sheriff of Cook County, Illinois, "reject[ed] much the same theories that [California] asserts here," and that the U.S. Supreme Court has long recognized that "states cannot punish parties that publish or distribute speech without proving they had knowledge of illegality." In addition, "Section 230 expressly preempts all inconsistent civil and criminal state laws," he notes. "Literally hundreds of cases have applied and underscored the broad immunity that Section 230 provides and that Congress intended so as to avoid government interference— especially by state authorities—that would chill free speech on the Internet." Backpage itself has fought for these rights many times, winning cases in federal courts in New Jersey, Massachusetts, Washington, Tennessee, Illinois, and Missouri. But knowing the law is on their side "was of modest comfort," said Lacey and Larkin, "as we were being booked into the Sacramento County jail and paraded in front of the press in orange jump suits last week on a charge Ms. Harris knew she had no legal authority to bring when she brought it." The former Backpage owners suggested that California's AG knows she won't prevail here but doesn't care because conviction isn't the point. Their arrest in early October genera[...]

Brickbat: Tell Me About It

Thu, 20 Oct 2016 04:00:00 -0400

(image) A three-judge panel of the U.S. 9th Circuit Court of Appeals has upheld a California law that forces religious pregnancy clinics to give women information on how to obtain an abortion. The court ruled that the law does not violate anyone's First Amendment rights.

The Roger Stone Home Stretch of Election 2016

Wed, 19 Oct 2016 14:45:00 -0400

Though he is too "busy" to find it online for me, former Reasoner Michael C. Moynihan had a segment on Vice News last night in which he attended a JFK conspiracy conference and interviewed an attending Roger Stone, author of (among many other curiosities) The Man Who Killed Kennedy: The Case Against LBJ. Of course, Stone is no marginalized questions-asker in Election 2016: He has been among the closest advisers to Donald Trump throughout. (Read Anthony Fisher's mini-interview with sharp-dressed man at the Republican National Convention.) Which makes his frequently suggestive observations that much more newsworthy: At meeting of JFK conspiracy buffs today, Roger Stone says "internal workings" of Media Matters will be "exposed to the public" next week — Michael C Moynihan (@mcmoynihan) October 17, 2016 With Donald Trump's post-Billy Bush pivot to Full Metal Deplorable, it is, I contend, a Roger Stone finish to an already pretty Stonetastic Trump campaign. The second presidential debate was ripped right out of the pages of his most recent book, The Clintons' War on Women, and God only knows what fresh hell awaits us tonight. That, more or less, is the topic of this week's rambling, conspiratorial edition of The Fifth Column, your very favorite weekly libertarian podcast. Mentioned along the way: Jesse Walker on voter fraud, James O'Keefe's latest revelations, Hit & Run commenters, Moynihan's terrible accent, the re-re-re-retaking of Mosul, my secret Al Gore 2000 conspiracy, PEN America's attempt to find a Third Way on campus free speech, Kmele Foster's ongoing 2020 presidential campaign, and so very much more. Take a listen: src="" width="100%" height="100" frameborder="0"> Here are the locations at which you can download, interact with, recommend to your friends about, and write reviews of, The Fifth Column: iTunes, Stitcher, Google Play,, @wethefifth, and Facebook.[...]

California Christians Should Go to Jail Rather Than Post State-Mandated Abortion Signs, Says Focus on the Family Founder James Dobson

Wed, 19 Oct 2016 14:30:00 -0400

Christian leader James Dobson, founder of Focus on the Family, is urging the owners of pro-life pregnancy centers in California to practice civil disobedience in the face of a new rule dubbed "The Reproductive FACT Act" by state legislators. "If California attempts to enforce this law," Dobson said in a Tuesday statement, "then do not comply. Make them put you in jail." The measure requires all licensed pregnancy clinics to post and distribute the following notice: "California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [phone number]." Pregnancy centers that do not offer medical services and are not licenced by the state must post signs announcing that the facility "is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services." A lawsuit challenging the measure on First Amendment grounds was rebuffed by the U.S. Court of Appeals for the 9th Circuit last week, upholding a lower court decision not to halt enforcement of the law. "Christians across America must express their outrage at the Ninth Circuit Court's ruling to uphold California's so called 'Reproductive FACT Act,'" said Dobson. "Since Roe. V. Wade, privately funded crisis pregnancy centers across America have provided a refuge and an alternative to women who might have otherwise chosen abortion. ... This ruling now forces these clinics to violate their sincerely held religious beliefs, and it is an affront to our constitutionally mandated rights to life and to religious freedom." "This decision is further affirmation of the importance of this presidential election," said Dobson. "Hillary Clinton or Donald Trump will be responsible for appointing the replacement of Antonin Scalia, and–in all likelihood–two to three other Supreme Court Justices. That court will eventually decide whether or not this remains the law in California and becomes law across America." Lawyer Ken White, of Popehat, has more about the California law and the court's decision, which is worth reading if you care about why the 9th Circuit decided how it did. A lot of it turned on the level of scrutiny being applied. When a court applies scrutiny, it's holding the government's justification for a challenged law to a standard. How tough the standard is depends on the nature of the law and how the plaintiff says it's defective. In some situations, courts apply strict scrutiny — for instance, laws that punish speech based on its content generally trigger strict scrutiny. If a court applies strict scrutiny, the government must show that the law in question serves a compelling government interest and is narrowly tailored to achieve that interest. Practically speaking, applying strict scrutiny almost always means that the court will strike down the law. In the middle you've got intermediate scrutiny, which requires the government to show that the law promotes an important government interest and is substantially related to that interest. At the low end you've got the "rational basis" test, which almost any law can pass. In this case, the Ninth Circuit decided the compelled speech in question was "professional speech," which triggers intermediate scrutiny. White notes that "content-based speech regulation often—usually—triggers strict scrutiny." But in this case, "the court said that while the law is content-based, it's viewpoint-neutral—that is, it does not discriminate based on one particular opinion or view, and applies to all clinics regardless of how they feel about abortion." "The 'viewpoint neutral' argument seems odd here,[...]

Michael Moore Releasing Trump Film as ‘October Surprise’ Thanks to Citizens United

Tue, 18 Oct 2016 16:45:00 -0400

Director Michael Moore announced last night that he would be releasing a new film, Michael Moore in Trumpland, calling it his "October Surprise" and offering free tickets on a first come, first serve basis for the debut in New York City tonight. The film is about Moore's attempt to put on a one-man show at the Midland Theater in Newark, Ohio and how theater management "prevented him from taking the stage as they deemed him too controversial," according to Deadline. Moore bills the film as one "Ohio Republicans tried to shut down." On September 26, he wrote on Medium for the first time about his "October surprise," revealing the one-man show he was trying to put on a live one man show about "this crazy Presidential race" and film it. He wrote that his plans "got dealt a death blow by the Republicans of Licking County, Ohio," saying his team got a call from theater management that said that "the community board that oversees the theater has voted not to allow Michael Moore to perform his how here" and were declining the rental. Moore claimed that when asked, the theater management told them that Moore's appearance "could reflect negatively" on the theater and cause it to lose long-standing patrons. Moore wrote that the theater management told his team he was "too controversial and the risk is too great." Finally, according to Moore, the theater management told his team that the board was "fairly conservative and it was felt that Mr. Moore would try to sway people's minds to vote his way." "Well, they got that right," Moore wrote. "They aren't stupid. This show, and my plan to release a video of it it [sic] nationwide so it can be seen by millions in the weeks before the election, should definitely 'sway' some people into voting!" He said he took the theater's awareness of the "subversive intent behind this one-man show" as a compliment. The theater's executive director disputes Moore's claims, telling Reason Moore's claims were "unfounded" and that there was "never a community board vote." "The Midland Theatre never reached an agreement to rent the theatre to Michael Moore nor his agency," Nancy Anderson wrote via email. "Unable to resolve a number of details and concerns in a comfortable timeframe, the theatre declined to present Mr. Moore's show. No contract was offered nor agreed upon." "It is disappointing when a singular business decision leads to disrespectful assumptions and public commentary about our entire community," Anderson continued. "We remain focused on supporting the arts and culture in our community and the power they have to transform lives." The theater also disputed the claim back in September, as the state party's communications director pointed out when asked to comment about Moore's claim that they tried to shut down his film, noting this Columbus Dispatch article and saying the party was not previously aware of the situation before Moore's claim. In a Facebook post, the theater blamed concerns about what the production involved, the short timeline and the costs the "free event" factored into their "decline to present." At the time, Anderson also blamed the political climate, telling the Dispatch events in or outside the theater related to Moore's performance "could negatively affect the theater and other Newark businesses and residents, due to the current political climate." While Moore may be more open about the electioneering involved in Michael Moore in Trumpland and the making of the movie, it's nothing new for the politically-minded director, whose films often have an unapologetic political agenda to them. What's new is that Citizens United allows Moore to be honest about it. The film that sparked that landmark First Amendment ruling, Hillary: The Movie, was inspired by Michael Moore's Fahrenheit 9/11, released in the summer of 2004, and the influence [...]

(UPDATED) Democracy Now Host Amy Goodman Faces 'Riot' Charges For Covering North Dakota Pipeline Protests

Mon, 17 Oct 2016 12:29:00 -0400

Does a journalist's point of view make them complicit in any potential crimes they report on? North Dakota State's Attorney Ladd Erickson appears to think so, which is why after dropping criminal trespassing charges against Democracy Now host Amy Goodman, he has upgraded charges against the venerable leftist journalist to the far more serious accusation that Goodman participated in a riot when covering protests against the Dakota Access Pipeline this past September. The protests against the pipeline took a violent turn when private security guards pepper-sprayed demonstrators and unleashed dogs on them. Goodman—who makes no secret that she's in full support of the protests—covered these incidents for Democracy Now. In Erickson's view, that forfeits her First Amendment rights as a journalist. Per the Bismarck Tribune: "She's a protester, basically. Everything she reported on was from the position of justifying the protest actions," said Erickson, adding that her coverage of the Sept. 3 protest did not mention that people trespassed during the incident or the alleged assaults on guards. "Is everybody that's putting out a YouTube video from down there a journalist down there, too?" he asked. If this is all Erickson is going on for charging Goodman, he is demonstrating a frightening misunderstanding of the concept of a free press. One does not require special accreditation from the government, nor a a demonstrated "objectivity," to report on news as it happens. Goodman's case is not the only Dakota pipeline-related arrest making news. Documentary producer Deia Schlosberg—who works with Gasland director Josh Fox—is reportedly facing felony charges for "conspiracy to commit theft of property and services" while she was covering what protesters themselves described as "sabotage" of the pipeline's emergency valves in a coordinated action earlier this month. These protesters freely admit they cut down fences, broke into valve stations, and manually shut down emergency valves. As Vice noted last year, this is a surprisingly easy but potentially dangerous thing to do (especially if caring for the environment is a concern): The momentum of the contents in the line running into a shut valve, especially one shut very quickly, can cause major pressure build-up and that pressure could release in unpredictable ways. Yes, it is within the realm of possibility that something could burst and cause a spill. It's a pipeline, they can and do break. On his Facebook page, Fox wrote that authorities "threw the book at Deia for being a journalist." Fox says she wasn't an active particpant in the protest, but merely covering it. It's unclear at this point what exactly Schlosberg was doing while covering the pipeline sabotage, though if the protest involved breaking and entering, trespassing, and disrupting energy infrastructure, it begs the question of whether or not the First Amendment indemnifies journalists who accompany people engaging in criminal activity. In Goodman's case, however, it's been more than a month since the protests she covered, and Erickson has not publicly released any evidence that Goodman rioted or incited a riot or did anything other than report on the scene. It appears the prosecutor intends to use her publicly stated point of view as evidence against her. If that's all he's got, it's a chilling affront to the concept of a free press and should not be permitted to stand. UPDATE: The Bismarck Tribune reports Judge John Grinsteiner has dismissed all charges against Goodman. Watch Goodman's report that has now led to charges against her below: src="" allowfullscreen="allowfullscreen" width="560" height="340" frameborder="0">[...]

When It Comes to Unauthorized Pawing, Does Trump Have a Reputation to Damage?

Fri, 14 Oct 2016 07:00:00 -0400

Threatening to sue The New York Times for defamation over its story about two women who say Donald Trump kissed or groped them without their consent, the Republican nominee's lawyer, Marc Kasowitz, claimed the report "constitutes libel per se," meaning the allegations are so inherently odious that they can be assumed to damage Trump's reputation. Responding to the lawsuit threat yesterday, a lawyer for the newspaper, David McCraw, said that when it comes to unauthorized pawing of women, Trump has no reputation to damage: The essence of a libel claim, of course, is the protection of one's reputation. Mr. Trump has bragged about his non-consensual sexual touching of women. He has bragged about intruding on beauty pageant contestants in their dressing rooms. He acquiesced to a radio host's request to discuss Mr. Trump's own daughter as a "piece of ass." Multiple women not mentioned in our article have publicly come forward to report on Mr. Trump's unwanted advances. Nothing in our article has had the slightest effect on the reputation that Mr. Trump, through his own words and actions, has already created for himself. It's funny (or sad) because it's true! But I'm not sure it matters as far as libel per se goes. Regardless of what Trump has said or what other women have alleged, if he can show that these particular charges are false (a tall order) and that The New York Times reported them with reckless disregard as to their accuracy (an even taller order), he should not also have to demonstrate that the charges injured him. Accusations of criminal conduct (which would include sexual assault) are presumed to be damaging. So are allegations that someone is professionally incompetent, that he has "a loathsome disease," or that she (but not he!) is unchaste or unfaithful. As applied to Trump, a claim that he is a terrible businessman or that he has syphilis would, if provably false, be libel per se. But a false claim that he committed adultery would not be, meaning he would have to provide additional evidence that the charge hurt his reputation. In that case, the fact that Trump has bragged about committing adultery presumably would be relevant. Since Trump is indisputably a public figure, the main obstacle to his winning a defamation suit is not the question of damages but the "actual malice" standard that applies to cases involving such plaintiffs under New York Times v. Sullivan. To prevail, Trump would have to show the Times either knew its story was false or ran it "with reckless disregard of whether it was true or false." The Times followed responsible reporting practices by seeking to confirm whatever details it could, interviewing sources with whom Trump's two accusers had shared their stories, and giving the candidate an opportunity to respond. In any case, as Gregg Leslie, an attorney with the Reporters Committee for Freedom of the Press, notes in an interview with the Poynter Institute, "doing 'insufficient investigation' is not enough" to be guilty of reckless disregard, which goes beyond mere error or carelessness. The "actual malice" standard, which the Supreme Court has said is required by the First Amendment, is a steep obstacle for plaintiffs like Trump, which is why he wants to "open up our libel laws" (something he would have no power to do as president even if it were constitutional). But as Eric Boehm suggested yesterday, the real point of filing a lawsuit like the one Trump is threatening would not be to recover damages but to inflict pain on his enemies, discourage more accusers from coming forward, and deter negative coverage by media outlets with fewer resources than The New York Times.[...]

CUNY Prof Accused of Sexual Harassment Because His Syllabus Says Effort Is 10% of Grade

Thu, 13 Oct 2016 09:14:00 -0400

(image) A professor at the City University of New York's Brooklyn College was ordered to make changes to his syllabus because it amounted to sexual harassment.

The professor, David Seidemann has refused to comply, and for good reason.

According to Seidemann, a university administrator expressed three grievances about the syllabus. First, and most quizzically, the grading portion of the syllabus suggests sexual harassment. It reads, "Class deportment, effort etc……. 10% (applied only to select students when appropriate)."

That's it. That's sexual harassment, Seidemann's department chair claimed.

Why? No one explained it to him. I gather that the "effort, etc…" was taken the wrong way: a completely unreasonable person could presume Seidemann was suggesting that sexual favors would boost the grades of "select students."

But you would have to be really uncharitable to read it like that. You would have to be looking for a reason to be offended.

Seidemann told me in an email that his department chair said "the 10% section could be construed as a prelude to sexual harassment," and had to be changed at once.

This order apparently came from the Director of Diversity Investigations and Title IX Enforcement. In the course of Seidemann's interactions with the director, he realized something quite stunning: there was no record of anyone actually complaining about the syllabus. The university had apparently launched this investigation on its own.

Seidemann was also initially in trouble for writing in his syllabus, "This classroom is an 'unsafe space' for those uncomfortable with viewpoints with which they may disagree: all constitutionally protected speech is welcome." But the director eventually conceded this was fine.

The bigger issue was triangles. Yes, triangles. Seidemann has a habit of using them instead of quotation marks "when referring to foolish PC terms," he wrote.

"The triangles were the problem," Seidemann said, recalling his department chair's words.

The professor refused to meet with the Director of Diversity Investigations, preferring to talk via email so that the conversation could be documented. This eventually caused the director to abandon the investigation: the matter is now officially closed, according to Seidemann.

The professor is pleased with the result, but little else.

"I got zero information from the college administration about the complaint, investigation, and findings," he said. "CUNY is a First Amendment and due process free zone."

College administrators apparently think Title IX gives them the power to force professors to revise completely harmless provisions in their syllabi.

Kim Kardashian Suing Over Coverage of Paris Robbery

Wed, 12 Oct 2016 14:24:00 -0400

Reality television personality Kim Kardashian was robbed while in Paris for fashion week, with masked armed men allegedly breaking into her hotel room, tying her up, holding her gunpoint, and stealing millions of dollars' worth of her jewels. Because Kardashian is a prominent celebrity on social media, the story went viral pretty quickly, as did conjecture about the robbery, including speculation that she had staged the event. Although there appeared to be no evidence of that, it's not surprising speculation given that much of reality television is staged and most of Kardashian's fans are fans of that format. Now Kardashian has filed a federal lawsuit against, a celebrity gossip site, over three stories it ran about the Paris robbery—including one that reported there was evidence the robbery was staged while likely relying solely on social media speculation and one that reported that unnamed French authorities said Kardashian opened the door for the robbers—and refused to take down and apologize for promptly when Kardashian's attorneys demanded it, as TMZ reports. While the articles still show up in Google's cache, they appear to have been taken down by The article that suggested Kardashian may have staged the robbery included pretty garden-variety conspiracy theorizing. The unbylined post repeatedly qualifies itself by saying she "may" have staged the robbery, and declares that the "evidence" (in scare quotes) was "not making sense" (a pretty subjective statement). "We're not yet ready to say with 100% certainty that Kim FAKED THE ROBBERY," the post ends, "but it's really starting to look that way." On the face of it, the issue seems like a simple First Amendment matter. If the posts did not make any out-and-out knowingly untruthful claims they ought to be protected by the First Amendment. Of course that wasn't the case with Gawker, which was bankrupted by a lawsuit filed by Hulk Hogan after Gawker posted clips of a sex tape featuring the wrestler and reality television personality having sex with the wife of a radio host with whom he often discussed his sex life. Hogan found a friendly venue in Florida, no one particularly liked Gawker, and so the managing editor, Nick Denton, as well as the writer of the post about Hogan were found liable to the tune of hundreds of millions of dollars for, essentially, violating the privacy of a man who has extended a career that should've ended when he stopped wrestling by making his private life very public. Kardashian has done the same thing, sans a wrestling career to get her started. She gained prominence in the public eye after a sex tape featuring her and R&B singer Ray J was leaked, and has stayed in the public eye largely by opening up her private life for general consumption. The speculation and gossip that produces should not be the subject of lawsuits. Donal Trump has similarly used lawsuits and the threat of lawsuits to silence media outlets when he hasn't agree with their reporting of a private life he's placed in the public eye as leverage for more fame. Kardashian's robbery in Paris, incidentally, also yielded a response from the National Rifle Association, which used the incident as an opportunity to point out the holes in Kardashian's pro-gun control position. Guns are heavily regulated in France. Kardashian has armed bodyguards who were not with her when the robbery took place. TMZ reported that after the robbery the Kardashian family spoke with security experts and Kardashian will now travel in an armored car and be accompanied by two bodyguards "armed to the teeth" at all times. reported on that TMZ story, adding that her bodyguards would be carrying fully auto[...]

University of Michigan Will Spend Millions to Monitor Students’ Cultural Sensitivity Progress

Mon, 10 Oct 2016 14:06:00 -0400

The University of Michigan will spend an additional $45 million on new diversity efforts, including a cultural sensitivity training program that will involve the continuous monitoring of students' progress toward greater inclusivity. What little we know about the program is concerning. The ultimate goal is to subject all students to the "Intercultural Development Inventory" or a similar test that assesses cultural sensitivity. Individual students will then be given "learning plans" that are specifically tailored to them, based on how well they did—in other words, students who are judged to be too insensitive might be given more work to do. Later, students will take another assessment to ensure that they are making progress. What is the Intercultural Development Inventory? It's a questionnaire and consultation service. The College Fix's Dave Huber has some experience with this kind of thing: Unfortunately, I encountered that sort of "training" once. Here was a person whose only "experience" was a day or two-long seminar to become a cultural/diversity "facilitator," and she was lecturing yours truly on Hispanic culture … even though I had studied and lived in Latin America for quite some time. To say her lesson was full of laughable stereotypes would be an understatement. It's always a plus to learn more about other cultures. But learning about them is one thing—accepting them as equally valid is quite another. Some people might think—rightly, in my view—that certain post-Enlightenment values of the West are actually morally superior to backward notions about, say, blasphemy, that are still quite popular in the Middle East. In any case, students shouldn't be required to accept the values of other cultures as a precondition of continuing to dwell on campus. Furthermore, the proper place to have conversations about cultural relativity is the classroom: university administrators have no business usurping the faculty and seeking to instruct students as to what they should and should not think. The university will also spend more money researching diversity at UM, form two diversity committees, build a new multicultural center, and train staff. In total, the university will be spending $85 million on diversity efforts over the next five years. Tuition increased 3.9 percent at UM this year, as the Mackinac Center for Public Policy's Derek Draplin noted. There are two great ways to increased actual diversity at the university. One, lower tuition, so that disadvantaged students can actually afford to attend. Two, prioritize the hiring of faculty members who hold a diverse range of views (at most universities, this would mean hiring more conservative and libertarian professors). UM, like so many other institutions, isn't actually committed to increasing diversity. It's committed to spending a lot of money on five-year-plans filled with meaningless buzzwords. And it's committed to contracting, rather than expanding, the range of acceptable opinions on campus.[...]