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Free Speech/First Amendment



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



Published: Fri, 18 Aug 2017 00:00:00 -0400

Last Build Date: Fri, 18 Aug 2017 14:17:15 -0400

 



A 'Broader' Understanding of the First Amendment That Excludes Right-Wing Racists

Fri, 18 Aug 2017 14:05:00 -0400

In the wake of last weekend's violence in Charlottesville, the American Civil Liberties Union is facing a backlash from people dismayed that an organization dedicated to defending freedom of speech thinks that mission includes defending the right of white supremacists to hold a rally in a public park. Some of the ACLU's critics mistakenly claim that "hate speech" is not protected by the First Amendment. K-Sue Park, a critical race studies fellow at UCLA, takes a more nuanced (or maybe just more confusing) position, arguing that the ACLU's reading of the First Amendment is too "narrow," by which she means it is too broad. Writing in The New York Times, Park argues that the ACLU gives short shrift to barriers that prevent people of color from participating in democratic debate even if they theoretically have the right to do so. "The hope is that by successfully defending hate groups, [the ACLU's] legal victories will fortify free-speech rights across the board," writes Park, who worked for the organization as a law student. "While admirable in theory, this approach implies that the country is on a level playing field, that at some point it overcame its history of racial discrimination to achieve a real democracy, the cornerstone of which is freedom of expression." Not so, says Park, since "the power of speech remains proportional to wealth," while "police intimidation of African-Americans and Latinos" persists. Because of "structural discrimination and violence," she says, "the legal gains on which the A.C.L.U. rests its colorblind logic have never secured real freedom or even safety for all." Instead of defending the First Amendment rights of racists and corporations, Park argues, the ACLU should "imagine a holistic picture of how speech rights are under attack right now" and "research how new threats to speech are connected to one another and to right-wing power." One way speech rights are under attack right now (as always) is the argument that they should not apply to disfavored speakers, who from Park's perspective include right-wing racists and people organized as corporations. By asking the ACLU to think about freedom of speech "in a broader context," she is actually asking the ACLU to abandon the principle altogether. The whole point of the principle is that it applies regardless of who you are or what you are saying. If the ACLU gave up its "colorblind logic" and started using racial and ideological filters to pick First Amendment cases, it would no longer be defending freedom of speech; it would be defending the interests of particular social and political groups. Freedom of speech does not require the "level playing field" of Park's dreams. It is obviously true that wealth helps people get their messages across. So do fame, good looks, and verbal felicity. But those advantages do not render freedom of speech a nullity, any more than applying the Fourth Amendment to mansions as well as shacks or guaranteeing due process to rich as well as poor defendants makes those protections meaningless. To the contrary, legally guaranteed rights matter most to people without the social and political connections that might provide protection from official harassment. The right to speak your mind without fear of punishment may not translate into the "real freedom" or "safety for all" that Park wants, but it is still instrinsically and instrumentally valuable, and the strength of that right depends on its consistent application. That is why the ACLU's First Amendment victories do in fact "fortify free-speech rights across the board."[...]



Protect Internet Companies' Freedom to Refuse to Host Racists, or Anyone Else They Don't Like

Fri, 18 Aug 2017 13:30:00 -0400

When I edited a small-town newspaper, I eventually ended up rejecting letters to the editor from an elderly gentleman who had many interesting things to say about the issues of the day. He was, in some ways, a boon to the op-ed page—online commenting has completely demolished the number letters sent to many news outlets. But he was also a bigot, and this became obvious and more overt once Barack Obama was elected president. The final straw was a letter explaining how he could tell walking into a house that black people lived there based on the way the house smelled. I would run no more letters from him. I informed my publisher and he agreed. We deprived him from a platform of communication and we didn't regret it one bit. The impact in this case was small—the growth of the Internet means that there are plenty of other ways to get your message out when the local media tell you no. But that didn't used to be the case. Go back 30 years, and the average American's ability to communicate ideas to the larger public was much more limited. Yet newspaper editors regularly censored or refused to run letters to the editor they felt were in bad taste. There was never any question that newspapers had the authority to make those calls. The First Amendment is very clear here. Now that mass communication has moved online, a whole new crop of companies have the power to decide whether to host controversial content. They don't see themselves as "media outlets." They're just hosts and service providers. Traditionally they have not cared what people are saying. But in the wake of the violence in Charlottesville, Virginia, some of these companies are making the same decisions that old-fashioned media outlets have made in the past. They have decided that they do not want to provide their services to neo-Nazi outlets like The Daily Stormer. Earlier in the week GoDaddy and Google booted the white supremacist site as customers. The CEO of CloudFlare, a service that helps protect sites from cyberattacks, subsequently decided abruptly to dump Daily Stormer as a customer. Now the CEO, Matthew Prince, has some regrets. He's concerned about betraying his neutrality as a service provider, about the potential consequences of taking sides in a highly charged political debate, and about his own power, saying at one point: "Literally, I woke up in a bad mood and decided someone shouldn't be allowed on the Internet. No one should have that power." Fortunately, Prince doesn't actually have that power. CloudFlare is a major player, but it does have competition, and it's competition that should resolve this fear. Going back to the newspaper example: When enough people in a community felt like their local newspaper didn't serve them well enough, it created the environment for rival newspapers to pop up and thrive. The entire alternative newsweekly industry exists because traditional dailies were not meeting a younger, more liberal readership's needs. If Prince were to get so drunk on his power that he starts cutting ties with customers willy-nilly, that wouldn't just be bad for the customers. It would be bad for CloudFlare, because it would lose business to its competitors. There's a subtext to Prince's statements, one that suggests that what he really wants is not to be seen as responsible for controversial corporate decisions. The idea that a handful of companies have complete control over whether or not you can communicate your beliefs online creates a significant tension around the issue of censorship. The Electronic Frontier Foundation (EFF) is worried that careless censorship by companies will bolster the efforts by governments to turn these decisions into demands. It is true that we should be very, very concerned about government censorship. Germany, for example, would be happy to force every online service to reject Daily Stormer as a customer. And if these neo-Nazis had been writing in Germany, cops would have been busting down their doors and arresting them. But a lengthy blog post expressing EFF's concerns hits an od[...]



Popehat: Internet Businesses Rejecting Racists Is an Exercise of Free Speech

Fri, 18 Aug 2017 07:30:00 -0400

There are so very many free speech/First Amendment controversies on in the wake of the Charlottesville unpleasantness, and in the run-up to planned alt-right demonstrations (and counter-demonstrations) that will make headlines the rest of summer. Can lefty politicians pre-emptively ban such demonstrations on grounds of incitement? Does the American Civil Liberties Union, in the words of this memorable New York Times headline, need "to rethink free speech"? Are there culture-of-free-speech concerns when big Internet platforms or service providers jettison neo-Nazi or alt-right customers at moments of heightened scrutiny? And what the hell is going on with the Justice Department's subpoena of information about visitors to anti-Trump websites in the run-up to anti-Trump Inauguration protests? So I put out the Popehat Signal Wednesday while guest-hosting Sirius XM Insight's Stand UP! with Pete Dominick, to gain some clarity from one of the best First Amendment commentators in the biz, lawyer Ken White. We discussed his great Charlottesville piece, "America At The End of All Hypotheticals," chewed on the ethics of outing alt-right demonstrators (he's fine with it as long as you've ID'd the right people), and then pivoted to private-company disassociation from deplorables: Matt Welch: […] What should we think about free-speech implications, if any, of large, broad-based Internet service kind of providers kicking people off for their racisty conduct and life? Ken White: […] [H]ere's where I part company with a lot of other free speech advocates. I think those companies have a right to free speech and free association. If I'm going to go all Romney on you, I'll say corporations are people, too. But instead, I can just say these are businesses run by groups of people, and their free speech desires and free association desires are just as valid as those as the Nazis. If they don't want to host Nazis on their private platforms, then that's a free speech choice. Whether or not I agree with it, it's on a plane with the decisions of the Nazis to be Nazis in the first place. So, this is…a situation where some people are suggesting somehow that Group B should shut up and refrain from speech, refrain from free association, to make Group A more comfortable in its speech. I don't think that's a coherent philosophy. MW: I want to get to a phone call, if you won't mind taking one. […] Reno from Florida: […] I don't know the decision, but I've read that the Supreme Court has ruled that certain types of free speech—i.e. hate speech or certain policies and symbols of those, that type of hate speech—is not protected and is thus…sort of overridden by other people's rights of free association, free speech. So kind of like, someone holds a swastika up in front of me, that swastika is a symbol of a policy of racial cleansing and genocide, etc., etc., [then] it's perfectly within my right to defend myself against those policies. Am I wrong? Or have I heard incorrectly? MW: Reno, you came to the exact right person in the entire United States for that question. Popehat, go ahead. White: Reno, yes, respectfully, it's 100 percent completely, unequivocally wrong. There's no such thing, legally, in America, as hate speech as a distinct legal category that's not protected by the First Amendment. In fact, hate speech clearly is protected by the First Amendment. Sometimes, hate speech might fall into other established categories outside the First Amendment. So, for instance, speech that incites and is intended to incite immediate, serious, lawless action. Like, "Go over there and kill those whatever ... those Jews, those Black people." That can be unprotected. But it's unprotected because it falls into an established category. Those categories are narrow and there are few of them. When you say that if someone holds up a symbol to you, do you have a right to defend yourself, the answer is almost certainly no. So, there's a couple of doctrines where you can defend yourself if you're attack[...]



San Francisco Politicians Want to Quash a Right-Wing 'Freedom Rally'

Thu, 17 Aug 2017 16:17:00 -0400

(image) In the wake of the violence at Virginia's "Unite the Right" rally, San Francisco politicos are trying to quash a coming right-wing rally in their own city.

Figures from current San Francisco mayor Ed Lee to former San Francisco mayor and current U.S. senator Diane Feinstein have demanded that the National Park Service rescind a tentative permit for an August 26 "Freedom Rally." Patriot Prayer, the group organizing the event, hopes to hold it at federally owned Crissy Park.

"In an effort to protect our people from hate speech that can result in violence and actual violence that has been perpetrated by a number of groups," Lee said at a Tuesday press conference, "we have demanded that the National Park Service reevaluate their permit."

London Bree, president of the San Francisco Board of Supervisors, was more emphatic, telling prospective ralliers that "you are not welcome in San Francisco. We will do everything we can to stop you from being in San Francisco."

This is not the first time that Patriot Prayer—a group led by internet provocateur Joey Gibson and based in Vancouver, Washington—has sparked this sort of respons. In May, Portland Mayor Ted Wheeler demanded that the feds pull a permit for a rally the group had scheduled to hold in the city, similarly citing the dangers of "hate speech." The ACLU of Oregon responded with an unequivocal statement: "The government cannot impose permit restrictions or deny a permit simply because it does not like the message of a certain speaker or group."

The ACLU's words were true then, and they remain true now. "Hate speech" is not a legal term, and invoking it does not somehow allow officials to suppress protected First Amendment activity. Patriot Prayer's cast of speakers—which includes Gibson, Kyle "Based Stickman" Chapman, and self-described "trannie for Trump" Amber Gwen Cummings—say repulsive things. But they have every right to express those views in public.

Even more insidious is the notion that holding a rally is in itself an imminent incitement of violence. But House Minority Leader Nancy Pelosi (D-Calif.) endorsed this idea in a statement opposing the event. ("Free speech does not grant the right to yell fire in a crowded theater, incite violence or endanger the public in any venue," she said.)

It is of course true that some violence has broken out at events organized by Patriot Prayer. Three people were arrested in Portland on August 6 after several scuffles broke out at a Patriot Prayer march. But if politicians can invoke the mere possibility of violence as a reason to clamp down on speech they don't like, you can be sure that the alt-right types won't be the only ones suppressed.

The National Park Service seems to grasp this perfectly well, saying in a statement that "our highest priority is to ensure public safety, while honoring our obligation to uphold one of our nation's most cherished Constitutional rights, the First Amendment right to freedom of speech."

A final permit for the rally is still pending, as the National Park Service undergoes a "thorough public safety review."




Reason Foundation Supports Florists, Bakers in Gay Wedding Case Before Supreme Court

Wed, 16 Aug 2017 11:45:00 -0400

Consumer goods like custom floral bouquets and wedding cakes are also acts of expressive artistry protected by the First Amendment. Shops who arrange flowers and bakeries that produce cakes cannot be compelled by law to do so for same-sex weddings if owners have religious objections. That's the argument presented in an amicus brief submitted to the Supreme Court this week by the Reason Foundation (the non-profit think tank that produces this site and publishes Reason magazine), the Cato Institute, and the Individual Rights Foundation. The Supreme Court agreed in June to hear the case of Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission. The case involves a Lakewood, Colorado, bakery whose owner, Jack Phillips, declined to make a wedding cake for a gay couple due to his objections to same-sex marriage. The state ruled Phillips violated the state's public accommodation laws that prohibit discrimination on the basis of sexual orientation. Meanwhile, Baronnelle Stutzman, owner of Arlene's Flowers, in Richland, Washington, has faced similar government sanction for refusing to provide floral arrangements for a same-sex wedding. Stutzman is standing on her religious opposition to same-sex marriage in her petition to the Supreme Court. The Reason Foundation, the Cato Institute, and the Individual Rights Foundation brief encourages the court to consolidate the Stutzman and Masterpiece Bakeshop cases. Considering the cases together would "provide the Court with a more extensive factual record on which to base a decision, as well as help clarify the applicability of the ultimate decision's holding," the brief says. Essentially, they want the Supreme Court to determine whether flower arrangement is also a form of expressive activity and possibly protected free speech. As it stands, the Supreme Court could issue a ruling narrow enough to cover only wedding cakes. The brief presents two arguments to encourage the court to decide on behalf of the bakery and the florist. First, arranging flowers or baking a wedding cake is artistic expression protected by the First Amendment. The brief argues the court has previously held a fairly broad view of what counts as symbolic speech, and floral arrangements and wedding cakes should be included: Art is speech, regardless of whether it actually expresses any important ideas—or even any perceptibly coherent idea at all. Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston—which upheld the right of parade organizers not to allow a gay-rights group to march because they did not want to endorse the its message—even went so far as to say that the paintsplatter art of Jackson Pollock, atonal music of Arnold Schoenberg, and nonsense words of Lewis Carroll's Jabberwocky poem are "unquestionably shielded" by the First Amendment. Second, the brief argues the government is using anti-discrimination laws to compel business owners to participate in same-sex wedding ceremonies, regardless of their religious objections. The lower courts have determined that providing cakes and flower arrangements does not "endorse" same-sex marriage. The brief asks the Supreme Court to reconsider this attitude and argues that these businesses are being ordered to put their stamp of approval on a concept (same-sex marriage) to which they object. The brief uses Wooley v. Maynard, where the Supreme Court previously ordered that New Hampshire couldn't force citizens to display the state's motto on their license plate if they objected to the statement "Live Free or Die": Surely, no observer would have understood the motto—printed by the government on government-provided and government-mandated license plates—as the driver's own words or sentiments. … Yet the Court nonetheless held for the Maynards. … The Court reasoned that a person's "individual freedom of mind" protects her "First Amendment right to avoid becoming the courier" for the communication of speech that she does not wish t[...]



Can a Court Arbitrarily Conclude That 'Security' Overrules the First Amendment?

Mon, 14 Aug 2017 17:25:00 -0400

A 3D printer company founded by provocateur Cody Wilson, along with the Second Amendment Foundation, has filed for certiorari to the U.S. Supreme Court in a case asking that the company be allowed to post on its website instructions for using a 3D printer to manufacture a plastic gun. Defense Distributed and the Foundation sued the State Department and other government persons and agencies back in May 2015 after the government threatened the company in May of 2013 for hosting the 3D gun manufacturing files. The government maintains that such files are essentially armaments in and of themselves and subject to existing laws against the export of such munitions, with posting them in a place where foreigners could access them constituting such an illegal export. The plaintiffs have sustained a series of losses in lower courts attempting to get a preliminary injunction against the government. Their plaintiffs contends the government has violated the company owners' First, Second, and Fifth Amendment rights with its actions. Most specifically in this cert petition they have asked the Supreme Court to answer these questions: 1. Whether a court weighing a preliminary injunction must consider a First Amendment plaintiff's likelihood of success on the merits. 2. Whether it is always in the public interest to follow constitutional requirements. 3. Whether the Arms Export Control Act of 1976....and its implementing International Traffic in Arms Regulations ("ITAR")...may be applied as a prior restraint on public speech. The petition insists that in denying their request for an injunction, the Fifth Circuit Court of Appeals has taken a dangerous stance in balancing the First Amendment against government's insistence that it has very good reason to violate it. It is also worth noting the files in question, although no longer hosted by Defense Distributed, are universally available on the internet from many other sources. Defense Distributed is represented in this case by Alan Gura, who won two previous Second Amendment victories at the Supreme Court in 2008's Heller case and 2010's McDonald. Gura and his co-counsels argue in the petition the Fifth Circuit should not have been allowed to have: simply declared that the government's asserted interests outweighed the interest in securing constitutional rights....considering the merits of preliminary injunction motions is not optional. Of all contexts, the merits cannot be optional in First Amendment cases. It should ordinarily go without saying—and so it must now be said—that federal courts cannot dismiss the Constitution's primacy in our legal system... The government can be relied upon to assert the necessity of every prior restraint. The public must be able to rely on the courts to test these assertions for constitutional compliance. Gura argues the government's rules defining what falls under ITAR are completely ambiguous and confusing. The process for learning whether or not those rules apply to you is a similar mess of ambiguity and overreach. And the government's ability to stonewall drags out cases like that of Defense Distributed for years, Gura writes. The petition also details the history of interpretation of ITAR over the past decades in the (proper) direction of not using it as a prior restraint on expression or speech on American citizens when it involves non-classified information. The Fifth Circuit, in its decision on the appeal of an initial district court loss for Defense Distributed, was pretty blatant in saying the First Amendment doesn't count here because the government says so: Ordinarily, of course, the protection of constitutional rights would be the highest public interest at issue in a case. That is not necessarily true here, however, because the State Department has asserted a very strong public interest in national defense and national security. Gura finds that assertion unsatisfying, leaning on a Fifth Circuit dis[...]



Violent Charlottesville Protester Claims 'Free Speech Does Not Protect Hate Speech'

Mon, 14 Aug 2017 13:50:00 -0400

Yesterday Jason Kessler, who organized the white supremacist rally in Charlottesville, Virginia, that ended in deadly violence on Saturday, tried to hold a press conference at City Hall. As Ron Bailey reported here, the event was shut down by "an angry crowd" that "surged in and grabbed" Kessler. Here is how Jeff Winder, a protester who punched Kessler, justified his violence in an interview with The New York Times: Jason Kessler has been bringing hate to our town for months and has been endangering the lives of people of color and endangering other lives in my community. Free speech does not protect hate speech. Thus we see the logical consequences of the idea that Howard Dean, former chairman of the Democratic National Committee, endorsed last spring by way of explaining why a public university's decision to cancel a speech by conservative commentator Ann Coulter did not raise any constitutional issues. If, as Dean claimed, "hate speech is not protected by the First Amendment," anyone who is deemed to be engaging in it can be censored by the government or even forcibly silenced by concerned citizens. If Kessler has no right to say what he wants to say and his message endangers people's lives, he can hardly expect the police to protect him when someone like Winder takes direct action to neutralize the threat. It cannot be said too often that Winder, like Dean, is simply wrong as a matter of law. In the United States, "hate speech" is not a legally defined or constitutionally relevant category. Time and again, the U.S. Supreme Court has made it clear that even the most repugnant bigotry is protected by the First Amendment. The idea that "the Government has an interest in preventing speech expressing ideas that offend...strikes at the heart of the First Amendment," Justice Samuel Alito noted last January in Matal v. Tam, which overturned the federal ban on registration of disparaging trademarks. "Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate.'" What about the argument, made explicitly by Dean and implicitly by Winder, that hate speech is not protected because it incites violence? The Court has addressed that issue as well. In the 1969 case Brandenburg v. Ohio, the Court rejected criminal charges against a Ku Klux Klan leader, Clarence Brandenburg, who was accused of advocating violence in the service of a political cause and participating in a gathering aimed at promoting "the doctrines of criminal syndicalism." The charges stemmed from a KKK rally that featured weapons, hoods and robes, a cross burning, and racist and anti-Semitic rhetoric. "Personally," Brandenburg said, "I believe the nigger should be returned to Africa, the Jew returned to Israel." He also alluded vaguely to the possibility of violent resistance. "We're not a revengent organization," he said, "but if our president, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken." The Court ruled that such speech is protected by the First Amendment unless it is aimed at inciting "imminent lawless action" and is likely to have that effect. When people like Dean and Winder say that hate speech isn't legally protected, perhaps what they mean is that hate speech shouldn't be legally protected. If so, they should explain how that would work in practice: How would hate speech be defined, and who would define it? As Katherine Mangu-Ward observed this morning, these are not details that can be safely worked out later once we all agree that hate speech does not deserve constitutional protection. Unless we can clearly say what hate speech is and is not, that proposition is not just impractical but incomprehensible. [...]



GoDaddy Dumps Neo-Nazi Website. Hooray for Freedom of Association! (UPDATE: Google Also Declines to Host)

Mon, 14 Aug 2017 13:15:00 -0400

In the wake of the violent confrontations in Charlottesville, Virginia, that culminated in the slaying of Heather Heyer, the massive web host company GoDaddy is telling neo-Nazi site Daily Stormer to go pound sand. In a tweet over the weekend, subsequently confirmed as accurate, GoDaddy told the site to go find a new host for their white nationalist content. A Daily Stormer post about Heyer's death insulted her and said people are "glad she is dead"; the host company ruled that this violated its terms. A spokesman told The Washington Post that the article, coming right on the heels of the protests, could "incite additional violence." GoDaddy has been under pressure to stop hosting sites that spout "hate speech," but it had resisted the idea, citing the First Amendment as a reason to keep hosting racist content. But since GoDaddy is a private company, it doesn't have to use the First Amendment as a guidepost. The First Amendment restricts government censorship, not media or Internet hosting site censorship. Invoking the First Amendment here is a way for the company to establish that it's going to attempt to take all comers and to serve as many people as it can, as long as they're willing to pay. But if GoDaddy does not want to play host to these hateful messages, it's absolutely the company's right to say no. That's what freedom of association is all about. GoDaddy should not have to play host to content it finds offensive or abhorrent. That's one good reason to keep web hosting in the hands of private companies and not turn the internet into a government-managed utility. If, for example, GoDaddy had to operate as though it were a government agency, it might be required to prove that Daily Stormer's piece insulting Heyer meets a legal threshold for incitement. As a private company, GoDaddy can decide for itself what counts as instigation. And if freedom of association is a right for GoDaddy, then it's a right for everybody. GoDaddy shouldn't have to host Nazis. T-shirt companies shouldn't be required by the government to print gay pride messages if they don't approve. Office Depot shouldn't be required to make photocopies of anti-abortion fliers. It's not a perfect solution. In fact, it's a very messy solution, one where people often use social pressure and public outrage as a way to try to influence company behavior. GoDaddy's decision came after people tweeted at them to ask whether they would do anything about the Daily Stormer's postings. At other times people have tried to get other people fired for expressing opinions they don't like, as we saw with Google. It's nevertheless preferable to solutions that involve the government, because once the government is involved, resolving the conflict becomes a matter of using force, not influence and social pressure. Police in the United Kingdom and Germany have responded to hate speech by raiding people's homes and arresting them. That's not a better solution. Not only does this create the extremely obvious problem that a person's speech limits will be determined by whoever is in control of the government (spoiler: It's not you), but it also increases the likelihood that somebody will be injured or killed by police during these interactions. So regardless of whether any particular person agrees that GoDaddy made the right choice to dump these guys, we should support their right to do so. And we should perhaps keep that in mind when other businesses don't want to play a role in producing or carrying messages with which they do not agree. UPDATE: Daily Stormer attempted to move its hosting to Google, but now Google is also rejecting them on the grounds of the site violating their terms of service.[...]



'No Free Speech for Fascists' Is a Truly Terrible Idea

Mon, 14 Aug 2017 07:40:00 -0400

"No Free Speech for Fascists!" It's a motto you see on pre-printed signs at protests, including at yesterday's rallies in reaction to the violence and death in Charlottesville, Virginia, this weekend. Paired with a flood of invective against the American Civil Liberties Union (ACLU) for the group's support of Unite the Right's right to stage a rally at the city's statue of Robert E. Lee in the first place, they make for a troubling trend. Support for the ACLU has been on the uptick from the left of late, thanks to Executive Director Anthony Romero's decisive legal maneuvering and online sass in response to President Donald Trump's misguided attempts to restrict immigration from several Muslim-dominated countries. But perhaps these new supporters didn't fully understood what they were buying into? Sure, they might have heard about the group's commitment to stick up for intersectional Muslim activists. But were they fully aware of the ACLU's long history of litigating in favor of KKK marches and other exercises in speech and assembly by unpopular minorities? (Or that time they defended NAMBLA, even!) Along came the defense of Milo Yiannopoulos (along with several others, including PETA and a women's health clinic) in a suit against Washington's transit system, and some of the Trump-era donors started getting nervous. Then, Charlottesville happened. When people live in low-trust societies—that is, when citizens broadly believe that corruption is rampant and the powerful cannot be relied upon to follow the rules—they paradoxically tend to call for more regulation and other types of government action. That impulse was on full display in the anti-speech reaction to the cold-blooded murder of Heather Heyer. Many observers looked at what happened in Charlottesville and decided that not only were the neo-Nazis, white supremacists, and alt-righters who gathered in Virginia culpable for egging on those who physically lashed out, the legal and political institutions that defended their speech rights were as well. These are not just angry or grieving laymen; Waldo Jaquith, a member of the board of the ACLU of Virginia, resigned after the protest turned violent, characterizing the group's support for the right to gather as "a fig leaf for the Nazis." But if fascists are to lose their free speech rights, someone must take them. And if you believe, as many of the counter-protesters do, that the white nationalists and their brethren were emboldened by the presence of a man in the White House who sees them as part of his coalition, then why on God's good green earth would you want to turn around and hand that very man the right to censor anyone whom he labels fascists? Because I can tell you right now, the list of folks that Trump and the restive-but-still-Republican Congress would like to silence sure won't look like the list those sign-wavers have in mind. The people wielding "No Free Speech for Fascists" placards might as well be holding up signs saying "No Free Speech for Muslims." And in fact, many on the right have been making just that argument against the ACLU for years now, arguing that exceptions to our free speech principles should be made to curtail extreme speech by Muslim religious figures or activists in the name of security, or even (in the stupidest variant of the idea) that the ACLU is part of a radical Islamic conspiracy. But if the justification for restrictions on the speech of one man is violence committed by another, there can be no end to list of people who may be silenced in the name of order. I have my beefs with ACLU too. I wish they'd see the importance of defending free speech even in situations where money is changing hands—to my way of thinking, the group has lately been on the wrong side of a few debates over freedom of conscience and association in the commercial realm. But the ACLU's [...]



Violence in Charlottesville: Hate Speech Is Legal, Assault Is Not

Sat, 12 Aug 2017 14:55:00 -0400

On Friday, a group of tiki torch–wielding white nationalists converged on a statue of Robert E. Lee in Charlottesville, Virginia, waving Confederate flags and chanting. Today that exercise in free speech—for and against the vile, wildly wrongheaded notion that America's greatness is in any way related to the supremacy of the white race—escalated to violence, with numerous scuffles between protesters and counter-protesters, and finally a car plowing through the crowd:

In a time when a surprising number of Americans believe that hate speech is against the law, this is a good moment to remember that while (very nearly) all speech is legal, assault is not. Charlottesville was right to let the protest go on, and local law enforcement is right to take legal action to stop the violence now.

Reason's Ronald Bailey wrote about the fight over Confederate monuments in Charlottesville earlier this year, and will have a dispatch live from the scene shortly.




ACLU Sues D.C. Metro for Rejecting Ads, Including One With Text of the First Amendment

Thu, 10 Aug 2017 16:00:00 -0400

The American Civil Liberties Union (ACLU) is suing the D.C.'s dysfunctional and much-loathed transit authority for rejecting subway ads the government deemed too controversial, including one that contained the text of the First Amendment. The ACLU announced Wednesday that it was filing suit against the Washington Metropolitan Area Transit Authority (WMATA) on behalf of four plaintiffs, including itself, who were denied advertising space by the government agency. The other plaintiffs are People for the Ethical Treatment of Animals (PETA), a local abortion provider, and noted troll Milo Yiannopoulos. (Something for everyone to hate!) All of the groups had ads rejected by Metro for running afoul of its policy against advertisements that are "issues-oriented" or "intended to influence members of the public regarding an issue on which there are varying opinions." Metro rejected several ACLU ads in 2016 and 2017, for example, that displayed the text of the First Amendment in several languages. In Yiannopoulos' case, Metro placed ads for his recent simulacrum of book, but took them down after it received complaints. The ACLU argues the rules are unconstitutionally vague and restrictive, violating the First Amendment. "The four plaintiffs in this case perfectly illustrate the indivisibility of the First Amendment," Lee Rowland, a senior staff attorney with the ACLU, said in a statement. "In its zeal to avoid hosting offensive and hateful speech, the government has eliminated speech that makes us think, including the text of the First Amendment itself. The ACLU could not more strongly disagree with the values that Milo Yiannopoulos espouses, but we can't allow the government to pick and choose which viewpoints are acceptable." Metro adopted those guidelines after anti-Islam activist Pamela Geller attempted to purchase ads on Metro in 2015 that showed a cartoon of the prophet Mohammed. The new rules' results were entirely predictable: Metro employees, tasked with determining what is too controversial for the mores of morning commuters, restricted speech based on undefinable terms and inconsistent guidelines. They err on the side of censorship because their jobs depend on it, and because there's always someone somewhere waiting to be offended. Note that Metro does not consider the ubiquitous ads for Pentagon contractors such as Northrop Grumman and Raytheon to be "issue-oriented," even though they are clearly placed to influence legislators and bureaucrats, because those ads have a profit motive at heart. Apparently the text of the First Amendment is a policy issue on which sides disagree, but an ad for a taxpayer-funded F-35 at the Pentagon Metro stop is just a marketing opportunity. The ACLU's lawsuit is a laudable continuation of the sort of work that defined the organization: fighting for free speech in cases that others lack either the principles or the stomach to stand up for. It's all the more important because there is increasing pressure to abandon free speech as an unfettered good—and the pressure isn't just coming from the outside. One ACLU lawyer, Chase Strangio, released a personal statement on Twitter yesterday explaining why he thinks the ACLU was wrong to defend Yiannopoulos' First Amendment rights. His statement included a curious sentence: "Though his ability to speak is protected by the First Amendment, I don't believe in protecting principle for the sake of principle in all cases." That's a confused way of saying he's unprincipled, since the entire point of principles is they don't change according to circumstance. Fortunately, there is still enough principle left at the ACLU to fight for controversial speech and against dumb government rules.[...]



They Won't Stop at Backpage

Mon, 07 Aug 2017 11:00:00 -0400

Some bipartisan busybodies in the Senate are pushing a bill they claim will take aim at sex trafficking—but as usual, their lofty claims don't square with reality. The "Stop Enabling Sex Traffickers Act" would do nothing to actually stop sexual exploitation, but it will lay waste to the legal framework that supports the internet as we know it. The bill (S. 1693) would amend the Communications Decency Act "to clarify that section 230 of that Act does not prohibit the enforcement against providers and users of interactive computer services" of any federal or state laws—criminal or civil— "relating to sex trafficking." So far, the measure has attracted more than two dozen co-sponsors, including Republican Sens. Ted Cruz (Texas), John McCain (Arizona), and Marco Rubio (Florida) and Democratic Sens. Richard Blumenthal (Connecticut) and Claire McCaskill (Missouri). But it has also earned ample opposition from tech companies, constitutional wonks, web publishing platforms, and sex workers, as I explain in a recent piece at The Daily Beast: Why? According to the '80s anti-pornography crusaders at Morality In Media—recently rechristened the National Center on Sexual Exploitation—it's because Google "supports sex traffickers," as does anyone else opposing the legislation. Of course no one—not me, nor Google (which contributes to and partakes in a slew of anti-trafficking initiatives), nor The Internet Association (a trade group that includes members such as Twitter, Microsoft, AirBNB, Amazon, Yelp, Reddit, and Snapchat), nor the myriad think tanks, lawyers, and tech writers opposed to the bill—is arguing in favor of forced or underage prostitution. No one is arguing that companies have a right to knowingly profit off of sexual exploitation, nor that free speech includes a right to advertise sex trafficking. But we already have a host of remedies (criminal and civil) for punishing such activities. Federal law already bans sex trafficking, conspiracies to commit sex trafficking, and knowingly facilitating it in any way. "The problem today is not a lack of legal remedies but under-enforcement (or slow enforcement) by the U.S. Justice Department," suggested a group of tech scholars this week in a letter to senators. And under-enforcement is a problem the new bill would do nothing to address. Instead, it would actually "discourage online platform operators from policing their sites," by making doing so increase the likelihood of liability, "and generally undermine America's uniquely innovative online ecosystem." The new measure covers much of the same ground as legislation that attracted 98 co-sponsors earlier this year. (Law professor Eric Goldman: "it's pretty clear Congress is on the cusp of gutting Section 230.") It's being sold as a way to hold the classified ad site Backpage "accountable" for its supposed role in facilitating sex trafficking. But as I explain at the Beast, "the underlying reason why no one's been able to pin criminal charges on Backpage isn't a 'loophole' in federal law that lets Backpage knowingly profit from human trafficking but the fact that the evidence doesn't support claims that it does so." And while politicians and activists say that a sex-trafficking exception to Section 230 is a narrowly crafted solution, this falls apart in the face of the way U.S. sex trafficking laws are enforced in practice. Authorities already go after all sorts of consensual adult activity...under the guise of stopping sex trafficking. And Backpage is far from the only site where this sort of activity is advertised and negotiated. As it stands, cops are already chasing down prostitution and sex trafficking cases that originate on Facebook, Snapchat, random dating apps, and more. As web-policy folks note, the new law w[...]



Missouri Attorney General Hawley Files Desperate and Deceptive Motion to Dismiss Backpage Lawsuit

Thu, 03 Aug 2017 14:40:00 -0400

Missouri Attorney General Josh Hawley claimed he has "new evidence" showing that the classifieds site "Backpage has directly and actively promoted illegal sex trafficking." But the only thing new is Hawley's level of desperation and deceit. Hawley, who was elected attorney general last November and has U.S. Senate ambitions, is the latest in a long line of state law-enforcement authorities to seek attention by scapegoating an online ad platform and subjecting it to unconstitutional demands. Craigslist was the test case, but Backpage has become the enduring target of state prosecutors because it hasn't been hesitant to fight back—and in almost all cases, win. Despite the hysterical antics from elected officials, there has never been any evidence that Backpage leaders knowingly promoted forced or underage prostitution, nor that they've behaved in ways that would exclude them from the immunity provided to open publishing platforms under federal law. Among the "new" evidence that Hawley submitted to the U.S. District Court for the Eastern District of Missouri is a January report from the Senate's Permanent Subcommittee on Investigations. Despite the senators having access to all of the internal Backpage data and hosting a theatrical in-person inquiry, they found nothing sufficient to spur a criminal investigation or any charges. Hawley also submitted the transcript of an audio recording seized from Philippines company Avion, in which an Avion employee contacts a London sex worker. Hawley also played the call reporters at a press conference. What does not get so much as a mention in Hawley's motion is that this call and all of the adult-ad generation done for Backpage involved only non-U.S. employees of Avion advertising on non-U.S. platforms. None of it has any bearing on his current case. A state attorney general cannot attempt to prosecute foreign contractors for ads created and posted in foreign countries. And it is legal for Backpage contractors to generate adult ads abroad, where the rules governing web-publishing platforms and legal liability for content vary (and prostitution in certain forms may be legal). Hawley's actions here should be seen for what they are: a sneaky attempt to build credibility in his illegal crusade. Not long after he took office in January 2017, Hawley attempted to compel Backpage to surrender a trove of internal files and information. His order was not part of any criminal investigation but rather a civil investigative demand—a kind of subpoena attorneys general use to investigate potential consumer fraud. In a letter to Backpage CEO Carl Ferrer, Hawley wrote "the Attorney General of the State of Missouri believes it to be in the public interest that an investigation be made to ascertain whether [agents of Backpage.com] have engaged in or are engaging in any merchandising practices declared to be unlawful" under the state's merchandising practices law. Backpage lawyers responded with a motion to block Hawley from enforcing the order and "from further pursuing or threatening other action against Backpage. It was "based on Backpage's statutory immunity from state law claims based on its activities as an online publisher and distributor of third-party content, and on Backpage's constitutional rights under the First, Fourth, and Fifth Amendments." Hawley fired back this week with a motion to dismiss Backpage's suit and a public relations offensive. "I have filed a motion against Backpage.com containing explosive new revelations," the attorney general tweeted from his official account on Tuesday. "My message to Backpage is this: The truth is coming for you," stated Hawley in a press release. "We have evidence including audio recordings, photos and various documents. You ca[...]



Professor Bret Weinstein Files $3.8 Million Claim Against Evergreen State College

Wed, 02 Aug 2017 12:00:00 -0400

Among the many student-led inquisitions that have swept America's college campuses recently, this one from Evergreen State College stands out as especially egregious and ridiculous. The standard elements of these now-typical incidents were all there: outrage over microaggressions, demands for safe spaces, and some students behaving like cartoonish caricatures of social justice activists. Now Bret Weinstein, the professor at the center of this episode, is filing a $3.8 million tort claim against the school on behalf his wife and himself, saying in part that The Evergreen State College (TESC) "consistently has failed to set and enforce necessary boundaries in the workplace on campus, selectively has chosen not to enforce its student Code of Conduct, and sent the unmistakable message that the school will tolerate (and even endorse) egregious violations (and even crimes) purportedly to advance racial social goals, diminishing the collegiate experience for all, and fostering a racially hostile and retaliatory work environment for faculty and staff." If that sounds overblown or exaggerated, it's worth remembering that the local police chief told Weinstein to leave campus because it was not safe for him to remain there. The video evidence of the student mob speaks for itself. I first covered Evergreen for Reason back in early June as the school was still reeling from student protests. Nearly two months later, the school's graduation came and went (albeit off-campus for safety reasons) and the administration is grappling with how to move forward and salvage the school's reputation. The shift in tone from the school's leaders over the course of these two months has been remarkable. Evergereen State President George Bridges initially said that he was "grateful to the courageous students who voiced their concerns." (If by "voiced their concerns" he meant "angrily shouted and took over the school," then that statement might be appropriate). Now Bridges says he is "immensely disappointed" with the student demonstrators and that some may face disciplinary action. This complete reversal almost certainly stems from the massive backlash the school received over its handling of the protests. A Washington state lawmaker proposed defunding the school, and the university's Board of Trustees condemned the behavior of the student mob. It remains to be seen what the long-term effects of the protests or Weinstein's impending lawsuit will have on Evergreen, but the future does not look bright. Even if Weinstein doesn't get the money he's asking for, the school will still endure the cost of all the bad PR. The University of Missouri experienced massive protests in 2015 that ended in the resignation of both the campus chancellor and the university system president over accusations of administrative indifference to racism on campus. Since then, freshman enrollment has fallen by 35 percent and budget cuts have resulted in the elimination of around 400 positions. As I said before in my original article, the Evergreen students who wanted nothing to do with this nonsense in the first place are the ones who truly suffer. For their sake, let's hope the administration can get its act together before the school's reputation as a "Social Justice Warrior PC Indoctrination Compound" is complete. [...]



Trump Throws Trans Troops Under the Bus [Podcast]

Mon, 31 Jul 2017 17:00:00 -0400

On today's podcast, Reason's Nick Gillespie, Katherine Mangu-Ward, Matt Welch, and Andrew Heaton discuss the trans military ban, Trump's management casualties, and free speech on Twitter.

The president is making a lot of noise and staff shuffling, but not much legislative progress. Good news? Yes and no.

"A big upside for [libertarians] is that Trump seems to be not very good at executing these [illiberal] maneuvers," says Mangu-Ward, citing the travel ban. But low trust in government "oddly doesn't seem to lead to calls for less government."

They also discuss whether Twitter is the new battleground for free speech.

And should we add Trump to Mount Rushmore or just blow it up?

Audio production by Ian Keyser.

Subscribe, rate, and review the Reason Podcast at iTunes. Listen at SoundCloud below:

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