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Free Speech/First Amendment

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

Published: Sun, 19 Nov 2017 00:00:00 -0500

Last Build Date: Sun, 19 Nov 2017 16:39:15 -0500


Here’s What Happens When You Accuse Michael Moynihan of Being in Denial About NAMBLA Because Maybe He’s Gay

Fri, 17 Nov 2017 14:17:00 -0500

By every account I've seen, including his own, Robert Mariani got a bum deal from the Daily Caller, the conservative website that relieved Mariani of his opinion-editor duties after he solicited a column from controversialist Milo Yiannopoulos about Kevin Spacey. So we invited the freshly unemployed young man onto The Fifth Column, the weekly podcast (and Sirius XM POTUS program) featuring Kmele Foster, Michael C. Moynihan and myself, to talk about this specific experience, ruminate on the potential pitfalls of skirting up to the acceptability edges of opinion journalism, and reflect on the values (or lack thereof) of publishing Milo and similar outrage-inducers in the first place.

It was on the latter point that things went pear-shaped. Moynihan asked Mariani what useful perspective Yiannopoulos brings, Mariani asserted that it was worthwhile to note that in "the '70s and '80s, there were NAMBLA floats at every single gay-pride parade," Moynihan disputed that assertion with some vigor, and we were off to the races. Here's the whole clip; fireworks are teased near the top, but the exchange really gets started around the 12-minute mark:

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Some related reading:

* Me, on trolls vs. velvet-ropers

* Robby Soave, on Milo's "Sad, Aborted Free Speech Week Disaster at Berkeley"

* Elliot Kaufman, in National Review, on how "Campus Conservatives Gave the Alt-Right a Platform."

And here's Moynihan doing a Vice News piece on the fading provocateur himself:

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The Spurious Move to Stifle Speech on Campus Because it is 'Dehumanizing'

Fri, 17 Nov 2017 12:35:00 -0500

Robert Spencer — the controversial author and founder of the blog Jihad Watch — spoke Tuesday at Stanford University at the invitation of the university's College Republicans. The event proceeded relatively peacefully, with minimal disruption. But there were many who believed Stanford should never have allowed Spencer to speak in the first place, including a group of Stanford faculty and students who published an open letter urging the university to block Spencer's talk. The argument of the letter's authors is that while they "fully support the principle of academic freedom that allows us to disagree about issues," Spencer's views on Islam are "not debatable" because they are "fundamentally dehumanizing." Whenever the claim is made that an identity group is inherently less worthy of full personhood — whether that claim is made about people who are Muslim, Rohingya, Jewish, Black, trans or gender non-conforming, Bosnian, queer, immigrants, Mexican, etc. — it is always unacceptable. This has quickly become one of the most common, insidious, and dangerously slippery-slope arguments against free speech on college campuses and beyond. Let's set aside for a moment that even most truly "dehumanizing" speech is protected by the First Amendment. (Although Stanford is not a public university, California's Leonard Law applies the protections of the First Amendment to non-sectarian private schools.) The reality on campus is that any debate over any controversial issue will, for proponents of this viewpoint, unjustly demean the value of someone's identity. Consider students at the University of Florida who earlier this week vandalized promotional materials for an upcoming pro-life event on campus put on by the university's Young Americans for Freedom. In a Facebook message bragging about the vandalism, one student wrote: "just poured water on your lovely creations that are an insult to my entire major and life experiences!" To others, an opposing view on immigration policy is an attack on the humanity of undocumented immigrants. As NYU professor and provost Ulrich Baer wrote last spring in The New York Times, "[s]ome topics, such as claims that some human beings are by definition inferior to others, or illegal or unworthy of legal standing, are not open to debate because such people cannot debate them on the same terms." Meanwhile, after Laura Kipnis — the feminist Northwestern professor who was twice investigated by Northwestern for Title IX violations over her criticism of campus sexual politics — spoke at Wellesley College, the faculty on the school's Commission for Ethnicity, Race, and Equity issued a statement calling for changes to the outside speaker policy. Speakers like Kipnis, the statement said, require students to "invest time and energy in rebutting the speakers' arguments… in order to affirm their humanity." When Heather Mac Donald, a vocal critic of the Black Lives Matter movement, spoke last spring at Claremont McKenna College, violent protesters attempted to shut down the event, forcing the Manhattan Institute fellow to give her talk via livestream. Three students from nearby Pomona College issued a statement saying "[t]he idea that the search for this truth involves entertaining Heather Mac Donald's hate speech is illogical. If engaged, Heather Mac Donald would not be debating on mere difference of opinion, but the right of Black people to exist." And who can forget the reaction of Yale students to Erika Christakis's thoughtfully worded email, in October of 2015, questioning whether an institution of higher education should police the Halloween costumes of adult college students? Students blasted Christakis and her husband, Nicholas, for failing to create a "safe space" for them, despite their reputations as nurturing residence mentors. In one article describing how her world was "shaken" by Christakis's "offensive" email, a Yale student wrote, "This kind of racism in disguise — where a false debate about 'free speech' is used to question people of color's humanity — n[...]

Should the Government Get to Define ‘Native-American’ Art? One Woman’s Free Speech Fight.

Wed, 15 Nov 2017 15:15:00 -0500

Peggy Fontenot has had a successful career as a Native American artist working in beading, silver jewelry and black-and-white photography. She's won numerous awards at art shows and has shown her work at top-tier museums.

Today her career is in jeopardy because of a 2016 state law that says only members of federally-recognized tribes can market their work as "Native American" or "Indian made." Fontenot is a part of the Patawomeck tribe, which is recognized only in the state of Virginia.

Now she's suing the state on the grounds that the law violates her First Amendment rights. "To call every state-recognized tribe fake and illegitimate is just broad sweeping and wrong," Fontenot told Reason.

Anastasia Boden of the non-profit Pacific Legal Foundation, which is representing Fontenot, says the law is intended to restrict competition. She notes that State Rep. Chuck Hoskin (D), who sponsored the bill, has also served as the chief of staff for the federally-recongized Cherokee Nation. The group "certainly would have an interest in putting a law on the books that says that only federally recognized tribes can call themselves Native American," Boden says. (Rep. Hoskin declined our interview request.)

Rebecca Tushnet, a Harvard law professor, says the Oklahoma law may have been poorly crafted, but was well-intentioned. She says fraud in the Native American art market is big problem.

Oklahoma isn't enforcing the law as the case is being deliberated, allowing Fontenot to continue marketing her work as she always has. A decision is expected by the end of the year.

Produced by Paul Detrick. Shot by Detrick, Alex Manning, Mark McDaniel and Meredith Bragg.

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Supreme Court to Weigh Rules for Anti-Abortion Pregnancy Centers in California

Tue, 14 Nov 2017 11:45:00 -0500

(image) The U.S. Supreme Court has agreed to hear a case involving California's regulations for "crisis pregnancy centers." These generally religious, always anti-abortion centers have come under fire in the past for misrepresenting themselves as comprehensive reproductive health clinics while providing little in the way of medical services. But in trying to stop some centers from fraudulent advertising, the state of California passed legislation that may violate their First Amendment rights.

According to NARAL ProChoice America, California has around 170 crisis pregnancy centers, with around 40 percent licensed as medical clinics.

Under a law that took effect in January 2016, California pregnancy centers are required to disclose whether they are licensed medical providers or merely offer ancillary services (such as counseling or a clothing bank) to pregnant women. That part isn't controversial. But the law also requires crisis pregnancy centers that are licensed health clinics to notify patients about state programs that can help low-income women pay for prenatal care, contraception...and abortions. Clinics that fail to post the required state notice face civil penalties.

Naturally, the anti-abortion crowd running most of California's crisis pregnancy centers doesn't want to be forced to provide pregnant women with this information. In October 2015, two centers—A Woman's Friend Pregnancy Resource Clinic of Marysville, California, and the Crisis Pregnancy Center of Northern California—filed a suit challenging the law.

The groups, represented by the Pacific Justice Institute, claim the law "unconstitutionally compels [crisis pregnancy centers] to speak messages that they have not chosen, with which they do not agree, and that distract, and detract from, the messages they have chosen to speak." In addition, "disseminating the mandated state inconsistent with plaintiffs' religious convictions." The suit says the regulations violate both freedom of religion and freedom of speech.

Since then, several other groups have brought lawsuits challenging the same law. On Monday, the Supreme Court agreed to hear one of these cases (National Institute of Family & Life Advocates v. Becerra).

The Supreme Court's review will focus on whether "the disclosures required by the California Reproductive FACT Act violate the protections set forth in the Free Speech Clause of the First Amendment, applicable to the States through the Fourteenth Amendment." Previously, both the district court and the U.S. Court of Appeals for the 9th Circuit sided against the National Institute of Family & Life Advocates pregnancy center.

Columbia Student Group Thinks Student Groups It Disagrees With Should Be Defunded

Tue, 07 Nov 2017 15:00:00 -0500

The Columbia University chapter of the College Republicans has few friends at the school. The Black Students' Organization (BSO) has no love for the right-leaning group, but rather than agreeing to disagree, the BSO has proposed the Student Governing Board strip them of their funding. In its proposal, filed October 29, the BSO contends the College Republicans shouldn't be recognized as a legitimate organization or receive funding if they invite controversial speakers to campus. Recently, the group invited Tommy Robinson, the founder of the anti-Islam English Defence League, and Mike Cernovich, an alt-right commentator, as part of Free Speech Month. The Student Governing Board (SGB) collects about $250,000 from students and reallocates it annually to student organizations on campus. Last year, the College Republicans received $4,640, according to the university's newspaper, the Columbia Daily Spectator. "We do not support, in any capacity, giving a platform to beliefs that blatantly oppose our livelihood and humanity, and especially not in the name of intellectual diversity," the BSO proposal reads. Robinson attempted to give a speech about mass immigration in Europe via Skype on October 10, but protesters carrying signs that read "hate speech = violence" and "Muslims are welcome here" helped force the event to shut down the speech early. Cernovich spoke on October 30, due in part to a large security presence facing hundreds of student and community protesters marching in the streets. No one was injured, The BSO complained to the Columbia College Student Council (CCSC) and encouraged other student organizations to support its mission to denounce white supremacy by defunding and derecognizing the College Republicans. According to the Spectator, the group also asked that funds for the College Republicans be transferred to groups composed of students of color, LGBT students, and Muslim students, because they are typically targeted by Cernovich and Robinson. "If the word 'white supremacist' can be applied to a person, maybe don't invite them to our campus," Nicole Allicock, the CCSC vice president of policy, said during the meeting. Allicock also suggested the College Republicans submit a list of proposed speakers to the CCSC for approval before they can be invited to speak on campus, per the Spectator report. The Council voted to send a general concern report to the Student Conduct and Community Standards committee, which investigates and resolves cases of "academic, behavioral, and gender-based misconduct." Defunding is a particularly blunt form of censorship attempted on several campuses, including the University of California-San Diego. Wesleyan University's student newspaper, the Wesleyan Argus, nearly lost its funding after running an op-ed critical of the Black Lives Matter movement in September 2015. Foundation for Individual Rights in Education (FIRE) intervened and argued defunding the paper would violate the principles of a free student press. Ultimately, the Wesleyan Student Assembly passed a resolution that salvaged some of the paper's funding. The BSO and the CCSC at Columbia seem similarly interested in allocating funds based on popular opinion. Clearly the opinions of the College Republicans are not in vogue. "When you attempt to intellectualize the fruitfulness of literal hate speech, you dehumanize your peers," according to the BSO proposal. But what if the tides turn on campus and suddenly BSO's viewpoints were considered too dangerous to fund? Censoring College Republicans through the budget sets a dangerous precedent for how the university funds student organizations, several of which are currently led by students who wrongly assume the status quo will never change. This isn't the only reason to reject this proposal. BSO's entire argument is predicated on the idea that speech is violence––a specious concept in its own right. Josh Craddock, the editor-in-chief of the Harvard Journal of Law & Pu[...]

Barrett Brown Is Writing a Book Critical of the Justice Department. They are Making it Hard by Trying to Prevent Him Being Paid His Advance.

Fri, 03 Nov 2017 21:18:00 -0400

Barrett Brown is currently out of prison and on probation after getting an over five year sentence for essentially linking online to hacked documents (and a supposed threat to an FBI agent that resulted during the investigation for the linking). Brown tweeted today that the Department of Justice (DOJ), who are seeking to collect the nearly $900,000 in restitution he was found to owe Stratfor (the company whose hacked docs Brown linked to) is preventing him from getting any future money for a book he is working on for Farrar Straus & Giroux. In an email from Brown's literary agency I've seen, publisher Farrar Straus & Giroux is reported to have said that they have been told by the DOJ to disburse no further money from the book to Brown without the government's permission. The next installment on Brown's advance is due soon, though this demand has not yet technically prevented money from reaching Brown's hands. Brown says his own lawyers have not been able to tell him whether the DOJ has the power to hold such moneys owed him in limbo as long as they want with such a demand. According to Brown, his restitution order mentions he should pay "not less than 10 percent" of his gross monthly income toward that restitution. It simultaneously says that stating such a limit that apparently satisfies his obligation "shall not affect the ability of the United States to immediately collect payment in full through garnishment" and a list of other legal means. At this link, an infuriating phone conversation can be heard between Brown and Emily Shutt with the DOJ out of the Dallas U.S. Attorney's office. She upholds the general principle that they can do whatever they want when it comes to trying to squeeze money out of Brown. That link also contains a copy of an "application for a writ of garnishment" sent to Barrett's literary agency, Writer's House, demanding money from them. That document says, for what it's worth, that the amount Brown has to pay "is limited to the lesser of (i) 25 percent of disposable income for a week; or (ii) the amount by which disposable earnings for a week exceed 30 times the federal minimum hourly wage." (How they calculate how book advance earnings should be measured against "a week" is unclear. Books are written over many months.) Brown thinks it is not at all coincidental that his book is highly critical of the DOJ's actions in prosecuting him. (I reported back in April on how Brown was temporarily taken back into custody for talking to the press without explicit Bureau of Prisons permissions; that post contains a brief assessment with links of his entire tortured legal saga.) Brown figures what makes his case perhaps unique to the DOJ is that in most other cases, the agency "isn't...trying to complicate publication of a major book that will provide new information on criminality from its office," said Brown in an email today. As far as Brown knows, a similar insistence on garnishment or holds on his income has not gone to one of his other sources of income, D Magazine. "If this was really about getting restitution for Stratfor, they would have been put through this same process," Brown suggests. "But D Magazine is run by Wick Allison, the former National Review [publisher] who was the one to pay $10,000 to that NYC firm to get me out when I was arrested in April, so they're probably reluctant to expose themselves to that." This move of the DOJ's indeed might have a chilling effect on his ability to express his criticism of them, he says. "The great majority of my income comes from these staggered advances, and any other income I try to make would result in further subpoenas and writes of garnishment for whatever outlet I write for," he says. "Even if I got a job at a burger joint, that money would likewise be denied to me indefinitely via this same process. I'll be out of money in a month. It's difficult to write a book under those circumstances, and it's difficult to [...]

Students Against Free Speech, Political Correctness Run Amok, and Other Findings from Cato's New Survey

Fri, 03 Nov 2017 14:51:00 -0400

About half of the country's college students (51 percent) believe disrespectful people should be stripped of their free speech rights, while 55 percent of Americans overall think the opposite—that people are entitled to free speech regardless. That's according to the Cato Institute's new, massive survey of American opinions on free speech. The poll contains plenty of useful information, but I was particularly struck by the stances taken by college students. The results support the idea that civil libertarians should be concerned about the views of young people. Cato found strong support for keeping hate speech legal among Americans with a college education: 64 percent said the government should not restrict hate speech. But current students were evenly split on the same question. And Americans under the age of 30 were the most likely demographic to say that hate speech is equivalent to violence: 60 percent believed this, compared with 57 percent of senior citizens and just 49 percent of middle-aged Americans. Students seem to be getting exactly what they want out of college, and what they want is more suppression of offensive speech. Just 30 percent of students oppose bias reporting systems, compared with a majority (though a narrow one: 51 percent) of all Americans. Students were also more likely than Americans overall to think university administrators should oppose offensive Halloween costumes. Here are five other interesting findings: There is widespread agreement that political correctness has gone too far. The idea that America has become too politically correct is one of President Donald Trump's talking points, but even about half of Democrats think P.C. is "a big problem." Ninety percent of Republicans and 78 percent of independents agree. Most Americans avoid saying what they really think because other people might find it offensive. Democrats and Republicans are both intolerant, but in different ways. Conservatives often castigate liberals—especially young liberals—as delicate snowflakes who are easily offended. The college outrage beat provides plenty of support for this view, since students all over the country are frequently involved in efforts to derail conversations that make them uncomfortable. But as Sarah Ruger argued in a recent Inside Higher Ed piece, conservatives are also keen to shut down offensive speech, a version of political correctness that Cato's Alex Nowrasteh has called "patriotic correctness." Cato's data provide plenty of evidence of this. Republicans are wildly in favor of National Football League teams firing players who refuse to stand for the national anthem (65 percent). Similarly, 54 percent of Republicans think a business executive should lose his job if he burns the American flag. Majorities of Democrats disagreed with both of these positions; instead, 58 percent of Democrats said employers should fire employees who make insensitive comments on Facebook. People of color think free speech hurts them and helps their enemies. People of color are more inclined to say there should be formal consequences for hateful or offensive speech. One likely reason for that: Black and Hispanic Americans are much more likely than white Americans to believe "free speech does more to protect majority opinions, not minority opinions." Most Black Americans (59 percent) and nearly half of Hispanics (49 percent) agreed with this statement, whereas only 34 percent of white Americans did. In other words, they think that "free speech" just means defending Milo Yiannopoulos's rights. This suggests to me that civil libertarians should do more to highlight the far-from-rare cases where the censored party belongs to a racial or ethnic minority. Microaggression theory is really stupid. Cato listed a number of popular examples of microaggressions and asked people of color whether they were offended by them. In most cases, the resounding answer wa[...]

The Never-Ending Search for Foreign Subversives

Thu, 02 Nov 2017 14:45:00 -0400

Four days after Donald Trump was elected president, thousands of people turned out for an anti-Trump march in New York City. That in itself isn't so surprising: There were a ton of anti-Trump protests last November, and New York hosted a bunch of them. But this one, BuzzFeed reports, had been called by BlackMatters, a "Russia-linked" group, and therefore it feeds easily into a broader narrative about alien forces subverting American politics. If this protest was indeed arranged by Russian agents, that's a notable story. But that broader narrative is overblown and dangerous—a paranoid tale that scapegoats Russia for America's domestic divisions, and that is already being used to call for curbs on speech. Two things are striking about this New York protest. The first is that it was directed against Donald Trump. That undercuts the notion, popular in some circles, that Trump and Putin are joined at the hip; it supports the idea, popular in other circles, that Moscow is less interested in backing any particular American faction than in accentuating America's divisions in general. (Whether it actually is accentuating those divisions is a separate question, which we'll get to below.) The other striking thing about the march is that it wasn't a flop. The last time I wrote about one of these "Russia-linked" protests, the event drew approximately four people. Other demonstrations have been either equally miniscule or just slightly larger; there's no sign that they were any bigger than the protests organized by homegrown supporters of the same causes. (Impressed that a "few dozen" people may have gone to a Russia-linked rally for Texas secession? Lone Star separatists were able to attract a "few hundred" to an event in the '90s, when Moscow was Washington's pal and presumably wasn't promoting Texit.) So getting thousands to show up at an anti-Trump protest is far better than these troll accounts usually did. But note how they did it: They scheduled it amid a bunch of other protests for the same cause. On top of that, they did it under a name—"BlackMatters"—that's easy to mistake for the name of another group. So a cheap Russian knockoff of Black Lives Matter was able to draw people to a cheap Russian knockoff of an anti-Trump protest, held a month the same city was seeing copious anti-Trump protest anyway. This is what "success" looked like: not opening or even widening a division in American society, but camouflaging yourself as a cause that people already supported. They found a crowd and rushed to stand in front of it. It is certainly possible that we'll later learn Moscow was able to exploit this rally in some unsavory way. (For all I know it was filled with spies trying to recruit sources—though of course, they could do that at any other rally too.) But based on what we know now, this doesn't look like successful subversion; it looks like successful mimicry. Yet so many reactions to stories like this reverse cause and effect, blaming Russia for tensions that in fact grew organically in the United States. The more careful pundits will throw in a to-be-sure statement mentioning that Americans were already fighting each other before any foreign trolls came along, but they'll still insinuate that anyone who dissents from the centrist consensus is a Kremlin dupe. Here's Tim Morris of the New Orleans Times-Picayune, for example: If Russia's objective was to sow discord, doubt, and disruption into the 2016 U.S. elections, undermine our democratic system, and inflame political differences, you really have to hand it to them. Mission accomplished.... Not that the Russians should get all the credit, of course. Americans have been doing our part with gerrymandered political districts, polarized media, and confirmation bias biospheres. All the Russians had to do was to direct a few robots and release a few trolls into our social media air d[...]

Social Media Executives Echo Politicians' Hysteria About 'Russian Disinformation'

Wed, 01 Nov 2017 14:05:00 -0400

Yesterday representatives of Facebook, Google, and Twitter testified before a Senate subcommittee about online "Russian disinformation," sounding a note of alarm that echoed legislators' concerns and therefore grossly exaggerated the threat. "When it comes to the 2016 election," said Facebook General Counsel Colin Stretch, "the foreign interference we saw is reprehensible and outrageous and opened a new battleground for our company, our industry, and our society. That foreign actors, hiding behind fake accounts, abused our platform and other internet services to try to sow division and discord—and to try to undermine our election process—is an assault on democracy, and it violates all of our values." The idea that Russian ads on Facebook, Russian tweets on Twitter, and Russian videos on YouTube "undermine our election process" and constitute "an assault on democracy" (let alone that such propaganda "violates all of our values") is hard to take seriously given what we know about the nature and scale of this operation. Social media platforms have every right to insist that users follow their terms of service, which in Facebook's case ban phony source descriptions (falsely identifying a Russian's posts as an American's, for example). But the expectation that Facebook, Twitter, and Google will police political discourse to minimize "Russian influence" is not just impractical but, if backed by the threat of legislation, contrary to the First Amendment. It is important to keep in mind that we are not talking about direct interference with the election process (by hacking computers that tally votes, say). We are talking about efforts to persuade people—or, as seems to have been more common, reinforce their pre-existing opinions—through words and images. Although some of these messages can fairly be described as "disinformation" (such as a fake letter posted on Twitter supposedly documenting a $150 million contribution to Hillary Clinton's campaign by the conservative Bradley Foundation), some (such as reports about police shootings) were entirely accurate, while others were expressions of opinion on subjects such as racism, LGBT issues, immigration, and gun rights. Except for the fact that the messages appear to have been sponsored by the Russian government, there was nothing especially sinister or insidious about them. Cases of broken English and awkward phrasing aside, they were indistinguishable from the mixture of facts, lies, and blather that constitutes good, old-fashioned, American-produced political discourse. So when The New York Times reports that Russian-sponsored "political ads and other content" (including videos from the government-sponsored news outlet RT) "were meant to sow discord or chaos," it is either being hysterical or ascribing absurdly unrealistic ambitions to the Russian government. Our social and political order is not one viral video or inflammatory tweet away from catastrophic collapse. Russian participation in the online U.S. political debate looks even less scary when you consider how tiny its footprint seems to be. On Monday a Times headline proclaimed that "Russian Influence Reached 126 Million Through Facebook Alone," which sounds impressive unless you realize that an ad can "reach" people without being noticed or read, let alone persuading anyone. What the headline really meant, as the Times explained in its report on yesterday's hearing, is that "more than 126 million users potentially saw inflammatory political ads bought by a Kremlin-linked company, the Internet Research Agency." Yes, and since the post you are reading is available on the internet, it could potentially be seen by 3.6 billion people. No doubt Vladimir Putin would love to determine the outcome of presidential elections by spending $100,000 on Facebook ads. It is far less clear that he (or anyone else) ha[...]

Can You Go to Jail for Handing Out Pamphlets?

Wed, 01 Nov 2017 12:00:00 -0400

A pamphlet from the Fully Informed Jury Association (FIJA) argues that jurors have a right and a responsibility to judge the law as well as the facts, which might lead them to acquit a technically guilty defendant in the interest of justice. Although that position is controversial, especially among judges and prosecutors, the pamphlet is indisputably a form of speech protected by the First Amendment—unless you try to distribute it in front of a courthouse.

Or so say prosecutors in Mecosta County, Michigan. Last summer they persuaded a jury to convict local activist Keith Wood, who was arrested in 2015 for handing out FIJA flyers near the county courthouse, of a misdemeanor. District Judge Kimberly Booher sentenced him to eight weekends in jail, $545 in fines, 120 hours of community service, and six months of probation.

The law under which Wood was convicted applies to "a person who willfully attempts to influence the decision of a juror in any case by argument or persuasion, other than as part of the proceedings in open court in the trial of the case." Wood, who is free while he appeals his conviction, argues that there was no decision to influence. The only case pending at the courthouse on the day he distributed the flyers involved a man accused of illegally filling a wetland on his own property, and it was settled by a guilty plea.

Wood's lawyer, David Kallman, also argues that none of the passers-by who received pamphlets qualified as a juror. "We argued, and the Michigan Supreme Court has agreed in earlier case precedent, that a person is not a juror until sworn in to serve on a jury in a case," he says. Since no jury was ever chosen in the wetland case, Kallman argues, there were no jurors to persuade.

During his trial, Wood testified that he had ordered the FIJA flyers after taking an interest in that case. But Kallman emphasized that Wood never discussed the case with the people who took pamphlets, which contained only general information about juror rights.

"By prosecuting Mr. Wood," Kallman said in a 2015 motion, "the State is engaged in nothing less than tyranny and oppression. Few legal principles are more clear than the one stating that 'handing out leaflets in the advocacy of a politically controversial viewpoint…is the essence of First Amendment expression.'" After refusing to dismiss the charge against Wood, Judge Booher told Kallman he could not mention the First Amendment during the trial.

Cleveland State Debates Free Speech Boundaries of Poster Promoting LGBTQ Suicide

Thu, 26 Oct 2017 15:00:00 -0400

University Officials Face Backlash for Defending Free Speech in Wake of Anti-LGBTQ Poster Students and alumni are condemning Cleveland State University President Ronald Berkman for pledging to uphold the First Amendment over a poster urging LGBTQ people to commit suicide. Students found the poster of a silhouette hanging from a noose beneath the headline, "Follow Your Fellow Faggots," in the main campus building on Oct. 12, the same day as the school's new LGBTQ center opened. The phrase "Fascist Solutions" appears at the bottom of the poster, but no one has come forward to claim responsibility for posting it. Berkman initially released a statement, "CSU remains fully committed to a campus community that respects all individuals, regardless of age, race, color, religion, national origin, sexual orientation and other historical bases for discrimination. We will continue to protect free speech to ensure all voices may be heard and to promote a civil discourse where educational growth is the desired result." Berkman's response infuriated people on and off campus who felt the president's words were lackluster and insensitive, exacerbated by a university spokesman who said the poster was taken down, not because of its contents, but because it violated the university's procedures for posting fliers. After campus protests and a town hall meeting, Berkman apologized for his initial response and released a new statement on Twitter. "I wanted to acknowledge that yesterday I failed to express my personal outrage over a recent incident involving an anti-LGBTQ+ poster that was recently posted on campus," Berkman explained. "While I find the message of this poster reprehensible, the current legal framework regarding free speech makes it difficult to prevent these messages from being disseminated." Some students vigorously disagree. "People are free to believe whatever they want, but free speech doesn't protect incitements to violence," Peter Sherman, a CSU theater major told Associated Press. "Asking people to commit suicide is an incitement to violence." However, Mike Brickner, policy director at the Ohio chapter of the American Civil Liberties Union, said since the flyer doesn't target specific individuals it should be considered protected speech, according to AP. The CSU poster calls to mind the recent conviction of Michelle Carter, a Massachusetts woman who was found guilty of involuntary manslaughter after urging her longtime boyfriend, in a series of text messages, to commit suicide. "That has opened up a dangerous concept," Brickner said of the Carter case. "We start to walk down the path of criminalizing speech in that way. It's a question courts may continue to grapple with." Carter's sentence of two and a half years in jail angered some who felt she deserved a harsher sentence and others who felt she should never have been convicted in the first place. Reason's own Robby Soave called Carter's conviction into question in an op-ed for the New York Times, arguing that speech—even deplorable speech—is not violence. Advocating suicide is morally reprehensible but its legality is murky. "While the Supreme Court has carved out narrowly tailored exceptions for literal threats of violence and incitement to lawless action, telling someone they should kill themselves is not the same as holding a gun to their head and pulling the trigger," Soave argued. The anti-LGBTQ poster at CSU is hateful, but the ACLU and CSU officials are correct in asserting the First Amendment protects such speech. Berkman was right to stick up for free speech in the face of hate, even if his original statement was clumsy. It is heartening to see a university support free speech while so many cave to demands of censorship and political correctness. Defending free speech is a difficult and [...]

Bias Response Teams Thwarted in Their Goal of a Sensitive Campus by the First Amendment

Mon, 23 Oct 2017 17:00:00 -0400

The Journal of Student Affairs Research and Practice released a first-of-its kind study on bias response teams, a relatively new invention in the ever-expanding world of college free speech management. Interviews with administrators who police and discipline students who have used insensitive language or display insensitive attitudes reveal their frustration with the free speech guarantees that prevent them from punishing students. The First Amendment, some of them say, constrains them from creating sensitive, inclusive communities. The study is strangely hand-waving and feel-good, concluding, with little evidence, that bias response teams "created a safer, more welcoming campus community." And it fails to fully address the cost at which all this inclusivity comes. Just one administrator questioned the growing prevalence of administrative speech-policing and its hindrance of discourse and debate of controversial issues––seemingly the point of a college education. Researcher Ryan Miller, of the University of North Carolina at Charlotte, and his team dissected how administrators combat bias while still respecting free speech rights. They conducted interviews––of 21 administrators at 19 predominately white universities––focused on answering one fundamental question: "How do bias response team members understand their roles concerning free speech?" The team defined bias incidents "as conduct, speech, and expression that are motivated by prejudice but which "do not involve criminal conduct such as assault, threats, or property damage." These could include insensitive jokes, slurs written in common areas, unsavory themes for parties, or phrases like "that's so gay," according to the study. Kelly, an administrator from a midwestern public university, said in her interview, "Of course, the university has an interest in upholding individual rights. But when the exercise of individual rights becomes reckless and irresponsible, and inconsistent with our community culture, our mission, our values—that's when a bias incident response team can be most effective." John, another public university administrator, defined the team's role as a mechanism "to respond and to restore or push back against whatever threat that might pose to an inclusive campus environment." These administrators seemed to understand they're restrained from cracking down of free speech, especially on public campuses. One administrator, Jennifer, said, "We can't have [offensive groups] removed...How can we be proactive knowing that these groups will come? What kind of support can we give to the students that are triggered when they see these folks and being mindful of that?" Lisa, from a public university in the northeast, expressed frustration at not being able to respond to hateful incidents because "our hands were tied because of the freedom of speech." Susan, works for a public university, said, "Much of the criticism that we get is the distinction that we make at the university between free speech and hate speech. Hate speech we don't allow, but free speech we do. That's an ongoing, everyday battle for us." This bias response team member apparently doesn't realize there is no distinction because hate speech is protected under the First Amendment, and not even a legal category. Administrators rightfully distinguished between forums––if a professor, for example, whose bias against a viewpoint or identity hinders someone's ability to speak up or learn, there is a legitimate problem. They also recognized differences between public and private colleges, and the role that distinction plays in informing their approach. The administrators also touched on "teachable moments," situations in which they couldn't formally punish students, but were able to corre[...]

Columbia Law Professor: Letting a Right-Wing Activist Speak Is 'An Act of Violence'

Mon, 23 Oct 2017 14:42:00 -0400

Kayum Ahmed, an adjunct faculty member at Columbia's Law School, helped students prevent a controversial right-wing speaker from giving a talk (via Skype) on campus. He also preemptively filed a discrimination complaint because the speech in question "constitutes an act of violence" and "is a form of harassment and discrimination." Ahmed claimed in the Columbia Daily Spectator that he is under investigation for his role in disrupting the College Republicans' event on October 10, which involved a presentation by Tommy Robinson. Robinson is a far-right European anti-Islamic activist who is legally barred from entering the U.S., which is why he was scheduled to speak via Skype. The speech didn't happen: Protesters shouted him down, making it impossible for the Columbia audience to hear him, according to Campus Reform's Toni Airaksinen. Ahmed has defended his actions on the grounds that allowing someone like Robinson to speak is dangerous, and that hate speech does not deserve robust First Amendment protection: As one of the protesters who stood with a placard in the front of the room where Robinson's image was projected onto a screen, I was not only exercising my right to free speech, I was defending my right to exist and to be recognized as human. Prior to Robinson's talk, I filed a formal complaint of discrimination and harassment with Columbia University's Office of Equal Opportunity and Affirmative Action, arguing that "Mr. Robinson's invitation to speak on campus not only violates my dignity but constitutes an act of violence, [and] is a form of harassment and discrimination. While I recognize Mr. Robinson's right to free speech, his presence on campus (albeit via Skype) is a threat to my safety and security since his speech may encourage fellow students to act in a violent way toward me." During my engagement with the EOAA, it became apparent that Columbia adopts a narrow conception of free speech that ignores the violent physicality of hate speech: Lips move, sound travels, and words penetrate. And sometimes, these words constitute an act of violence or result in physical forms of violence. However, it is the University's position that hate speech should be countered with equally opposing views so that the student community can decide for themselves what they want to believe. While this neutral approach may seem reasonable, the University ignores the fact that not all voices have equal power and that opposing voices are not equally heard. It assumes that students presented with two perspectives will choose the most well-reasoned argument, but disregards the climate of hatred and victimization within which these perspectives are offered. I'm not sure who the complaint is directed against (the College Republicans? the university?); Ahmed did not immediately respond to a request for clarification. Robinson is indeed a hateful and loathsome person. If I were a member of the College Republicans, I would have implored my friends not to give him a platform. I support students and professors who protested both the decision to invite Robinson, and Robinson himself. But words are not violence, and the hatefulness of Robinson's perspective is not grounds for cancelling his speech or shouting him down. Ahmed's argument is paternalistic: He doesn't trust students to "choose the most well-reasoned argument" when presented with a hateful perspective, and so he wants to strip them of their right to listen. This is illiberal thinking, and a betrayal of the values for which Columbia stands, and a concerning position for a member of the law faculty to take. For more on campus leftists' self-defeating war on hate speech, read Michael Schill in The New York Times.[...]

Roy Moore Says Kneeling for the Anthem Is Illegal, and He’s Totally Wrong

Wed, 18 Oct 2017 17:20:00 -0400

(image) Roy Moore, the Republican candidate currently running for Attorney General Jeff Sessions' old Alabama Senate seat, is very mixed up about free speech.

The former judge—who was twice removed from office for his conservative culture war agenda, contrary to the law—told TIME magazine that NFL players who kneel during the national anthem are actually breaking the law.

"It's against the law, you know that?" said Moore. "It was a act of Congress that every man stand and put their hand over their heart. That's the law."

It isn't. That's completely wrong, actually.

Moore is probably referring to a section of the U.S. code that recommends standing for the national anthem, removing headgear, and placing one's hand over one's heart. But the code does not require people to do this, and if it did, the Supreme Court would undoubtedly strike it down.

"It's not clear to me that 36 U.S.C. 301 was ever meant to be legally binding — it says what people 'should' do rather than what they 'shall' or 'must' do," Eugene Volokh, a University of California-Los Angeles law professor and blogger at The Washington Post, told CBS. "But if it did aim at being legally binding, the First Amendment would prevent it from being enforced."

The First Amendment extends free speech rights to all Americans. The government cannot compel people to salute the flag or stand for the national anthem—at school events, national football games, or anywhere else. That Moore wrongly believes otherwise is just one more reason to strenuously oppose his candidacy.

It's a terrible shame so many Republicans who claim to be libertarian-inclined—including Sens. Rand Paul and Mike Lee—have endorsed Moore, despite his genuinely awful views. In his endorsement, Paul claimed "we need more people in Washington, D.C .that will stand on principle and defend the Constitution." On this basis alone, Moore's contempt for the principles of the First Amendment are obviously disqualifying.

President Trump is already working overtime to undermine the Constitution's robust protections for freedom of speech. Sending a like-minded, theocratic mini-Trump to Congress to aid this cause seems like a terrible plan, and one self-described libertarians should vigorously oppose.

'I Believe in the First Amendment,' Says FCC Chair, Rejecting Trump's Censorious Tweets

Tue, 17 Oct 2017 13:45:00 -0400

Today FCC Chairman Ajit Pai, who pre-emptively repudiated Donald Trump's suggestion that TV stations should lose their broadcast licenses if their news reports offend him, reiterated his commitment to freedom of speech and emphasized that his agency has no authority to take journalistic content into account when making such decisions. Asked directly about the president's censorious tweets during a forum on telecommunications reform at George Mason University's Mercatus Center, Pai replied: I believe in the First Amendment. The FCC under my leadership will stand for the First Amendment, and under the law the FCC does not have the authority to revoke a license of a broadcast station based on the content of a particular newscast. Pai added that, notwithstanding Trump's argument that purveyors of "fake news" should be investigated by the government, such a role "has not been within the FCC's jurisdiction." He also criticized the so-called Fairness Doctrine, under which the FCC used to require that broadcast stations present contrasting views on controversial subjects. "It was an affront to the First Amendment to have the government micromanaging how much time a particular broadcast outlet decided to devote to a particular topic," he said. Trump has raised the possibility of reviving the Fairness Doctrine, which the FCC abandoned in 1987. "Late Night host are dealing with the Democrats for their very 'unfunny' & repetitive material, always anti-Trump!" he tweeted on October 7. "Should we get Equal Time?" Four minutes later, he added, "More and more people are suggesting that Republicans (and me) should be given Equal Time on T.V. when you look at the one-sided coverage?" Trump used a question mark instead of a period, and he said "Equal Time" instead of "Fairness Doctrine," invoking a different rule that applies to competing candidates for public office. But you get the idea: If people on TV are saying things that make Trump look bad, the stations on which they appear should be forced to air rebuttals. That proposal, like Trump's assertion that "licenses must be challenged and, if appropriate, revoked" in response to "partisan, distorted and fake" news coverage, is obviously anathema to the First Amendment. Pai, in his low-key, matter-of-fact manner, is commendably willing to say so, apparently as many times as it takes. Addendum: On Sunday, another member of the FCC, Jessica Rosenworcel, beat Pai to the punch in responding to Trump's tweets about broadcast licenses. "History won't be kind to silence," the Democratic appointee said on CNN, "and I think it's important for all the commissioners to make clear that they support the First Amendment and that the agency will not revoke a broadcast license simply because the president is dissatisfied with the licensee's coverage."[...]