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Preview: Reason Magazine - Topics > Free Speech/First Amendment

Free Speech/First Amendment

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

Published: Sun, 28 May 2017 00:00:00 -0400

Last Build Date: Sun, 28 May 2017 00:20:34 -0400


Ninth Circuit Should Strike Down Idaho's 'Ag-Gag' Appeal

Sat, 20 May 2017 08:00:00 -0400

Last week I attended oral arguments in Seattle in a case that could determine whether the government may grant special protections to agricultural producers that supersede the First Amendment rights of others. The case, Animal Legal Defense Fund v. Wasden, pits nonprofits such as the ALDF, ACLU, and several other concerned groups and individuals against the state of Idaho. The case centers on an Idaho law, passed in 2014, that prohibits "interference with agricultural production." The law was "draft[ed] and sponsor[ed]" by the Idaho Dairymen's Association after an undercover investigation by the group Mercy for Animals showed dairy cows being mistreated in the state. "Video shows dairy employees using a tractor and chain to drag a cow by its neck, and workers beating, kicking and jumping on cows," reads one piece that describes the video. Such awful examples aren't common. But they're not uncommon, either. In 2012, I highlighted an investigation in California by the group Compassion Over Killing that revealed horrific cases of animal abuse at a slaughterhouse in that state. The Idaho law—one of several such state laws around the country—is intended to prevent agricultural whistleblowers from sharing such evidence of animal abuse with the general public (hence the term "ag-gag laws"). The U.S. District Court ruled in 2015 that the Idaho law is an unconstitutional violation of free-speech and equal-protection rights. "Although the State may not agree with the message certain groups seek to convey about Idaho's agricultural production facilities, such as releasing secretly recorded videos of animal abuse to the Internet and calling for boycotts, it cannot deny such groups equal protection of the laws in their exercise of their right to free speech," the court held in overturning the law. "The Idaho Ag-Gag law represents a direct assault on food transparency and undercover journalism," attorney Justin Marceau, who argued the plaintiffs' case in the lower and appellate courts, told me this week. "The law criminalizes all persons who gain access through deceptions—including investigative journalists. It criminalizes recording at agricultural facilities—including the sort of whistleblowing that led to the largest beef recall in U.S. history." Based on my take from oral arguments—including the three-judge panel's comments and lines of questioning—I believe the Ninth Circuit is rightly hostile to many of the worst elements of the law. And while the court may wish to salvage some facets of the law, I suspect it won't be able to do so and will uphold the lower-court ruling. Others who've followed the case closely agree. "Based on the oral argument, the days of Idaho's ag-gag law appear to be numbered," said appellate attorney Mahesha Subbaraman, in an email to me this week. "The panel's questions demonstrate a significant appreciation of the speech interests at stake when it comes to food journalism and that Idaho's ag-gag law targets these interests based on content and viewpoint." Subbaraman wrote an excellent brief in support of the plaintiffs in the case that he filed on behalf of more than a dozen food-law scholars across the country, including me. In the brief, we argue that agricultural whistleblowers make a vital and unique contribution to the marketplace of ideas. "Idaho's ag-gag law.... ultimately denies consumers a marketplace of ideas in which they are free to weigh competing voices and decide for themselves the truth about food production," we told the Ninth Circuit. While the court didn't focus on the marketplace of ideas during oral arguments, I'm hopeful the court will address the value of information obtained by undercover animal-welfare investigators to the marketplace of ideas in their ruling. One thing the judges did note repeatedly during oral arguments is that Idaho, like every state, has existing laws that prohibit trespass, and that such laws can—and, in my opinion, should—be used to deter and punish trespassers. So what can be done about the dueling problems of ag-gag laws and inhumane lives[...]

Look Who Wants a Safe Space Now

Wed, 17 May 2017 12:00:00 -0400

Pity the poor snowflakes—so sensitive they must be shielded from speech that might hurt their tender feelings. Campus liberals? Nope. We're talking about supposedly serious grown-ups, including some veterans and Virginia Rep. Rob Wittman (R). Monday evening Wittman met with a group of tea party activists at American Legion Post 90 in conservative Hanover. Eugene Truitt—the post commander and an Air Force veteran—asked Wittman when Congress would act on a flag-desecration bill. Wittman said it could happen soon: "I continue to push the leadership to have it come to the House floor," he said. "I do think it's worthy of debate about what are the limits of freedom of expression under the First Amendment." Of course he does. Why should he be any different? Last year Donald Trump tweeted a suggestion that anyone who burns the flag should face "consequences—perhaps loss of citizenship or year in jail!" More than 213,000 people liked the tweet. Some veterans spoke favorably of the idea. (At other times, other veterans also have vigorously opposed it.) In 1989, when the Supreme Court ruled that the First Amendment protects desecration of the American flag, veterans groups supported a constitutional amendment, and polling showed broad support for the idea among the general public. In 2012, the Republican Party Platform included language insisting, "By whatever legislative method is most feasible, Old Glory should be given legal protection against desecration." Heck, even Hillary Clinton once co-sponsored legislation that would have put flag-burners behind bars and fine them up to $100,000. Who says Democrats and Republicans can't agree on anything? Flag-burning legislation is supported by many people who, in other circumstances, probably would ridicule the impulse behind it. Combat-hardened veterans likely have little sympathy for hypersensitive college students who need speech codes and "safe spaces" to protect them from politically incorrect thoughts, and even jokes, they don't like. Nor do those students merit sympathy. They merit a lecture on the need to grow up and stop behaving like crybabies. And yet: What is a flag-burning amendment, but an attempt to turn the entire country into a safe space? It is, in fact, the epitome of political correctness: National flags designate political entities, and flag-burning expresses a particular opinion about the American polity. Is it an odious opinion? Sure. But then there are many odious opinions. Some of them were on view Saturday night in Charlottesville, when white supremacists held a torchlit rally around a statue of Robert E. Lee. By what standard would supporters of a constitutional amendment define flag-burning as so odious it lies beyond the protection of the First Amendment, without concluding the same about assertions of white supremacy? Speaking of which: When conservative scholar Charles Murray—whose work suggests racial differences might have a genetic component—showed up to speak at Middlebury College earlier this year, protesters shouted him down and set off fire alarms. When he and Middlebury professor Allison Stanger (who had been invited to push back against Murray in a civil dialogue) tried to leave, protesters assaulted her. She had to go to the hospital, and wound up in a neck brace—but not before protesters pounded on the car she and Murray rode away in, rocked it, and jumped on the hood. Last month controversy erupted in Berkeley over a scheduled speech by conservative performance artist Ann Coulter. Campus police feared they could not adequately ensure public safety at the event, and Coulter's speech was canceled. "Free speech crushed by thugs," Coulter tweeted. At nearly the same time, left-wing activists in Portland shut down an annual Avenue of Roses parade because they objected to participation by the Multnomah County Republican Party. A flag-burning amendment takes a more formalistic approach to censorship than campus thugs do, but it still crushes free speech. And it does so through a mechanism—the government's p[...]

Old Times There Are Best Forgotten

Tue, 16 May 2017 16:15:00 -0400

CHARLOTTESVILLE, VA—White supremacist provocateur Richard Spencer showed up in my town this past Saturday to roil the debate over the city council's planned removal of statues of Confederate Gens. Robert E. Lee and Stonewall Jackson. Spencer and a few score folks carrying flaming tiki torches gathered in Lee Park, a couple of blocks from my house, where they chanted, "What brings us together is that we are white, we are a people, we will not be replaced," and "Russia is our friend." Of course, Spencer and his associates have, as my Reason colleague Robby Soave points out, the constitutional right to their express their views in public. Spencer and his supporters are, as usual, in the wrong. The time has come to remove from public land the monuments honoring the men who led the Confederacy to defeat. But doing so doesn't mean we must then move on to purging slave-owning Founders or even memorials for dead southern soldiers. Looking back requires us to balance the good and the bad, and—on balance—Lee, Stonewall Jackson, and other Confederate leaders simply don't make the cut. Before delving more deeply into the Confederate memorial controversy, let me set out my Southern bona fides. I was born in Texas and reared on my family's dairy farm in the Appalachian Mountains of Southwest Virginia. Our county schools were racially integrated in 1963 when I was in the third grade. My third grade Virginia history book referred to the Civil War as the War Between the States and asserted that that conflict was chiefly over state's rights. Virginia Generals Lee, Jackson, and Stuart were portrayed as honorable and heroic defenders of Southern rights. My high school's team name was the Rebels and our fight song was "Dixie." It was not uncommon to see the Stars and Bars being waved in stands during football games. It is, however, worth noting that in a school in which African Americans made up less than 10 percent of the student body, my class elected a black senior as our homecoming queen. As a student at the University of Virginia in the early 1970s, I learned that many parts of the Commonwealth had not actually desegregated until 1971. At UVA I belonged to a literary and debating society whose members drank a great deal and often sang songs commemorating the Lost Cause, including "The Bonnie Blue Flag" and "Carry Me Back to Old Virginia," but also Yankee tunes like "The Battle Hymn of the Republic." I remained largely unconscious of how offensive Confederate symbols were to some people. That changed when my black roommate Dwayne Morris took a small Stars and Bars out of the coffee mug in which it was standing in our apartment, broke its staff in two and threw it in the trash. Several subsequent long, boozy conversations ended any residual sentimental attachment to the Lost Cause that I may have retained from my earlier schooling. Still, as a young Virginian I never gave much thought to what the Confederate monuments and memorials that appear in nearly every southern town represented. After Reconstruction, Ladies Memorial Associations (LMAs) in the South sprang up to advocate for and oversee the repatriation the remains of Confederate soldiers and to commemorate their deaths by erecting generic war memorial statues. Ultimately, the LMAs joined together for United Daughters of the Confederacy in 1894. It is, however, plain historical fact that most of those memorials to the Confederate dead and monuments to Confederate leaders were erected between 1890 and 1925, when Jim Crow racial apartheid was being established in the South. They were meant and served as powerful symbols of resurgent white supremacy. For example, the monument to Confederate President Jefferson Davis that was just taken down in New Orleans was dedicated in 1911 during a "Whites Only" ceremony featuring a living Stars and Bars formation that sang "Dixie." (The Louisiana House of Representatives just passed a bill that would block the removal of Confederate monuments without a referendum.) In Charlottesville, th[...]

Raging Bitch, Good Shit, and Flying Dog Beer's Fight for Free Speech

Wed, 10 May 2017 15:54:00 -0400

"I've lived my life as a pro free enterprise person," explains Flying Dog Brewery CEO Jim Caruso. "Not pro business. Pro free enterprise, pro consumer choice, artisanal manufacturing." A central player in America's craft beer revolution, Caruso is dedicated to creating something special both inside and outside the bottle. Famed artist Ralph Steadman, best known for his iconic illustrations for work by Hunter S. Thompson, creates all of Flying Dog's labels. It was Steadman who spontaneously wrote on his first commissioned label "good beer, no shit." And it was this label that kicked of Flying Dog's first -- but not last -- fight with government censors. Caruso sat down with Reason's Nick Gillespie to talk about his run-ins with the state, why he is a libertarian, and the how his values keep him happy. "I'm a happy person. And I attribute that to living as an individual, taking self responsibility, self reliance, but connected to society. It's not a Lone Ranger sort of thing." Cameras by Meredith Bragg, Todd Krainin, and Mark McDaniel. Edited by Bragg. Subscribe to our YouTube channel. Like us on Facebook. Follow us on Twitter. Subscribe to our podcast at iTunes. This is a rush transcript—check all quotes against the audio for accuracy. Nick Gillespie: America is in the throes of a beer revolution. Today the United States has more breweries than colleges. But it wasn't always this way. It was only after Jimmy Carter rescinded the prohibition on home brewing that Americans began innovating and experimenting. Flying Dog Brewery CEO Jim Caruso was there during the early days. And while today Flying Dog has cemented it's place as a leader in the craft brewery movement - as well as an unlikely champion of first amendment rights - Caruso still remembers the challenges of being a pioneer. Jim Caruso: Nobody knew anything. There was nobody to turn to. So, bottles of beer exploding, we're selling out of the trunk of our car. All that sort of stuff in the start up industry. It wasn't taken very seriously. And today for example we have Flying Dog University, we want people to make good beer. We've made it through 27 years, we're happy to share that knowledge. Even today breweries are opening faster, the capacity is increasing faster than demand, people are really getting into it. The last two years, three breweries opened per day for the last two years, every day for the last two years. Nick Gillespie: Wow. Jim Caruso: More breweries opened in the last 90 days than existed in 1990. Nick Gillespie: And it's not just beer, I mean there's been an explosion in food and when you think about supermarkets like Whole Foods has really kind of changed the way people think about food or what the possibilities are. In all sorts of fields you see this, the rise of the artisanal of individualized, of niche products. What's driving that in your estimation? Jim Caruso: Yeah, s everal aspects of that. One is, certainly the artisanal nature, it's higher cost, it's lower production, it's scaling demand, not scaling supply. We're not pushing into the market, we're responding to consumer demands and offering this interesting portfolio of design and clothing and getting close to it. When you look at local, think global, buy local, what does that mean? It means different things to different people. One is hyper-connectivity. It's not just that we contribute to the local events, we are engaged on that market at many, many different levels. And that's important to know the people behind the business. To be able to believe in that business. The other is a quality aspect. There is a freshness aspect to it because you can offer a wider range of products without worrying that they're aging on the shelf more than I'd want it to. Jim Caruso: Caruso and the Flying Dog team are still dedicated to creating something special both inside and outside the bottle. Famed artist Ralph Steadman, best known for his iconic illustrations for work by Hunter S. Thompson, creates all of Flying Dog'[...]

Are Racist Remarks Illegal in Massachusetts?

Fri, 05 May 2017 09:15:00 -0400

On Tuesday a Red Sox fan who used a racial epithet to disparage the singer who performed the national anthem was expelled from Fenway Park. The next day, he was banished from the stadium for life. The Red Sox, who are trying to improve the atmosphere at a stadium known for bigoted taunts, are well within their rights to make and enforce rules for audience behavior. Much more questionable was the reaction to the incident from the Boston Police Department, which said "the BPD's Civil Rights Unit is investigating the allegations and will make a determination as to whether further action is warranted." What sort of action, you might wonder, in response to what potential crime? The Washington Post says the expelled fan was reported by Calvin Hennick, a white man who came to the game with his son and his father-in-law, who is black. According to Hennick, the man who was ejected complained to him that the singer, who is from Kenya, had "niggered up" The Star-Spangled Banner. Hennick informed an usher, who notified stadium security. It is not hard to understand why Hennick took offense at the comment, but it is hard to understand why the police thought a criminal investigation was appropriate. The BPD's Civil Rights Unit investigates "hate crimes," where the perpetrator selects his victim based on the latter's perceived or actual membership in a protected group, such as a racial minority. But in this case, the obnoxious fan did not target Hennick based on Hennick's race, and in any event there was no underlying crime. The Massachusetts Civil Rights Act authorizes civil action against "bias-motivated threats, intimidation, and coercion" that interfere with people's civil rights. But Hennick's account does not suggest that the banished fan's actions qualified for that description. Here is how the Massachusetts Attorney General's Office (AGO) defines the key terms: A "threat" occurs when the perpetrator does or says things with the intent to make another person fearful or apprehensive of injury or harm. "Intimidation" occurs when the perpetrator intentionally puts another person in fear for the purpose of compelling or deterring conduct by that person. "Coercion" occurs when the perpetrator uses force, either physical or moral, to compel another person to do something against his/her will that he/she would not otherwise have done. None of those things happened in this case. The AGO emphasizes that "hateful and offensive speech or symbols, standing alone, do not necessarily violate the law." That necessarily should give civil libertarians pause, since it suggests that hateful speech could be against the law, which would be a clear violation of the First Amendment. There is a similar problem with a police investigation prompted by a racist remark at a baseball stadium, even if it does not result in any charges. I have asked the BPD to clarify how the incident at Fenway could possibly justify "further action" by the police and will update this post if and when I receive a reply. [Thanks to Hans Bader for the tip.][...]

Democrats Push for National Ban on LGBT Conversion Therapy

Tue, 02 May 2017 12:45:00 -0400

The Supreme Court has declined to consider a challenge to the constitutionality of a California law banning conversion therapy on minors. Conversion therapy involves the process of trying to change the sexual orientation of a person from gay or bisexual to heterosexual. Decades ago when people believed homosexuality was a form of mental illness, this therapy was considered normal. Now psychologists and psychiatrists know better, and have determined that homosexuality and bisexuality are normal variations of sexual orientation. Furthermore, professional mental health organizations like the American Psychological Association have determined that conversion therapy likely doesn't work and formally oppose its use. Starting earlier in the decade a handful of states like California began legislatively banning conversion therapy for minors. The laws have typically been crafted as though this were an occupational licensing and business fraud issue. They prohibit state-licensed mental health experts from offering services to change a teen or child's sexual orientation. Fundamentally, though, conversion therapy isn't a particular set of practices or processes. It is really an idea—that homosexuality can be cured. The idea may be discredited by professional therapy organizations, but there are people out there who believe otherwise, and their beliefs are frequently tied to their religions. So given that these laws essentially recast an idea as a type of consumer fraud, religious-minded supporters of conversion therapy have been challenging the laws as infringements on their freedom of speech and freedom of religion. They have been rebuffed, and Monday the Supreme Court rejected a challenge of California's law. The court previously turned away a challenge to New Jersey's ban in 2015. These laws are often written narrowly in scope and in whom they affect. The law prohibits offering conversion therapy to minors, not adults, which is intended to deal with concerns about consent and coercion. Historically, young gay teens have been pushed and even forced into treatment against their will. The laws focus on state-licensed treatment to try to emphasize this is an issue of occupational oversight for the benefit of consumers, not an attempt to censor speech or religion. Bans on conversion therapy, though, are fundamentally censorship of an idea, and there is a slippery slope and consequences that people with narrow interests in halting abusive treatment of gay and transgender teens simply do not grasp. This isn't a ban on a particular dangerous technique, like electroshock treatment, for example. It's a ban on anything—even just speech—coming from a licensed therapist that suggests homosexuality can be cured. It is dangerous to allow the government to control the classification of speech and to recast speech as something else just because commerce is involved. For example, some may defend the ban because it affects only minors who have limited abilities to consent or decide for themselves whether they want such treatment. Adults can seek out conversion therapy if they want. It doesn't matter if it doesn't work or may potentially harm them—they're adults and can decide for themselves. Except Rep. Ted Lieu (D-California) and 70 Democratic members of Congress want to take this choice away from adults as well. Lieu is once again trying to get federal legislation passed to classify conversion therapy as a form of consumer fraud and give the Federal Trade Commission (FTC) the authority to punish anybody who provides it in exchange for money. To be very clear, this federal law would not be confined to minors. It would affect even adults voluntarily seeking conversion therapy. Lieu's law would forbid advertising or offering any form of conversion therapy that claimed to change somebody's sexual orientation or even "eliminate or reduce sexual or romantic attractions of feelings toward individuals of the sam[...]

Wacky Wavy Inflatable Tube Men Can't Sell Weed, Say Washington State Lawmakers

Mon, 01 May 2017 17:45:00 -0400

(image) The Washington state legislature voted to ban the use of "inflatable tube displays, persons in costume, or wearing, holding, or spinning a sign with a marijuana-related commercial message" by retail businesses selling cannabis products. On April 20, of all days.

The omnibus marijuana bill, SB 5131, has some good provisions as well: Washington residents would be allowed to share marijuana with other legal adults for the first time, and cannabis retailers would be able to operate five dispensaries (right now they are limited to three). But those liberalizations come at a cost to commercial speech.

The stated purpose behind this prohibition of pot-promoting blow-up ads is to protect children. Washington's legalization initiative—passed by voters in 2012—set the legal age for cannabis consumption at 21. And current regulations already prohibit marijuana advertisements from using cartoon characters, toys or other depictions deemed "especially appealing to children or other persons under legal age to consume marijuana."

But this apparently did not go far enough for Washington state legislators, who felt that a number of outdoor advertisements from recreational dispensaries were flouting the spirit, if not the letter of the law.

Particularly scandalous was a billboard put up by Tacoma dispensary Clear Choice Cannabis featuring a cat wearing a "thug life" collar along with text saying "I'm so high right meow." Images of that billboard—which has since been voluntarily taken down by business owner—circulated around the Washington legislature as proof of cannabusinesses potentially targeting children.

Said state Rep. Christine Kilduff (D–University Place): "When you have those big billboards out there for our youth to see, it just telegraphs legitimacy."

An amendment banning billboards was initially proposed, but this was later dialed back over First Amendment concerns. Instead signs will be limited to displaying only the name, location, logo, and type of business being advertised. Which should still raise First Amendment concerns, but apparently doesn't.

Unusual restrictions on cannabusinesses' advertising for the purpose of keeping the stuff out of the hands of children are not limited to Washington state. Colorado bans marijuana ads in radio, TV, and print unless the advertiser can produce reliable evidence that no more than 30 percent of the audience is under 21. And in Oregon the strain name "girl scout cookie" can't be displayed on packaging because it is named after a product sold both to and by children.

SB 5131 is currently waiting on the governor's signature before it becomes law.

No, Trump Won’t Change the First Amendment, But It Matters That People Want To

Mon, 01 May 2017 13:50:00 -0400

President Donald Trump's willingness to alter the terms of the First Amendment as part of his desire to censor critical press of him is firmly established: See his constant complaints of "fake news" (to be fair, his complaints are sometimes correct) and his desire to "open up libel laws." The president has no direct influence over the content of libel laws because they're state-level laws. There are many pivotal Supreme Court rulings on the relationship between libel laws and the First Amendment protections of free speech and a free press. Trump would have to rewrite the First Amendment in order to get what he wants. Trump is not going to be altering the First Amendment. Let's just start with that. Even if he weren't an extremely divisive president, it would be quite the uphill battle. But it is worth taking note at how establishment officials looking to maintain influence within the Trump administration respond. It's worth separating out what is possible from what is likely. The coverage of Sunday interview between ABC's Jonathan Karl and White House Chief of Staff Reince Priebus on This Week seems designed for the purpose of keeping this fight between Trump and the press on front burner, as if the president's absence from the White House Correspondents Dinner and counter-rally didn't already have that effect. Priebus knows that Trump isn't changing anything about the First Amendment and that there will be no changes to libel laws in the near future. But he is not willing to say that. He can't. He won't. So during his Sunday interview with Karl he says "It's something we've looked at. How that gets executed or whether that goes anywhere is a different story." We don't know what "looked at" means (perhaps a Google search of pages that explain state libel laws?), but some media analysts are concerned about the implications that this might actually happen. It probably won't, but the media benefits from playing up this conflict as much as Trump does. Let's take a look at where that conversation shifted after talking about libel laws, because that's where I'd rather we were paying attention. Trump has also said he would like to criminalize flag-burning, which Priebus also vaguely defended in a similar fashion. There is a lot of popular support for laws against burning flags, though when truly pressed, a majority of Americans tend to come down against a constitutional amendment. The wording of the poll question matters. Trump is not alone in his desire to change the First Amendment in ways that benefit his particular world view, and if nothing else, his efforts should be use as an object lesson. Priebus complains that the press has been irresponsible in its reporting. This is not a new complaint from government officials targeting the press. In the wake of the Edward Snowden revelations, the New York Times itself (a noted Trump target) hosted commentary by Michael Kinsley suggesting there needed to be some sort of oversight over what the press was allowed to publish. Americans have a remarkable facility for looking for exceptions to the First Amendment and deciding that some controversial or unpleasant statements simply are not valid forms of speech. On the other side of the aisle, there's a concerted push to invalidate the Supreme Court's Citizens United decision by attempting to amend the Constitution to deprive corporations of legal personhood and of their right to free speech. And we more prominently have the current push to insist that "hate speech" does not qualify as "free speech" and the belief by many poorly educated Americans (some of whom are actual politicians who should know better). These comments by Priebus should be reminders that if and when there are restrictions placed on the free speech of American citizens, it's the leaders of government who will be calling the shots. We have a president who is thin-skinned and self-[...]

'F*CK DPD' Sign Leads to Felony Hoax Bomb Charge in Denver

Thu, 27 Apr 2017 17:30:00 -0400

(image) A man who says police mistook his anti-police sign, which he says was written on a card board box he taped to his parked BMW SUV, is now facing a count of "hoax explosives and incendiary devices," a class-five felony that comes with up to 3 years in prison and up to a $100,000 fine.

Charlie Dent told Denverite he was upset over the manners of a Denver cop who had written him a speeding ticket when he decided to put up a sign on his parked SUV that said "Fuck DPD," saying he knew not to say anything to the cop at the time because "you can't do nothing to a cop."

Dent says after his first two signs were blown away by the wind, he wrote "Fuck DPD" on a shoe box-sized cardboard box and used electrical tape to attach it to his parked SUV. The morning after he was ticketed and put up the sign he told Denverite he returned home from work to find cops surrounding his SUV. Police told him staff from the elementary school across the street called them, according to Hunt, who also suggested police mistook an LED light and red button connected to the car for a bomb part.

Police arrested Dent "for having an explosive device displayed," according to a statement of probable cause provided to Reason by the district attorney's office.

"A sign displaying 'Fuck DPD' along with a series of wires, electrical components, and metal tube prominently displayed upon the hood of" the car, the statement read. "The sign, along with wiring and device appeared to be an explosive device intended to draw and cause alarm."

The arresting officer added in his report that vehicle was also parked within 100 feet of an "active/open elementary school."

Dent says when he asked officers on the scene if he was going to jail over this, they told him it depended on "what side of the bed the bomb squad woke up on."

Since his arrest, Dent says he was suspended from work after requesting to take off on his court date and asked to move out of his apartment by his landlord.

Denverite notes that the law the felony cites "doesn't give a lot of guidance on this charge, simply saying that it applies to anyone who possesses 'false, facsimile, or hoax' devices.

The DPD referred questions for comment to the district attorney's office, which provided the probable cause statement.

h/t Dan S

Barrett Brown Taken Back Into Custody for Talking to the Press

Thu, 27 Apr 2017 17:05:00 -0400

Barrett Brown, famous "hacktivist" who spent four years prison in an arrest that started with his role in releasing linking to some hacked documents online (though that investigation led to a video in which he was taken to be threatening FBI agents, another crime he was charged with) was taken back into custody today, according to D Magazine, for whom Brown had been working as a reporter. (The complicated details of his original charges and conviction are explained in this 2015 Wired article.) Relying on reports from Brown's mother, Karen Lancaster, with whom Brown had been living, Brown was tossed back in the pokey for conducting interviews with the press without explicit permission from the Bureau of Prison bureaucracy—even though Ms. Lancaster insists that the Bureau, even when asked, could not provide written proof that he was legally required to do so: Barrett was re-arrested during routine check-in this morning and is being transferred to a BOP facility that is unknown. He has not missed a check-in over the last five months of his early release. He has not failed any of the random drug tests administered. He has been on home confinement status since February and has been home each and every time they called the landline at 1:00 to 2:00 a.m. for "bed check." He believes this is only because of his refusal to get "permission" from crews to film and interview him. He has had many interviews since his early release, on November 29, both by phone and in person. Last week VICE had a group in to film him for two days [ed: they filmed a bunch up here at D Magazine headquarters], and he was scheduled to be interviewed tomorrow by a group working on a documentary for PBS. Ms. Luz Lujan, his BOP contact, refused to provide him with copies of program statement rules saying this is a requirement during halfway house and/or home confinement status. The forms that they finally came up with yesterday, after he had been requesting documentation for the past two weeks, are forms offered to media when requesting a visit with an inmate in a federal prison setting. There was never any mention of these rules during the past four months of his federally approved employment at D Magazine when he was working with media and involved with a range of interviews. The Bureau of Prisons acknowledged in an email today that Brown "is no longer in home confinement and he is presently located at Federal Correctional Institution (FCI) Seagoville in Texas (our inmate locator webpage should updated tomorrow), but we can not disclose the reasons for a specific inmate's transfer of locations." The Bureau of Prisons, contra Ms. Lancaster's implication, seems to believe that any regulations that would have bound a Barrett Brown literally behind bars similarly binds him on his current "early release" (distinct legally from the probation that is scheduled to begin next month, at the end of his original sentence). Kevin Gallagher, who runs the Free Barrett Brown website, said in a phone interview today that the specific terms of Brown's supervised released did not mention restrictions on talking to the media. Gallagher notes both that Brown has been doing media since his release began (including with Reason TV, see below) and that Brown has a record of "being critical of the Bureau of Prisons in many different ways." Thus, an element of pure punishment for speech seems involved in their locking him up again, even if technically it is just about not following their paperwork demands. Brown explained some of the complications of his early release prior to the beginning of his actual probation in May (when he moves into the jurisdiction of the Justice Department rather than the Bureau of Prisons) in a D Magazine column in January. Audio of phone calls in which Brown is trying to discover the actual written proof tha[...]

Left and Right Street Mobs Rain on Portland Parade

Wed, 26 Apr 2017 14:00:00 -0400

The kick-off parade of Portland's annual Rose Festival was cancelled yesterday thanks to escalating threats from left-wing Antifa and pro-Trump militia types who over the past few days have been swapping promises of violent street confrontations at the event. Thus, yet another aspect of American public life has succumb to the self-reinforcing provocateur tactics of extremist fringe groups. The drama centers around the inclusion of the Multnomah County Republican Party (MCRP) in the 82nd Avenue of Roses Parade, which begins the city's Rose Festival. Trouble began when Antifa leftist activists—acting under the monikers Direct Action Alliance and Oregon Students Empowered—created Facebook events which promised to confront the MCRP for the usual charges of hate mongering and fascism normalizing. For the uninitiated, Antifa—short for anti-fascism—is a loose connection of anarcho-communists groups who seek to undermine the oppressive capitalist system we all toil under, mostly through blocking traffic and setting garbage cans on fire. These groups were part of the recent Berkeley brawl, and also showed up to smash Starbucks windows in DC on inauguration day. The group said they were going to show up in force to protect minorities, including and limited to their LGBTQ+, Muslim, Latinx, Black, and Native neighbors from harassment and intimidation. For the record, it's hard to think of a more embattled and despised minority than Portland-area Republicans. James Buchal, chairman of the MCRP, said that the group was certainly concerned about threats from Antifa groups —which included promises on social media that Republican marchers would be "stabbed to death"—but said he was still saddened by the cancelling of the parade. "Its a tradition," he says of the parade. "We march, the Democrats march, even the Greens now march." He noted that the MCRP had marched in every Avenue of the Roses parade without incident since he has been chairman. Not helping the MCRP any was the promise from Joey Gibson—of the Facebook page Patriot Prayer—to also march in the 82nd Avenue of Roses parade as a means of protecting Portland Republicans. Gibson released a video on Patriot Prayer's page Monday in which he ranted about his plans to confront any masked Antifa who dared to not show their face on the day, blending a professed support for free speech with grade-school level taunts. "There's going to be a bunch of us going down on Saturday. You know the place, you know the time," he said in the video. "If you want to hurt us and you want to kill us, well the real men will be down there, and we'll be waiting." The same day this video came out, an anonymous email was sent from an Antifa sympathizer to parade organizers saying that if the MRCP were allowed to march "we will have two hundred or more people rush into the parade, into the middle, and drag and push those people out" adding that "you have seen the power we have downtown and that the police cannot stop us." The email also promises that protestors will only use non-violent methods (which you think would exclude pushing and dragging). That email proved the final straw for parade organizers who said in a Tuesday announcement that "following threats of violence during the Parade by multiple groups planning to demonstrate at the event, we can no longer guarantee the safety of our community and have made the difficult decision to cancel the Parade." The Direct Action Alliance sent out a press release expressing disappointment that the parade had been cancelled while still defending their actions saying "no Portland child will see a march in support of this fascist regime go unopposed." Joey Gibson also released a video bemoaning the cancellation of the parade to a soundtrack of sad music. "These kids are extremely se[...]

The Bipartisan Urge to Suppress Dissent

Wed, 26 Apr 2017 00:15:00 -0400

The University of California at Berkeley's inhospitality to conservative speakers, the subject of a federal lawsuit filed on Monday, prompted a Twitter rebuke from President Trump a few months ago. Yet his administration seems determined to demonstrate that suppression of opposing views is a bipartisan impulse. Berkeley College Republicans (BCR), which invited conservative commentator Ann Coulter to speak on campus this Thursday evening, and Young America's Foundation (YAF), which underwrote her visit, argue that Berkeley's vague, unwritten policy regarding "high-profile speakers" unconstitutionally discriminates against unpopular viewpoints. As a result of that policy, which was adopted after violent protests prompted the university to shut down a February 1 appearance by former Breitbart News editor Milo Yiannopoulos, Berkeley canceled Coulter's speech, then offered to reschedule it for next Tuesday afternoon, in the middle of the "dead week" between classes and exams. BCR says it felt compelled to cancel an April 12 talk by another conservative journalist, David Horowitz, after the university insisted that it take place at an inconvenient location and end by 3 p.m., meaning most students would be in class while Horowitz was speaking. BCR and YAF say the restrictions imposed by Berkeley in the name of public safety have not been applied to left-leaning speakers and amount to an "unlawful heckler's veto" that marginalizes conservative voices. After the Milo melee in February, Trump suggested on Twitter that Berkeley risks losing federal funds if it "does not allow free speech." If the president were sincerely committed to protecting First Amendment rights, he would issue similar warnings to the Department of Homeland Security (DHS), which recently demanded that Twitter reveal the identity of a DHS gadfly, and the Justice Department, which is considering criminal charges against people who share classified information leaked by others. Last month a special agent in charge at Customs and Border Protection (CBP), a division of DHS, issued a summons to Twitter seeking records that would unmask the person or persons behind @ALT_USCIS, an account that regularly criticizes the Trump administration's immigration policies. There did not seem to be any legal justification for the summons, which looked like a blatant attempt to intimidate critics. DHS dropped the summons the day after Twitter filed a lawsuit arguing that it threatened the First Amendment right to engage in pseudonymous political speech. Last week, in response to inquiries by Sen. Ron Wyden (D-Ore.), DHS Inspector General John Roth revealed that his office is investigating whether the CBP summons was "improper." The day before Roth expressed concern about government inquiries that might have "a chilling effect on individuals' free speech rights," CNN and The Washington Post reported that the Justice Department is once again looking for a way to prosecute WikiLeaks founder Julian Assange for sharing classified documents with the public. The Obama administration abandoned that project after concluding that charging Assange with violating the Espionage Act would create a precedent that could be used against any news organization that publishes stories based on "defense information" from sources who obtained or divulged it illegally—a very common journalistic practice. CIA Director Mike Pompeo says we shouldn't worry about that because Assange is not a real journalist, a debatable and constitutionally irrelevant point. The "freedom of the press" that is guaranteed by the First Amendment is not the freedom of people who work for officially recognized news outlets; it is the freedom to use technologies of mass communication. That freedom extends to everyone in the United St[...]

Howard Dean's New Excuse for Censoring Ann Coulter: She Incites Violence

Tue, 25 Apr 2017 08:00:00 -0400

Howard Dean's explanation of why it's OK to censor Ann Coulter continues to evolve as he desperately seeks a legal excuse to silence someone whose speech offends him. Meanwhile, a federal lawsuit filed yesterday explains why Dean is wrong to think there was nothing constitutionally problematic about the University of California at Berkeley's cancellation of a speech by the conservative commentator. Last week Dean, former governor of Vermont and former chairman of the Democratic National Committee, said it was OK for a public university to cancel Coulter's talk because "hate speech is not protected by the First Amendment." That is not true, as many people, including my colleague Robby Soave and UCLA law professor Eugene Volokh, pointed out. Over the weekend, having been informed that "hate speech" is not a constitutionally relevant category, Dean started citing Chaplinsky v. New Hampshire, the 1942 case in which the Supreme Court upheld the criminalization of "fighting words," in-person insults that "tend to incite an immediate breach of the peace" by provoking a violent response from the target. As I noted yesterday, neither of the Coulter quotations cited by Dean remotely resembles the Supreme Court's definition of fighting words. Yesterday Dean decided his real point was not that Coulter's remarks qualify as "hate speech" or that they amount to "fighting words" but (as I predicted) that they constitute "incitement to violence," which "is not protected." That issue, Dean informs us, "has been litigated multiple times." Once again Dean is making shit up to give his censorious impulses a sheen of constitutional legitimacy. Yes, offensive speech should not be banned. But incitement to violence is not protected and that has been litigated multiple times. — Howard Dean (@GovHowardDean) April 24, 2017 In the 1969 case Brandenburg v. Ohio, which involved a Klansman arrested for advocating violence in the service of a political cause, the Supreme Court said such speech is protected by the First Amendment unless it is aimed at inciting "imminent lawless action" and is likely to have that effect. Nothing Coulter has said fits that description. Dean was initially outraged by a joke Coulter made in 2002: "My only regret with Timothy McVeigh is he did not go to the New York Times building." On Sunday, Dean cited a 2016 Coulter tweet: "I would like to see a little more violence from the innocent Trump supporters set upon by violent leftist hoodlums." Neither of these statements meets the Supreme Court's definition of incitement, which requires a speaker who intentionally encourages people to commit crimes and an audience that is likely to do so right away. Nor is a speaker guilty of incitement when people who do not like her message express their displeasure through violence and vandalism, although that is the danger cited by U.C.-Berkeley when it canceled Coulter's speech. In a lawsuit filed yesterday, Berkeley College Republicans (BCR), which invited Coulter, and Young Ameriica's Foundation (YAF), which underwrote her visit, argue that the university's capitulation to the heckler's veto violates the First Amendment rights of people who want to hear what Coulter has to say. After canceling Coulter's speech, which was originally scheduled for this Thursday evening, the university responded to criticism of that decision by offering to let her speak next Tuesday afternoon instead. The proposed timing—in the afternoon rather than the evening, and in the middle of Berkeley's "dead week" between classes and exams—seemed designed to minimize the attention attracted by the event in the hope of forestalling violent protests like those that led the university to cancel a February 1 appearan[...]

Howard Dean Says Ann Coulter Can Be Censored Because Them's Fightin' Words

Mon, 24 Apr 2017 07:00:00 -0400

Howard Dean, former governor of Vermont, former presidential candidate, and former chairman of the Democratic National Committee, is a doctor, not a lawyer. Still, you'd think that someone who majored in political science at Yale and has been involved in politics for nearly four decades would know better than to declare, as Dean did last week, that "hate speech is not protected by the First Amendment." But instead of admitting his error, Dean is pushing a new claim in support of his argument that there was nothing constitutionally problematic about the University of California at Berkeley's decision to cancel a speech by conservative commentator Ann Coulter. Yesterday on Twitter, Dean claimed Coulter-style rhetoric "is NOT protected speech under the first amendment" because it amounts to "fighting words." He is wrong again. This is NOT protected speech under the first amendment. Check Chaplinsky V New Hampshire SCOTUS 1942. — Howard Dean (@GovHowardDean) April 23, 2017 Dean deserves some credit for referring to an actual First Amendment doctrine this time, as opposed to the entirely fictitious idea that "hate speech" is a constitutionally relevant category. The 1942 case he cites, Chaplinsky v. New Hampshire, involved Walter Chaplinsky, a Jehovah's Witness who attracted a hostile crowd by denouncing organized religion as a "racket" on the streets of Rochester, New Hampshire. Chaplinsky was arrested for calling a city marshal "a goddamned racketeer" and "a damned fascist." Chaplinksy's insults violated a New Hampshire law that made it a crime to "address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place," to "call him by any offensive or derisive name," or to "make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him." The New Hampshire Supreme Court had interpreted that law as applying only to words that "have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed." Relying on that understanding of the law, the U.S. Supreme Court concluded that Chaplinsky's conviction did not violate the First Amendment because the epithets he used were words that "by their very utterance inflict injury or tend to incite an immediate breach of the peace." Since the Supreme Court has repeatedly narrowed the "fighting words" exception to the First Amendment and has never again relied on it to uphold speech restrictions, the doctrine's continuing relevance is doubtful. In any case, the Coulter quotations cited by Dean clearly do not qualify as fighting words. Dean was initially outraged by a joke Coulter made in 2002: "My only regret with Timothy McVeigh is he did not go to the New York Times building." Yesterday Dean cited a 2016 Coulter tweet: "I would like to see a little more violence from the innocent Trump supporters set upon by violent leftist hoodlums." Neither of those comments remotely resembles fighting words as defined by the Supreme Court, which are insults directed at particular individuals in their presence that are apt to provoke a violent response from them. Coulter: I'd like to see 'a little more violence' from Trump supporters — Howard Dean (@GovHowardDean) April 23, 2017 Dean may be confusing fighting words with incitement. He seems to be implying that Coulter's comments might encourage violence not against her (as with fighting words) but against third parties (The New York Times in one case, anti-Trump protesters in the other). If that is what Dean means, he is still wrong to think the possibility of such violence means Coulter's statements are "NOT protected speec[...]

The Un-Free Speech Movement at Berkeley

Mon, 24 Apr 2017 00:01:00 -0400

There are few prospects in life more appealing than the silence of Ann Coulter. She brings to mind what novelist Mary McCarthy said about playwright and Stalinist Lillian Hellman: "Every word she writes is a lie, including 'and' and 'the.'" If the world never suffered another emission from Coulter's toxic brain, it would be a better place. But she said she would speak at the University of California, Berkeley even though the school administration had canceled the speech she was scheduled to give April 27 at the invitation of two student groups. Faced with that challenge, the university changed its mind, sort of, proposing to let her appear May 2. All I can say is something I never thought I would: It will be a great thing for Ann Coulter to speak. UC Berkeley is an exceptional institution whose history includes the 1964-65 protests that gained fame as the Free Speech Movement. Long known as a hotbed of left-wing activism, it has lately gained attention as a place where right-wingers venture at their peril. In February, the administration abruptly called off a talk by then-Breitbart News troll Milo Yiannopoulos after protesters threw stones and firebombs and smashed windows. In all, they caused $100,000 in property damage and several injuries. The destruction came not from students intolerant of unwanted opinions, according to the university, but from masked self-styled anarchists bent on wreaking havoc. After Yiannopoulos was invited, the administration had issued a ringing statement condemning his views while defending his right to speak. It affirmed the university's commitment to "the principle of tolerance, even when it means we tolerate that which may appear to us as intolerant." The event was canceled only after it became clear that the unexpected violence might prove "lethal," as campus police said. Assistant Vice Chancellor Dan Mogulof offered a plausible excuse: "We have never seen this on the Berkeley campus. This was an unprecedented invasion." Whatever turmoil might attend Coulter's appearance, though, would not be unprecedented, and it would not be impossible to contain. With so much advance notice, the university should be able to mobilize an abundance of police resources to prevent and, if need be, suppress another riot. By deciding to deny her a venue until a time it deems suitable—September was its preference—the administration gave the strong impression that its devotion to intellectual liberty is negotiable. Its partial reversal Thursday may have been a way of avoiding the embarrassment of having Coulter show up in defiant glory. Or it may have stemmed from the greater embarrassment of letting feral troublemakers shut down any event they choose. But Coulter, noting that students will be on break May 2, has vowed to come April 27. At other public institutions, the record of tolerance is mixed. When white nationalist Richard Spencer was invited to Texas A&M, the school defended his right to free speech and deployed riot police to handle any violence—while sponsoring a well-attended counter-event. Conservative writer Heather Mac Donald's talk at UCLA went off as planned but provoked angry yelling from some in the audience, ending with her being escorted out by cops. When Spencer was invited to Auburn, the university said no—only to be overruled by a federal court. Auburn's excuse was the same one offered by UC Berkeley: It couldn't permit an event that might jeopardize safety. That policy defers to what lawyers call the "heckler's veto"—which gives those inclined to violence the privilege of silencing any speech that might upset them. State universities, being organs of government, are bound by the First Amendment. That [...]