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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: Wed, 28 Sep 2016 00:00:00 -0400

Last Build Date: Wed, 28 Sep 2016 20:33:45 -0400


California Censors IMDB Because of Hollywood’s Alleged Ageism

Tue, 27 Sep 2016 15:15:00 -0400

California Gov. Jerry Brown has only a couple of days left to decide whether he's going to sign or veto an important reform bill that would seriously reduce the ability of local law enforcement agencies to abuse the asset forfeiture process to seize and keep millions of dollars from citizens without having to prove they've committed a crime. But in the meantime, we've got this: Brown has signed into law a bill that censors the Internet Movie Database (IMDB) in what appears to be a fairly straightforward violation of the company's First Amendment rights. The IMDB is a familiar site for anybody looking to track down work by people in the film, television, and video games industry. It publishes the backgrounds of actors, their work histories, their biographies, and their birthdates. That last part—birthdates (meaning ages)—is what several actors have a problem with. One sued unsuccessfully to try to force the IMDB to prevent the site from publishing her actual date of birth. The argument was that age discrimination in Hollywood and the acting industry is a serious, chronic issue, and publishing actors' ages could harm their chances at finding work. After that attempt failed, the Screen Actors Guild then pushed lawmakers in Sacramento to fix the problem for them. They responded by passing AB-1687, which forbids IMDB (or similar sites) from publishing or sharing birthdates or ages from paying subscribers (industry folks who use the site for employment services). Gov. Brown signed the bill into law on Sunday. So, is this unconstitutional censorship? Yes it most certainly is, says nearly every lawyer The Hollywood Reporter consulted. In fact, the only attorney who was absolutely certain the law would survive a constitutional challenge and gave it a full-throated defense was the general counsel for the very union who pushed it through the legislature. Some of the opponents: "Creating liability for the truthful reporting of lawfully obtained information is deeply problematic under the First Amendment," said UC Irvine dean and Constitutional scholar Erwin Chemerinsky. "It is different to say 'men only' or 'women only' or 'whites only' in an ad. That is discrimination that is impermissible. A birthday or an age is a fact, and I don't think there can be liability under the First Amendment for publishing true facts." Said Bruce Johnson, of Seattle's Davis Wright Tremaine, "Obviously, to the extent that it requires the removal of truthful information from websites reporting on matters of public interest, the statute would appear to be an unconstitutional abridgement of First Amendment rights." The bill's sponsor, Democratic Assembly Majority Leader Ian Calderon, defended the law as a legitimate business regulation: "Requiring websites to remove all age information from profiles would seem to run afoul of the First Amendment restrictions on the regulation of commercial speech," Calderon had said in a statement to THR. "Limiting the bill to only subscribers makes it clear that the bill advances an important government interest — that of reducing age discrimination in a manner that is substantially related to that interest and no more extensive than necessary to achieve that interest." Yes, but it's attempting to achieve the interest in reducing age discrimination by censoring a third-party site that is not responsible at all for the age discrimination these actors are claiming. This is the sort of mentality that has led to the European Union's terrible "right to be forgotten" policies, which permit people to demand that search sites censor links to information about them that may be completely factually correct but that they nevertheless don't want people to see. That's a good reason why the rest of us should care. It may not directly affect us whether actors' ages are allowed to be censored, but the justification for this government intervention can be directed elsewhere. In addition, one lawyer noted, limiting the censorship to paying subscribers has the absurd side effect of requiring actors to "bribe" the IMDB for their si[...]

Clemson U. Says Harambe Jokes Are Allowed. It Should Tell Its RAs That.

Tue, 27 Sep 2016 12:05:00 -0400

(image) Harambe be praised: Clemson University officials now say that students are welcome to post visual representations of the martyred gorilla in public residential places.

This announcement is a reversal of last week's guidance, sent by a rogue residential adviser, instructing students to stop making Harambe jokes because they "add to the rape culture as well as being a form of racism."

A spokesperson for Clemson told The Washington Post's Eugene Volokh that the earlier prohibition on Harambe jokes "was sent by one person and does not reflect university policy." Earlier this morning, the university sent me an email with the insistent headline, "Clemson has NOT banned Harambe memes in residence halls."

Great! Perhaps Clemson should also inform its own residential advisers about the university's commitment to free speech. As Volokh points out:

I would think that Clemson would have taught residence area authorities that they don't have the power just to order students not to post certain messages that the authorities dislike; but perhaps Clemson had done so, and the particular e-mailer just didn't focus on that.

Additionally, it does not seem obvious to me that Harambe-loving students' free speech rights will actually be respected by the university. After all, Clemson still has a Bias Incident Response Protocol that allows members of campus to report each other for saying and doing things that make them feel demeaned, degraded, or harassed. And people in positions of power at the university evidently believe that Title IX requires them to vigorously police potentially offensive student conduct.

7 Issues That Won’t Be Treated Seriously at Tonight’s Debate in Gary Johnson’s Absence

Mon, 26 Sep 2016 10:25:00 -0400

Tonight as many as 100 million Americans, God help us, will be tuning in to watch the first debate between the two most hated presidential nominees since pollsters have been measuring candidates' unfavorability. Because the Commission on Presidential Debates, a technically nonpartisan nonprofit that was co-founded in 1987 by the Democratic and Republican parties to manage the terms of televised general-election discourse between White House aspirants, decided last October (with details ratified this August) to maintain as a participation threshold the unreasonably high average of 15 percent in national polls—a level no third-party candidate has attained in September of an election year since 1968—that means Libertarian Party nominee Gary Johnson, the highest-polling presidential outsider since Ross Perot in 1992, will be live-Tweeting instead of live-debating. Which is a shame, and not just for those 8.5 percent of us who intend to vote for the guy. Having a debate with no Gary Johnson means that a whole host of pressing issues will not be treated seriously Monday night, and increasingly in the election itself. From fiscal sanity to free trade, foreign occupation to repealing prohibition, the Democratic and Republican candidates have abandoned sober policy-making in favor of centrally planned, government-aggrandizing promises that often flout their own parties' bases and traditions. In many important ways, there will be no adult on stage. The following is an incomplete list of at least seven issue areas in which sensible and frequently popular viewpoints will not be offered by either of the "major"-party presidential candidates tonight, because a contrary Libertarian who will be on the ballot in all 50 states will nonetheless sit excluded, 28 miles away. 1) The country's grim long-term fiscal outlook. "Nobody's talking about balancing the federal budget," Johnson said on ABC's This Week with George Stephanopoulos Sunday. "Nobody's talking about the threat of a runaway government, nobody's talking about reforming Medicaid or Medicare." This reticence to grapple with the America's perilous balance sheet is new, and actively dangerous. As I detail in Reason's October cover story, every State of the Union Address between 1997 and 2013 mentioned the need for long-term entitlement reform; but no more. And that's not because the situation has gotten any less dire. To the contrary. In July, the Congressional Budget Office (CBO) pointed out that publicly held debt is "growing larger in relation to the economy than ever recorded in U.S. history," and that debt service alone will eclipse military spending in the next president's first term. "Large and growing federal debt over the coming decades would hurt the economy and constrain future budget policy," the CBO warned. "The amount of debt that is projected…would reduce national saving and income in the long term; increase the government's interest costs, putting more pressure on the rest of the budget; limit lawmakers' ability to respond to unforeseen events; and increase the likelihood of a fiscal crisis." Yet Hillary Clinton wants to expand Social Security and reduce the age for Medicare opt-in eligibility to 55, in addition to passing "the biggest investment in new, good-paying jobs since World War II," making "college tuition free for the middle class and debt-free for all," liberating "millions of people who already have student debt," and helping "more people learn a skill or practice a trade and make a good living doing it." How the heck would she pay for expanding an already bloated and unaffordable government? "Here's how," she said in her Democratic National Convention speech. "Wall Street, corporations, and the super-rich are going to start paying their fair share of taxes." Donald Trump, to his credit, does talk about the "disastrous" national debt. To his discredit, however, Trump's economic plans are estimated to increase that debt much faster than Clinton's, which is what happens when a Republican candidat[...]

‘My Pronouns Are They!’ Hysterical Kansas Students Inadvertently Make the Case Against Safe Spaces

Fri, 23 Sep 2016 16:07:00 -0400

Leftist students at the University of Kansas showed up to a meeting of the campus's conservative Young Americans for Freedom chapter and berated them for opposing safe spaces—using increasingly hysterical and angry language. Inadvertently, the activists made a great case against intellectual safe spaces. YAF leader Gabe Lepinski had invited the leftists attend after a disagreement broke out between them on Facebook. (For an overview of that episode, visit Campus Reform.) A number of them showed up. One of the YAF students—a white woman—was a bit edgy. But for the most part, the conservative students calmly attempted to debate the leftists while the leftists screamed at them. "White fragility: look it the fuck up!" said of the leftist students, a woman of color. She later referred to the conservatives as "motherfuckers" before angrily pounding on the table. She even called them white supremacists. "I don't study in the library because I don't feel comfortable, because I don't feel comfortable with people always wondering what my gender identity is," said another activist. Soon after, another person used a singular pronoun to identify the activist, who thundered in response, "My pronouns are they!" After the YAF leader, Gabe Lepinski, referred to the group—which included men, women, and perhaps two trans people—as "guys," one of the activists exclaimed, "Do not call us guys! It's a fucking microaggression." After about 30 minutes, Lepinski called an end to the meeting, but invited the leftists to come back next week. "We'll be here," said one. "How about I encourage my people to listen more and you encourage your people to listen more?" suggested Lepinski. "Okay," a leftist conceded. Many people won't read beyond the obvious, hyper-partisan headlines here—FRAGILE SNOWFLAKE SJW GETS TRIGGERED or I CAN'T EVEN WITH THIS WHITE SUPREMACIST ERASING TRANS BODIES, depending upon your ideological persuasion—and that's a shame. Because that's not what I saw. When I watch the video, I see two groups of people who really do dislike each other, and have strong disagreements, engaging each other in a conversation that is deeply uncomfortable and even a little scary. The leftists used extremely hurtful and offensive language, and were even occasionally physically intimidating. The conservatives said things that the leftists thought were offensive, too. And yet that conversation clearly needed to happen. It needs to happen many more times, in fact. It's going to be ugly, it's going to be offensive, it's going to be uncomfortable, and it's going to be hurtful. But it clearly needs to happen. For what it's worth, I think the leftists raised a number of good points, even if their delivery was hyperbolic. One of the leftists, a black woman of color, talked about the myriad ways in which her high school failed to prepare her for college. I have no doubt that some of the privileged members of YAF could benefit from hearing that. But here's the thing: If the left's vision of a safe space was enacted throughout campus, they could have never had that discussion. The leftists continuously screamed insults and hurtful words at the members of YAF: what if YAF had responded by saying you make us feel unsafe? Would that have shut them up? Should it have shut them up? I'm a little surprised, in fact, that more conservatives have not yet begun to use the language of the left for their own purposes. There is no doubt in my mind that a conservative involved in that discussion could have easily felt "unsafe" in the leftist sense—the triggered sense—at various points. This is why it's so critically important to stop public spaces on university campuses from being made "safe" (to the extent that safe is a synonym for comfortable). There are a lot of difficult discussions that need to be had, and the fact that they make some people upset isn't a good reason to shut them down. src="" allowfullscreen="allowfullscreen" widt[...]

In 3D-Printed Gun Case, Federal Court Permits Speech Censorship in the Name of Alleged National Security

Fri, 23 Sep 2016 12:35:00 -0400

Defense Distributed's blueprints for 3d-printed guns will remain offline and censored for now. Well, actually, they're probably not offline and you can find them if you know where to look. But a federal appeals court panel has rejected an attempt by the company to stop the State Department's order censoring the company itself from hosting its blueprints online. Reason's Brian Doherty has been extensively covering Cody Wilson and Defense Distributed's fight against the State Department's unusual tactics in enforcing weapon export laws. Technically the company isn't exporting any weapons. It is providing information that allows people anywhere in the world to use 3d-printers to create the pieces that make a gun. The State Department's demand that Defense Distributed not host the files then is clearly censorship. But is such censorship legal? Several members of Congress had submitted an amicus brief saying that the State Department had drastically overstepped its bounds by interpreting federal law as allowing them to censor online information. But for now, the 5th Circuit Court of Appeals declined a request for an injunction to stop the State Department's censorship demands. It has ruled that the alleged harms the State Department claims will occur if the information is made available outweighs the temporary harms faced by Defense Distributed for being censored: The fact that national security might be permanently harmed while Plaintiffs-Appellants' constitutional rights might be temporarily harmed strongly supports our conclusion that the district court did not abuse its discretion in weighing the balance in favor of national defense and national security. That is an awful lot of heavy lifting that "might" is doing, and an awful lot of judicial deference. There is a footnote explaining further that the potential for harm to national security involves not just the existing files but potentially future files that provide for even more weapon production outside the control of the federal government. Note that this ruling does not address whether it believes Defense Distributed arguments are legitimate. This is not a ruling about the underlying case. The panel is just going to defer to the Department of State for now while the underlying arguments are fought over. Not all three judges agreed. Judge Edith Jones dissented, saying the panel had failed to take the issues of prior restraint and censorship seriously, pointing out that the State Department had never previously sought to block information presented on the Internet. She also argues that the court had failed to analyze the case with the right level of judicial scrutiny. She warns: Undoubtedly, the denial of a temporary injunction in this case will encourage the State Department to threaten and harass publishers of similar non-classified information. There is also little certainty that the government will confine its censorship to Internet publication. Yet my colleagues in the majority seem deaf to this imminent threat to protected speech. More precisely, they are willing to overlook it with a rote incantation of national security, an incantation belied by the facts here and nearly forty years of contrary Executive Branch pronouncements. Jones' dissent is actually much longer than the majority ruling and delves heavily into regulations and precedents. She concludes: By refusing to address the plaintiffs' likelihood of success on the merits and relying solely on the Government's vague invocation of national security interests, the majority leave in place a preliminary injunction that degrades First Amendment protections and implicitly sanctions the State Department's tenuous and aggressive invasion of citizens' rights. The majority's nondecision here encourages case-by-case adjudication of prepublication review "requests" by the State Department that will chill the free exchange of ideas about whatever USML-related technical data the government chooses to cal[...]

Dallas Photographer Busted for Taking Pictures in Public Files First Amendment Suit

Fri, 23 Sep 2016 08:30:00 -0400

Avi Adelman, a freelance photographer in Dallas, was taking pictures at a Dallas Area Rapid Transit (DART) station last February when Stephanie Branch, a DART police officer, decided to arrest him for doing his job. The incident, described in a federal lawsuit that Adelman filed this month, shows how the First Amendment right to record images in public places can be both widely recognized and routinely violated. Listening to his police scanner on the evening of February 9, Adelman heard a report of an overdose involving the synthetic marijuana substitute known as K2 at DART's Rosa Parks Plaza station and headed there, thinking the incident might be newsworthy. When Adelman arrived at the station, he saw Dallas Fire/Rescue (DFR) paramedics attending to a man lying on the ground and began to photograph the scene. Branch approached him and ordered him to stop taking pictures. Adelman noted that he had a constitutional right to photograph public events as long as he did not interfere with police or other emergency responders. Branch then demanded that he leave the area, and when he refused she grabbed him and handcuffed him. While this was going on, a DART recorder captured revealing remarks by two paramedics and Elmar Lee Cannon, one of Branch's fellow DART officers: First Paramedic: He was just taking pictures, right? Cannon: Yeah. That's why I don't know why she's giving him a hard time. First Paramedic: Why is she going crazy? Cannon: I don't know. That's going to be on her. He can take all the pictures he wants. That's why I'm not getting involved in that... First Paramedic: He knows he wasn't doing nothing wrong, so... Cannon: I don't know why she's giving him a hard time...I don't know why she...There was no need for that. Second Paramedic: Yeah. I don't know where that idea came from...because there is freedom of the press. Branch nevertheless arrested Adelman for trespassing, and he spent the night in jail before posting a bond the next morning. Even though Branch was clearly in the wrong, as her colleague and the paramedics recognized, DART initially defended her. The day after the arrest, DART spokesman Morgan Lyons told the Dallas Observer's Eric Nicholson the agency had "reviewed the exchange and believes the officers acted appropriately." According to Lyons, "Dallas Fire-Rescue asked [Adelman] to move. He refused. Paramedics asked us to ask him to move several times. He failed to comply and that's why he was arrested." That was not true, as became clear a few days later, when DFR spokesman Jason Evans contradicted DART's account. "At no point were any requests made to ask Mr. Adelman to leave the scene and/or stop taking pictures," Evans said. "In addition, there were no requests made to [DART] officers to ask him to leave the scene and/or stop taking pictures." A few days after Branch's lie was revealed, DART informed Adelman that the charge against him had been dropped because the arrest was "not consistent with DART Police policies and directives." The agency launched an internal investigation of the incident, which concluded that Branch "did not establish Probable Cause to effect the arrest," since Adelman was "simply taking photographs of a person in a public place." The report from the DART Police Office of Professional Standards (OPS), which DART released six months after the arrest, noted that "Adelman was not breaking any laws," that surveillance video showed he was never less than 10 feet from "the actual medical scene" (vs. the "3 or 6 feet" that Branch claimed), and that the paramedics and the two other DART officers at the scene "did not witness Adelman ever interfere with medical treatment or medical personnel." OPS found that Branch initially approached Adelman based on her "mistaken belief" that photographing the overdose victim was illegal under the federal Health Insurance Portability and Accountability Act (HIPAA). Adelman says he told her that HIPAA's pri[...]

Northern Michigan University Might Have the 'Most Dangerous' Speech Code Ever

Thu, 22 Sep 2016 17:29:00 -0400

(image) Greg Lukianoff, president of the Foundation for Individual Rights in Education, writes that Northern Michigan University might just have "the most dangerous college speech code I've seen in my career."

Yeah, it's that bad.

NMU prohibits students from sharing "self-destructive thoughts" with other people, even their close friends. In practice, this means that NMU administrators have informed students who were going through difficult emotional episodes that they are prohibited from discussing such issues with other students.

According to New York Magazine's Jesse Singal, on March 25, 2015, Associate Dean of Students Mary Brundage told student Katerina Klawes who had been sexually assaulted and was seeking counseling "it is important that you refrain from discussing these issues with other students and use the appropriate resources listed below. If you involve other students in suicidal or self-destructive thoughts or actions you will face disciplinary action."

And Klawes wasn't the only one to receive such a warning. As recently as summer orientation 2016, incoming freshmen were told that talking about self-harming was prohibited, according to FIRE.

There's no sound medical reason to ban people from talking about self-harming. Students who are experiencing suicidal thoughts should talk about them—it's the first step toward getting help. The university seems to be concerned that permitting such discussions somehow promotes suicidal tendencies, but there's no science to back up that concern. It's much more dangerous to stigmatize people who are suffering emotionally and make them feel like they can't turn to their friends for help.

The policy also obviously violates students' free speech rights.

"NMU is imposing a gag order on students at a time when a conversation with a friend may be most needed," said FIRE Senior Program Officer Marieke Tuthill Beck-Coon in a statement. "Preventing students from simply reaching out to each other for help cuts off the most basic exercise of the right to speak freely."

The university should reverse itself immediately and make clear to students that they will not be sanctioned for talking about their mental health issues.

Yelp Refuses to Remove Reviews Ruled Defamatory—With Good Reason. Will California Supreme Court Agree?

Thu, 22 Sep 2016 16:10:00 -0400

Yelp is refusing to remove reviews posted to the website that were ruled defamatory by California courts. The company has appealed to the California Supreme Court, which this week agreed to take on the case. And it's a good thing, too—as it stands, California courts have essentially created a European-style "right to be forgotten," in which people could force the removal of online content that portrays them in a true but unflattering light. Legal scholar Eugene Volokh called the case "an interesting and important" one for Internet law and civil procedure. In an August letter asking the California Supreme Court to review the case, Volokh and co-authors said the appellate court's decision jeopardized "a vast range of online speech." Another signatory to the letter, Santa Clara University law professor Eric Goldman, described the decision—which, because it was one of the rare (less than 10 percent) appellate rulings marked as published, is citable and binding precedent—as "flat-out wrong" and wrote that he "can't stress enough how terrible [the] opinion is." The case revolves around personal-injury lawyer Dawn Hassell, managing attorney of the Hassell Law Group. In 2013, Hassell sued former client Ava Bird over negative comments Bird made on Hassell said Bird's comments were defamatory. Defamatory speech falls under one of a few exceptions to broad First Amendment protection, and Yelp's lawyers say it usually follows court orders to take down content that has been ruled defamatory. But in this case, the reason the court ruled in Hassell's favor is because Bird submitted no documents or statements in her defense and never showed up to the trial. The San Francisco County Superior Court issued a default judgement to Hassell, awarding her $557,918 and ordering Bird to remove the offending content from Yelp. In addition, the court held that " is ordered to remove all reviews posted by AVA BIRD under user names 'Birdzeye B.' and 'J.D.' attached hereto as Exhibit A and any subsequent comments of these reviewers within 7 business days of the date of the court's order." (J.D. was allegedly an alias of Bird's on Yelp, though this was never definitively established.) The judgment became final on March 16, 2014. Yelp was served with an injunction to remove Bird's reviews if she didn't do it herself. She didn't. Neither did Yelp. The company's lawyers contended that it couldn't be compelled to remove Bird's content because Yelp hadn't been party to the court proceedings in question. Bird may not have had the resources to fight Hassell's lawsuit, but Yelp certainly does. Yet Yelp was never named in Hassell's suit, and thus had no opportunity to defend itself. In a letter to Hassell, Yelp said the court's judgement and order had been "rife with deficiencies and Yelp sees no reason at this time to remove the reviews at issue. Of course, Yelp has no desire to display defamatory content on its site, but defamation must first be proven." That May, Yelp filed a motion to set aside and vacate the Bird decision on the "grounds that the legal basis for the decision is not consistent with or supported by the facts or applicable law." Specifically, it asserted that the First Amendment protected Yelp from having to remove the content, as did section 230 of the federal Communications Decency Act. It also claimed that the company's right to due process had been ignored. A California Superior Court denied the order. It also found that Yelp was "aiding and abetting the ongoing violation of the injunction" and thus "demonstrated a unity of interest with Bird." Yelp then appealed to the California Court of Appeal for the First Appellate District. In June, the appellate court denied Yelp's motion to vacate the decision and upheld the bulk of the original decision. It did remand the case back to the trial court with the direction to limit Yelp's[...]

Debating NYU's Jeremy Waldron on Free Speech vs. Hate Speech on College Campuses

Thu, 22 Sep 2016 11:05:00 -0400

On Tuesday, I debated Jeremy Waldron, a professor of law and philosophy at New York University, on "Hate Speech, Micro-Aggression and the First Amendment: Where to Draw the Line on College Campuses?" The debate was organized by Colgate University's Center for Freedom and Western Civilization to celebrate Constitution Day. The only thing that exceeds Waldron's stellar credentials is his personal charm. A New Zealander, he got his doctorate in law at England's Oxford University, has written over a dozen books, gazillions of journal articles, and taught at Berkley, Princeton and Columbia. His 2012 book, "The Harm of Hate Speech," expounds what has become by far the most discussed rationale in the last eight years for banning hate speech in America. In it, he makes the radical suggestion that America needs to get over its First Amendment hang ups and enact hate speech bans to protect the "basic dignity and humanity" of minorities. He is not concerned about hurting the subjective feelings of minorities, he says, as he is about the objective harm that an environment filled with hateful signs does to their ability to operate as equal citizens in society. He asks us to imagine how a Muslim man walking with his 10-year-old daughter in New Jersey would feel if he was confronted with a sign saying: "Muslims and 9/11! Don't serve them, don't speak to them, and don't let them in." What would the man say to his daughter?" There is more to Waldron's argument than this short description implies and Stanley Fish, the former Duke University professor who is among the most celebrated thinkers of the post-modern left, has noted that although most arguments for hate speech bans are knee-jerk and thoughtless and impulsive, Waldron's arguments are different. "They hit the mark every time." I obviously disagree. Vehemently. Here is my response to Waldron: The United States faces a lot of scorn and derision in elite international forums because it is the only country, apart from maybe Hungary, that refuses to enact hate speech bans. But on this Constitution Day, let me just say that it is a very good thing that America has a strong First Amendment tradition standing athwart history yelling stop to hate speech laws. And this is not because I don't care about minorities. I do. Profoundly. After all, I am a minority in nearly every respect. I'm an immigrant from India, a person of color, lapsed Hindu-turned-atheist and, rarest of all, a political libertarian. In my view, Donald Trump's characterization of Mexicans and his anti-minority hate mongering alone ought to disqualify him from the presidency. His comb-over is the other reason. So why do I oppose official bans on hate speech? Mainly because countries with a long history of them have done no better a job than America of protecting precisely what Prof. Waldron wants — the "basic dignity and reputation" of minorities, and a far worse job than America of protecting overall free speech rights. Lets just do a brief survey of the record: Anti-Semitism is undoubtedly much worse in continental Europe. The same is true for Islamophobia, despite its uptick in America in the Age of Trump. It took gays longer to win their rights in America than in Europe, but not because of the absence of hate speech bans. And America's treatment of Hispanics, its dominant minority, is no worse than, say, England's treatment of Indians and Pakistanis, its dominant minority. Blacks of course have a special, complicated history in America, but America has not needed hate speech bans to make racism unrespectable in polite company. Countries with hate speech bans don't have much to show by way of stopping hate and protecting minorities. But their record of protecting free speech is way worse than America's. Here are just a few of the many, many egregious examples: Canada has a Human Rights Tribunal that en[...]

UPDATED! In Defense of Instapundit Glenn Reynolds, Suspended from Twitter for Suggesting Motorists "Run Down" Charlotte Protesters

Thu, 22 Sep 2016 09:31:00 -0400

Updated (10:44 A.M.): Glenn Reynolds is back on Twitter. Scroll down to see this return-tweet. One of the Internet's most venerable institutions—Glenn Reynolds, the University of Tennessee law professor who runs the popular aggregator site Instapundit—has been suspended from Twitter: His offense was to tweet this in response to protests in Charlotte, North Carolina after a police shooting: Reynolds defends his tweet at Instapundit, writing, "Sorry, blocking the interstate is dangerous, and trapping people in their cars is a threat. Driving on is self-preservation, especially when we've had mobs destroying property and injuring and killing people. But if Twitter doesn't like me, I'm happy to stop providing them with free content." Well, I hope he is reinstated immediately and keeps on giving Twitter "free content." Over the past 15 or 20 years, Reynolds (whom I interviewed for one of my very first stories at Reason, about the potential influence of the Supreme Court case United States v. Lopez) has been one of the most-interesting and thoughtful voices on the broadly defined right. He writes everywhere (I recommend especially his USA Today columns) and books such as An Army of Davids and The Higher Education Bubble are the product of an incredibly sharp and serious person with an eye on the possibilities offered by technological and cultural innovation. Since coming online in 2001 shortly before the 9/11 attacks, the Instapundit site has been nothing short of a godsend, collecting and sharing links on an immense variety of topics from electoral politics to private space exploration to human longevity to flash sales at Amazon (for these and other reasons, Reynolds is sometimes called "the Blogfather"). I don't always agree with the spin the various contributors put on current events, but it's the first or second site I check every day after Whatever you think of the tastefulness of his suggestion regarding the protesters in Charlotte, the idea that he is seriously inciting any sort of actual or real threat is risible. I can appreciate the various pressures that Twitter is facing from all sorts of perspectives. The service is constantly being asked to take material down for any number of reasons, and the requests aren't simply coming from SJWs with bees in their bonnets (indeed, it seems as if the most numerous requests from copyright holders). Twitter lists the most common reasons for suspending accounts here. This seems to be the relevant section in Reynolds' case: We believe in freedom of expression and in speaking truth to power, but that means little as an underlying philosophy if voices are silenced because people are afraid to speak up. In order to ensure that people feel safe expressing diverse opinions and beliefs, we do not tolerate behavior that crosses the line into abuse, including behavior that harasses, intimidates, or uses fear to silence another user's voice. Any accounts and related accounts engaging in the activities specified below may be temporarily locked and/or subject to permanent suspension.... Violent threats (direct or indirect): You may not make threats of violence or promote violence, including threatening or promoting terrorism.... Hateful conduct: You may not promote violence against or directly attack or threaten other people on the basis of race, ethnicity, national origin, sexual orientation, gender, gender identity, religious affiliation, age, disability, or disease. We also do not allow accounts whose primary purpose is inciting harm towards others on the basis of these categories. Let's be clear: Twitter is a private company and has every legal right to act however it wants when it comes to creating and enforcing rules of conduct (at the same time, publicly stating rules and then failing to live up to them may provide redres[...]

Arizona Calligraphers Sue to Keep from Having to Write Gay Wedding Invitations

Wed, 21 Sep 2016 12:59:00 -0400

An interesting religious freedom and public accommodations case out of Phoenix is worth keeping an eye on for trends in this fight over who may be required to serve same-sex weddings. The owners of art and calligraphy shop Brush & Nib Studio are suing the City of Phoenix to attempt to block in advance the use of its antidiscrimination ordinances against them. Breanna Koski and Joanna Duka are evangelical Christians. They don't support same-sex marriages. They want to put a statement up on their website that says, while they won't refuse to sell pre-made goods to anybody regardless of their sexual orientation, they would not be willing to produce custom art or calligraphy work that would be part of a same-sex wedding—invitations, thank you notes, et cetera. Of note: Nobody has actually asked them to, yet. But Phoenix's ordinance clearly requires them to serve same-sex couples, and they said they've received two online forms for same-sex couples looking for information about their work. The studio says they haven't responded to them yet because they fear they'll be prosecuted if they refuse to do the work. They've sought representation by Alliance Defending Freedom, a Christian conservative legal organization who has been active in finding cases like this to represent (in pretty much the same way the American Civil Liberties Union has been active in finding cases to prosecute for the other side). The City of Phoenix asked for the case to be dismissed for lack of standing. The studio is currently under no threat of prosecution. Judge Karen Mullins refused the request to dismiss this week, noting that the threat of prosecution is real and that the city had investigated other similar claims of discrimination. The studio asked for an injunction to stop the city from enforcing the law as the case moved forward. The judge rejected that as well. She doesn't think the studio has much of a case, based on current legal precedents. Here's the part of the ruling worth paying attention to. Examining previous court precedents establishing when the government may and may not compel speech, Mullins determined that even though what the calligraphers are doing is obviously "speech," it wasn't "expressive speech" to produce wedding invitations and notes. They're just doing a gig. Mullins did not see anything resembling the projection of an opinion in what the women would be asked to do: Here, there is nothing about custom wedding invitations made for same-sex couples that is expressive. The purpose of a wedding invitation is simply to convey the details of the date, time, and place of the wedding and to identify the persons getting married. The printing of the names of a same-sex couple on an invitation or thank you note does not compel Plaintiffs to convey a government mandated message, such as an endorsement or pledge in favor of same-sex marriages, nor does it convey any message concerning same-sex marriage. Indeed any conceivable endorsement of same-sex marriage that might be conveyed would be conveyed by the act of the marriage itself, and not by the creator or printer of the physical invitation itself. It is absurd to think that the fabricator of a wedding invitation for a same-sex couple has endorsed same-sex marriage merely by creating or printing that invitation. Moreover, there is nothing about the creative process itself, such as a flower or vine or the choice of a particular font or color, that conveys any pledge, endorsement, celebration, or other substantive mandated message by Plaintiffs in regard to same-sex marriage. Thus, the creation of custom lettering or artwork displayed on Plaintiffs wedding invitations and related wedding products does not constitute expressive speech. Well then … why do so many Christian-owned businesses insist that it does? [...]

Ohio Man Arrested for Mocking Cops Files First Amendment Lawsuit

Wed, 21 Sep 2016 08:30:00 -0400

This week Anthony Novak, the man who was arrested for creating a parody of the Parma, Ohio, police department's Facebook page, filed a federal lawsuit accusing seven officers of violating his constitutional rights by using the legal system to punish him for making fun of them. Last month Novak was acquitted of using a computer and the internet to "disrupt, interrupt, or impair" police services, a felony punishable by up to 18 months in prison. Now he is trying to get some compensation from the city for the injuries inflicted by that trumped-up charge, arguing that the cops did not have probable cause to arrest him or search his apartment. He also argues that the statute used to prosecute him is "unconstitutionally overbroad because it provides the police unfettered discretion to wrongfully arrest and charge civilians in the State of Ohio with a crime for exercising their First Amendment rights." There is some tension between those two arguments, because if the law is as vague as Novak claims, police arguably did have probable cause to believe he had violated it. Either way, it should have been obvious to them that their vendetta against Novak was unconstitutional. It also should have been obvious to the municipal judge(s) who obligingly issued the warrants that police sought, the local prosecutors who pursued the case, and the judge who oversaw the trial after rejecting Novak's argument that his prosecution was inconsistent with the First Amendment. Novak's parody, which he posted on March 1 and deleted on March 3 after the Parma Police Department issued an indignant press release about it, copied the logo from the department's actual Facebook page but was in other respects notably different. It included notices announcing "our official stay inside and catch up with the family day," during which anyone venturing outside between noon and 9 p.m. would be arrested; advertising a "Pedophile Reform event" where sex offenders who visited all of the "learning stations" could qualify to be removed from the state's sex offender registry; and offering teenagers abortions, to be performed in a van in the parking lot of a local supermarket "using an experimental technique discovered by the Parma Police Department." There was also a warning that anyone caught feeding the homeless would go to jail as part of "an attempt to have the homeless population eventually leave our city due to starvation," along with an ad seeking applicants for jobs with the police department that said "Parma is an equal opportunity employer but is strongly encouraging minorities to not apply." The police were not amused. "The Parma Police Department would like to warn the public that a fake Parma Police Facebook page has been created," said a Facebook notice posted on March 2. "This matter is currently being investigated by the Parma Police Department and Facebook. This is the Parma Police Department's official Facebook page. The public should disregard any and all information posted on the fake Facebook account. The individual(s) who created this fake account are not employed by the police department in any capacity and were never authorized to post information on behalf of the department." Despite the implication that people might think cops really were performing abortions in a van or really did plan to promote family togetherness by forcibly confining people to their homes, it is hard to believe anyone mistook the parody for the real thing. "The Facebook page was not reasonably believable as conveying the voice or messages of the City of Parma Police Department," Novak's complaint notes. "Mr. Novak had no intention of deceiving people into believing that the account was actually operated by a representative of the police department, and no reasonable person co[...]

Which Major Party Presidential Candidate Blamed Free Speech for Terrorism Today?

Mon, 19 Sep 2016 16:00:00 -0400

It is fortunate that nobody was killed in the weekend terror attempts in New York, New Jersey, and Minnesota, other than the suspect in the mall stabbings. Since this is an election revolving around blaming and punishing people, of course that's where the political discussion went. Reminding us that they are both terrible on issues of free speech, Donald Trump and Hillary Clinton both had awful things to say about everybody's civil liberties in the fight against terrorism. Trump, this morning, on Fox & Friends, blamed the freedom of the press because of the publishing of magazines that instruct people on how to make bombs. He insisted that he believes in the freedom of the press (doubtful), but also called for anybody who provides instructions on how to build bombs to be arrested because they're "participating in crime." He also said some people who operate websites should also be arrested for "inciting violence. … They're making violence possible. They should be arrested immediately" for operating websites that give instructions on making bombs. (You can watch the segment cued up to the comments here) In typical Trump (and Fox & Friends) fashion, everything discussed is so vague as to be unclear what he means. Does he believe it's a prosecutable offense to simply publish information that can be used to make bombs? It's absolutely not, but it's often worth trying to tease out the bigger issue Trump is trying to get at. I want to maybe guess that what he really wants to do is go after sites that are actively attempting to stir up terrorism on behalf of the Islamic State, but maybe that's giving him too much credit. If he thinks that the providing of information is what makes the violence possible, then he's got a problem because—even if it were legal for the United States to prosecute people simply for providing information that could be used for violent means—the ability to access information on the Internet doesn't end at the U.S. borders. Who is he going to arrest? Trump's response is awful, but represents a commonly held attitude: Quite a few people want to censor information that can be used for violent means without actually thinking through the unintended consequences (maybe remind them of the court ruling that a school could ban patriotic apparel if it offended students and potentially stirred up violence). Trust Clinton to match Trump with her own broadside against free speech in response to the attacks and to make it all about Trump himself. Clinton said that the things Trump says is being used as a recruitment tool for ISIS and flat out essentially accused him of treason (without actually using the word). From New York Magazine: "We know that a lot of the rhetoric that we've heard from Donald Trump has been seized on by terrorists, in particular ISIS," Clinton said "They are looking to make this into a war against Islam, rather than a war against jihadists, violent terrorists — people who number in the, maybe, tens of thousands, not the tens of millions. They want to use that to recruit more fighters to their cause, by turning it into a religious conflict." Clinton went on to note that Trump's comments have been used for the recruitment of terrorists online, according to former CIA director Michael Hayden. "We also know from the former head of our counter-terrorism center Matt Olsen that the kinds of rhetoric and language Mr. Trump has used is giving aid and comfort to our adversaries," Clinton continued. [emphasis added] Not entirely sure how social signaling is going to help with the war on terror. Also not entirely sure it's going to help with the election. When you're accusing Trump of treasonous language, what are you saying about his supporters? Frankly, this statement is p[...]

Anti-Israel Speech on Campus Shouldn't Be Banned, According to CUNY Investigation

Mon, 19 Sep 2016 11:40:00 -0400

The City University of New York (CUNY) released a report earlier this month, detailing an independent investigation conducted by former federal judge Barbara Jones and former federal prosecutor Paul Schechtman into whether the actions of Students for Justice in Palestine (SJP) had contributed to an intimidating atmosphere of anti-Semitism and violence on CUNY campuses. The extensive investigation—spurred by a letter written by the Zionist Organization of America (ZOA) that claimed SJP's actions had left Jewish students feeling "harassed, threatened, and even physically unsafe"—has led the authors of the report to conclude that it would be a "mistake" to "blame SJP for any act of anti-Semitism on any CUNY campus," and rejected calls to ban the pro-Palestinian group. Noting that many of SJP's theatrical protest tactics such as "die-ins," mock checkpoints, and its annual "Israel apartheid week," constitute protected speech, the authors wrote, "Political speech is often provocative and challenging, but that is why it is vital to university life. If college students are not exposed to views with which they may disagree, their college has short-changed them." This is precisely correct, and also leaves room for the university to take a stand against "hate speech," in the form of condemnation, but not officially sanctioned punishment. Also from the report: As a public university, CUNY is limited in the ways that it can respond to hate speech, whether the words are anti-Semitic, racist, anti-Muslim, or anti-LGBT. CUNY cannot punish such speech unless it is part of a course of conduct so pervasive or severe that it denies a person's ability to pursue an education or participate in University life. It cannot mandate civility or sanction isolated derogatory comments. But what CUNY cannot punish, it can still condemn. As a general rule, CUNY's Administrators and College Presidents have spoken out against anti-Semitic comments. That practice must continue; hate speech must be challenged promptly and forcefully lest it breed. Earlier this year, the University of California Board of Regents moved to ban "anti-Zionism" as a form of hate speech, and the New York State Senate voted to pass a bill that would defund student groups that so much as encouraged boycotts of certain countries (Israel among them). The bill died, but only because the New York State Assembly failed to vote on it before the legislative session ended. Pointing out the absurdity and seemingly arbitrary nature of a law that would ban college students from expressing themselves politically about some countries but not others, the Foundation for Individual Rights in Education (FIRE) created the handy info-graphic below. FIRE's Adam Steinbaugh notes that because of the language of the bill, the Vatican, Sweden, India, all of Africa, and most of Asia would have been subject to calls for boycotts on-campus, but not Cuba, Pakistan, Venezuela, or Turkey. Three cheers for unproductive government, because had this bill made it into the Assembly, it would have very likely passed, and free speech on campus would have suffered a staggering defeat.[...]

Video: Student Forced to Remove Trump Hat, ‘You’re Not Allowed to Share Hate Language’

Fri, 16 Sep 2016 14:00:00 -0400

(image) Students at a Canadian university confronted another student who was wearing a "Make American Great Again" hat—when he refused their demands to remove his hat, the students grabbed it off his head.

You've got to take it off," insisted one female student, later identified as Zoe Slusar, a former vice president of Mount Royal University's student life program.

The student wearing the hat—Matt Linder, according to CBC—argued that he was exercising his free speech rights. "I'm not allowed to support a political candidate?" he asked.

"You aren't allowed to share hate language in the university," Slusar replied.

She didn't back down. Eventually she even threatened to report Linder to university authorities. "You got to take the hat off or I'm going to write the president of the university and he's going to come talk to you," she said.

Before that could happen, another student grabbed the hat off Linder's head. You can see a video of the encounter here.

MRU subsequently affirmed Linder's right to wear the hat in a statement: "Mount Royal University respects individuals who exercise their constitutionally-protected right to freedom of expression."

Slusar later admitted that Linder did indeed have a right to wear the hat:

"He is allowed to wear the hat. As a student, I disagree with what the hat represents. I have diverse friends (culturally and sexually) who would drop a class if the person wearing the hat was sitting in the room with them, because they would feel unsafe. Given the deeper issues of intolerance and oppression represented by the hat, I disagree with it."

I disagree with the sentiment behind the hat, too (although I would dispute that it's mere presence makes a room less safe). A university is a place where people with different views should challenge each other, and Slusar had every right to call out Linder for supporting a hateful, fascistic charlatan. I applaud her for doing so. But when she denied Linder the right to express his views, she succumbed to the same authoritarian impulse that animates Trump.

And look—Trump supporters love this kind of thing. They are out there, on college campuses, waiting for an excuse to claim their free speech rights were violated. This is a clear case of an entitled student, drunk on her moral righteousness, giving Team Trump the ammunition it needs to continuing making its case against political correctness.

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