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

Last Build Date: Tue, 17 Oct 2017 07:12:35 -0400


Make America Not So Nauseating

Mon, 16 Oct 2017 09:15:00 -0400

'It's frankly disgusting the way the press is able to write whatever they want to write," said President Trump on Wednesday, "and people should look into it." Amen, brother! It's downright abominable that people in the media can just spout off the first thing that comes into their heads with no concern for veracity or the potential for harm. What do they think this is, a personal Twitter account? The president also is repulsed by those jerks in the National Football League who have different opinions than he does about certain issues, and who show it by not standing up for the national anthem the way they have been required to do since way back in 2009. Trump deserves to have epic songs sung about him for demanding investigations into reporters and for suggesting that people he considers less patriotic than him should be fired. They say it's a free country and all that, but come on. You have to draw the line somewhere. The president shouldn't stop there, though. Many other things are not just frankly disgusting, but honestly nauseating, and Trump should use his bully pulpit to draw more attention to them, too. And not just women's suffrage or this business about the "right" to a fair trial, either. For example: While we're on the topic of football, it's genuinely revolting when televised games that last beyond the usual 37.5 hours are allowed to run over, pre-empting programs that are not just endless committee meetings interrupted by brief spurts of big men pushing each other and are, therefore, actually entertaining to watch. Somebody ought to ask why that's allowed. In all sincerity, it's totally putrescent when you let someone merge into traffic ahead of you and they don't give you the thank-you wave. Why don't these so-called "journalists" write a story about that, is what I'd like to know. It's truly appalling that hot dogs come in packages of 10, but hot dog buns come in packages of eight. Somebody needs to go to jail for that, and it ain't gonna be me. Candidly, the Honda CRV is so ugly it makes you want to retch, but the darn thing is everywhere. Who's going to fix that? You? Truthfully, when I see someone wearing brown shoes with a blue suit I throw up so hard and so long the muscles around my stomach start to cramp, and I can't breathe, and I stomp my foot on the floor for no discernible reason, it just kind of happens. Why isn't the Senate Intel Committee looking into this? Bob Corker and, um, something about IQ tests or something—that's why. Yea verily, people have started using "to include" in place of "including" (as in, "Applicants should have working knowledge of computer operating systems, to include Windows and Linux")—as if we were living in some kind of hippie commune where you could just swap infinitives and participles willy-nilly any time you wished. Do you know how gross that is? Imagine eating a large plate of cow's eyes and fish guts and washing them down with the smelly juice that collects at the bottom of a Dumpster after a light rain. That's how gross it is. Why doesn't the Fake News Network investigate THAT? To state it plainly, it's ghastly beyond words the way some people put so many bumper-stickers on their cars, especially the ones with many words in small print that you can't read anyway unless you're, like, two inches behind them. Congress needs to set a limit of three bumper-stickers per vehicle, or the terrorists have already won. Honestly, what is up with can openers these days? Half the time they hardly even work, leaving these big uncut spaces at odd intervals so you can't get the stuff out of the can, so you stick a spoon under the top to pry it open some, but that just bends the can into odd shapes, which is the greatest crime against humanity ever, believe me. Whoever let that happen should be stood up against a wall and shot. I thought this was America, doggone it. This column originally appeared in the Richmond Times-Dispatch.[...]

Even If Trump's Threat Against NBC Isn't Serious, It's Still Destructive

Fri, 13 Oct 2017 00:01:00 -0400

After NBC News ran an article that maintained that President Donald Trump had asked for the U.S. nuclear arsenal to be increased nearly tenfold, Trump, as is his wont, tweeted: "With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!" The answer, of course, is that it's never appropriate for a person sworn to defend the Constitution to threaten to shut down speech, not even if that speech irritates him or undermines his political priorities or happens to be genuinely false news. Trump might have framed his contention in the form of a question, but he's clearly comfortable with regulatory restrictions on speech. This puts in him league with those who support "fairness doctrines," those who want to overturn the Citizens United decision and so on. When I tweeted critical comments about Trump's "license" idea, a follower accused of me practicing "literal-ism." This is not new. As you know, we're not supposed to take everything Trump says seriously. Sure, it's more than likely his threat is nothing more than bluster. There is less of a chance that he'll challenge the "licenses" of networks—whatever that means; networks don't function on licensing tied to the veracity of their reporting, obviously—than there is of the GOP passing any meaningful bill. It's just more fuel for the corrupt symbiotic relationship between the president and the establishment media. Each side can now preen for a cycle. But none of this changes the fact that presidents do have the power to undermine your privacy and destroy your life over free expression. It doesn't change the fact, as we learned over the past eight years, that when presidents play around with authoritarian ideas for political gain, a faction of Americans—always a different faction, depending on who is speaking—are comfortable hearing it or offer rationalizations for it. All the while, we continue to abandon neutral principles for political gain. This is especially true on the issue of speech. A forthcoming Cato Institute poll, as reported by Reason, found that 50 percent of Democrats believe "government should prevent people from engaging in hate speech against certain groups in public." What's more, 53 percent believe defending someone else's right "to say racist things" is tantamount to "holding racist views yourself." It's a position similar to the one that alleges anyone who supports due process for those accused of rape on college campuses is merely defending rape. For that matter, it's reminiscent of the position of Democratic senators who argue that Republicans' demands for due process for gun owners make them no better than terrorists. Recently, about 200 staff members of the American Civil Liberties Union—an organization that bills itself a defender of constitutional rights—complained that the group's "rigid stance" on the First Amendment was undermining its attempts to institute racial justice. Is this really the choice—liberty or "justice"? For progressives, many of whom are abandoning liberalism, it seems the answer is yes. They're not alone. The Cato poll finds that 72 percent of Republicans would support making it illegal to burn or desecrate the American flag. More than 50 percent of them believe, as Trump once suggested, that those who do should be stripped of their U.S. citizenship. Fifty percent of Republicans believe the press has too much freedom in America. Other polling has found similarly disturbing results. To some extent, it is likely that answers in these polls are more about signaling race and gender issues than supporting any specific policy. In the same way, many of the answers are likely an outlet for frustration over flag protests or the media. Even so, what the polls do illustrate is that our hierarchy of ideals has changed in destructive ways. Americans find free speech to be a secondary principle. The entire "fake news" outrage—from Trump's usage of the phrase to the Facebook presidential election scare—is an excuse for some[...]

Kmele Foster Gets Shouted Down by Black Lives Matter Activists After Pointing out That MLK Used Free Speech Protections—Wait, What?

Thu, 12 Oct 2017 17:00:00 -0400

So the "Unsafe Space" campus speaking tour sponsored by Spiked (and hosted at least once so far in an emergency backup way by Reason) continues to generate interesting collisions between libertarian commentators and the angry campus progressives who seek to shout them down. One recent incident, while not coming close to a Berkeley-style riot, or a "Cocks Not Glocks" dildo-waving protest of gun-right speaker Katie Pavlich, or even the latest Charles Murray kerfuffle, nonetheless caught my attention because it involved old pal Kmele Foster, and my favorite piece of writing by Martin Luther King. Foster (see video below) had just sat through a series of emotional audience harangues defending identity politics and speech-sensitivity as necessary pushbacks against a racist power structure, when he attempted to make a case familiar to Reason readers—that free-speech protections are crucial precisely for minority populations' struggles against the majority: For so many years in this country, and I'm pointing to the 1960s in particular, speech protections were used by minority groups who were fighting for civil rights, and it was essential for them to be able to secure those rights, in order to advocate. The reason why Martin Luther King, for example, wrote his Letter from a Birmingham Jail from a Birmingham jail was because he was imprisoned for effectively violating speech codes—handing out flyers in the wrong spot, all of these various things. I think this is something that we don't necessarily understand. It was at that precise moment—the whole speech-codes-hurt-comparatively-powerless-black-people moment—when activists started shouting "Black lives matter! Black lives matter! Black lives matter!" as if, uh, there was any suggestion to the contrary? Thus began several minutes of barky audience non-sequiturs such as "WHO controls the facts? WHO controls the facts? It's the system!" Eventually Foster was able to complete his point. You can read more about it over at Campus Reform (with a corrective follow-up tweet from Kmele) and watch the exchange below: src="" allowfullscreen="allowfullscreen" width="560" height="340" frameborder="0"> The incident also came up during our most recent Fifth Column podcast, beginning at around the 7:40 mark: I had the weird experience of being part of an event that is being protested, where there are police officers, there 's a gauntlet of security guards who are checking bags, who are doing all of these things….Within 15 minutes kids are standing on their chairs screaming "Black lives matter!" They are standing up, disrupting the entire event. They ask for questions from the audience—rather than raise your hand and be called, since no one's hand rushed up right away, and you would have been either first or second, you just wait until we select someone, hand them a mic, and you run up in front of the room and say, "I'm just gonna stop this right here!" […] At some point we were able to reel it in, and I suspect that my pigment was helpful in allowing me to calm the storm a little bit….I was a little flustered, because there's something really unsettling about being in a place like that. You can listen to the whole episode, which covers a lot of free-speech ground, here: src="" width="100%" height="315" frameborder="0">Listen to Kmele Foster interview DeRay McKesson here, and recount a street run-in he had with BLM activists here.[...]

Why Trump's Threats Against Media Licenses Might Actually Violate the First Amendment

Thu, 12 Oct 2017 16:15:00 -0400

One of the truly great things about the First Amendment is that it applies to everyone. Well, almost everyone. With very few exceptions, the free speech protections enshrined in the U.S. Constitution give Americans the right to say pretty much whatever we want, whenever we want. And the courts have carefully protected that right for a long time—even that silly thing about not being allowed to shout fire in a crowded theater was later overturned by the U.S. Supreme Court—guided by the wisdom that free speech is vital for a vibrant, democratic, pluralist society to function. You can talk, yell, tweet, post, and publish pretty much anything you want. You can even say that you want to stop other people from having free speech rights—which would be a bad thing to do, but hey, man, free speech! Unless, of course, you happen to be the President of the United States, or another public official. Then the First Amendment works a little bit differently. This is important because the current occupant of the White House, a certain Donald Trump, is in the midst of a slap-fight with NBC over what the president views as "fake news" about his administration. Twice on Wednesday, Trump tweeted that "network news" could have licenses revoked over reporting "distorted" and "partisan" information. With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country! — Donald J. Trump (@realDonaldTrump) October 11, 2017 Network news has become so partisan, distorted and fake that licenses must be challenged and, if appropriate, revoked. Not fair to public! — Donald J. Trump (@realDonaldTrump) October 12, 2017 Reason's Matt Welch has already covered the reasons why Trump is very wrong about this—in fact, Trump's own FCC chairman, Ajit Pai, gave a speech last month where he sounded the warning that "free speech in practice seems to be under siege in this country." But, somewhat ironically, Trump's attacks on the First Amendment may themselves be a violation of the First Amendment. And not in the philosophical sense—they are that too, of course—but in the very real sense of actual law regarding the First Amendment. As Trever Timm, executive director of the Freedom of the Press Association, writes in the Columbia Journalism Review today, Trump doesn't even need to act on his threats against NBC to be violating the constitution. "There's a compelling argument Trump is in violation of Constitution right now—after he crossed the line from criticism of protected speech to openly threatening government action," Timm writes. Timm cites quite a bit of case law to support his claim. Perhaps the most important bit comes from Judge Richard Posner, who wrote the Seventh Circuit ruling in BackPage LLC v. Thomas Dart, Sheriff of Cook County, Illinois. In that case, law enforcement officials were trying to threaten credit card companies, processors, financial institutions, or other third parties with sanctions intended to ban credit card or other financial services from being provided to (here's Reason's Elizabeth Nolan Brown's take on the case and ruling). Dart wasn't taking direct legal action against Visa and Mastercard, but he did send threatening letters to their offices, pressuring them to cut off services with That's not something government officials are allowed to do, said Posner, citing earlier case law on the matter. "A public official who tries to shut down an avenue of expression of ideas and opinions through 'actual or threatened imposition of government power or sanction' is violating the First Amendment," the judge wrote. As Timm points out, some Trump defenders—including Vice President Mike Pence—have said that Trump is merely exercising his own First Amendment rights to say what he wants to say about NBC and the media in general. But are threats to use government force part of the First Amendment? Posner suggests otherwise: "A government entity[...]

Students Heckled Charles Murray at Michigan, But It Wasn't a Total Disaster

Thu, 12 Oct 2017 15:01:00 -0400

It wasn't a full-blown Middlebury, but Charles Murray's appearance at the University of Michigan last night did feature a familiar mix of protesting, heckling, and walk-outs. Still, the students demonstrating against Murray did not shut the event down, though many told me beforehand that this was their goal. I have a theory about that. Two hours before the event, protesters gathered at the Diag, the central area of campus. Some faculty members had teamed with a local anti-fascist group to lead one of the protests; this group did not plan to shut down the event, and was simply focused on responding to Murray's ideas, which they consider to be junk science. (Murray co-wrote The Bell Curve, a book that makes controversial claims about race and intelligence.) Another group, led by graduate students, planned a coordinated walk-out, but only as a last resort if they failed to get the event shut down. A third group, consisting of students and other local activists affiliated with By Any Means Necessary, also desired an explicit shutdown. Airport-style security was in effect at the building where Murray was speaking: No sharp objects, umbrellas, or water bottles were allowed. Police officers had to check every bag, which meant that students had to wait in line for an hour before entering the auditorium. The room had space for only 200 students. Ben Decatur, the American Enterprise Institute's student coordinator at Michigan, kicked off the event by asking the audience to respect free speech principles. But the audience was about 90 percent activists, and they laughed at this idea. Then Murray took the podium. The heckling began almost immediately. Students shouted at him that he was a white supremacist and a supporter of the KKK. They told him to "get the fuck out of here." They shut off the lights, revealing that activists had somehow arranged for the words "white supremacist" to be projected on the wall behind Murray. Their phone alarms all went off simultaneously. They blasted the Star Wars imperial march, and then, apropos of I'm-not-sure-what, Rihanna's "Bitch Better Have My Money." At least 10 police officers stood idly by as this happened. The chanting reached a crescendo, and it seemed likely the event would have to be cancelled. But Rick Fitzgerald, a member of the university's public affairs department, took the stage and implored the protesters to let Murray speak. No shutdown took place, and the activists opted to walk out at the appointed time. The problem with the walkout is that the auditorium only had so much room. By taking a seat with the intention of vacating it in protest of Murray, the activists denied students who actually wanted to watch the event the opportunity to do so. And their heckling made it difficult to hear Murray for much if not most of the event. But the event was not a Berkeley- or Middlebury-magnitude disaster. There was almost no violence or property destruction—with the notable exception of an observer whose phone was snatched and thrown over a balcony—and the shutdown was averted. I would credit this partial success to Fitzgerald's intervention, and it suggests a potential way to deal with student protests moving forward. There are no good options for preventing students from shutting down speakers. The nuclear option, of course, is to expel them for doing so. That's something many on the right favor, but administrators and campus security would not necessarily do a good job distinguishing mere protest (which is rightly protected by the First Amendment) from heckling. Universities routinely deny due process rights to students; I have little reason to believe they would do better if they received a mandate to punish protesters. This is why the University of Wisconsin's new anti-protest policy, which is based on a flawed Assembly bill, should worry free speech advocates. The other option is to do what the College of William and Mary did: absolutely nothing. But the Michigan event[...]

FCC Chair Preemptively Rubbishes Trump’s Dumb Tweet About Challenging Media Licenses (UPDATED)

Wed, 11 Oct 2017 18:42:00 -0400

Is it a day ending in the letter "y"? Then yes, President Donald Trump has said something flippantly authoritarian, made a wholly empty threat, and blasted the media, all before lunch. Helpfully, he accomplished this all with just one tweet: With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country! — Donald J. Trump (@realDonaldTrump) October 11, 2017 The president is correct, if unintentionally so, that challenging a media company's license out of frustration over its allegedly inaccurate coverage is "Bad for country!" As he would know well, if he paid attention to his own Federal Communications Commission Chair, Ajit Pai, who in a speech last month (as covered by Variety) sounded the warning that "free speech in practice seems to be under siege in this country": Pai added that the "common thread is the belief, shared by too many, that those with views perceived as unpopular or offensive should be silenced. One has to wonder whether those who will one day carry the torch will be dedicated to open debate or will instead seek to marginalize viewpoints they don't like." Pai said that he also sees "worrying signs" at the FCC, pointing to Twitter messages in which "people regularly demand that the FCC yank licenses from cable news channels like Fox News, MSNBC, or CNN because they disagree with the opinions expressed on those networks." "Setting aside the fact that the FCC doesn't license cable channels, these demands are fundamentally at odds with our legal and cultural traditions," Pai said. (Check out Reason's April interview with Pai, which is embedded at the bottom of this post.) CNN's Oliver Darcy and Brian Stelter do a good job of explaining why Trump's trial-balloon threat is "essentially toothless," not least because "there is no single license for NBC or any other national television network." Trevor Timm, executive director of the Freedom of Press Foundation, counters in a Twitter thread that "There's an argument that Trump's new threats against NBC & the NFL have crossed the line into an actual First Amendment violation." As always, keep refreshing Popehat. Working through my own "5-Step Process for Playing Defense Against Trump's Bad Ideas," part of which emanated from his nonsense-talk as president-elect about criminalizing flag-burning, I quickly conclude that 1) Trump can't really do anything about this specific issue right now (not least because his FCC commish would raise a stink). 2) Congress ain't gonna do jack about this or any related issue, either. 3) There are many constitutional/institutional restraints to Trump acting on his many garbage ideas about the media (on which more below). 4) It's possible that his behavior will create a backlash that reverses the seeming erosion in public support for the First Amendment (see, for example, the recent increase in public trust of the media, and yes, yes, "the media" does not equal the First Amendment, but I'm talking about backlashes). But! 5) How might he be changing the political conversation in such a way to make what is currently unlikely possible? That's where this latest belch might linger. Let's just posit that this is a stupid and awful thing for any American president to say: President Trump: "It's frankly disgusting the way the press is able to write whatever they want to write, and people should look into it." — NBC News (@NBCNews) October 11, 2017 Press freedoms (including to the freedom to write mean-spirited things about politicians without being rung up for sedition) are not "disgusting"; they are part of what Made America Great In the First Place (#MAGIFP). But by stomping up and down on the right's preexisting anti-media button, Trump is helping to smoke out a fundamental incoherence among his base. Namely, that many red-hatters imagine themselves as fighting the real battle for free speech aga[...]

Judge Won't Let Feds Have Full Access to Names of People on Anti-Trump Site

Wed, 11 Oct 2017 15:10:00 -0400

(image) A judge has added new limits to a warrant the Justice Department is using to try to track down the anti-Trump activists who disrupted Inauguration Day activities.

As part of an effort to identify any protester who did anything illegal in D.C. the day Donald Trump was sworn in as president, the Department of Justice served a warrant against the web host DreamHost. The warrant was absurdly broad, attempting to get private data on anybody who had so much as visited, a site used to organize anti-Trump protests. According to the company, the warrant as initially submitted would have required it to hand over the IP addresses of more than a million visitors to the site.

DreamHost announced it was resisting the warrant, calling it an overly broad fishing expedition and a threat to free speech. It certainly could cause a chilling effect if the government were able to simply demand the names of anyone who visited a website critical of the president. Just today, Trump was pretty clearly suggesting that he'd like to find some way to retaliate against media outlets whose reporting he dislikes.

The Department of Justice then retreated and said it would refine the request. Superior Court Judge Robert E. Moran approved a more limited warrant and ordered the Justice Department to put protocols in place to limit access to private information that had nothing to do with a criminal investigation.

Yesterday Judge Moran put out a final order that made it clear he's not going to let the Justice Department just wade through personally identifiable private information without any probable cause. DreamHost will be permitted to redact user information, and the Department of Justice won't be able to access it unless it can show that a particular user is suspected of criminal activity.

"While the government has the right to execute its warrant," Moran noted in his order, "it does not have the right to rummage through the information contained on DreamHost's website and discover the identity of, or access communications by, individuals not participating in alleged criminal activity, particularly those persons who were engaging in protected 1st Amendment activities."

Kudos to DreamHost for putting up a fight here. As a third party host, it's not the one being investigated for misconduct, but it's using the revenue it earns from its customers to help protect those customers' privacy from an overreaching government.

Survey: 58% of Students Want a Campus Where They Are Not Exposed to 'Intolerant or Offensive Ideas'

Wed, 11 Oct 2017 14:35:00 -0400

(image) A majority of students either don't think hate speech is protected by the First Amendment or aren't sure. And among the 46 percent of students who correctly state that hate speech is protected, nearly half of those students say it shouldn't be.

These are among the findings of a new survey of college students' opinions. The survey was conducted by the polling firm YouGov and published by the Foundation for Individual Rights in Education.

A full 58 percent of students told the pollsters that they want to be part of a campus community that is free of "intolerant or offensive ideas." What's more, a

majority of Black (76%) and Latino students (69%) agree that it is important to be part of a campus community where they are not exposed to intolerant or offensive ideas, as opposed to one-half of White students (51% agree). Sixty-three percent of very liberal students and 45% of very conservative students agree that it is important to be part of a campus community where they are not exposed to intolerant or offensive ideas—an 18 percentage point difference.

Students' attitudes toward the public presentation of student opinions vary by ideology as well as by partisanship. Few very liberal students (17%) agree with the idea that they should not have to walk past student protests on campus, whereas a majority of very conservative students (64%) agree. There is a partisan divide of 32 percentage points in attitudes toward campus protest: 28% of Democrats and 60% of Republicans agree with the idea that they should not have to walk past student protests on campus.

The majorities are all wrong here: Black, Latino, and liberal students do not have a right to attend a university where intolerance is forbidden, and conservative students do not have the right to attend a campus where protesting is forbidden. Protests and the discussion of offensive ideas are both vital parts of the college experience, and at public universities they are protected by the First Amendment.

Most respondents supported bringing speakers to campus with whom they might disagree strongly, but 56 percent of students think it's sometimes appropriate for administrators to disinvite controversial speakers. More than 40 percent of strongly Democratic students would want their university to disinvite a transphobic or homophobic speaker, a racist or sexist, or Donald Trump. And more than 20 percent of strongly Republican students would want the university to disinvite a communist.

These findings are a reminder that while leftist students are often the most vocally opposed to free speech on college campuses, conservatives are sometimes not much better—particularly when pollsters ask different questions. As Stephanie Slade reported earlier this week, Republicans have terrible opinions about criminalizing the burning of the American flag, an act that is manifestly and inarguably protected by the First Amendment.

Yet I remain particularly interested in the leftists' intensely negative views about restrictions on speech, since it represents a relatively recent and dramatic shift of opinions. For more on this flip-flop, read Jill Lepore in The New York Times.

Latest Russia Conspiracy Theory: Facebook Pages Are Culture Hacks Meant to 'Harvest Rage'

Tue, 10 Oct 2017 14:16:00 -0400

(image) It has come to this: The latest reporting on Russia's attempts to "interfere" with the U.S. presidential election focuses on Facebook groups that posted content created by Americans.

This, The New York Times breathlessly reports, represented an effort to "Reshape U.S. Politics."

What are the Russians accused of this time?

"The Russian pages—with names like 'Being Patriotic,' 'Secured Borders' and 'Blacktivist'—cribbed complaints about federal agents from one conservative website, and a gauzy article about a veteran who became an entrepreneur from People magazine," the Times informs us. "They took descriptions and videos of police beatings from genuine YouTube and Facebook accounts and reposted them, sometimes lightly edited for maximum effect."

So in essence, they did what a lot of Facebook pages do: Repost content that fits the theme of the page.

The Times describes this as "harvesting American rage," but that seems grossly overstated. These pages—which the site has removed—were not unlike countless other politically oriented pages on Facebook. Since virtually anyone can start a Facebook page, and since the Russian pages reportedly suffered from broken English, it's hard to imagine them having any real influence rather than being merely another interchangeable part of the online echo chamber.

The wide range of ideological opinion represented by the Facebook pages (which included material that highlighted police brutality and discrimination against Muslims, in addition to standard right-wing fare) also undercuts the idea that Russian efforts (or these efforts, at least) were directed toward a particular outcome.

"This is cultural hacking," Jonathan Albright, research director of Columbia University's Tow Center for Digital Journalism, told the Times. "They are using systems that were already set up by these platforms to increase engagement. They're feeding outrage—and it's easy to do, because outrage and emotion is how people share."

Maybe that's the aim. But that's also their right. The right to free speech, perhaps contrary to popular belief, is not limited to U.S. citizens. Anyone can (or should be) able to participate in America's marketplace of ideas.

Are Russians trying to breed chaos by stoking certain segments of America's political debates? Guess what: Free speech means our debates are always chaotic. That makes them stronger. Suppressing speech because Russians may have amplified it, on the other hand, undermines our culture of free speech and has the potential to be a lot more harmful than any Facebook page could possibly be.

Do Abortion Rules Violate Satanists' Religious Freedom? Missouri Supreme Court to Decide

Tue, 10 Oct 2017 10:35:00 -0400

The Supreme Court of Missouri has agreed to hear an interesting religious and reproductive liberty case. Brought by "Mary Doe," a member of the Satanic Temple, the case challenges an "informed consent" law requiring a 72-hour waiting period, an ultrasound, and support for statements like "life...begins at conception" before a woman can get an abortion. "The case would be the first of its kind to be heard by either the Missouri Supreme Court or U.S. Supreme Court," notes the Kansas City Star. Doe claims the requirements violate her right to religious freedom, as Satanists do not believe that life begins at conception. The first court to hear the case rejected Doe's constitutional claims, but an appeals court last week decided Doe's claims might have merit. It presents "a contested matter of right that involves fair doubt and reasonable room for disagreement," the Western District Court of Appeals ruled unanimously, ordering the case be transferred to the jurisdiction of the Missouri Supreme Court. Missouri regulations require that any woman seeking an abortion must first view an active ultrasound, wait 72 hours after an initial doctor's visit, and sign papers declaring that they have read and understand state-mandated statements that personhood begins at conception and that abortion at any stage terminates "the life of a separate, unique, living human being." "The sole purpose of the law is to indoctrinate pregnant women into the belief held by some, but not all, Christians that a separate and unique human being begins at conception," wrote the appeals court. "Because the law does not recognize or include other beliefs, [Doe] contends that it establishes an official religion and makes clear that the state disapproves of her beliefs." Despite its provocative name, the Satanic Temple doesn't actually worship Satan. There's no ritual sacrifice or other trappings of Satanic lore. It's more of a mischievous and high-concept anti-religion, opposed to the tenets of organized Christianity and their infiltration of American laws. Its description of its mission actually sounds mighty libertarian, as well as steeped in traditional morality: to "encourage benevolence and empathy among all people, reject tyrannical authority, advocate practical common sense and justice, and be directed by the human conscience to undertake noble pursuits guided by the individual will." "The first conception was in response to George W. Bush's creation of the White House Office of Faith-Based and Community Initiatives," one of the Satanic Temple's founders told The New York Times in 2015: "I thought, 'There should be some kind of counter.'" He hit on the idea of starting a faith-based organization that met all the Bush administration's criteria for receiving funds, but was repugnant to them. "Imagine if a Satanic organization applied for funds," he remembered thinking. "It would sink the whole program." Both founders consider themselves "atheistic Satanists," with no more literal belief in Satan than they do in a literal God. To them, Satanism represents "the solidarity of outsiders, those judged and excluded by the mainstream," explains the Times. In addition to challenging religiously motivated abortion regulations, the Satanic Temple has also been active in fighting things like prayer in public schools, prayer at City Council meetings, a biblical statute on Oklahoma statehouse grounds, courthouse Nativity Scenes, and public schools distributing the Bible to their students.[...]

Republicans Are Far From Consistent Champions of the First Amendment, Poll Finds

Tue, 10 Oct 2017 08:00:00 -0400

It's not just coddled college kids and political "progressives" who espouse worrisome views about when it's OK to shut down speech and expression they don't like. Many conservatives admit to favoring policies that would proscribe the rights of Muslims, journalists, and those who "disrespect" the United States. A new poll from the Cato Institute throws some discouraging light on the overall state of public opinion regarding the First Amendment. According to the topline poll results (to which I received advance access), 72 percent of Republicans would support making it illegal for an American to burn or desecrate the flag. A little more than half of Republicans would punish the desecrators by stripping them of their U.S. citizenship, something Donald Trump suggested (to great and deserved indignation) a few weeks after he won the election last November. Most GOPers recognize, at least in theory, that disfavored speech should still be protected: Around seven in 10 agree with the statement that "people should be allowed to express unpopular opinions in public, even those that are deeply offensive to other people," compared to less than five in 10 Democrats. Nonetheless, 36 percent of Republicans would support prohibiting offensive public statements aimed at the police, and the same number would ban such comments aimed at the military. By comparison, just 24 percent would outlaw offensive speech aimed at gays, lesbians, and transgender people. Despite constant declamations from the right on the importance of religious freedom, 67 percent of Republicans favor a law to "prohibit face coverings in public spaces." Nearly half would ban the construction of mosques in their community. That is much higher than among all Americans (28 percent) and among Democrats only (14 percent). It's also directly contrary to constitutional protections agaainst laws that discriminate against certain faith groups. Asked how colleges should handle students who disrupt invited speakers in the manner of last week's rightly maligned protest at the College of William and Mary, 65 percent of poll respondents thought that hecklers should be disciplined in some way. But about one-third (32 percent) of GOPers thought schools should actually have the police arrest disorderly students. Among all participants in the survey, that number was closer to one-fifth (19 percent). Perhaps most troublingly, 50 percent of Republicans say the press in America has too much freedom to do what it wants. Just 31 percent of all respondents felt the same way. Republicans also appear to be following the president's lead on a related question: By 63–35 percent, they say journalists are "an enemy of the American people." Among everyone who took the survey, those numbers were flipped. Lefties, too, hold many lamentable views regarding the legal and cultural importance of free expression in America. Fully half of Democrats think that "government should prevent people from engaging in hate speech against certain groups in public." Some 53 percent say that defending someone else's right "to say racist things" is just as condemnable as "holding racist views yourself." Two in three believe offensive speech constitutes an act of violence, and the same number feel that college administrators "have an obligation to protect students from speech and ideas that could create a difficult learning environment." These answers represent a frightening departure on the American left from a longstanding consensus reflected in the famous aphorism that you need not agree with what somebody says in order to support her right to say it. Yet the departures on the right may be even more noteworthy, particularly given how much pleasure conservatives take in decrying the behavior of their political adversaries. In fact, 72 percent of Re[...]

Utah May Bring Back Porn Czar to Target 'Obscenity' Like Cosmo Magazine

Mon, 09 Oct 2017 16:15:00 -0400

For the past 14 years, Utah has made do without a "porn czar." The position—officially known as the "Obscenity and Pornography Complaints Ombudsman"—has been vacant since 2003, though it was never officially eliminated. Now state Sen. Todd Weiler (R–Woods Cross) may revive it, even as the Utah attorney general suggests legislators strike it from the books. Weiler has been on an anti-porn crusade for several years now. He's the architect of a 2016 declaration to declare porn a public health crisis (which passed the state legislature unanimously) and a proposal passed earlier this year to encourage "porn addicts" to sue porn platforms. And Weiler's definition of porn is apparently broad enough to encompass mainstream women's magazines. Weiler "says he became convinced that the obscenity and pornography complaints office may be needed because of an ad campaign attacking Cosmopolitan magazine as illegal porn," The Salt Lake Tribune reports. "I've received some complaints...that stores are selling Cosmo at eye level to a child," he told the Tribune. "There's no blinder rack on it, even though we have some blinder rack language in the state code." Weiler suggests that an obscenity ombudsman could focus on things like providing guidance to retailers. But the position also has the power to monitor and punish business owners for daring to display magazines that mention sex. Victoria Hearst, the public face of the Cosmo campaign that so inspired the Utah senator, thinks that Cosmopolitan should not only be kept out of the eyesight of children but also prohibited for anyone under age 21. Opponents of Weiler's note that for all its seeming frivolousness, Cosmopolitan can be an important source of sex-positive information for girls. "Pornography isn't an issue in Utah, but shame definitely is," wrote Kyli Rodriguez-Cayro, an advocate with sexual-violence victims group Start By Believing, in a recent op-ed. Weiler says that reviving the porn czar position isn't a priority for him, and he hesitates because of the cost of funding the office. But whether or not he brings back the position, Weiler—who also chairs the state's Senate Judiciary Committee—has pledged to keep up his anti-porn pursuits. He also continues to push insane ideas about porn's supposed harms, urging parents get "counseling or treatment or therapy for a child who has been exposed."[...]

The D.C. Subway System Banned These Ads

Mon, 09 Oct 2017 06:00:00 -0400


ACLU Now Against First Amendment, Conservatives Against Second Amendment?

Thu, 05 Oct 2017 13:52:00 -0400

Over at the American Civil Liberties Union (ACLU), about 200 staffers have signed an open letter arguing in favor of restrictions on speech, a proposed departure from the group's long, laudable history of defending First Amendment rights, reports The New York Times: "Our broader mission—which includes advancing the racial justice guarantees in the Constitution and elsewhere, not just the First Amendment—continues to be undermined by our rigid stance," says the letter, which a former member of the A.C.L.U.'s board, Michael Meyers, provided to The Times. About 200 staff members—the A.C.L.U. has about 1,300 full-time employees—signed onto the letter, according to a spokeswoman. Meanwhile, in the wake of the Vegas shooting, one of the Times' ostensibly right-learning columnists is ready to repeal the Second Amendment: And lest you think Stephens is just an isolated squish, remember that there are a bunch of Republican congressmen jumping on a restrictionist bandwagon post-Vegas as well. Their number includes House Speaker Paul Ryan (R–Wisc.), who is now saying of a potential ban on bump stocks, which allow semi-automatic weapons to fire more quickly, "clearly that's something we need to look into." (UPDATE: The National Rifle Association is open to bump stock bans too.) To be clear, the ACLU is still a long way off from formally repudiating the First Amendment, and the GOP fussing over bump stocks isn't a wholesale rejection of the Second Amendment either. But both developments are directionally alarming and worth examining more closely. Hard cases make bad law, and the fallout from the repugnant Stephen Paddock and the Charlottesville tiki torchers is offering proof that cliché today. The position of the ACLU staffers who signed the letter is quite common: the notion that there are occasions when First Amendment rights must be overcome by concerns for safety or security. But if you believe that, you should probably not be working for an organization whose decadeslong record of absolutist defense of free speech is the thing for which it is justifiably famous. (The post-Charlottesville announcement that ACLU would no longer advocate for the speech of armed protesters was also driven by staff uprising, making this a trend of at least two.) Likewise, conservatives who give in to the rhetoric of "common-sense gun control" for the sake of appearing compassionate are understandably responding to electoral incentives. And being answerable to constituents is something Americans should want our legislators to do on occasion! But as Brian Doherty explained in Reason last year, "You Know Less Than You Think About Guns." Even these narrowly tailored laws seem, upon further examination, to have mixed effectiveness at preventing violence at best, and occasionally generate their own harms. More vitally, even partial prohibitions on firearms and their components undercut basic understandings about where our rights begin and end. There will be a temptation to praise both of these pushes as bipartisan, centrist compromises. But bipartisanship, centrism, and compromise are not goods unto themselves. The ACLU's ideological extremism in defense of even heinous speech is a virtue, and likewise the (admittedly more sporadic) historical GOP willingness to hold the line on Second Amendment rights. The word ideologue is increasingly used as an insult, and with Donald Trump we are experiencing a decidedly post-ideological presidency. But compromises are functions of the starting points in the debate. And the people and institutions who offer strong, consistent, principled defenses of the most robust definitions our most basic rights—ideologues—are not the enemy. They are vital to the f[...]

Pomona College Investigates Students for Posting Offensive Memes on Facebook

Wed, 04 Oct 2017 10:20:00 -0400

Students at Pomona College came under investigation last month for posting offensive memes in a closed Facebook group. Today good sense prevailed and the college decided not to punish the kids for their speech. The group is called "U PC BREAUX"—a funny way of spelling "You PC, bro?," which is a South Park joke about the fratty enthusiasm and militance of some campus social justice types. Launching an investigation over some un-P.C. meme-sharing is exactly the kind of overreaction that South Park was mocking. Many people, to be sure, would be offended by the group's content. As student Ross Steinberg told Inside Higher Ed: Memes were posted about rape, genocide and, in one example, calling Immigration and Customs Enforcement to deport undocumented immigrants because they were being too loud, Steinberg told Inside Higher Ed. He said he had been randomly invited to the group, which contained about 300 members. Pomona enrolls about 1,650 students. "Personally, I felt this is a big group on campus," Steinberg said. "This was a group in which people post hateful really kind of normalizes that kind of thought." Steinberg and others are free to expose participants to ridicule and condemnation. But Pomona's investigation hinges on whether irresponsible meme-ing constitutes a "bias incident," and that raises free speech considerations. Though Pomona is a private institution, it explicitly guarantees students that it will respect their free expression rights. The college's harassment code even binds administrators to the First Amendment: Consistent with California Education Code Section 94367, the definition of harassment contained in this policy and its application to student speech shall be subject to the limitations of the First Amendment to the United States Constitution and Article 1, Section 2 of the California Constitution. As an educational institution, Pomona College is committed to the principle of free expression and the exploration of ideas in an atmosphere of civility and mutual respect. Thus, in keeping with the principles of academic freedom, there can be no forbidden ideas. The Foundation for Individual Rights in Education (FIRE) sent a letter to Pomona urging them to abandon the probe. "Pomona students cannot be subject to investigation or punishment for reading, posting to, or being a member of a private Facebook group that permits, or even encourages, its members to share images and text offensive to other people," wrote FIRE's Adam Steinbaugh. "The threat of punitive measures implied from an investigation by administrators may please some members of the community, but it is fundamentally at odds with Pomona's policies and obligations." This morning, Vice President for Student Affairs Miriam Feldblum sent an email to students announcing that the investigation was completed. The college determined that "the memes were bias-related and protected speech" and that there was no "basis to initiate an investigation into the Facebook group or individual students for possible violations of the Student Code or our Discrimination and Harassment Policy." Feldblum's email clarifies that speech has to meet several criteria before it crosses the line between protected expression and impermissible harassment: An act which is speech alone shall not be considered to violate this paragraph unless it is a threat of violence; or (1) the speech, considered objectively, is abusive and insulting rather than a communication of ideas, (2) the speech is directed at an individual and actually used in an abusive manner in a situation that presents an actual danger that it will cause an immediate breach of the peace by inciting a violent reaction b[...]