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Free Speech/First Amendment

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

Published: Sun, 26 Feb 2017 00:00:00 -0500

Last Build Date: Sun, 26 Feb 2017 19:12:11 -0500


Conservatives Made Their Bed With Milo, Now They Have to Lie In It

Sun, 26 Feb 2017 09:30:00 -0500

Milo Yiannopoulos finally went too far. Less than three days after this lightning rod Breitbart News editor made a triumphant appearance on Bill Maher, he was dumped by the Conservative Political Action Conference and Simon & Schuster. Then he was forced out to resign from Breitbart. And this was all because a tape surfaced in which Yiannapoulos seemed to condone pedophilia. This was awful stuff, but it was hardly the first —and hardly the worst thing that Yiannopoulous has ever done. That it took these pedophilia comments for conservatives to finally turn on Yiannopoulos speaks volumes about how low their movement has fallen. Yiannopoulos was a hate-peddling provocateur long before this. By inviting him to speak at universities around the country, many college Republicans apparently thought they were taking a brave stance against the forces of political correctness, and scoring one for free speech. In fact, they were discrediting their own movement by allying themselves with a vicious troll — demonstrating that they hate their enemies more than they love their alleged principles. Republican students have a right to invite whomever they want to say whatever they want (short of a targeted call for violence) unmolested and without censorship. So if University of California, Berkeley, where Yiannopoulous' appearance triggered riots by armed leftist hoodlums, stick to their vow to have him back (along with right-wing conspiracy theorist Alex Jones) then so be it. Berkley is a public university and is required not just by the First Amendment but its own mission to be a broad purveyor of ideas to create a "safe space" for Yiannopoulos. And CPAC is a private gathering that can put whomever it wants on its roster — and also remove those same people. But if Republicans have a right to invite Yiannaopoulos, others have the right to judge them for the company they keep. And Yiannopoulos is very, very bad company. For starters, he writes – or wrote -- for Breitbart, a go-to site for the alt-right movement, a loose conglomeration of long-standing nativist outfits such as VDare and FAIR (Federation for American Immigration Reform), and white supremacists. They all hate the left's political correctness and multiculturalism not because it offends America's commitment to individual rights and universalistic notions of justice, but because it comes in the way of their ethno-nationalistic project — which the site aids by peddling a constant stream of the vilest xenophobia (as I wrote here). But Yiannopoulos is a devilishly cunning man who is not easily categorized. He has devised an elaborate straddle, serving the alt-right while hiding behind his complex identity as a gay, Catholic, partly Jewish immigrant to make fun of the left's growing regime of intolerance. To be sure, this regime needs attacking. It has become impossible to challenge leftist orthodoxy on race, gender, sexuality, and other issues without being dubbed a racist, sexist, and bigot. The left has made discussion of too many issues taboo and vastly narrowed the terms of discussion on those that are allowed. But if "nothing goes" in the leftist moral universe, "anything goes" in Milo's and his fellow alt-right trolls'. And that, too, is a big problem. Yiannopoulos wants to replace the left's protective authoritarianism with the alt-right's nihilistic anarchism. If the left wants to empower the state to mollycoddle minorities, Yiannopoulos and his social media warriors want free rein to viciously bait and bully minorities — and mock them if they refuse to grin and bear it. It is a profoundly degraded and dehumanized spectacle. It's political sado-masochism. Now, in Yiannopoulos' appearances on campuses and elsewhere, there is often nothing particularly objectionable about him. To the contrary, he is funny, charming, knowledgeable, edgy, entertaining, and sometimes even insightful. Even his profanity-laden attacks aren't out of line compared to what you hear from contemporary stand-up comics. If that was all there was to Milo, you could simply shake your head at h[...]

Arizona Bill to Crack Down on Rioters Could Be Used to Shut Down Protests

Thu, 23 Feb 2017 11:30:00 -0500

(image) Rioting is illegal, even in Arizona, but some Republican senators there want to make it extra super illegal. And critics fear they're going to make it so illegal that it will result in people being charged with criminal conspiracy or racketeering (and risk having their property seized) just by participating in a protest where others might engage in violence.

Democratic senators expressed such worries in a piece posted at Arizona Capital Times. They fear that if SB 1142 is made law, it will be used to find new ways to crack down on peaceful protesters by creating pretenses to connect them to troublemakers. The Republicans defending the law are turning to the conspiracy that all the violence is planned and paid for by outsiders as justification:

By including rioting in racketeering laws, it actually permits police to arrest those who are planning events. And [Republican Sen. John] Kavanagh, a former police officer, said if there are organized groups, "I should certainly hope that our law enforcement people have some undercover people there.''

"Wouldn't you rather stop a riot before it starts?'' Kavanagh asked colleagues during debate. "Do you really want to wait until people are injuring each other, throwing Molotov cocktails, picking up barricades and smashing them through businesses in downtown Phoenix?''

Sen. Sylvia Allen, R-Snowflake, said the new criminal laws are necessary.

"I have been heartsick with what's been going on in our country, what young people are being encouraged to do,'' she said.

She agreed with Quezada that there already are laws that cover overt acts. But Allen said they don't work.

"If they get thrown in jail, somebody pays to get them out,'' she said. "There has to be something to deter them from that.''

This seems a bit of a short-sighted approach, one Democratic legislator pointed out. The Republican senators are only perceiving the protesters as coming from the left and not considering the idea that this new crime classification could come back to haunt Tea Party type protesters if somebody decides to get violent at a protest. These senators also seem to be operating under the absurdly mistaken idea that violent agitators at protests are something brand new.

Not mentioned in the Times story, but pointed out by Will Gaona, policy director for the Arizona chapter of the American Civil Liberties Union, on Twitter: Law enforcement unions are supporters of the legislation and are no doubt helping push it along. It will certainly make it easier for police to justify practices where they simply shut down and detain protesters without much consideration over who is actually engaging in destructive behavior.

SB 1142 doesn't actually do a whole lot but simply add rioting to existing conspiracy and racketeering classifications and defines rioting thus: "A person commits riot if, with two or more other persons acting together, such person recklessly uses force or violence or threatens to use force or violence, if such threat is accompanied by immediate power of execution, which either disturbs the public peace or results in damage to the property of another person."

The bill passed on a party live vote in the Senate, 17-13 and is heading over to the House.

Universities Lean Left, but Are Diversity Laws the Answer?

Wed, 22 Feb 2017 14:50:00 -0500

(image) Iowa Sen. Mark Chelgren (R–Ottumwa) is a man on a mission to ensure partisan balance at universities in his state, reports The Des Moines Register. Chelgren has introduced Senate File 288, a law that would enact a hiring freeze on Iowan universities until the numbers of registered Republicans and Democrats on faculty fall within 10 percent of each other.

"We have an awful lot of taxpayer dollars that go to support these fine universities," he told the Register. Students "should be able to go to their professors, ask opinions, and they should know publicly whether that professor is a Republican or Democrat or no-party affiliation, and therefore they can expect their answers to be given in as honest a way possible. But they should have the ability to ask questions of professors of different political ideologies."

Most college faculties lean to the left, according to Heterodox Academy, an organization that aims to encourage diverse viewpoints on campus. Using data obtained by the Higher Education Research Institute (HERI), the group found that about 60 percent of professors held far-left or liberal ideologies as of 2014, while far-right and conservative professors comprise a little above 10 percent.

Writing at Heterodox Academy, Sam Abrams noted that professors have been steadily moving to the left. "Between 1995 and 2010, members of the academy went from leaning left to being almost entirely on the left," Abrams observes. "Moderates declined by nearly a quarter and conservatives decreased by nearly a third."

Chelgren sees the regulation of Iowan universities' hiring practices as the solution to this problem. "I'm under the understanding that right now they can hire people because of diversity," he said, according to the Register. "They want to have people of different thinking, different processes, different expertise. So this would fall right into category with what existing hiring practices are."

Social psychologist Jonathan Haidt, one of the men behind Heterodox Academy, spoke at the 2017 International Students for Liberty Conference last weekend. In his talk he lamented the ideological skew in higher education. Unlike the Iowa lawmaker, though, his solutions do not resort to legislation. Instead, he hopes students will press their universities "to do three things: adopt the Chicago principles on free expression, implement a non-obstruction policy—meaning you can't shut people down. You can protest, you can wave signs, but you can't stop a person from speaking. And finally, please, university, give us some viewpoint diversity."

By "the Chicago principles on free expression," he was referring to the University of Chicago philosophy that schools should offer a neutral platform for dialogue and disagreement.

Forcing schools to hire individuals based on a political quota probably wouldn't work anyway. As the Register notes, even "Chelgren said professors who want to be hired could simply change their party affiliation to be considered for the position." Colleges and universities should of course strive to incorporate a diversity of thought at their institutions, but mandating that diversity by law is not the answer.

Public School Bans Pro-Diversity Posters to Avoid Offending Pro-Trump Snowflakes

Wed, 22 Feb 2017 09:40:00 -0500

Political correctness frequently manifests itself when authority figures decide certain forms of expression are likely to offend delicate sensibilities and therefore must be curbed. That appears to be the spirit behind the Carroll County Public Schools' (Md.) decision to order the removal of posters depicting women of different ethnicities and religions from the classrooms of Westminster High School. Some teachers had hung the posters in support of "diversity," but school administrators decided the posters amounted to political advocacy on behalf of the teachers, the Carroll County Times reports. Carey Gaddis, a district spokesperson, told the Huffington Post that after receiving "at least one" complaint from a school staffer, teachers were asked to remove the posters "because they were being perceived as anti-Trump by the administration." Gaddis says the school district doesn't allow for political posters in the classroom unless "both sides" are represented. At first blush, the posters don't scream partisan politics. There is no mention of President Donald Trump or any political entity anywhere on the posters, the only words read, "We the People-Defend Dignity." However, the posters are political, at least according to their creator, Shepard Fairey—the street artist behind the iconic Barack Obama "Hope" image. Fairey told the Washington Post that thousands of prints of his "We the People" images were produced specifically to be used in protests against the Trump administration, and also told the Los Angeles Times, "It makes it easier for people who are afraid to express their point of view because they think they are out of step with the dominant ideology." This creates an interesting conundrum. If a teacher had hung a poster reading "Support Our Troops," would that be a political act requiring a "No War" poster to ensure both sides are represented? Would the "We the People" posters be acceptable if they were placed beside a "Build the Wall" poster? Some Westminster High students and alumni have found a clever way to get the message of the posters into their school without the approval of the administration, through a crowdfunding campaign to re-produce the posters' imagery on t-shirts. Gaddis confirmed to the Carroll County Times that students will be permitted to wear the shirts to school and that teachers have the right to contribute to the campaign on their own time, but per district policy will not be allowed to wear the shirts in the classroom. It's reasonable that to expect public school teachers to not explicitly stump for political candidates or causes in the classroom, but politics can be inferred in almost any social statement. If equal time is required for every viewpoint expressed on a poster (take environmentalism, for example), or if public schools must be made safe spaces from any form of expression with even a tangential political point of view, that could potentially create more problems than it solves.[...]

NRA-Backed Law Violates the First Amendment in the Name of Protecting the Second

Wed, 22 Feb 2017 08:00:00 -0500

Last week the U.S. Court of Appeals for the 11th Circuit overturned a censorious Florida law that tried to stop doctors from pestering their patients about guns, sacrificing the First Amendment in the name of protecting the Second. Such laws, which the National Rifle Association supports, show how fake rights—in this case, an overbroad understanding of the right to armed self-defense—endanger real ones. Florida's Firearm Owners' Privacy Act, enacted in 2011, was a response to complaints that pediatricians and family practitioners had become excessively nosy about guns in the homes of their patients. The American Medical Association, the American Academy of Pediatrics, and the American Academy of Family Physicians encourage their members to ask parents about guns, treating them as hazards analogous to alcohol, swimming pools, and poisonous household chemicals. Sometimes gun owners object to such inquiries, especially if they seem to be colored by a moralistic anti-gun ideology. The 11th Circuit's decision describes half a dozen examples that influenced Florida's legislators: A pediatrician in Ocala had reportedly told a mother that she would have to find a new physician for her child due to her refusal to disclose information about firearm ownership in the family home. A state representative said that his daughter's pediatrician inquired if he owned a firearm, and then asked him to remove the firearm from the home. An email described how a mother "was separated from her children while medical personnel...interrogated" them about firearm ownership and put information about such ownership in their medical records. One doctor refused to treat a child because he wanted to know if there were firearms in the home. A patient, according to a state senator, was told that disclosing firearm ownership was a Medicaid requirement. And another patient was informed that Medicaid does not pay for care if patients refuse to answer firearm-ownership questions. A representative of the National Rifle Association reported that a child would not be examined if the parent refused to answer questions about firearms in the home. Assuming these accounts are accurate, the behavior of these doctors may have been unreasonable or even (when they misrepresented Medicaid requirements) unethical. But their requests for information about guns were not unconstitutional, since the Second Amendment applies only to the government. The law passed in response to these anecdotes nevertheless purported to protect the Second Amendment rights of Floridians by regulating what doctors say to their patients. As the 11th Circuit notes, that makes no sense (citations omitted, emphasis added): There was no evidence whatsoever before the Florida Legislature that any doctors or medical professionals have taken away patients' firearms or otherwise infringed on patients' Second Amendment rights. This evidentiary void is not surprising because doctors and medical professionals, as private actors, do not have any authority (legal or otherwise) to restrict the ownership or possession of firearms by patients (or by anyone else for that matter). The Second Amendment right to own and possess firearms does not preclude questions about, commentary on, or criticism for the exercise of that right. So, as the district court aptly noted, there is no actual conflict between the First Amendment rights of doctors and medical professionals and the Second Amendment rights of patients that justifies [the law's] speaker-focused and content-based restrictions on speech. In addition to prohibiting doctors from discriminating against gun owners (a provision the appeals court upheld), the Firearm Owners' Privacy Act forbade them to request or record information about guns unless it is "relevant to the patient's medical care or safety, or the safety of others"—a standard that rules out routine inquiries about firearms. The law also instructed doctors to "refrain from unnecessarily[...]

Jon Haidt Hopes Libertarians Can Save Us From Coddled Campus Culture

Sat, 18 Feb 2017 12:30:00 -0500

At the International Students for Liberty Conference (ISFLC) in Washington, D.C., this morning, New York University social psychologist and The Righteous Mind author Jonathan Haidt suggested that libertarians have a critical role to play in combatting the victimhood culture that's been exploding on America's college campuses in the last few years. In 2015, Haidt and Greg Lukianoff of the Foundation for Individual Rights in Education teamed up to write a blockbuster Atlantic cover story called "The Coddling of the American Mind." In it, they drew attention to just how spectacularly colleges are failing to prepare students to think critically and deal with adversity. Since then, things have only gotten more insane. Over the course of an hourlong breakout session, Haidt detailed everything that's going wrong with campus culture and how worried he is about what it means for the future. "For the first time in my life, I think this could continue to escalate to the point that democratic institutions start to break down," he concluded. Haidt plugged Heterodox Academy, the platform he started to bring together scholars to resist these developments, which features resources students can use to encourage the administrators at their schools "to do three things: adopt the Chicago principles on free expression, implement a non-obstruction policy—meaning you can't shut people down. You can protest, you can wave signs, but you can't stop a person from speaking. And finally, please, university, give us some viewpoint diversity." The goal of the project is, he openly admits, to create a schism in academia. "We have a gigantic market failure where almost all of the elite schools are going down this road," he said, "but most parents don't want their kids to go to such a school. Now, the parents are never going to sacrifice prestige, so no matter how far left they go, parents are always going to want their kids to get into the top schools. But if credible alternatives arise," that can shake up the scary status quo. "So at Heterodox Academy what we're trying to do is really praise the schools that say, 'We're going to produce a neutral platform and you guys can argue it out,'" he said. "Chicago and [the University of] Virginia are two of my top hopes, because they have long traditions on free speech. We're trying to create a schism so that Brown and other schools like it just become ever more like viper pits, where even the students are saying, 'This is insane.' And the students at Chicago are saying, 'Oh, it's really cool. We can argue about anything.' My hope is that students and parents will flock to the ones that aren't viper pits." Haidt then said he thinks classical liberals like those at the conference are particularly suited, and situated, to be effective advocates on these positions. Looking at research on how different groups are viewed on campus, he noted that "conservatives are poison. They're seen as just racists [like] Milo and Trump. But as far as I can tell, libertarians aren't really hated. The left looks at you kind of warily. You confuse them, but that's good. That's an opening." "At Heterodox Academy we've noticed that there are not a lot of conservatives out there in the academy," he added. "What there are are libertarians and centrists. That's the main kind of diversity we have to work with. And this is not about having conservatives in the academy. What we need is to not have orthodoxy. So the more you guys can raise your voices and question things, the better." Follow Haidt on Twitter for more on all of this. Follow me on Twitter for more from ISFLC.[...]

Florists Join Bakers, Photographers in Court Ruling Ordering Them to Serve Gay Weddings

Fri, 17 Feb 2017 13:30:00 -0500

Florists—at least those in Washington State—can be forced to provide their goods and services for gay weddings. That was the unanimous decision from the state's supreme court handed down yesterday. The high-profile case, which had been winding through the courts for a while, pitted Baronnelle Stutzman, owner of Arlene's Flowers in Richland, against a gay couple who had come to her seeking her flowers for their wedding. She declined, citing her religious opposition to recognizing same-sex marriage. As had happened in other cases involving bakers and wedding venues, this decision put Stutzman on a collision course with the state's public accommodation antidiscrimination laws. Washington forbids discrimination on the basis of sexual orientation. Stutzman's argument was that she wasn't discriminating on the basis of the men being gay but rather refusing to participate in the wedding (which wasn't even legally recognized by the state when they started planning it in 2013). She argued that government mandating her participation by requiring her to provide flowers violated her constitutional rights to free speech, free exercise, and free association. The court roundly rejected all of her claims. The decision noted courts had previously rejected claims that attempted to separate "status" from "conduct" in similar ways, that, for example, discriminating against somebody who is pregnant falls under sex discrimination. As for her attempt to invoke her religious freedoms, they noted that the Supreme Court has set the precedent that "that individuals who engage in commerce necessarily accept some limitations on their conduct as a result." As for her free speech claim, the court has shared the position that we've seen in similar cases: They say Requiring Stutzman to prepare flowers for a same-sex marriage is not actually compelling her to endorse said marriages. This is very similar to how courts have ruled on wedding cakes. They have declined to accept the argument that the creation of a wedding cake is in and of itself expressive speech, but a baker does have the freedom to reject orders to pass along a particular textual message. (I explained the almost comically absurd complexity of this line of legal reasoning here years ago). Perhaps even a little more concerning, even if they did accept floral arranging as a form of expressive speech, it still might not have changed their ruling. In a similar case in New Mexico, a photographer lost a fight to refuse to shoot a gay wedding. Pretty much everybody understands that photography is expressive speech. But this majority decision agreed with the New Mexico court's decision, which concluded, "[W]hile photography may be expressive, the operation of a photography business is not." That is the kind of logic that can end up in all sorts of bad places: "While the publication of a newspaper may be expressive, the operation of a media business is not." The operation of a business is indeed expressive. It remains deeply frustrating to see the courts (and the American Civil Liberties Union) continue to sometimes cling to an idea that people lose some of their freedoms simply by engaging in commerce, which is itself a type of freedom. The Cato Institute submitted an amicus brief defending the florist's right to say no to the couple as a First Amendment issue. Cato (like Reason) has long supported legal recognition for same-sex couples. That's not the issue here; it's a matter of free speech (or compelled speech, in this situation). The Alliance Defending Freedom, which represented the shop (and was just designated a "hate group" by the Southern Poverty Law Center) is promising to try to get the case before the U.S. Supreme Court. I'm skeptical the high court would take the case. They've already refused to hear the previous wedding photography case, and that's a much more straightforward example of expressive speech. And so far, the [...]

Now It’s Okay to Punch Nazis and White Male Libertarians. That Escalated Quickly.

Wed, 15 Feb 2017 15:31:00 -0500

(image) Well, that was fast.

First, a black bloc protester punched alt-right figure and white-nationalist sympathizer Richard Spencer during inauguration weekend, and some people defended this blatant exercise of violent censorship on the grounds that Spencer is a fascist and as such should not enjoy free speech right. (The Nation's Natasha Lennard called it "pure kinetic beauty.")

Some weeks later, protesters at the University of California, Berkeley, smashed windows and set a large fire in order to prevent Milo Yiannopoulos from speaking on campus. Yiannopoulos is not as extreme as Spencer—he does not identify as a white nationalist or a member of the alt-right—but nevertheless holds a number of deplorable views and is closely associated with Breitbart and Trump-ism. Again, the black bloc said that defending people from fascism requires Yiannopoulos to be silenced by the mob.

The day after, similarly-aligned people tried to prevent Gavin McInnes from speaking at New York University. Black bloc protesters maced him as he left the building. McInnes, a former Fox News personality aligned with Trump and Yiannopoulos, certainly does make ugly and offensive statements. But was violence the best answer to those statements? Some say yes.

Today, I couldn't help but notice this, from Mike Monteiro, a design expert and occasional writer:


Is he kidding? I can't tell. No clarification was offered. I emailed and tweeted at him. He did not respond. If it's a joke, at the very least he thinks it's funny to entertain the idea.

So how's that for goal-post shifting? First, we decide it's okay to attack Nazis. Then we decide it's okay to punch people who aren't Nazis but are awful and sort of remind us of Nazis. Then it becomes okay to punch the people who say Nazis and Milo are bad but we shouldn't punch them. You know those slippery-slope arguments people are always rolling their eyes at? Well, there's the slippery slope for you. And we'll be normalizing a whole lot of violence as we slide.

Meanwhile, the shut down of Yiannopoulos at Berkeley was so wildly successful that conservative students have been cowed into silence. Just kidding: They're actually bringing Milo back to campus, and Alex Jones.

As I wrote previously, research shows us that violent resistance is not the most effective tactic for stopping Trump, and runs the risk of making the broader public more sympathetic to the kinds of bad policies the Trump administration would like to enact. Violence is the language that fascists understand best.

Pro-Pot Student Group Wins 1A Fight With Meddling School Admins, State GOP

Mon, 13 Feb 2017 15:05:00 -0500

A win for free-speech and marijuana-decriminalization advocates from the U.S. Court of Appeals for the Eighth Circuit. On Monday, a three-judge panel ruled in favor the student chapter of National Organization for the Reform of Marijuana Laws (NORML) at Iowa State University (ISU), which had been banned from using ISU trademarks on much of its promotional material after drug prohibitionists in state politics complained. ISU generally grants student groups the right to use ISU insignia, logos, and other trademarks (such as the words "ISU" and "Iowa State") on promotional materials, under certain broad conditions. Decisions are made by the school's Trademark Licensing Office. When NORML ISU first formed, in 2012, group members submitted a request for approval of a t-shirt saying "Freedom is NORML at ISU" with a small cannabis leaf above the slogan, and the Trademark Office initially approved it. Soon thereafter, the Des Moines Register ran an article about marijuana legalization in which ISU student Josh Montgomery, then president of the school's NORML chapter, mentioned that ISU was supportive of his organization's efforts and had even approved the aforementioned t-shirt. On the day the Register article ran, the Iowa House Republicans Caucus sent a formal letter to ISU leadership asking whether they had actually approved the NORML t-shirt. By the end of the day, ISU President Steven Leath and his top staff were emailing one another to discuss whether the school could revoke approval of the NORML design. The next day, a representative from the Iowa Governor's Office of Drug Control Policy personally contacted ISU administrators to voice concern with their t-shirt approval policies. A few days after that, NORML ISU requested permission from the Trademark Office to use the same t-shirt design for another batch of shirts. This time, their request was placed on hold pending an upcoming ISU President's cabinet meeting. Thereafter, the ISU Trademark Office informed NORML students that it could not approve the use of any ISU trademarks in conjunction with any design featuring a cannabis leaf. It also said the group must clear all future designs with Student Affairs leadership before submitting them to the Trademark Office. From there on out, "the Trademark Office rejected every NORML ISU design application that included the image of a cannabis leaf," explained the circuit court in its decision. "The Trademark Office also rejected designs that spelled out the NORML acronym but replaced 'Marijuana' with either 'M********" or "M[CENSORED].' The Trademark Office however approved several designs which did not use a cannabis leaf, but simply stated the group's name, and fully spelled out the NORML acronym." In response, two members of the student group filed a lawsuit against their university, alleging violations of their First Amendment rights. The U.S. District Court for the Southern District of Iowa initially ruled in favor of the students, prompting the university to appeal. On Monday, the appeals court affirmed the district court's ruling, concluding that students' "attempts to obtain approval to use ISU's trademarks on NORML ISU's merchandise amounted to constitutionally protected speech." And state schools cannot discriminate against constitutionally protected speech on the basis of its viewpoint without proving that this restriction serves a compelling governmental interest and is narrowly tailored to serve that interest. In this case, Iowa State's rejection of NORML ISU designs did discriminate based on viewpoint, the court found, and this discrimination was based on "political pushback." Therefore, "the district court did not err by concluding that [ISU] violated plaintiffs' First Amendment Rights because defendants engaged in viewpoint discrimination and did not argue that their administration of the trademark[...]

Facebook Has No First Amendment Right to Send Unauthorized Texts, Says Court

Fri, 10 Feb 2017 16:09:00 -0500

(image) "Today is Jim Stewart's birthday. Reply to post a wish on his Timeline or reply with 1 to post 'Happy Birthday!'" That's the text, from Facebook to Colin Brickman, that launched a legal battle between Brickman and the social-media giant.

You see, Brickman had opted out of receiving texts from Facebook via the platform's notification settings. In response to the unwanted birthday reminder, Brickman filed a class-action lawsuit against Facebook, representing "all individuals who received one or more Birthday Announcement Texts from [Facebook] to a cell phone through the use of an automated telephone dialing system at any time without their consent."

The suit, filed in the U.S. District Court for the Northern District of California, argues that Facebook's sending unauthorized text messages is a violation of the federal Telephone Communications Privacy Act (TCPA). "A valid TCPA claim requires plaintiff to allege (1) a defendant called a cellular telephone number; (2) using an automated telephone dialing system ('ATDS'); and (3) without the recipient's prior express consent," explains lawyer Jack Greiner in the Cincinnati Enquirer. "A text message is a 'call' within the meaning of the TCPA."

In its defense, Facebook alleged that the TCPA in unconstitutional. Citing the U.S. Supreme Court's 2015 decision in Reed v. Town of Gilbert, Facebook attorneys argued that the TCPA's allowed exceptions—for emergency communications and debt collectors—render it an umpermissable, content-based restriction on speech. But the judge, while agreeing that the TCPA's restrictions are content-based (and thus subject to strict scrutiny, legally speaking), found that the law passed constitutional muster nonetheless.

The case will go forward with Facebook defending its text messages on technical grounds; it argues that the texts were not automated because Brickman and others who received them had supplied Facebook with their phone numbers. But, for now, Facebook's argument that it has a First Amendment right to send people text messages against their will has been rejected.

The 9th U.S. Circuit Court of Appeals has twice found the TCPA to be constitutional in previous cases—Moser v. Federal Communications Commission (1995) and Campbell-Ewald v. Gomez (2016)—the Department of Justice pointed out in a memorandum in support of TCPA's constitutionality. In the latter case, the 9th Circuit rejected the idea that the government's interest with the law "only extends to the protection of residential privacy, and that therefore the statute is not narrowly tailored to the extent that it applies to cellular text messages."

"There is no evidence that the government's interest in privacy ends at home," ruled the 9th circuit in Campbell-Ewald. Furthermore, "to whatever extent the government's significant interest lies exclusively in residential privacy, the nature of cell phones renders the restriction of unsolicited text messaging all the more necessary to ensure that privacy."

Flemming Rose Against the Worldwide Suppression of Speech

Fri, 10 Feb 2017 12:11:00 -0500

Flemming Rose isn't going to watch the decline of free speech without a fight. In 2005, while an editor at the Danish newspaper Jyllands-Posten, Rose commissioned twelve cartoons about Muhammad to encourage artists to overcome self-censorship. Extremists responded to the cartoons with attacks on western embassies and riots, resulting in the deaths of over 200 people. Now Rose has written The Tyranny of Silence, a defense of his decision to publish the cartoons and a guide to unfettered expression in the 21st century. "I'm not willing to sacrifice freedom of expression on the altar of cultural diversity," he says. As politicians across the world respond to the challenge of multiculturalism with censorship, campus speech codes, and the persecution of journalists, Rose explains why openness is the proper political response to a globalized world. Rose is no rogue provocateur. He is one of the planet's most committed defenders of free speech, the open society, and enlightenment values of tolerance and human rights. Edited by Todd Krainin. Cameras by Josh Swain and Mark McDaniel. INTERVIEW TRANSCRIPT Nick Gillespie: Today we're interviewing Flemming Rose at the Cato Institute and the author most recently of The Tyranny of Silence: How One Cartoon Ignited a Global Debate Over the Future of Free Speech. In 2005, while an editor at the Danish newspaper Jyllands-Posten, Rose commissioned a series of cartoons about the prophet Mohammed as an exercise to stop self-censorship. Eventually, terrorists and extremists responded to the cartoons with violence, attacks on western embassies and riots creating a death toll that reached at least 200 according to the New York Times. Rose is no rogue provocateur. He is one of the planet's most committed and articulate defenders of free speech, the open society and enlightenment values of tolerance and universal rights and that is why I'm particularly happy to have the opportunity to talk with him today. Flemming Rose, welcome. Flemming Rose: Thank you for those nice words, Nick. It's wonderful to be here. Nick Gillespie: Let's take the pulse of free speech in the decade since the Mohammed cartoons came out. Since then, we've seen any number of violent reprisals against free speech, probably most catastrophically the gunning down of a good part of the staff of Charlie Hebdo in Paris, France, but we've also seen the continuing rise of hate speech laws in Europe and a stultifying climate rise on U.S. campuses and other college campuses. Are things good for free speech generally right now or not? Flemming Rose: If we take the long-term historical view, yes, free speech is in better shape than in the 17th century or the 18th century or even the beginning of the 20th century. No doubt about that, but if we look in a shorter-term perspective, let's say the past 20, 30 years, I think free speech is in worse shape. Free speech is in bad standing. You can see it when you check out statistics. Freedom House puts out a report every year; Reporters Without Borders in Europe do the same thing in other institutions and the trend is the same all over. For the past approximately 10 years, freedom of the press and freedom of speech is in decline and I think that is the new thing. We know China. We know Cuba. We know North Korea, Russia, where things usually are in bad shape, but the new trend is the freedom of expression is in decline even in western Europe. Nick Gillespie: What forms does it take, say, in Western Europe? Are reporters being, if not put in jail, are there legal actions against them or is it a chilled atmosphere where people just don't talk about certain things? Flemming Rose: It's both. I mean, just to give you an indication, in the first half of 2015, France, of all countries in the world, was the most dangerous place to live[...]

The Law Is an Ass, but this Georgia Sheriff Who Arrested His Ex-Wife Is a Total Asshole

Mon, 06 Feb 2017 15:00:00 -0500

Via Ken White of Popehat comes a dispiriting but important story of the wide gulf between how freedom is supposed to work and how, depending on the local situation, power operates with near-impunity. Anne King of Washington County, Georgia complained that her ex-husband wouldn't help her out by picking up some medicine for their sick kids. A friend of King's, Susan Hines, replied via Facebook that she'd pick up the meds and drop them off in King's mailbox. She also referred to the ex-husband as "POS," which is short for "piece of shit." As it happens, explains White, Captain Corey King of the Washington County Sheriff's Department. And when it comes to American law enforcement, your right to free speech is more theoretical than actual. In her federal lawsuit, Anne King contends that her husband, a friend in the Sheriff's Department, and a county "magistrate" put her in jail for her Facebook comment. According to her, Captain King filed a police report with his friend, Washington County Sheriff's Investigator Trey Burgamy. Washington County magistrate Ralph O. Todd — who is not a lawyer, and who ran unopposed last year — issued a warrant requiring Anne King and Susan Hines (who had responded on Facebook by suggesting Captain King is a "POS") to appear at a hearing. After a hearing at which Captain King was the only witness, Magistrate Todd caused a warrant to issue charging Anne King with criminal defamation: "SUBJECT DID, WITHOUT A PRIVILEGE TO DO SO AND WITH INTENT TO DEFAME ANOTHER, COMMUNICATE FALSE MATTER WHICH TENDS TO EXPOSE ONE WHO IS ALIVE TO HATRED, CONTEMPT, OR RIDICULE, AND WHICH TENDS TO PROVOKE A BREACH OF THE PEACE, SPECIFICALLY, SUBJECT DID MAKE DEROGATORY AND DEGRADING COMMENTS DIRECTLY AT AND ABOUT COREY KING, FOR THE PURPOSE OF PROVIDING A BREACH OF THE PEACE. Anne King also contends that Magistrate Todd threatened to "ban her from Facebook." Anne King's story has a vaguely happy ending. After being arrested and booked and semi-charged (they really didn't break any laws, you see), she and Hines were released and in a subsequent hearing, everything was dismissed. Anne King has sued Captain King, Investigator Burgamy, and Washington County for civil rights violations and various state torts. She can't sue "Magistrate" Ralph Todd because, despite the fact he's not a lawyer, he's cloaked by absolute judicial immunity. The statements above are merely her contentions. Moreover, the law governing suing state actors in federal court is complex, and the defendants will have many defenses to liability. Anne King's story is not, by any stretch of the imagination, a rare one. Particularly with the rise of social media, law enforcement officers across the country have been abusing the legal system to retaliate against insults: from the police supporting Jim Ardis' petty and petulant revenge in Peoria, the Renton PD investigated satirical videos, and the Parma PD prosecuted a man through trial for a satirical account. Anne King has First Amendment rights, in theory. Their nature and extent are well defined by the courts. It's straightforward to respect them. But what does it mean to say she has those rights? In Washington County, Georgia — population approximately 21,000 — with a hostile ex-husband a Captain of the Sheriff's Department, and with Ralph Todd as a magistrate, does she really have them in any meaningful way? What is a right, when the state defies it? Ken White, who has done some legal work for Reason as well as writing for us, is a former prosecutor who is now a defense attorney. Read his "Confessions of an Ex-Prosecutor" if you want to trim your nose hairs without using clippers. He knows the legal system inside and out, from both sides, and he is especially strong on how apparently iron-clad rig[...]

Super Bowl Ads Illustrate Importance of Free Speech Rights for All, Even Corporations

Sun, 05 Feb 2017 22:45:00 -0500

Did you see the Super Bowl ad about Mexican avocados? The Coke commercial? Budweiser's mini-bio of its immigrant founder? Was corporate America trolling Donald Trump with ads that celebrated free trade, diversity, and immigration? Or were they just selling products to people perhaps more sensitive to gleaning political messages than they have been before? Do you want the government to decide that? Breitbart commenters, among other Trump loyalists, have been concerned about political ads at the Super Bowl since last week, when the Budweiser ad hit the news cycle. Fox initially rejected one ad from a lumber company that featured a long journey to a border wall, and a big beautiful door, although the beginning of the ad, from Lumber 84, did air—the whole thing was put online. Nevertheless, there was no paucity of ads from which viewers gleaned political messages. And that's a good thing—despite the heated rhetoric against Citizens United and corporate speech rights during the 2016 election, the Super Bowl ads and the discussions they're inevitably launching are an illustration of why protecting free speech rights from government regulation is important, even for corporations. Free expression is a crucial component of a free society and a healthy democracy, and sustains a marketplace of ideas. The notion that government interference can have anything but a deleterious effect is ridiculous—it shouldn't have to take a character like Trump to head the government for people to realize that; there have been enough examples of what supposedly well-intended regulations have done. Tonight's ads reflected the American population—companies, unlike governments, have to offer people something they want or they won't get their money, so they are far better at delivering to and so reflecting the many moods of the American people. The inevitable complaints, even the boycotts, are part of that too, and it's all part of a process of self-regulating speech, where ideas, ideally, rise and fall on their merits, where individuals get to argue about the meaning of things instead of having government decide. Only through open discussions, unfettered by the coercions of a government inevitably interested in protecting itself and its narrow interests, can better ideas develop and thrive. Both Trump and his 2016 opponent, Hillary Clinton, who courageously stood up against Citizens United, which ruled in favor of free speech that was critical of her, have abysmal records on free speech. But perhaps 2017 will make more free speech fans out of people sometimes too quick to take their leaders' words on it.[...]

Why the Government's Legal Assault on Backfired (New Reason Podcast)

Fri, 03 Feb 2017 17:01:00 -0500

The CEO of the Amsterdam-based—the "world's largest online brothel"—was arrested at the Houston airport on October 6, 2016, charged by the state of California with pimping, conspiracy, pimping of a minor, and attempted pimping of a minor.

Two months later, Sacramento County Superior Court Judge Michael Bowman threw out the government's case on the grounds that the law protects online platforms from criminal liability for user-generated content. "Congress has spoken on this matter," Bowman wrote in a preliminary decision citing Section 230 of the Communications Decency Act (CDA). "[A]nd it is for Congress, not this court, to revisit."

The prosector in that case, state's attorney general (and now junior senator from California) Kamala Harris immediately filed new criminal charges against Backpage. Last month, the company decided to close its adult ads section after years of legal harassment.

On today's podcast, our guest is legendary free speech attorney Robert Corn-Revere, who represented The conversation touched on the history of the Communications Decency Act, why Backpage's move to close of its adult ads section has made it more difficult for law enforcement to catch sex traffickers, how Anthony Comstock "set the playbook" for today's censors, and what Trump's election means for the First Amendment. (Note: The conversation was recorded on January 17, before the nomination of Neil Gorsuch to the Supreme Court.)

Read Elizabeth Nolan Brown's coverage of's legal troubles.

Click below to listen to the conversation—or subscribe to our podcast at iTunes.

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Frederick Douglass Would Have Ardently Supported Milo Yiannopoulos’s Free Speech Rights

Fri, 03 Feb 2017 16:45:00 -0500

This week the leftish Twittersphere and liberal comment sites went wild for two stories. The first, that President Donald Trump doesn't seem to know who Frederick Douglass was. The second, that those Berkeley students and non-Berkeley anarchists who shut down the Milo Yiannaopolous meeting might not have done such a bad thing. Okay, a mob silenced Milo, people tweeted and intoned, but perhaps that's okay in the anti-Trump fightback. It's almost unbearably ironic. Because if these critics of Trump themselves knew anything about Douglass, they'd know he was implacably opposed to using mob pressure to shut down public meetings. They'd know he valued free speech so highly, above all other values, that he thought no one should ever be "overawed by force" simply for what he thinks and says. Imagine: in one breath mocking Trump for not knowing who Douglass was, and in the next saying things that will have made Douglass spin in his grave. The mocking of Trump followed his comments marking Black History Month, on Wednesday morning. He praised Dr. Martin Luther King, Harriet Tubman, and Frederick Douglass, before going on to talk about matters closer to his heart: himself and how much he hates CNN. But it seems he doesn't know much about Douglass, the slave turned abolitionist and suffrage campaigner who wrote brilliantly in defence of free speech and the right to bear arms. He was fleeting in his praise of Douglass, and his wording seemed to suggest he thinks Douglass is still alive (he died in 1895.) The headlines and snark came flying. "Trump implied Frederick Douglass was alive," the Washington Post laughed. "Seth Meyers roasts Trump for being too lazy to Google whether Frederick Douglass is still alive," said a headline over a video of Seth Meyers doing exactly that. Cue millions of shares. All of which is fine, of course, and funny in fact. Trump really ought to know about Douglass. Someone should have briefed him. But then the same political sphere that came over all pro-Douglass as a way of meming against the President—right-on tweeters, the left-leaning web—started to wonder out loud if it's such a bad thing that Milo was silenced at Berkeley. Which is about as anti-Douglass a thing as you could say. "Milo Yiannopoulos is trying to convince colleges that hate speech is cool," CNN cried. When Trump tweeted that perhaps Berkeley should have its federal funding cut if it won't stand up for free speech, The Advocate accused him of "defending hate speech." The mayor of Berkeley, Jesse Arreguin, implicitly sided with the protesters against freedom of speech when he said: "Hate speech isn't welcome in our community." In short, let's cleanse Berkeley of certain, dangerous ideas; let's make it a Milo- and alt-right-free zone. The celeb set also welcomed the shutting down of Milo's meet. "RESISTANCE WORKS!", tweeted Debra Messing. As Heat Street said, "vocal members of the progressive left took to social media" to celebrate Milo's silencing, "dubbing it a legitimate resistance movement against the Trump administration." This cheering, or at least failure to challenge, the heavy-handed prevention of political chatter at Berkeley is a far bigger snub to Douglass and everything he stood for than Trump's Black History comments were. Indeed, anyone who knows anything about Douglass will know that one of the most stirring, moving things he ever wrote was a criticism of the shutting down of public meetings by mobs. On 2 December 1860, at the Tremont Temple in Boston, anti-slavery activists held a meeting called "How Shall Slavery Be Abolished?". Douglass was there. To his horror, a group of pro-slavery people—Douglass called them "a mob of gentlemen"—disr[...]