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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: Mon, 16 Jan 2017 00:00:00 -0500

Last Build Date: Mon, 16 Jan 2017 08:05:05 -0500


Illinois Man Sues Cops Who Arrested Him for Burning a Flag

Mon, 16 Jan 2017 08:00:00 -0500

When Donald Trump declared that anyone who burns an American flag should go to jail, it was consistent with his general ignorance of the Constitution and his specific antipathy toward freedom of speech. But nearly three decades after Texas v. Johnson, the 1989 decision in which the Supreme Court recognized flag burning as a form of political expression protected by the First Amendment, police officers surely should understand that following Trump's suggestion would be illegal. Four cops in Urbana, Illinois, nevertheless saw nothing wrong with arresting Bryton Mellott last summer for violating a state law that makes public flag desecration a felony punishable by up to three years in prison. In a federal lawsuit filed last week with help from the ACLU of Illinois, Mellott argues that the four officers—Kenneth D. Sprague, Jeremy A. Hale, Matthew E. McElhoe, and Andrew J. Charles—should be held personally liable for violating his First and Fourth amendment rights because their actions were clearly unconstitutional at the time. Mellott burned a flag in a friend's backyard on the evening of July 3 as a protest against America's "blind nationalistic approach to foreign and domestic issues." He posted photographs of himself holding the burning flag on Facebook, accompanied by an explanation of why "I am not proud to be an American," followed by the hashtag #ArrestMe. Taking the bait, Officers Sprague, Hale, and McElhoe showed up the next morning at the Walmart in Savoy where Mellott worked and took him away in handcuffs after determining that his actions met the terms of the flag desecration statute. (Because part of the backyard could be seen from the street, the protest was deemed "public.") Mellott was held at the Champaign County Jail for five hours, then released with a notice to appear after a lieutenant consulted with local prosecutors. The following day, Champaign County State's Attorney Julia Rietz announced that Mellott would not be charged with violating the flag desecration statute because it is unconstitutional under Texas v. Johnson. "Open dissent is the highest form of American patriotism," Mellott said last week. "It was a frightening display of irony that on the Fourth of July, I should be taken from my workplace to sit in a county jail for exercising this liberty." Mellott is asking a federal judge to overturn the flag desecration statute and order appropriate damages for the violation of his constitutional rights. The police suggested that they took Mellott into custody for his own protection because of death threats from people offended by his Facebook post. But Mellott did not ask for police protection, and whatever anger was aroused by his protest would not justify charging him with a crime. "There simply was no justification for Bryton to be arrested for his political statement," said Rebecca Glenberg, an ACLU of Illinois senior staff attorney. "If police were concerned about Bryton's safety, they should have taken action against whoever they thought was compromising his safety, not against the person engaged in constitutionally protected speech." The Associated Press notes that "dozens of states" still have flag desecration statutes on their books. It says legislators "have been reluctant to repeal such laws either because it's politically unpalatable or it hasn't been a priority."[...]

Backpage Backed Into Corner Over Adult Ads. Is Government's Goal a Goodbye to Sex Trafficking, or Free Speech?

Fri, 13 Jan 2017 07:15:00 -0500

"After consultation with counsel, I decline to answer your question based on the rights provided by the 5th and 1st Amendments." Again and again, these words rang out through the crowded Congressional inquiry into "'s Knowing Facilitation of Online Sex Trafficking" Tuesday. A function of the U.S. Senate's Permanent Subcommittee on Investigations—literal heir to the Joseph McCarthy-era espionage and subversion investigations—the hearing was ostensibly organized to shed light on the business practices of online classified-ad forum Backpage. Led by Sens. Rob Portman (R-Ohio) and Claire McCaskill (D-Missouri), the bipartisan effort represented the culmination of a 20-month long investigation and accompanied a lengthy report on the findings. The point of the hearing, said McCaskill, was "understanding how criminals systematically use online platforms to transform normal American teenagers into sex slaves." But if so, it was as much a look at the laws governing online publishing, user-generated content, and sex work in America. And those in the hot seat—Backpage CEO Carl Ferrer, Chief Operations Officer Andrew Padilla, General Counsel Elizabeth McDougall, and former owners Michael Lacey and James Larkin—refused to answer any of the subcommittee's questions with more than a nod to the 5th Amendment. Launched around 10 a.m., the portion of the hearing featuring Backpage leadership was concluded, with nothing conceded, in under an hour. As the Backpage witnesses filed out, a swarm of reporters followed, trailing a silent Ferrer and his handlers until the third-floor door of Dirksen Building elevator closed in front of them. Lacey hung back, but mostly to say that he had said all he would say for now. "I guess you don't know what will happen next?" I asked him. "Right now," he said, "a drink." Backpage Background Portman and McCaskill's inquiry into Backpage began in 2015. After the site's execs refused to appear for questioning or turn over private business documents, the Permanent Subcommittee on Investigations filed a civil contempt action against them—the first authorized by the Senate in more than 20 years—and was rewarded with a federal court order compelling Backpage to turn over subpoenaed documents. The resulting report on these documents "conclusively shows that Backpage has been more deeply complicit in online sex trafficking than anyone imagined," Portman said Tuesday. In both the report and live testimony, the subcommittee moved seamlessly between allegations that Backpage intentionally profited from the prostitution of children and statements from Backpage representatives with regard to prostitution more broadly, leaving the unmistakable impression that Backpage leadership admitted—at least internally—to the horrible things alleged by the government. But the inquiry actually ascertained no such thing. The most significant policies the inquiry uncovered were a) moderators employed by Backpage would sometimes edit user-generated ads to remove direct references to sex for money before allowing them to post and b) between 2010 and 2012, the site employed an automatic filter to remove some blacklisted words from ads before they were posted. Subcommittee summaries of these editing and filtering processes suggest that Backpage moderators deliberately stripped words like "teen," "young," "daddy's girl," and "barely legal," from ads before allowing them to post, and this indicates that they knew about and encouraged underage ad-posting. But, of course, none of these words necessarily signals anything nefarious. Eighteen- and 19-year-olds are both "barely legal" and "teens," yet still legally adults. "Young" is a term someone well beyond 18 might use. Terms like sugar baby and sugar daddy are widely used in describing arrangements between adults, with all the attendant use of terms like daddy's girl this entails, and of course daddy is also common slang (without age connotations) in some BDSM worlds. The ambiguity of these terms led to Backpage processes, described in mor[...]

Judge Dismisses Libel Lawsuit against Donald Trump

Tue, 10 Jan 2017 14:45:00 -0500

(image) A New York judge accepted Donald Trump's motion to dismiss a libel lawsuit brought against him by Cheryl Jacobus, a political strategist Trump said on Twitter had "begged" him for a job and was only criticizing him because she was rebuffed.

The Hollywood Reporter, which first reported the dismissal and which posted the decision on its website, noted that "Donald Trump says he wants to 'open up' libel laws but a few days before he becomes the next President of the United States, he became fortunate that such laws place high burdens on plaintiffs."

In siding with Trump, New York Supreme Court Judge Barbara Jaffe characterized his tweet as an opinion, and noted his habit of using Twitter as such.

"His tweets about his critics, necessarily restricted to 140 characters or less, are rife with vague and simplistic insults such as 'loser' or 'total loser' or 'totally biased loser,' 'dummy' or 'dope' or 'dumb,' 'zero/no credibility,' 'crazy' or 'wacko' and 'disaster,' all deflecting serious consideration," Jaffe wrote.

The judge ruled that while Trump's use of Twitter as a campaign tool might make it different from the kind of heated statements courts have previously decided "constitute communications that cannot be taken seriously," reasonable readers should understand Trump was using the social media platform to express his "opinion, even if some of the statements, viewed in isolation, could be found to convey facts." This, she decided, was consistent with precedent and "the spirit of the First Amendment." So while the judge found the tweets were "intended to belittle and demean," she ruled that a reasonable readings would preclude concluding that those tweets could somehow "damage [Jacobus'] reputation as a partisan political consultant and commentator."

The ruling also cited an article by David Danford in The Federalist, "Why Donald Trump's Constant Twitter Battle is a Brilliant Media Strategy," and Danford's suggestion that "Trump's seemingly off-the-cuff and thoughtless tweets are no small part" of a "fascinating display of political skill." The judge said Trump's Twitter use raised "some concern that some may avoid liability by conveying positions in small Twitter parcels, as opposed to by doing so in a more formal and presumably actionable manner."

Trump and his team have continued to be fans of the idea of using libel laws and legal threats to silence opponents after the election. In November, Kellyanne Conway, Trump's campaign manager, suggested then outgoing Senate Minority Leader Harry Reid (D-Nev.) should be "very careful about characterizing someone in a legal sense." Reid had described Trump as "a sexual predator who lost the popular vote and fueled his campaign with bigotry and hate." When interviewer Chris Wallace asked Conway if she was suggesting the president-elect could sue Reid, she said no. "I'm calling for responsibility and maturity and decency [from] somebody who has held one of the highest positions in our government."

Related: Trump's Problem With Free Speech

Backpage Shutters 'Adult' Ads Section Following Years of Government Bullying

Tue, 10 Jan 2017 08:05:00 -0500

Like Craigslist before it, has shut down the "Adult" section of its classified-ad website, amid a seemingly endless stream of government pressure. In both cases, state and federal authorities have maintained that the mere presence of open forums for user-generated adult advertising creates a market for child sex-trafficking. Backpage CEO Carl Ferrer and his associates have been subject to lawsuits, criminal charges, economic bullying, and Congressional hearings—the latest of which will take place today, January 10, before the U.S. Senate's permanent subcommittee on investigations—in an attempt to thwart this supposed sex trade. But after proclaiming innocence and pushing back and for several years, Backpage will now—"as the direct result of unconstitutional government censorship," its lawyers said in a statement—comply with demands to end its adult-ad section. Last fall, former California Attorney General Kamala Harris tried to convict Ferrer and former heads Michael Lacey and James Larkin (founders of Village Voice media) of pimping and conspiracy to commit pimping. A judge threw out the charges, saying they were unconstitutional and violated federal law, which specifies—under Section 230 of the Communications Decency Act—that third-party publishers can't be held criminally liable for the content of user-generated posts. Section 230 doesn't just stop sites like Craigslist and Backpage from getting in trouble if someone posts a prostitution ad there but allows Reddit to exist without its CEO getting charged for every credible user threat, keeps Facebook from being shut down after some 20-year-old picks up a 17-year-old girl there, prevents Craigslist from being found guilty every time someone rips someone off over a used washer, and stops the feds from coming after when the comments section contains unsavory content. But despite Section 230's alleged protections, government officials have again and again gone after Backpage for allowing adult ads, even though these ads do not directly reference illegal activity and any illegal activity that results from folks finding each other via Backpage takes place far outside of its owners or operators' purview. How should Backpage operators know whether a woman offering dominatrix services or a "full-body sensual massage" on the site is really offering dominatrix services or a full-body sensual massage, and not simply having sex for money? How can they know if the poster who says she's 18 is actually a few months shy of it? There's no way they can, and yet this lack of omnipotence and pre-cognition apparently won't do. As Backpage, and Craigslist before it, have shown, websites are more than welcome to offer open forums for user posts without government interference so long as none of the posts have anything to do with sexuality. Yet the moment "adult" work comes into play, all free-speech protections and anti-censorship agendas dissipate. Lawmakers, prosecutors, and the media who fellate them start saying things like, "If it saves only one child..." Shutting down Backpage won't save even one child, though, or one adult, or anybody. is a neutral publishing platform, albeit one that's become popular among sex workers ranging from strippers and erotic masseuses to people who offer sex for a fee. Without its adult section, sex workers of all ages will have to find some other way to advertise—perhaps simply by moving to a more discreet section of the site, as was done on Craigslist (anyone who thinks ridding Craigslist of its adult-services section actually thwarted commercial-sex advertising there should check out the site's "Casual Encounters" section now); perhaps by advertising elsewhere online (the internet is a vast place); or perhaps by returning to older client-gathering methods, like word-of-mouth or walking the streets. But what doesn't happen in all but the most fervent prohibitionist imaginations is that people whose livelihoods d[...]

Nat Hentoff, 1925–2017

Sun, 08 Jan 2017 09:59:00 -0500

Nat Hentoff, the prolific critic, journalist, and civil libertarian, passed away yesterday at age 91. His son Nick reports that he "died surrounded by family listening to Billie Holiday," which I suspect is exactly how he wanted to go. Hentoff wrote many things, from young adult novels to the sleeve notes of an early Bob Dylan album. But he was most famous for two great passions: his defenses of the Bill of Rights, especially Amendment One, and his enthusiastic writing about music, especially jazz. When people talk about old-school liberals who'd defend to the death your right to say anything you want, chances are good that Hentoff is the fellow they've got in mind. In his columns for The Village Voice and The Washington Post and in articles for countless other venues (including Reason), he pounded away at the evils of censorship, and he didn't care if the censor had a left-wing agenda or a right-wing one. If anything, he seemed especially perturbed when people he expected to share his values started stomping on individual liberties. Hentoff was less likely to be called a liberal later in life. That's partly because his brand of free-speech absolutism was growing less common on the left, and it's partly because of his heterodoxy on abortion. (Hentoff was pro-life, arguing against abortion on the same grounds that he argued against capital punishment and war. Or, at least, against some wars—he eventually rended his seamless garment to support interventions in Rwanda and Iraq.) But you couldn't really cast him as a man of the right either: Besides his intense distrust for the police agencies that conservatives tend to revere, he was a longtime democratic socialist who held onto a lot of his leftist economic ideas in old age. It's not even quite right to call him an ACLU liberal, because he kept butting heads with the ACLU. (The nation's most prominent civil libertarian organization wasn't always civil libertarian enough for him.) Best to think of him as his own man, with at least a couple of views to offend pretty much anyone. He would have left a substantial legacy even if he had never written about politics at all, thanks to his work in the music world. His criticism covered several genres—one of my favorite articles of his was an appreciation of the country singer Merle Haggard—but his great love was jazz, a topic on which he wrote whole volumes. He produced several jazz albums too, by artists ranging from Max Roach to Cecil Taylor, and he had a hand in the great 1957 TV special The Sound of Jazz, which my colleague Kurt Loder once called "a landmark of televised jazz that has never been surpassed." (Watch it here.) But it was his political writing that left its biggest mark on me. I grew up reading Hentoff's attacks on censorship and surveillance, and whatever disagreements I sometimes had with him on other topics I learned a lot from his uncompromising consistency on those issues. For a taste of just how committed to free speech he was, I'll wrap up this obit with a video of him attacking the existence of libel laws, a hardcore position that even some of the fiercest civil libertarians aren't willing to accept. (For the record: I think he's right.) The video, shot in 1986, shows him debating the Objectivist philosopher David Kelley, who argues that we need libel suits to protect our "right to a reputation." When it came to regulations on speech, Nat Hentoff could make even a Randian look like a big-government guy by comparison: src="" allowfullscreen="allowfullscreen" width="560" height="315" frameborder="0">[...]

Lionel Shriver Doesn't Care If You Hate Her Sombrero

Sun, 08 Jan 2017 07:00:00 -0500

When Lionel Shriver took the stage at the Brisbane Writers Festival this fall, her speech was billed as a talk on "community and belonging." And in a way, it was. Modern writers, she argued, have been put in an untenable position. In our age of "super-sensitivity" about identity politics, we insist that novelists populate their books with diverse casts of characters, while simultaneously warning that writing a character from a different background than their own may carry the taint of "cultural appropriation." Shriver raised the specter of being "obliged to designate my every character an aging 5-foot-2 smartass, and having to set every novel in North Carolina," which would surely make for dull reading. "We fiction writers have to preserve the right to wear many hats," she said in closing. She then produced a sombrero, popped it onto her head, and left the podium. Shriver has made a career of writing about things she's not supposed to write about. Whippet thin, she chronicled her sibling's morbid obesity in 2013's Big Brother. Childless, she explored what it means to dislike and fear your own offspring in We Need to Talk About Kevin, which won the Orange Prize for Fiction in 2005 and was subsequently made into a chilling film starring Tilda Swinton. In 1994's Game Control, she sends her white protagonist to Nairobi with a modest proposal to deal with overpopulation. Her most recent book, The Mandibles, is a near-future dystopia in which the United States has finally, and catastrophically, defaulted on its debt. In a mode that is reminiscent of Ayn Rand, the characters in The Mandibles claw, bite, squabble, and sulk over the economic and political world where they find themselves, struggling with what they are allowed to say—and what they are allowed to think—about the people they live with and among. In October, shortly after the Brisbane speech, Editor in Chief Katherine Mangu-Ward spoke with Shriver about gender politics, the likelihood of economic collapse, and coming out as a libertarian in The New York Times. Reason: Talk about why you wrote that New York Times piece—rather brutally titled "I Am Not a Kook"—about, essentially, being a libertarian. Shriver: Out of frustration. Because I think there are a lot of people that don't regard themselves as libertarians who, if you take their views apart one by one, belong in that camp. But because the word has become associated with some rather strange views, and even stranger people, a lot of the people to whom it would naturally apply disavow membership. This whole business with being fiscally conservative, preferring a more effective but less ambitious government that takes a smaller piece of the national pie, but also being socially liberal, so I have no problem with gay marriage, I want abortion rights, I would legalize recreational drugs rather than have a war on drugs that doesn't work and puts a lot of fairly harmless people behind bars, many of them minorities—I just think there are a lot of people who have those same views. And the truth is that the libertarian rubric of "You should be able to do whatever you want as long as you don't hurt anyone" is the core concept of the United States of America, and something that we should be proud of. So every time a national election comes up I get frustrated, and I think I have a lot of company in that frustration. Because the Democratic Party meets some of but not all of my liberal social agenda, but it's still the party of taxing and spending. And yet the Republicans are nuts, and very religious, which I am not. I was absolutely shocked that every single one of those 16 candidates that ran originally on the Republican primary ticket was anti-abortion. And, OK, some of them talk a good game about restricting the size of government and keeping taxes short of confiscatory, but I can't vote for their social agenda. In your professional universe, the more literary end of your spect[...]

University of Oregon Suspended a Professor Who Had No Idea Her Halloween Costume Was Offensive

Wed, 28 Dec 2016 10:58:00 -0500

Free speech is gravely threatened at the University of Oregon. That's the inescapable conclusion of a report outlining the university's rationale for suspending a female law professor who dressed up as a black man during a Halloween party she hosted. The professor, Nancy Shurtz, committed an act of race-based discriminatory harassment, according to the university's investigation—even though she had no intention of offending anyone and had never heard of blackface before. This is one of the most disturbing outcomes pertaining to faculty free speech rights in recent memory: Shurtz joins Laura Kipnis, Teresa Buchanan, and Andrea Quenette among the ranks of female academics who were censored for expressing an unpopular opinion on the subject of race or sex. Shurtz's situation is most similar to Quenette's in that she had no intention of making her students uncomfortable. According to Oregon's report—which was compiled by a private law firm—Shurtz hosted a private Halloween party at her own home. Students were invited to attend, and several did so. Shurtz's costume was "black man in a white coat," a reference to a book by Dr. Damon Tweedy about his experience as a doctor of color. Shurtz later told investigators she intended to pay homage to the book, which she had enjoyed, and start a dialogue about racial diversity: We determined that she was inspired by this book and by the author, that she greatly admires Damon Tweedy and wanted to honor him, and that she dressed as the book because she finds it reprehensible that there is a shortage of racial diversity, and particularly of black men, in higher education. Shurtz was further inspired to this costume by virtue of the fact that her daughter attends medical school and her incoming class also had very few people of color; her daughter inquired with school administration about the class demographics and this apparently led to the medical school assigning reading assignments from Damon Tweedy's book. Shurtz's email to her class list the day after the event explained that she had intended "to teach with this costume as well (or at least tell an interesting story)" and Shurtz's public apology following the event conveyed that she had intended to provoke a discussion on racism in society, educational institutions and professions. (Well, we can't have a university professor provoking a discussion on racism in society. Burn the witch!) Shurtz's costume involved the use of black makeup on her face and hands, which constitutes an offensive use of blackface in the eyes of many people. Blackface is always impolite, this thinking goes, because of its racist and discriminatory history—even if the person wearing it is portraying a specific black person, rather than black people generally, and even if the portrayal isn't intended to be mocking. I'm not sure whether this logic makes any sense, but even if it does—even if blackface is patently and objectively offensive to a number of people—what right does a public university have to discipline a law professor for dressing provocatively? Well, according to the report, Shurtz's costume constitutes discriminatory harassment because: Discriminatory Harassment is defined by University policy as conduct that either in form or operation, unreasonably discriminates among individuals on the basis of race or color; which is sufficiently severe or pervasive that it interferes with work or participation in any University program or activity; which creates an intimidating, hostile, or degrading working or university environment for the individual who is the subject of such conduct; and where the conduct would have such an effect on a reasonable person who is similarly situated. … Almost every student reported feeling shocked, offended, angered, disappointed, surprised, anxious or uncomfortable being at the event. The discomfort was not limited to the students of color. … Disc[...]

Miami Mayor's Adviser Proposes 'Civility Courts' Because Rudeness Is Bad

Thu, 22 Dec 2016 09:15:00 -0500

Everyone can agree that it's nice to be nice and rude to be rude. So why not demand civility under the threat of legal punishment? That idea was hatched by Miami attorney Mikki Canton, a senior adviser to Mayor Tomás Regalado, and it got a respectful hearing at a recent meeting of the Miami Herald's editorial board, followed by respectful coverage in that paper on Sunday. You might think that a lawyer and the editors of Miami's leading newspaper would know something about the First Amendment, which protects rudeness along with crassness, indecency, racism, anti-Semitism, flag burning, tobacco billboards, violent video games, parodies involving incestuous sex, movies that make politicians look bad, and films in which women stomp on little furry animals. But neither Canton's presentation nor the Herald's account of it betrayed any knowledge that freedom of speech is guaranteed by the Constitution. "I think we're at the point of urgency," Canton told the paper's editorial board. "It's not just because you've got this political situation the way it is. But you've got behaviors, people doing things and other people thinking that's OK and there's no alternative to that way." Her answer: "civility guidelines," to be enforced by "civility courts." Canton—who in addition to advising the mayor runs Miami's EB-5 Regional Center, part of a federal program that guides foreign investors thinking of moving to the U.S.—explained that rudeness must be banned because it is often perfectly legal. "Sometimes what you do doesn't rise to the level of breaking the law," she said, "but it sure does break civility rules." Mind you, Canton does not want to throw people in jail merely for being rude. But she figures that "making them do some community outreach work, where they actually get a chance to interact with people and be civil," might do the trick. "If I were the judge," she said, "I'd say, 'What was it?' and 'Where did he commit this offense that didn't rise to the level of breaking the law?'...I would put him out there and make him be the spokesperson and make him work some community hours." Setting aside the wisdom of putting people distinguished by their extraordinary rudeness on the front lines of "community outreach," Canton's scheme is blatantly unconstitutional, as Miami New Times writer Jessica Lipscomb pointed out a couple of days after the Herald published its story about Canton's Civility USA campaign. Unlike Herald reporter Alfonso Chardy, who did not include a single skeptical comment in his story, Lipscomb interviewed "two First Amendment lawyers," who "were stunned when New Times told them of the proposal." One of them noted that "people have a right to be very vocal and use swear words and very strong language," because "in the United States, the rule has been that government cannot punish that type of speech." Confronted by the First Amendment implications of her proposal, Canton told Lipscomb that rude statements with political content would be exempt from her civility code, which is funny for a couple of reasons. First, speech protected by the Constitution is not limited to political messages; it includes opinions on all sorts of subjects, no matter how hurtful or how rudely expressed. Second, the chief example of incivility mentioned in Chardy's story, one that came up during Canton's presentation to the Herald's editorial board, involved an unhinged Donald Trump supporter who called a local Starbucks barista "trash" and "garbage" while accusing her of refusing to serve him because of his taste in presidential candidates (and possibly his skin color; it's not entirely clear). Canton's civility courts evidently will have to weigh the motivations of rude people before punishing them, which will create an incentive to mention a politician or a cause while castigating an inattentive barista or telling a nosy neighbor[...]

Google, Facebook, Twitter Sued for Allegedly Helping ISIS Inspire Orlando Pulse Nightclub Killer Omar Mateen

Tue, 20 Dec 2016 21:52:00 -0500

One can understand the instinct, when the one who actually caused you tortious harm is beyond any judgment but the eternal one, to lash out at whatever hefty pockets seem within reach. Still, the legal gambit from the families of three of the people (Tevin Crosby, Javier Jorge-Reyes and Juan Ramon Guerrero) killed in Omar Mateen's murder rampage in June at Orlando's Pulse nightclub to sue Facebook, Twitter and Google because the tech services allegedly "provided the terrorist group ISIS with accounts they use to spread extremist propaganda, raise funds, and attract new recruits" should have any believer in free expression and the ability to technologically and legally facilitate it nervous. I certainly hope no U.S. judge sees any merit in it. The suit was filed this week in U.S. District Court in the eastern district of Michigan, as first reported yesterday by Fox News. What we all want out of communication networks like Facebook and Twitter and search services such as Google, and usually get at least in any way it actively affects us, is that they neither interfere with nor even worry overmuch about how we are using them. For them to be what we want them to be, they should be as neutral as possible. To the degree they choose not to be neutral, they open themselves up to these sorts of accusations that by providing a means for people to communicate or earn money via ads, they are somehow complicit in the nature of the communications or their real-world harms, if any. This should be a reason for such companies to be as effectively content-neutral as possible, though as the lawsuit itself notes, the entities being sued try not to seem to facilitate terror. Section 230 of 1996's Communications Decency Act has generally been interpreted, correctly, as indemnifying the providers of these communications services from being considered responsible for the content on them. The families' lawyer are arguing, though, that, as Fox puts it: sites like Facebook may be violating the provision with their heavily-guarded algorithms....this lawsuit alleges something much more nefarious behind one of the tech world's most secretive processes. "The defendants create unique content by matching ISIS postings with advertisements based upon information known about the viewer," [lawyer Keith] Altman said. "Furthermore, the defendants finance ISIS's activities by sharing advertising revenue."... While these social platforms have cracked down and deactivated accounts affiliated with terrorist groups in the past, Altman argued that another account will almost immediately pop up and that companies think they're not responsible because they are not ones producing the content. Yes, that is exactly the point, and no one who enjoys using any of those services would want them to have to act otherwise (even if some applaud them when they try to act otherwise in certain cases, even if the services don't, and shouldn't, admit that policing or barring certain content means they are responsible for everything they don't bar). If these companies felt the legal need to behave as if every use of their service is their legal responsibility, nearly everything good about them would be in danger. USA Today reports that this is not the first time this argument has been brought to bear: The lawsuit is the latest to target popular Internet services for making it too easy for the Islamic State to spread its message. In June, the family of a California college student killed in last year's terrorist attacks in Paris sued Facebook, Google and Twitter. Keith Altman, the attorney representing the three families in the Orlando nightclub lawsuit, also represents the family of that student, Nohemi Gonzalez, in the Paris terrorist attacks lawsuit. The services aren't always neutral in allowing their customers to use them, as noted above and in the suit, and a[...]

Beach Boys Song Too Sexually Offensive for 2016 College Campus

Mon, 19 Dec 2016 13:30:00 -0500

Before they took a turn toward the psychedelic in the mid-1960s, the Beach Boys were about as uncontroversial as you could get in American pop music. But what was acceptable for teenyboppers in the early '60s may be too sexually taboo for today's college campuses. University of Kentucky (UK) journalism professor Buck Ryan claims he was sanctioned for singing the Beach Boys' 1965 single "California Girls" while in his official capacity as a UK representative. The university's Office of Institutional Equity and Equal Opportunity found Ryan violated federal Title IX guidelines against sex-based discrimination and harassment by using "language of a sexual nature." "If my case is any indication, then everyone concerned about discrimination and sexual harassment should be alarmed," wrote Ryan in a letter to the Lexington Herald-Leader. Ryan also pointed out that he has never, in a teaching career spanning more than 30 years, "faced a complaint of sexual misconduct from a student." Ryan, a tenured associate professor with an impressive resume—including an array of international awards, eight years as director of the UK School of Journalism and Telecommunications (from 1994 to 2002), and the 2003 recipient of UK's Provost's Award for Outstanding Teaching—said he was reported to Title IX officials for conduct that occurred while he was a visiting professor at China's Jilin University. Ryan claims it was singing the Beach Boys song at a closing ceremony that got him reported by fellow UK faculty on the trip. But the school disputes Ryan's characterization of the complaint against him. "In short, Professor Ryan's account is manipulative of the facts and, unfortunately, not based in reality," says UK spokesman Jay Blanton. "Faculty who accompanied him on the trip in question were deeply concerned about his conduct." An October 2015 letter from Patty Bender, UK's vice president for equal opportunity, to the dean of the communications school states that "more than a preponderance of the evidence" revealed Ryan to be "in violation of the discrimination and harassment policy prohibiting inappropriate touching and language of a sexual nature." The Office of Institutional Equity and Equal Opportunity reccommended that Ryan "not be funded by the University of Kentucky to represent UK in any travel abroad," that a recent award which would require overseas travel be forfeited, and that Ryan be required to attend equality training. According to the letter, Ryan's transgressions did include causing "concern and embarassment" amongst his colleagues by singing a modified version of "California Girls" at a closing cermony while "inserting the names of Chinese cities" into the lyrics. He is also accused of having an "inappropriate," albeit non-sexual, relationship with a Chinese student. Evidence of this inappropriate relationship includes the fact that the student was seen wearing one of Ryan's sweatshirts as they were walking together and that he spent time in the student's suite. Ryan allegedly responded that he was helping the student with her English, that there were always other students coming and going from the suite, and that he didn't see anything inappropriate about the relationship. The heavily redacted letter does not say how old the student was, nor whether she was in Ryan's classes, though it does make clear that it was UK faculty who complained about Ryan's relationship with the student, not the young woman herself. Blanton says the school offered Monday to make all documents related to Ryan's case public if he would permit it, a move Ryan declined. The University of Kentucky is currently involved in a legal battle with student newspaper the Kentucky Kernel related to Title IX records, specifically those involving former UK professor James Harwood. The trouble started last spring, when[...]

Can't Afford a Lawyer? No Free Speech for You.

Mon, 19 Dec 2016 06:00:00 -0500

For someone campaigning to help run Colorado's university system, Matt Arnold didn't seem too keen on higher education. His 2012 Republican primary campaign for a spot on the Board of Regents made headlines after the candidate admitted that he had misstated finishing his master's thesis, maligned those who received degrees for their "pursuit of academic BS that no one cares about" by calling them "a bunch of people who hang letters after their names, but they have no useful skills," and then publicized his opponent's home address. In the heat of the controversy, a group called Coloradans for a Better Future (CBF) ran an ad criticizing Arnold's campaign as "an embarrassing distraction." This, it seems, was the moment that Arnold's mission changed from winning political office to an anti-speech vendetta. Proving the old adage that academic politics are so vicious because the stakes are so low, Arnold began an all-out legal attack on his detractors. Appearing on a local radio show in 2014, he threw down the gauntlet: CBF's supporters, he said, "need to be dragged into court" and "exposed for the cowardly, backstabbing scum that they are." Arnold and his newly founded Campaign Integrity Watchdog group proceeded to file complaint after complaint against CBF. At one point, he even demanded that the state disbar CBF's attorneys. The relentless litigation paid off. In 2014, an insolvent CBF filed a "termination report" with the Colorado Secretary of State. But that only prompted Arnold's fourth complaint. He now claims that a lawyer had helped CBF file for termination and that the lawyer's pro bono aid amounted to a political "contribution" that should have been reported. As in many states, political participants in Colorado are subject to strict caps on contributions. State legislature candidates can receive no more than $400 per donor during an election cycle. Political committees—politically engaged citizens who have banded together into a group—can accept only $575. But campaign finance attorneys regularly charge hundreds of dollars per hour for their services. So an organization that received as little as one billable hour in pro bono or reduced-cost legal aid would quickly blow through the state's contribution limit. Citizens with few resources would be utterly defenseless against litigious opponents. As far back as 1978, the U.S. Supreme Court held that pro bono representation is a "fundamental" right that merits protection under the First Amendment. Regulations cannot "abridge unnecessarily the associational freedom of nonprofit organizations" that offer legal assistance, the high court ruled in In re Primus. The only other court to consider this issue—in Washington state—ruled that regulating free legal assistance as a contribution is "unconstitutional." Despite these clear precedents, the Colorado Court of Appeals sided with Arnold, ruling in April that free or discounted legal aid can be regulated and restricted as a "contribution." In August, the Institute for Justice, the public interest law firm where we work, petitioned to overturn that decision. "The Court of Appeals' ruling meant that Coloradans could find themselves breaking the campaign finance laws simply by working with a lawyer to try to comply with those laws," says Paul Sherman, a senior attorney at I.J. "That sort of Catch-22 is unjust and unconstitutional." Thankfully, the Colorado Supreme Court has agreed to review the case. It also stayed the lower court's ruling. What happens next will not only have significant ramifications for free expression, it will also shine a light on Colorado's peculiar system for regulating political discourse, which at every turn favors censorship over free speech. Coloradans who wish to exercise their First Amendment rights are uniquely exposed, [...]

Pittsburgh Bans Conversion Therapy for Minors. Is It Professional Regulation or Censorship? (Or Both!)

Thu, 15 Dec 2016 14:05:00 -0500

Pittsburgh has joined a handful of states and other cities this week by legislatively banning the professional practice of conversion therapy for minors—that's counseling that seeks or claims to cure gay people of their homosexuality or transgender people of their feelings of being the opposite sex. The practice is widely discredited by professional counseling and mental health organizations. Not only does it probably not work, many therapists believe it is actively harmful to the mental health of its subject. In America, it's heavily tied to religious efforts to cure followers of unwanted sexual urges, and it is often (but not always) pushed on teens by the parents. I have been—and remain—a critic of these laws, not because I support conversion therapy (I agree with the mental health experts completely), but because I'm very concerned about the consequences of government control over subjective psychological treatments that are significantly speech-related. This law tells licensed therapists in Pittsburgh that they literally cannot talk to minor patients about a particular subject. There are a couple of indicators that government is well aware that they're regulating and censoring speech, even as they insist it's about stopping fraud. First of all, the law (as the other laws have been passed) only covers minors. The argument is that the treatment is fraudulent and dangerous, but if adults want to partake in it, go ahead. But minors often get put into conversion therapy against their will by parents and there are consent issues involved (a dynamic we occasionally see in other controversies where parents contradict medical professionals in the appropriate health treatments for children). Second, the law, like the others, only covers mental health professionals licensed by the state of Pennsylvania. They can't tell non-professionals that they can't talk with gay or transgender teens and tell them they can be "cured," because that would flat-out be censorship. As a result, this law can (and will) be ignored by church-based or religious-based conversion "therapy" treatment that is not provided by licensed professionals. Thus, the extent that this law really stops any actual conversion therapy taking place in Pittsburgh is not clear. But what it does do is establish a precedent of the government deciding what sort of discussions are legally legitimate by classifying it as "fraud" rather than speech and therefore open to regulation. And so far, the Christian Science Monitor notes, federal judges have deferred to the argument that these laws are regulating professions, not censoring free speech. Their piece also quotes from my previous criticism of these laws as using government regulation to provide scientific certainty to a social science field that is ever-evolving. Is there a reason to actually care if it stops kids from being abused by their parents? Yes, because why stop there? If a government agency can declare by its authority that a controversial matter is actually "settled" as a legal and regulatory issue, imagine what that could potentially mean. You don't have to stretch too far. Heck, you don't even have to leave this site. A pack of attorneys general have colluded to target ExxonMobil, attempting to subpoena reams of correspondence between them and think tanks (among them, the Reason Foundation, which publishes this website). Their argument is that the debate and discussions about climate change was actual an organized attempt to defraud people and they're looking for evidence. Ron Bailey noted at the time: "It's bad enough to politicize science, but to outlaw disagreements over how to interpret science heads down the perilous path toward Lysenkoism, in which only officially approved science is allowed to be pra[...]

Marginalized Voices Need Free Speech More Than Anyone, Including on College Campuses

Wed, 14 Dec 2016 09:35:00 -0500

(image) When PEN America released its report on the state of free speech on college campuses last October, The New York Times framed it as a warning to staunch supporters of the First Amendment over "a growing perception among young people that cries of 'free speech' are too often used as a cudgel against them."

But that's a gross oversimplification of the report, as is The Times' fixation on one single line in the report's conclusion declaring the lack of a "pervasive 'crisis' for free speech on campus," despite the report's meticulous re-airing of scores of instances of legitimate expression running into official condemnation on campuses across the country.

As I write in a new column at Vox, "Freedom of speech is often misunderstood, frequently taken for granted, and always on the defensive against forces both within and outside of government." Of PEN America's report, I write that it "makes clear that colleges can acknowledge grievances, support reasonable efforts to protect the mental and physical well-being of its students, ensure students are protected from overt harassment — and also defend the right to free expression for all."

In the column, I also touch upon the report's assessment of "safe spaces," the distinctions between censorship and "disinvitations," and why comedians and other artisitc provocateurs must be allowed to fail — even if that failure means someone was offended.

On allowing comedians to experiement and sometimes miss the mark, I write:

This argument cannot be made enough. Iconic comedians such as Richard Pryor, Lenny Bruce, and George Carlin all deployed language and epithets that were edgy in their time and would be considered beyond-the-pale today. Yet each used the power to shock in service of fighting against war, bigotry, and the status quo. If today's sharpest comedic minds are constricted to the point they are unable to even attempt pushing boundaries, all we'll get (and deserve) is a generation of safe-as-milk karaoke comedians tussling the hair of the powerful instead of challenging them.

Of course, many attempts at subversive satire will fall flat, coming off as more tasteless than witty. But the punishment for a bad joke shouldn't be official disciplinary action or banishment from campus, which is a fate that has befallen a number of college campus comedy publications.

Read the whole column here.

'The Review Board' Bust: 12 More Men Face Felony Charges for Posting to Seattle Web Forum

Tue, 13 Dec 2016 22:15:00 -0500

At least twelve more men face felony charges in Washington for posting comments to the now-defunct web forum known as The Review Board (TRB). The dozen defendants, most of whom who will be arraigned in King County District Court on December 14, face one count each of promoting prostitution in the second degree—a charge historically used to target people who profit off of the prostitution of others but more recently favored by King County prosecutors to go after people who write positively online about area prostitution. Prior to this new wave of charges, the King County Sheriff's Office has already prosecuted more than a dozen men in 2016 for what amounts to little more than online speech related to prostitution. Many of those men accepted plea deals after the county threatened to add additional charges and a sexual-motivation enhancement (i.e., more prison time and sex-offender status if convicted) for anyone who attempted to fight back but give those who plead guilty lenient sentencing. After initially portraying these men as a despicable ring of international sex-slave circulators, King County wound up letting most of them off with a bit of community service or electronic-home monitoring and an admission to posting on while knowing that it might "advance" prostitution. The individuals whose prostitution was advanced on TRB included mostly independent, adult sex workers who also advertised their own services on the site, and some adult (mostly Asian) women who were in town temporarily working at escort agencies and had ads posted by bookers—often other sex workers or former clients—for a fee. Anyone who advertised on TRB had to be approved by site owner "Tahoe Ted," whose personal touch irked some sex workers in the area (he was sometimes accused of discriminating against women who weren't white or conventionally attractive) but also seemed to avoid the problem that plagues purely user-generated content sites like Craigslist and Backpage: underage women. In general, the point of TRB seems to have been one part digital "locker room," one part semi-curated advertising platform for sex workers, and one part system wherein both sex workers and clients (or "hobbyists," as many on the board referred to themsevles) could serve as checks and balances against bad actors on both sides. In the latest batch of TRB-related arrests, defendants are accused of basically the same activity as the first group: reviewing Seattle-area escorts on TRB, messaging other members about local sex workers, and emailing with sex workers themselves about appointments. One of them is also accused of helping a Japanese woman who had been supporting herself as a sex worker in Guam for a few years, then Hawaii, to set up advertisements on TRB and find an apartment when she moved to Seattle, after he had struck up a casual but ongoing relationship with her in Guam years earlier. Granted, TRB posts do tend to describe semi-graphic sexual activity (although not necessarily sex; some review providers of "full body sensual massages" who don't do "full service" appointments). And emails exchanged between sex workers and defendants do hint at prostitution. But people write all sorts of things online that aren't based in reality, and without having talked to sex workers seen by defendants, or witnessed any part of any of the sessions themselves, the cops have no way of knowing whether any illegal activity—or any IRL meetings at all—took place. This is, of course, part of the evil genius of how King County is going after people who pay for sex. With the "promoting prostitution" charge, law enforcement needn't show that defendants actually engaged in pay-to-play sexual activity themselv[...]

Can Free Speech Flourish in the Age of Trump? Nick Gillespie, Flemming Rose at Cato (New Reason Podcast)

Mon, 12 Dec 2016 16:45:00 -0500

On December 6 at the Cato Institute in Washington, D.C., Reason's Nick Gillespie and Danish journalist Flemming Rose discussed "Free Speech in the Age of Trump." That conversation, moderated by Kat Murti, is the newest Reason Podcast (subscribe at iTunes).

In 2005 while working at the Danish newspaper Jyllands-Posten, Rose commissioned and published what became known as the "Mohammed cartoons," a dozen images of Islam's founder. Rose quickly became the target of death threats from Islamic radicals and jihadists and at least 150 people by his count have been killed in violence related to demonstrations against the cartoons. Earlier this year, Rose was awarded The Milton Friedman Prize for Advancing Liberty, given every two years by Cato, who has also hired Rose to work as an analyst based in his home country. Rose is the author of, most recently, The Tyranny of Silence, now out in paperback from Cato. (In 2014, in response to death threats against cartoonist Molly Norris, Reason held its own "Everybody Draw Mohammed Day" competition.)

Rose talked about the response to the Mohammed cartoons and what he sees as a failure on the part of many countries to uphold Enlightenment values of open inquiry and peaceful toleration of dissent. Gillespie described last year's attempt by a federal prosecutor to subpoena for information about blog commenters who joked about attacking the judge in The Silk Road trial of Ross Ulbricht.

With a president who has pledged to "open up" the country's libel laws while shutting down parts of the internet, what are the prospects for a free and flourishing marketplace of ideas in Donald Trump's America? Throw in the ongoing idiocy of political correctness on college campuses and coporate HR departments, and it turns out that there's plenty to worry about.

The event was livestreamed on C-SPAN (watch here) and at (watch here). Click below to listen right now via SoundCloud.

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