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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: Thu, 27 Oct 2016 00:00:00 -0400

Last Build Date: Thu, 27 Oct 2016 05:21:03 -0400


New York's Airbnb Advertising Ban Appears to Violate Federal Law and the First Amendment

Wed, 26 Oct 2016 16:02:00 -0400

(image) Unions and the hotel industry joined forces to convince New York lawmakers to pass the nation's strictest regulations for room-sharing, but the new law seems to stand on shaky legal ground and is already facing a lawsuit.

"New York is heading straight for the buzz-saw of federal law," says Berin Szoka, president of Tech Freedom, a nonprofit technology policy organization.

The new law, signed a week ago by Gov. Andrew Cuomo, would impose fines of up to $7,500 for advertising rentals with a term of less than 30 days. Technically, those rentals were already illegal—the state had already banned rentals of less than 30 days back in 2010—but the new law is a direct attack on websites like Airbnb and other room-sharing services that connect would-be renters with hosts.

The problem, says Szoka, is that federal law already bars states from doing exactly that. In the Communications Decency Act of 1996, Congress prohibited states from holding online platforms responsible for the speech of their users.

"That safe harbor has been vital for the development of Internet services," he says. "Yet it seems state legislators keep forgetting it exists. That means we keep going round and round the merry-go-round of illegal legislation and pointless litigation."

That interpretation will be tested in court again. Hours after Cuomo signed the law on Friday, Airbnb sued New York over it. The state says it will not enforce the law until the suit is settled.

In its lawsuit against New York, Airbnb argues that the law will impose "irreparable harm" that would stretch beyond the borders of a single state. The lawsuit says it's not clear whether hosts or the online platform would be liable for fines issued under the law.

"In order to be assured of avoiding liability, including potential criminal prosecution, Airbnb would be required to screen and review every listing a host seeks to publish," the lawsuit contends, according to the New York Times.

In a statement, Airbnb said Cuomo was rewarding a special interest—"the price-gouging hotel industry"—at the expense of thousands of New Yorkers who use Airbnb.

The ban could also be challenged on First Amendment grounds, since courts have long held that the U.S. Constitution protects commercial speech as long as it's not fraudulent or criminal.

As I wrote in June when the law was passed by the state legislature, the state might have found a way to get around federal protections for free speech in this instance. Since short-term rentals were already illegal, New York could argue that it's not limiting free speech but rather targeting speech that serves criminal purposes—even if it's absurd that anyone renting an extra bedroom in their home could be considered a criminal.

It's a tenuous argument, but it's probably the only way the New York law will survive a First Amendment challenge. It also has frightening implications. If policymakers are allowed to make an end-run around free speech by making the subject matter of that speech illegal, it could give politicians an incentive to push for more over-criminalization as a means to further restrictions on speech. That's a nasty combination.

Clinton's Constitutional Contempt

Wed, 26 Oct 2016 00:01:00 -0400

Donald Trump claims he has read the Constitution. If so, he did not retain much. As a Yale Law School graduate, Hillary Clinton presumably has a better idea of what the Constitution says. But as she showed in her debate with Trump last week, that does not mean she cares. Clinton promised her Supreme Court nominees "will stand up and say no" to Citizens United v. Federal Election Commission. As usual when she discusses the case, Clinton neglected to mention that it involved suppression of a movie that made her look bad. In Citizens United, the Supreme Court concluded that a conservative group organized as a nonprofit corporation had a First Amendment right to present Hillary: The Movie on pay-per-view TV while Clinton was seeking the Democratic presidential nomination in 2008. Her determination to overturn that decision by appointing justices who agree with her that blocking the movie was consistent with freedom of speech—or, failing that, by pushing a constitutional amendment that blesses such self-serving censorship—looks no less petty and constitutionally insensitive than Trump's ambition to "open up our libel laws" so he can more easily use the legal system to punish and silence his critics. Clinton's eagerness to suppress speech that offends her is also apparent in her history of supporting laws that the Supreme Court later found to be inconsistent with the First Amendment, including the Communications Decency Act, the Child Online Protection Act, and restrictions on the sale of violent video games. She even tried to ban flag burning after the Court had deemed such laws unconstitutional. More recently, Clinton has joined Trump in pre-emptively dismissing First Amendment concerns about efforts to eliminate online speech that encourages terrorism. "You're going to hear all of the usual complaints—you know, 'freedom of speech,' etc.," Clinton said after the terrorist attack in San Bernardino last December. She was right. As the American Civil Liberties Union notes in a report on Clinton's positions, "Further restricting content that is potentially terrorism-related would not only lead to arbitrary, haphazard enforcement, but it also would inevitably sweep in speech that reflects beliefs, expressive activity, and innocent associations with others that are protected by the First Amendment." Unlike Trump, Clinton is hostile to the Second Amendment as well as the First, notwithstanding her assurances to the contrary. During last week's debate, she said the Supreme Court should not have overturned a District of Columbia law that she described as a "reasonable regulation" aimed at protecting "toddlers" from gun accidents by promoting safe firearm storage. Clinton did not mention that the D.C. law banned ownership of handguns, the most popular weapons for self-defense, and required that long guns in the home be kept unloaded and either disassembled or disabled by a trigger lock at all times, making it impossible to legally use them for self-defense. Apparently the "individual right to bear arms" that Clinton claims to support does not include the right to own a handgun or the right to use a rifle or shotgun for self-defense in the home, which the Court recognized as a "core lawful purpose" under the Second Amendment. When it comes to the Fourth Amendment, Clinton's support for the PATRIOT Act and encryption limits illustrates her tendency to sacrifice privacy in the name of security. Clinton's warmongering, including her advocacy of President Obama's illegal and disastrous intervention in Libya's civil war, shows she has little respect for the Constitution's limits on executive power, just as her belief in a federal government that has a solution for every problem shows she has no regard for the principle that Congress may not exercise powers the Constitution does not grant. Trump's blatantly unconstitutional positions, such as his support for revoking birthright citizenship and his openness to registration of Muslims, tend to make a bigger splash than Clinton's. But Clinton clearly poses a bi[...]

Justin Timberlake Ballot Selfie Leads to Silly Hand-Wringing Over Laws

Tue, 25 Oct 2016 16:15:00 -0400

Don't worry, Justin Timberlake! You're probably, maybe, possibly not going to have to shell out $50 or go to jail for 30 days for violating Tennessee's law against taking selfies at the ballot box. Yes, this is a thing that is happening, and it didn't start in 2016. A few years back, people started getting into trouble for "ballot selfies." Many states have laws on the books to prohibit people from revealing the physical evidence of their votes in order to prevent corrupt "vote-buying" schemes. It's also quite clearly a First Amendment violation. It never became an issue in the past because people weren't in the habit of carrying cameras around with them to the ballot box. But now everybody has a camera on the when they go to the ballot box thanks to smart phones. This all leads us back to Timberlake, who broke the law in Tennessee by Instagramming a picture of himself at a voting station (early voting has begun there). You can't actually see who Timberlake is voting for, and the only purpose of the photo is to encourage people to go out and cast their ballots. Nevertheless, Us Weekly points out that Timberlake has violated the law. Hey! You! Yeah, YOU! I just flew from LA to Memphis to #rockthevote !!! No excuses, my good people! There could be early voting in your town too. If not, November 8th! Choose to have a voice! If you don't, then we can't HEAR YOU! Get out and VOTE! #excerciseyourrighttovote A photo posted by Justin Timberlake (@justintimberlake) on Oct 24, 2016 at 4:11pm PDT Interestingly, this isn't an old, unused law Timberlake has run afoul of. It was a new law passed in 2015 that allows voters to use cellphones at voting locations but forbids them to take photos, videos, or make phone calls while in a polling place. Us Weekly was told by the local district attorney's office that Timberlake's transgression was "under review." But he probably is going to be just fine, even if Tennessee attempts to press its case. On Monday, a federal district judge ruled that Michigan's law against ballot selfies was a violation of citizens' First Amendment right to free speech. "The prohibition on ballot selfies reaches and curtails the speech rights of all voters," Judge Janet Neff ruled. Her ruling comes right on the heels of a similar federal ruling in New Hampshire in September that overturned at 2014 state ban on ballot selfies. On Monday, a Republican state senator in Colorado filed suit attempting to overturn his own state's ballot selfie ban. So at the moment, federal rulings are on Timberlake's side here. Tennessee might want to think twice about trying to press the matter. If you want to roll your eyes (maybe even while taking a selfie!), here's a state-by-state list compiled by the Associated Press of what laws are in place that determine whether voters can photograph their ballots.[...]

ABA Rejects Report on Trump's Frivolous Lawsuits, Fearing a Frivolous Lawsuit

Tue, 25 Oct 2016 09:50:00 -0400

Troubled by Donald Trump's use of litigation to suppress criticism, the American Bar Association's Forum on Communications Law commissioned a report on the Republican presidential nominee's speech-related lawsuits. The author of the article, First Amendment lawyer Susan Seager, concluded that Trump's abuse of the legal system "provides a powerful illustration of why more states need to enact anti-SLAPP laws to discourage libel bullies like Trump from filing frivolous lawsuits to chill speech about matters of public concern and run up legal tabs for journalists and critics." Underlining Seager's point, the ABA declined to publish her report because officials there worried that Trump might respond with a frivolous lawsuit. In a story published yesterday, New York Times legal reporter Adam Liptak quotes an October 19 email message in which James Dimos, the ABA's deputy executive director, worried about "the risk of the ABA being sued by Mr. Trump" if the organization published Seager's report as written. Dimos made it clear that his fear was not based on anything Seager had written that was actually defamatory or otherwise actionable. "While we do not believe that such a lawsuit has merit," he said, "it is certainly reasonable to attempt to reduce such a likelihood by removing inflammatory language that is unnecessary to further the article's thesis." This perceived need to pull punches shows how the possibility of a SLAPP ("strategic lawsuit against public participation") chills constitutionally protected speech, even when no suit is filed or even threatened. The language that Dimos deemed "inflammatory" was critical of Trump but appropriately so. The ABA did not like Seager's title: "Donald J. Trump Is a Libel Bully but Also a Libel Loser." The alternative it proposed was less specific, less topical, and less interesting: "Presidential Election Demonstrates Need for Anti-SLAPP Laws." The bar association also objected to Seager's lead: "Donald J. Trump is a libel bully. Like most bullies, he's also a loser, to borrow from Trump's vocabulary." It seems the ABA likewise was not keen on Seager's other references to Trump's bullying, her description of the First Amendment as "his old foe," or her suggestion that "frivolous, speech-targeting lawsuits" should be called "Trump Suits" instead of SLAPPs. "The ABA took out every word that was slightly critical of Donald Trump," she told Liptak. "It proved my point." Seager's "inflammatory language," although apt to get under Trump's skin, was not only clearly protected opinion but well-grounded in the evidence she collected. Highlights of her report, which the Media Law Resource Center posted on Friday, include the lawsuit that Trump filed against comedian Bill Maher over a joke mocking the billionaire real estate developer's promotion of anti-Obama birtherism. In 2012 Trump made a video in which he promised to pay $5 million to the charity of Obama's choice if the president agreed to release his "college and passport records." In response, Maher said during an appearance on The Tonight Show in early 2013 that he would pay $5 million to the charity of Trump's choice if the orange-hued reality TV star provided proof that he was not "the spawn of his mother having sex with an orangutan." Trump thereupon sent Maher a copy of his birth certificate and demanded that he pay up. Receiving no response, Trump filed a $5 million breach-of-contract suit, which he withdrew (Seager notes) after it was "roundly ridiculed by the Hollywood Reporter." Trump's very first defamation suit, against Chicago Tribune architecture critic Paul Gapp, was equally frivolous. In 1979 Gapp wrote a column that slammed Trump's plans to build the world's tallest building at the southeastern tip of Manhattan, calling it "one of the silliest things anyone could inflict on New York or any other city" and an example of "Guinness Book of World Records architecture." Gapp also described Trump Tower as a "skyscraper offering condos, office sp[...]

How Heterodox Is Your University?

Mon, 24 Oct 2016 11:40:00 -0400

(image) The folks over at the Heterodox Academy have devised and published a rating of the intellectual diversity and free speech friendliness of 150 of America's more prominent universities and colleges. The goal of the Heterodox Academy group is to find "ways of improving the academy by enhancing viewpoint diversity and the conditions that encourage free inquiry." The founding academicians of the Heterodox Academy all endorse this statement:

"I believe that university life requires that people with diverse viewpoints and perspectives encounter each other in an environment where they feel free to speak up and challenge each other. I am concerned that many academic fields and universities currently lack sufficient viewpoint diversity—particularly political diversity. I will support viewpoint diversity in my academic field, my university, my department, and my classroom."

The group has just published its new Heterodox Academy Guide to Colleges that rates America's top 150 universities (as listed by US News and World Report) ranking them according to their commitment to viewpoint diversity. The rankings are based on four sources including whether they've endorsed the University of Chicago Principles on Free Expression; the Foundation for Individual Rights in Education rating; Intercollegiate Studies Institute's Choosing the Right College Guide; and reports since 2014 of relevant events that suggest support or lack of support for free inquiry on the rated campuses. They assign each of the four criteria a value between 0 to 1, add them up, and then multiply the result by 25 to create a "Heterodoxy Score" for each school that ranges from 0 to 100.

A few highlights are University of Chicago which achieves the highest score (most open to viewpoint diversity) at 93.75 followed by Purdue University at 87.5 points. The lowest scores at 0 points are achieved by University fo Missouri at Columbia and University of Oregon at Eugene. Next tier of intellectually conformists schools with scores of 6.25 is occupied by Rutgers University, Northwestern University, New York University, Harvard University, and Brown University.

I am somewhat happy to report that my alma mater, the University of Virginia is in the tier just below Chicago and Purdue with a score of 62.5 points. Speak up more Wahoos!

I will a bit self-indulgently note that the initiation oath of the Jefferson Literary and Debating Society (founded July 14, 1825) of which I was a proud member reads:

I, ________, a student at the University of Virginia, holding it to be true that opinions springing out of solitary observation and reflection are seldom, in first instance, correct; that the faculties of the mind are excited by collision; that friendships are cemented, errors corrected, and sound principles established by society and intercourse, and especially in a country where all are free to profess and, by argument, maintain their opinions; that the powers of debate should be sedulously cultivated--therefore associate myself with the Jefferson Society at the University of Virginia.


Facebook Employees Wanted Trump Posts Removed as ‘Hate Speech'

Mon, 24 Oct 2016 07:30:00 -0400

(image) Some employees of Facebook argued that the social network company should remove some of Donald Trump's posts because they allegedly violated community standards about hate speech, the Wall Street Journal reported. Facebook CEO Mark Zuckerberg ultimately decided, last December, that such a move would be inappropriate, according to the Journal, which also reported that a number of employees complained about this, with those responsible for censoring content even threatening to quit.

The Journal report, based on anonymous sources, comes on the heels of a purportedly leaked internal Facebook memo from Zuckerberg, defending Peter Thiel's position on the Facebook board from "questions and concerns." Thiel, a Silicon Valley investor has come under fire for being a prominent Trump supporter.

"There are many reasons a person might support Trump that do not involve racism, sexism, xenophobia or accepting sexual assault," Zuckerberg wrote in the post. "It may be because they believe strongly in smaller government, a different tax policy, health care system, religious issues, gun rights or any other issue where he disagrees with Hillary."

"I know there are strong views on the election this year both in the US and around the world," Zuckerberg reminded employees. "We see them play out on Facebook every day."

Zuckerberg continued, explaining how diversity works: "Our community will be stronger for all our differences, not only in areas like race and gender but also in areas like political ideology and religion."

Calls to ban hate speech, from Facebook employees or anyone else, are deeply misguided. Such bans have the opposite of the intended effect, protecting the forbidden speech from critical engagement and giving it a martyr-like status. Unpopular speech is the most important speech to protect, otherwise free speech is an illusion. Facebook, a U.S.-based company that enjoys First Amendment protections, nevertheless regularly block contents around the world—honoring 20,000 such requests from 92 national governments in the first half of 2015 alone.

Earlier this year, Facebook was criticized for perceived political bias when it was revealed that the network's trending topics were curated by human editors, while on Friday Facebook announced it would be loosening its community standards for "items that people find newsworthy, significant, or important to the public interest."

Clinton Is a Threat to the 2nd Amendment—and the 1st

Mon, 24 Oct 2016 00:01:00 -0400

Donald Trump is a clear menace to our democratic form of government, the rule of law and my James Madison bobblehead. The teenage Ted Cruz could recite the entire Constitution from memory. Trump wouldn't know it from Two Corinthians. But it's not exactly safe to entrust your copy of the Constitution to Hillary Clinton, either. You might get it back with some parts missing or mutilated—like the First Amendment and the Second. When it comes to gun rights, Clinton has taken a position appreciably to the left of Barack Obama's. From his first presidential campaign, he has assured gun owners he respects their cherished prerogatives and would never take away their weapons. When the Supreme Court issued its landmark 2008 decision in D.C. v. Heller, he applauded it. "I have always believed that the Second Amendment protects the right of individuals to bear arms," Obama said. Not Clinton. When asked in June whether she endorses that interpretation, she conspicuously declined to do so. "For most of our history, there was a nuanced reading of the Second Amendment, until the decision by the late Justice Scalia," she groused. Asked whether she agrees "that an individual's right to bear arms is a constitutional right," Clinton replied, "If it is a constitutional right, then it, like every other constitutional right, is subject to reasonable regulations." If? In her final debate with Trump, Clinton was asked again about the Heller decision. She reiterated her opposition, insisting that "what the District of Columbia was trying to do was to protect toddlers from guns, and so they wanted people with guns to safely store them." She eventually said, "I also believe there's an individual right to bear arms." So Clinton rejects the Supreme Court decision that established constitutional protection for that right—but now agrees the right has constitutional protection? As former Federal Reserve Chairman Alan Greenspan once said, "If I seem unduly clear to you, you must have misunderstood what I said." She and Obama both favor universal background checks for gun purchases, a ban on "assault weapons" and denying guns to anyone on the federal no-fly list. But her cramped view of the Second Amendment suggests she would favor additional curbs that she knows the Supreme Court would not abide. Clinton seems to think that a new justice or two might set the Second Amendment right. On the First Amendment, however, she sees the Supreme Court as a lost cause. Her target is the 2010 Citizens United decision, which established the right of corporations and labor unions to participate in electioneering. In the debate, she said it "has undermined the election system in our country because of the way it permits dark, unaccountable money to come into our electoral system." But all the decision did was to prevent the government from suppressing speech about political matters. The justices noted that under the law it struck down, it would be a felony for the Sierra Club, within 60 days of a general election, to run an ad urging "the public to disapprove of a Congressman who favors logging in national forests." The court ruled that speech doesn't lose protection merely because it comes from corporations—a category that includes many advocacy groups. Such expression would be censored if Clinton had her way. She proposes a constitutional amendment to overturn the decision—which would alter the Bill of Rights to restrict our freedoms. The idea has drawn opposition from the American Civil Liberties Union, which says, "Our system of free expression is built on the premise that the people get to decide what speech they want to hear; it is not the role of the government to make that decision for them." Her alarms about "dark money"—contributions to politically active groups that don't have to reveal their donors—are misplaced. In the 2014 campaign, 77 percent of political spending was fully disclose[...]

This Racist Student’s Conversion Is the Best Argument Against Safe Space Culture

Fri, 21 Oct 2016 15:03:00 -0400

Derek Black used to be an up-and-coming leader of the white nationalist movement. His father created Stormfront, the online forums for the white nationalist community. His godfather is David Duke. That was then. Black is now a liberal who supports immigration, doesn't believe race should divide people, and admires President Obama. The story of Derek's incredible transformation is many things: a lesson to never give up on people, an affirmation of the power of reason to undermine racism, an inspirational tale of good winning out in the end. But it's also a subtle repudiation of the kind of emotional safe space that liberals want to foist on college campuses. Indeed, if this faction of the left got its way, people like Derek would probably never be allowed on campus in the first place. Derek himself might still be an ardent racist. The Washington Post's story on Black is worth reading in full—it's one of the very best things you'll read this year. To summarize Derek's childhood: His father, Don Black, was a former Ku Klux Klan member who founded Stormfront and kept close ties to David Duke; Duke, in fact, was Derek's godfather and former romantic partner of his mother; Derek spent his teenage years travelling with his father, meeting other white supremacists, giving speeches, and learning web coding so that he could help run Stormfront. Derek was essentially groomed from birth to lead the white nationalist community—a calling he was eager to heed: So many others in white nationalism had come to their conclusions out of anger and fear, but Derek tended to like most people he met, regardless of race. Instead, he sought out logic and science to confirm his worldview, reading studies from conservative think tanks about biological differences between races, IQ disparities and rates of violent crime committed by blacks against whites. He launched a daily radio show to share his views, and Don paid $275 each week to have it broadcast on the AM station in nearby Lake Worth. On the air, Derek helped popularize the idea of a white genocide, that whites were losing their culture and traditions to massive, nonwhite immigration. "If we say it a thousand times—'White genocide! We are losing control of our country!'—politicians are going to start saying it, too," he said. He repeated the idea in interviews, Stormfront posts and during his speech at the conference in Memphis, when he was at his most certain. After high school, Derek decided to enroll in the New College to study history. He decided to keep a low profile: He wouldn't share his views with anyone until after he had made friends. He enjoyed his first semester, and felt like he fit in. But eventually, the campus learned exactly who he was. His friends were shocked. Many people on campus wanted to ostracize him. Others threatened him. But some students had another idea: "Ostracizing Derek won't accomplish anything," one student wrote. "We have a chance to be real activists and actually affect one of the leaders of white supremacy in America. This is not an exaggeration. It would be a victory for civil rights." "Who's clever enough to think of something we can do to change this guy's mind?" One of Derek's acquaintances from that first semester decided he might have an idea. He started reading Stormfront and listening to Derek's radio show. Then, in late September, he sent Derek a text message. "What are you doing Friday night?" he wrote. That friend was Matthew Stevenson, an Orthodox Jew, and his idea was to invite Derek over for weekly Shabbat dinners attended by a small gathering of students. The idea worked: Some members of the Shabbat group gradually began to ask Derek about his views, and he occasionally clarified them in conversations and emails throughout 2011 and 2012. He said he was pro-choice on abortion. He said he was against the death penalty. He said he didn't beli[...]

PEN America’s Report on Campus Free Speech Gets the Yale Debacle Really Wrong

Fri, 21 Oct 2016 11:30:00 -0400

Is free speech in a state of crisis on American college campuses? Not quite, says anti-censorship organization PEN America in its recent hundred-page report on the subject. "PEN America's view, as of October 2016, is that while the current controversies merit attention and there have been some troubling incidences of speech curtailed, there is not, as some accounts have suggested, a pervasive 'crisis' for free speech on campus," the authors note. It's a verdict more than a little at odds with the rest of the report, which exhaustively details a number of beyond troubling incidents. As First Amendment lawyer Floyd Abrams told The New York Times, "I find it hard to read [the report's] extraordinarily powerful depiction of things that have happened on campus without concluding there is a crisis of great magnitude." Note that Abrams nevertheless considers the report "a big step forward." I agree. It's an impressive document that emphasizes sensible solutions to the situation on campus. PEN America's criticism of Title IX—and its demand for clarification on the difference between protected speech and illegal sexual harassment—is particularly notable. But the report gets some things wrong, and shows too much deference to anti-speech agitators, on grounds that these students' demands for censorship are actually an exercise in free speech—a point that's not as persuasive as its articulators seem to think. The report ventures into particularly shaky territory for its "case study" of the Nicholas and Erika Christakis incident at Yale University last fall. The case study quotes student-activists, activist-sympathetic writers, and activist-sympathetic administrators, all of whom think the mob that hounded Christakis was merely exercising free speech. While it's true that these students were indeed exercising their free speech rights, the more important question was whether the administration should humor their demands for emotional protection—and, in doing so, deprive other students, faculty members, and the Christakises of their free speech rights. The report quotes Yale Dean Jonathan Holloway as saying: I don't see it as a free speech challenge at all. Erika Christakis had every right to send that email. She had every right to do it. No one said she didn't have a right to do it. Free speech is not going to be free from consequence, so we saw consequence. Students getting upset and demanding her ouster: That is free speech as well. It is free speech to make that demand, yes. But if Yale met that demand—if it fired every professor or administrator who offended anyone—the college would foster an anti-speech campus. The report also describes the incident as "a young woman screaming at a seemingly mild-mannered faculty member in an open square on campus." But that's not completely accurate: as subsequent videos revealed, more than one student lost their cool with Christakis. Neither Holloway nor Yale President Peter Salovey seem to appreciate the censorious nature of their students' demands, which ultimately resulted in the Christakises resigning most of their duties (Nicholas Christakis is still teaching). The report continues: As historian and Yale College dean Jonathan Holloway asked in an interview with PEN America: "Whose speech matters enough to be defended?" At times these controversies have led some groups of students to question the value of free speech itself. Students have asked whether free speech is being wielded as a political weapon to ward off efforts to make the campus more respectful of the rights and perspectives of minorities. They see free speech drawn as a shield to legitimize speech that is discriminatory and offensive. Some have argued that free speech is a prerequisite of the privileged, used to buttress existing hierarchies of wealth and power. Some have gone so far as to justify [...]

Former Heads Say Pimping Charges Motivated by Politics, Not Facts

Thu, 20 Oct 2016 12:52:00 -0400 Chief Executive Carl Ferrer and the classified-ad company's former owners are seeking a dismissal of the pimping and conspiracy charges filed against them in California, which they describe as unconstitutional, unjustified by facts, and a violation of federal communications law, as well as a blatant ploy for publicity from California Attorney General (AG) Kamala Harris. The state "cannot pursue the charges asserted and, in fact, is expressly precluded from doing so under Section 230 of the Communications Decency Act," their attorney, James Grant, wrote in a letter to Harris, who is currently running for U.S. Congress. She can't claim ignorance: three years ago, Harris was one of several state attorneys general who pleaded with Congress to change the law so that they could prosecute Backpage, specifically admitting that, as is, Section 230 "prevents state and local law enforcement" from doing so. Congress said no. "It is troubling that the State is now pursuing a prosecution you admitted you have no authority to bring," Grant wrote. Ferrer and his co-defendants, Michael Lacey and James Larkin, were booked for pimping, pimping a minor, attempted pimping of a minor, and conspiracy, based on the state's contention that they know some of the tens of millions of user-generated posts on are veiled ads for prostitution, sometimes involving teenagers. As evidence of this, the state pointed out that Backpage blocks ads explicitly offering prostitution, states clearly that ads in the "adult" section can only be posted by adults, and promptly removes posts that are reported to advertise sex or underage women. In the topsy-turvy logic of the criminal complaint, the fact that Backpage policies are designed to prevent commercial-sex advertising and the prostitution of minors shows that execs actually condone these things, because said policies encourage posters of illicit sex ads to conceal their true intentions. "The AG's Complaint and theory of prosecution are frankly outrageous," state the defendants in a formal objection to the changes, filed October 19. "The basis for the AG's charges is that third-party users posted ads on, and the AG's office determined by responding to the ads that the users were offering prostitution." In total the complaint mentions nine ads, for which Backpage received $79.60. It does not allege that Ferrer, Lacey, or Larkin knew the ad-posters were discreetly offering sex for cash, knew the ad posters personally at all, had ever seen the ads in question, or had any direct knowledge of these ads. In his letter to the AG, the Backpage attorney notes that a recent federal court ruling against the Sheriff of Cook County, Illinois, "reject[ed] much the same theories that [California] asserts here," and that the U.S. Supreme Court has long recognized that "states cannot punish parties that publish or distribute speech without proving they had knowledge of illegality." In addition, "Section 230 expressly preempts all inconsistent civil and criminal state laws," he notes. "Literally hundreds of cases have applied and underscored the broad immunity that Section 230 provides and that Congress intended so as to avoid government interference— especially by state authorities—that would chill free speech on the Internet." Backpage itself has fought for these rights many times, winning cases in federal courts in New Jersey, Massachusetts, Washington, Tennessee, Illinois, and Missouri. But knowing the law is on their side "was of modest comfort," said Lacey and Larkin, "as we were being booked into the Sacramento County jail and paraded in front of the press in orange jump suits last week on a charge Ms. Harris knew she had no legal authority to bring when she brought it." The former Backpage owners suggested that California's AG knows she[...]

Brickbat: Tell Me About It

Thu, 20 Oct 2016 04:00:00 -0400

(image) A three-judge panel of the U.S. 9th Circuit Court of Appeals has upheld a California law that forces religious pregnancy clinics to give women information on how to obtain an abortion. The court ruled that the law does not violate anyone's First Amendment rights.

The Roger Stone Home Stretch of Election 2016

Wed, 19 Oct 2016 14:45:00 -0400

Though he is too "busy" to find it online for me, former Reasoner Michael C. Moynihan had a segment on Vice News last night in which he attended a JFK conspiracy conference and interviewed an attending Roger Stone, author of (among many other curiosities) The Man Who Killed Kennedy: The Case Against LBJ. Of course, Stone is no marginalized questions-asker in Election 2016: He has been among the closest advisers to Donald Trump throughout. (Read Anthony Fisher's mini-interview with sharp-dressed man at the Republican National Convention.) Which makes his frequently suggestive observations that much more newsworthy: At meeting of JFK conspiracy buffs today, Roger Stone says "internal workings" of Media Matters will be "exposed to the public" next week — Michael C Moynihan (@mcmoynihan) October 17, 2016 With Donald Trump's post-Billy Bush pivot to Full Metal Deplorable, it is, I contend, a Roger Stone finish to an already pretty Stonetastic Trump campaign. The second presidential debate was ripped right out of the pages of his most recent book, The Clintons' War on Women, and God only knows what fresh hell awaits us tonight. That, more or less, is the topic of this week's rambling, conspiratorial edition of The Fifth Column, your very favorite weekly libertarian podcast. Mentioned along the way: Jesse Walker on voter fraud, James O'Keefe's latest revelations, Hit & Run commenters, Moynihan's terrible accent, the re-re-re-retaking of Mosul, my secret Al Gore 2000 conspiracy, PEN America's attempt to find a Third Way on campus free speech, Kmele Foster's ongoing 2020 presidential campaign, and so very much more. Take a listen: src="" width="100%" height="100" frameborder="0"> Here are the locations at which you can download, interact with, recommend to your friends about, and write reviews of, The Fifth Column: iTunes, Stitcher, Google Play,, @wethefifth, and Facebook.[...]

California Christians Should Go to Jail Rather Than Post State-Mandated Abortion Signs, Says Focus on the Family Founder James Dobson

Wed, 19 Oct 2016 14:30:00 -0400

Christian leader James Dobson, founder of Focus on the Family, is urging the owners of pro-life pregnancy centers in California to practice civil disobedience in the face of a new rule dubbed "The Reproductive FACT Act" by state legislators. "If California attempts to enforce this law," Dobson said in a Tuesday statement, "then do not comply. Make them put you in jail." The measure requires all licensed pregnancy clinics to post and distribute the following notice: "California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [phone number]." Pregnancy centers that do not offer medical services and are not licenced by the state must post signs announcing that the facility "is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services." A lawsuit challenging the measure on First Amendment grounds was rebuffed by the U.S. Court of Appeals for the 9th Circuit last week, upholding a lower court decision not to halt enforcement of the law. "Christians across America must express their outrage at the Ninth Circuit Court's ruling to uphold California's so called 'Reproductive FACT Act,'" said Dobson. "Since Roe. V. Wade, privately funded crisis pregnancy centers across America have provided a refuge and an alternative to women who might have otherwise chosen abortion. ... This ruling now forces these clinics to violate their sincerely held religious beliefs, and it is an affront to our constitutionally mandated rights to life and to religious freedom." "This decision is further affirmation of the importance of this presidential election," said Dobson. "Hillary Clinton or Donald Trump will be responsible for appointing the replacement of Antonin Scalia, and–in all likelihood–two to three other Supreme Court Justices. That court will eventually decide whether or not this remains the law in California and becomes law across America." Lawyer Ken White, of Popehat, has more about the California law and the court's decision, which is worth reading if you care about why the 9th Circuit decided how it did. A lot of it turned on the level of scrutiny being applied. When a court applies scrutiny, it's holding the government's justification for a challenged law to a standard. How tough the standard is depends on the nature of the law and how the plaintiff says it's defective. In some situations, courts apply strict scrutiny — for instance, laws that punish speech based on its content generally trigger strict scrutiny. If a court applies strict scrutiny, the government must show that the law in question serves a compelling government interest and is narrowly tailored to achieve that interest. Practically speaking, applying strict scrutiny almost always means that the court will strike down the law. In the middle you've got intermediate scrutiny, which requires the government to show that the law promotes an important government interest and is substantially related to that interest. At the low end you've got the "rational basis" test, which almost any law can pass. In this case, the Ninth Circuit decided the compelled speech in question was "professional speech," which triggers intermediate scrutiny. White notes that "content-based speech regulation often—usually—triggers strict scrutiny." But in this case, "the court said that while the law is content-based, it's viewpoint-neutral—that is, it does not discriminate based on one particular opinion or view, and applies [...]

Michael Moore Releasing Trump Film as ‘October Surprise’ Thanks to Citizens United

Tue, 18 Oct 2016 16:45:00 -0400

Director Michael Moore announced last night that he would be releasing a new film, Michael Moore in Trumpland, calling it his "October Surprise" and offering free tickets on a first come, first serve basis for the debut in New York City tonight. The film is about Moore's attempt to put on a one-man show at the Midland Theater in Newark, Ohio and how theater management "prevented him from taking the stage as they deemed him too controversial," according to Deadline. Moore bills the film as one "Ohio Republicans tried to shut down." On September 26, he wrote on Medium for the first time about his "October surprise," revealing the one-man show he was trying to put on a live one man show about "this crazy Presidential race" and film it. He wrote that his plans "got dealt a death blow by the Republicans of Licking County, Ohio," saying his team got a call from theater management that said that "the community board that oversees the theater has voted not to allow Michael Moore to perform his how here" and were declining the rental. Moore claimed that when asked, the theater management told them that Moore's appearance "could reflect negatively" on the theater and cause it to lose long-standing patrons. Moore wrote that the theater management told his team he was "too controversial and the risk is too great." Finally, according to Moore, the theater management told his team that the board was "fairly conservative and it was felt that Mr. Moore would try to sway people's minds to vote his way." "Well, they got that right," Moore wrote. "They aren't stupid. This show, and my plan to release a video of it it [sic] nationwide so it can be seen by millions in the weeks before the election, should definitely 'sway' some people into voting!" He said he took the theater's awareness of the "subversive intent behind this one-man show" as a compliment. The theater's executive director disputes Moore's claims, telling Reason Moore's claims were "unfounded" and that there was "never a community board vote." "The Midland Theatre never reached an agreement to rent the theatre to Michael Moore nor his agency," Nancy Anderson wrote via email. "Unable to resolve a number of details and concerns in a comfortable timeframe, the theatre declined to present Mr. Moore's show. No contract was offered nor agreed upon." "It is disappointing when a singular business decision leads to disrespectful assumptions and public commentary about our entire community," Anderson continued. "We remain focused on supporting the arts and culture in our community and the power they have to transform lives." The theater also disputed the claim back in September, as the state party's communications director pointed out when asked to comment about Moore's claim that they tried to shut down his film, noting this Columbus Dispatch article and saying the party was not previously aware of the situation before Moore's claim. In a Facebook post, the theater blamed concerns about what the production involved, the short timeline and the costs the "free event" factored into their "decline to present." At the time, Anderson also blamed the political climate, telling the Dispatch events in or outside the theater related to Moore's performance "could negatively affect the theater and other Newark businesses and residents, due to the current political climate." While Moore may be more open about the electioneering involved in Michael Moore in Trumpland and the making of the movie, it's nothing new for the politically-minded director, whose films often have an unapologetic political agenda to them. What's new is that Citizens United allows Moore to be honest about it. The film that sparked that landmark First Amendment ruling, Hillary: T[...]

(UPDATED) Democracy Now Host Amy Goodman Faces 'Riot' Charges For Covering North Dakota Pipeline Protests

Mon, 17 Oct 2016 12:29:00 -0400

Does a journalist's point of view make them complicit in any potential crimes they report on? North Dakota State's Attorney Ladd Erickson appears to think so, which is why after dropping criminal trespassing charges against Democracy Now host Amy Goodman, he has upgraded charges against the venerable leftist journalist to the far more serious accusation that Goodman participated in a riot when covering protests against the Dakota Access Pipeline this past September. The protests against the pipeline took a violent turn when private security guards pepper-sprayed demonstrators and unleashed dogs on them. Goodman—who makes no secret that she's in full support of the protests—covered these incidents for Democracy Now. In Erickson's view, that forfeits her First Amendment rights as a journalist. Per the Bismarck Tribune: "She's a protester, basically. Everything she reported on was from the position of justifying the protest actions," said Erickson, adding that her coverage of the Sept. 3 protest did not mention that people trespassed during the incident or the alleged assaults on guards. "Is everybody that's putting out a YouTube video from down there a journalist down there, too?" he asked. If this is all Erickson is going on for charging Goodman, he is demonstrating a frightening misunderstanding of the concept of a free press. One does not require special accreditation from the government, nor a a demonstrated "objectivity," to report on news as it happens. Goodman's case is not the only Dakota pipeline-related arrest making news. Documentary producer Deia Schlosberg—who works with Gasland director Josh Fox—is reportedly facing felony charges for "conspiracy to commit theft of property and services" while she was covering what protesters themselves described as "sabotage" of the pipeline's emergency valves in a coordinated action earlier this month. These protesters freely admit they cut down fences, broke into valve stations, and manually shut down emergency valves. As Vice noted last year, this is a surprisingly easy but potentially dangerous thing to do (especially if caring for the environment is a concern): The momentum of the contents in the line running into a shut valve, especially one shut very quickly, can cause major pressure build-up and that pressure could release in unpredictable ways. Yes, it is within the realm of possibility that something could burst and cause a spill. It's a pipeline, they can and do break. On his Facebook page, Fox wrote that authorities "threw the book at Deia for being a journalist." Fox says she wasn't an active particpant in the protest, but merely covering it. It's unclear at this point what exactly Schlosberg was doing while covering the pipeline sabotage, though if the protest involved breaking and entering, trespassing, and disrupting energy infrastructure, it begs the question of whether or not the First Amendment indemnifies journalists who accompany people engaging in criminal activity. In Goodman's case, however, it's been more than a month since the protests she covered, and Erickson has not publicly released any evidence that Goodman rioted or incited a riot or did anything other than report on the scene. It appears the prosecutor intends to use her publicly stated point of view as evidence against her. If that's all he's got, it's a chilling affront to the concept of a free press and should not be permitted to stand. UPDATE: The Bismarck Tribune reports Judge John Grinsteiner has dismissed all charges against Goodman. Watch Goodman's report that has now led to charges against her below: src="" allowfullscreen="allowfullscreen" width="560" he[...]