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Free Speech/First Amendment

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

Published: Thu, 14 Dec 2017 00:00:00 -0500

Last Build Date: Thu, 14 Dec 2017 23:06:19 -0500


Government Is the Cause of—Not the Solution to—Online Censorship

Thu, 14 Dec 2017 08:15:00 -0500

While Americans are screaming at the Federal Communications Commission about their fears of private censorship if "net neutrality" goes away, the reality is that governments, in the United States and overseas, are consistently the driving force behind attempts to control what people are allowed to see and read online. Some supporters of net neutrality have gotten it into their heads that an absence of government-enforced net neutrality will lead private internet providers to institute cost-based access gatekeeping that will serve as a form of censorship. This belief is misguided (as Andrea O'Sullivan has explained very thoroughly), and yet the amount of public pushback FCC Chairman Ajit Pai is getting over the vote to overturn the "Open Internet Order" is much more furious than the response to lawmakers and politicians who openly demand authority to censor what is and is not permitted to be on the internet. At the same time Pai and the FCC are making their decision, the Committee on Standards in Public Life in the United Kingdom is encouraging Prime Minister Theresa May to change the law so that it can hold social media companies like Facebook, Twitter, and Google legally liable for content the country deems to be illegal. Its latest report says: We understand that they do not consider themselves as publishers, responsible for reviewing and editing everything that others post on their sites. But with developments in this technology, the time has come for the companies to take more responsibility for illegal material that appears on their platforms. The report notes that the European Union's online commerce regulations treat these tech companies as "hosts," not publishers. The report also notes that Brexit is a thing, so after the United Kingdom leaves the European Union, they're recommending British laws be changed to treat these tech companies more like media outlets. "What could go wrong?" is baked right into this report, focused as it is on trying to control abusive and harassing speech directed at public officials, particularly members of Parliament. Some of this communication includes threats of violence. The United Kingdom, however, does not have as broad a view of free speech as the United States and outlaws "hate speech," as well as speech that harasses or causes "distress" to individuals. Even with the European Union's regulations, other countries aren't much better. Facebook has agreed to hire hundreds more people to respond to demands by the German government to censor and remove content they have declared illegal. Otherwise they could face huge fines. Demands by governments to censor will expand if they're not stopped. Westerners tend to associate internet censorship with oppressive countries like China, forcing Apple to remove apps from its store. But focusing on the extreme ignores censorship threats on our own doorstep. Danielle Keats Citron, in a policy analysis paper hosted by the Cato Institute, warns of the potential long-term consequences of allowing these European countries to set the terms for free speech across the globe: Definitional ambiguity is part of the problem. "Hateful conduct" and "violent extremist material" are vague terms that can be stretched to include political dissent and cultural commentary. They could be extended to a government official's tweets, posts critiquing a politician, or a civil rights activist's profile. Violent extremist material could be interpreted to cover violent content of all kinds, including news reports, and not just gruesome beheading videos. Censorship creep isn't merely a theoretical possibility—it is already happening. European regulators' calls to remove "illegal hate speech" have quickly ballooned to cover expression that does not violate existing EU law, including bogus news stories. Commenting on the hate-speech agreement, European Justice Commissioner Věra Jurová criticized the Companies for failing to remove "online radicalization, terrorist propaganda, and fake news." Legitimate debate could easily fall within Jurová's characterization of ha[...]

Prostitution Ad Ban Creeps Forward, Threatening Social Media and Sex Workers

Tue, 12 Dec 2017 14:40:00 -0500

A measure making prostitution advertising a federal crime passed the House Judiciary Committee this morning. "This legislation is about more than just," said bill sponsor Rep. Ann Wagner (R-Missouri), promising that the changes would "wreak havoc" on "hundreds of websites." House Judiciary Committee Chairman Bob Goodlatte (R-Virginia) crowed that the bill "empowers prosecutors with new tools" to hold human traffickers accountable. But Goodlatte is lying—nothing in the bill addresses penalties for actual human traffickers. Instead, it would allow the government to treat websites and social apps as if they are human traffickers if bad actors should communicate through their digital platforms and tools. (For more about how this would work, see my post from yesterday.) The bill would also make posting or hosting prostitution ads a federal crime. If H.R. 1865 becomes law, the FBI would be able to prosecute Facebook, Twitter, Snapchat, Instagram, Craigslist, and myriad other sites where sex workers advertise and/or communicate with clients—even if the sexual exchange is only alluded to and never completed.* Goodlatte said that in crafting the legislation, he "consulted with local prosecutors, and also with the Department of Justice." Notably, he does not mention consulting with any sex workers, tech companies, sex-trafficking victims, or any groups that work directly with sex-trafficking victims. If he did, he might learn that digital advertising has revolutionized the sex trade, making it much more possible for women to work without the aid of abusive or controlling pimps; to screen clients before seeing them; and to generally take more control over their bodies, businesses, and personal safety. Meanwhile, it's also been hugely useful to law enforcement and families for finding victims of exploitation (something that would be all but impossible if street-based sex work were the only option or if traffickers start turning to the dark web.) But in the delusional minds of folks like Goodlatte and Wagner, everyone engaged in sex work will simply stop if there are no web-ad platforms and all the sex traffickers will simply let their victims go. (Drugs went away when we made those illegal, too, right?) So their goal is to eradicate any web platforms where sex buyers might communicate with sex sellers. After all, catching actual evildoers is too hard. "Advertisements rarely, if ever, will say the person advertised is a 'victim of sex trafficking,'" Goodlatte lamented. Easier for authorities to stop distinguishing between forced or underage prostitution and sex that free adults consent to have. More profitable, too. Wringing assets from petty pimps hasn't proven too valuable for the feds so far, but sites like Backpage and Facebook are much bigger fish. And Congress is always ready to approve a bigger net. During Tuesday's meeting, Rep. Jerry Nadler (D-New York) was the only committee member who expressed reservations about the bill, saying he was concerned that it had not been fully vetted, did not have support from surivors of sex trafficking or other relevant stakeholders, did not provide "appropriate protection for civil liberties," and could be redundant in light of a similar bill. Nadler asked that the committee refrain from voting the bill forward until more work could be done, but his colleagues did not agree. * This post previously stated that intent was not required for prosecution, which is incorrect. The original version of this bill, authored by Wagner, stated that nothing in the measure should "be construed to require the Federal Government in a prosecution, or a plaintiff in a civil action, to prove any intent on the part of the information content provider." But the version agreed to yesterday, authored by Goodlatte, says people or entities are only guilty if they use or operate a digital platform "with the intent to promote or facilitate the prostitution" (emphasis mine). The new language is certainly an improvement, but not necessarily that reassuring. Prosecutors and pol[...]

Posting or Hosting Sex Ads Could Mean 25 Years in Federal Prison Under New Republican Proposal

Mon, 11 Dec 2017 15:55:00 -0500

Looking forward to a future when federal agents monitor Tinder? We won't be far off if some folks in Congress get their way. Under a proposal from Rep. Bob Goodlatte (R–Va.), anyone posting or hosting digital content that leads to an act of prostitution could face serious federal prison time as well as civil penalties. This is obviously bad news for sex workers, but it would also leave digital platforms—including dating apps, social media, and classifieds sites such as Craigslist—open to serious legal liability for the things users post. In effect, it would give government agents more incentive and authority to monitor sex-related apps, ads, forums, and sites of all sorts. And it would give digital platforms a huge incentive to track and regulate user speech more closely. Goodlatte's measure was offered as an amendment to another House bill, this one from the Missouri Republican Ann Wagner. The House Judiciary Committee will consider both bills on Tuesday. Wagner's legislation (H.R. 1865) would open digital platforms to criminal and civil liability not just for future sex crimes that result from user posts or interactions but also for past harms brokered by the platforms in some way. So platforms that followed previous federal rules (which encouraged less content moderation in order to avoid liability) would now be especially vulnerable to charges and lawsuits. The bill currently has 171 co-sponsors, including ample numbers of both Republicans and Democrats. Specifically, Wagner's bill would amend Section 230 of the federal Communications Decency Act, which says that websites and other online platforms should not be treated as the creators of user-posted content. What this means in effect is that these third-party platforms can't be sued or prosecuted for users' and commenters' illegal speech (or illegal actions resulting from speech)—with some major exceptions. Digital platforms do not get a pass for content they actually create "in whole or part," for instance. As it stands, states cannot generally prosecute web services and citizens cannot sue them when user-generated content conflicts with state criminal law. Rep. Wagner's bill—like the similar and more-hyped "Stop Enabling Sex Traffickers Act" (SESTA) in the Senate—would end this state and civil immunity for digital platforms in cases of "sex trafficking" or "sexual exploitation of children." But while that may sound like a small concession, it actually opens up a huge range of activity for liability. At the federal level, the above offenses encompass everything from the truly horrific and unconscionable (like sex trafficking by force) to things like sexting between teenagers. And at the state level, definitions can be even more varied and blurry. Wagner's bill doesn't just stop at carving out a new Section 230 exception. It also creates a new crime, "benefitting from participation in a venture engaged in sex trafficking," and makes it easy to hold all sorts of web platforms and publishers in violation. Any "provider of an interactive computer service" who hosts user-posted information "with reckless disregard that the information in furtherance of [sex trafficking] or an attempt to commit such an offense" could face a fine and up to 20 years in prison, the bill states. And nothing "shall be construed to require the Federal Government in a prosecution, or a plaintiff in a civil action, to prove any intent on the part of the information content provider." So in cases like, say, Hope Zeferjohn, the teen girl convicted of sex trafficking for talking to a younger teen on Facebook about prostitution, Facebook could be facing a federal charge for participating in a sex trafficking venture. Goodlatte's proposal, meanwhile, would work by amending the Mann Act, a century-old prohibition on transporting someone across state lines for prostitution. The new section would declare that "whoever uses or operates a facility or means of interstate or foreign commerce or attempts to do so with the intent[...]

Trump vs. Weigel—Shudder, Giggle, or Both?: Podcast

Mon, 11 Dec 2017 15:15:00 -0500

At some point, a person becomes numb to weird headlines emanating from this White House, but boy, does this one just scream out "2017": "Trump calls for the Washington Post to fire Dave Weigel." This is fine, #EatArbys, smod4real 2017, etc. In a nutshell, Delaware Dave tweet-mocked the president for saying that his recent Florida rally was "packed to the rafters" by posting a photo showing anything but. But the photo was taken before Trump was speaking, so upon learning that, Weigel took it down about 20 minutes later. President Donald Trump later tweet-demanded an apology, and Weigel gave him one. Then this happened: .@DaveWeigel @WashingtonPost put out a phony photo of an empty arena hours before I arrived @ the venue, w/ thousands of people outside, on their way in. Real photos now shown as I spoke. Packed house, many people unable to get in. Demand apology & retraction from FAKE NEWS WaPo! — Donald J. Trump (@realDonaldTrump) December 9, 2017 There went Weekend Twitter…. Since Weigel worked at Reason from 2006-2008, and since all of us here tend to have idiosyncratic views on the media, the president, and the free speech, what better topic to kick off today's Reason Podcast featuring myself, Nick Gillespie, Katherine Mangu-Ward, and Peter Suderman? Other pieces referenced on today's episode: * "Abortion Is the Get-out-of-Jail-Free Card of Republican Politics" * "Alito, Abortion, and the Bible" * "Disgraced Al Franken now a victim of sexual McCarthyism" (Cathy Young, Daily News) * "Mitch McConnell Says Caring About Legislative Process is For Losers. He's Wrong." * "Bitcoin Confuses Alan Greenspan" * "In Search of the Elusive Bitcoin Billionaire" * "Eliminate the Brutes: Nick Gillespie on Ewoks" OK, the latter hasn't been written…yet. Audio production by Ian Keyser. Subscribe, rate, and review the Reason Podcast at iTunes. Listen at SoundCloud below: src="" width="100%" height="300" frameborder="0"> Don't miss a single Reason podcast! (Archive here.) Subscribe at iTunes. Follow us at SoundCloud. Subscribe at YouTube. Like us on Facebook. Follow us on Twitter.[...]

The End of Free Speech

Mon, 11 Dec 2017 06:00:00 -0500

Ah, fall. Students heading off to campus protests, football players kneeling as the national anthem plays, the smell of burning flags. It's the season of free speech madness. Republicans, as is their habit of late, have positioned themselves as the defenders of First Amendment freedoms in a time of runaway political correctness. This plays well on television: Footage of college students shouting down speakers they don't like, staging sit-ins, and brandishing protest placards runs on an endless loop at Fox News while chyrons blare, "Free Speech Under Fire on Campus." And when a demonstration in Charlottesville, Virginia, spiraled out of control, it was primarily right-leaning lawmakers and pundits who stood up for the right of white supremacists and Nazis to express their vile opinions about race and Confederate statuary. Meanwhile, signs demanding "No Free Speech for Fascists" cropped up in the hands of lefties at post-Charlottesville rallies around the country. But as the weather cooled, the GOP revealed its true colors. Led by an increasingly vehement and erratic President Donald Trump, the same party that was poised to die on the hill of free speech when it was being threatened by angry progressives was suddenly ready to eliminate First Amendment rights on the football field, revoke citizenship for flag burning, pull broadcast licenses over bad comedy sketches, and expand libel laws to take down annoying members of the media. There are greater threats to speech, it turns out, than a bunch of angry co-eds. In the face of calls for censorship from the left and the right, meanwhile, one of the most important traditional defenders of speech has begun a slow but undeniable retreat. Dealing with internal dissension in the wake of Charlottesville, the American Civil Liberties Union (ACLU) tiptoed away from its proud legacy of free speech absolutism. And poll after poll revealed that Americans of both parties are ready and willing to see speech rights abridged in the service of partisan goals. Nothing that has happened so far in 2017 is yet irreversible. But as the ACLU is undermined from within and the right once again sheds the mantle of free speech in favor of a cape made of the American flag, the sharp edges of our First Amendment rights are eroding. In an era of bipartisan agreement that speech should be limited (paired, of course, with violent disagreement about what speech should be limited), it will be all too easy to forget where the outer boundaries of our freedom of expression once were. And once lost, they won't be easy to reconstruct. Back to School As the fall semester began, campus activists were primed for action. The previous academic year had begun with Yale students surrounding residential college master Nicholas Christakis and shouting about how his wife's opinions on Halloween costumery made them feel unsafe; it ended with Evergreen State College students surrounding professor Bret Weinstein and shouting about how his opinions on student activism made them feel unsafe. Berkeley's campus had been engulfed in angry protests, which culminated in the cancellation of speeches by right-wing provocateurs Ann Coulter and Milo Yiannopoulos. Many students came back to campus looking to fight. They were not disappointed. Before classes even began, Fordham's dean of students and deputy Title IX coordinator Christopher Rodgers was already under investigation for showing a video questioning popular statistics on campus rape in a resident adviser training session. Charles Murray, author of The Bell Curve, a book that makes controversial claims about the relationship between race and IQ, faced protests at the University of Michigan. (Unlike at Middlebury College the year before, where his attempt to speak ended in physical assault, Murray managed to finish his talk after the hecklers moved on. "We feel it is important to make an unequivocal statement that we believe universities should remain bastions of civil de[...]

Justice Dept. Opposes Mandatory Union Dues for Public Employees, Reversing an Old Position

Thu, 07 Dec 2017 11:05:00 -0500

The Department of Justice is recommending that the Supreme Court rule that public sector employees cannot be forced to contribute dues to unions, even when they're not members. The decision to submit an amicus brief supporting the employee in Janus v. American Federation of State, County, and Municipal Employees, Council 31 reverses the Justice Department's previous position under President Barack Obama. Mark Janus, who works for the Illinois Department of Healthcare and Family Services, objects to having to pay dues to a union whose political positions he disagrees with and whose spending he questions in order to keep his job. Public sector employee unions have historically been granted the authority to force payment of these dues under a 1977 Supreme Court decision, Abood v. Detroit Board of Education. The justification has historically been that even when public employees don't join the union, they are beneficiaries of the union's collective bargaining agreements. Requiring them to pay fees avoids the problem of "free riders." But public employee unions are notoriously political and their bargaining agreements are inherently connected to public policies about government spending choices. In a commentary at the Chicago Tribune last year, Janus wrote that he didn't support the behavior of the union that "represents" him, blaming it for supporting candidates and fiscal policies that are essentially bankrupting Illinois. The Justice Department's amicus brief, submitted yesterday, argues that public sector collective bargaining is inherently a political act, and therefore requiring people like Janus to pay dues is forcing them to subsidize political positions they may oppose: In the public sector, speech in collective bargaining is necessarily speech about public issues. Virtually every matter at stake in a public-sector labor agreement affects the public fisc, and therefore is a matter of public policy concerning all citizens. Moreover, issues like tenure for state employees, merit pay, and the size of the state workforce are about more than money: they concern no less than the proper structure and operation of government. To compel a public employee to subsidize his union's bargaining position on these questions is to force him to support private political and ideological viewpoints with which he may strongly disagree. The Janus case is essentially a redo of 2016's Friedrichs v. California Teachers Association, which presented similar arguments. The Supreme Court heard the case, but then Justice Antonin Scalia died and the court tied 4-4, leaving the status quo intact. Damon Root identified Janus as one of the three major cases to watch at the Supreme Court's current term. It may not have the public outrage factor that has driven the coverage of the Masterpiece Bakeshop gay wedding cake case, but the policy implications and the impact on public sector unions here if the Abood precedent were overturned would be huge.[...]

Licensing Board Admits It Can't Silence Red Light Camera Critic

Thu, 07 Dec 2017 10:32:00 -0500

More than three years after it targeted Mats Järlström for, essentially, doing math without a license, the Oregon State Board of Examiners for Engineering and Land Surveying has admitted they were wrong to do so. As Reason has previously reported, Järlström landed in the board's crosshairs in 2014, after his wife received a traffic ticket in Beaverton, Oregon. A trained electronics engineer, Järlström had used his knowledge to critique the timing of the red light camera that snagged his wife's car. Looking for feedback, Järlström sent a letter to the board in 2014 asking for the opportunity to present his research on how too-short yellow lights were making money for the state by putting the public's safety at risk. "I would like to present these fact for your review and comment," he wrote. Instead of inviting him to present his ideas, the board threatened him. Citing state laws that make it illegal to practice engineering without a license, the board told Järlström that even calling himself an "electronics engineer" and using the phrase "I am an engineer" in his letter were enough to "create violations." They also slapped him with a $500 fine. This week, the state of Oregon conceded that the board had overstepped its authority. "We have admitted to violating Mr. Järlström's rights," Senior Assistant Attorney General Christina L. Beatty-Walters said in court Monday. In court documents, the state admitted that the board's attempt to silence Järlström "was not narrowly tailored to any compelling state interests." The board has refunded the $500 fine, and it has been enjoined against targeting Järlström again "for his speech about traffic lights and his description of himself as an engineer except in the context of professional or commercial speech." But the fight might continue. Järlström's lawsuit did not seek any monetary damages, but it asked the state court to issue an order telling the state state board to stop violating Oregonians' free speech rights. The decision handed down this week applies only to Järlström. That's not enough, says Samuel Gedge, an attorney with the Institute for Justice, the libertarian law firm that represented Järlström in court. "The existence of these laws and the way they've been applied time and time again has violated free speech rights," Gedge told The Oregonian. Indeed, as crazy as Järlström's story is, it's not the first time the Oregon State Board of Examiners for Engineering and Land Surveying has been overly aggressive about enforcing its rules about who is and who is not an engineer. In 2014, the state board investigated Portland City Commissioner Dan Saltzman for publishing a campaign pamphlet that mentioned Saltzman's background as an "environmental engineer." Saltzman has a bachelor's degree in environmental and civil engineering from Cornell University, a master's degree from MIT's School of Civil Engineering, and is a membership of the American Society of Civil Engineers. But he isn't a licensed engineer in the state of Oregon. According to Järlström's lawsuit, the board spent more than a year investigating Saltzman's background before voting to issue an official "warning" against using the word engineer incorrectly. In another case, the state board investigated a Republican gubernatorial candidate for using the phrase "I'm an engineer and a problem-solver" in a campaign ad. The candidate in question, Allen Alley, had a degree in engineering from Purdue University and worked as an engineer for Boeing. And of course, he wasn't trying to lie about his lack of an Oregon-issued license; he was making a freaking campaign ad. In 2010, the state board issued a $1,000 fine for illegally practicing engineering to a local activist who told the La Pine, Oregon, city council that a proposed new power plant would be too loud for nearby residents. The board once investigated Portland Monthly magazine for [...]

Kentucky Top Court to Consider Shop's Refusal to Print Gay Pride T-Shirts

Wed, 06 Dec 2017 13:15:00 -0500

(image) Kentucky's Supreme Court has agreed to hear a case about whether a T-shirt shop owner can decline to print gay pride shirts.

This case has been winding through the state courts for years. Way back in 2012, Hands On Originals refused to make T-shirts for a gay pride event in Lexington because the owner had a religious objection with printing anything with a pro-gay message. The city's public accommodation ordinances prohibit discrimination on the basis of sexual orientation, and the Lexington-Urban County Rights Commission ruled that the shop had violated this law.

As a matter of law, the commission was completely wrong. Forcing a T-shirt maker to produce a message and particular images for a customer is a clear and extremely obvious example of compelled speech.

Lower court rulings in Kentucky have already made it clear that antidiscrimination laws cannot be used to force a T-shirt company to print messages or symbols it finds offensive or disagree with. This is not a case about discriminating against gay people. It's a case where the government is trying to force a private business to distribute a message against its will.

Do not be surprised when the commission loses this case and loses badly. During the oral arguments yesterday for Masterpiece Bakeshop v. Colorado Civil Rights Commission, the justices spent much of the time debating and analyzing hypotheticals about whether cakes themselves are artistic expressions and therefore "speech." They discussed whether Colorado could force a baker to include a rainbow or a cross on a cake regardless of his or her feelings about such symbols.

Colorado had previously determined that a bakery could refuse to write on a cake Bible passages the bakers found to be offensive, so clearly even Colorado believes there were limits to what the government can compel bakers to make.

Even the justices who seem most inclined to rule against Masterpiece Cakeshop yesterday (by which I mean the more liberal justices, such as Ruth Bader-Ginsburg and Sonia Sotomayor) were clearly concerned with crafting a decision that protects people from being compelled to communicate a message they find offensive. The justices all recognized that the Masterpiece case is not merely about a business refusing to serve gay people; it was also a case about compelled speech and artistic expression.

Now, whether they'll decide that creationg a wedding cake is an act of artistic expression is very much up in the air. Yesterday's oral arguments, in my eyes, didn't give a solid indication of how the court will ultimately rule. And as Reason's Stephanie Slade (who attended the hearing) wrote yesterday, the ruling may well be very narrow and tailored to avoid establishing a broad precedent.

But in the Kentucky case, the precedents are already there: The government cannot use antidiscrimination laws to force a T-shirt shop to print messages it finds offensive. I would be absolutely shocked if the shop lost this case.

Hillbilly Hotties Win First Round in Bikini-Barista Battle

Wed, 06 Dec 2017 12:45:00 -0500

(image) Score one for the Hillbilly Hotties espresso stand and its band of bikini baristas in Washington state. A federal judge ruled this week that the Everett-based business can stay open pending the resolution of its lawsuit against the city.

The suit, filed in September, challenges the constitutionality of new local laws that would effectively ban businesses like Hillbilly Hotties.

In a pair of August ordinances, Everett banned skimpy clothing at all quick-service food and drink venues (i.e., food trucks, drive-up coffee huts, and concession stands), forbidding workers from wearing sheer clothing or bikinis and from exposing shoulders, midriffs, lower backs, breasts, or the "bottom one-half of the anal cleft." The laws were largely aimed at the area's popular "bikini barista" stands.

On Monday, U.S. District Judge Marsha Pechman issued a preliminary injunction on enforcement of the new rules, finding that they are likely too vague to pass constitutional muster.

The term "bottom one-half of the anal cleft" isn't "well-defined or reasonably understandable," wrote Pechman, "and the ordinances otherwise fail to provide clear guidance and raise risks of arbitrary enforcement." The Court also found that the dress code "likely violates Plaintiffs' right to free expression."

"Choice of clothing is communicative," wrote Pechman. "While some customers view the bikinis as 'sexualized,' to others they convey particularized values, beliefs, ideas and opinions; namely, body confidence and freedom of choice. Moreover, in certain scenarios, bikinis can convey the very type of political speech that lies at the core of the First Amendment."

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Supreme Court Today Mulls Whether Bakers Can Be Forced to Make Gay Wedding Cakes

Tue, 05 Dec 2017 07:50:00 -0500

This morning the Supreme Court will be hearing arguments in a case that may determine whether businesses providing services for weddings— like bakers, florists, photographers—may decline to provide goods and services for same-sex couples based on their religious objections to gay marriage. In Masterpiece Bakeshop Ltd. vs. Colorado Civil Rights Commission, bakery owner Jake Phillips was ruled to have violated the state's anti-discrimination and public accommodation laws by declining to make a wedding cake for a gay couple. Phillips has countered that his speech is being compelled and his religious freedom is being violated by being forced by law to produce a cake for the couple. There will be some complicated questions before the court: Do religious freedom protections extend to decisions by a business not to serve certain customers? Is refusing to serve gay couples getting married fundamentally different from rejecting gay people entirely? Is baking a cake or creating a bouquet of flowers fundamentally an act of speech or artistic expression protected by the First Amendment? Is providing goods and services to a gay couple getting married the equivalent of recognizing and supporting same-sex marriage? The American Civil Liberties Union is representing the gay couple. The Alliance Defending Freedom represents the bakery and its owner. The Department of Justice under Attorney General Jeff Sessions has declared support for Phillips. The Reason Foundation (the nonprofit that publishes and Reason magazine), joined the Cato Institute and the Individual Rights Foundation in an amicus brief supporting Phillips. The brief argues the court should consider the creation of cakes and floral arrangements a form of expressive speech and urges the court to resist the mandate to provide these goods and services. Not all liberty-minded legal experts agree. Law professors Eugene Volokh and Dale Carpenter (of The Volokh Conspiracy group blog) have come down on the opposite side with a brief supporting the state of Colorado. They argue the act of cake-baking has not typically been seen as a form of expressive speech that should be protected by the First Amendment. This matters to Volokh and Carpenter, having previously argued that a wedding photographer should not be forced to provide services for a same-sex wedding because photographs and photography are recognized as a form of expression. Carpenter further explained to Reason in an email the circumstances of the Mastershop case encouraged them to align with the opposite side: "The particular facts of the case show a 20-second conversation where the baker said 'no' before even learning what the customers might want beyond a generic wedding cake. There was no discussion of words, images, or symbols. In our view, that's stretching the protection of 'speech' too far." Libertarians may be frustrated with the Supreme Court's decision not to address freedom of association between private businesses and customers. There is very little evidence the court will consider the larger concept of if, when, or how states or cities determine when businesses are allowed to reject customers. Government, in my opinion, should have to show a serious, significant, widespread problem threatening people's livelihoods before considering restricting the right of a business owner to refuse to associate or contract with certain customers. Wedding services do not, by any means, fall into this category of concern. I predict a close, narrowly tailored ruling, but I'm still undecided on which direction. Reason's Stephanie Slade will be at the court today listening to arguments. Expect a follow-up post later today about the nature of those arguments and the mood of the court.[...]

Who Owns Pepe the Frog? The Alt-Right vs. Cartoonist Matt Furie

Mon, 04 Dec 2017 14:03:00 -0500

Is Pepe the Frog a symbol of free speech or artwork hijacked by racist hate groups? This iconic amphibian has been labeled a Nazi, condemned by a presidential candidate, and now is at the center of an important First Amendment battle in an era of unlimited replication, imitation, and mutation. It's a fight that involves the alt-right, Trump voters, a powerful Washington, D.C.-based law firm, and the anonymous online image board 4chan, a.k.a., the "asshole of the internet." Pepe the Frog is the creation of 38-year-old cartoonist Matt Furie, who declined to be interviewed for this story. The anthropomorphic frog first appeared 12 years ago in Furie's web comic Boy's Club. In the series' most famous sequence, Pepe is caught standing at a toilet with his pants around his ankles. As he later explains, "feels good man." It wasn't until a few years later, when someone posted the "feels good man" image to 4chan, that Pepe became a global phenomenon. The "feels bad man" and "sad frog" versions of Pepe emerged, and the meme spread from there. Pepe entered the mainstream. Katy Perry and Nicki Minaj shared his image on social media. Matt Furie told the Daily Dot in 2015 that he supported the "anonymous people on the internet" who had turned his creation into an unstoppable meme, even going so far as to voice support for "people's decisions to profit off of Pepe." Then Pepe became something else entirely. Intellectual property attorney Louis Tompros says Matt Furie contacted his firm WilmerHale after Pepe appeared in what he describes as an Islamophobic children's book in which Pepe does battle with a bearded alligator and what appear to be his burqa-clad minions. That was only the beginning. Pepe's most recent evolution into a right-wing symbol most likely started on 4chan's /pol/ page, a board devoted to facilitating "politically incorrect" conversation that became a haven for Trump supporters in 2016. Images of Pepe wearing red MAGA hats proliferated, and Donald Trump, Jr. even posted an image that included a Trumpified version of Pepe to social media. The Clinton campaign responded by branding Pepe a "symbol associated with White Supremacy." The Anti-Defamation League lists the frog as a hate symbol. Furie and his legal team began sending Digital Millennium Copyright Act (DMCA) takedown notices to people they believed were using Pepe to "promote hate." One of those takedown notices went to Mike Cernovich, a popular writer and vocal Trump supporter who describes himself as part of the "New Right." "We're not alt-right, and we're not old school National-Review-boring right—we're aggressive," Cernovich told Reason. "We're in a meme world—we're in a world where you have to be catchy, punchy...That's how you actually...[persuade] people to accept your ideas as true." Cernovich posted a fan-made video on his YouTube channel that incorporates Hillary Clinton's audiobook description of what it felt like sharing the debate stage with Trump. But instead of Trump looming behind Clinton, the creator inserted a dancing Pepe. "I thought, 'this is art!'" says Cernovich. Furie's attorneys sent Cernovich a takedown notice. He complied but also hired free speech lawyer Marc Randazza to draft a response in an attempt to discourage further takedown notices. "I believe things can be memed into the public domain," Randazza told Reason. "You can take a whole bunch of already created works, and when you take them all together and then you blow new life into that and a new thought is expressed, you probably have engaged in what's called fair use." He says Pepe fits the bill. Furie's attorneys have gone further in the case of Kansas-City based artist Jessica Logdson, who refused to take down the Pepe-themed paintings she sells on eBay for 99 cents, plus $37 shipping. When Logsdon re[...]

Prohibited Pony Protest at Clinton Event Spurs Vermin Supreme Speech Suit

Mon, 04 Dec 2017 11:38:00 -0500

(image) Political gadfly and perennial presidential hopeful Vermin Supreme is suing the city of Concord, New Hampshire, because it denied him a permit to protest outside a Hillary Clinton book-singing. The protest Supreme envisions involves him and two live ponies appearing outside Gibson's Bookstore, where Clinton will appear on December 5.

Supreme hopes to compel local officials to issue him a protest permit, or at least to prevent them from taking action against the protest.

This is part of Supreme's standard schtick: a "political platform" centered on government-funded ponies for all Americans, complete with a federal pony identification system and a rule that people have their equine companion with them at all times. ("Some voters have interpreted this as commentary, satire, and political parody about a political system that rewards candidates who promise free benefits without discussing cost or practicality," the suit states.)

Supreme's pony platform is one of many ways the performance-art-influenced activist attempts to comment on government overreach.

But while ponies are allowed at the location where he planned to protest, and while city officials were willing to let him bring them there a different day, they denied him a permit to protest on the day of Clinton's book signing. Eugene Blake, an officer with the Concord Health & Licensing Services Department, allegedly told Supreme's team that the sole reason for denying the protest permit was to avoid interfering with Clinton's book event.

This is an "unconstitutional prior restraint on activity that is at the core of the First Amendment," states Supreme's suit, penned by prolific First Amendment attorney Marc Randazza.

"Supreme's message will be lost if he is not able to protest Hillary Clinton outside near the book signing" on the day it takes place, the lawsuit says, noting that Clinton's book references and criticizes a hypothetical free-pony platform and that this forms the basis for Supreme's protest idea. "Given that Mrs. Clinton will likely only have a book signing of this particular book in the City of Concord once, and given that Mr. Supreme's groundswell of support is in New Hampshire, the ability to share his political speech at this protest is likely a once-in-a-lifetime opportunity."

Randazza argues that the city's actions do not fall within the scope of reasonable "time, place, and manner restrictions" on speech, as such restrictions must be narrowly tailored to serve a substantial government aim and not subject to broad discretion by bureaucrats. In this case, his lawsuit argues, the city's decision "was not even thought out—much less thought out so that it would be narrowly tailored." What's more, making a private book signing more convenient or pleasant for Clinton and her fans is not a legitimate government interest.

The city did not even cite safety concerns, the suit states. But even if it did, this worry would be misplaced: "To the best of the Plaintiff's knowledge, no pony has ever attacked an American politician—and presumably the Secret Service would be able to intervene, should Mr. Supreme try and find some way to break that drought in pony-on-politician violence."


Fri, 01 Dec 2017 12:00:00 -0500

(image) After being labeled a "loosely organized hybrid gang" in 2011 by the Department of Justice, the Juggalos—dedicated fans of the hip-hop duo Insane Clown Posse—got political. In September, they convened in Washington, D.C., to protest their gang designation and defend their rights to free speech and free association.

Declining to Bake a Gay Wedding Cake Is Not the Same As Banning Gay Marriage

Thu, 30 Nov 2017 14:05:00 -0500

Next Tuesday the Supreme Court will hear Masterpiece Cakeshop v. Colorado Civil Rights Commission, which poses the question of whether the government violates a baker's right to freedom of speech when it compels him to produce a cake for a gay wedding despite his religious objections to same-sex marriage. Like most (all?) libertarians, I think this sort of coercion is wrong, although I'm not sure the relevant right is freedom of speech. The principle also could be described as freedom of religion or freedom of conscience. At bottom, as Scott Shackford has observed, the dispute is about freedom of association and freedom of contract. But one thing should be clear: It is the government, at the behest of an aggrieved gay couple, that is initiating the use of force. It is the baker, Jack Phillips, who is asking to be left alone. The question is whether he has a right to expect that—or, to put it another way, whether the government's use of force is justified. That point seems lost on The New York Times. In a recent story about the Alliance Defending Freedom (ADF), which is representing Phillips, reporter Jeremy Peters conflates the baker's desire to avoid an implicit endorsement of gay marriage with a government ban on gay marriage. Under the headline "Fighting Gay Rights and Abortion With the First Amendment," Peters says Phillips and the ADF are trying to "blunt the sweep of Obergefell v. Hodges, the ruling that enshrined same-sex marriage into law." Obergefell said states must recognize marriages between people of the same sex. It did not say anyone is legally obligated to bake a gay wedding cake. "We think that in a free society people who believe that marriage is between a man and a woman shouldn't be coerced by the government to promote a different view of marriage," ADF senior counsel Jeremy Tedesco tells Peters. "We have to figure out how to live in a society with pluralistic and diverse views." That stance, Peters suggests (citing "civil liberties groups and gay rights advocates"), is a cover for "a deep-seated belief that gay people are immoral and that no one should be forced to recognize them as ordinary members of society." But whatever the ADF's views of homosexuality, it is entirely consistent to say the government should neither ban gay marriage nor force people like Phillips to endorse it. That is the position taken by the Reason Foundation (which publishes this website), the Cato Institute, and the Individual Rights Foundation, which jointly filed a brief in support of Phillips. As the headline over a recent Daily Signal story notes, "These Groups Support Gay Marriage While Backing a Cake Baker's First Amendment Rights." According to the Times, however, they are "Fighting Gay Rights...With the First Amendment." Peters also conflates government and private action in his discussion of National Institute of Family and Life Advocates v. Becerra, a case the Supreme Court recently agreed to hear that challenges a California law requiring anti-aborton "crisis pregnancy centers" to provide information about abortion. Just as Masterpiece Cakeshop has nothing to do with banning gay marriage, the California case has nothing to do with banning (or restricting) abortion. Both cases are about the constitutionality of forcing people to engage in speech that violates their moral principles. As Peters sees it, "the First Amendment has become the most powerful weapon of social conservatives" seeking to "roll back laws on same-sex marriage and abortion rights." That gloss is not just misleading but blatantly false. If the ADF wins these cases, its victories will have no effect whatsoever on gay marriage or abortion rights. They will simply carve out some space for peaceful di[...]

Antifa Wants 'Bleeding Heart Libertarian' Professor Fired. We're Not Exactly Sure Why.

Thu, 30 Nov 2017 11:45:00 -0500

The Eugene, Oregon chapter of Antifa wants Lane Community College philosophy instructor Jeffrey Borrowdale fired. The self-described libertarian's offenses? Borrowdale participated in a discussion of free speech versus hate speech, and he once included a politically incorrect question on a test. Fliers promoting a November 18 "LCC Speak Out," described the discussion as a "deliberative dialogue discussion addressing issues on free speech versus hate speech," in which students could "explore contemporary topics from both sides." There was no mention of race, gender, sex, sexual orientation, or any of the identity politics issues that typically enrage Antifa and lead them to brand someone attending or speaking a fascist or racist. Nevertheless, on the day of the event, @EugeneAntifa sent out a tweet, urging students to attend the discussion and "let him [Borrowdale] know it's time for him to go!" The tweet included a photo Borrowdale had previously taken with conservative provocateur Milo Yiannopoulos, and described the philosophy instructor as "Young Americans for Liberty sponsor, alt-right, Milo admirer and all around crappy 'instructor'." Despite protests from Antifa and a few students, Borrowdale tweeted after the event, "I was encouraged by the support I heard for #freespeech at the 'Speak Out' at #Lanecc Huge turn out, too." Borrowdale is indeed the adviser for the school's Young Americans for Liberty (YAL) chapter. He describes himself as a "bleeding heart libertarian, transhumanist, not a Nazi" and "a trans ally." Antifa never elaborated on what views of Borrowdale's justified its labeling of him as alt-right, other than the Milo photo. "They've been trying to incite students against me since last fall when someone found the picture I took with Milo on Facebook," he told Campus Reform on November 21. Since then, Borrowdale said activists have been sending him threatening messages, publishing his personal information on social media, tearing down or defacing fliers for his YAL group and urging students to infiltrate and disrupt YAL meetings. Photos Borrowdale provided to Reason show YAL posters covered by memes from Antifa members who apparently don't understand the difference between libertarianism and the alt-right. One meme features Sen. Rand Paul with the words "Is Free Market, Dies Anyway." Another is a picture of an Antifa member punching an alt-right figure with the words "Good night, alt-right." Some students, alleging he is transphobic, have attempted to get him fired, for a multiple choice current events question he asked on one of his midterm exams. "'Did you hear that the leader of this new transgender bathroom ordinance here in Charlotte is a registered sex offender? I'm voting No and so should you.' This argument is an example of:" Students were to choose from three philosophy answers and one clearly sarcastic, wrong answer: "a strong argument that the ordinance will lead to a rise in sexual molestation and assaults. Borrowdale said he "miskeyed" the clearly sarcastic answer to show up as the correct answer and apologized for the mistake. But that hasn't stopped some students from calling for his head. One student on the Eugene Antifa Facebook page posted a screenshot, which showed the midterm question with the sarcastic answer marked as "correct," and commented: "I was livid. I brought this to his superiors and filed a formal complaint with the school. The hypocrisy was making me head spin." Another student in the thread argued the school "should address" Borrowdale's "unacceptable and despicable" act. One other expressed regret that he hadn't been fired yet. If fascism becomes so loosely defined that a "bleeding heart libert[...]