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Free Speech/First Amendment

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

Published: Thu, 27 Jul 2017 00:00:00 -0400

Last Build Date: Thu, 27 Jul 2017 16:03:10 -0400


Claremont McKenna Disciplines Students in the Name of Free Speech

Thu, 27 Jul 2017 07:30:00 -0400

Claremont McKenna College recently suspended three students for a year and two others for a semester for their protest of Manhattan Institute Fellow Heather Mac Donald, author of The War on Cops and vocal critic of Black Lives Matter. Claremont McKenna has taken a very harsh approach. This administrative action could have a chilling effect on future protests. Every student should have the ability to counter offensive, reprehensible speech with their own criticism. But the school is not rebuking all students who exercise their First Amendment rights—only those who choose to prevent others from assembling and speaking. And they're not denying students the ability to appeal or subjecting them to an arbitrary process: sanctions are decided by a three-person panel, and students may have as little or as much participation in the investigation process as they want. And besides, how should a college clarify its commitment to free speech? In early April, protesters blocked entrances to the auditorium where Mac Donald was slated to speak. Since nobody could get through to the event, she spoke to an empty room and livestreamed her speech as students pounded on doors and windows, shouting and chanting. Mac Donald's academic conclusions are controversial. In a Fox segment following the protests, she summarized the core ideas in her book. "There is no epidemic of racially-biased police shootings, the Black Lives Matter narrative is completely false, and there are thousands of law-abiding residents of minority communities who are desperate for more police protection." In her livestreamed speech, she challenged Black Lives Matter's premise "that the police are the greatest threat facing young black men today," while clarifying that "every police shooting of an unarmed civilian is a stomach-churning tragedy." With its disciplinary action, Claremont administrators have sent a message that illiberal shutdown tactics are not tolerated on campus. In an official statement, college officials concluded "the blockade breached institutional values of freedom of expression and assembly. Furthermore, this action violated policies...that prohibit material disruption of college programs and created unsafe conditions in disregard of state law." Several of the students who received suspensions graduated in May, so their degrees are being withdrawn for one year. Fellow students and activists criticized the decision because of the impact it might have on the students' job prospects. Attorney Nana Gyamfi, who is representing the suspended students, called Claremont's decision "cruel and unusual punishment." Physically blocking people from hearing the ideas of others—even those viewed as apologists for cops—creates an environment where free speech simply can't thrive. Heather Mac Donald is an academic, not a professional provocateur. Her intellectual value must be considered stronger someone like a Milo Yiannopoulos. And she concedes in her speeches there are major issues with policing in the United States, and that a legacy of racial animosity toward law enforcement lingers on. Claremont is right to make it abundantly clear that even disagreeable speech deserves to be heard and debated. And while student protests of this kind do not compare to outright government censorship of speech, it's startling to see these millennials barricading doors so their views won't be challenged.[...]

Trump Attacks on Washington Post Illustrate Importance of Citizens United

Tue, 25 Jul 2017 14:20:00 -0400

President Donald Trump does not like The Washington Post, which has made critical coverage of the Trump administration a selling point and adopted a new motto, "Democracy dies in darkness," for the Trump era. Trump dislikes the Post so much, in fact, that he's suggesting its owner, Jeff Bezos, is using it as a lobbying tool: Is Fake News Washington Post being used as a lobbyist weapon against Congress to keep Politicians from looking into Amazon no-tax monopoly? — Donald J. Trump (@realDonaldTrump) July 25, 2017 Trump, you may recall, is the man who boasted at a presidential debate that if he managed to reduce his tax burden to zero, that made him "smart." Thankfully for the Washington Post, and despite the paper's aversion to it, the Supreme Court ruling in Citizens United makes it harder for Trump to use the power of the federal government to silence them. "Because speech is an essential mechanism of democracy—it is the means to hold officials accountable to the people—political speech must prevail against laws that would suppress it by design or inadvertence," Justice Anthony Kennedy wrote for the majority. "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in political speech," he wrote further down. Absent this protection, the federal government could decide that the Washington Post, as Trump claims, was a sort of lobbying arm of Amazon, and thus muzzle their election-related speech. It's not theoretical. Before Citizens United, as A. Baron Hinkle has pointed out, campaign finance laws "regulated not just donations to candidates and political parties, but also 'electioneering communications' made within 30 days of a primary or 60 days of an election." Such laws are regularly used by those in power to silence their critics. In Ohio, Hinckle notes, a local Republican leader targeted a blogger who criticized him. That politician argued that because the activist spent $40 a month to maintain the blog where he posted his political criticisms, he had to register with the state and be regulated as a political action committee. Hinkle also mentions a Missouri man who was fined for calling himself a "citizens lobbyist" and heading a group, Missouri First, that sought to influence public policy. Missouri First was not a lobbying firm, and it had no clients. Nevertheless, the professional association of lobbyists brought a complaint against him. In Nevada, another group was targeted for handing out two flyers critical of a Democratic politician. Without Citizens United, political editorials from newspapers like the Washington Post, and even critical coverage of politicians from such papers, could be considered "electioneering" by election officials, who are ultimately selected by the politicians in power. Regulation of political speech will, by definition, always be conducted by those already in office, strengthening an already powerful incumbency advantage. Undoing Citizens United would open the door for the Trump administration to go after critical coverage as electioneering communications or even in-kind campaign contributions.[...]

Lawmakers Demand Sessions Investigate Backpage's 'Criminal Role in Sex Trafficking' in Wake of Misleading Washington Post Article

Tue, 25 Jul 2017 10:00:00 -0400

The Washington Post has been playing right into politicians' hands when it comes to the narrative about Backpage. A series of recent Post articles suggest a sinister plot by Backpage executives to promote human trafficking, when all the paper's "trove of newly discovered documents" seems to show is that the company hired a firm to promote on foreign competitors' sites. "A contractor for the controversial classifieds website has been aggressively soliciting and creating sex-related ads, despite Backpage's repeated insistence that it had no role in the content of ads posted on its site," the Post opens one article—thereby kicking things off in a misleading manner. While it will take the Post writers 21 more paragraphs to mention it, the contractors solicited all sorts of user-generated advertising for, not just sex-related or adult-oriented advertising. The ads the contractors created, meanwhile, were either 1) posted to competitors' sites—not Backpage—in a ploy to lure perusers of those sites to Backpage, or 2) draft ads made from existing copy on competitors' sites. The contracting company, Philippines-based Avion BPO, would offer users of these other sites a free first listing on, along with a link to the draft ad that they could easily activate. Based on this evidence, Post writers suggest that Backpage's years of denials that the site "facilitated prostitution and child sex trafficking" could be a lie. But for all their breathless insinuations, the writers don't actually tie a single Avion-brokered ad to illegal conduct, let alone harm against children. From what the Post reveals, it's also unclear whether Backpage even knew about the tactics Avion workers were using to generate new listings. It's possible the contracting company came up with the bait-and-switch strategy on its own. Regardless, Backpage's claims to Congress and U.S. courts about its ad policies have always referenced U.S. content. Avion's activity was relegated to overseas endeavors (and, since laws vary greatly from country to country when it comes to both internet content and prostitution, was not necessarily illegal at all). To use Avion as a bouncing-off point to open yet another U.S. federal inquiry into Backpage—as Reps. Ann Wagner (R-Missouri) and Carolyn Maloney (D-New York) are now doing—is purely opportunistic, as Avion's creation or not of foreign ads is irrelevant for U.S. legal purposes. Here in the United States, Senators recently spent more than a year pouring through internal Backpage documents related to adult-ad content. Yet nothing in their resulting report negates Backpage's claims that the company does not create the content that appears on its site, nor does it show a company carelessly indifferent to its site's content. Backpage repeatedly tweaked its automated filter and manual-review policies in an attempt to strike a balance between banning all "adult" content and giving free reign to ad posters. This is above and beyond what's required by law in order to benefit from Section 230 protection. Section 230 of the Communications Decency Act says that third-party web publishers and platforms are immune from liability if a user-posted ad results in criminal activity (with a few exceptions). It seriously limits the ability of opportunists in government and the general populace to take down any website or app they don't like. Without Section 230 protection, most of the Internet would be vulnerable to frivolous civil lawsuits and severe prosecutorial overreach (such as charging Facebook as an accessory any time someone livestreams himself doing something illegal). And people like this letter writer could get their wish for lowly content screeners at social sites to be tried as collaborators should any illegal activity unwittingly get by. Unsurprisingly, there are a lot of prosecutors, politicians, and other authorities who welcome the weakening of Section 230. This includes Sen. Claire McCaskill (D-Missouri), who told t[...]

Michigan Juror Rights Pamphleteer Free From Jail Pending His Appeal

Mon, 24 Jul 2017 15:45:00 -0400

(image) Keith Wood, the Michigan activist who was sentenced to jail last week for handing out pamphlets on the sidewalk in front of the Mecosta County courthouse, was freed on Friday pending his appeal of his jury tampering conviction. Judge Eric Janes granted an emergency stay of Wood's sentence, which includes eight weekends in jail as well as six months of probation, 120 hours of community service, and $545 in fines, after considering the arguments that his attorney, David Kallman, is raising on appeal, which include the trial judge's refusal to allow a First Amendment defense.

Kallman argues that Wood's distribution of Your Jury Rights: True or False?, a flyer published by the Fully Informed Jury Association (FIJA), was constitutionally protected speech. The FIJA pamphlet argues that jurors have the right to judge the law as well as the facts of a case and to acquit a defendant in the interest of justice even when he is guilty according to the judge's instructions regarding the law.

"By prosecuting Mr. Wood," Kallman said in his 2015 motion to dismiss, "the State is engaged in nothing less than tyranny and oppression. Few legal principles are more clear than the one stating that 'handing out leaflets in the advocacy of a politically controversial the essence of First Amendment expression.'" After refusing to dismiss the jury tampering charge against Wood on First Amendment grounds, Judge Kimberly Booher told Kallman he could not mention the issue to the jury, which convicted Wood last month.

Kallman also maintains that Booher erred by prohibiting him from arguing that Wood could not be guilty of trying to "influence the decision of a juror in any case by argument or persuasion" because there was no case to influence. The only case pending at the courthouse on the day Wood distributed the flyers, which involved a man accused of illegally filling a wetland on his own property, was settled by a guilty plea that day.

Kallman likewise says Booher should have let him argue that none of the passers-by to whom Wood gave pamphlets could have qualified as a juror. "We argued, and the Michigan Supreme Court has agreed in earlier case precedent, that a person is not a juror until sworn in to serve on a jury in a case," he says. Since no jury was ever chosen in the wetland case, Kallman argues, there were no jurors to persuade.

Kallman says an assistant prosecutor asked Judge Janes for a gag order that would have prohibited Kallman and Wood from publicly discussing the case. "She was very upset with the media attention given this case and did not want me talking with the media," Kallman says. "The judge dismissed the request out of hand."

Michigan Activist Sentenced to Jail for Distributing Pamphlet About Juror Rights

Fri, 21 Jul 2017 16:05:00 -0400

(image) Today a Michigan judge sentenced a local activist to eight weekends in jail, plus $545 in fines, 120 hours of community service, and six months of probation, for passing out jury nullification pamphlets in front of the Mecosta County courthouse. Keith Wood, a former pastor and father of eight, was arrested in November 2015 and convicted last month of jury tampering, a misdemeanor punishable by up to a year in jail.

Wood, who distributed a pamphlet published by the Fully Informed Jury Association (FIJA), was initially charged with obstruction of justice, a felony punishable by up to five years in prison, and held on $150,000 bail. The felony charge was dismissed in March 2016.

The remaining charge applies when someone "willfully attempts to influence the decision of a juror in any case by argument or persuasion, other than as part of the proceedings in open court in the trial of the case." The only case pending on the day Wood was arrested involved an Amish man named Andy Yoder who was accused of illegally filling a wetland on his own property. Yoder ended up pleading guilty, so no jury was ever chosen for his trial. But Wood testified that he had taken an interest in the case and ordered the FIJA pamphlets after hearing about it.

Wood's lawyer, David Kallman, who plans to appeal the conviction, argued that distributing the pamphlets, which contained general information about jurors' rights, was protected by the First Amendment. He emphasized that Wood never discussed Yoder's case with passers-by at the courthouse.

At Wood's sentencing, Kallman argued that jail time was inappropriate, while the prosecution recommended a sentence of 45 days. After Wood's arrest, Mecosta County Prosecutor Brian Thiede said the FIJA pamphlet is dangerous because "we would have a lawless nation if people were to vote their conscience."

FIJA has more on the Wood case here.

Be Worried About the Future of Free Expression

Fri, 21 Jul 2017 00:15:00 -0400

"Ads That Perpetuate Gender Stereotypes Will Be Banned in U.K., but Not in the Good Ol' USA!" reads a recent headline on the website Jezebel. Yay to the good ol' USA for continuing to value the fundamental right of free expression, you might say. Or maybe not. Why would a feminist—or anyone, for that matter—celebrate the idea of empowering bureaucrats to decide how we talk about gender stereotypes? Because these days, foundational values mean increasingly little to those who believe hearing something disagreeable is the worst thing that could happen to them. Sometimes you need a censor, this Jezebel writer points out, because nefarious conglomerates like "Big Yogurt" have been "targeting women for decades." She, and the British, apparently, don't believe that women have the capacity to make consumer choices or the inner strength to ignore ads peddling probiotic yogurts. This is why the U.K. Committee of Advertising Practice (and, boy, it takes a lot of willpower not to use the cliche "Orwellian" to describe a group that hits it on the nose with this kind of ferocity) is such a smart idea. It will ban, among others, commercials in which family members "create a mess, while a woman has sole responsibility for cleaning it up," ones that suggest that "an activity is inappropriate for a girl because it is stereotypically associated with boys, or vice versa," and ones in which "a man tries and fails to perform simple parental or household tasks." If you believe this kind of thing is the bailiwick of the state, it's unlikely you have much use for the Constitution. I'm not trying to pick on this one writer. Acceptance of speech restrictions is a growing problem among millennials and Democrats. For them, opaque notions of "fairness" and "tolerance" have risen to overpower freedom of expression in importance. You can see it with TV personalities like Chris Cuomo, former Democratic Party presidential hopeful Howard Dean, mayors of big cities and the U.S. Patent and Trademark Office. It is Sen. Dianne Feinstein (D-Calif.) arguing for hecklers' vetoes in public university systems. It's major political candidates arguing that open discourse gives "aid and comfort" to our enemies. If it's not Big Yogurt, it's Big Oil or Big Somethingorother. Democrats have for years campaigned to overturn the First Amendment and ban political speech because of "fairness." This position and its justifications all run on the very same ideological fuel. Believe it or not, though, allowing the state to ban documentaries is a bigger threat to the First Amendment than President Donald Trump's tweets mocking CNN. It's about authoritarians like Laura Beth Nielsen, a professor of sociology at Northwestern University and research professor at the American Bar Foundation, who argues in favor of censorship in a major newspaper like Los Angeles Times. She claims that hate speech should be restricted, and that "Racist hate speech has been linked to cigarette smoking, high blood pressure, anxiety, depression and post-traumatic stress disorder, and requires complex coping strategies." Nearly every censor in the history of mankind has argued that speech should be curbed to balance out some harmful consequence. And nearly every censor in history, sooner or later, kept expanding the definition of harm until the rights of their political opponents were shut down. You can see where this is going by checking out Europe. Dismiss slippery slope arguments if you like, but in Germany, where hate speech has been banned, police have raided the homes of 36 people accused of posting "illegal content." A law was passed last month in Germany that says social media companies could face fines of millions of dollars for failure to remove hate speech within 24 hours. When debates about immigration are at the forefront in Germany, the threat to abuse these laws is great. In England, a man was recently sentenced to more than a year in prison after bei[...]

Do You Have a Right to Follow the President on Twitter?

Wed, 19 Jul 2017 00:01:00 -0400

It will surprise no one familiar with Donald Trump's attitude toward criticism that people who make negative comments about him on Twitter may find their access to his account blocked. If Trump were an ordinary Twitter user, he would be well within his rights to shun anyone who offends him. But Trump is no ordinary Twitter user. He is the president of the United States, and he regularly uses his @realDonaldTrump account—which has 34 million followers, about 15 million more than the official @POTUS account—for presidential purposes. A federal lawsuit filed last week argues that Trump's current use of the Twitter account he established in 2009 makes it a "designated public forum," meaning that banishing people from it based on the opinions they express violates the First Amendment. The idea that you have a constitutional right to follow the president on Twitter is not as silly as it might seem. If the White House let visitors to its website post comments and used a filter to block criticism while allowing praise, that would pretty clearly violate the right to freedom of speech. The Knight First Amendment Institute at Columbia University, which filed the Twitter lawsuit on behalf of itself and seven Trump critics blocked by his account, argues that the president's viewpoint discrimination on the social media platform is analogous. The institute's beef is not with Twitter, a private company that is not constrained by the First Amendment, but with the president and his staff. If Trump used his Twitter account primarily to discuss golf, real estate, or his grandchildren, his criteria for granting access to it would not raise constitutional issues. But Trump uses his Twitter account primarily to discuss work-related subjects such as appointments, executive orders, international affairs, policy initiatives, and press coverage of his administration. Trump's tweets, some of which are posted by White House aides, routinely make news. Sometimes they announce major decisions, such as the appointment of a new FBI director, before any other source. The @realDonaldTrump profile lists his location as Washington, D.C., describes him as the "45th President of the United States of America," and displays official White House photos. The White House social media director describes @realDonaldTrump, along with @POTUS and @WhiteHouse, as a way of "communicating directly with you, the American people!" Trump's press secretary says his tweets are "official statements by the President of the United States." The National Archives and Records Administration agrees, meaning the tweets must be preserved along with other official records. Except for those specifically banned, Trump's Twitter account is open to all, and according to Bloomberg BusinessWeek "a typical Trump tweet" generates "20,000 or so replies." As a result, says the Knight First Amendment Institute, the @realDonaldTrump account has become "an important public forum for speech by, to, and about the President." Twitter users banned by Trump are largely excluded from that forum. They cannot follow him, see his tweets while logged onto Twitter, reply to them, debate other commenters, send direct messages to him, use Twitter's search function to locate specific Trump tweets, or see which accounts follow the president or are followed by him. Banned users can still see the president's tweets if they log out of Twitter, and they can evade the restrictions by creating new accounts under pseudonyms, although they run the risk of being banned again if they say something that irks the president. Alex Abdo, one of the attorneys behind the Twitter lawsuit, argues that "these possibilities are not constitutionally adequate alternatives for users blocked by President Trump any more than the possibility of reentering a town meeting in disguise, or listening in through an open window, would be a constitutionally adequate alternative for a[...]

Oregon Town Cracks Down on Pot-Selling Robotic Blonde Mannequins

Fri, 14 Jul 2017 15:45:00 -0400

(image) The new trend in the Pacific Northwest is cracking down on marijuana dispensary mascots. First there was the Washington cannabis bill that banned costumed mascots and inflatable arm-flailing tubemen from advertising for cannabusinesses. Now the town of Wood Village, Oregon, is fining Aaron Michelsen, owner of NW Compassion Medical Center, $2,000 for the two buxom, sign-wielding mannequins he had stationed outside his store.

Michelson was told his blonde mannequins—which wave signs reading "got chronic" when plugged in—ran afoul of Wood Village's recent sign ordinance, which among other things bans "portable signs." Michelsen netted another $1,000 fine for a placing a prohibited rooftop sign atop his cupcake store, which is ingeniously located in the same building as his marijuana dispensary.

City Manager Bill Petersen told the Portland Tribune that the fines were not about persecuting pot, insisting that they were a neutral enforcement of a statute that was "being uniformly applied regardless of the business type." But Wood Village's ordinance does in fact create different standards for different business types. The portable sign provision that got Michelsen in trouble, for instance, creates exemptions for real estate businesses, political campaigns, and garage sales.

Not only is that not uniform regulation, it's also likely unconstitutional.

"When you have an ordinance that regulates who can use a type of medium or signage, that is presumably unconstitutional," says William Mauer, an Institute for Justice attorney who has litigated similar cases in the past.

The Supreme Court took up this issue in 2015, when it heard the case of Reed v. Town of Gilbert. A small Arizona church had sued over a local sign ordinance that allowed it to deploy temporary signs only in the 12 hours prior to any church service. It also required those signs be no larger than six square feet. Meanwhile, temporary political signs could be set up at any time and could be 32 square feet. This, the Court ruled unanimously, was unconstitutional. Justice Clarence Thomas declared the ordinance a "paradigmatic example of content-based discrimination."

Wood Village's ordinance seems to have many of the same problems as the Gilbert one, specifying the different sign sizes and number of display days that are allowed for temporary signs, depending on whether they for a construction site, garage sale, political campaign, or real estate.

Part of the point of the First Amendment is to prevent such petty restrictions on expression. The City of Wood Village should recognize this and let Michelsen's life-sized, drug-pushing barbies do their work unmolested.

Brazilian Waxing Hypothetical on Law Exam Leads to Harassment Charge

Fri, 14 Jul 2017 15:30:00 -0400

Howard University law professor Reginald Robinson is in a sticky situation after the university found him responsible for sexual harassment over an exam question involving a Brazilian wax. Robinson is just the latest professor to find himself accused of harassment on the basis of his germane classroom expression—a disturbing trend that has profound implications for academic freedom and the quality of education at our nation's institutions of higher education. Robinson's exam question centered around an individual who fell asleep during a Brazilian wax and awoke with the sense that he or she had been touched improperly during the procedure. Two students filed a sexual harassment complaint against Robinson based on the hypothetical, and the university's Deputy Title IX investigator found him responsible, for reasons including the question's use of the word genital and also, inexplicably, the fact that "the complainants felt that the hypothetical scenario was crafted in order to prompt them to reveal personal details about themselves." For his word crimes, Robinson was ordered to undergo sensitivity training, to submit to classroom monitoring, to have his academic materials reviewed by a dean "for sexually suggestive and/or offensive material," and to have an official reprimand placed in his file. FIRE, where I work, wrote to Howard in June to demand that the university reverse the sanctions against Robinson, but so far, there has been no response. To the uninitiated, Robinson's exam question may seem unusual. But wacky hypotheticals—which involve convoluted fact patterns designed to tease out students' understanding of a variety of complex, intersecting legal issues—are in fact a fixture of law school exams. One professor's sample torts exam, for example, features a car accident that takes place after "Jimmy missed his ride home, so he walked across the street to HOOTERS to get a drink." Another professor poses a hypothetical based on a scenario in which a bar patron dislocates another customer's shoulder because he is "infuriated that P has spilled a tequila sunrise (a sissy drink that stains) on his best stonewashed authentic cowboy jeans." Yet another professor's criminal law exam asks students to assess the culpability of someone who drunkenly writes "Call Zonker for good oral sex. $10 for ages 15 and up. Half price for under 15" on a mall bathroom wall, and includes his own phone number—but claims to have no memory of the event when he sobers up. And fact patterns like the one Robinson presents—where something happens while someone is asleep, or unconscious, or under anesthesia—are a useful and popular type of hypothetical because of the thorny legal issues they raise. The reality is that if you are an attorney, you are going to encounter uncomfortable, disturbing, and even sexually explicit content in the course of your work. I will never forget having to read a detailed autopsy report in my first job doing pharmaceutical litigation, and as someone who now does a lot of work on issues of campus sexual assault, I routinely read detailed descriptions of sexual encounters that would make even the most seasoned veteran blush. If a law student can't handle an exam hypothetical that includes the word genitals, that person should think seriously about whether or not law is the right profession for them—because as a young associate at a law firm, you don't get to tell a partner that you won't work on a case for a big client because the facts squick you out. If law professors have to worry that every hypothetical scenario they lay out for students could result in formal discipline, legal education will suffer greatly as a result. We already know that because of the tense climate surrounding the discussion of sexual assault on campus, some law professors report being afraid to teach rape law, which[...]

Bassem Youssef Was 'Egypt's Jon Stewart.' Then He Was Forced To Flee.

Fri, 14 Jul 2017 14:04:00 -0400

Bassem Youssef, known as the "Jon Stewart of Egypt," was the host of the most popular television show in the history of the Arab world. A heart surgeon by training, he was inspired by The Daily Show frontman to start a weekly YouTube show in 2011, just as the Egyptian revolution and Arab Spring were getting underway. He taped it from his laundry room. Called Al-Bernameg, which means "The Show," its audience grew to 30 million per episode. "[The] value of satire is that it humanizes people in power," Youssef tells Reason's Justin Monticello, those "considered holy." Youssef's downfall began with a viral segment mocking President Mohamed Morsi's hat in 2013. In March, a warrant was issued for his arrest for insulting the president and Islam. So Youssef offered to turn himself in—wearing his Morsi hat. Though he was released on bail, it was the beginning of the end. Three months later, the military deposed and jailed Morsi, dissolved the constitution, and silenced the critical press. General Abdel Fattah el-Sisi became the new ruler of Egypt, and his regime didn't take kindly to mockery. What followed is the subject of Youssef's new memoir, Revolution for Dummies, and the documentary Tickling Giants by The Daily Show Senior Producer Sara Taksler, which is available online. The Show lasted just one airing after Sisi became president. Youssef was slapped with the largest fine in the history of Egyptian media. Sensing that he would soon be arrested and prevented from traveling out of the country, he threw a few personal belongings into a suitcase and rushed to the airport. In a wide-ranging conversation, Youssef discusses the limits of satire, political correctness, comedy on college campuses, Trump, how political leaders use religion, and more. Produced by Justin Monticello. Cameras by Paul Detrick and Alex Manning. Music by Topher Mohr and Alex Elena and Pavel Malkov. Subscribe to our YouTube channel. Like us on Facebook. Follow us on Twitter.Subscribe to our podcast at iTunes. This is a rush transcript—check all quotes against the audio for accuracy. Bassem Youssef: The Islamists were reacting in a violent way because they're not used that they're ... They are hiding behind this sacred ideology of religion and they're not used to be criticized, so to break that mold and to just be pointed at them and make fun of them. They couldn't handle it. Justin Monticello: You went in and police officers and court employees, or the prosecutor's employees were asking to take selfies with you and they were big fans of yours. Youssef: It was almost surreal to be in a place where I'm being questioned while the people who are in charge of questioning me were securing ... Questioning me were fans and taking pictures. Monticello: So, after the military coup ... I guess we can call it a coup now. I know you took great pains to talk about how it was a word that was not allowed in Egypt for a time, right? Youssef: Oh yeah, that was the "c" word. Monticello: There was marshal law, and you couldn't broadcast for a couple months. Even your staff, they were fighting with their parents about whether they should continue to do the show now that the military was in power. In moments like that, where you were confronting these new regimes that kept popping up during the revolution, how did you decide when it was too dangerous? How did you find the inspiration to keep going on and making fun of them? Youssef: Well, part of me was scared to come back. I was scared of ... How can we make fun of the new regime because the new regime was very popular. You can say whatever you want about the regime, but Sisi was popular, the regime, their army is popular. It's part of our culture. And I mentioned in the book how people would consider the armies even more sacred than religion. I almost took the decision of stopping[...]

Camera-Shy Cops Have No Legal Recourse

Wed, 12 Jul 2017 00:01:00 -0400

Last month former FBI Director James Comey said he was relieved to hear there might be "tapes" of his conversations with Donald Trump, since the audio record would confirm his account of those interactions. Last year Comey was less keen on recordings of law enforcement officials, worrying that "viral videos" of police encourage a dangerous passivity that may contribute to rising homicide rates. Those dueling reactions reflect the dual potential of ubiquitous recording technology, which can expose bad behavior or exonerate cops falsely accused of it. Police across the country will have to adjust to the reality that any citizen with a smartphone can record them when they are on duty, because there is nothing they can legally do to stop it, as a federal appeals court confirmed last week. The decision, by the U.S. Court of Appeals for the 3rd Circuit, involved two incidents in which Philadelphia police officers forcibly interfered with people who were trying to record them. Such harassment, which often involves phone confiscation and trumped-up criminal charges, is sadly common, even though every federal appeals court to consider the issue has said it violates the First Amendment. In 2012 Amanda Geraci, a member of a police watchdog group, was observing an anti-fracking protest at the Philadelphia Convention Center when she tried to record an arrest. As the 3rd Circuit describes it, "An officer abruptly pushed Geraci and pinned her against a pillar for one to three minutes, which prevented her from observing or recording the arrest." In 2013 Richard Fields, then a Temple University sophomore, was standing on a sidewalk when he noticed cops breaking up a house party. After he took a picture and refused to leave the area, the police grabbed his phone and cited him for obstructing a public passage. After Geraci and Fields sued the cops and the city, the defendants did not challenge their claim that the First Amendment protects the right to record police in public places. That would have been hard to do, since the Philadelphia Police Department has officially acknowledged as much since 2011. Instead the officers argued that they should be immune from liability because the right to record the police was not "clearly established" when they violated it. U.S. District Judge Mark Kearney gave them a victory they were not seeking, saying what Geraci and Fields were trying to do was not sufficiently "expressive" to be protected by the First Amendment. According to the 3rd Circuit, Kearney missed the point. "This case is not about whether Plaintiffs expressed themselves through conduct," the appeals court says. "It is whether they have a First Amendment right of access to information about how our public servants operate in public….Recording police activity in public falls squarely within the First Amendment right of access to information." The appeals court nevertheless concludes that the law was not clear enough on this point in 2012 or 2013 to hold the officers responsible for violating it. As Judge Richard Nygaard notes in his partial dissent, that aspect of the ruling is hard to swallow. When the cops roughed up Geraci and detained Fields, four circuit courts had already ruled that recording police is protected by the First Amendment. Even more tellingly, Nygaard notes, "the Police Department's official policies explicitly recognized this First Amendment right well before the incidents under review here took place." The department's rule against interfering with recordings, established in 2011, was reiterated in 2012, when "the Department mandated that a sergeant read it at every roll call." Nygaard notes that "each police officer also received a copy of the Directive and was required to sign that they received it." Given this background, it's hard to believe t[...]

Connecticut Reaffirms Right to Curse at Supermarket Clerks

Mon, 10 Jul 2017 14:48:00 -0400

(image) There's no "hate speech" exception to the First Amendment, but that doesn't stop some overzealous authorities from acting as if there is. Nina Baccala was convicted in 2013 for calling a Connecticut grocery store manager "fat" and "ugly" during an argument. But now Baccala's right to free speech has been avenged by the state's Supreme Court.

On July 7, the court agreed with Baccala's lawyers that insulting and cursing at a store manager does not count as using "fighting words," and thus are not exempted from First Amendment protection.

The case stems from a 2013 incident at a Stop & Shop grocery store in Vernon, Connecticut. After a store manager told Baccala it was too late to process a wire transfer, Baccala lost her temper and began berating the employee. She was eventually convicted of breaching the peace, a misdemeanor, and was sentenced to 25 days in jail. She appealed.

Last week, Connecticut's seven Supreme Court justices agreed unanimously that Baccala's conviction should be overturned, although three justices believed there should be a new trial. The majority ruled in favor of acquittal.

While Baccala's speech was "offensive" and "meant to personally demean" the store manager, neither of those things is criminal, wrote Justice Andrew McDonald for the majority. "Uttering a cruel or offensive word is not a crime unless it would tend to provoke a reasonable person to immediately retaliate with violence," he explained.

The decision noted that retail employees "are routinely confronted by disappointed, frustrated customers who express themselves in angry terms" and that this is exactly the sort of situation that people in customer-facing management positions "are expected to diffuse."

California Colleges to Ann Coulter and Student Satirists: Shut Up

Thu, 06 Jul 2017 07:01:00 -0400

What do professional provocateur Ann Coulter and an irreverent student publication called The Koala have in common? Both have seen their unpopular speech shut down by the supposedly "viewpoint neutral" actions of public universities in California. In a series of legal maneuvers, the University of California, Berkeley and the University of California, San Diego are attempting to blur the lines between viewpoint-neutral and viewpoint-discriminatory in ways that, if allowed to stand, will give colleges and universities much greater leeway to suppress speech they don't like. Berkeley's College Republicans filed a lawsuit in April following the cancellation of Ann Coulter's planned speech at the university. The organization accused Berkeley of using an unwritten "high-profile speakers" policy as pretext for discriminating against conservative speakers by limiting them to times of day and locations where they were unlikely to be heard. According to the College Republicans, Berkeley has applied its vague, disputed high-profile speaker policy—which seems to have been hatched in March at a meeting of school administrators, police officers, and city officials, but never actually written down—"in a discriminatory fashion, resulting in the marginalization of the expression of conservative viewpoints on campus by any notable conservative speaker." In a motion to dismiss filed last week, Berkeley argues its actions with regard to Ann Coulter's planned appearance were viewpoint neutral. University officials claim, unbelievably, that they were concerned only about "clashes between opposition groups of protesters...any suggestion that the University was motivated by a particular protester's message or view is demonstrably false." But those "opposition groups" materialized (at an event billed as a "free speech" rally) after Berkeley utterly failed to prevent left-wing demonstrators from shutting down a speech by conservative provocateur Milo Yiannopoulos. So in effect, Berkeley is arguing that if you let angry protesters from one side run so rampant that it draws angry protests from the other side, you now have a "viewpoint neutral" right to suppress controversial speech in the name of public safety. If the court were to accept this argument, it would hand California universities a giant club with which to hammer unpopular speech. In fact, the University of California, San Diego (UCSD) is already trying to wield a similar club to bludgeon unpopular speech on its campus. Earlier this year, a court upheld a "Media Act" passed by the school's student government that eliminated student activity funding for all print media on campus. The student government passed the act just two days after the publication of a controversial article in The Koala, a student humor publication that bills itself as "The Worst in Collegiate Journalism Since 1982!" On November 16, 2015, The Koala published—without a trigger warning!—an article that satirized the concept of "safe spaces" and made use of numerous stereotypes and epithets in the process. Two days later, on November 18, UCSD issued an official denouncement of The Koala, calling it "profoundly repugnant, repulsive, attacking and cruel." On the same day, student government representatives explicitly denounced the article before pulling funding for print media on campus. The Koala has long drawn the ire of the campus' more politically correct elements for its provocative and intentionally offensive humor. As a result, over the past 15 years, the UCSD student government has attempted on at least three separate occasions to cut The Koala's student activity funds (money collected from students by the university and given to the student government to distribute, on a viewpoint-neu[...]

Trump Officials Promise Changes to College Sex- and Speech-Policing Agency

Wed, 05 Jul 2017 14:02:00 -0400

Under Barack Obama, the U.S. Department of Education drastically ramped up its attention to sex, speech, and social relations on college campuses—a move that mired college students, staff, and faculty in an inscrutable and labyrinthine system of federal investigations but failed to produce noticeable progress in students feeling fairly treated by the process. Now Trump administration officials are promising to refocus the department's Office for Civil Rights (OCR), the agency responsible for regulating anti-discrimination policy in education. OCR is "committed to discontinuing the legally dubious practice of issuing subregulatory guidance that is then treated through enforcement as binding mandates," Candice Jackson, acting head of the office, told the National Association of College and University Attorneys (NACUA) last week. During the Obama administration OCR, had a propensity for issuing "Dear Colleague" letters that casually defined things like sexual assault, sexual harassment, and gender in terms that created serious confusion and pressure at schools. At the NACUA meeting, Jackson said her office would refrain from imposing new regulations on schools without going through the established federal rulemaking process. She also promised not to shirk OCR's mission of making sure schools that receive federal funding do not discriminate against students based on sex, gender, race, religion, etc., nor tolerate an environment that's hostile or unsafe for them because of these things. It's under this umbrella that OCR oversees schools' handling of campus sexual assault. "We're charged by Congress with a specific mission: to enforce the civil rights guaranteed to our nation's students by certain civil rights laws, and we are fulfilling that charge," Jackson said, according to a report from Inside Higher Ed. "For those in the press and my friends with other political perspectives who have been expressing fear that...OCR is scaling back or retreating from civil rights, that's just not the case." How true this is or remains we shall see, but there's certainly room to scale back on OCR's bureaucratic excesses without sacrificing student rights or safety. In fact, for all of the Obama-era OCR's grand moves, it made little dent in investigating allegations of systemic bad actors in academia, leaving behind a backlog of cases. OCR "processing times have skyrocketed in recent years and the case backlog has just exploded," Department of Education Press Secretary Elizabeth Hill said in a recent statement. Jackson accused Obama's OCR of taking a "gotcha" approach that treated "every complaint as a fishing expedition through which our field investigators have been told to keep searching until you find a violation rather than go where the evidence takes them." Previous OCR head Catherine Lhamon insists the "fishing" accusation is false. "OCR's charge from Congress is that it must act whenever it has information that civil rights may be violated," Lhamon tells Inside Higher Ed, "and if one student has been harmed, it's incumbent on OCR to look to see if there's another student who is similarly situated." Justified by congressional mandate or not, this approach led to lengthy investigations with slow resolutions—a situation understandably frustrating and frightening both to those facing allegations of misconduct and to victims of sexual assault and harassment. It's also an asinine way to keep students safe from any potential serial predators. What the approach did wonders for is snowballing investigations that picked up ever more (and more minor) potential perps along the way, since simply talking or writing about a Title IX inquiry can get a student or professor accused of violating Tit[...]

Mark Hamill vs. Autographed Memorabilia: The Revenge of the Dark Side

Mon, 03 Jul 2017 13:01:00 -0400

Bill Petrocelli doesn't look like someone routinely engaged in illegal activity by the jovial smile on his face as he greets customers around the San Francisco location of Book Passage, a small chain of stores that he co-owns in the Bay Area. Since the beginning of 2017, however, he's been routinely violating a California's law regulating autographed items. Small bookstore owners like Petrocelli now must adhere to a laundry list of requirements that threaten their livelihoods and restrict First Amendment rights. "This law—it's like dropping a bomb," says Petrocelli, "it's terrible." Book Passage holds about 800 events each year featuring the likes of Bill and Hillary Clinton, John Kasich, Caitlyn Jenner, and Ozzy Osborne. "We really kind of thrive on that," Petrocelli says. "I think it's the best part of the book business, when the author and the reader have a get together in your store and have a little discussion. It's wonderful." The law requires dealers to provide a certificate of authenticity for every signed book, which includes a description of the item, the identity of the person who signed it, the date, time and place of the sale; the dealer's name and address; information about a witnesses to the signing; and information about a previous owner, if the item was obtained secondhand. And they have to retain that information for seven years. "It's a certificate of authenticity requirement on steroids," says Anastasia Boden, an attorney at the Pacific Legal Foundation, who is helping Petrocelli sue the state over the law. "Anything that requires extra paperwork is going to drive up the cost of doing business." Any violations of the requirements means anyone could sue the bookseller for up to ten times the cost of the book. The seller could also get hit with get court costs, attorney fees, interest, expert witness fees, and any relief the court finds appropriate. Petrocelli says that beyond the potential cost, the law is also an invasion of his customers' privacy because he must record and store their names and addresses for an extended period. "It's children who come to a lot of events to see their favorite author, want their book signed, and if we are going to have to go through every record and keep track of every child that buys a's just crazy," Petrocelli says. But the law wasn't supposed to apply to booksellers. "[It] originated as any law does, and that is with somebody with a lot of political clout and a sob story," says Boden. In this case, it was Mark Hamill, the actor famous for playing Luke Skywalker. Boden says Hamill approached the legislature after seeing faked versions of his autograph being sold to duped customers online for hundreds of dollars. He teamed up with former State Assemblywoman Ling Ling Chang (R-Diamond Bar) to expand a pre-existing law applying to autographs. It flew through the California legislature and was signed by Gov. Brown last September. "Then booksellers kind of got word of this and looked at it and thought, 'oh my God, this could apply to autographed books, right on the face of it,'" says Petrocelli. Chang declined our interview request, but did tell Reason in an email that she stands by the bill. She also pointed to a letter issued by her office in December 2016 stating that the law doesn't apply to booksellers because its wording states an autograph dealer must be "principally" in the business of selling autographed items in order for the law to apply. The attorney Boden says the word "principally" here is vague, and arguably Petrocelli is principally engaged in selling autographed books. In addition to holding hundreds of events with autograph signings every year, Book Passage even has [...]