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Preview: Reason Magazine - Topics > Free Speech/First Amendment

Free Speech/First Amendment

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

Published: Wed, 28 Jun 2017 00:00:00 -0400

Last Build Date: Wed, 28 Jun 2017 18:15:41 -0400


‘Get Out or We Will Kill You’: Jewish Students Allege Censorship and Harassment in Campus Lawsuit

Tue, 27 Jun 2017 12:10:00 -0400

In a federal lawsuit filed last week, a group of Jewish plaintiffs allege that San Francisco State University has systematically turned a blind eye to—and in some instances actively facilitated—censorship and harassment of Jewish students and speakers on the public university's campus. The lawsuit points, in particular, to the 2016 disruption of a speech by Jerusalem Mayor Nir Barkat, numerous incidents of anti-Jewish and anti-Israel speech on campus, as well as an incident in which the Jewish student organization Hillel was allegedly banned from a student fair. Opinions about the lawsuit fall along predictable dividing lines. The editorial board of J., the Jewish News of Northern California, praised the suit and argued that the protesters at the Nir Barkat event had "trampled the free speech rights of Jewish students." On the other hand, Dima Khalidi of Palestine Legal called the Barkat protest "political speech that is protected by the First Amendment" and said that "the complaint is going to fail." Both sides have a point. The lawsuit raises real concerns about the treatment of Jewish students at SFSU. But the plaintiffs seem to want it both ways: Even as the suit contends that SFSU is violating the free speech rights of Jewish students, it also demands that the university censor protected speech by Palestinian students and their allies, citing anti-Jewish harassment. As Justice Thurgood Marshall wrote, "the freedom to speak and freedom to hear are inseparable; they are two sides of the same coin." If, as the lawsuit alleges, SFSU officials told campus police to "stand down" while anti-Israel protesters disrupted Nir Barkat's speech, the university may indeed have violated students' First Amendment rights to invite and hear a speaker of their choosing. Video footage of Barkat's attempt to speak at SFSU last year shows protesters engaging in loud, sustained chanting while students attending the speech huddle around a seated Barkat in an attempt to hear him. While protest is indeed protected by the First Amendment (as is a normal level of "booing" and brief interruptions from the audience), the right to protest does not extend to the right to be so vocally disruptive, for such a prolonged period of time, that the speaker cannot be heard. And if, as the suit alleges, the university allowed the Hillel student group to be excluded from tabling at a university-sponsored fair because of the organization's viewpoint, that too could constitute a First Amendment violation at a public university like SFSU. Moving from the First Amendment to the harassment claims, some of the speech cited by the plaintiffs may have crossed the line from protected speech into unprotected threats, such as counter-protesters allegedly yelling "get out or we will kill you" at Jewish students participating in a Hillel-sponsored peace rally. Other parts of the lawsuit, however, point to examples of clearly protected speech and expression as grounds for the claim that a "hostile environment" exists for Jewish students on campus. In alleging that the university has been deliberately indifferent to a racially hostile environment, the plaintiffs point to examples of constitutionally protected political expression such as posters featuring a picture of a dead baby with the caption "Made in Israel—Palestinian Children Meat, Slaughtered According to Jewish Rites Under American License," as well as students holding placards proclaiming "my heroes have always killed colonizers" and "resistance is not terrorism" alongside portraits of Leila Khaled, the first female airplane hijacker. It is not difficult to see why such speech would offend many students, but asking a government institution like SFSU to police this kind of political rhetoric in the name of preventing a "hostile environment" is a prescription for both First Amendment violations and political side-choosing. In short: it's complicated. If the truth of the allegations is proven in court, the plaintiffs have some very real grievances about some of the university's conduct and, certainly, about wh[...]

Supreme Court to Hear Case on Gay Wedding Cakes

Mon, 26 Jun 2017 10:38:00 -0400

(image) Is a wedding cake speech? When a baker makes a wedding cake, is he or she declaring support for the couple's marriage? Can a baker decline to bake a cake for a gay couple (and defy a state's anti-discrimination laws) because he or she objects to same-sex marriage on religious grounds?

Today, the Supreme Court announced they would be taking up a case that may answer these questions for anyone who provides services for gay weddings. This is likely to be a case with a narrow ruling about religion and compelled speech and what constitutes an artistic expression. Don't expect a broad ruling that would change the nature of state-level public accommodation laws one way or the other.

In Masterpiece Bakeshop Ltd. Vs Colorado Civil Rights Commission the owner of a bakery in Lakewood, Colo., declined to bake a wedding cake for a gay couple because he had religious objections to same-sex marriage. In 2014 he was ruled to have violated the state's anti-discrimination laws on public accommodation.

He is one of a handful of similarly-minded business owners who offer their goods and services to weddings but oppose same-sex marriage recognition. We've seen other cases involving bakers, florists, photographers, and owners of private wedding venues.

The Supreme Court had previously turned away challenges to state-level antidiscrimination laws, but the court has been sitting on this case for months without deciding one way or another if they'd take it. Today was the last day in this session for the court to report out whether they would grant the case. After months of rescheduling, they've decided that they will.

The case will in all likelihood be very narrowly focused on whether the free speech and free religion rights of bakery owner Jack Phillips have been violated. The Supreme Court will have to consider whether the making of a wedding cake is a form of artistic impression and whether, therefore, laws forcing Phillips to serve same-sex couples constitutes compelled speech.

Historically, as I explained about these cases in 2015, courts have not determined cakes themselves to be expressive activity (therefore not protected speech). But text, writing, and imagery placed on the cake can be considered speech, and a bakery cannot be forced to communicate text or images they deem offensive. The question is whether the creation of a wedding cake itself is a form of speech.

Libertarians hoping for a broader ruling related to whether public accommodation laws violate the free association rights of business owners will probably be disappointed. There is zero chance this court is going to rule in such a way that alters state-level public accommodation laws. This case will mostly revolve around whether the activities of people like bakers and florists are considered artistic speech and therefore are possibly exempt from such laws.

Read more about the case itself from SCOTUSblog here.

Gawker Documentary Fails to Make Case for Publishing Sex Tape

Fri, 23 Jun 2017 15:00:00 -0400

Nobody Speak: Trials of the Free Press. Available now on Netflix. I'm afraid that merely to disclose the subject of the Netflix documentary Nobody Speak: Trials of the Free Press is about—the dire threat to the First Amendment posed by a jury's decision that a website did not have a right to show a stolen video of professional wrestler Hulk Hogan's penis in action—is to give away the entire plot: Yes, this is the latest and greatest chapter in the news media's eternal proclamation of martyrdom at the hands of prigs and fascists. And yes, it rises to such an awesome level of whining self-aggrandization that it threatens to spoil the good name of hogwash. So, spoiler alert. The case that's the subject of Nobody Speak is possibly the most fascinating and least significant in the three-century history of media litigation. It's full of depraved sex, villainous intrigue, and lurid betrayals. But its ultimate contribution to legal canon was not exactly epic. As longtime media lawyer Charles Glasser (an interview of whom would have been a welcome addition to Nobody Speak) wrote after the verdict, the case's lesson was simple: "Don't publish secretly-made sex tapes." The story begins in 2012, when celebrity wrestler Hogan (nom de real life: Terry Bollea) got an unusual gesture of friendship from his best pal, radio shock-jock Bubba the Love Sponge: Hey, wanna sleep with my wife? Hogan knew this was a frequent recreational activity of Bubba (nom de non-perv world: Todd Alan Clem) and the busty Mrs. Sponge and had previously declined to participate But this time, down on his luck—and wallet—after a series of business reverses and an expensive divorce, he agreed. What Hogan didn't know was that the Sponges routinely and secretly taped these marital guest appearances. (After the case blew up, Bubba claimed Hogan knew all about the taping, but he wouldn't repeat it under oath during the trial.) That might not have mattered except that a copy of the recording, apparently stolen by one of Bubba's employees, found its way into the hands of the scabby gossip website Gawker. Founded in 2002, Gawker regularly trafficked in sex tapes and such scoops as the grooming of Republican senatorial candidate Christine O'Donnell's pubic hair. Founder Nick Denton, the British journalist who built Gawker into the centerpiece of a $200 million online media empire, routinely defended his celebrity-bullying scandal sheet as a champion of truth and democracy in a world of lickspittle mainstream media. "Everybody knows what usually appears, certainly, in the establishment media bears little resemblance to what's really going on," he says in Nobody Speak. Speaking truth to Bristol Palin and Justin Beiber! Gawker posted a chunk of the tape; Hogan's attorney asked it be taken down, and when Gawker refused, filed a breach of privacy lawsuit. What followed was a series of potboiler plot twists: Another sex tape, with racist remarks by Hogan that would get him booted out of pro wrestling; intimations that Gawker, wittingly or not, was acting as a stalking horse for blackmailers; an FBI sting against a sex-tape broker; and a series of legal stratagems by Hogan's attorneys that the Gawker legal team considered inexplicably stupid but which turned out to be brilliant. The real stupidity occurred on the Gawker side of the courtroom, none so lethally damaging as the swaggering arrogance of the site's former editor, A.J. Daulerio, who wrote the story accompanying the Hogan sex tape. During his testimony, Daulerio insisted that images of boinking celebrities are always newsworthy. Always? wondered Hogan's attorney. Well, maybe not if the celebrity was a child, Daulerio conceded dismissively. Under what age? asked the attorney. "Four," sneered Daulerio, a remark that nearly everybody agrees sent Gawker's case into a death spiral. In an interview in Nobody Speak, a wounded Daulerio insists that "Clearly, I'm kidding." So, there's a second lesson to be had in the Gawker case: Don't practice your stand-up act dur[...]

Supporting Laws Banning Hate Speech Means Supporting Police Raids on People’s Homes

Fri, 23 Jun 2017 12:35:00 -0400

If you hate the way police in the United States abuse, threaten, and sometimes kill citizens during routine law enforcement, and you also oppose hate speech and want the government to ban it, take note of how Germany enforces its hate speech laws: They send police to raid people's homes and arrest them. This week German police, in a coordinated effort, raided the homes of 36 people accused of violating the country's hate speech laws. From The New York Times: Most of the raids concerned politically motivated right-wing incitement, according to the Federal Criminal Police Office, whose officers conducted home searches and interrogations. But the raids also targeted two people accused of left-wing extremist content, as well as one person accused of making threats or harassment based on someone's sexual orientation. "The still high incidence of punishable hate posting shows a need for police action," Holger Münch, president of the Federal Criminal Police Office, said in a statement. "Our free society must not allow a climate of fear, threat, criminal violence and violence either on the street or on the internet." Nothing helps prevent a "climate of fear" like police officers busting into dozens of people's homes because they said things the government has outlawed, am I right, folks? Americans who want to create an exception that "hate speech" not be protected by the First Amendment often point to Europe and insist countries with such speech bans are no less free for it. On the theory alone, they're wrong. Prohibiting offensive messages is an imposition on freedom, regardless of whether one favors the laws. You are inherently less free when you face criminal penalties for saying certain things. In practice, we see the obvious truth of hate speech law enforcement: gangs of police officers breaking into people's homes and charging them with crimes. In the context of America's struggles to hold police officers accountable for violent or reckless misconduct, the enforcement of hate speech laws in America would get people killed. And if people think the victims will be those alt-right folks, they're just not paying attention. It's undoubtedly going to be some minority teen who recklessly tweets "Kill Whitey" in response to some news item of the day. Yesterday we noted the government's tendency to unfairly apply speech regulations to benefit the powerful over the disenfranchised is a great reason not to give government power to determine hate speech. We have plenty of other examples showing how hate speech laws would actually play out in the hands of our government. Several years ago the mayor of Peoria arranged for the police to raid the home of a man who made a Twitter account parodying him. After news of the raid went viral, the mayor showed absolutely no remorse for the absurd reason behind it and insisted he was the one who had his freedom of speech trampled. Politicians would like nothing better than to possess the means to punish those who make fun of them. The local college diversity committee wouldn't be meting out punishment. The politicians would. Look at what's happening to hate crime laws. People enacted these laws allegedly to protect minorities from violence based on their identities. Now states have added law enforcement as a protected class, and police are calling for sentencing punishments for those who say mean things about them when they are arrested. It's reckless to think that hate speech laws won't end up in a similar place. Eventually we'll see police raiding people's homes for tweeting mean things about them. The kernel of this is contained in tweets from a police inspector in Sussex, England, who did not like people making fun of a rainbow-colored cop car.[...]

What You Didn’t See in That Shocking Evergreen Segment: Michael Moynihan Dishes in The Fifth Column

Thu, 22 Jun 2017 13:59:00 -0400

(image) If you haven't seen the Vice News segment on the insane race politics at Evergreen State College, click on this YouTube link to fix it. The correspondent, former Reasoner Michael Moynihan, spends the opening segment of our latest Fifth Column podcast, dishing about the story behind the story, and the juicy parts that ended up on the cutting room floor. You can listen to the whole episode here:

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Also in the episode: Kmele Foster and I get into it over the Philando Castile verdict and politics thereof, Moynihan goes on a tasty rant against those who had accused Otto Warmbier of abusing his white privilege and allegedly violating the laws of a totalitarian state, and the three of us bitch generally about the New York subway.

Access more Fifth Column stuff is availabile at iTunes, Stitcher, Google Play,, @wethefifth, and Facebook.

Sen. Feinstein: Protecting College Free Speech from Violent Protests Is Too Much of a Burden

Thu, 22 Jun 2017 13:30:00 -0400

Gosh, protecting controversial free speech from violent protests is expensive. Wouldn't it be easier for colleges to just not let any of that stuff happen? Who wants another Kent State? That is, with no exaggeration, the attitude expressed by Sen. Dianne Feinstein (D-Calif.) at a Senate hearing this week on free speech on college campuses. The hearing came just a day after the Supreme Court ruled unanimously that the First Amendment is so important to American culture that the federal government cannot simply reject trademarks on the basis of offensiveness. Feinstein, by contrast, expressed bafflement at the argument that universities shouldn't succumb to the heckler's veto and to the idea that publicly funded colleges should have to host invited speakers "no matter how radical, offensive, biased, prejudiced, fascist the program is." There's a reason Feinstein appears on Reason's list of "enemies of freedom." Ultimately, Feinstein's objection to protecting controversial speech is that of the bureaucrat disguised as the concerned nanny. When people intent on violence show up at protests, other people can get hurt. But colleges have limited resources, she argues—so why should campus police be expected to be able handle protests if they get seriously out of hand? "You don't think we learned a lesson from Kent State way back when?" she asked at one point, a fascinating reply that illustrates so much about her mind-set. Feinstein's argument seems to be that the killing of four college students by members of the National Guard would have been prevented if the government hadn't allowed the protests in the first place. Fortunately, lovers of liberty were well-represented on the panel by UCLA law professor Eugene Volokh, who patiently explained that, yes, publicly funded colleges are expected to make sure the civil liberties of the students on their campus are protected appropriately by law enforcement. "One important job of the government is to prevent violence, and to prevent violence without suppressing free speech," he said in response. There is an odd mind-set out there—one not confined to any particular ideology—that thinks it's some sort of distraction for law enforcement officials to spend their time protecting protesters from violence or standing along parade routes to make sure people come to no harm. These people have their priorities backwards. Protecting people who are expressing their First Amendment rights is what the police are for. The distractions are arresting people for drugs and citing people for not wearing seatbelts. Similarly, people like Feinstein complain about the costs of protecting liberty as though colleges haven't been undergoing a dramatic increase in administrative bloat. The answer isn't more money from the government. The answer is better spending priorities. Over at Hot Air, John Sexton says he's surprised to see Feinstein support submission to the heckler's veto. He shouldn't be. Feinstein is actively pro-censorship toward anything she perceives as potentially contributing to violence, including imaginary guns in video games. Ken "Popehat" White, who recently wrote an excellent explainer for the Los Angeles Times detailing how and why "hate speech" is protected speech, took note of the Supreme Court decisions this week and the overall trend of judicial decisions that bolster the First Amendment. But he also worries what it means for the future if we culturally abandon free speech values: The Supreme Court is upholding the black letter of liberty, but are Americans upholding its spirit? When college students, encouraged by professors and administrators, believe that they have a right to be free of offense, no. When Americans hunger to "open up" libel laws or jail flag burners, no. When our attitude towards the hecker's veto becomes "let's do it to them because they did it to us," no. Not only is speech practically impaired, but in the long term the cul[...]

The Dalai Lama Is the Latest Speaker to Cause a Campus Freakout

Thu, 22 Jun 2017 13:00:00 -0400

"UCSD is a place for students to cultivate their minds and and enrich their knowledge. Currently, the various actions undertaken by the university have contravened the spirit of respect, tolerance, equality, and earnestness—the ethos upon which the university is built." What reads like a standard complaint from campus activists actually contains a surprising twist. Rather than the usual hullabaloo over Charles Murray, Ann Coulter, and Milo Yiannopoulos, the subject of student ire this Saturday at University of California, San Diego, was none other than the Dalai Lama. Despite the similarity in rhetoric, the protesters weren't liberals offended by a provocative right-wing speaker, but Chinese students—the passage above is from the Chinese Students and Scholars Association—who see the Tibetan spiritual leader as a separatist political figure who threatens their culture and governance. When the planned commencement address was announced this winter, it drew anger from many Chinese students, who comprise about 14 percent of the student body. Outraged Facebook comments criticized the choice as too divisive, a characterization that flies in the face of the the Dalai Lama's cuddly western image as an exiled martyr. "The Dalai Lama spent his whole life trying to separate Tibet from the mainland of China, regardless of how much privilege and freedom the government offered the people of Tibet," wrote Chinese-American undergrad Ruixuan Wang in an op-ed for the student newspaper, The Guardian. "His conflict with our government caused property loss, deaths of innocent people, and panic among the general public––even though he claims that he advocates for a nonviolent revolution." The students are right: Those values are proclaimed by UCSD, and almost every university, in some form. And when speakers come under fire on campuses across the country, students often jump to these stated core values as justification for the idea that they need protection because their treasured learning environments are being sullied by offensive ideas. The Dalai Lama's language is clearly not meant to incite controversy, and rhetoric centered around world peace is far from incendiary. But college administrators have proven, time and time again, that they're willing to concede to the demands of disgruntled or offended students. If all 14 percent of the Chinese student body were offended, would that be a significant enough number for the administration to take action? When speakers like Charles Murray come to other campuses, disgruntled students likely make up similarly small numbers––the vast majority remain apathetic. So does administrative action hinge on the number of offended students or the content of a speaker's message? The administrators ultimately chose not to act, and the Dalai Lama gave a thoroughly predictable speech about the value of working together as "one human family" to achieve lasting peace. "You have the opportunity and also the responsibility to create a better world, a happier world. No longer violence. No longer this huge division"—an ironic message, given that his appearance itself was divisive.[...]

Students Hold Free Speech Events, Get Denounced as White Supremacists

Wed, 21 Jun 2017 14:00:00 -0400

Faculty and students at Linfield College have compared the campus chapter of Young Americans for Liberty (YAL) to terrorists and denounced them as white supremacists. Why? Because the libertarian student group attempted to host a series of free speech events at the small liberal arts college in McMinnville, Oregon. The story begins in April, when YAL members set up a table on campus to promote both their newly formed group and a series of "speak freely" events they were sponsoring. Keifer Smith, vice president of the chapter, brought along an inflatable "free speech ball" and invited students to write whatever they wanted on it. "The majority of the things written on there were uplifting things, not political, not inflammatory at all," Smith reports: comments like "you're awesome" and "have a nice day." But one person drew Pepe—a cartoon frog that some alt-right trolls have adopted as a symbol—and so the YAL chapter quickly became the focal point of campus outrage. "Immediately we were deemed alt-right," says Smith. They were even called white supremacists. The Linfield Advisory Committee on Diversity responded to the Pepe doodle by inviting the chapter to a free speech forum. According to Smith, this was supposed to be an hour-long discussion of the general idea of open expression—but quickly morphed into a four-hour denunciation of him and his group for their supposed intolerance. Next the school declared that it would be cancelling an upcoming event in the "speak freely" series—a talk on ethics and free speech by the University of Toronto psychologist Jordan Peterson. The libertarian group was told the paperwork for the event had been turned in a day late; the school also cited tweets from Peterson promoting what was supposed to be a private event for Linfield students and faculty. Meanwhile, faculty lashed out at the YAL chapter in the campus paper, The Linfield Review. "The agenda of groups like Alt-Right and campus clubs that are either supported by the Alt-right or providing a platform for the Alt-Right is clear," wrote Reshmi Dutt-Ballerstadt, a professor of English and the co-coordinator of the school's gender studies program. "They want to challenge college campuses for their numerous diversity and inclusion initiatives that provide a legitimate space for ideas and knowledge base that have been historically marginalized and excluded." At the free speech forum, Dutt-Ballerstadt had accused Smith and his group of being funded by "alt-right dark money." Similar sentiments were expressed by Linfield's dean of faculty, Dawn Nowacki. Nowacki admitted that she didn't know any times anyone in the YAL chapter had expressed anything racist or misogynist, but she insisted they still posed a threat. "These efforts are a lot more subtle," she wrote. "Just as becoming a terrorist is a gradual, step by step process, people do not become part of the alt right overnight. These events represent a kind of soft recruitment into more extremist ideas." Undeterred, the chapter moved the Peterson lecture to an off-campus venue. "We were really only planning on having maybe 100 people, maybe 200 people," Smith recalls. Instead over 400 folks turned up, and a YouTube version has so far gotten nearly 90,000 views. Smith says he hopes to keep providing a forum for students to express otherwise maligned and unpopular viewpoints. As for the professors and students who have denounced him, Smith says their rhetoric is part of an open campus discourse too: "That's the price you pay for free speech."[...]

College Students No Longer Think 'Freedom Is a Big Deal'

Tue, 20 Jun 2017 11:13:00 -0400

"For the first time, a growing number of young people actually think freedom isn't a big deal," says sociologist Frank Furedi, who's an emeritus professor at the University of Kent and author of the new book, What Happened to the University: a sociological exploration of its infantilisation.

The university was once a place where students valued free speech and risk taking, but today "a very illiberal ethos has become institutionalized," says Furedi. "In many respects, it's easier to speak about controversial subjects outside the university...It's a historic role reversal."

Furedi sat down with Reason's Nick Gillespie to talk about the roots of this intellectual shift on campus—and how to fix it.

Edited by Mark McDaniel. Cameras by Jim Epstein and Kevin Alexander. Music by Bensound.

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Michael Lewis: The Supreme Court Has Harmed the Culture of Free Speech by Deciding Too Much Stuff

Mon, 19 Jun 2017 17:50:00 -0400

As mentioned here Saturday and Sunday, Commentary magazine recently published a big symposium on the question "Is Free Speech Under Threat in the United States?" I contributed a brief essay, as did a whole bunch of people who have written for Reason over the years. Here are links to their archives around these parts, in addition to some choice quotes from their Commentary commentaries: Jonathan Rauch ("Free speech is always under threat, because it is not only the single most successful social idea in all of human history, it is also the single most counterintuitive"), Harvey Silverglate ("today's most potent attacks on speech are coming, ironically, from liberal-arts colleges"), Laura Kipnis ("Here I am, a left-wing feminist professor invited onto the pages of Commentary"), John Stossel ("On campus, the worst is over"), Richard A. Epstein, Cathy Young, Christina Hoff Sommers ("Silencing speech and forbidding debate is not an unfortunate by-product of intersectionality—it is a primary goal"), Jonah Goldberg ("God may have endowed us with a right to liberty, but he didn't give us all a taste for it"), and John McWhorter. Additionally, many of these and other contributors to the symposium have been subject to Reason interviews, including Epstein, Silverglate, Stossel, Sommers, Goldberg, Ayaan Hirsi Ali, Kipnis, and Rauch, the latter two of which are embedded at the bottom of this post. The symposium repeats many of the same themes, as the campus-centric excerpts above indicate. Many contributors noted the paradox between our widening legal speech freedoms (unanimously reinforced by the Supreme Court twice just today) and the shrinking intellectual support for the stuff. I for one was predictably inspired by Jonathan Rauch ("Every new generation of free-speech advocates will need to get up every morning and re-explain the case for free speech and open inquiry—today, tomorrow, and forever. That is our lot in life, and we just need to be cheerful about it"), and repulsed by Islam critic Pamela Geller ("The real question isn't whether free speech is under threat in the United States, but rather, whether it's irretrievably lost. Can we get it back? Not without war, I suspect"). But the biggest surprise argument I don't recall encountering before came from mega-bestselling author Michael J. Lewis, who argued that even a pro–First Amendment Supreme Court unwittingly harms the culture of free speech by taking too many issues out of the scrum of consequential public debate. Excerpt: If free speech today is in headlong retreat—everywhere threatened by regulation, organized harassment, and even violence—it is in part because our political culture allowed the practice of persuasive oratory to atrophy. The process began in 1973, an unforeseen side effect of Roe v. Wade. Legislators were delighted to learn that by relegating this divisive matter of public policy to the Supreme Court and adopting a merely symbolic position, they could sit all the more safely in their safe seats. Since then, one crucial question of public policy after another has been punted out of the realm of politics and into the judicial. Issues that might have been debated with all the rhetorical agility of a Lincoln and a Douglas, and then subjected to a process of negotiation, compromise, and voting, have instead been settled by decree: e.g., Chevron, Kelo, Obergefell. The consequences for speech have been pernicious....[A] legislature that relegates its authority to judges and regulators will awaken to discover its oratorical culture has been stunted. When politicians, rather than seeking to convince and win over, prefer to project a studied and pleasant vagueness, debate withers into tedious defensive performance. I suspect Lewis is exaggerating here, but his argument is intriguing. After the jump, some releva[...]

Words Aren't Weapons! (Reason Podcast)

Mon, 19 Jun 2017 15:45:00 -0400

"Implying that anyone should be put into a wood chipper is definitely kind of a dick move," says Reason's Katherine Mangu-Ward. "But a fully legal dick move, not an actual threat, [so] I'm going to stick up for fully legal dick moves."

On today's episode of the Reason Podcast, Mangu-Ward joins Nick Gillespie, Matt Welch, and Andrew Heaton to discuss weaponizing words in the broader struggle for free speech; the recent congressional shooting; whether heightened political rhetoric in Trump's America is responsible for violence; Michelle Carter's conviction of manslaughter for convincing her boyfriend to kill himself (setting a precedent that equates words with weapons); Donald Trump taking America's Cuba policy backwards (though his rhetoric is outpacing his reforms); and a new FOIA request obtained by Reason's C.J. Ciaramella revealing the FBI's misgivings about Dungeons & Dragons creator Gary Gygax (also a libertarian).

Audio production by Ian Keyser.

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SCOTUS Unanimously Rejects Law Banning Sex Offenders From Social Media

Mon, 19 Jun 2017 12:00:00 -0400

Today the Supreme Court unanimously overturned a North Carolina law that bans registered sex offenders from any "commercial social networking Web site" that is open to minors. With the exception of Neil Gorsuch, who did not participate in the case because he was not on the Court when it was argued, every justice agreed that the law's broad scope cannot be reconciled with the First Amendment. The case was brought by Lester Packingham, who at the age of 21 had sex with a 13-year-old girl and was convicted of taking indecent liberties with a minor. Eight years later, Packingham beat a traffic ticket and expressed his pleasure on Facebook: "Man God is Good! How about I got so much favor they dismiss the ticket before court even started. No fine, No court costs, no nothing spent….Praise be to GOD, WOW! Thanks JESUS!" That burst of online exultation violated North Carolina's ban on social media use, which covers all registered sex offenders, regardless of whether their crimes involved minors or the internet. Packingham argued that his conviction violated the First Amendment, and a state appeals court agreed. The North Carolina Supreme Court did not. Siding with Packingham today, the U.S. Supreme Court concludes that the law "burden[s] substantially more speech than is necessary to further the government's legitimate interests." Writing for the majority, Justice Anthony Kennedy emphasizes the internet's vital importance to freedom of speech. "This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet," he says. "As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium." Kennedy says North Carolina's law "enacts a prohibition unprecedented in the scope of First Amendment speech it burdens," applying indiscriminately to many kinds of online activity, even when it has nothing to do with contacting minors. "By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge," he writes. "These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard....To foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights." In a concurring opinion joined by John Roberts and Clarence Thomas, Samuel Alito notes that the law's broad definition of "commercial social networking Web site" covers not only widely used social media platforms like Facebook and Twitter but also shopping sites such as Amazon and news sites such as The Washington Post. Alito says the law's "staggering reach...makes it a felony for a registered sex offender simply to visit a vast array of websites, including many that appear to provide no realistic opportunity for communications that could facilitate the abuse of children." The Court's decision in Packingham v. North Carolina not only vindicates the First Amendment but provides a welcome dose of skepticism about sweeping, indiscriminate laws that are supposedly justified by the need to protect children from sexual predators. In this case, as in many others, the law went far beyond that goal, criminalizing a wide range of innocent actions by people classified as sex offenders, most of whom pose no real threat to children.[...]

Free Speech Is Always Under Attack. Here's How To Fight For It.

Sun, 18 Jun 2017 17:05:00 -0400

On Friday, Todd Krainin and I posted a video rebutting popular cliches that are used to attack free speech. The video is based on a powerful piece in The Los Angeles Times by lawyer and blogger Ken White of Popehat. In the short time the video went live, other stories have emerged that underscore how free speech is always under attack and in need of defending. Check out Matt Welch's post about a recent Vice documentary about the situation at Evergreen State College, where a progressive professor came under attack for criticizing a "Day of Absence" during which whites would not be welcome campus. From Welch's post: This piece came out concurrently with a big Commentarysymposium (to which I contributed) on whether free speech is under threat in the United States. My bottom line: "But in this very strength [of recent Supreme Court protections] lies what might be the First Amendment's most worrying vulnerability. Barry Friedman, in his 2009 book The Will of the People, made the persuasive argument that the Supreme Court typically ratifies, post facto, where public opinion has already shifted. Today's culture of free speech could be tomorrow's legal framework. If so, we're in trouble." Threats to speech often come from strange quarters. Consider the sentence given to Michelle Carter, a Massachussetts teen found guilty of involuntary manslaughter after texting her suicidal boyfriend, Conrad Roy, that he should kill himself. As Sarah Siskind wrote at Reason: Carter's punishment does not fit the crime. Involuntary manslaughter is a conviction for a negligent surgeon, for an abusive husband who unintentionally kills his spouse, for a drunk driver who accidentally runs someone down. A reckless text is not a reckless, swerving car. Words are not literal weapons, and the moral turpitude of Carter's comments does not change that. Writing about the same case in The New York Times, Reason's Robby Soave argues: For decades, efforts have been underway to criminalize every obnoxious or problematic social interaction between K-12 kids in American schools. Hardly a week passes without a national news story about teenagers who were arrested on child pornography charges — and face unfathomably long prison sentences — because they had inappropriate pictures of classmates (or even themselves) on their phones. In Iowa, in June 2016, authorities tried to brand a 14-year-old girl as a sex offender for Snapchatting while wearing a sports bra and boy shorts. The following month, Minnesota police officers busted a 17-year-old for swapping consensual sexts with his 16-year-old girlfriend. Such matters should be handled by parents and teachers, not the cops. The same is true for the various issues that plagued Ms. Carter and Mr. Roy. Free speech is at the center of a free society. Without it, virtually all other freedom is strictly curtailed, if not literally unimaginable. Pick any three days to follow and you will likely find multiple attacks on the concept of free and open expression. Even on Sunday, there's no rest for those of us who want to live in libertarian world. src="" allowfullscreen="allowfullscreen" width="560" height="340" frameborder="0">[...]

If You Think Campus Free Speech Is No Big Deal, Watch This Shocking Vice News Report From Evergreen State College

Sat, 17 Jun 2017 11:08:00 -0400

(image) Are you one of those people who suspects that all the brouhaha over campus free speech outrages, no matter how individually insane the stories, might be exaggerated in the aggregate when it comes to prevalence and effect? It's OK—I am one of those people, despite writing about the subject on occasion and reading all the fine work done at Reason by Robby Soave and other colleagues.

Or I should say, I was one of those people, before watching Thursday's Vice News segment from Evergreen State College in Olympia, Washington, where (as Ben Haller has written here previously) things have gone pear-shaped ever since a lone white professor refused to stay home during an activist "Day of Absence" for those with pallid skin pigment. Vice News correspondent (and former Reasoner/current Fifth Columnist) Michael Moynihan visited the embattled campus to query the antagonists in the controversy, and the results are stunning, infuriating, bananas. I have often wondered what it would be like to capture people in the midst of an ideological re-education exercise; now I wonder no more:

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As timing would have it, this piece came out concurrently with a big Commentary symposium (to which I contributed) on whether free speech is under threat in the United States. My bottom line: "But in this very strength [of recent Supreme Court protections] lies what might be the First Amendment's most worrying vulnerability. Barry Friedman, in his 2009 book The Will of the People, made the persuasive argument that the Supreme Court typically ratifies, post facto, where public opinion has already shifted. Today's culture of free speech could be tomorrow's legal framework. If so, we're in trouble."

And just yesterday, Nick Gillespie pushed back on "5 Clichés Used to Attack Free Speech":

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Teen Found Guilty of Manslaughter for Texting Suicidal Boyfriend

Fri, 16 Jun 2017 18:15:00 -0400

On the night of July 12, 2014, 18-year-old Conrad Roy III killed himself by inhaling carbon monoxide in a Kmart parking lot in Fairhaven, Massachusetts. His 17-year-old girlfriend, Michelle Carter, was miles away in Plainville. (*) Yet today Carter was convicted of involuntary manslaughter for Roy's death. She faces up to 20 years in prison. Why? Because Carter had repeatedly texted Roy prior to his death, "you just need to do it." Bristol County Juvenile Court Judge Lawrence Moniz declared this illegal, even though there is no law in Massachusetts against encouraging suicide. This was a bench trial, so the judge rather than a jury determined the verdict. His ruling threatens the very core of how our legal system approaches speech. The law has traditionally treated some sorts of speech, such as defamation, as a type of nonviolent harm. And in some crimes, such as incitement or conspiracy, the law says speech can be a proximate cause of violence. But this ruling treats speech itself as a form of literal violence—as the immediate cause of death. As the American Civil Liberties Union put it in a statement, the prosecution's theory is that Carter "literally killed Mr. Roy with her words. This conviction exceeds the limits of our criminal laws and violates free speech protections guaranteed by the Massachusetts and U.S. Constitutions." A month before Roy took his life in June of 2014, Carter had attempted to talk her depressive boyfriend out of killing himself. Roy had already attempted suicide before; when he considered another attempt, Carter texted, "I'm trying my best to dig you out." But by July Carter's texts had taken a turn for the perverse. She told him repeatedly that suicide was the only way out. On July 12th, when Roy got sick from carbon monoxide and stepped out of his car, Carter texted him to "get back in." What motivated Carter to do this? The prosecution painted a picture of a teenager who wanted attention for her recently deceased boyfriend. The defense maintained Carter struggled from an eating disorder and depression and, at the time of Roy's death, was "involuntarily intoxicated" with antidepressants. Neither scenario matters. Whatever her motives or her poor choices, the important legal question is whether her words actually caused Roy's death. And it was carbon monoxide poisoning that killed Conrad Roy, not Michelle Carter's messages. Carter's punishment does not fit the crime. Involuntary manslaughter is a conviction for a negligent surgeon, for an abusive husband who unintentionally kills his spouse, for a drunk driver who accidentally runs someone down. A reckless text is not a reckless, swerving car. Words are not literal weapons, and the moral turpitude of Carter's comments does not change that. Some legal experts have speculated that the judge's ruling was an attempt to convince lawmakers to pass legislation making people liable for their online speech. But even if such a bill were a good idea, you shouldn't convict someone for committing a crime that doesn't exist in the hope that lawmakers will someday pass a law to fit the crime. This isn't how our judicial system works. Let's hope an appeals court strikes it down. As Reason's Elizabeth Nolan Brown asked when the charges were first brought, "Do we really want to charge teens as killers for reacting imperfectly to loved ones' pain and mental illness?" (* Correction: This post originally stated that that Roy killed himself in Fairhaven, Kansas; in fact it was Fairhaven, Massachusetts.)[...]