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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: Sat, 17 Mar 2018 00:00:00 -0400

Last Build Date: Sat, 17 Mar 2018 15:00:23 -0400


Will and Grace Botches the Gay Wedding Cake Fight

Fri, 16 Mar 2018 14:30:00 -0400

Granted, we shouldn't expect complex legal analysis from television comedies, even ones that have lawyers in them. But I thought that Will & Grace, of all shows, would at least grasp the basics of the conflict around conservative bakers and gay wedding cakes. Alas: Thursday's Will & Grace, in its comic pursuit of laughs connected to current gay issues, gets the entire wedding cake debate absurdly wrong in its attempt to flip the script. In "The Beefcake and the Cake Beef," over-the-top wealthy gadfly Karen, a vocal supporter of Donald Trump, is rejected by a bakery when she tries to get a cake made with "MAGA" on it for a birthday party for the president. Here's the set-up: src="" allowfullscreen="allowfullscreen" width="560" height="340" frameborder="0"> Refusing Karen is well within the bakery's rights, and it will be regardless of how the Masterpiece Cakeshop case before the Supreme Court comes out. A pro-Trump message on a cake is speech. A cake baker, a T-shirt printer, or a book publisher cannot be forced to print speech that he or she disagrees with. That's called compelled speech. The show ends up taking this role reversal to a weird and terrible conclusion. Grace, who hates Trump and all he stands for, pushes the bakery to make Karen's MAGA cake, going so far as to raise the specter of the American Civil Liberties Union (ACLU) coming after them. To its credit, the show takes the argument to its natural, terrible conclusion: The episode ends with the baker reluctantly baking a customer a cake with a swastika on it. But in doing so, the show pretty much gets everything backwards. It mentions that the ACLU has represented the free speech rights of Nazis, and this is true, but the show doesn't even grasp the basic idea that the bakery has speech rights too. When it comes to compelled speech, the ACLU would likely be defending the bakery here. The argument about gay wedding cakes is fundamentally about what counts as speech and expression. The ACLU is representing gay couples in these wedding cases, including Masterpiece Cakeshop. Their argument is not that bakers have to cook whatever cake their customers demand. They're arguing that this isn't a speech or religious freedom issue and that it's foundationally about denying service to gay people in violation of public accommodation laws. They don't see wedding cakes and other wedding products as a form of expressive speech. The writing on the cake, yes. The cake itself, no. I think the ACLU is wrong here. So does the Reason Foundation, which publishes this site: We've submitted an amicus brief supporting the bakery and arguing that custom-made wedding goods like cakes and floral arrangements count as expressive speech and therefore that the government cannot force businesses to provide them. But even some libertarians disagree. Eugene Volokh of The Volokh Conspiracy (hosted here at Reason) submitted an amicus brief supporting the opposite side. Within this dispute, though, neither side argues that a baker should be required to make any cake that any customer wants. People do not give up their rights to free speech (and more important, the right to refuse to communicate some speech) just because they've opened a business and serve the public. Everything about this debate is where those boundaries of speech sit. So Grace was completely in the wrong when she browbeat the bakery into making Karen's MAGA cake. By doing so, she treated those bakers as though they're nothing but servants with no say in what they may do—which, ironically, makes her just like Karen.[...]

Sign Referencing Civil War Hero Is Sexual Harassment, Says Massachusetts Lawmaker

Fri, 16 Mar 2018 14:10:00 -0400

(image) Here's a twist on the debate over public monuments to problematic figures like Confederate leaders: A Massachusetts state lawmaker wants to censor references to a man who scored Civil War era wins against the Confederacy. Her reasoning? That man's name is Joseph Hooker.

As we're all aware, General Hooker's last name became slang for "someone who has sex for money." Today, "hooker" is widely considered a slur by folks in the sex-work community. Yet as far as I'm aware, there have't been any sex worker campaigns to remove references to Joseph Hooker from public view—presumably because most well-adjusted people realize that words have different meanings in different contexts.

"There are all sorts of benign words in our language that sound like words unfit for polite company," writes Jon Keller at CBS Boston, offering Uranus and clap as further examples. "And they offer us an opportunity to teach snickering kids about Civil War history or outer space—and about showing respect for others while avoiding making fools of ourselves."

State Rep. Michelle DuBois (D-Plymouth) disagrees. She has been calling for the removal of a statehouse sign that reads "General Hooker Entrance" (so inscribed because it stands opposite a statue of General Hooker), which she described as an affront to "women's dignity."

"Female staffers don't use that entrance because the sign is offensive to them," DuBois told WBZ-TV this week.

If that isn't the ultimate in futile, fainting-couch feminism, I'm not sure what is.

DuBois also complained that she had heard teen boys joke with teen girls that they were "general hookers" while using the door.

Of course, DuBois is positioning herself as a crusader against sex-based harassment and patriarchy. But attitudes like hers—which treat women as excessively fragile beings, and which posit that female "dignity" is diminished by even so slight an association with sex work as walking under a door that says "hooker"—just props up old-fashioned and patriarchal ideas about sex and gender.

CORRECTION: A previous version of this post stated that Hooker had famously defeated Confederate General Robert E. Lee in battle, when it's really the other way around. (We should have paid more attention to those Ken Burns documentaries after all.) The opening paragraph has been edited to remove this reference.

The Death of Stalin Director Armando Iannucci on Free Minds Under Soviet Rule

Fri, 16 Mar 2018 09:15:00 -0400

(image) "It takes a certain kind of imagination to look at the death of the most murderous tyrant of the 20th Century and say 'that's comedy gold,'" quipped an interviewer about The Death of Stalin, a star-studded and much-anticipated new film from director Armando Iannucci.

Iannucci, known most recently as director of the HBO series Veep, answered questions about the new film on Thursday after a screening in Washington, D.C. As for the movie's subject matter? "Comedy [is] tragedy plus time," said Iannucci.

The Death of Stalin starts with the infamous communist leader's death and follows the bumbling and bureaucratic antics of his cabinet ministers as they scramble to plan Stalin's funeral, curry the favor of his daughter, and secure a place at the top of the new pecking order. In the hands of actors like Steve Buscemi and Jeffrey Tambor, it's nonstop laugh-out-loud moments interspersed with casually chilling glimpses of Stalin-era Soviet realities.

"There's something about events like this that are so crazy that the only way you can respond to them is through comedy," Iannucci said. In research for the film, he found that people in the Soviet Union "circulated joke books under Stalin—jokes about Stalin, and [Lavrentiy] Beria, and torture, and gulags—and you could be shot if you had one of these on you."

"And yet," he continued, "people felt the need to come up with jokes—as if to say, you know, you can take my livelihood away, you can take me away, but if I can make fun of you" [he points to his head] "you haven't got me up here."

Previews of The Death of Stalin drew mixed reactions in Russia, according to Iannucci. But two days before it was scheduled for official release—after it had already been dubbed into Russian and shown to Russian media—the authorities banned the film from being shown in the country.

Iannucci doesn't really mind. "All they've done is they've just increased its profile."

New Orleans Threatens Man with Jail for Mural Replicating Trump’s Crass ‘Grab Them by the Pussy’ Comments

Thu, 15 Mar 2018 12:50:00 -0400

A property owner in New Orleans is being threatened with fines and even jail time for hosting a mural visually recreating a famous—and famously crass—quote by President Donald Trump about grabbing women by their lady parts. The American Civil Liberties Union (ACLU) in Louisiana has filed suit to protect Neal Morris, the property owner, from any punishment from the City of New Orleans for not getting the city's approval to paint some controversial speech on a mural on a warehouse he owns. According to the ACLU complaint, Morris commissioned a mural on his property last November that partly illustrated parts of the now-well-known quotes by Trump recorded by Access Hollywood: "I moved on her like a bitch. She's now got big phony tits and everything. I just start kissing them. I don't even wait. And when you're a star they let you do it. You can do anything. Grab them by the pussy." Prior to commissioning the mural, Morris visited City Hall in New Orleans to find out what their approval process was for murals. According to the ACLU lawsuit, the city was unable to provide the information he was seeking, so he went forward with the mural. After the mural went up, he started getting press coverage. That's when he got a threatening letter from the City of New Orleans Department of Safety and Permits. The letter informed him that his mural violated city zoning laws. Murals were not permitted in residential historic districts. The letter further threatened him with possible fines and jail time for each day the mural remained up. However, the ACLU says the section of code Morris is accused of violating does not actually exist. The city's zoning laws do not have a section on prohibited signs and does not have a blanket prohibition on murals in historic districts. Morris sent a letter to the city asking for clarification and received no response. The city does have rules for putting up murals, even if they apparently couldn't explain them to Morris when he asked for them. The rules themselves present other legal issues. The city requires murals to go through an extensive advance review process that includes approval of the contents of the mural. Failure to properly navigate the city's approval process can lead to minimum fines of $500 and a maximum of 150 days of jail time. The ACLU argues that "any person who exercises her right to free expression by painting a mural on her property—without first obtaining government permission—faces criminal punishment. This is, by definition, a prior restraint on speech." They further note that the mural regulations are selectively enforced. A mural by Yoko Ono was recently painted on the side of a museum without going through any sort of permitting process. The ACLU also argues this permitting system lacks due process, has undefined standards, and lacks a transparent process by which people get murals approved. Essentially the lawsuit argues that people who want to put up murals are subject to the whims of unaccountable government officials. And they treat murals differently from signs so they can charge more money ($500 vs. $265). Morris and the ACLU are seeking an injunction stopping New Orleans from enforcing the mural permitting process. This is far from the first time that sign permitting processes have been used to try to censor politically oriented speech or art. The City of St. Louis tangled with Jim Roos and tried to use sign ordinances to make him remove a massive mural on the side of a building protesting the abuse of eminent domain. Ultimately the city lost the battle when a federal appeals court ruled in 2011 that their restrictions were "impermissibly content-based."[...]

City Threatens to Sue Online Gadfly for Complaining About Bad Smells

Thu, 15 Mar 2018 12:20:00 -0400

When I was a reporter for a South Carolina newspaper in the late 1980s, I wrote a story that delved into possible explanations for the sulfurous smell that often assaulted me as I drove from Charleston to North Charleston. Was it swamp gas? Sewage? Fumes from a local paper plant? The mayor of North Charleston was not pleased by the article, but no one threatened to sue me. Josh Harms, an Iowa web developer who complained online about the "horrible rotten blood and stale beer" odors emanating from a dog food factory in Sibley, was not so lucky. "If the web site is not taken down within ten days," Daniel DeKoter, a lawyer representing the city, said in a December 12 letter to Harms, "your next notice will be in the form of a lawsuit." DeKoter did not specify on what grounds the city might sue Harms, although he claimed Harms' website, which said "you can't escape the stench no matter where you are in town," "libels the city of Sibley, interferes with the recruitment of businesses and new residents, and negatively affects property values." In a letter he sent Harms a month later, DeKoter explained that "Iowa recognizes a type of lawsuit called 'slander of title,' which involves disparagement of real estate." By complaining about unpleasant smells in Sibley, DeKoter argued, Harms had committed that tort, leading to "a reduction in taxable value of the property that forms the city's tax base." After threatening to sue Harms for libeling land, DeKoter closed by assuring him that "this letter is not a threat of litigation and is not in any way intended to deter your exercise of your legal rights." According to a First Amendment lawsuit that the American Civil Liberties Union of Iowa filed on Harms' behalf last week, DeKoter had already accomplished that goal on the city's behalf. Under the threat of legal action, Harms had edited his website,, in the hope of appeasing the city. For example, "He changed the answer to his question, 'Should you move to the Sibley, Iowa?' from 'Not Yet' to 'Only you can answer that.'" Harms added a sentence saying his intent was to "give you my opinion on both the good and the bad so that you can make an informed decision," and he added a list of good things about Sibley. He also noted that the odors associated with the Iowa Drying and Processing (IDP) plant, which had been the subject of multiple nuisance citations and litigation between the city and IDP, were not as obtrusive as they used to be. Shortly after Harms made those changes, Lana Bradstream, a reporter for The N'West Iowa Review, left a message for him, asking for an interview. Harms' website had attracted a lot of attention in town, and Bradstream wanted to ask Harms about the threats from the city. But according to the lawsuit, Harms decided not to make any public comments about the controversy after meeting with a lawyer from DeKoter's firm, who told Harms that talking to the press would not be in his best interest. Sibley Mayor Jerry Johnson and City Councilman Larry Pedley did talk to Bradstream, denying that they had authorized a cease-and-desist letter. But the official minutes of the December 11 city council meeting say officials "discussed a negative website regarding moving to Sibley," adding, "attorney sending letter to get it down." A local newspaper reported that City Administrator Glenn Anderson and City Clerk Susan Sembach "gave details about a website ( that voices concerns as a deterrent to someone considering moving to Sibley based on the IDP odor issue, that while still not 100% eliminated, has improved." The article said Anderson and Sembach "think they have determined who the perpetrator is and are working with the city attorney to attempt to remove the site." The main complaint about Harms' website was that it did not give city officials sufficient credit for alleviating the odor problem caused by the IDP plant, which according to the Des Moines Regist[...]

Teacher on Leave After Questioning Whether School Would Let Pro-Life Students Walk Out, Too

Thu, 15 Mar 2018 11:59:00 -0400

(image) Rocklin High School in Rocklin, California, placed a teacher on paid administrative leave after she let students discuss the politics of the National School Walkout, which took place around the country yesterday morning.

Julianne Benzel told CBS13 that she suspects she got in trouble for suggesting that schools administrators who condoned the student walkout might be practicing a double standard.

"And so I just kind of used the example which I know it's really controversial, but I know it was the best example I thought of at the time," said Benzel. "[If] a group of students nationwide, or even locally, decided 'I want to walk out of school for 17 minutes' and go in the quad area and protest abortion, would that be allowed by our administration?"

Her students saw her point, and the discussion—which took place last week—was fruitful, according to Benzel. But on Wednesday, the teacher received a call that she had been placed on leave.

Officials did not specify what the problem was, but offered the following statement:

A Rocklin High School teacher has been placed on paid administrative leave due to several complaints from parents and students involving the teacher's communications regarding today's student-led civic engagement activities.

Students' free expression rights should vastly outweigh the state's interest in locking kids up all day, and letting them peacefully protest gun violence seemed like the right call to me. But if it's OK to protest, it should also be OK to have a discussion about the protest. As long as no student was unjustly disciplined for political speech, it seems to me like there's little reason for parents to complain or for Benzel to be in trouble.

Controversial Law Professor's Comments on Affirmative Action Get Her Banned From Teaching First-Year Classes

Wed, 14 Mar 2018 13:42:00 -0400

A professor at the University of Pennsylvania Law School whose outspoken views on race and culture have drawn intense criticism from students and colleagues will no longer be allowed to teach a mandatory class for first-year law students, Penn Law Dean Theodore Ruger announced yesterday. The ban is the latest escalation of a months-long feud between the law school and conservative professor Amy Wax. The tensions began last August, when Wax co-authored an op-ed in the Philadelphia Inquirer which touted the superiority of the "bourgeois cultural hegemony" that Wax and her co-author, Larry Alexander, said reigned in America before the 1960s. In the portion of the piece which drew the most outrage, Wax and Alexander said: All cultures are not equal. Or at least they are not equal in preparing people to be productive in an advanced economy. The culture of the Plains Indians was designed for nomadic hunters, but is not suited to a First World, 21st-century environment. Nor are the single-parent, antisocial habits, prevalent among some working-class whites; the anti-"acting white" rap culture of inner-city blacks; the anti-assimilation ideas gaining ground among some Hispanic immigrants. These cultural orientations are not only incompatible with what an advanced free-market economy and a viable democracy require, they are also destructive of a sense of solidarity and reciprocity among Americans. If the bourgeois cultural script — which the upper-middle class still largely observes but now hesitates to preach — cannot be widely reinstated, things are likely to get worse for us all. The op-ed set off an extended series of responsive op-eds, petitions, and open letters between Wax, her colleagues, and various other Penn-affiliated groups. Five of Wax's colleagues criticized her piece in an op-ed in Penn's student paper, The Daily Pennsylvanian, and 33 signed an open letter "categorically reject[ing]" her claims. Wax fired back in the student paper, and later, in The Wall Street Journal, which prompted yet another response from a critical colleague. Heather Mac Donald jumped in. You get the picture. One of the critics' repeated demands was to remove Wax from teaching civil procedure, a mandatory first-year course in which students are assigned randomly to year-long "sections" taught by different professors. Black students, they said, should not be forced to be taught by a professor who allegedly thought them inferior. The Penn Law chapter of the National Lawyers' Guild, a progressive legal organization, said that Wax's comments were "an explicit and implicit endorsement of white supremacy," and asserted that "her bigoted views inevitably seep into her words and actions in the classroom and in private conversations with students." Throughout all this, Ruger publicly declined to discipline or denounce Wax, citing the law school's commitments to open expression. Wax alleged in her Wall Street Journal op-ed that Ruger had privately asked her to take a leave of absence, however, which Ruger denied. This month, however, a new front in the controversy opened when a group of Penn Law alumni published a new petition drawing attention to remarks Wax made on a September 2017 episode of "The Glenn Show," a video series on the website hosted by Brown University economics professor Glenn Loury. In her hour-long talk with Loury, Wax discussed the controversy around her op-ed and her opposition to race-based affirmative action, which Loury, who is black, also fiercely opposes. In the course of that discussion, Wax discussed her belief in the so-called "mismatch hypothesis" of affirmative education in higher education, which holds that racial preferences harm minority students by placing them in high-stakes elite academic environments for which they have not been adequately prepared. "Here's a very inconvenient fact, Glenn," Wax said, "I don't think I've ever seen [...]

Your Right to Free Speech, Like My Right to Self-Defense, Isn’t Open to Debate

Wed, 14 Mar 2018 00:30:00 -0400

Today, some students, teachers, and other Americans who share their views are walking out of classes across the country to call for limits on the right of free assembly. Wait, strike that. They're walking out of classes to call for further restrictions on protections against unreasonable search and seizure. Nope, that's not it either. Wait, I have it: they're protesting for greater regulation of self-defense rights. Yup, there we go. Of course, they're exercising their free speech rights in the process, and that's as it should be (although at least some of the kids have been conscripted into exercising somebody else's free speech rights by school officials who expect that their charges will adhere to officially endorsed positions). After all, the exercise of individual rights shouldn't be subject to popular opinion or debate. Why shouldn't the exercise of individual rights be subject to popular opinion or debate? Well, that's a philosophical question. From my perspective, as well as that of many libertarians and classical liberals, individuals are sovereign beings free to do as they please so long as they don't cause each other actual harm. To the limited extent that government has any legitimacy, it can act only to prevent people from injuring one another—"the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others," as John Stuart Mill put it. The potential for injuring one another in the exercise of our liberty isn't enough to justify government action since that's inherent in just being alive and the having the ability to contemplate mischief. That's not to say that everybody is bound to share my concept of what makes government legitimate or illegitimate. But these are the principles that guide me and other people who roughly share my point of view. We really don't consider our rights open to discussion. We don't consider anybody's rights open to discussion—not even when they're exercising some rights to call for limiting others. Where this lands us is that even if today's protesters get their way and legislators vote to impose restrictions on gun ownership and self-defense, that doesn't mean that those of us who value those rights will change our conduct. Statutes aren't like the law of gravity—we get to choose whether we're going to abide by them, or else actively oppose them and sabotage their enforcement. The laws will mostly be obeyed by people who agree with them and disobeyed by people who are either specifically committed to self-defense rights or who more broadly believe that their liberty isn't open to challenge. I've argued elsewhere, only slightly jokingly, that tighter gun laws will leave libertarians better-armed than everybody else—because we're not very likely to pay them much attention. The track record on disobeying such laws is very clear. Residents of Connecticut and New York defied requirements that they register their so-called "assault weapons." Gun owners in Colorado ignored mandates that they pass all their person-to-person sales through the background check system. Even the French and Germans flip the bird to laws that gun-haters can only dream of imposing in the United States, owning millions of illegal firearms that supporters of restrictions wish they didn't have. Exercising your liberty in total contradiction to restrictive laws is a good thing, by the way. Nothing limits the power of the state like the outer boundaries of people's willingness to do what they're told. Even the military recognizes this, instructing officers not to give orders that won't be obeyed. People's unwillingness to submit is what made Prohibition fail, and it's what hobbled the similar ban on marijuana. Even taxes are dependent on people's willingness to pay, since there's always the option to work and do business off the books.[...]

Whittington on Offensive Speech in the Classroom

Sun, 11 Mar 2018 22:52:00 -0400

In recent weeks there have been several controversies on university campuses over professors' use of offensive langauge in class. Princeton University professor Keith Whittington, author of the forthcoming book, Speak Freely: Why Universities Must Defend Free Speech, addresses these controversies in a post at "Academe," the blog of the American Association of University Professors (AAUP). Here's a taste:

If professors are to lead students on intensive investigations of the taboo, the obscene, and the offensive, whether in the context of an anthropology class, a law class, a journalism class, or a literature class, they will have to expose students to the obscene and the offensive. If students are to understand and grapple with the things that push at cultural boundaries, they will need to be able to scrutinize those things and those boundaries. While euphemisms and indirection are sometimes appropriate and adequate, there are times when the scholarly enterprise will require confronting that which is offensive directly. There are circumstances in which experiencing the offense might well be a necessary condition for making progress in understanding and analyzing the offensive. It is certainly easier to look closely only at those things that might have been offensive to our grandparents or in a distant culture, but if we must avoid those things that are actually offensive to us then the scope of our studies will necessarily have to shrink and the quality of our education will necessarily suffer.

Judge Tells Trump to Pretend to Listen to Twitter Haters

Fri, 09 Mar 2018 12:00:00 -0500

In order to resolve an unusual First Amendment lawsuit over whether President Donald Trump can block people on Twitter, a federal judge has a suggestion: What if he just pretended to listen to them? The Knight First Amendment Institute and seven individuals are suing the Trump administration because of Trump's tendency to block people from following his "official" Twitter account if they tweet mean things at him. A lawsuit sounds absurd, but there are some interesting First Amendment implications surrounding it. Trump and his administration are using a private social media account on a private platform to communicate public messages about important policy decisions. People who are blocked from following the president cannot see these messages. It's not just about sending sarcastic comments to the president. Blocking also makes it difficult to see what the president of the United States is saying. U.S. District Court Judge Naomi Reice Buchwald in Manhattan seems to be trying to navigate this complicated problem without setting some sort of precedent over censorship, speech, free association, and private social media platforms. She pitched a suggestion to both sides in the lawsuit yesterday: What if Trump merely "muted" these people instead of blocking them? To explain to those of you who have managed to avoid getting sucked into Twitter's vicious gravity: Muting a person on Twitter is essentially a secret block. If President Trump were to mute you, you'd still be able to follow him and see his tweets. But he would never see any tweets or messages you directed his way. In old-fashioned postal delivery terms: Blocking is when the post office returns a letter with a "delivery refused" notice; muting is when they just quietly toss it in the trash without saying a word to you. So if the president were to merely pretend that he was listening even though he wasn't, this could potentially satisfy both sides. Notes The New York Times: Katie Fallow, a lawyer for the Knight Institute, said that she was receptive to the possible compromise. She noted that muting would be "much less restrictive" of her clients' rights. Nicholas Pappas, a comedy writer and one of the seven plaintiffs, told a gathering of reporters after the hearing that it would be "a great solution," if he were muted, rather than blocked, by the @realDonaldTrump account. (Mr. Pappas was blocked by that account after tweeting in June: "Trump is right. The government should protect the people. That's why the courts are protecting us from him.") There's something so very telling about the relationship between citizens and government authority that's implied in this proposed compromise. These people can be satisfied as long as they can send their messages to Trump, even though he'll never see them or read them or even remotely care about them. (OK, so they also want to be able to see and quote the president's tweets, which in theory they can't do if they're blocked, though there are well-known workarounds. And practically every tweet from the president gets media coverage these days.) No doubt many folks who have attempted to give feedback to government can relate. President Barack Obama's administration made a big deal about its "We the People" petition site, where citizens could attempt to get responses from the White House over their pet issues. But as the site grew popular, the White House increased the signature threshold to even get a response to try to hold back the trolls. As I noted back in 2013, it appeared that all the administration used the petition site for was to provide "a justification for what the administration is doing, wants to do, or has already done rather than an indication of the administration actually changing a position based on public dissatisfaction." In the end, all the judge is suggesting here is [...]

Some Progressives Targeting the First Amendment, Too

Wed, 07 Mar 2018 12:00:00 -0500

Many progressives have long believed America would be a much better place without the Second Amendment. These days, some of them seem to think we'd also be better off without the First. That might sound like an exaggeration. But it's hard to square the First Amendment with a recent proposal in The New Republic: "Ban Facebook Before Elections." And yes, the headline accurately represents the text: "If fake news truly poses a crisis for democracy," writes Jeet Heer, "then it calls for a radical response. Instead of merely requiring greater transparency of social media and empowering the courts to ban users and websites... perhaps governments should outright ban Facebook and other platforms ahead of elections. "A model for this already exists. Many countries have election silence laws, which limit or prohibit political campaigning for varying periods of time ranging from election day alone to as early as three days before the election. What if these laws were applied to social media? What if you weren't allowed to post anything political on Facebook in the two weeks before an election?" What, indeed? And what if this principle were extended for the sake of consistency? Perhaps The New Republic should be forced into silence before an election as well—along with the rest of the media. After all, letting some American citizens, but not others, speak their mind before an election is not exactly equal protection of the laws. But then, many in the media really do think First Amendment law should be unequal. That was precisely the case before the Supreme Court's decision in Citizens United, when campaign-finance law carved out an exception for media corporations so they could speak freely about politics when others could not. Huge numbers of progressives, and many media outlets, feel the decision allowing unions and non-media corporations to speak freely about politics was very, very wrong. "The corrupting influence of money is not limited to bribery," intoned The New York Times back in 2012. When "outside spending is unlimited, and political speech depends heavily on access to costly technology and ads, the wealthy can distort this fundamental element of democracy by drowning out those who lack financial resources." Message: Corporations should stay out of politics, period. Except, apparently, when it comes to guns. In the wake of the atrocity at Marjory Stoneman Douglas High in Parkland, Florida, liberals have been pressuring internet content providers such as Amazon, Roku, and Apple TV to stop distributing NRA TV. "The hashtag 'stop NRA TV' was trending on Twitter" recently, reports Ad Age. Now, according to Deadline, celebrities are getting in on the act. "Stop streaming the violent rhetoric of NRAtv," tweeted actress Alyssa Milano. Stipulated: Content providers have every right to carry, or not carry, whatever they please. Nevertheless, urging big internet companies to drop NRA TV is not a stance that sits gracefully alongside the ferocious, and only a few months removed, defense of net neutrality. Net neutrality required internet service providers to treat all digital content equally. As Free Press' "Save the Internet" campaign put it, "Net neutrality is the internet's guiding principle: It preserves our right to communicate freely online. Net Neutrality means an internet that enables and protects free speech... Without the net neutrality rules, companies like AT&T, Comcast and Verizon will be able to block political opinions they disagree with." "#SAVENETNEUTRALTY," tweeted Alyssa Milano. Critics said repealing net neutrality, as the Federal Communications Commission did last year, would let "the future of the internet... be decided by a few powerful gatekeepers whose monopoly control over Internet access allows them to decide what content reaches viewe[...]

$20 Fee for Porn Access Proposed in Rhode Island

Mon, 05 Mar 2018 14:08:00 -0500

Rhode Island has joined a host of other states in considering an irrational measure to regulate online porn by charging consumers a $20 access fee. But the Rhode Island bill actually beats others like it in terrible and unconstitutional requirements, such as requiring the blockage of not just nude imagery or porn sites but any content that "affront(s) current standards of decency"... whatever that means. The bill, sponsored by state Sens. Frank Ciccone (D-Providence) and Hannah Gallo (D-Cranston), is packed with ill-defined terms and extreme mandates. To start, it would require all internet-enabled devices sold in the state to come with "a digital blocking capability that renders inaccessible sexual content and/or patently offensive material." But as many previous schemes to block sexual content have shown, it's nearly impossible for automated censors to distinguish pornographic sexual content from sexual wellness websites, reproductive health organizations, ancient art, educational information, and all sorts of other non-obscene or pornographic stuff. And the Rhode Island bill wouldn't just block overtly sexual content but anything deemed "patently offensive," too–even though there's no clear definition of this term. The state currently defines "patently offensive" as material "so offensive on its face as to affront current standards of decency." Makers of computers, smartphones, and other internet-enabled products would be left to determine for themselves what exactly "current standards of decency" means and how to put that in algorithmic terms. The proposal doesn't stop there in terms of confusing and unconstitutional dictates, though. It would also require devices to automatically block "any hub that facilitates prostitution"—again, not a legal or well-defined category of content. And device makers would also have to "ensure that all child pornography and revenge pornography is inaccessible" on their products—something that sounds great but is completely technically infeasible. If it were that easy to stop the spread of child porn, companies would be doing it already. What makes all of this especially ridiculous is that under Ciccone and Gallo's proposal, anyone over 18-years-old could have the filter removed by making a request in writing and paying a $20 fee. The money would go to the state's general treasury "to help fund the operations of the council on human trafficking." (But... if people are paying the state $20 to access prostitution sites, doesn't that make the state a trafficker?) The fact that lawmakers think blocked "patently offensive" material should be able to be accessed for a low price just shows how toothless their proclamations that the legislation is necessary to protect public health or morals. But what lawmakers would get out of the measure is a nice new source of steady income and a registry of people who want the filter removed. Plus, the fees imposed on individual consumers would be pocket change compared to the money the state could make shaking down tech companies. Under Ciccone and Gallo's proposal, failure to implement the technically impossible filtering requirements could mean being sued by the state or any Rhode Island resident, being held liable for civil damages, and being charged up to $500 "for each piece of content that was reported but not subsequently blocked."[...]

House Passes 'Anti Sex-Trafficking' Bill Opposed by Both DOJ and Trafficking Survivors

Wed, 28 Feb 2018 13:30:00 -0500

With bipartisan enthusiasm, the U.S. House of Representatives has just passed a bill that would endanger sex workers, make life even worse for human trafficking survivors, put both free speech and social media in serious jeopardy, and drastically expand federal prosecutorial power. The bill, H.R. 1865, is euphemistically named the "Allow States and Victims to Fight Online Sex Trafficking Act" (FOSTA), despite the fact that there's nothing stopping state authorities from punishing sex traffickers and their allies at present and despite the fact that trafficking victims can already sue abusers in civil court. FOSTA's actual targets are adults consensually engaging in prostitution as well as web platforms that allow user-generated content. One of many similarly misleading bills that have gained traction in recent years, FOSTA amends Section 230 of the federal Communications Decency Act to hold online publishers, apps, and services legally liable for the actions of people who post there or connect through them. What this means in practice is that social media sites such as Snapchat and Facebook, classified ad sites such as Craigslist and Backpage, chat apps, search engines, and many other communication tools could be both criminally charged and sued in civil court—by individuals or by states—anytime anyone uses them to meet someone with whom they would eventually engage in commercial sex. As Rep. Sheila Jackson Lee (D-Texas) explained on the House floor yesterday, H.R. 1865 creates the new offense of intentional promotion or facilitation of prostitution while using or operating a facility or means of interstate or foreign commerce, such as the internet. A general violation of this offense will be punishable by a sentence of upwards of 10 years. The bill, sponsored by Rep. Ann Wagner (R-Missouri), has had bipartisan support in the House from the get-go, despite objections from a wide range of stakeholders, from victims' advocacy organizations to the U.S. Department of Justice, which has already declared the bill "unconstitutional." On Tuesday, it passed the House with 388 votes in its favor. Ivanka Trump and a host of liberal Hollywood celebs, government-funded nonprofits, and former #Pizzagate conspiracy theorists cheered. Please call your congressperson today to vote YES on HR1865 #FOSTA #SESTA: #ListenToSurvivors #IamJaneDoe @RepJerryNadler @RepZoeLofgren @GOPLeader — Amy Schumer (@amyschumer) February 27, 2018 But the response from sex workers, sex-trafficking survivors, free speech advocates, human rights activists, tech companies, due process proponents, and many others was much less positive. The bill "marks an unprecedented push towards Internet censorship, and does nothing to fight sex traffickers," the Electronic Frontier Foundation (EFF) declared yesterday. "Facing huge new liabilities, the law will undoubtedly lead to platforms policing more user speech," going out of business, or failing to launch in the first place. "The tragedy is that FOSTA isn't needed to prosecute or sue sex traffickers," the EFF continued. "As we've said before, Section 230 simply isn't broken. Right now, there is nothing preventing federal prosecution of an Internet company that knowingly aids in sex trafficking. That includes anyone hosting advertisements for sex trafficking, which is explicitly a federal crime" already thanks to the 2015 "SAVE Act." Voting against FOSTA were just 14 Republicans and 11 Democrats. Among them were staunch criminal justice reform advocate Rep. Bobby Scott (D-Virginia), pro-Trump Republican Rep. Matt Gaetz (Florida), longtime women's rights and anti-violence advocate Rep. Barbara Lee (D-California), and most of the House Liberty Caucus, including Reps. Ju[...]

Your Tattoos Are Problematic

Sat, 24 Feb 2018 06:00:00 -0500

Oscar is a white guy living in Austin, Texas, with a penchant for Japanese-style tattoos. A huge black and white dragon arcs over his left shoulder. The dragon's scales subtly change shape as he moves, and the beast's eyes are beady and glaring, nestled below spiked eyebrows and above bared fangs. The tattoo is lightly shaded, darker around the perimeter of the dragon, with a background of stylized leaves and waves that add depth and complexity to the piece. What Oscar knows about the origins of Japanese tattooing, he likes: "It's associated with outlaws and outcasts—there were all these merchants and gangsters in Japan that were shunned from the societal hierarchy. Some people think the tradition began as a way for those merchants to show off their wealth privately, and for gangsters to mark themselves as part of a counterculture." He delayed getting this particular tattoo for a long time, thinking that "it had to have a lot of meaning." But the more time he spent around tattoo artists, the more he "realized it's more about the art—you don't have to 100 percent understand the context to appreciate something." Oscar asked that his real name not be used for this story, but says he's OK with the "risk" associated with his choice of tattoo. "People might be offended by it, people might be scared by it, and I like that—I like the fact that it can be polarizing or controversial. I ultimately got it because it was something I liked and I didn't feel like I had to justify it beyond that." According to some figures on the activist left, hoop earrings should only be worn by black and Latina women. Don't even think about donning a feathered headdress at a music festival—those don't belong to you. And if your child wants to dress up as the Disney character Moana for Halloween, beware, unless she's of Polynesian descent. Cultural appropriation—co-opting specific elements of a culture that is not your own—is the term used to condemn these offenses. It has become a major battleground for the social justice movement. But what happens when the ink embedded in your skin is unacceptable to polite society? As a form of public art and personal adornment, tattooing has a long history of cultural borrowing. Some popular tattoos have historical lineages so tangled it's hard to tell who is appropriating whose heritage. For tattoo artists and clients, it may not be easy to separate art from politics, the deeply personal from the public and political. Every tattoo carries the risk of regret. But in the current ultra-sensitized atmosphere, that regret can set in quickly. Hula Girls Paul Smith at Bijou Studio in Austin, Texas, has been tattooing for 15 years, specializing in traditional American and Japanese-style tattoos. He's covered in ink, all the way down to his hands, with a large black scorpion reaching close to his fingers. Sitting outside his clean and well-decorated East Austin shop, tucked between grungy dive bars and new-construction apartment buildings, Smith explains that copying and hybridization are deeply embedded in tattoo history. "Whatever tattoos someone got halfway around the world, that was copied in a sort of cross-pollination," he says. Sailors used to travel from port to port collecting evidence of their travels on their skin. About 90 percent of sailors in the late 19th century sported tattoos, History Today estimates. Since seamen were among the rare commuters to distant lands, they were the ones who observed—and borrowed from—other cultures. Their tattoos were often nautical in theme: anchors, fully rigged ships, or swallows for every 5,000 miles traveled. Some sailors were adorned with gaudy, colorful Hula girls to remember trips to Hawaii or pin-up girls[...]

School Chief Threatens to Punish Student Protesters Who Skip Classes by...Banning Them from Attending Classes

Thu, 22 Feb 2018 13:20:00 -0500

(image) Superintendent Curtis Rhodes issued a threat Tuesday that any student in his Texas school district who attempted to demonstrate or engage in any sort of protest during school hours would be punished:

Please be advised that the Needville ISD will not allow a student demonstration during school hours for any type of protest or awareness!! [sic] Should students choose to do so, they will be suspended from school for 3 days and face all the consequences that come along with an out of school suspension. Life is all about choices and every choice has a consequence whether it be positive or negative. We will discipline no matter if it is one, fifty, or five hundred students involved. All will be suspended and parent notes will not alleviate the discipline.

There's a particular absurdity that only comes from a government bureaucracy that the punishment for not attending classes you have been ordered to attend is to be forbidden from attending the classes you've been ordered to attend.

Like many school officials, Rhodes wants blind obedience. He ironically declares in his message that schools are a place to "grow educationally, emotionally, and morally." Now shut up, sit down, and do what we tell you to do! He ends his letter with "we are here for an education and not a political protest" as though these were contradictory aims.

The Washington Post picked up the story and notes the Tinker Supreme Court decision that acknowledges that students have First Amendment rights to express their political opinion. Rhodes can prohibit and punish students for disruptive demonstrations that interfere with teaching of classes, but a blanket order that there cannot be any sort of demonstration during school hours at all seems like an obvious attempt to prohibit the expression of political opinions.

Rhodes has previously been in trouble before for attempting to enforce a dress code that banned a Native American student from having long hair. He was overruled by the courts as having intruded on the child's freedom of religious expression. During the case, Rhodes made it abundantly clear that he saw the role of the school system is to instill obedience into children. Via the Houston Press in 2008:

"I've never had a hair past my ears. I'm pretty much a rule follower. I'm not out to, just because there's a rule I got to try to break it. I wasn't raised that way, I wasn't genetically put together that way. If they say do this, I'm going to do it."

If high school students don't perhaps have the most thoroughly thought-out responses to mass shootings and other controversial issues, some school administrators seem to be suffering from the same problem.