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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: Fri, 23 Feb 2018 00:00:00 -0500

Last Build Date: Fri, 23 Feb 2018 20:25:45 -0500


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.

Wired Thinks Free Speech Has Been Tried and Failed

Tue, 13 Feb 2018 14:45:00 -0500

John Perry Barlow famously declared that cyberspace, as we used to call it, was, should be, and must remain a realm of absolute intellectual freedom. It is a bitter irony that he died the same month that Wired, which for years celebrated the liberatory power of digital culture, features a terrible and terrifying cover feature deriding "The Golden Age of Free Speech." The package's polemical point? That free speech has failed us and deserves no particular further respect in this digital, social-networked world. From the dark heart of their framing essay, Zeynep Tufekci's "It's the (Democracy-Poisoning) Golden Age of Free Speech": The most noble old ideas about free speech simply don't compute in the age of social media. John Stuart Mill's notion that a "marketplace of ideas" will elevate the truth is flatly belied by the virality of fake news. And the famous American saying that "the best cure for bad speech is more speech"—a paraphrase of Supreme Court justice Louis Brandeis—loses all its meaning when speech is at once mass but also nonpublic. How do you respond to what you cannot see? How can you cure the effects of "bad" speech with more speech when you have no means to target the same audience that received the original message? Mill's defenses of free expression are more complicated and subtle than the notion that a marketplace of ideas "will elevate the truth." Mill argues as well in On Liberty that grappling with error is all that allows a human mind to remain intellectually active and acute, and that this is desirable in itself. "Truth gains more even by the errors of one who, with due study and preparation, thinks for himself, than by the true opinions of those who only hold them because they do not suffer themselves to think," Mill wrote. The search for truth has a value larger than merely getting people to believe what's true. The theory and philosophy of free expression should not be myopically focused on "the truth." Plenty of expression—some might say the most important expression—are creative fictions that do not express facts about reality, empirical or moral. We must also defend tenaciously the ability to think and express even things we do not truly think and feel and believe, for the sake of exploration and play (even though such expression can undoubtedly aggravate and anger people). But even if you think ending up at the truth is all that matters—if you are willing to admit you believe truth spoken through broken teeth from the hobnailed boot of authority rings as sweetly as truth spoken through sincere belief earned through free investigation—Mill argued that your ability to grasp the truth of what you "believe" is weak indeed if never honed against the best arguments for opposite ideas. Humanity, he wrote, "ought to have a rational assurance that all objections have been satisfactorily answered, and how are they to be answered if that which requires to be answered is not spoken?" (Jonathan Rauch explained along Mill's lines how gay acceptance and rights were in fact furthered by the fact that people are legally allowed to spew idiotic prejudices and false beliefs about homosexuality, in his classic 2013 Atlantic article "The Case for Hate Speech.") Tufekci doubts the value of free expression when one cannot guarantee that those striving to counter falsehoods can reach "the same audience that received the original message," a difficult or impossible task when that first communication was "nonpublic." This is supposed to be a freshly sinister aspect of the digital age. Yet never in the history of the debate over free expression was any such guarantee possible. Nor was it ever thought necessary by people who supported (or opposed!) free speech. Tufekci writes as if she is unfamiliar with, say, targeted political direct mail, which has long allowed partisans to gin up beliefs that the "other side" might not even have known existed, much less be able to counter tit-for-tat to the exact same audience. It's pure concern-trolling, holding up a phony ideal of free sp[...]

Whatever Happened to Michael Mann's Defamation Suit (2018 edition)

Sun, 11 Feb 2018 12:08:00 -0500

[Herewith is another post wondering what has happened with Mann v. NR, et al., repeating (with a few updates) what I posted last fall.] In 2012, climate scientist Michael Mann filed a defamation suit against National Review, Mark Steyn, the Competitive Enterprise Institute and Rand Simberg over a hyperbolic blog post written by Simberg for the CEI and quoted approvingly by Steyn on National Review Online. In December 2016, after sitting on the case for years, the D.C. Court of Appeals (not to be confused with the U.S. Court of Appeals for the D.C. Circuit) held that Mann's suit against the CEI, National Review and Simberg may proceed to trial (Steyn having gone his own way in the litigation). National Review and CEI promptly filed petitions for rehearing or rehearing en banc in January. These petitions were supported by several amicus briefs, and the court sought a response from Mann in February 2017. (These and other filings in the case may be found here.) Mann's response was filed over 10 months ago, and there is still no word from the court. What's going on? I have no inside knowledge, but I suspect the delay may indicate at least some of the judges are having difficulty with the potential breadth of the initial ruling. As I wrote in March 2017: Mann was understandably upset by the offending blog post. Yet treating that post as actionable defamation poses a threat to robust political and scientific discourse, for reasons I've explained in prior posts. As Popehat's Ken White noted in an extensive post about the decision, the D.C. Court of Appeals' decision was "disturbingly deferential to Mann's defenders in a way that . . . undermines dissent." It's the sort of approach to defamation one expects from President Trump, not from a respected court in the nation's capital. I do not agree with the CEI, et al. on the threat posed by climate change, but I agree even less with the idea of penalizing robust political commentary such as was at issue here. Climate policy activists have generally supported Mann's litigation, but they may come to regret this view. If the comments at issue in this case are potentially actionable defamation, then so too are all manner of hyperbolic charges hurled against climate skeptics by environmentalist activists, including accusations that skeptics are corporate shills or paid for their positions. Indeed, Mann himself has made comments over the years that might themselves be actionable. Allowing all such claims to proceed to trial might be a boon for lawyers, but it would also chill policy debate. For this reason, I hope the D.C. Court of Appeals reconsiders its opinion. . . . Why do I think the D.C. Court of Appeals decision is wrong? I addressed this in my December 2016 post on the case While a direct accusation of scientific fraud may be actionable — particularly when made against a non-public figure — challenges to scientific conclusions and interpretations of scientific studies are clearly protected by the First Amendment. So are erroneous interpretations of scientific conclusions and — particularly relevant here — criticisms of the conclusions of investigatory bodies. In refusing to dismiss claims against Steyn and Simberg, the D.C. Court of Appeals placed tremendous weight on the fact that Penn State and other institutions investigated Mann and did not find evidence of academic misconduct. Yet it is the alleged inadequacy of Penn State's investigation that was the focus of the very posts at issue. Indeed, this was the whole point of the Sandusky comparison. Both Simberg and Steyn believe that Penn State failed to conduct a thorough investigation of the allegations against Mann and that other investigations either did not focus on Mann's conduct or relied too heavily on Penn State. They were explicit on this point, and they cited the reasons for their conclusions. Further, a reader of their posts would be well aware that they were expressing their own opinions and not claiming that some independent investigatory body or trib[...]

New Jersey Cop Fired for Having Once Appeared in Fetish Films

Fri, 09 Feb 2018 16:52:00 -0500

(image) Kristen Hyman has been fired from her job as a New Jersey police officer for having appeared in bondage and erotica films years ago.

The 31-year-old was first suspended from the Hudson County Sheriff's Office (HCSO) last spring, just a few days before her police academy graduation, when her past as a dominatrix and fetish-film actress came to light.

Hyman has said she did not appear nude or engage in sexual intercourse in these films. Her appearances involved things like smoking cigarettes and kicking (consenting) men in the balls.

Although there was nothing illegal about her past gigs, Hyman's superiors said she should have revealed them on her police-academy application. For a question about past work, Hyman said she had been an actress and model. Apparently this was not specific enough.

Hyman was suspended for six days before an administrative judge rescinded her suspension. She was sworn in as a Hudson County sheriff's deputy on June 8, 2017. But immediately thereafter, Hyman was placed on paid administrative leave pending further internal investigation of her work history.

On Wednesday, an administrative hearing officer made the decision to fire Hyman. Hudson County Sheriff Frank Schillari told The Jersey Journal he agreed with the decision.

But while Hyman's history of legal work is a firable offense to the sheriff, deputies engaging in illegal conduct like drunk driving and vehicular assault has not been deemed sufficient grounds for firing by Schillari in the past.

In 2005, for instance, sheriff's officer Aleisha Cruz was arrested for driving under the influence of alcohol after repeatedly ramming her SUV into a date's car and then hitting the man directly once he exited the vehicle (he was not seriously injured). Cruz plead guilty and was offered placement in a pre-trial diversion program rather than jail time.

After her arrest, Cruz was placed on modified duty at work and forbidden from carrying a gun. But she continued to be employed as a Hudson County sheriff's deputy for at least three and a half more years—until a second drunk-driving arrest in 2009.

Hyman has claimed that the real reason for her firing was not her previous dominatrix work but the fact that she rebuffed the advances of HCSO attorney Robert Pompliano, 70, while she was in the police academy. "Mr. Pompliano made a sexual advance against [Hyman], touched her, kissed her, and she rebuffed him," wrote her lawyer, Doug Anton, in a letter to the administrative hearing officer overseeing the case. "For that he has jumped all over this opportunity to get her fired." Hyman has alleged that the push for Sheriff Schillari to fire her came from Pompliano.

John Perry Barlow, The Thomas Jefferson of Cyberspace, R.I.P.

Wed, 07 Feb 2018 19:15:00 -0500

John Perry Barlow, a co-founder of the Electronic Frontier Foundation (EFF), has died. EFF compactly but effectively eulogized him here. His most prominent contribution to American political culture is his barnburning 1996 manifesto, "A Declaration of the Independence of Cyberspace," which was a central document helping establish a generic libertarian sensibility in the rising digital culture of the 1990s. (He was not alone in doing this, of course; Wired magazine, a cultural thought leader for that world, was co-founded by libertarian and friend of Reason Louis Rossetto.) Some of his ringing words from that manifesto that marked him as a Thomas Jefferson for this century: Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather. We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us..... Governments derive their just powers from the consent of the governed. You have neither solicited nor received ours. We did not invite you. You do not know us, nor do you know our world. Cyberspace does not lie within your borders. Do not think that you can build it, as though it were a public construction project. You cannot. It is an act of nature and it grows itself through our collective actions. You have not engaged in our great and gathering conversation, nor did you create the wealth of our marketplaces. You do not know our culture, our ethics, or the unwritten codes that already provide our society more order than could be obtained by any of your impositions. You claim there are problems among us that you need to solve. You use this claim as an excuse to invade our precincts. Many of these problems don't exist. Where there are real conflicts, where there are wrongs, we will identify them and address them by our means. Barlow's overall politics shifted to a more standard Obama-supporting sense that big government was a necessary and important counterpoint to corporate power (and the kind of general attitude that, well, government is good when it does good things and bad when it does bad things), as he began discussing with me in his 2004 feature interview for Reason. Still, he remained on the side of the libertarian angels when it came to the debate over net neutrality, even as EFF was not. Barlow knew he was trying to create a cultural myth with his declaration of independence, later saying "I knew it's also true that a good way to invent the future is to predict it. So I predicted Utopia, hoping to give Liberty a running start before the laws of Moore and Metcalfe delivered up what Ed Snowden now correctly calls 'turn-key totalitarianism.'" While the question of exactly how libertarian the industries and industrialists of modern computer tech are, and how on balance its liberatory powers will overcome the surveillance powers of "turn-key totalitarianism" is still up in the air, Barlow's work in staking out the reasons to see what we used to call "cyberspace" and is now just where we all live all the time as properly a realm of total human liberation was a vital building block of the world we live in. (That thought leaders in the "cyber" world are rapidly running away from the idea that, for example, free expression in the world of the internet is a primary good is unfortunate and shows that no ideological battles for freedom are ever fully won.) Personally, Barlow was a delightfully loving grouch and after we met for that Reason interview, it was always a joy running into him occasionally in the next decade holding court and pontificating at Burning Man, where he was a beloved elder statesman of sorts. Th[...]

Wooster Activists' Demands: Expel a Racist Student, More Diversity Training, Less Money for Ultimate Frisbee

Tue, 06 Feb 2018 12:15:00 -0500

Student activists at the College of Wooster have issued a list of demands, including more funding for the liberal arts college's Center for Diversity and Inclusion, the immediate expulsion of a student currently being investigated for making racist statements online, the hiring of new administrators of color, and a fix to a funding imbalance between student groups that promote diversity and athletic clubs. "Men's Ultimate Frisbee received $15,747.78" this school year, the students wrote. "Brothers of Diversity received $984." Activists described the imbalance as "problematic," arguing that it reflects the college's failure to advance the cause of racial harmony. "The discrepancy between funding of groups is problematic when we review community-wide initiatives such as, the promotion of diversity and inclusion," they wrote. "The College's implicit financial favoring of non-essential diversity groups exemplifies the institutions failure to support minority groups." Activists also want all new students and faculty members—even tenured ones—to undergo mandatory cultural sensitivity training. The curriculum would be determined by the Center for Diversity and Inclusion, with input from students. They also asked the college to provide a means for students to report professors who make "bigoted statements," to hire administrators of color to serve as advocates for students of color who have survived sexual assault, and to provide designated safe spaces for each minority group on campus. The list of demands also calls for the "immediate expulsion" of Drake Schwenke. Schwenke, a member of the group "Wooster Right-Wingers," and has been accused of posting anti-Semitic images on social media. The campus paper, The Wooster Voice, reports that the college is investigating Schwenke, but the activists are apparently impatient to see him expelled more swiftly. It's a matter of safety, they say: Since the meeting, many students have called on the College to act more swiftly in disciplining Schwenke. Several students tweeted at President Bolton's official Twitter account demanding Schwenke's expulsion. "Before I came to school my parents were promised by admin that I would be safe here," said Desi LaPoole '20 in a tweet mentioning Bolton's account. "Now they're asking me if I want to transfer to a safer school after I told them the racist Drake Schwenke is still on campus." In a tweet referencing a similar incident where a student said she had was expelled after posting racist videos, Khorkie Tyus '18, vice president of the Black Students Association, said, "So @WoosterEdu the ball is in your court now, University of Alabama acted within a 24hr time span and we're almost at a week! This simply shows that other campuses have a higher regard for their students safety and concerns, but your lack of action can be read as complacency." The activists also accused several staff members of perpetuating "anti-blackness, stereotyping minority groups," and "hate speech." These staff members were named; their crimes were not specified. According to Campus Reform, the student newspaper published a version of the demands that redacted the names of these faculty members, since the allegations are unproven. Wooster President Sarah Bolton is apparently eager to pacify the activists. She has announced plans to make "more comprehensive educational efforts in the areas of cultural competency and sexual misconduct; more effective and easily accessible reporting and response mechanisms for all types of bias-related harm; and new resources for student groups engaged in work related to diversity, equity, and inclusion." Hiring an army of additional diversity bureaucrats while spending more time, money, and effort policing microaggressions and erecting safe spaces may or may not improve race relations on campus. But that path would pose serious concerns for free expression on campus. And I can't think of anything more likel[...]

No, President Trump, It’s Not ‘Treasonous’ to Be Chill During the State of Union

Mon, 05 Feb 2018 16:40:00 -0500

(image) During a speech at a factory in Ohio on Monday, President Trump called Democratic Congressmen "un-American" for failing to cheer enthusiastically during the State of the Union address last week. He even suggested that their behavior was "treasonous."

"You're up there, you've got half the room going totally crazy, wild, they love everything, they want to do something great for our country," said Trump, referring to his Republican supporters in Congress. "And you have the other side, even on positive news, really positive news… they were like death, and un-American."

Someone in the factory audience apparently called out "treasonous," which prompted Trump to respond, "Yeah, I guess, why not." Again, that was Trump casually affirming the idea that his political opponents had committed treason in failing to applaud him.

But treason has a specific definition: it involves levying war against the United States, or giving aid and comfort to its enemies. "Aid and comfort" means actually helping a declared enemy of the United States—by sending them money, leaking sensitive information to them, etc. Merely signaling dissent from, or disapproval of, the current commander-in-chief is not treason; if it was, members of the out-of-power political party would have no real means of challenging the president's agenda. Thankfully, the First Amendment guarantees everybody the right to criticize the government and its chief executive.

Trump's statement about treason echoes his previous comments in support of jailing flag burners and broadening the scope of libel laws. Rhetorically speaking, the president is no friend to free speech—he would clearly like to criminalize all kinds of anti-Trump political expression. Fortunately, Trump has not attempted to actualize his stated preference for censorship, and if he did, the Supreme Court would stop him.

In any case, Trump really shouldn't be too eager to broaden the public's definition of the word treason. Many on the left have accused Trump himself of treason because his campaign allegedly colluded with elements of the Russian government to interfere in the 2016 presidential election. Under the strict definition of treason, this doesn't count, since the U.S. remains formally at peace with Russia. The strict definition is vastly superior to the "yeah, I guess, why not" definition nonchalantly endorsed by Trump in his remarks today, even for the sake of Trump's own political interests.

Want to Make an Untraceable Handgun at Home? Cody Wilson Can Help.

Mon, 05 Feb 2018 14:15:00 -0500

"Gun control is not dead, gun control is undead," explains Cody Wilson, the director of Defense Distributed. "We just keep killing it but it keeps coming back."

Wilson, a crypto-anarchist and serial "troublemaker," helped launch the age of the digital gun when he published files showing how to make the Liberator, a 3D-printed pistol, in 2013. It set off a panic in the media and in anti-gun political circles, and the State Department demanded Defense Distributed remove the files from their website.

But five years after the Liberator debut, the technological limitations of homemade firearms have started disappearing. The materials are cheaper and better, the machines are more precise, and the software is more advanced. Groups of hobbyist gun printers started gathering in IRC chats and internet forums, and are working together to make their own gun designs. It's a new reality that hasn't entirely filtered into public debates over gun control.

"I like the Liberator, it's fine," union carpenter and hobbyist gun printer Darren Booth says. "[But] it's only good for one shot. I thought, 'what can I do to make it a little better?'"

Booth developed the Shuty AP-9, a semi-automatic, mostly 3D printed, 9mm handgun based on the AR-15 platform.

Booth is a regular of the FOSSCAD group, and the community worked together to create the digital files for the Shuty. "It's an open community. It's an open chat," says Booth. "Anyone can go on there and just ask questions." Files for the Shuty, as well as other firearm designs, can be easily downloaded from the FOSSCAD repository.

"I've watched some of these groups begin," says Wilson. "And it's great. In our earliest days I imagined that that would be what victory looked like. There would have to be communities taking up these projects on their own."

In late 2017, Defense Distributed released files that allow the Ghost Gunner to mill out unfinished metal handgun frames. Wilson says the new focus on handguns is in part a legal strategy based on the 2008 supreme court case, District of Columbia v. Heller, that affirmed the right to own a handgun for self defense.

"The handgun is at the center of what is protected in the Heller decision," explains Wison. "So, whereas, AR-15's may not ever be backed up by the Supreme Court, there's no way of getting around, right now, the protections that the Supreme Court gave to the handgun. And so this is the core of the Second Amendment liberty as it's currently understood."

Produced and edited by Mark McDaniel. Additional footage by Todd Krainin.

Music by Kai Engel and Nine Inch Nails. All music licensed under Creative Commons. (CC BY-NC-SA 3.0 US.)

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No Freedom From the Church of America

Sun, 04 Feb 2018 08:00:00 -0500

One myth that Americans live by is the separation of church and state. Some like the idea; others hate it; but the irony is that church and state were not separated at the founding of the United States and are not separate now. In fact, they were united in the sense that the state is a church—the Church of America—and you can't separate a thing from itself. The religion this church administers is not Catholicism, Protestantism, Judaism, Islam, or anything else that comes to mind when most people think the word religion. It's Americanism, a species of nationalism. Nationalism and religion are cut from the same cloth. As William Cavanaugh writes in his not-to-be-missed book, The Myth of Religious Violence: Secular Ideology and the Roots of Modern Conflict: If it is true … that nationalism exhibits many of the characteristics of religion—including, most important for our purposes, the ability to organize killing energies—then what we have is not a separation of religion from politics but rather the substitution of the religion of the state for the religion of the church. As I commented before: "Perhaps we should read the First Amendment's Establishment Clause—'Congress shall make no law respecting an establishment of religion'—not as a mandated separation of religion and state but as a non-compete clause." We could rewrite it to say: "Congress shall make no law respecting an establishment of any other religion..." To put it another way, other religions may exist, but they may not become rivals of the official religion, Americanism (nationalism). We see this, as Cavanaugh relates, in a 1940 Supreme Court case, Minersville School District v. Gobitis, in which Jehovah's Witnesses were, in Cavanaugh's words, "denied the right to dissent from patriotic rituals" by having their children abstain from pledging allegiance to the flag in school. In his 8-1 majority opinion, Justice Felix Frankfurter seemed to pay homage to freedom of religion as a means to avoid "bitter religious struggles." But he did not extend this freedom to the Jehovah's Witnesses. Why not? Because doing so would undermine the "promotion of national cohesion," Frankfurter wrote. "We are dealing with an interest inferior to none in the hierarchy of legal values. National unity is the basis of national security." He added, "We live by symbols—the most crucial of which is the flag," and claimed, "what the school authorities are really asserting is the right to awaken in the child's mind considerations as to the significance of the flag contrary to those implanted by the parent." As Cavanaugh summed it up, "The Supreme Court upheld the right to inculcate patriotism over the right to the free exercise of religion." In 1943 the Court overturned the case (West Virginia State Board of Education v. Barnette), but, Cavanaugh writes, "Frankfurter had succeeded in introducing the idea that First Amendment decisions could be made against a backdrop of some unspecified history of 'bitter religious struggles,' the antidote to which is the enforcement of national unity…. The threat of religious violence would become a recurring trope in subsequent Supreme Court cases involving religion." Today you cannot be compelled to pledge allegiance to the flag in school, but if you fail to stand for the national anthem or kneel during it at a football game, the president of the United States might demand your firing and many people will enthusiastically second the motion. In later Court cases, justices who declared prayer in government schools unconstitutional nevertheless found no problem with some government-sponsored religious invocations. For example, as Cavanaugh reports, Justice Potter Stewart, dissenting in Engel v. Vitale (1962), which declared official prayers in government schools unconstitutional, pointed out that the government has long perm[...]

Felons Who Want Their Voting Rights Back Are Getting Unconstitutionally Screwed, Says Judge

Fri, 02 Feb 2018 11:45:00 -0500

(image) A federal judge in Florida has ruled that the state's procedure for restoring the voting rights of felons is unconstitutional.

In Florida, conviction for any felony automatically results in a lifelong loss of the right to vote. Currently, the only available path for a felon wishing to have his voting rights restored is to apply to the Executive Clemency Board, which is composed of the state's governor, attorney general, chief financial officer, and agriculture commissioner, and has total standardless discretion as to whether to restore the franchise.

In an opinion ruling on cross-motions for summary judgment, U.S. District Judge Mark Walker held that the complete absence of written guidelines constraining panel members' discretion violated the First and Fourteenth Amendments of the federal Constitution.

Calling its legal reasoning "nonsensical," Walker rejected Florida's argument that the the 14th Amendment's recognized allowance for felon disenfranchisement confers authority on a state governor to grant or deny re-enfranchisement for any reason. On the contrary, he said, the decision whether to restore voting rights cannot be based on its approval or disapproval of an applicant's exercise of their First Amendment rights. Walker suggested that on at least one occasion, Florida governor Rick Scott (R) may have violated this principle by restoring the vote to a man who claimed to have voted for him.

Walker's reasoning, if not rejected by higher courts, could set an important precedent for challenges to other states' clemency and re-enfranchisement processes, which often scrutinize ex-convicts' post release conduct in ways that could implicate First Amendment rights. Many clemency boards, for example, reject applications from those who continue to maintain their innocence— an activity likely protected by the First Amendment.

The judge also noted that the implementation of the challenged clemency system in 2011 coincided with a sharp drop in granted applications for re-enfranchisement. Under the prior system (which did not require an application process or hearings) 154,000 felons had their voting rights restored during the final four-year term of Republican governor Charlie Crist.

But under the Executive Clemency Board system, which Scott implemented upon taking office, only 3,000 applications have been granted in eight years.

Florida currently disenfranchises a higher portion of its population than any other state, with 10% of all adults and 21% of African-Americans barred from voting due to a felony conviction.

Walker's order does not specifically address how Florida must change its re-enfranchisement system in order to comply with the Constitution, but orders the parties to submit briefings on possible remedies by February 12. A spokesman for Scott's office has suggested that the state may appeal the ruling.

Middlebury Activist Who Published List of Alleged Rapists May Have Violated Title IX

Thu, 01 Feb 2018 11:40:00 -0500

Late last semester, an activist at Middlebury College publicly accused more than 30 male students of sexual harassment, rape, racism, and emotional abuse—her own version of the infamous Shitty Media Men List. Ironically, it's that student, Elizabeth Dunn, who could be in trouble. The list may violate the sexual misconduct reporting procedures required by the college under Title IX, the federal statute that mandates gender equality in schools. Dunn published the list on Facebook. It begins with a trigger warning for "sexual assault/abuse" and then proceeds to name 30 alleged abusers. "So many people at middlebury [sic] are open about the trauma they've experienced here, and yet there's still reluctance to publicly name the ones who have caused this pain," she wrote. "It's profoundly fucked up to me that I can write so much about my trauma, and see that and similar narratives hyper-consumed on so many platforms and yet in my everyday life still see people associate with those who have perpetuated this violence as if nothing has happened. So in the spirit of that, here's a short List of Men to Avoid." The names were redacted in the version of the list obtained by Inside Higher Ed. (The original post has by now been deleted.) Many are accused not just of rape but of serial rape. At the end of the post, Dunn writes: "feel free to DM me more names to add to this status because I could really give a fuck about protecting the privacy of abusers." Middlebury administrators then stepped in to tell students that anyone wishing to make sexual misconduct accusations should follow the proper reporting protocols. Title IX doesn't require students to report sexual misconduct—either their own or someone else's. Investigations begin when a report is made to the Title IX office, either by a victim or by someone with knowledge of an incident. The idea is that victims shouldn't feel forced to go through the Title IX process if they don't think that's for the best (although I've covered plenty of cases where someone other than the alleged victim filed a complaint, thus forcing the alleged victim's hand). Campus employees, however, are required to report sexual misconduct when they become aware of it. This includes students who serve in official capacities, such as residential advisors. And Middlebury's sexual misconduct policy requires everyone to cooperate in investigations once they are formally underway. "Students are required to cooperate with conduct investigations once they have been identified, by themselves or others, as having relevant information," Middlebury spokesperson Bill Burger told The Middlebury Campus. Dunn's list may have interfered with an ongoing investigation. She told the campus paper last week that administrators communicated to her it was "highly likely" she would be facing disciplinary measures. Middlebury rules also prohibit "violation of another's privacy," and the list may run afoul of that rule too. Dunn did not respond to a request for comment, and Burger declined to comment on any individual cases. (Federal law generally prohibits college officials from discussing matters pertaining to specific students.) It's therefore impossible to say whether Dunn is actually in trouble for making the list. But at least one expert on campus sexual misconduct policies thinks Dunn could be in trouble for violating Title IX itself. According to Inside Higher Ed: A list with unsubstantiated claims can be damaging for its creator, said Scott Lewis, a lawyer and partner with the NCHERM Group, a risk-management firm that works with colleges. Lewis also helped found the Association of Title IX Administrators. The list potentially could create a hostile environment for the men named in it, which is prohibited under Title IX, Lewis said. A student in theory co[...]

Poland’s Holocaust Bill Is a Hate Speech Ban

Wed, 31 Jan 2018 00:01:00 -0500

In Poland, as in several other European countries, it is a crime to deny the Holocaust. Soon, thanks to a bill that was approved by the lower house of the Polish parliament on Friday, it may also be a crime to discuss the Holocaust too frankly. The pending ban on references to Polish complicity in Nazi genocide, which has provoked outrage in Israel and around the world, may seem inconsistent with the ban on Holocaust denial. But the two taboos are of a piece with each other and with Poland's prohibition of ethnic insults—a fact that should give pause to American fans of European-style speech regulation. The Polish bill makes it a crime, punishable by fines and up to three years in prison, to accuse "the Polish nation, or the Polish state, of being responsible or complicit in the Nazi crimes committed by the Third German Reich." The legislation was motivated largely by anger at the common use of phrases like "Polish death camps," which could be read to mean that the war crimes committed by Germans in occupied Poland were a project of the Polish government. "German Nazi crimes are attributed to Poles," Deputy Justice Minister Patryk Jaki complained last week. "And so far the Polish state has not been able to effectively fight these types of insults to the Polish nation." Some of these "insults" happen to be true, since part of "the Polish nation" was "complicit in the Nazi crimes." Poles saved Jews, but Poles also murdered Jews, under Nazi instruction and on their own initiative. Acknowledging that complicated and troubling reality could expose people to criminal liability under the proposed law, notwithstanding its focus on statements "contrary to fact" and its exemption for people engaged in "artistic or scientific activities." The bill, which applies to mistakes as well as deliberate misrepresentations, charges the government with determining what is true and whose motives are elevated enough to shield them from prosecution. The impact of such a system goes far beyond the people who are actually fined or imprisoned, since the possibility of an investigation encourages self-censorship. The result—people afraid to speak their minds, lest they attract unwanted attention from the government—hardly seems consistent with the "freedom to express opinions" and "disseminate information" guaranteed by the Polish constitution. The same could be said of the Polish laws that make a criminal out of anyone who minimizes or denies Nazi war crimes or who insults or incites hatred against people based on their nationality, ethnicity, race, or religion. These are fuzzy categories that invite arbitrary and unpredictable enforcement, chilling speech that might offend the sensibilities of protected groups. The proposed ban on charges of Polish complicity in the Holocaust is similar in logic as well as impact, since it criminalizes "insults to the Polish nation," a kind of group defamation. The same principle that is aimed at protecting minorities from verbal oppression can be easily adapted by majorities seeking to suppress speech that makes them uncomfortable. We need not look abroad to see how slippery the concept of hate speech can be. Last year Howard Dean, former governor of Vermont and former chairman of the Democratic National Committee, argued that the University of California at Berkeley's decision to cancel a speech by conservative commentator Ann Coulter did not raise any constitutional issues because "hate speech is not protected by the First Amendment." Dean was wrong about that, since "hate speech" is not a legally relevant category in the United States, and his loose use of the phrase demonstrated why making it so would be dangerous. Why bother to argue with your opponents when you can have them arrested? The Polish legislato[...]

No, Russians Bots Aren't Responsible for #ReleaseTheMemo

Fri, 26 Jan 2018 18:05:00 -0500

Last week, Republicans began to call for the release of a memo authored by House Intelligence Committee Chairman Devin Nunes that purports to lay out a series of abuses connected to the FBI surveillance of Donald Trump's 2016 presidential campaign. As often happens these days, a Twitter hashtag, #ReleaseTheMemo, evolved around the effort and was widely retweeted by Republicans and elected officials. It didn't take long for a report to emerge that claimed Russian-sponsored Twitter accounts and bots were the real driving force behind the viral call for the release of the memo. Without worrying about the veracity of this convenient claim, all the usual suspects giddily spread the story across social media—probably because they have such a deep reverence for truth in the Era of Trump. The report also prompted Sen. Dianne Feinstein and Rep. Adam Schiff, both California Democrats, to pull out every fearmongering catchphrase available to demand that Twitter CEO Jack Dorsey and Facebook CEO Mark Zuckerberg perform an "in-depth forensic examination" on the "ongoing attack by the Russian government through Kremlin-linked social media actors directly acting to intervene and influence our democratic process." It's difficult, it seems, for some people to embrace neutral principles nowadays. But if you genuinely believe that President Donald Trump's distasteful tweets are attacks on the foundations of free expression, how could you not be alarmed by a pair of powerful elected officials demanding that social media companies hand over information about their users? What would they say if the president had sent a letter to Google insisting it give the executive branch an "in-depth forensic examination" of his political opponent's searches? As it turns out, reports today say that Twitter's internal analysis found it was mostly Americans, not creepy Slavic mind-control robots, who were behind the hashtags. Not that it really matters, anyway. If a group of Americans has a legitimate issue to rally around, how is it supposed to control what outsiders do? It's not as if #ReleaseTheMemo was secret or illegal. Republican politicians were openly using it. Yet if Feinstein and Schiff had their way, Twitter and Facebook would have moved to quash the #ReleaseTheMemo hashtag for what apparently turned out to be solely partisan reasons. Sounds like a power that can be abused. Even if the two had been genuinely troubled by Russian hashtags—yes, suspend your disbelief—the source of "fake news" is not always easily discernible. Sometimes it comes to you from an anonymous Russian bot, and sometimes it's retweeted by a prominent journalist. Democrats have manufactured panic over amateurish Russian propaganda to not only claim that Russian President Vladimir Putin was "meddling" in the election but also to argue that interference had the power to turn the election to Trump. With this risible idea in hand, they have created paranoia about social media interactions and rationalized infringements on expression. Not long before demanding forensic investigations into hashtags, Feinstein was demanding that Twitter, Facebook and Google restrict their content more tightly, threatening, "Do something about it—or we will." Democrats have attempted to control interactions through the Fairness Doctrine or the IRS, and now through the Russia scare. Part of living in a free country is dealing with messy, ugly misinformation. Lots of people in the United States seem pretty impressed by how they do things in Europe. In Britain, Prime Minister Theresa May is launching a "rapid response unit" run by the state to "battle the proliferation of 'fake news' online." The "national security communications unit" will be tasked with combatting misinform[...]

Georgia's Campus Free Speech Bill Protects Some Students' Rights, May Threaten Others

Fri, 26 Jan 2018 10:15:00 -0500

Eariler this week, Georgia State Sen. William Ligon, a Republican, introduced the Campus Free Speech Act, a bill designed to uphold students' First Amendment freedoms. Following a year in which there were plenty of campus speech meltdowns, this bill attempts to address the growing resistance to a free and open campus, though it also creates new concerns. The bill, which is based on the Goldwater Model, would require universities to take action against students who shut down speakers. Stanley Kurtz, a senior fellow at the Ethics and Public Policy Center and co-author of the Goldwater proposal upon which this bill was based, feels strongly about this specific bill. "The Georgia bill and the Goldwater model that inspired it aims to secure campus free-speech in the most balanced and comprehensive way possible," said Kurtz in an email to Reason. "It's often forgotten that the principle of institutional neutrality is a pillar of campus free-speech. Universities should resist the temptation to take official institutional stands on political controversies... the Goldwater proposal is the only model to affirm this principle of institutional neutrality." In addition to requiring universities to create a policy on free speech, wherein universities must "strive to ensure the fullest degree of intellectual freedom and free expression," they must also agree that "it is not the proper role of the institution to shield individuals from speech" and that their protection must also extend to speech which some may "find unwelcome, disagreeable, or even deeply offensive." The bill protects public demonstrations, provided that they do not "materially and substantially" infringe upon the rights of others. Campuses must be open to any speaker who is invited by student groups or faculty members, and these speakers must be given the same terms. Universities also may not charge a security fee based on the content of the invitee's speech (something Berkeley tried in the past). Students who break these policies are entitled to certain due process rights that are spelled out in the document, but the bill states that "any student who has twice been found responsible for infringing upon the expressive rights of others shall be suspended for a minimum of one year or expelled." Joe Cohn, the Legislative and Policy Director at Foundation for Individual Rights in Education (FIRE), said FIRE is troubled by this aspect of the proposal. "We are always concerned about mandatory punishments that do not take into account individual culpability," said Cohn in an interview with Reason. "There is a difference between someone who has gotten in trouble for counter protesting as a freshman and then again as a senior, three credits shy of graduating, and someone who gave a professor a concussion at a rally." This bill comes after a series of incidents involving Georgia state schools. In 2017, the University of North Georgia's former Student Code of Conduct was given FIRE's harshest rating—red—for substantially burdening free speech. "We are glad speech speech codes are being addressed, and we will be watching and engaging in the process as this bill moves through legislation," Cohn says.[...]

Your Social Media Post Does Not Have To Be Socially Useful

Mon, 22 Jan 2018 11:34:00 -0500

The proper response to speech we don't like is not censorship but more speech, as the saying goes. But an increasing number of people seem to think things have gone too far. Lately, they argue, free speech has gotten out of control. Russian attempts to meddle in the presidential election are part of the reason for this hand-wringing, but by no means the only reason. Social media enables extremism, according to its critics. It gives a platform to white nationalists. (It also gives a platform to opponents of white nationalism, but never mind.) It hijacks the reward centers of the brain, especially in teenagers. It is "ripping apart the social fabric" through "dopamine-driven feedback loops." That last critique comes from none other than a former vice president at Facebook, Chamath Palihapitiya. Little wonder, then, that politicians and pundits also consider social media a clear and present danger. Hillary Clinton, Dianne Feinstein, Ted Cruz, Steve Bannon, Tucker Carlson—all of them have suggested that social media needs to be reined in. As Zach Weismuller noted recently in Reason, this is nothing new: "America's first multi-page newspaper was shut down after a single edition because it spread rumors about the sex lives of government officials and published what the colonial government described as 'uncertain reports,' or what we might today call 'fake news.' " The latest to weigh in with such laments is Zeynep Tufecki, a professor and op/ed writer. In a piece in Wired magazine, Tufecki observes that "the capacity to spread ideas and reach an audience is no longer limited by access to expensive, centralized broadcasting infrastructure." Great news for free speech, right? Well, not in her telling. People can now gorge on any kind of communication they want, without gatekeepers or guardians. But there are "no nutritional labels in this cafeteria... each post [is] just another slice of pie on the carousel." What's more, microtargeting makes it possible for people to direct their speech to specific audiences instead of broadcasting it to the entire world. Thus, she argues, "John Stuart Mill's notion that a 'marketplace of ideas' will elevate the truth is flatly belied by the virality of fake news," and the "idea that more speech—more participation, more connection—constitutes the highest, most unalloyed good" is "a fallacy on its face." We ought to understand free speech as a means to an end, rather than an end in itself, she contends: "a necessary condition for achieving certain other societal ideals" such as creating "a knowledgeable public," "holding powerful people and institutions accountable," and "fostering a healthy, rational, and informed debate." We need to regulate social media, she concludes, much the same way government regulated the auto industry by requiring "seat belts, airbags, emission controls," and so on. This is a fairly common argument these days. The dean of the Yale Law School, Robert Post, frets that "the First Amendment seems to have been transformed into a straitjacket for our institutions of democratic governance." What America needs, in this view, is to protect speech only when it serves some other purpose. This invites some obvious questions. For instance, who gets to regulate social media for the public good—Donald Trump? Ted Cruz? An elite cadre of social-justice warriors? Who gets to decide what constitutes fake news—the man in the Oval Office who screams "Fake news!" at any story about him that is less than fawning? Also: Which "societal ideals" should government foster? How about virtue? Plenty of religious conservatives—and not just Christian ones, either—think government should teach people to be good,[...]