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I miss the old ACLU.

You know the one I'm talking about: The American Civil Liberties Union that defended the First Amendment right of Nazis to march at Skokie, Illinois. The one that sided with homophobic pastor Fred Phelps and his church when it protested the funerals of dead American servicemen.

The ACLU's cases have sometimes involved terrible people with terrible causes saying terrible things. Nobody with good taste or decent morals and certainly no one on the left side of America's political spectrum would ordinarily choose to associate themselves with the infamous scoundrels and bigots the organization has occasionally aided over the years. Even so, it has usually been comforting to know that the ACLU is on the case. If Fred Phelps is protected by the Constitution, after all, then the rest of us are, too.

It's not always like that, anymore.

Oh, the ACLU still takes on free speech cases and unpopular clients: Last month it argued an appeals case on behalf of a high school student who made a Holocaust joke. "In doing so, we were only doing what we have always donedefending speech rights for all, even those with whom we disagree," David Cole, the group's national legal director, wrote recently in The Nation.

But reporting in recent years suggests the ACLU has drifted away from its moorings as the nation's premiere defender of the First Amendment, struggling instead to balance its commitment to free expression with progressive stances on behalf of racial and sexual minorities. That would reflect a growing notion on the left that perhaps the Trumpist Age of Disinformation has revealed the limits of unfettered expression as a democratic virtue.

The ACLU's old guard worries something is being lost. Take David Goldberger, the attorney who argued on behalf of the Skokie Nazis. "Liberals," he warned last year, "are leaving the First Amendment behind."

So it's interesting and maybe even encouraging to see another group step forward to claim the mantle. The Foundation for Individual Rights in Education (FIRE), a group that's waged free speech battles on university campuses around the country, announced this week that it is rebranding itself. FIRE is now the Foundation for Individual Rights and Expression, a name change that brings with it a broader mandate and a plan to spend $75 million over the next three years on free speech education and litigation.

"Once the ACLU backs off its traditional role, who else is there?" said Ira Glasser, who ran the organization for more than two decades and now sits on FIRE's advisory board. (Former ACLU president Nadine Strossen is also on FIRE's board.)

Let's backtrack a bit, and acknowledge that the progressive reconsideration of free speech is nothing if not understandable. The ACLU's own evolution was sparked by its 2017 efforts on behalf of neo-Nazis whose angry "Unite the Right" protests at Charlottesville culminated in the death of Heather Heyer and gave us then-President Donald Trump's ugly "very fine people on both sides" equivocation between the racist and anti-racist demonstrators. Maybe there's something to the idea that "First Amendment protections are disproportionately enjoyed by people of power and privilege," as one former ACLU staffer put it. And maybe there's something to the idea that the Internet-fueled explosion of lies and conspiracy theories means we're no longer competing in a "marketplace of ideas," but instead collectively being forced to slog through an exhausting swamp of falsehood. Even for its most committed adherents, there can be days when the First Amendment doesn't look so wonderful.

That's not the whole story, though.

Yes, the First Amendment protected the marchers at Skokie in 1978 but it was also a "crucial tool" for protesters during the Civil Rights Era. Maybe Westboro Baptist Church was protected in shouting its vile anti-gay slurs in public, but so were gay and lesbian demonstrations and newspapers that were the targets of would-be censors. In America, marginalized groups have been able to advance their cause because of our country's legal commitment to free speech.

"Especially for groups that are minorities, whether political dissidents or racial or other demographic minorities, (they) absolutely depend on robust free speech and are smothered by censorship," Strossen told me last year.

Indeed, the latest government-sponsored efforts to stifle speech the "Don't Say Gay" bill in Florida, any number of state bills intended to limit young people's access to books about racism and sexual identity are aimed directly at the the ability of those minority groups to tell their story. If those laws are defeated in court, it probably will happen because the First Amendment doesn't just protect people of power and privilege.

That makes free expression an idea worth continued defense by the progressives, even in these confusing and dangerous times. David Goldberger worries the left is leaving the First Amendment behind. It's not too late to come back.

Joel Mathis is a writer based in Lawrence, Kansas. His work has appeared in The Week, Philadelphia Magazine, the Kansas City Star, Vice and other publications. His honors include awards for best online commentary from the Online News Association and (twice) from the City and Regional Magazine Association.

The views expressed in this article are the writer's own.

Continued here:
Is It Time to Set the First Amendment on FIRE? | Opinion - Newsweek

To listen to the gun lobby, the Second Amendment provides an absolute constitutional right for an individual to own an array of armaments and ammunition free from regulation by the state. These advocates select from the amendments text only what supports their individual-freedom view, but they ignore entirely the imperative that precedes, the framing device of the whole thingto protect the security of a free State. Read in full, the text of the amendment is not a prohibition on gun regulations but, rather, a requirement of certain regulations necessary for protecting that security and freedom.

Gun-rights activists point to the 2008 Supreme Court decision in Heller v. District of Columbia as finally establishing, some 219 years after the ratification of the Second Amendment, an individual right to possess a gun in the home, which they proclaim extends to assault rifles and sundry other weapons enabling individual bearers to inflict mass destruction of human life. In their view, the ordinary citizen is bound by a constitutional covenant to suffer the risk that others might use their military-style weapons to murder childrenor churchgoers, or grocery shoppers, or concertgoers, but especially childrenbecause it is the person, not the gun, who does the killing in the Second Amendments name. We the people must endure this risk, we are told, because otherwise the rights of some to keep and bear Armseven against childrenoutweigh our collective need for safety and security. The constitutional protection of some to keep the weapons that they sometimes bear against us collectively is too important a right necessary for individual freedom to contemplate regulations that would, or even might, reduce our risk. We are told that the right to individual ownership of armaments like AR-15 platform assault weapons, with minimal or no real restraints on purchasing, is necessary for an armed populace to keep the threat of a tyrannical government at bay.

James C. Phillips and Josh Blackman: The mysterious meaning of the Second Amendment

Such a popularized version of our Constitutions meaning was in part vindicated by a conservative Supreme Court majority, whose opinion in Heller focused principally on the second half of the Second Amendment, which reads, The right of the people to keep and bear Arms, shall not be infringed. Assuming that the term of art keep and bear means the same in modern English as possess and carry, and that the people refers to particular individuals rather than a political collective, as in We the People, which established the Constitution in the preamble, the right would seem to be fairly clear. (Or at least as clear as the First Amendment, which provides that Congress shall make no law abridging the freedom of speech, under which the Supreme Court has nonetheless repeatedly found all manner of regulations permissiblesuch as those prohibiting incitement to violence, true threats, and advocacy for violent overthrow of the government, and those putting reasonable time, place, and manner restrictions on speech, among many others.)

But this version of the Second Amendment ignores the first half, which reads, A well regulated Militia, being necessary to the security of a free State. The Supreme Court barely contemplated the texts meaning in Heller, asking no more than whether it could be given a logical link or a purpose consistent with what it dubbed the operative clausewherein the amendment, in the Courts view, protects an individual right to possess a weapon. The first half of the Second Amendment is at times also anachronistically associated with the question of whether the right to possess a weapon is tied to service in a well regulated Militiaa view the Heller majority rejected. Missing from this reading, however, is any consideration of the constitutional significance of what is necessary to maintain the security of a free State. What does this security entail? Are Americans secure in a free state when they live in fear of the next violent act that might be perpetrated by the bearer of semiautomatic weapons? Are Americans secure in a free state when they are told that more resources should be spent on arming teachers, or training students to duck and cover and keep silent, as if in a new cold war, only this time the enemy is ourselves?

Diana Palmer and Timothy Zick: The Second Amendment has become a threat to the First

The gun lobby argues that the political, psychological, and emotional attachment to the ready availability of weapons for some is a value too precious to contemplate rethinking our collective approach to gun regulation. Any regulation that might lead to imposing far more restrictive licensing and background checks, or to limiting the availability of particular kinds of weapons, would be too costly to their selective understanding of constitutional freedoms. According to the gun lobby, individuals engaged in their own fantasy of the heroic citizen equipped to do battle against tyrannical government agents would suffer incalculable collective costs were Americans to restrict their access to weapons. If the choice were the lives of children or the political imagination of a vocal group of armament activists, whose costs should matter more? The inconvenience of some or the lives of others?

The Second Amendment provides an answer. The security of a free State matters. Our security is a constitutional value, one that outweighs absolutist gun-rights claims by NRA lobbyists, or Oath Keepers and other insurrectionist groups who hold their access to weapons dear for use in an imagined anti-tyranny quest. Meanwhile, the rest of us suffer the costs of the actual tyranny that living in a state of fear of mass gun violence creates.

Franklin D. Roosevelts 1941 Four Freedoms speech placed freedom from fear as one of four essential human freedoms. Translated to our modern gun crisis, this freedom can be realized only when individuals no longer have easy legal access to armaments that put them in a position to commit an act of [mass] physical aggression against any neighbor. Children today do not have this freedom from fear. Just to live in society and go to school, they must endure regular active-shooter drills, because the gun lobby has opposed any regulation that would keep weapons out of the hands of those whose activities remain legal up until the exact moment when they start shooting children and teachers. Proposals to make schools more like fortresses only add to the costs children bear rather than addressing the root constitutional problemthat insufficient regulation of guns impairs the liberties of all.

Protecting our freedom from fear does not mean that the government has complete authority to ban guns. To emphasize the amendments protections for security is not to abandon liberty. Rather, it is to recognize how excessive emphasis on the liberties of gun advocates undermines the many liberties of everyone else who seeks to live securely in a free state. The Second Amendment preserves a free state, not simply a security state.

When we Americans next hear that the Second Amendment protects a right against more effective regulation of weapons capable of imposing death on our neighbors, we should insist in response that the Second Amendment requires the opposite. It empowers a free people to regulate weapons as necessary to maintain their security and to protect their freedoms from fear and violence. We can be free, but only if we regulate gunsjust as the Second Amendment tells us.

Excerpt from:
Don't Forget the First Half of the Second Amendment - The Atlantic

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The University of Houston has settled with a conservative free speech group that sued the school over an anti-discrimination policy that the group argued was overly broad and violated students First Amendment rights.

As part of the settlement, UH officials will have to pay $30,000 in attorneys fees to Speech First and UH officials must keep in place its amended anti-discrimination policy.

In this case, Speech First, a group that actively litigates college policies they view as student censorship, targeted UHs anti-discrimination policy that has been in place since 2012. According to that policy, unlawful harassment was defined as humiliating, abusive, or threatening conduct or behavior that denigrates or shows hostility or aversion toward an individual or group or conduct that created a hostile living or working environment or interfered with an individuals academic or work performance.

Examples of such harassment included epithets or slurs, negative stereotyping and denigrating jokes.

It also stated [m]inor verbal and nonverbal slights, snubs, annoyances, insults, or isolated incidents including, but not limited to microaggressions, would be considered harassment if the actions occurred repeatedly and targeted a particular group of people based on their race, sex or gender or other status that keeps them protected from discrimination.

But in May, three months after Speech First filed its suit, the university amended its policy. Later that same month, U.S. District Judge Lynn Hughes, a Reagan appointee, blocked the university from reinstating its original anti-harassment policy.

This is a huge win for the First Amendment, said Cherise Trump, executive director of Speech First, a group that pushes back against what it calls toxic censorship culture on campuses. It sends a message to the University of Houston and other universities that they will be held accountable if they enact unconstitutional policies on campus.

In a statement, UH officials said they have come to an amicable agreement and consider the matter resolved.

As a result of our discussions, a revised anti-discrimination policy has been adopted, Chris Stipes, director of UH media relations, said in a statement. The UH System remains committed to protecting the constitutional rights of our students and employees.

Speech First filed the lawsuit on behalf of three conservative students identified only as A, B and C who said they felt they could not express their beliefs on campus for fear they would be punished under UHs older policy.

As examples, the lawsuit listed how the students feared retaliation if they shared personal beliefs such as affirmative action in college admissions is racist or allowing biologically male athletes who identify as female to compete in womens sports is fundamentally unjust. All three said they were uncomfortable acknowledging fellow students preferred pronouns outside of a cisgender identity.

In documents, lawyers for the university argued that its policy specifically addresses unlawful harassment of students and would not consider those statements and ideas provided by the students in the lawsuit as a violation of the policy.

University lawyers have also argued there is no evidence that the anti-discrimination policy has ever been used against students.

When the university amended the anti-discrimination policy in mid-May, it specified that harassment must rise to the level of creating a hostile work environment for employees or to deny a student equal access to education by creating a hostile learning environment. That is the standard set by the 1999 Supreme Court decision in Davis v. Monroe County Board of Education, which states that schools violate the Title IX ban on sex-based discrimination if they remain deliberately indifferent to sexual harassment to the point it prevents a student from receiving an equitable education.

Two years ago, the U.S. Department of Education Office of Civil Rights under former President Donald Trump used that definition of sexual harassment when it issued revised rules and standards for investigating Title IX violations on college campuses, which was a more narrow definition for sexual harassment than any previously used.

Speech First lawyers argue that many universities, including UH, adopt harassment policies outside of that guidance that are too broad, providing a chilling effect to students free speech.

A UH lawyer said the definition of sexual harassment in the Davis case did not limit schools from enacting other policies to address unlawful harassment and should not be considered the standard for universities as they craft disciplinary policies to address other instances of inappropriate behavior.

Speech First has tried to bootstrap Davis in numerous other cases, and to date none has held that Davis imposed the outer bounds for addressing unlawful harassment, they wrote.

But when Hughes, the federal district judge, granted a preliminary injunction late last month preventing UH from reinstating its original anti-harassment policy, he sided with Speech First.

Restraint on free speech is prohibited absent limited circumstances carefully proscribed by the Supreme Court. Any limitation deserves the upmost scrutiny, he wrote, stating the group would likely win the case. The University says that it will be injured if recourse is unavailable for harassment against students of faculty. As important as that is, students also need defenses against arbitrary professors.

This is the latest victory for Speech First, which has sued universities across the country over free speech policies, including the University of Texas at Austin. The case against UT-Austin took a similar path. Speech First sued the university in 2018 over language in multiple freedom of expression policies. UT-Austin amended some of the policies before settling with the organization and agreed to discontinue the universitys Campus Climate Response Team, part of the division of student affairs and the division of diversity and student engagement that investigated student reports of bias incidents on campus.

This lawsuit comes as other free speech debates have bubbled up on Texas college campuses throughout this past academic year.

At Collin College in North Texas, three professors have sued the school, arguing their contracts were not renewed in retaliation for exercising their First Amendment rights on a variety of issues, including one professor who publicly criticized the schools COVID-19 response.

Nearby at the University of North Texas in Denton, thousands of students and community members signed a petition calling on school administrators to expel a right-wing student, arguing her campus activism and statements opposing gender-affirming care for transgender children created an unsafe learning environment for transgender students on campus.

In that instance, administrators denounced the students comments, but they said she and her right-wing campus group had not violated any university policies.

Disclosure: Collin College, University of Texas at Austin, University of Houston and University of North Texas have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

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University of Houston settles lawsuit with conservative Speech First group - The Texas Tribune

The US Supreme Court is poised to consider a question with seismic consequences for online speech. Over the past year, laws in Texas and Florida have set up a legal battle over whether the First Amendment protects social networks right to curate user-generated content or whether these sites should be treated more like phone companies, required to host nearly any speech their users post. The courts split reflects a deepening shift in how to interpret a basic constitutional right, filtered through a political culture war and backlash against large web platforms.

For years, sites like Facebook and YouTube have broadly assumed that moderation decisions are protected by the First Amendment. But, last month, the Fifth Circuit Court of Appeals made a surprise ruling over Texas HB 20, a law that bans large apps and websites from moderating content based on viewpoint. The court ruled against NetChoice and the Computer & Communications Industry Association (CCIA) and let the law go into effect, sending the groups scrambling to file an emergency Supreme Court petition. That petition was granted temporarily blocking the law but also offering a preview of a seemingly inevitable Supreme Court battle.

I would be surprised if the court doesnt take this up, says Ari Cohn, counsel at the libertarian-leaning nonprofit TechFreedom one of roughly 30 groups that supported the petition. The Fifth Circuit still hasnt decided on the laws merits, but it seems highly sympathetic to Texas reasoning. And that reasoning conflicts directly with a May ruling from the Eleventh Circuit Court of Appeals, which blocked Floridas similar law. Barring a sudden and massive shift, its almost inevitable this is going to create a circuit split and go up next term, says Cohn.

The central issue is whether the government can regulate how social networks sort and remove legal content. Opponents argue that curating posts and setting community standards involves private companies exercising a constitutional right to speak (or not speak, in the case of content bans). Supporters compare the sites to shopping malls or telephone networks, whose First Amendment rights are limited.

But both sides so far are leaning on old cases involving non-digital spaces and tech, and the Texas law in particular repurposes legal terms outside of even relatively recent judicial context. It designates social networks as utility-like common carriers, a label that federal rules explicitly avoid applying to internet service providers let alone websites. And it also bans viewpoint discrimination, a term the Supreme Court has used to describe unlawful government restrictions on speech but that Texas lawmakers have treated as synonymous with private companies moderating conservative content.

A Supreme Court ruling in favor of Texas could make that legal repurposing stick, and its implications would go far beyond Facebook banning former President Donald Trump. Democratic politicians have discussed punishing the spread of health misinformation or other harmful but legal speech. And, depending on how its written, the ruling wont necessarily just apply to the biggest social media companies. Even Texas law, which applies to services with 50 million monthly active users, would likely scoop up non-Big Tech sites like Yelp or Tumblr.

Texas and Florida politicians have also taken the unusual step of describing their bills as conservative weapons against the alleged liberal bias of tech companies. To Nora Benavidez, senior counsel at media advocacy group Free Press, that makes them a risky place even for good-faith debate over the First Amendment and makes any Supreme Court decision particularly fraught. This is not a great opportunity to talk about free speech, because this is not the way to appropriately regulate the First Amendment. There are ways that that can be done, Benavidez says. A states partisan interest in protecting certain speech is not one of those avenues.

Benavidez acknowledges real concerns around large social networks, which have tremendous power to shape speech online in some cases literally changing the way a generation talks. But a ruling that their community standards arent protected speech, she argues, would have catastrophic consequences. People who are supportive of HB 20 imagine that the law will help protect speech, she says. In reality, governments dictating what private actors can and cant do, and essentially picking and choosing speech that is acceptable, is a precursor in every country around the world to totalitarianism, authoritarianism, and the demise of democratic engagement.

For a hugely consequential law, however, HB 20 has moved between courts with a marked lack of explanation. The Fifth Circuit declined to offer a rationale for its decision, and the case flowed through the Supreme Courts shadow docket emergency petition system something NetChoice and the CCIA called a necessity after the Fifth Circuits abrupt decision but that resulted in only a short dissent from Justice Samuel Alito and no majority opinion.

This case has been anything but normal, says Cohn. There has definitely been a dearth of information from the majorities at every level except the district court level.

Thats left court watchers speculating about what last weeks 54 vote means. Its really hard to make predictions on the basis of the decision we have so far, because the majority didnt issue an opinion, says Alex Abdo, litigation director at the Knight First Amendment Institute at Columbia University. Alitos dissent, which was co-signed by the Republican-appointed justices Clarence Thomas and Neil Gorsuch, emphasized that he hadnt reached a conclusion on the law. Former President Barack Obama appointee Justice Elena Kagan voted against the decision without signing a move several experts suggested might be a protest against the controversial shadow docket itself but also said was still open to interpretation.

Columbia Law School professor Philip Hamburger, who filed one of the two legal briefs supporting HB 20, believes that this early vote simply doesnt say much about the laws prospects. Justice Alito hinted that the Supreme Court vacated the stay simply because the case is so important, he tells The Verge. It did not resolve the constitutional question.

CCIA president Matt Schruers contends that theres little ambiguity. I think we have five members of the federal judiciary who have made unmistakably clear their views, and theyre all aligned that a Fairness Doctrine for the internet is not constitutional. He also disagreed with the idea that courts havent spoken clearly on the law. We have gone three for three in federal court, he said referring to district court opinions in Texas and Florida plus the appeals court decision in Florida, all of which have largely rejected the states reasoning.

Other critics of the law arent as optimistic. I dont agree with every First Amendment argument the platforms are making, but the central argument they make that they have a right and their users have a right for the platforms to enforce community norms of their choosing is an incredibly important right for free speech online. And the three justices in the dissent seem ready to reject that argument, says Abdo. Justice Thomas in particular is a well-known proponent of some novel legal theories about internet law, and he seems likely to favor arguments for regulating social media.

Beyond the pressing question of whether sites can be required to carry certain content, the court could address more nuanced questions about what the First Amendment might protect. As Will Oremus of The Washington Post discusses, the Eleventh Circuit let parts of Floridas law stand, saying that limited regulation like transparency requirements doesnt necessarily violate speech rights. The Knight Institute in particular has praised that nuance, saying it properly rejects the platforms argument that the First Amendment insulates them from all regulation.

The recent court decisions are part of a political and cultural landscape where the First Amendments interpretation may be increasingly up for grabs. In a recent University of Chicago Law Review Online analysis, law professors Evelyn Douek and Genevieve Lakier noted that First Amendment politics are more complicated, uncertain, and, well, just plain weird than they have been in a long time partly because of things like the Fifth Circuits surprising decision and partly because of larger cultural and technological shifts.

Abdo compares the brewing Supreme Court showdown over speech to the past decades fights over digital privacy and surveillance culminating in decisions that set a promising precedent for a new era. Over the past 15 years, the Supreme Court has been called on to answer the question of how the Fourth Amendment applies in the digital age. What are our privacy rights in the digital age? Do Supreme Court precedents from the 1960s and 70s and 80s decide the question of state power to surveil in the 2000s? he says. The Supreme Court said emphatically, no technology has changed. The governments ability to surveil has changed. Peoples expectations of privacy have changed. And we have to answer these questions.

In a best-case scenario, Abdo believes that could happen here. I think we may be witnessing something similar in the First Amendment context that courts will have to analyze anew how the First Amendment ought to apply to new technologies, he says. And what I hope they will keep as their guiding point is whether their interpretation of the First Amendment ultimately serves the values that free speech is meant to serve.

Read the rest here:
A Supreme Court speech showdown is coming, and nobody knows what to expect - The Verge

Blockchain advocacy group Coin Center filed a lawsuit on Friday against the U.S. Treasury Department and the IRS for allegedly drafting an unlawful amendment to the controversial infrastructure bill.

The lawsuit against the Treasury Department alleged that a 2021 infrastructure legislations requirement for tax reporting is unconstitutional, specifically challenging the amendment of Section 6050I of the Tax Code.

Under the amendment, U.S. citizens would be required to report information about any transaction of at least $10,000, which includes providing the senders name, social security number, and date of birth.

In 2021, President Biden and Congress amended a little-known tax reporting mandate. If the amendment is allowed to go into effect, it will impose a mass surveillance regime on ordinary Americans [] The reporting mandate would force Americans using cryptocurrency to share intrusive details about themselves, both with each other and with the federal government. Under the terms of the mandate, everyday senders and receivers of cryptocurrency would be forced to reveal their names, Social Security numbers, home addresses another personal identifying information, the complaint reads.

Prior to the bill becoming law last year, Coin Center served as part of the crypto advocates that kicked against some of its crypto privisions. Additionally, many stakeholders considered several provisions in the bill to be unconstitutional and unproductive at the time.

Since its passage, the organization claims it has worked with Congress to find ways to repeal and amend some of the law provisions. In addition, some provisions will require Treasury Department guidance for their implementation.

While the Act is set to go into effect in 2024, the nonprofit organization claims it will significantly affect the crypto industry, including NGOs receiving anonymous donations.

In its complaint, Coin Center claims that the amendment violates the Fourth Amendment, subjecting anyone involved in crypto transactions to unreasonable searches and seizures.

It also points to the U.S. Supreme Court ruling which prevents the government from compelling organizations to keep and report a list of its members.

Demanding that politically active organizations create and report lists of their donors names and identifying information to the government is unconstitutional under the First Amendment, the public announcement reads.

The announcement also calls on stakeholders in the crypto community to support the lawsuit:

We are considering adding additional co-plaintiffs to this suit, so if you might fit this description and are interested, please get in touch.

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Coin Center Sues US Treasury for Unconstitional Amendment to Tax Bill - BeInCrypto