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Juli A. Metzger| Special to The Star Press

As we embark on Sunshine Week, an annual recognition of the importance of open government, I cannot help but reflect on our imperfect union, and that the free flow of fact-based news continues to hit roadblocks in this age of misdirection and disinformation. Fake news, if you will.

But whatever obstacles we encounter in the United States serve as warnings to what we could face, if left unchecked. United States press operations have pulled out of Russia after journalists covering the invasion of Ukraine were threatened. Russias President Putin makes no secret how he feels about the free flow of information, and the only information left for the Russian people is government-regulated propaganda.

The former American Society of News Editors (now theNews Leaders Association) launched Sunshine Week in 2005 as a national initiative to promote a dialogue about the importance of open government and freedom of information.

The weeklong celebration is held every Marchto coincide with theMarch 16birthday ofJames Madison,the father of the U.S. Constitution and a key advocate of the Bill of Rights.This year, it is March 13-19.

The First Amendment provides us with great protection from government interference for what we say and write, particularly on political issues or matters of public interest. We should remember that the nations founders created those protections to allow for what the U.S. Supreme Court has called robust and vigorous debate. In 2002, JusticeAnthony Kennedywrote, The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.

These days, as we witness what it means to be silenced and without recourse, we should think about those words and why the founders and the nation ratified the First Amendments five freedoms during a period of great division and debate not unlike today. Unfettered flow of information and access to government is for each of us, not just members of the press, which leads to a timely discussion this week on that very topic.

Last October, Indiana Attorney General Todd Rokita bannedAbdul-Hakim Shabazz from covering his press conferences, saying he wasnt an actual journalist. The ACLU in February filed a lawsuit citing it was a violation of Shabazzs First Amendment rights. Rokita later denied Shabazzs open records request asking for an explanation from Rokita as to why he was banned. Just this month, Rokita filed a motion to dismiss the lawsuit.

Shabazz is editor and publisher ofindypolitics.org, a well-established digital news source for politics in Indiana. He will be joined in a panel discussion at Ball State University this week about Who is a Journalist and Why it Matters, by Indianapolis Star statehouse reporter Kaitlin Lange, Steve Key, executive director and general counsel of the Hoosier State Press Association and Amelia Dieter McClure, the incoming executive director of the Hoosier State Press Association..

The event, sponsored by the College of Communication, Information, and Media, is 7 p.m. Tuesday, March 15, inthe L.A. Pittenger Student Center Forum Room (second floor). The event is free and open to the public.

Our rights, including the right to free speech, dont exist if theyre not defended. And defending basic freedomseven when a group besides our own is in the crosshairsbenefits everyone by making sure the protections of our basic rights remain strong.

Juli A. Metzger is an associate lecturer at the Ball State University School of Journalism and Strategic Communication, and is former president and publisher of The Star Press and executive editor for digital at The Indianapolis Star.

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Join the Who Is a Journalist? discussion on 1st Amendment rights during Sunshine Week - The Star Press

She cannot create websites that promote messages contrary to her faith, such as messages that condone violence or promote sexual immorality, abortion or same-sex marriage, Smiths lawyers told the Court.

In defending the law, Colorado argues that Smith can make her views known in any public forum she wants. What she cant do is proclaim that she will discriminate as a business.

Prohibiting companies from displaying what would amount to Straight Couples Only messages is permissible, because it restricts speech that proposes illegal activity and is therefore unprotected by the First Amendment, Colorado Attorney General Philip Weiser told the Court in the filing as it considered taking the case.

Of course, thats not the point of view from the lawyers representing Smith. Colorado has weaponized its law to silence speech it disagrees with, to compel speech it approves of and to punish anyone who dares to dissent, Kristen Waggoner, a lawyer with Alliance Defending Freedom, told The New York Times in a statement.

Thats a fine principle. Except for the right, its not really a principle at all.

Heres a simple way to test it. Substitute Florida for Colorado in Waggoners statement. Does anyone for a second believe that Alliance Defending Freedom, Florida Gov. Ron DeSantis (R) or any of the other culture warriors piling on against LGBTQ issues would for a second condemn the Dont Say Gay bill on First Amendment grounds?

Hardly. Alliance Defending Freedom is in fact one of the architects of the rash of anti-LGBTQ measures flooding state legislatures.

The fact is that the only speech the right wants to protect is its own. From its perspective, the First Amendment doesnt extend past the church door. Thats why its so happy to censor not just teachers but books and libraries. The only speech that matters is its own.

Unfortunately, a majority of justices on the Supreme Court are likely to agree. They seem ready to believe that faith supersedes every other right, including the right not to be discriminated against.

The Colorado case will give the justices exactly the case they need to make their religious liberty argument the law of the land. When Anthony Kennedy was still on the Court, the justices punted on another case from Colorado, this one involving a baker who refused to make wedding cakes for same-sex couples.

That ruling, Masterpiece Cakeshop v. Colorado Civil Rights Commission, was narrow, reflecting Kennedys influence. There will be no such restraint next time around. And if there is a challenge to Floridas Dont Say Gay law, dont expect the justices to apply the same standards as they will to the Colorado law.

Read more from the original source:
The right loves First Amendment rights. But only when it applies to them. - LGBTQ Nation

Palin is expected to continue her fight, but given that the judge and jury sided with The Times, her appeal has been characterized as an uphill battle. What different strategies and/or new evidence would her legal team need to introduce to succeed in the court of appeals?

Ironically, a loss may have been exactly what Palin was going for. The judge and jury almost certainly got the result correct under the protective standard of Sullivan, which protects reporting about public figures unless journalists are reckless or intentionally wrong in their reporting. But judges and scholars are increasingly questioning whether Sullivans standard is too protective, and Palin could not have appealed a victory. She needed a loss in order to appeal up the chain of the courts, with hope of getting to the Supreme Court.

If she were to make it to the Supreme Court, how would you characterize Palins chances?

At least two of the current justices, Clarence Thomas and Neil Gorsuch, have indicated that they believe Sullivan should be overturned. Their point is that with the expansion of modern news, Sullivan is too protective of falsehood. I am not sure, however, where Palin could find three more votes to reverse Sullivan. One vulnerable aspect of the law is that the protective standard applies to reporting about any public figure, even those who do not intentionally thrust themselves into the public eye. (Justice Elena Kagan even made such a point in a law review article before she was on the court.) That is not Palin. I think the chance of overturning, or limiting Sullivan is higher in a case in which the plaintiff is more of an I-just-got-caught-up-in-a-public-controversy kind of person.

Some observers and commentators have expressed concern that any Supreme Court change to the Sullivan precedent would have significant detrimental effects on press freedoms. How would you characterize those prospective changes and their respective impact?

Compared to other modern democracies, our standards for libel are much more protective of journalists. There is little doubt that when Sullivan was decided, it was a crucial decision that led to a robust, vibrant journalistic culture. One prominent First Amendment scholar said at the time that Sullivan was occasion for dancing in the streets. But also true is that the Sullivan standard does not deter carelessnessonly recklessness or worseon the part of journalists. When I teach Sullivan, my students and I discuss how a legal rule that under-deters carelessness will increase the amount of carelessness in the system. And more carelessness leads to more falsehoods. In the end, it comes down to a choice between (1) a legal framework that protects journalists at the cost of more falsehoods or (2) a framework that restricts journalists but has fewer falsehoods.

Critics of the outcome have cited that there were no repercussions for James Bennet, who wrongly accused Palin of inciting the murders of six people, and his false accusation was then widely distributed through the papers multiple channels. Why should Sullivan allow this to happen without any penalties for the author? Are the protections for journalists afforded by Sullivan too broad and do they need to be revised?I am of the mind that a good amount of our free speech jurisprudence could use some updating. We in the United States have more protections of speech than any other country at any time in history. I would, for example, rethink the level of constitutional protections provided for corporate speakers, for campaign expenditures, and for violent or injurious speech, among other things. And I do think that reasonable people can disagree about the proper level of protection afforded journalists, especially since journalists now include everyone from reporters at The New York Times to social media influencers on TikTok. We live in a world created in part by Sullivan: a vibrant, pulsing world of news and commentary bombarding us constantlymuch of which contains falsehoods.

Phil Gloudemans | University Communications | March 2022

Excerpt from:
Palin v. the First Amendment: what next? - Boston College

In this episode, I speak with Sahar Aziz, author, and Professor of Law at Rutgers Law School. Sahar shares how she first became interested in her book, The Racial Muslim. She details some historical examples of how the books hypothesis is supported and discusses how far back the ideas go. Sahar also talks about the dichotomy between belief in the First Amendment and how that squares away in modern political discourse with the reality of how Muslims are treated.

The Jabot podcast is an offshoot of the Above the Law brand focused on the challenges women, people of color, LGBTQIA, and other diverse populations face in the legal industry. Our name comes from none other than the Notorious Ruth Bader Ginsburg and the jabot (decorative collar) she wore when delivering dissents from the bench. Its a reminder that even when we arent winning, were still a powerful force to be reckoned with.

Happy listening!

Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email herwith any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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Law Professor On The Dichotomy Between The First Amendment And The Reality Of How Muslims Are Treated - Above the Law

Thanks to Eugene for inviting me to guest-blog about my new book, The United States of Anonymous: How the First Amendment Shaped Online Speech.

For more than a half century, U.S. courts have held that the First Amendment provides a right to speak and associate anonymously. Courts have applied this right to the Internet and found a robustthough not absoluteability for people to control the identifying information they reveal online.

Anonymity is deeply rooted in the constitutional values and social norms of the United States. Anonymity has allowed speakers to communicate unpopular political viewpoints, whistleblowers to expose their employers' illegal schemes or ineptitude, and citizen journalists to document corruption and fraud. Anonymity is also employed for nefarious uses, such as defamation, persistent harassment, and online crimes.

The longstanding U.S. tradition of anonymous speech has enabled Americans to often separate their identities from the words that they communicate. In my book, I examine how the First Amendment protections, combined with technology that prevents identities from being associated with online activities, have created a culture of anonymity empowerment.

Anonymity is the "condition of avoiding identification," as David Kaye, the former United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, wrote in 2015. What does it mean to empower anonymity? Does anonymity empowerment simply mean allowing people to hide their names when they post thoughts online?

My conception of anonymity empowerment is broad. Anonymity empowerment allows people to control what, if any, details about their identity to reveal. It includes, but goes beyond, merely separating a person's name from that person's speech; anonymity empowerment includes the protection of details that could increase the likelihood of the speaker being identified.

The culture of anonymity empowerment includes both true anonymity, when no identifiers are linked to expression, and pseudonymity, when speech or activity is associated with a pen name that does not directly identify the author but stays with that person over time.

The book first explores the origins of the American right to anonymity, dating back to England and the colonies. The nation's Founders made their case for independence and the Constitution in part by circulating anonymous pamphlets and writing inflammatory newspaper columns under pseudonyms. With that history in mind, the U.S. Supreme Court has recognized a qualified right to anonymous speech, striking down laws that require the NAACP to disclose its membership lists and prohibitions on the circulation of anonymous political writings.

The book then examines how courts have applied these First Amendment anonymity values to the Internet. Beginning in the 1990s, companies tried to use the court system to unmask people who criticized their business practices on online bulletin boards (and, if the posters turned out to be employees, they often would be fired). Judges gradually developed a process, rooted in the First Amendment, by which they only would order online service providers to reveal identifying information if the plaintiffs had a particularly strong case and satisfied other requirements. The right to anonymity exists in some other countries, but is especially strong in the United States. These legal rights, however, are not the only protections for anonymity. For instance, Tor, based on a technology developed by the Naval Research Laboratory in the 1990s, allows people to protect their online anonymity. Technology such as Tor, coupled with the First Amendment anonymity safeguards, have fostered substantial protections for those who wish to separate their online words from their identities.

The book considers how these robust online anonymity protections shape everyday life in the United States. The culture of anonymity empowerment in the United States has enabled citizen journalists to challenge the powerful in ways they never would have been able to do under their real names. Anonymity also has been a tool in some substantial harms, such as people who ruin the lives of innocent people hiding enough of their identifying information to at least temporarily avoid prosecution.

Finally, the book contemplates how to continue to empower anonymity. The First Amendment addresses government intrusions on free speech; its anonymity protections, like the other First Amendment safeguards, generally do not restrict the voluntary actions of private companies. Some platforms require their users to operate under their real names. And technological advancements have not only led to anonymity protections, but also to increased surveillance by the government and the private sector, often making anonymity empowerment harder. Technologies like facial recognition and geolocation allow companies to have unprecedented access to information that often can easily identify a speaker. Thus, I argue that to continue the U.S. tradition of anonymity empowerment, lawmakers should supplement the First Amendment protections and anonymity technology with robust privacy laws that restrict the ability of private parties and the government to collect, use, and share identifying information.

I ultimately conclude that we must preserve and improve upon the culture of anonymity empowerment, even though the equities are more complex than ever. It is difficult to imagine the American conception of free speech surviving without robust anonymity protections. I do not argue for absolute anonymity protections; even if such a goal were achievable, in extraordinary circumstances we should pierce the veil of anonymity.

Given the wide range of online harms, it might be tempting to call for an end to online anonymity, such as by imposing real-name requirements that other countries have adopted. I agree with free speech expert Jillian York, who has called such proposals the "White Man's Gambit." LGBT teenagers, domestic abuse survivors, and other vulnerable groups often are the ones that rely most on anonymity and pseudonymity, York wrote.

The second post will examine the historical context for anonymous speech. The third post will explore one of the first cases in which the Supreme Court recognized a right to anonymous speech. The fourth post will describe how courts have applied anonymous speech rights to the Internet. And the fifth post will consider the future of anonymous speech, and the need for more robust privacy laws that incorporate anonymity values.

Excerpt from:
The United States of Anonymous - Reason