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If a television network could cry crocodile tears, that would be Fox News wailing that the $1.6 billion defamation lawsuit it faces for spreading lies about the 2020 presidential election is an attempt to trample on free speech and freedom of the press. Fox is being sued by Dominion Voting Systems for airing false allegations that the companys machines were linked to widespread election fraud; another suit, by the electronic voting company Smartmatic, is close on its heels. So you can see why network honchos would be clinging to First Amendment protections. A generous interpretation of the nations laws regarding libel the written or broadcast form of defamation is the only thing that can save Fox news from itself now.

A trial in the Dominion case is slated for next month in Delaware, and I hope the parties resist the temptation to settle out of court. Fox should be brought to justice, not just because the networks outrageous behavior is a blot on all responsible journalism but because a finding against the media giant would, paradoxically, vindicate Times v. Sullivan, the bedrock First Amendment case that has protected the press from frivolous libel claims for nearly 60 years.

To review: The 1964 Times v. Sullivan case establishes the circumstances under which the media can be held responsible for libel of a public figure (or in this case, a public company). These include deliberately and knowingly reporting damaging falsehoods with a reckless disregard for the truth.

Antagonists of a robust free press have had Times v. Sullivan in their crosshairs for years, saying the protections it offers are too sweeping. In 2019 Supreme Court Justice Clarence Thomas issued a broadside against the decision, saying it sets an impossible standard for aggrieved plaintiffs to meet. Justice Neil Gorsuch also has opined that it has evolved into an ironclad subsidy for the publication of falsehoods.

But recently unsealed court filings suggest Fox News practiced reckless disregard with abandon in the weeks after the 2020 election. The trove of documents show that Fox officials, from chairman Rupert Murdoch on down, knew that the election fraud claims pushed by allies of former president Donald Trump were false but broadcast them anyway. On-air celebrities privately derided the claims and their sources Rudy Giuliani, Sidney Powell, and other conspiracy mongers as nonsense and mind-blowingly nuts while giving them ample airtime. The programming continued even as the theories were debunked by fact-checkers. Fox reporters in the news division who held on to a shred of ethics were scolded for casting doubt on the Big Lie.

Fox defends its broadcasts as merely relaying what newsworthy individuals were saying about the election, even if the statements were outlandish. And some Fox hosts did express skepticism about the fraud claims on the air. But the documents show that Fox executives were reeling from the backlash among their viewers for having called Arizona (correctly) for Joe Biden on election night. The actions Fox News took to placate Trump allies and stop the hemorrhaging of viewers to competing networks are just the sorts of behaviors Times v. Sullivan identifies as not defensible.

The argument has been that New York Times v. Sullivan has gone too far and the liberal press has no limits, Harvards constitutional law professor Laurence Tribe said in an interview. If Fox loses the defamation case, he said, it would demonstrate the utter falsity of the narrative that Times v. Sullivan is an unfettered license to spread libelous lies. A finding against Fox, in other words, would prove the system works and Times v. Sullivan need not be weakened or overturned.

It may be too much to hope for, but a loss for Fox also could be a warning to other media outlets about the risks of circulating disinformation, possibly tamping down the contagion of lies and conspiracy theories that have so poisoned the public discourse in this country.

In a 2016 campaign speech in Texas, then-candidate Donald Trump pledged to gut constitutional protections for the news media.

Were going to open up the libel laws, he said to cheers, so when they write purposefully negative and horrible and false articles, we can sue them and win lots of money. The irony is rich because in this case it is Trump and his allies at Fox News who are charged with saying negative and horrible and false things about Dominion. And recovering lots of money may not require changing the libel laws at all.

Rene Loths column appears regularly in the Globe.

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A loss for Fox would be a win for the First Amendment - The Boston Globe

A traveling Christian street preachers civil rights case against the University of Alabama, in which the evangelist alleges college officials abridged his First Amendment right by telling him to leave a sidewalk near the campus while evangelizing without a permit, was refused by the U.S. Supreme Court on Monday.

The appeal from Rodney Keister, a Pennsylvania-based preacher and founder of Evangelism Mission, was turned away by justices yesterday, reaffirming the 11th U.S. Circuit Court of Appeals decision last year in rejecting his claim that the university violated his First Amendment rights by telling him and others to leave a sidewalk near the universitys Quad, where he was passing out evangelical literature and preaching through an amplifier.

Whether officials with a public university, like the University of Alabama, could control speakers unaffiliated with the university on their campus by use of a permit system was the legal question at the heart of the case.

Alabamas grounds use policy requires individuals to seek a permit before such activities, which Keister did not obtain prior to the day in question. Officials from the university at the time said to Keister that he needed the permits, eventually telling him to move to the corner of University Boulevard and Hackberry Lane and later off the campus.

In 2017, Keister filed his first civil rights lawsuit against the university, indicating that the sidewalk he preached from was considered a traditional public forum and therefore enjoyed significant protections under the First Amendment. That original suit was rejected by the U.S. Supreme Court in 2018, with Keister filing a second and amended lawsuit in 2019.

After a federal judge the following year ruled in favor of the university, the 11th U.S. Circuit Court of Appeals agreed with the lower courts decision in determining that the sidewalk in question was considered a limited public forum which did not have the same constitutional protections for speech as a traditional public forum.

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SCOTUS rejects street preacher's First Amendment case against the University of Alabama - Alabama Political Reporter

The co-hosts of ABCs "The View" took up the topic of Fox News coverage during a recent show specifically its coverage of former President Donald Trumps false assertions that the 2020 election was fraudulent and its reports about the Jan. 6, 2021, attack on the U.S. Capitol.

Co-host Whoopi Goldberg asked why Foxs coverage isnt considered tantamount to "recruiting" and "radicalizing."

Another co-host, off-camera, responded, "It's the First Amendment."

Goldberg countered, "The First Amendment doesnt allow you to willingly lie."

A reader asked us to look into whether Goldberg was right on the constitutional question. Legal scholars told us that she is mostly off base.

The current page does not support this embedded media. To view this story with fully functioning media, please visit this page on our full site.

"Lies, including knowing ones, do not lose First Amendment protection simply for their untruth," said Howard M. Wasserman, a law professor at Florida International University.

A spokesperson for "The View" did not respond to PolitiFacts inquiry.

Some carve-outs from constitutional protections for lying

Experts said that for some types of speech, lying is not constitutionally protected, but these are relatively narrow exceptions. Examples include:

For the most part, lying is protected speech

Beyond these categories, though, everyday lying has generally been found to be protected by the Constitution.

"Five of the justices agreed that lies about philosophy, religion, history, the social sciences, the arts, and the like are generally protected," said Eugene Volokh, a UCLA law professor.

Volokh said that a separate holding of the Sullivan case was that "even deliberate lies, said with actual malice, about the government are constitutionally protected."

State-level laws targeting false political speech have also run into turbulence in the courts.

In 2016, an appeals court ruled unconstitutional an Ohio law that prohibited the dissemination of false information about a political candidate in campaign materials during the campaign season. The decision said that the law amounted to "content-based restrictions targeting core political speech that are not narrowly tailored to serve the states admittedly compelling interest in conducting fair elections."

A major reason for protecting lies, experts said, is that the government will not necessarily be an honest judge of what is truth and what is a lie. Volokh said there is continuing concern among jurists about following in the path of the Sedition Act of 1798, a law that banned malicious lies about the government.

Wasserman agreed. "We do not want to empower the government to decide what is truth," he said. "It would be too easy to label certain political opinions or framings as untrue and subject to government silencing."

A broadcaster like Goldberg benefits significantly from protections for lying, Ligon said.

"Talk show hosts are often given leeway, consistent with the First Amendment, when it comes to their speech, in part because they are understood to be entertainers," Ligon said.

Ligon said that both Tucker Carlson on the right and Rachel Maddow on the left "have successfully defended defamation claims."

The court ruled that the statement was "obvious exaggeration, cushioned within an undisputed news story." The ruling went on to say that Maddows statement was "well within the bounds of what qualifies as protected speech under the First Amendment. No reasonable viewer could conclude that Maddow implied an assertion of objective fact."

PolitiFact ruling

Goldberg said, "The First Amendment doesnt allow you to willingly lie."

For the vast majority of speech, the First Amendment considers lies to be protected speech.

There are exceptions to this general rule, but they are limited. In libel and incitement cases, for instance, the judicial bar for proving harm is high, meaning that most types of political speech cannot be challenged successfully in court.

We rate the statement Mostly False.

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Fact check: Goldberg says the First Amendment 'doesn't allow you to willingly lie' - WRAL News

Members of an organization whose members have doxxed a University of Maryland, Baltimore County student and her father are suing university staff members.

The group alleged in a Friday filing that its First Amendment rights were violated after a federal court barred it from protesting in several areas around the country earlier this year, which prompted UMBC to prohibit the group from reserving campus spaces for demonstrations.

Doxxing occurs when someones personal information is published without permission, often with the intent of causing harm.

The group has held demonstrations at UMBC since late last year, handing out flyers featuring the UMBC student and her father while displaying signs and U.S. and New Federal State of China flags. The group also made many online posts about the student, her father and their family, sometimes taking pictures and videos of their residences.

The New Federal State of China, which says it opposes the Chinese Communist Party, is an organization created by exiled Chinese businessman Guo Wengui and conservative strategist Steve Bannon, who advised former President Donald Trump. The group believes the students father is a member of the Chinese Communist Party.

A U.S. Bankruptcy judge in Connecticut barred the group in January from engaging in protesting, picketing, parading or distributing harassing material at any time in the vicinity of several locations, including in Baltimore.

Jian Wyatt, Hao Li, Yudong Zhang and Li Chen, the plaintiffs in Fridays filing, are suing University of Maryland President Darryll Pines, UMBC Campus Life Operations Director Joel Dewyer, UMBC Chief of Police Bruce Perry, the UMBC student and her father in the U.S. District Court for Maryland. Theyre asking for a jury trial, as well as punitive and compensatory damages.

The lawsuit says Pines is being sued in an official capacity as president of the University of Maryland. Pines does not oversee UMBC.

The plaintiffs claim they have demonstrated at UMBC since early December and that Dewyer knew a UMBC student and her father were the subject of the peaceful protests. They paid to reserve the UMBC Commons area by Dewyers recommendation, according to the lawsuit. The plaintiffs argue it is their duty to share their distaste toward the UMBC student, her father and the Chinese Communist Party.

The plaintiffs also argue that the January injunction does not pertain to them. The injunction related to Wenguis finances but states that anyone in active concert or participation with him is affected, including the New Federal State of China.

The University of Maryland, Baltimore County (Algerina Perna / Baltimore Sun)

The plaintiffs said they applied for another permit to protest in January but were told they could no longer hold signs, distribute flyers or stream their events online. They said they were asked to conduct their activities at a distance from the UMBC Commons.

The lawsuit states that on Feb. 3, police officers arrived at one of the protests and told the plaintiffs to cease all demonstrations and leave the Commons. The plaintiffs were then told they could exercise their First Amendment rights in a different, more secluded campus area. Meanwhile, the plaintiffs argue, Dewyer granted the plaintiffs their requested permit, which cost $950, and they were told they could resume protesting Feb. 6 at the Commons.

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The plaintiffs allege the UMBC student they doxxed made demand to the administration of the university to stop the plaintiffs and the other protestors, according to the lawsuit.

The plaintiffs said that two U.S. marshals appeared Feb. 7 and delivered the January federal injunction during another protest at the Commons. Afterward, the plaintiffs said Perry and other officers ordered the protesters to leave immediately.

Protesters resumed later that afternoon, when UMBC police officers again told plaintiffs to cease their protests, threatening arrest if they did not comply. The plaintiffs argue that the officers were not federal enforcement agents. The plaintiffs permit to protest was revoked that evening.

Plaintiffs said they returned to the UMBC Commons Feb. 8 and were asked to leave by UMBC police officers, who were present prior to their arrival.

UMBC did not respond to multiple requests for comment.

Baltimore Sun reporter Lee O. Sanderlin contributed to this article.

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Doxxers sue University of Maryland, Baltimore County staff, say First Amendment rights were violated - Baltimore Sun

From yesterday's opinion by Judge Greg Kays (W.D. Mo.) in Stock v. Gray:

This lawsuit arises from the State of Missouri enacting a law forbidding pharmacists from contacting a prescribing doctor or patient "to dispute the efficacy of ivermectin tablets or hydroxychloroquine sulfate tablets for human use" unless the doctor or patient asks the pharmacist about these drugs' efficacy first. Mo. Rev. Stat. 338.055.7 (2022) (emphasis added). Under the law, a pharmacist who violates the statutefor example, by on her own initiative alerting a doctor or patient that the FDA has not approved either drug to treat a particular diseasemay face disciplinary action, including the potential loss of her license. On the other hand, a pharmacist who on her own initiative contacts a doctor or patient to tout the efficacy of either drug for a purpose the FDA has not approved faces no such sanction.

Holding the law unconstitutionally restricts Plaintiff and other pharmacists' speech on the basis of their viewpoint [plaintiff's motion for a preliminary injunction] is GRANTED.

Plaintiff is likely to succeed on the merits because the second sentence of 338.055.7 infringes the free speech rights of Plaintiff and other Missouri-licensed pharmacists by threatening to impose liability based on the viewpoint of their speech. The statute prohibits pharmacists from initiating contact to express a particular view, namely, a view disputing the efficacy of the drugs. It does not prohibit pharmacists from initiating contact to tout, endorse, or acclaim the drugs, thus it is taking sides in a politically charged debate about the drugs efficacy. This is viewpoint discrimination, which is fatal to the statute's constitutionality.

Defendants' arguments that the statute does not engage in viewpoint discrimination is thoroughly unpersuasive. Defendants suggest the statute is not viewpoint discrimination because it regulates conduct, not speech. This argument is unavailing because the statute does not prohibit initiating contact with patients or doctors (a regulation of conduct). Nor does it prohibit initiating contact with patients or doctors to speak on any matter at all (a content-neutral regulation of speech). Nor does it prohibit initiating contact with patients or doctors to talk about a particular subject matter, such as any discussion of either drug (a content-based regulation of speech). Rather, the provision bans initiating contact only if the contact is to express the viewpoint that the drugs are not effective for human use. Hence, it is viewpoint discrimination.

Defendants' other claimthat the statute's ban on contacting a patient to "dispute the efficacy" of the drugs is not a ban on a viewpoint doubting effectiveness, but rather a ban on pharmacists engaging in arguments about the effectiveness of these drugs generallyis even less persuasive. Defendants argue "[d]isputing the efficacy of these drugs can involve either promoting or discouraging use of these drugs." Thus, according to Defendants, "the statute says pharmacists cannot initiate an argument with patients and physicians."

As a threshold matter, this argument defies common sense. A pharmacist calls a patient or prescribing doctor to alert them to a potential problem with a prescription. For example, a pharmacist may call the prescribing doctor to alert him that a widely used drug is no longer recommended because of new information about side effects, or he may call a patient to warn about a potential drug interaction. A pharmacist does not call to applaud a doctor for prescribing a drug or congratulate a patient for taking one. This being the case, Defendants' claim that the legislature has enacted a law barring a pharmacist from calling a doctor or patient to tout a drug is hard to swallow.

More importantly, Defendants' argument is inconsistent with the plain meaning of the statute. The relevant part of the statute at issue here reads: "A pharmacist shall not contact the prescribing physician or the patient to dispute the efficacy of ivermectin tablets or hydroxychloroquine sulfate tablets for human use unless the physician or patient inquires of the pharmacist about the efficacy of ivermectin tablets or hydroxychloroquine sulfate tablets." The plain and ordinary meaning of this sentence is that a pharmacist cannot initiate contact with a doctor or patient to tell them that ivermectin or hydroxychloroquine does not work in humans unless the doctor or patient first asks the pharmacist whether it works. This interpretation is confirmed by a common definition of "dispute," which is "to question the truth or validity of; doubt." It also dovetails with the purpose of the prior sentence (which the legislature enacted at the same time) which prohibits the Board from taking any action against a pharmacist who dispenses ivermectin or hydroxychloroquine. Finally, this reading is consistent with the legislature's apparent purpose in enacting 338.055.7 as a whole: to insulate ivermectin or hydroxychloroquine from criticism.

Thus, the Court concludes "to dispute the efficacy" means to question the validity of, or doubt, the drugs' effectiveness. And because the statute only prohibits criticizing the efficacy of the drugs, it engages in viewpoint restriction.

Since the statute engages in viewpoint discrimination, that is the end of the matter.6 Iancu v. Brunetti (2019) (holding the Lanham Act's bar on the registration of "immoral" or "scandalous" trademarks discriminates on the basis of viewpoint and so violates the First Amendment, noting "[t]he Court's finding of viewpoint bias end[s] the matter."). "The government may not discriminate against speech based on the ideas or opinions it conveys." "Discrimination against speech because of its message is presumed to be unconstitutional." Rosenberger v. Rector & Visitors of Univ. of Va. (1995). Government restrictions "based on viewpoint are prohibited." Minn. Voters All. v. Mansky (2018). {The Court recognizes both parties have raised additional First Amendment arguments, but the Court need not consider them because its holding that the statute engages in viewpoint discrimination is dispositive.}

Congratulations to Adam E. Schulman (Hamilton Lincoln Law Institute) and local counsel Jonathan R. Whitehead, who represent plaintiff. Here's what I wrote about the law when it was enacted; this seems to me consistent with the court's opinion, though the court came to the result through a different path:

Seems to me like [the law is] an unconstitutional speech restriction. To be sure, the government may restrict professional-client speech in some situations where it can't restrict it in other contexts. (Consider the fact that some speaking professions, such as psychotherapy, may require a license in the first place, or that giving negligent professional opinions or predictions to a client may be malpractice even if a newspaper columnist or blogger can't be sued for such speech.) Nonetheless, courts have recognized that professional-client speech is indeed entitled to considerable constitutional protection, see, e.g., Wollschlaeger v. Governor(11th Cir. 2017) (en banc). To quote the Supreme Court's opinion inNIFLA v. Becerra (2018),

The dangers associated with content-based regulations of speech are also present in the context of professional speech. As with other kinds of speech, regulating the content of professionals' speech "pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information."

Take medicine, for example. "Doctors help patients make deeply personal decisions, and their candor is crucial." Throughout history, governments have "manipulat[ed] the content of doctor-patient discourse" to increase state power and suppress minorities:

"For example, during the Cultural Revolution, Chinese physicians were dispatched to the countryside to convince peasants to use contraception. In the 1930s, the Soviet government expedited completion of a construction project on the Siberian railroad by ordering doctors to both reject requests for medical leave from work and conceal this government order from their patients. In Nazi Germany, the Third Reich systematically violated the separation between state ideology and medical discourse. German physicians were taught that they owed a higher duty to the 'health of the Volk' than to the health of individual patients. Recently, Nicolae Ceausescu's strategy to increase the Romanian birth rate included prohibitions against giving advice to patients about the use of birth control devices and disseminating information about the use of condoms as a means of preventing the transmission of AIDS." [Paula] Berg, Toward a First Amendment Theory of Doctor-Patient Discourse and the Right To Receive Unbiased Medical Advice, 74 B.U.L. Rev. 201 (1994).

Further, when the government polices the content of professional speech, it can fail to "'preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.'" Professionals might have a host of good-faith disagreements, both with each other and with the government, on many topics in their respective fields. Doctors and nurses might disagree about the ethics of assisted suicide or the benefits of medical marijuana; lawyers and marriage counselors might disagree about the prudence of prenuptial agreements or the wisdom of divorce; bankers and accountants might disagree about the amount of money that should be devoted to savings or the benefits of tax reform. "[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market," and the people lose when the government is the one deciding which ideas should prevail.

Seems to me to fully apply to the ban on pharmacist speech here. A state legislature may of course ban pharmacists' from refusing to dispense prescribed drugs. But it may not ban pharmacists from merely speaking about such drugs by disputing their efficacy (at least unless the ban is limited to opinions that would qualify as incompetent medical advice, and nothing in the statute so limits the ban).

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Law Restricting Pharmacist Speech About Ivermectin and Hydroxycholoroquine Likely Violates the First Amendment - Reason