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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).

More:
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

Somerset State Rep. Shane Baker's bill that would prevent religious organizations from being discriminated against during a state of emergency has just one final hurdle: A vote from the full Senate.

House Bill 43 passed the Senate State and Local Government Committeeon a 10-1 vote on Thursday.

"I really feel good about (the bill's) final passage," Baker said after the committee vote. "But I will breathe easier when they add it to their calendar."

Baker told the committeethe bill is in response to the shutdown of churches and other religious organizations in 2020, as the scourge of COVID-19 crept across the nation.

The bill does a couple of simple things, he said. No. 1, it says that churches and religious organizations should be treated in the same manner as other essential organizations during times of emergency.

The bill would also prevent the state from taking adverse action against a religious organization simply for being religious. Additionally, it would codify recent Supreme Court decisions, which make clear that free exercise rights are fundamental, and that governments cant treat religious organizations more adversely than other groups, Baker said.

Basically, it would make churches "essential" in the face of another emergency, such as the pandemic. Kentucky Gov. Andy Beshear tried to close houses of worship during the crisis but courts have deemed that measure unconstitutional.

The governors executive order specified houses of worship, churches were to be shut down, Baker said. There was also a list that was released that talked about essential entities, which included home improvement centers, grocery stores, gas stations, banks liquor stores were included in there, oddly enough but churches were shut down.

"You go to the grocery store and these other places and they are deemed essential," Baker added. "If you can visit those safely you can also go to church safely."

The bill also allows religious organizations to bring a lawsuit if they have been discriminated against, he said.

David Walls, executive director of The Family Foundation, offered supportive comments on the bill to the Senate committee.

Its vitally important that we ensure churches and other religious organizations receive at least equal treatment during an emergency, and that the state is not allowed to discriminate against them on the basis of them being a religious organization, he said.

Baker saidBeshear's order was a violation of First Amendment rights the U.S. Constitutional amendment that states government cannot make laws respecting an establishment of religion, or prohibiting the free exercise thereof.

The First Amendment obviously protects our religious liberties, and its a clear violation to shut the church down, he said.

He added that there are a number of functions churches fulfill in society that many consider essential. Not only does it offer a place for people to gather for worship, but it also offers a lot of ways to meet needs, such as providing ministry, food and clothing to those in need.

He also said the church provided a needed way for many elderly residents widows and widowers to socialize, where it might be the only time during the week that they leave their homes.

Sen. Christian McDaniel, R-Taylor Mill, voted for the measure, but expressed concerns about unintended consequences.

You are opening up for interpretation with this, what is actually constituted as religious expression and a right of action against the state that currently exists. I think that we may be opening ourselves up to some unintended consequences that have not been thought through very well with this," McDaniel said. "Im going to vote aye because Im with you on the issue, but I think we have the potential to be heading into some dangerous territory here."

"We have the votes to pass it in the House, and I have no doubt the Senate would have the votes to pass it there, Baker said. The question is, do we understand the need for it to make this a priority to move this forward.

Rep. Kelly Flood, D-Lexington, voted no on the bill when it came before the House, stating in a news release she is not endorsing a bill that says it's ok to break civil rules in emergencies.

"I'm saying that we are not breaking civil rules," Baker insisted. "We are supporting our constitutional rights."

House Bill 43 passed the House 83-12 with support from both Democrats and Republicans.

We are making critical coverage of the coronavirus available for free. Please consider subscribing so we can continue to bring you the latest news and information on this developing story.

See the original post here:
Baker's bill making churches 'essential' passes another hurdle - Commonwealth Journal's History

From secrecy in hiring presidents at state universities and community colleges to knowing about key information about companies that make and supply drugs used in executions, lawmakers continued to keep Florida residents in the dark in the 2022 session.

Floridas First Amendment Foundation this week published a post-session report on what did or didnt get done for Floridians when it comes to public records and public meetings.

The Legislature enacted 25 exemptions new or reinstatements related to whats called the Open Government Sunset Review Act. (While the Legislature approved the exemptions, they would need to be approved by Gov. Ron DeSantis.)

The foundation noted that while several bills will limit public access to government information, some particularly bad bills died. The legislature failed to pass bills that would limit access to law enforcement investigative records and autopsy reports of minors.

That said, many bills were flying through committees without question or opposition during the session, according to the foundation.

DeSantis already approved SB 520 on Tuesday, the legislation that would make presidential searches confidential for applicants, at first, at state universities and community colleges. The final group of candidates would later become public.

The foundation wrote that: For as long as this bill has been debated, proponents have argued that secrecy is necessary to have the largest pool of qualified candidates possible. However, Florida has selected presidents in leadership positions from top universities. The pool of candidates may be broader with secrecy candidates who fear scrutiny and public vetting can apply. Data from other states makes clear that secret searches lead to the hiring of more insider candidates and political appointeesHow secrecy will lead to more transparency will be scrutinized in the search for president at four Florida universities.

Other exemptions in the foundations report include:

/Information that could reasonably lead to identification of a person or entity participating in any aspect of an execution. This legislation will prevent the public from knowing the reputability and safety records of the companies making and supplying the drugs used in executions. The bill misleads the public and drug manufactures who dont want their products used in lethal injections from discovering the states use of the drugs in executions.

/A last-minute bill will limit the publics access to legal notices.

/Requires a clerk of court, upon written request, to keep all official records separate and out of public view in a proceeding involving a family trust company, licensed family trust company, or foreign licensed family trust company. Makes confidential and exempts court records defined as the docket, all filings, and other records of such cases.

The foundation wrote: This legislation is counter to the long tradition of open access to court proceedings in our state and country.

You can see other exemptions in the foundation report here.

More here:
Floridians in the dark as secrecy abounds following the 2022 legislative session - Florida Phoenix