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The Foundation for Individual Rights in Educationisnt satisfied with UNC-Chapel Hills answers to lingering questions about the schools investigation of a leaked donor agreement.

Earlier this month, Policy Watch reported the investigation into the schools contract with mega-donor Walter Hussman included reading faculty e-mails and questioning professors who have been critical of the Arkansas publisher and alumnus, who pledged $25 million to the schools journalism school in 2019.

Hussmans behind-the-scenes lobbying against the hiring of acclaimed journalist Nikole Hannah-Jonesdrew new attention to his influence at the university and was a major factor in Hannah-Jonesturning down an eventual tenure offer from the school and instead going to Howard University. When the donor agreement between Hussman and the school was published by the News & O

bserver, the school launched an investigation into the leak.

As part of the ongoing investigation, faculty have been made aware that the contract was on the schools server Database for Advancing our Vision of Institutional Excellence (DAVIE) server for months, where hundreds of people would have potentially had access to it.

FIRE previously questioned why the investigation appeared to be centering on professors who had been critical of Hussmans behavior and the school allowing him access to a confidential hiring process. Those faculty members do not appear to have had access to the contract of the server on which it was available.

In a new letter this week, FIRE said the schools explanation that it has an interest in investigating leaks to keep such agreements confidential is inadequate.

From that letter:

Assuming that the disclosure of the Hussman donor agreement did, in fact, breach university policy, an investigation into this alleged policy breach should be reasonably limited to those who had actual access to the disclosed document before its disclosure to the Raleigh News & Observer. Here, UNC has instead reportedly targeted faculty members, including journalism professors Deb Aikat and Daniel Kreiss, who did not have regular, pre-disclosure access to the Hussman agreement, as explained in our letter of August 4.

The breadth of UNCs search of faculty email accounts has not only violated its own policy, but it has also imperiled academic freedom and individual privacy.

First, UNCs probe into the email accounts of those who had no pre-disclosure access to the Hussman agreement is not reasonably necessary to acquire the information needed to investigate that disclosure. To the extent an email probe was necessary at all, an investigation targeted at that which is reasonably necessary instead would focus on, for example, the administrators, development personnel, or administrative staff who had actual access to the document in question in UNCs Database for Advancing our Vision of Institutional Excellence (DAVIE) before the document was disclosed to the News & Observer.

Second, UNCs probe will cause a chilling effect on faculty speech and academic freedom. In addition to the chill already caused by UNCs inquiry and its requests to meet with certain outspoken faculty members, as discussed in our previous letter, faculty will now experience further chill, knowing that their emails are potentially being monitored by university administrators. This chill will not only affect conversations critical to the university, but will also affect conversations related to research and pedagogy.

Research and pedagogyissues at the core of the traditional right to academic freedomoften cover controversial topics, and faculty members may fear retaliation if universityadministrators have access to personal notes and conversations related to academic pursuits.

It continues to appear that UNC has targeted outspoken faculty, including Kreiss and Aikat, not because it credibly believes these professors were involved in disclosure of the Hussmanagreement, but because they publicly criticized the university. As explained in our previous correspondence, nothing indicates Kreiss or Aikats criticism was based on access to confidential information not already obtained by the media.

Read the full letter here.

In the letter, FIRE asks for more information about how the investigation is being conducted, including whether those with access to the DAVIE server were interviewed. The group has asked for a response by August 25.

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Free speech group: Ongoing UNC leak investigation violates First Amendment, creates "chilling effect" | The Progressive Pulse - The...

On Aug. 8, a federal judgeagreedto halt enforcement of a Florida law that prohibits businesses from requiring patrons or customers to provide any documentation certifying COVID-19 vaccination or post-infection recovery to gain access to, entry upon, or services from the business operations in this state. The company that owns Norwegian Cruise Line brought the claim, arguing, among other things, that the law violates the First Amendment.

While the case may seem attenuated from both media law and technology, it actually grapples with an emerging issue weve been covering the extent to which nominally economic regulations that unduly burden protected speech are constitutional. That question wasfront-and-centerin the Trump administrations efforts to use emergency economic powers to shutter the communications platforms TikTok and WeChat by effectively prohibiting other businesses from providing them certain services.

The cruise line decision, by Judge Kathleen M. Williams of the U.S. District Court for the Southern District of Florida, is a pretty by-the-book application of First Amendment doctrine. She first determines that the law is content-based because businesses are free to require COVID-19testresults and othernon-COVID vaccination information, among other things.

She then rejects Floridas argument that, because the law only prohibits a single act, conditioning service on presenting a vaccine document, it is merely a bar on business-related conduct, not a restriction on speech. As noted, thats effectively the argument the federal government made in the TikTok case that prohibiting internet services from, for instance, hosting TikTok content, was merely a business-to-business restriction that did not trigger First Amendment scrutiny. (In ourfriend-of-the-court brief, we noted that business-to-business transactions, like buying paper or ink, are a matter of survival for media entities.)

Judge Williams then directly addresses exactly that concern that simply labeling a law as economic regulation could permit the state to disfavor certain types of speech, which has always been of significant concern for press rights, particularly in a string of U.S. Supreme Court cases dealing with discriminatory taxation schemes and beginning with the Huey Long-eraGrosjean v. American Press Co.

By characterizing certain laws as regulation of economic conduct, Judge Williams wrote, laws that restrict bookstores fromsellingbiographies or prohibit video rental shops fromrentingdocumentaries also could evade First Amendment scrutiny under the logic that they merely affect what businesses cannotdo and not what they may or may not say, despite the significant burdens they impose on protected expression.

That is exactly the concern we identified in the TikTok and WeChat cases, and one that continues to percolate in various proposals to regulate content moderation online.

Well continue to follow this one.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy combining the law, policy analysis, and public education to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Mailyn Fidler.

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Cruise ships, COVID, TikTok and the First Amendment - Reporters Committee for Freedom of the Press

Heres where the qualified-immunity jurisprudence really goes off the rails. At one point, courts would follow a two-step process: First, did such a right exist? Second, was that right clearly established at the time? Then, in its 2009 decision in Pearson v. Callahan, the Supreme Court unanimously ruled that the two-step process was no longer mandatory, freeing the lower courts to decide the factors in whatever order they chose. Unsurprisingly, more than a few courts opted to simply figure out whether something was clearly established at the time rather than rule upon the deeper constitutional question. The result, as critics like Judge Don Willett have observed, is not just constitutional stagnation, but a catch-22 process where some rights never get clearly established by federal courts at all.

Thats what the Tenth Circuit opted to do in this case. We do not consider, nor opine on, whether Mr. Frasier actually had a First Amendment right to record the police performing their official duties in public spaces, the panel concluded. We exercise our discretion to bypass the constitutional question of whether such right even exists. In doing so, we are influenced by the fact that neither party disputed that such a right exists (nor did the district court question its existence). And because we ultimately determine that any First Amendment right that Mr. Frasier had to record the officers was not clearly established at the time he did so, we see no reason to risk the possibility of glibly announc[ing] new constitutional rights in dictum that will have no effect whatsoever on the case.

So, heres the end result if the Tenth Circuits decision stands: Since the panel ruled that filming the police wasnt a clearly established right when Frasier did it in 2014, the officers in that encounter will receive qualified immunity and defeat Frasiers civil rights lawsuit. And because the Tenth Circuit declined to clearly establish such a right in this casethanks to the officers litigation tactic to not dispute its existenceother Denver police officers could violate other Coloradans First Amendment right to film them, and then claim qualified immunity again if theyre sued for it. Constitutional stagnation indeed.

Frasier urged the court to reassess how lower courts determine whether something is clearly established and overturn the Tenth Circuits narrow interpretation of it. The qualified-immunity doctrine was created to prevent officers from being held unexpectedly liable based on constitutional rules they neither knew nor should have known existed, he told the court, quoting a 1982 Supreme Court case. The officers here all testified that they knew they were violating [Frasiers] rights. Their training, department policies, and precedent all underscored that reality. Whatever the outer boundaries of qualified immunity may be, this case is far beyond them.

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The Supreme Court Will Decide If the First Amendment Grants the Right to Film Cops - The New Republic

In 2018, the Board of Trustees of the Houston Community College System (HCC), a nine-member elected body that governs a network of community colleges in the greater Houston, Texas, area, officially censured one of its own members for "inappropriate conduct" and for acting in a fashion "not consistent with the best interests of the College or the Board." According to that member, the censure vote caused him mental anguish and violated his right to freedom of speech. The U.S. Supreme Court will hear oral arguments in the matter this fall.

The case is Houston Community College System v. Wilson. David Buren Wilson was an elected member of the HCC Board of Trustees who strongly objected to some of the board's decisions, including the vote to fund a campus abroad in Qatar. He made his displeasure known by speaking out in the local media, publishing a website that cataloged his criticisms, orchestrating a robocall campaign against the HCC, hiring a private investigator to investigate his fellow board members, and suing the board itself. After the board censured him, he also sued on free speech grounds.

In April 2020, Wilson prevailed before a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, which said that "a reprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim."

But that ruling did not sit well with eight other5th Circuit judges, who argued that a full sitting of the court should have reheard the case and reached the opposite result. In particular, Judge Edith Jones, joined by Judges Don Willett, James Ho, Kyle Duncan, and Andrew Oldham, faulted the three-judge panel for turning the First Amendment on its head. "The First Amendment was never intended to curtail speech and debate within legislative bodies," Jones wrote. The HCC board, in other words, had every right to issue "a censure against this gadfly legislator."

As Jones put it, "fellow legislators may strike hard verbal blows, and all's fair when they exercise corporate authority to censure or reprimand one of their members; such actions are not a violation of the First Amendment, but its embodiment in partisan politics."

Ho wrote separately to further emphasize his objections to the three-judge panel's mishandling of the free speech principles involved in the case. "The First Amendment guarantees freedom of speech, not freedom from speech," he wrote. "It secures the right to criticize, not the right not to be criticized." Ho then effectively told Wilson to suck it up and stop being such a crybaby. "Leaders don't fear being booed," he wrote. "And they certainly don't sue when they are."

A majority of the U.S. Supreme Court may well heed those dissenting 5th Circuit voices when the Court considers the case this fall. After all, as the HCC points out in its principal brief, "some public speech by an individual legislator may well provoke a public censure by the body's current majority, speaking in the name of the institution itself. When it does, both statements are part of the cycle of speech and counter-speech that the First Amendment seeks to foster, not constrain."

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Does the First Amendment Shield a Government Official From Being Censured by His Colleagues? - Reason

Edward Si says his First Amendment rights were violated. School administrators say he didn't have the right materials and student government reps didn't communicate.

NORFOLK, Va. An Eastern Virginia Medical School student is suing the school, claiming student government leaders and school administrators violated his First Amendment rights.

In December 2020, Edward Si applied to create a student organization advocating for single-payer healthcare, but he says student government leaders denied it because it was "based on an opinion."

On Tuesday, Si and advocacy group FIRE - The Foundation for Individual Rights in Education - filed a lawsuit in federal court against EVMS.

EVMS student government leaders approved Si's proposed chapter of Students for a National Health Program the next day, on Wednesday.

"I really wanted this club, I believe my rights were violated," Si told 13News Now. "I want to show that we do want to address the issue of healthcare disparities. I believe my organization is in full accordance with the mission of the school and its values, so honestly, I wasn't expecting this."

According to the lawsuit, the Student Government Association denied the student organization by telling Si in an email: "SGA does not want to create clubs based on opinions, political or otherwise, and the mission and goals of your club do not describe what we believe to be necessary or sustainable for a club."

"It wasnt a mistake; I think it was clear they didnt want my viewpoint," Si said. "Quite simply, the debate on healthcare inequality and policy is a political one, you cant avoid the politics within it."

Si then worked with FIRE to talk with school administrators. FIREsent a letter on February 2, arguing: "This viewpoint-based rejection of [Students for a National Health Program] violates EVMSs obligations as a public school bound by the First Amendment and must be reversed."

EVMS Vice President and General Counsel Stacy Purcell responded on February 17, writing: "The proposed club was not denied in any way based on viewpoint or to infringe on free speech or freedom of association, but instead based on the standards set forth in the Criteria for Approval of a New Student Organization. The SGA found that there was incompleteness of ideas, goals and sustainability measures, matters that are considered for every application. The proposed student group also failed to submit a constitution in accordance with the standards. However, the group was invited to reapply and may do so at any time."

FIRE responded on March 15, contesting Purcell's statements. FIRE sent the student group's constitution, saying it was included in the original application.

FIRE also said the SGA didn't tell Si the rationale for denial had to do with missing materials or information, writing: "Instead, the SGA expressly premised its denial on "clubs based on opinions, political or otherwise" and doubts about whether the groups "mission" was "necessary."

Si said he proceeded to reapply.

"I attempted to fix it, I resubmitted the application and they did not look at it," Si said.

A FIRE press statement says EVMS did not respond to the second letter.

An EVMS spokesperson said a school administrator offered to personally meet with Edward Si in the spring to "help him ensure he had all the necessary support documents for the application but [Si] declined that offer."

Si said the administrator told him SGA leaders do not make decisions about student club applications after October in the academic year, which he believed to be a new requirement created after his original application, so he declined the meeting as he felt benchmarks were changing.

"I wasnt going to give up without a fight, quite simply," Si said. "This is a big issue to me, Im very passionate about it."

New SGA leaders approved Si's club on Wednesday, a day after the lawsuit was filed.

The EVMS spokesperson said student government leadership transitions each year and the previous student leaders forgot to remind new leaders that Si's student organization applications were still pending.

The new SGA leaders acted on both Si's proposal and another proposal Wednesday, according to EVMS.

"My understanding is that there was no intent to abridge anyone's First Amendment rights, but rather, that the application had not included all the necessary support," the spokesperson told 13News Now.

Despite the approval of his student organizations, Si said he and FIRE will push forward with the lawsuit until EVMS changes "unconstitutional policies" that allow student government leaders to deny clubs because of their beliefs.

Looking back on the past few days I believe they did the right thing," Si said of EVMS leadership. "I really hope they continue to do the right thing moving forward, allowing students to promote their ideas."

No EVMS administrator was made available to answer questions from 13News Now.

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An EVMS student sued the school after a healthcare reform student organization was denied. A day later, it was approved. - 13newsnow.com WVEC