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If 2020 was a year of racial reckoning for the United States, 2021 is shaping up to be one of backlash.

A concerted campaign against efforts to address persistent racial inequality has consolidated under the watchword of critical race theory (CRT). Once a relatively obscure academic framework for examining the ways in which racism was embedded in US laws and institutions, CRT has been recast by rightwing activists as an omnipresent and omnipotent ideology, one that is anti-American, anti-capitalist and anti-white.

The campaign has been astonishingly effective. Legislation seeking to limit the teaching of CRT or related concepts has been introduced in 22 states in 2021, according to an analysis by the African American Policy Forum, a thinktank led by one of the founders of critical race theory, Kimberl Crenshaw. Arkansas, Idaho, Iowa, Oklahoma, Tennessee and Texas have all passed anti-CRT laws, and Florida, Georgia and Utah have passed resolutions. Legislators in Alabama and Kentucky have already pre-filed anti-critical race theory bills for the 2022 legislative sessions.

Heated political battles over education have flared up repeatedly throughout US history, according to Adam Laats, a professor of history and education at Binghamton University who said he was nevertheless surprised by how many local and state laws are getting involved.

Latts compared the anti-CRT movement to a similar spate of confused outrage and legislative action against the theory of evolution in the 1920s, when 21 states debated 53 bills seeking to ban the teaching of evolution. Five states Oklahoma, Florida, Tennessee, Mississippi and Arkansas ultimately passed laws or resolutions, paving the way for the 1925 Scopes trial, in which the American Civil Liberties Union (ACLU) defended a high school science teacher who had been charged with violating Tennessees anti-evolution law.

Now the ACLU is gearing up for a new iteration of that earlier fight. Emerson Sykes, an ACLU staff attorney who specializes in first amendment free speech issues, spoke to the Guardian about the plans to fight back against what the rights group has deemed a nationwide attempt to censor discussions of race in the classroom.

This interview has been edited for length and clarity.

Many people are confused about the extent to which these laws against CRT fit within the first amendment. Are these laws constitutional?

I would start by saying that this is much beyond a legal issue. Its a social, cultural, political issue. Its about our country reckoning with racism and other aspects of its past and present. There has been a concerted effort to try to censor speech about race and gender in public schools, and this is a bigger problem than just whether any particular bill is constitutional or not.

The other point is that these bills, as much as they are part of a unified effort, vary widely. Some of them cover government agencies, some of them cover contractors, some of them cover higher education. Almost all of them cover K-12 education. But theres a huge number of proposals, and there have been different iterations. Now were seeing these types of debates happening in school boards across the country, and in many ways, I think thats where were actually going to see the impact on children and in classrooms.

But to get to your question. We do think that some of the bills are vulnerable to litigation and the constitutional challenge. The particulars of each bill indicate which claims are most likely to be successful, but we think that there are first amendment claims, potential vagueness claims, and potential equal protection claims basically, racial discrimination claims in some of these cases, as well.

Just to illustrate the point, the first amendment claims that you might bring on behalf of a public employee, on behalf of a university professor, on behalf of the universitys students, on behalf of a K-12 teacher, or on behalf of a K-12 student are all distinct, first amendment doctrinal areas.

There are very strong first amendment protections for academic speech in higher education. Some of those protections have been recognized for K-12 teachers, but to a much lesser degree. There are also cases that recognize K-12 students right to receive information, and those are relatively narrow cases. But we do think theres some good precedent at least acknowledging that K-12 students have a first amendment interest in receiving information through curriculum.

Ive been struck by how quickly this movement went from Donald Trumps executive order banning anti-racism trainings to dozens of bills being introduced and statewide school boards passing resolutions against CRT. Does this stand out to you?

The activity at the state legislature level was dramatic during a state legislative session that many people have characterized as legendarily bad in terms of voting rights, protesters rights, transgender rights, all manner of things. And in some ways I think these race censorship laws snuck under the radar for a lot of folks.

Those who have been pushing these bills have been incredibly successful, and its our aim, in collaboration with other national organizations and local organizations in the various states, to try to push back in an equally coordinated and strategic way. My particular role as a first amendment litigator is trying to figure out where and when and how we can bring federal litigation, and were actively exploring that. But this was a massive campaign that has borne fruit in very dramatic fashion and so its going to take a massive campaign to try to push back against that as well.

It does seem like this campaign arose very quickly without much in the way of organized opposition. What can you tell me about the coalition that is coming together now to oppose this movement?

Theres been a lot going on and weve all been stretched thin, but its true that not enough attention was paid to it. But its worth noting that a lot of the coalition building happened around Trumps executive order, and there was successful litigation that struck that order down in the ninth circuit that was brought by Lambda Legal. So its true that were on the back foot a little bit, but we do have a very positive federal appellate court ruling on this already.

A lot of the folks who were active on the executive order are also now working together the usual suspects such as the NAACP Legal Defense Fund and the Lawyers Committee for Civil Rights Under the Law.

I hesitate to get too much into detail of any particular legal strategy, but I think its definitely fair to say that multiple organizations are actively exploring litigation. My own opinion is that its important to do it sooner rather than later. We need to be strategic in bringing the right case in the right court with the right claims. But these curricular decisions are also being made over the next month or so in preparation for the fall. Ideally, wed like to get courts to weigh in to block these things before the impact is really felt in the classroom, either in K-12 or in higher ed.

That said, one legal decision in one state is not going to be the solution, or the whole solution. I think that public advocacy and public education around this are also key in terms of spreading the news and making people aware of these developments.

Youve been very explicit in talking about this movement as an effort to censor.

The irony is that so many of these legislators styled themselves as free speech advocates. But what we know from the legislative history, from the public statements, from the research reports put out by the proponents of these types of bills, is that they are uncomfortable with discussions about race and gender in public schools. They would prefer that we not ask hard questions about why and how people have been treated in this country, or be critical of our country. I think they have a very distorted sense of what is healthy for kids to learn and what patriotism looks like in education.

Theres outright censorship but then theres also a chilling effect. As we look for people to cite these laws as the reason for cancelling a class or changing a curriculum, that will be an obvious enforcement of the law and we can bring a legal challenge. But the other consequence of the law is that people are going to self-censor and be hesitant to engage in these types of discussions because they dont want to run afoul of these really vague and really broadly written laws. And that kind of chilling effect often can go unnoticed. Thats why its even more important that we bring a strong legal challenge, because we know that the impact is actually far broader than well be able to see in any particular enforcement action.

The language in these bills is often quite vague and seemingly neutral. But many of the lawmakers have been explicit in saying that they want to ban a particular school of thought critical race theory. Will that make any difference when it comes to court battles?

Where law or policy is unclear, courts will look to the legislative history to try to get the intent, and I think a lot of these laws are unclear. Those statements by legislators are going to be useful in terms of first amendment, and viewpoint and vagueness issues, but also around equal protection and racial discrimination. None of these laws on their face say they only apply to Black people or only apply to white people or anything like that, but we think that there have been, at least in some places, some hints of racial animus and discrimination in statements by legislators. We think that can potentially play into the into the lawsuits.

I recently spoke with a historian who compared this current movement to the anti-evolution laws in the 1920s, which the ACLU played a major role in opposing, culminating in the Scopes trial. Do you think thats a fair comparison?

The ACLU has been fighting this kind of thing for over 100 years. There are those who doubt our commitment to the first amendment, but they often leave out our work on this type of case, which were really dedicating a lot of resources to.

It is in the ACLUs DNA to try to fight government censorship, whether its 1920 or 2020.

Continue reading here:
The ACLU on fighting critical race theory bans: Its about our country reckoning with racism - The Guardian

Less than six months ago I lambasted the bloodlust rhetoric of U.S. Rep. Lauren Boebert. I worried that leaders like the congresswoman could be engaged in a competitive spiral to prime their base.

At the time, I wrote that those leaders were cultivating resentment, anger and hate. I forgot to include violence. But that is where we find ourselves less than a half year later.

The rhetoric has not gotten better, but rather descended into casual references to treason and execution.

First, Pearson Sharp, a reporter from the farther-right-than-Fox One America News Network (OAN), went on a riff against anyone who contradicts the assertion that the 2020 presidential election was rigged. Specifically, he speculated that hundreds or thousands of people were engaged in a coup against the presidency, labeled each a traitor, and noted that a good solution for dealing with such traitors: Execution.

Only a few days later, Garrett Flicker, the current Denver Republican Party chairman, made a Facebook post asking whether teachers should be charged with treason?

When one response challenged whether Flicker meant to imply the death penalty would be appropriate, Flicker wrote radical ideas that lead to revolts and mass violence always lead to death before equivocating and stating that fines and prison could be utilized instead.

Maybe Flicker did not understand the irony of his statement?

Notwithstanding the specious merit of his assertion history is replete with peaceful radicals like Gandhi and Martin Luther King Jr. and Nelson Mandela, to name a few he would substitute state-sanctioned killing or vigilante justice as an answer.

And that is precisely the danger.

The same logic Sharp and Flicker espoused led Kyle Rittenhouse to kill two men and injure another at a protest in Kenosha, Wisconsin. As prosecutors in Rittenhouses case wrote, the teenager willingly and intentionally put himself in violent situations in Wisconsin that do not involve him in order to commit further ats of violence.

It is the same rhetorical gasoline John Eastman, U.S. Rep. Madison Cawthorn and Donald Trump Jr. poured on the mobs nascent fire prior to the Jan. 6 insurrection. Rudy Giuliani literally called for trial by combat.

That is the pot that Sharp and Flicker have stirred. One in which Americans justify killing each other. Could anything be less American as we celebrate the Fourth of July?

Thankfully, Sharp received widespread condemnation and multiple replies challenged Flickers comments. Unfortunately, it was not universal. QAnon chat rooms were filled with glee after Sharps comments and saw it as proof that mass executions were right around the corner. Replies to Flicker included Indeed, Definitely, and Surely.

I doubt Sharp or Flicker wish to actively engage in the killing of other Americans. Rather, they seem caught up in an ugly concoction of machismo, vitriol, rhetoric and one-upmanship.

But given their public following, simply giving voice to such violence could be tantamount to the actual act. They have helped create echo chambers were the less restrained fringes feel it is not only acceptable to engage in violence against those with whom they disagree, but patriotic.

Should people die in the aftermath of their comments and I believe that will be the case eventually even the First Amendment will not protect people like Sharp or Flicker. You cannot yell fire in a crowded theater and you cannot repeatedly call for the execution of fellow citizens.

That is probably why OANs attorneys forced Sharp to walk back his statement. And maybe why Flicker offered a wet-rag argument that other punishments would be acceptable.

The country is polarized and politically divided. But our leaders and opinion makers must refrain from their reliance on the language of violence. If they do not, it will have tragic consequences.

Mario Nicolais is an attorney and columnist who writes on law enforcement, the legal system, health care and public policy. Follow him on Twitter: @MarioNicolaiEsq

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Nicolais: Calling for the execution of political opponents should never be condoned - The Colorado Sun

Stephen Davis: Eye on Education

Two hot-button issues have recently emerged in the ongoing debate surrounding academic freedom and free speech in public schools.

One issue centers on concerns related to the inclusion of critical race theory in American school curricula (e.g., systemic racial discrimination in society). The other centers on the U.S. Supreme Courts recent ruling in favor of a former high school cheerleader who was punished by her school for posting profane comments about the school on Snapchat while she was off school grounds.

Both examples contain important implications for how public schools manage controversial issues.

Before addressing the merits of each, it is important to note that academic freedom and free speech are closely related legal concepts that have somewhat different implications for universities and public schools. The modern concept of academic freedom which emerged from 19th century German universities rests upon a broad intellectual landscape of ideas unconstrained by narrow partisan or political interests.

The U.S. Supreme Court stated, Our nation is deeply committed to safeguarding academic freedom, which is of transcendental value to us all and not merely to the teachers concerned. . . . The First Amendment does not tolerate laws that cast a pall of orthodoxy over the classroom.

However, the application of academic freedom in public schools is less clear and continues to be a topic of debate practically, politically and in the courts. While the U.S. Supreme Court has largely avoided ruling on academic freedom cases in public schools, lower courts have provided considerable guidance. In general, lower courts have protected local school boards and their authority to make curricular decisions influenced by community values and needs.

Moreover, courts have ruled that public schools are subject to state legislative authority and must conform to the education laws and regulations enacted by the state.

Importantly, while cases relating to academic freedom typically focus on the behaviors and practices of professional educators, cases relating to freedom of speech (more generally) have rendered important implications for both educators and students. In recent years, court cases related to freedom of speech in public schools have leaned in favor of more student expression rather than less.

Nevertheless, this distinction is not razor-sharp, and the rights of public school students are not unlimited.

In the Supreme Court case involving the high school cheerleader, the content of the students speech was profane and objectionable. However, it did not rise to the level of a material disruption to the school. No one was threatened or slandered. Moreover, the student posted her comments from home on her personal computer on a widely used social network.

Justice Stephen Breyer wrote, . . . sometimes it is necessary to protect the superfluous in order to preserve the necessary. Breyers comment echoed the courts earlier ruling that, students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

The debate over critical race theory, also tethered to the First Amendment, is amplified most by differing political perspectives. Importantly, state legislatures and local school boards possess sole authority to determine what is taught and how. Individual schools, teachers, administrators and labor unions have no independent authority to ignore or modify state laws and local board policies.

The ideas that define critical race theory are not new. To varying degrees, states and local school districts have been addressing elements of the theory for nearly 50 years. There are important arguments made by advocates and opponents of the theory that ultimately must be processed through rigorous public debate and policy-making processes.

While I believe that to the extent possible, public schools ought to be included in the open marketplace of ideas, it is particularly important that students are not sheltered from controversial ideas that are based upon thoughtful arguments and alternative interpretations.

After all, a central mission of public education is to help students become independent, open-minded, ethical and creative thinkers.

Stephen Davis is a career educator who writes a column that publishes every other Wednesday in the Daily Republic. Reach him by email at[emailprotected].

Related

Read the original post:
Eye on Education: Addressing First Amendment controversies in public schools - Fairfield Daily Republic

On June 24, a U.S. District Court in Washington, D.C. heard arguments over whether three, billion-dollar defamation suits brought by Denver-based Dominion Voting Systems against Rudy Giuliani, Sidney Powell and Mike Lindell should go to trial.

The issue before Judge Carl J. Nichols was whether the defendants repeated claims of election fraud, including claims that Dominions software could somehow switch votes, were protected speech under the First Amendment and, therefore, not worthy of taking before a jury.

The bar for winning a libel or defamation suit is high, and trials are expensive, so it is typical for defendants to seek dismissal. But Judge Nichols must also weigh a bigger question: What is the harm in allowing this defamation case to proceed to trial and letting a jury weigh the evidence and decide?

That was the question before Denver District Court Judge John Coughlin in the mid-1990s in Smileys Too, Inc. v. Denver Post Corp., a suit brought over an article that described complaints against Smileys, a dry cleaner, on file at the Denver District Attorneys office. Because Chance Conner, a reporter working for me when I was the business editor at The Post, wrote the article, I became the point person on staff for our defense.

In the Dominion case, much will turn not just on whether the claims by Giuliani, Powell, Lindell and others are false. In all likelihood, they will have to be shown to have been produced with actual malice or reckless disregard for the truth, in other words, the defendants knew the statements were false and repeated them anyway.

This very high bar exists because the defense claims that Dominion Systems is a public figure, subject to a higher standard than a private citizen. Is Dominion Systems a public figure or simply a private company that happens to supply voting systems under contract to government entities? That, too, might be an important issue for a jury to weigh at trial.

In Colorado, the public figure rule also applies to matters of general public concern and in the case of Smileys, the question of this broad definition of a public figure in libel cases was before the court.

Another question for Judge Nichols is whether Dominion can demonstrate it was damaged by the false statements. It claims $1.3 billion in damages though the defense has argued that any possible damages are to its reputation and not to its bottom line, therefore not as clear cut as Dominion claims.

In the case of Smileys, Judge Coughlin decided that it was worth having a jury hear the evidence and decide whether public figure rules applied, whether our reporting was accurate and whether damages had occurred.

If Judge Nichols orders the case to trial, it will be up to Giuliani, Powell and Lindell to make the case for why their statements are backed up by the truth or why they deserve protection as opinion under the First Amendment. Dominion Systems will get a chance to collect evidence about what the defendants knew, when they knew it and what they did or didnt do with that knowledge.

The Posts defense in Smileys was to assume that the higher standard would not apply and stand by our story. The jury found our reporting was a fair and accurate report of the DAs complaints and exonerated The Post.

And yes, the jury agreed that a persons laundry was a matter of general public concern. Twenty-five years ago, on June 27, 1996, a Colorado appellate court affirmed the jury verdict, effectively ending the matter.

The Dominion case has drawn national attention and the trial will take place with millions paying attention. But the basic issues remain the same. Were the statements truthful? Were they protected as opinion? Is Dominion a public figure? Were there material damages?

I came away from the Smileys experience with great respect for the jury system. Trials in First Amendment cases should be rare, but in matters of vital national interest especially when the integrity of elections are the issue letting 12 citizens decide could be good for America.

Henry Dubroff is a former Denver Post business editor who now owns the weekly journal for the Central Coast of California and divides his time between Denver and the West Coast.

Go here to read the rest:
Opinion: If Dominions defamation suits go to trial, it could be good for America - The Denver Post

Prince Harry (Photo by Alastair Grant/WPA Pool/Getty Images)

As some of you may remember, Prince Harry was a guest on Dax Shepards podcast last month. During the appearance, Harry provided his thoughts on the First Amendment of the U.S. Constitution, stating, Ive got so much I want to say about the First Amendment as I sort of understand it, but it is bonkers.

However, Harry admitted he was no expert in constitutional law.

I dont want to start going down the First Amendment route because thats a huge subject and one which I dont understand because Ive only been here a short time. But, you can find a loophole in anything. You can capitalize or exploit whats not said rather than uphold what is said. I believe we live in an age now where youve got certain elements of the media redefining to us what privacy means.Theres a massive conflict of interest.

You should know that Harry and I go way back, as I had once watched him plant a tree outside my former office in the Financial District. (Coverage of this momentous moment in 2011, including quotes by yours truly, can be found here.)

Thus, as one of Harrys oldest friends, I wish to take this opportunity to offer him - as well as anyone reading this article - some insight into the First Amendment. Although Harry admits he is no expert on the topic, I am. Much of my legal practice focuses on defamation and Title IX law, both of which are closely intertwined with the First Amendment. And it is quite all right that Harry hasnt studied the subject intently - we each have our own expertise, and I myself have never perfected a proper curtsy.

In response to Harrys expressed views, I will focus on the First Amendments freedoms of speech and the press, since I do not believe he is questioning American citizens freedoms of religion, association, or petition and assembly. However, Harry, if I am mistaken, please let me know, and Ill circle back around to cover those freedoms as well.

The entire First Amendment is a mere 45 words, but has resulted in centuries of debate and legal proceeding. Just to sufficiently explain the ins and outs of our freedom of speech would take an article longer than anyone is willing to sit down and read, so I will skim the surface and focus today on whether the government can limit our speech, in what circumstances they can do so, and why it is important. Because this is such a big topic, even skimming the surface of our free speech rights will take a few tries, so I will be following up with a second piece devoted to civil liability pertaining to speech and a third piece devoted to press rights and limitations. Yes, readers, you are indeed getting a three-parter. If Harry doesnt understand, I am here to explain.

In short, the First Amendment forbids the government from preventing or punishing anyone for what they say or write. The key word is government. Private citizens have legal recourse for things that are said or written about them (i.e., claims for defamation) and private companies can police the speech of their employees. That is why a tweet can get you fired so long as you are not a public employee. So when you see that an actor has been fired from their television show due to something they said, take note that the common argument pertaining to the actors freedom of speech is incorrect. The television network, a private entity, can fire that actor without violating their free speech rights.

And our rights are not absolute. The government can police language that is communicated with the intent of inciting violence. So while we have protection to utter hate speech, there is a limit. The courts have gone back and forth about this for almost 100 years. It started out broadly, with the Supreme Court deciding that the First Amendment doesnt protect statements that by their very utterance inflict injury or tend to incite an immediate breach of the peace. The issue has been brought back to the Supreme Court in numerous cases, with the court narrowing the exception over time. Eventually, the court developed the imminent danger test, holding that the government cannot punish inflammatory speech unless that speech is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Thats essentially where we stand now (with exception, because there are always exceptions). So, if the speech is hateful, it is protected by the First Amendment. If it poses an imminent danger of criminal action, it is not protected.

This distinction is actually a good thing for Harry. Although he finds the free speech protections in our nation to be bonkers, it is those same protections that would keep someone out of jail for, say, dressing up like a Nazi. While it is an act that I myself find reprehensible, the fact that this act is protected by the First Amendment is important. For instance, that same protection extends to religious garments such as yarmulkes and hijabs that some people in this country might decide offends them. Finding offense in such garments may sound ridiculous to you and me, but its a slippery slope for the courts.

Just a few years ago, Justice Kennedy addressed the importance of protecting speech, including hateful speech, writing:

A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the governments benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.

That brings me to my main point about our free speech rights. It allows people in this country to express their ideas, even if others disagree with those ideas. No matter how unconventional, unpopular, or disliked those ideas might be, the government is prevented from infringing on our right to express them. Without such rights, only the most popular and mainstream ideas would be expressed, while dissent would be prosecuted. There are many countries where these rights do not exist, where people cannot participate in peaceful protests, wear certain symbolic clothing, or speak out against their government. Here, however, we are free to engage in discussion and debate without fear of penalty or censorship by our leaders. In my view, that is far from bonkers. It is a blessing that many people around the world do not have. It is the ultimate freedom.

I hope this helps shed some light on our free speech rights. I look forward to delving further into this topic with my next article, Defamation Law And The People Who Love It. (The title is a work in progress.)

Diana Warshow is Senior Counsel at Nesenoff & Miltenberg, LLP in New York, NY. Practicing law since 2008, Dianas work focuses on defamation and Title IX law. She represents clients in libel and slander claims against media companies, written publications, tech companies, blogs, and social media sites. She also represents students in disciplinary proceedings at high schools, colleges, and post-graduate institutions around the country. You can reach her by email at DianaWarshowEsq@gmail.com and connect with her on LinkedIn.

See the article here:
The First Amendment: Bonkers Or A Blessing? - Above the Law