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Parler -- the social media cesspool that claimed the only things that mattered to it were the First Amendment and, um FCC standards -- has reopened with new web hosting after Amazon decided it no longer wished to host the sort of content Parler has become infamous for.

Parler has held itself up to be the last bastion of the First Amendment and a protector of those unfairly persecuted by left-wing tech companies. The users who flocked to the service also considered themselves free speech absolutists. But like far too many self-ordained free speech "absolutists," they think the only speech that should be limited is moderation efforts by companies like Twitter and Facebook.

And, like a lot of people who mistakenly believe the First Amendment guarantees them access to an active social media account, a lot of Parler users don't seem to understand the limits of First Amendment protections. Parler, like every other social media service, has had to engage in moderation efforts that removed content undeniably protected by the First Amendment but that it did not want to host on its platform. It has also had to remove illegal content and that's where its most recent troubles began.

Over the weekend, the resurrected Parler crossed over into meta territory, resulting in an unintentionally hilarious announcement to its aggrieved users upset about the platform's decision to forward Capitol riot related posts to law enforcement. It really doesn't get any better than this in terms of schadenfreude and whatever the German word is for an ad hoc group of self-proclaimed First Amendment "experts" having their second favorite right explained to them.

Here's Matt Binder for Mashable:

The reaction to the news that Parler "colluded" with the FBI in order to report violent content was so strong on the right wing platform, the company was compelled to release a statement addressing those outraged users.

In doing so, Parler found itself unironically explaining the First Amendment to its user base filled with members who declare themselves to be "Constitutionalists" and "Free Speech" advocates.

Parler's statement spells it out: the First Amendment does not protect the speech shared with law enforcement by the social media platform.

In reaction to yesterday's news stories, some users have raised questions about the practice of referring violent or inciting content to law enforcement. The First Amendment does not protect violence inciting speech, nor the planning of violent acts. Such content violates Parlers TOS. Any violent content shared with law enforcement was posted publicly and brought to our attention primarily via user reporting. And, as it is posted publicly, it can properly be referred to law enforcement by anyone. Parler remains steadfast in protecting your right to free speech.

That's a very concise and accurate reading of the First Amendment and how it applies to the content Parler forwarded to the FBI. It's not covered. But that hasn't stopped a few vocal complainants from telling Parler to try reading the Constitution again and, apparently, decide it means not only hosting violent content, but refusing to pass these threats on to law enforcement.

The core user base being unable to understand the limits of the right it believes allows it to say anything anywhere is partially a byproduct of Parler's promise to erect a Wild West internet playground for bigots and chauvinists who had nowhere else to go. Once it had some users, Parler realized it too needed to engage in moderation, even if only to rid itself of porn and outsiders who showed up solely to troll its stable of alt-right "influencers."

The January 6th insurrection appears to have forced the platform to grow up a little. Of course, some of that growth was forced on it by the leak of thousands of users' posts, which were examined by journalists and forwarded to law enforcement to assist in identifying Parler users who attended the deadly riot in DC earlier this year. Illegal content is still illegal, and being beholden only to the First Amendment doesn't change that.

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Filed Under: 1st amendment, content moderation, fbi, insurrection, public infoCompanies: parler

Original post:
Parler Forced To Explain The First Amendment To Its Users After They Complain About Parler Turning Over Info To The FBI - Techdirt

They dont send out the DEA to bust people for eating deadly poisonous toadstools. That behavior is, ahem, self-limiting. But the federal government does forbid the sale of mushrooms that make people feel like theyre at a rainbow jamboree with the Care Bears, because lawmakers know lots of people would gobble them up.

We have little trouble understanding why we have and enforce laws: The forbidden conduct would otherwise be too attractive. We punish people for everything from toxic waste dumping to breaking the speed limit precisely because lawmakers think too many people otherwise would engage in conduct thats harmful to society as a whole.

While we understand why we have prohibitions against certain conduct by citizens, we tend to forget that our system forbids certain conduct by the government for precisely the same reason: The harmful misconduct is too attractive to otherwise resist.

Many Americans claim to revere the First Amendment and its hard line against government limitations on the beliefs of our citizens and the expression of those beliefs. Yet very often the same souls who rhapsodize over free speech are eager to limit it.

Heres a powerful, influential progressive senator who wants to make sure a company cant heckle her in a snotty way. Or how about a new member of the executive branch who wonders whether the First Amendment is obsolete and thinks the federal government should try to engineer a news media marketplace to its liking? Try an esteemed conservative federal judge who wants to make it easier for powerful people to sue reporters and news outlets because he doesnt like the bias he perceives against his viewpoints.

At the state and federal level, were witnessing a full-spectrum attack on free expression (not to mention property rights). Progressives and nationalists arent mounting this assault at risk to their own careers. Indeed, many are finding lots of political advantage in trying to suppress speech they and their constituents do not like.

Though Thomas Jefferson is most assuredly out of favor with the modern progressives who are his heirs, in 1787 he identified the same problem with American politics many in todays Democratic Party now decry. Jefferson blamed what today is called fake news for the Constitutions version of the presidency that he believed was inclined toward monarchy.

The British ministry have so long hired their gazetteers to repeat and model into every form lies about our being in anarchy, that the world has at length believed them, Jefferson wrote to John Adams son-in-law from Paris. The English nation has believed them, the ministers themselves have come to believe them, and what is more wonderful, we have believed them ourselves.

He was calling Adams and the other Federalists a bunch of dupes who created an undemocratic presidency because of the impudent and persevering lying of pro-British journalists. We could say the same thing today about American outlets and politicians who echo Chinese talking points about the prevalence of racism in our country or Russian propaganda about the legitimacy of the 2020 elections.

Unlike many in his party today, though, Jefferson didnt suggest controlling the information Americans could receive. In fact, he said misinformation was an inevitable consequence of life in a free society. The people can not be all, and always, well informed, he wrote. The part which is wrong will be discontented in proportion to the importance of the facts they misconceive.

Aint that the truth

Racism is tolerated less now than it has been at any point in American history, but if you misconceive that important fact, you are likely to be quite discontented. The same goes for election fraud. If you are ignorant of the truth that American elections now are far more secure than in even the fairly recent past you might believe Boss Tweed and Big Bill Thompson were still stuffing ballot boxes. You might even storm the Capitol.

Jeffersons remedy, however, would please few Americans today. He brushed off Shays Rebellion, a tax revolt in Western Massachusetts the year before that left nine dead, as no big deal. Let them take arms, he wrote. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The alternative, he said, was worse. If they remain quiet under such misconceptions it is a lethargy, the forerunner of death to the public liberty.

The anti-police riots of last year and the pro-Trump attack on the Capitol would have been to circa-1787 Jefferson what we now callforgive meteachable moments. The perpetrators were misinformed, but according to their misshapen views of the world, their violent actions were justified. When the river of misinformation overruns its banks, Jeffersons advice was not to build the levees higher but to address its source.

Adams did not agree. As president in 1798, he signed the Alien and Sedition Acts partly to crack down on Bonapartist propaganda from France during a period of high tensions between the former allies. It just so happened that what the federal government deemed false statements against it were very often claims and criticisms from newspapers supportive of his old rival, Jefferson, who was preparing to take on his foe in the election of 1800. Limiting speech, he argued, was necessary for preserving domestic tranquility. Fortunately, the rules were far less popular in practice than in concept and were allowed to expire by 1801.

After defeating Adams, Jefferson learned to love the powers of the presidency he had as a younger man disdainedand the awful failures and excesses of the French revolution had also taught him about the practical considerations of armed revolts and foreign propaganda. That tree of liberty must be refreshed from time to time with the blood of patriots and tyrants jazz didnt sound as great when he was worried about Aaron Burr cooking up an insurrection with the help of the Spanish.

We dont have a First Amendment to protect free speech because people love the freedom, but because limiting free expression will always be attractive to those in powerand often to their political advantage.

Go here to read the rest:
The First Amendment: Rarely Popular, Always Necessary - The Dispatch

The case is today's Sixth Circuit decision in Meriwether v. Hartop, written by Judge Amul Thapar and joined by Judges David McKeague and Joan Larsen. There are a lot of moving parts here, so let me go through them one by one.

[A.] First, the facts: Shawnee State University had a policy requiring that students "refer to students by their 'preferred pronoun[s].'" Prof. Nicholas Meriwether disagreed, and "proposed a compromise: He would keep using pronouns to address most students in class but would refer to Doe [a transgender student in his class] using only Doe's last name." The University at first agreed, but then changed its mind.

The University also refused another proposed compromise that Meriwether offered: "allow him to use students' preferred pronouns but place a disclaimer in his syllabus 'noting that he was doing so under compulsion and setting forth his personal and religious beliefs about gender identity." The Dean "insisted that putting a disclaimer in the syllabus would itself violate the university's gender identity policy."

Meriwether sued, and the Sixth Circuit allowed his case to go forward; but because of the particular facts, the court didnotdecide whether a professor could insist on actually using a pronoun that didn't match the student's preferred pronoun. Rather, the court only considered whether a professor coulddecline to use the student's preferred pronoun.

[B.] Now, the background legal rule: Generally speaking the government may discipline (including firing) an employee based on the employee's speech if

This is quite different from the rules for criminal or civil liability for speech. Speech doesn't usually lose First Amendment protection, for instance, just because it's on a matter of purely private concern. Likewise, courts generally don't do case-by-case balancing of the value of speech against the harm that the speech causes. But when the government is acting as employer, it has a great deal of extra authority, especially over how its employees treat the government's clients and more generally over how they do their jobs.

[C.] But there have also been lots of cases that say that academic employment is different from other forms of employment, and this is what happened here.

[1.] The court followed earlier decisions by the Fourth and Ninth Circuit (and an implicit decision of the Fifth Circuit) in holding that theGarcettino-protection-for-speech-within-job-duties doctrine doesn't apply to public university teaching:

[Garcetti] expressly declined to address whether its analysis would apply "to a case involving speech related to scholarship or teaching." See also Adams v. Trs. of the Univ. of N.C.-Wilmington (4th Cir. 2011) ("The plain language of Garcetti thus explicitly left open the question of whether its principles apply in the academic genre where issues of 'scholarship or teaching' are in play."). [And the Court's earlier decisions] have "long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition."

If professors lacked free-speech protections when teaching, a university would wield alarming power to compel ideological conformity. A university president could require a pacifist to declare that war is just, a civil rights icon to condemn the Freedom Riders, a believer to deny the existence of God, or a Soviet migr to address his students as "comrades." That cannot be. "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe" such orthodoxy.

Remember, too, that the university's position on titles and pronouns goes both ways. By defendants' logic, a university could likewise prohibit professors from addressing university students by their preferred gender pronounsno matter the professors' own views. And it could even impose such a restriction while denying professors the ability to explain to students why they were doing so. But that's simply not the case. Without sufficient justification, the state cannot wield its authority to categorically silence dissenting viewpoints.

[T]he academic-freedom exception to Garcetti covers all classroom speech related to matters of public concern, whether that speech is germane to the contents of the lecture or not. The need for the free exchange of ideas in the college classroom is unlike that in other public workplace settings. And a professor's in-class speech to his students is anything but speech by an ordinary government employee.

Indeed, in the college classroom there are three critical interests at stake (all supporting robust speech protection): (1) the students' interest in receiving informed opinion, (2) the professor's right to disseminate his own opinion, and (3) the public's interest in exposing our future leaders to different viewpoints. Because the First Amendment "must always be applied 'in light of the special characteristics of the environment' in the particular case," public universities do not have a license to act as classroom thought police. They cannot force professors to avoid controversial viewpoints altogether in deference to a state-mandated orthodoxy. Otherwise, our public universities could transform the next generation of leaders into "closed-circuit recipients of only that which the State chooses to communicate." Thus, "what constitutes a matter of public concern and what raises academic freedom concerns is of essentially the same character."

Of course, some classroom speech falls outside the exception: A university might, for example, require teachers to call roll at the start of class, and that type of non-ideological ministerial task would not be protected by the First Amendment. Shawnee State says that the rule at issue is similarly ministerial.

But as we discuss below, titles and pronouns carry a message. The university recognizes that and wants its professors to use pronouns to communicate a message: People can have a gender identity inconsistent with their sex at birth. But Meriwether does not agree with that message, and he does not want to communicate it to his students. That's not a matter of classroom management; that's a matter of academic speech.

[2.] The court then held that the speech here was on a matter of "public concern":

When speech relates "to any matter of political, social, or other concern to the community," it addresses a matter of public concern. Thus, a teacher's in-class speech about "race, gender, and power conflicts" addresses matters of public concern. A basketball coach using racial epithets to motivate his players does not. "The linchpin of the inquiry is, thus, for both public concern and academic freedom, the extent to which the speech advances an idea transcending personal interest or opinion which impacts our social and/or political lives."

Meriwether did just that in refusing to use gender-identity-based pronouns. And the "point of his speech" (or his refusal to speak in a particular manner) was to convey a message. Taken in context, his speech "concerns a struggle over the social control of language in a crucial debate about the nature and foundation, or indeed real existence, of the sexes. That is, his mode of address was the message. It reflected his conviction that one's sex cannot be changed, a topic which has been in the news on many occasions and "has become an issue of contentious political debate."

Never before have titles and pronouns been scrutinized as closely as they are today for their power to validateor invalidatesomeone's perceived sex or gender identity. Meriwether took a side in that debate. Through his continued refusal to address Doe as a woman, he advanced a viewpoint on gender identity. Meriwether's speech manifested his belief that "sex is fixed in each person from the moment of conception, and that it cannot be changed, regardless of an individual's feelings or desires." The "focus," "point," "intent," and "communicative purpose" of the speech in question was a matter of public concern.

And even the university appears to think this pronoun debate is a hot issue. Otherwise, why would it forbid Meriwether from explaining his "personal and religious beliefs about gender identity" in his syllabus? No one contests that what Meriwether proposed to put in his syllabus involved a matter of public concern.

[3.] Finally, the court held that thePickeringbalance tipped in favor of protection for Meriwether's speech, again because of the academic freedom context:

Start with Meriwether's interests. We begin with "the robust tradition of academic freedom in our nation's post-secondary schools." That tradition alone offers a strong reason to protect Professor Meriwether's speech. After all, academic freedom is "a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom." And the First Amendment interests are especially strong here because Meriwether's speech also relates to his core religious and philosophical beliefs. Finally, this case implicates an additional element: potentially compelled speech on a matter of public concern. And "[w]hen speech is compelled additional damage is done."

Those interests are powerful. Here, the university refused even to permit Meriwether to comply with its pronoun mandate while expressing his personal convictions in a syllabus disclaimer. That ban is anathema to the principles underlying the First Amendment, as the "proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate.'" Indeed, the premise that gender identity is an idea "embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different view."

And this is particularly true in the context of the college classroom, where students' interest in hearing even contrarian views is also at stake. "Teachers and students must always remain free to inquire, to study and to evaluate, [and] to gain new maturity and understanding."

On the other side of the ledger, Shawnee State argues that it has a compelling interest in stopping discrimination against transgender students. It relies on EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. (6th Cir. 2018) in support of this proposition. But Harris does not resolve this case. There, a panel of our court held that an employer violates Title VII when it takes an adverse employment action based on an employee's transgender status.

The panel did not holdand indeed, consistent with the First Amendment, could not have heldthat the government always has a compelling interest in regulating employees' speech on matters of public concern. Doing so would reduce Pickering to a shell. And it would allow universities to discipline professors, students, and staff any time their speech might cause offense. That is not the law. See Street v. New York (1969) ("[T]he public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers."). Purportedly neutral non-discrimination policies cannot be used to transform institutions of higher learning into "enclaves of totalitarianism."

Turning to the facts, the university's interest in punishing Meriwether's speech is comparatively weak. When the university demanded that Meriwether refer to Doe using female pronouns, Meriwether proposed a compromise: He would call on Doe using Doe's last name alone. That seemed like a win-win. Meriwether would not have to violate his religious beliefs, and Doe would not be referred to using pronouns Doe finds offensive. Thus, on the allegations in this complaint, it is hard to see how this would have "create[d] a hostile learning environment that ultimately thwarts the academic process."

It is telling that Dean Milliken at first approved this proposal. And when Meriwether employed this accommodation throughout the semester, Doe was an active participant in class and ultimately received a high grade.

As we stated in Hardy, "a school's interest in limiting a teacher's speech is not great when those public statements 'are neither shown nor can be presumed to have in any way either impeded the teacher's proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally.'" The mere "fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." At this stage of the litigation, there is no suggestion that Meriwether's speech inhibited his duties in the classroom, hampered the operation of the school, or denied Doe any educational benefits. Without such a showing, the school's actions "mandate[] orthodoxy, not anti-discrimination," and ignore the fact that "[t]olerance is a two-way street." Thus, the Pickering balance strongly favors Meriwether.

Finally, Shawnee State and the intervenors argue that Title IX compels a contrary result. We disagree. Title IX prohibits "discrimination under any education program or activity" based on sex. The requirement "that the discrimination occur 'under any education program or activity' suggests that the behavior [must] be serious enough to have the systemic effect of denying the victim equal access to an educational program or activity."

But Meriwether's decision not to refer to Doe using feminine pronouns did not have any such effect. As we have already explained, there is no indication at this stage of the litigation that Meriwether's speech inhibited Doe's education or ability to succeed in the classroom. Bauer even admitted that Meriwether's conduct "was not so severe and pervasive that it created a hostile educational environment." Thus, Shawnee State's purported interest in complying with Title IX is not implicated by Meriwether's decision to refer to Doe by name rather than Doe's preferred pronouns.

[D.] The panel also allowed Meriwether's Free Exercise Clause to go forward, based on the allegations that "officials at Shawnee State exhibited hostility to his religious beliefs" and that "irregularities in the university's adjudication and investigation processes permit a plausible inference of non-neutrality." That part of the opinion also discussed an interesting factual twist:

[T]he university argues that Meriwether simply could have complied with the alternative it offered him: Don't use any pronouns or sex-based terms at all. This offer, the university says, would not violate Meriwether's religious beliefs. But such an offer has two problems. First, it would prohibit Meriwether from speaking in accordance with his belief that sex and gender are conclusively linked. And second, such a system would be impossible to comply with, especially in a class heavy on discussion and debate. No "Mr." or "Ms." No "yes sir" or "no ma'am." No "he said" or "she said." And when Meriwether slipped up, which he inevitably would (especially after using these titles for twenty-five years), he could face discipline. Our rights do not hinge on such a precarious balance.

The effect of this Hobson's Choice is that Meriwether must adhere to the university's orthodoxy (or face punishment). This is coercion, at the very least of the indirect sort. And we know the Free Exercise Clause protects against both direct and indirect coercion.

[E.] So there are several important conclusions and implications here, it seems to me:

Go here to read the rest:
Pronouns in the University Classroom & the First Amendment - Reason

Over the past year or so, ANC 6B10 commissioner Denise Krepp has tweeted updates on ANC business, as well as personal communications. She has also blocked constituents on the platform, as well as other DC residents and fellow ANC commissioners with whom she did not see eye to eye.

One of the residents she blocked, Mark Hecker, felt that it was inappropriate for an elected official to prevent her constituents from reaching her in an official capacity on social media. On Monday, his attorneys filed a complaint, which you can read here. Hecker announced the complaint via the following tweet, which links to a blog post by attorney Jason Harrow:

The complaint chronicles, in meticulous detail, not just the interactions between Hecker, a Kingman Park resident, and commissioner Krepp, but also explains the dynamics of Twitter and its role as a public forum.

Denise Krepp tells me that, as of Wednesday, she has not been served and has no comment. She added, Im going to continue to ask questions and Im going to continue being an ANC commissioner. Hecker said, My understanding is that it was filed Monday, but because of COVID some procedures seem to be happening very slowly. I reached out to Charlie Gerstein with this same question. He said, The court did not issue a summonsthe formal document acknowledging that the case has been properly fileduntil today. It usually takes two to three days for that to happen. We served the district this afternoon by email, and will serve Krepp tomorrow or the day after personally.

As of Wednesday afternoon, it appears that many of the people Krepp had originally blocked have now been unblocked. I asked Hecker if this changed anything in regards to the lawsuit and this is what he had to say: We plan to continue. Im not interested in making money, but I do think its important that the courts determine whether this behavior is a violation of the first amendment. We believe it is, and we look forward to the judges decision, even if Commissioner Krepp seems to now realize she was in the wrong.

Although only Hecker decided to engage a lawyer and sue Krepp for her alleged First Amendment violations, other people to whom I spoke for this post mentioned that they were also unhappy with Krepps behavior something that was shared widely on Twitter itself. One of the people to whom I spoke shared this sentiment anonymously: Hopefully this will garner attention that the focus should be on the harm that [Ms. Krepp] causes to Black and Brown residents in her ANC, not solely on whom she blocks on social media.

See the original post here:
Is blocking a constituent on Twitter against the First Amendment? This DC resident thinks so | The Hill is Home - The Hillishome

Well folks, it just doesnt get any more important than this.

The first ever appellate decision analyzing whether a discriminatory statute impacting speech can be applied in a discriminatory manner following an equal treatment First Amendment determination is set to be handed down in Lindenbaum

As ACLU attorney David Carey explained to Unprecedented today if the statutes like the TCPA can be applied in a discriminatory manner than free speech can be blocked as favored speakers are free to violate a restriction and disfavored speakers are unconstitutionally silenced.

This has HUGE implications for society at large and really threatens to make a nullity of the First Amendment protections we all hold so dear.

And, of course, the TCPA is right at the center of this existential battle over the fate of the First Amendment.

Why?

Because courts have shown time and again they are willing to throw out First Amendment protections when it comes to battling the robocall epidemic.

With these considerations in mind the ACLU has joined the critical fight to protect the First Amendment from robocall-induced erosion and submitted a BRILLIANT amicus brief in the critical Lindenbaum appeal, that you can read here.

We break down all of this with David, and hear from University of Michigan, 3L Jonah Rosenbaum about his impressive and critical assistance on the brief that helps highlight why the battle over Creasy is really a battle to protect our civil rights more broadly.

You will not want to miss this HUGE interview, which will drop next week right here.

To get you ready for the big interview, feel free to peruse my commentary on the First Amendment dimensions of the TCPA over the years, and my extremely-well read article on the dire impact of AAPC on the First Amendment landscape.

Chat soon.

More:
BREAKING: ACLU Representatives Join Unprecedented Podcast to Discuss HUGE Ramifications of Creasy/Lindenbaum/TCPA on First Amendment Rights - Lexology