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BALTIMORE U.S. Rep. Andy Harris, R-Md.-1st, is upset with government officials for cracking down.on church services over violations of COVID-19 orders.

Harris is a Republican representing the Eastern Shore and areas near Baltimore.

He is criticizing Baltimore officials over trying to shut down and restrict services at Greater Grace World Outreach Church in northwest Baltimore over alleged violations of COVID orders. State and local mask and social distancing orders apply to churches and other houses of worship.

Regardless of what this congregation did, the government has no right to shut them down. Anything along that line is a clear and gross violation of First Amendment freedom, Harris said in a statement.

The church held in-person services on Sunday. Baltimore city allows for churches to meet at 25% capacity with plans to go to 50% on March 26.

We just are thankful we can assemble tonight, said Thomas Schaller, senior pastor for Greater Grace World Outreach Church during services on Sunday.

We want to say to the city of Baltimore that we are on the same team. That we love Baltimore, Schaller said.Baltimore is our home. So we care. We are praying for our government authorities, he said.

The church has been warned and restricted over violations of the citys COVID orders related to masks and social distancing.

Schaller said he feels the church should welcome those without masks along with those who want to wear masks. In my heart, I say you are welcome, he said of the unmasked at a recent service. He said the church has canceled or changed numerous events to abide by COVID orders.

Many of us dont care about it anymore. We are hugging and kissing. We are embracing and living, he said referring to the pandemic.

Gov. Larry Hogan has lifted statewide COVID capacity restrictions on churches including on the Eastern Shore. But six-foot social distancing rules hamper a number of churches ability to fully reopen. The U.S. Centers for Disease Control has eased social distancing rules for K-12 schools to three feet for elementary schools and for middle and high schools with lower rates of the virus. Restaurants owners and churches would like to see six-foot social distancing rules revisited for them also.

Baltimore city has also kept more restrictive COVID rules than the state orders though some of those local restrictions are being eased some by Mayor Brandon Scott.

Stefanie Mavronis, deputy director of communications for Mayor Scott, said the city has been meeting with the church about its reopening plans and would continue to enforce city COVID orders including related to masks.

The mayors office and health department met with Greater Grace Church last week. Since then, the health department has received the churchs safety plan for Easter and anticipates a general reopening plan in the near future. The city will continue to enforce the mayors executive order, which is rooted in the public health data and in line with the statewide mask requirement. We remain encouraged by the vast majority of faith institutions that continue to find ways to worship safely during this pandemic, she said.

Still, Harris said government officials especially in Baltimore should not be restricting church and religious services because of COVID orders.

Its truly disturbing to hear government officials chose to completely shutdown a church in response to alleged COVID capacity or mask regulations. Irrespective of what may have been done, this is a gross and egregious violation of the First Amendment. When it says government shall make no law prohibiting the free exercise of religion, the Constitutional authors didnt say a public health emergency was an exception which the Supreme Court has made quite clear in recent rulings. said Harris. The right to practice our faith is essential, and shuttering a congregation for alleged violations of this caliber shows what those in charge really think about individuals practicing their faith. With drugs and violent crime rampant, the problem in Baltimore City is not having too many church goers.

There have been 7,999 deaths attributed to COVID in Maryland since the pandemic began. That includes 14 new deaths reported Monday, March 22 by the Maryland Department of Health.

Read the original here:
Clear and gross violation of First Amendment freedom: Andy Harris faults government over COVID battle with church - Herald-Mail Media

from the ooooooh-boy dept

Two years ago, Supreme Court Justice Clarence Thomas shocked a lot of people by arguing -- somewhat out of nowhere -- that the Supreme Court should revisit the NY Times v. Sullivan ruling. If you're unaware, that 1964 ruling is perhaps the most important and fundamental Supreme Court ruling regarding the 1st Amendment. It's the case that established a few key principles and tests that are incredibly important in stopping vexatious, censorial SLAPP suits -- often by those in power, against those who criticize.

Now, a DC Circuit appeals court judge -- and close friend of Thomas's -- is suggesting that the court toss that standard. And his reasons are... um... something quite incredible. Apparently, he's mad that the media and big tech are mean to Republicans, and he's worried that Fox News and Rupert Murdoch aren't doing enough to fight back against those evil libs, who are "abusing" the 1st Amendment to spew lies about Republicans. As you'll see, the case in question isn't even about the media, the internet, or Democrats/Republicans at all. It's about a permit in Liberia to drill for oil. Really. But there's some background to go through first.

The key part of the Sullivan case is that, if the plaintiff is considered a "public figure," then they need to show "actual malice" to prove defamation. The actual malice standard is widely misunderstood. As I've heard it said, "actual malice" requires no actual malice. It doesn't mean that the person making the statements really dislikes who they're talking about. It means that the person making the statements knew that the statements were false, or made the statements "with reckless disregard for the truth." Once again, "reckless disregard for the truth" has a specific meaning that is not what you might think. In various cases, the Supreme Court has made it clear that this means that the person either had a "high degree of awareness" that the statements are probably false or "entertained serious doubts as to the truth" of the statements. In other words, it's not just that they didn't do due diligence. It's that they did, found evidence suggesting the content was false, and then still published anyway.

This is, obviously, a high bar to get over. But that's on purpose. That's how defamation law fits under the 1st Amendment (some might argue that defamation law itself should violate the 1st Amendment as it is, blatantly, law regarding speech -- but by limiting it to the most egregious situations, the courts have carved out how the two can fit together). Five years ago, 1st Amendment lawyer Ken White noted that there was no real concerted effort to change this standard, and it seemed unlikely that many judges would consider it.

Unlike, say, Roe v. Wade, nobody's been trying to chip away at Sullivan for 52 years. It's not a matter of controversy or pushback or questioning in judicial decisions. Though it's been the subject of academic debate, even judges with philosophical and structural quarrels with Sullivan apply it without suggesting it is vulnerable. Take the late Justice Scalia, for example. Scalia thought Sullivan was wrongly decided, but routinely applied it and its progeny in cases like the ones above. You can go shopping for judicial candidates whose writings or decisions suggest they will overturn Roe v. Wade, but it would be extremely difficult to find on... chemtrail-level, but several firm strides in that direction. Nor is the distinction between fact and opinion controversial at least not from conservatives. There's been some back and forth over whether opinion is absolutely protected (no) or whether it might be defamatory if it implies provably false facts (yes) but there's no conservative movement to make insults and hyperbole subject to defamation analysis. The closest anyone gets to that are liberal academics who want to reinterpret the First Amendment to allow prohibitions of "hate speech" and other "hurtful" words. It seems unlikely that Trump would appoint any of these.

In short, there's no big eager group of "overturn Sullivan" judges waiting in the wings to be sent to the Supreme Court. The few academics who argue that way are likely more extreme on other issues than Trump would want.

And that's why Clarence Thomas's attack on the Sullivan standard was so shocking two years ago. It came basically out of nowhere. Thomas tried to make it all about "originalism", suggesting that if the framers of the Constitution didn't set up different standards for public figures, neither should the Supreme Court. Indeed, what was motivating Thomas' anger at the Sullivan standard seemed to be... that it let too many people be mean to public figures. He even seemed to argue that defamation law should be flipped to be more protective of public figures, since apparently those public figures are delicate little flowers who can't be forced to face pointed criticism. From his statement:

Far from increasing a public figures burden in a defamation action, the common law deemed libels against public figures to be, if anything, more serious and injurious than ordinary libels. See 3 Blackstone *124 (Words also tending to scandalize a magistrate, or person in a public trust, are reputed more highly injurious than when spoken of a private man); 4 id., at *150 (defining libels as malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule (emphasis added)). Libel of a public official was deemed an offense most dangerous to the people, and deserv[ing of] punishment, because the people may be deceived and reject the best citizens to their great injury, and it may be to the loss of their liberties.

In the two years since he wrote that, thankfully, there's been little other movement in the courts to attack the Sullivan standard. Indeed, as White had suggested, any move to do so seems to be viewed as blatantly conspiratorial. However, now an appeals court judge has done exactly what Thomas seemed to be signaling he wanted. And, perhaps not surprisingly, that judge happens to be not just a close friend of Clarence Thomas, but the judge who convinced Clarence Thomas to become a judge in the first place.

Judge Laurence Silberman has been on the DC Circuit since 1985, and has been on "senior status" since 2000. But apparently he's got a real bone to pick with the Sullivan standard. In an absolutely incredible back-and-forth majority opinion and dissent in a defamation case, it is made quite clear that Silberman hates the Sullivan actual malice standard, believes the media is super biased and mean to conservatives, and is no fan of the two other judges on the panel, Judge Sri Srinivasan (currently the Chief Judge on the DC Circuit) and Judge David Tatel.

Both the majority opinion, by Tatel with Srinivasan joining, and the dissent, snipe at the other side in quite pointed ways. But we'll get to that. First, the details of the case. Without going too deep into the weeds, it involves a deal in which Exxon sought to buy an oil drilling license from Liberia. There had been concerns about corruption regarding oil licensing deals in Liberia in the past -- including the very specific plot that Exxon was seeking to drill in. Liberia had put together a committee to help oversee these kinds of negotiations. After the deal -- the largest ever for Liberia -- was completed, the National Oil Company of Liberia awarded bonuses to the negotiators on the committee. Two of those negotiators, Christiana Tah and Randolph McClain, were Liberia's Minister of Justice and the CEO of the National Oil Company of Liberia. Each received a $35,000 bonus.

Global Witness, a non-profit that tries to highlight corruption and human rights violations related to "natural resource exploitation" put out a report alleging that these bonuses were bribes to get the deal to go through. Accusing someone of accepting a bribe is, at least on its face, a much more serious claim and could actually be defamatory (unlike many cases we see where people scream defamation over opinions). However, this case ran into a big problem: the lack of actual malice, which allowed the district court to dismiss the case relatively quickly (as an aside, Global Witness also sought to use DC's anti-SLAPP law, but unfortunately since the DC Circuit has said for years that DC's anti-SLAPP law cannot be used in federal court that failed at both the district and the appeals court level).

Here, the majority opinion explains (in quite readable fashion!) the actual malice standard, and why Tah and McClain failed to establish it. For those who want a nice summary of how actual malice works, the opinion is a good summation:

The actual malice standard is famously daunting.McFarlane v. Esquire Magazine, 74 F.3d 1296, 1308 (D.C.Cir. 1996). A plaintiff must prove by clear and convincingevidence that the speaker made the statement withknowledge that it was false or with reckless disregard ofwhether it was false or not. Jankovic III, 822 F.3d at 58990(second part quoting New York Times Co., 376 U.S. at 27980).[A]lthough the concept of reckless disregard cannot be fullyencompassed in one infallible definition, the Supreme Courthas made clear that the defendant must have made the falsepublication with a high degree of awareness of probablefalsity, or must have entertained serious doubts as to the truthof his publication. Harte-Hanks Communications, Inc. v.Connaughton, 491 U.S. 657, 667 (1989) (alteration omitted)(internal quotation marks omitted); see also id. at 688 (usingthese formulations interchangeably). The speakers failure tomeet an objective standard of reasonableness is insufficient;rather the speaker must have actually harbored subjectivedoubt. Jankovic III, 822 F.3d at 589.

But soon after this, the barbs at Silberman begin. The ruling notes that Silberman seems to have his own objective in dissenting -- even highlighting that the plaintiffs in the case didn't even make the argument Silberman so desperately seems to want them to make.

The dissent thinks this is an easy case. In GlobalWitnesss story, the dissent asserts, Exxon was the briber,Dissenting Op. at 1, yet the report admits that Global Witnessha[d] no evidence that Exxon directed NOCAL to pay Liberianofficials, nor that Exxon knew such payments were occurring,Report at 31.

Critically, however, neither Tah nor McClain advancesthis theoryin their briefing to us, they never even mention thesentence on which the dissent relies. They make four specificarguments in support of their claim that Global Witnesspossessed actual malice, supra at 8, not one of which is thatGlobal Witness had no evidence that Exxon was the briber, andfor good reason. At most, the report implies that NOCAL, notExxon, was the briber, thus rendering any lack of evidence asto Exxons direction or knowledge of the payments totallyirrelevant.

The opinion then even calls out Silberman for trying to coax the lawyers to make the argument he wanted them to make instead of the argument they were actually making:

Indeed, when ourdissenting colleague surfaced his theory at oral argument, itwas so foreign to appellants counsel that our colleague had tospoon-feed him after he failed to get the initial hint. See OralArg. Tr. at 10 (Well, no, its worse. Isnt it stronger than that,counsel? We have no evidence.). As our dissenting colleaguehimself has made clear, we do not consider arguments notpresented to us. Diamond Walnut Growers, Inc. v. NLRB, 113F.3d 1259, 1263 (D.C. Cir. 1997) (en banc). Or put anotherway, appellate courts do not sit as self-directed boards of legalinquiry and research, but essentially as arbiters of legalquestions presented and argued by the parties before them.Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983).

Ooof. And, indeed, when you read the dissent, you can see why Tatel was so annoyed. Silberman pretty clearly has a point he wants to make and he's going to make it whether or not Tah and McClain raised the issue in the case or not. And that point is (1) the actual malice standard is bad, (2) mainstream media companies are bad because they support Democrats, (3) big tech is bad because it support Democrats, and (4) to some extent, Silberman thinks his colleagues on the bench are bad. Oh, but Fox News, Rupert Murdoch, and his buddy Clarence Thomas are all good. It's... quite incredible. I mean, check out this statement:

My disagreement with the district court is limited to theactual malice question (my disagreement with the Majority ismuch broader).

A key part of the disagreement is whether Exxon or NOCAL was considered the "briber" in this case, though the reason that's important seems fairly tortured, so I won't even get into it here. Suffice it to say, Silberman believes that the story Global Witness wrote is "inherently implausible" and therefore that should satisfy the standard for defamation. But in discussing it, Silberman again throws tremendous shade on his colleagues:

The Majoritys assertion that this argument was nevermade by the Appellants leads me to wonder whether wereceived the same briefs. In my copy, Appellants argue thatGlobal Witness subjectively knew that it had not been able todetermine whether the payments of $35,000 to Christiana Tahand Randolph McClain were corrupt bribery payments.Yet . . . Global Witness proceeded to present to readers thedefamatory message that in fact [] Tah and [] McClain hadtaken bribes. Appellant Br. 36 (emphasis in original). Thatsounds to me a whole lot like accusing Global Witness ofpublishing its story with no evidence to back it up. TheMajority, moreover, faults me for assessing the inherent(im)plausibility of Global Witnesss story, without a specificrequest from Tah and McClain to do so. But (as discussed)inherently implausible is a legal standard by which we assessAppellants argumentsnot an argument to be advanced.

And from there, Silberman is off to the races, he spends a few pages accusing the majority of making stuff up, before finally getting around to the point he really wants to make. He wants to take Justice Thomas up on the offer to get rid of the actual malice standard entirely:

After observing my colleagues efforts to stretch theactual malice rule like a rubber band, I am prompted to urge theoverruling of New York Times v. Sullivan. Justice Thomas hasalready persuasively demonstrated that New York Times was apolicy-driven decision masquerading as constitutional law. SeeMcKee v. Cosby, 139 S. Ct. 675 (2019) (Thomas, J., concurringin denial of certiorari). The holding has no relation to the text,history, or structure of the Constitution, and it baldlyconstitutionalized an area of law refined over centuries ofcommon law adjudication. See also Gertz v. Robert Welch,Inc., 418 U.S. 323, 38088 (1974) (White, J., dissenting). Aswith the rest of the opinion, the actual malice requirement wassimply cut from whole cloth. New York Times should beoverruled on these grounds alone.

He at least acknowledges that it would be "difficult" to get the Supreme Court to "overrule such a 'landmark' decision," noting correctly that it would "incur the wrath of press and media." And it would, because it would open up the media (and basically everyone else) to a bunch of censorial SLAPP suits. Silberman then reminisces about pushing the Supreme Court to overrule another "similarly illegitimate constitutional decision" -- one that has been quite important in allowing people whose civil rights were violated by police to seek redress. He goes on to whine that other judges, including then Supreme Court Justice Kennedy, got upset with him for urging such an overturning of precedent. Kennedy, responding to Silberman, suggested that "we must guard against disdain for the judicial system." Silberman seems to relish his contrarian position:

To the charge of disdain, I plead guilty. I readily admitthat I have little regard for holdings of the Court that dress uppolicymaking in constitutional garb. That is the real attack onthe Constitution, in whichit should go without sayingtheFramers chose to allocate political power to the politicalbranches. The notion that the Court should somehow act in apolicy role as a Council of Revision is illegitimate. See 1 TheRecords of the Federal Convention of 1787, at 138, 140 (MaxFarrand ed., 1911). It will be recalled that maintaining theBrezhnev doctrine strained the resources and legitimacy of theSoviet Union until it could no longer be sustained.

He then goes through the details of the Sullivan ruling, arguing that it was clear judicial activism, and insists that such a ruling would never have happened today. Then he complains that it has given the press way too much power:

There can be no doubt that theNew York Times case has increased the power of the media.Although the institutional press, it could be argued, needed thatprotection to cover the civil rights movement, that power is nowabused. In light of todays very different challenges, I doubtthe Court would invent the same rule.

As the case has subsequently been interpreted, it allowsthe press to cast false aspersions on public figures with nearimpunity.

And then it's all "those media orgs are so mean to my friends."

Although the bias against the Republican Partynotjust controversial individualsis rather shocking today, this isnot new; it is a long-term, secular trend going back at least tothe 70s. (I do not mean to defend or criticize the behavior ofany particular politician). Two of the three most influentialpapers (at least historically), The New York Times and TheWashington Post, are virtually Democratic Party broadsheets.And the news section of The Wall Street Journal leans in thesame direction. The orientation of these three papers isfollowed by The Associated Press and most large papers acrossthe country (such as the Los Angeles Times, Miami Herald, andBoston Globe). Nearly all televisionnetwork and cableisa Democratic Party trumpet. Even the government-supportedNational Public Radio follows along.

Uh... what?

Also, big tech is bad:

As has become apparent, Silicon Valley also has anenormous influence over the distribution of news. And itsimilarly filters news delivery in ways favorable to theDemocratic Party. See Kaitlyn Tiffany, Twitter Goofed It, TheAtlantic (2020) (Within a few hours, Facebook announced thatit would limit [a New York Post] storys spread on its platformwhile its third-party fact-checkers somehow investigated theinformation. Soon after, Twitter took an even more dramaticstance: Without immediate public explanation, it completelybanned users from posting the link to the story.).

What does this have to do with a case regarding oil drilling in Liberia? You know as much as I do. But don't worry, Judge Silberman wants you to know that at least there's Rupert Murdoch to step in and balance the scales at least somewhat. Really. I'm not kidding.

To be sure, there are a few notable exceptions toDemocratic Party ideological control: Fox News, The NewYork Post, and The Wall Street Journals editorial page. Itshould be sobering for those concerned about news bias thatthese institutions are controlled by a single man and his son.Will a lone holdout remain in what is otherwise a frighteninglyorthodox media culture? After all, there are serious efforts tomuzzle Fox News. And although upstart (mainly online)conservative networks have emerged in recent years, theirvisibility has been decidedly curtailed by Social Media, eitherby direct bans or content-based censorship.

He also has another footnote attacking the 1st Amendment rights of the internet companies, which he insists -- without any actual evidence, because none exists -- are "biased" against his Republican friends.

Of course, I do not take a position on the legality of bigtechs behavior. Some emphasize these companies are private andtherefore not subject to the First Amendment. Yeteven if correctit is not an adequate excuse for big techs bias. The First Amendmentis more than just a legal provision: It embodies the most importantvalue of American Democracy. Repression of political speech bylarge institutions with market power therefore isI say thisadvisedlyfundamentally un-American. As one who lived throughthe McCarthy era, it is hard to fathom how honorable men andwomen can support such actions. One would hope that someone, inany institution, would emulate Margaret Chase Smith.

He then proceeds to complain about how the media and big tech are helping Democrats.

There can be little question that the overwhelminguniformity of news bias in the United States has an enormouspolitical impact. That was empirically and persuasivelydemonstrated in Tim Grosecloses insightful book, Left Turn:How Liberal Media Bias Distorts the American Mind (2011).Professor Groseclose showed that media bias is significantly tothe left. Id. at 192197; see also id. at 16977. And thisdistorted market has the effect, according to Groseclose, ofaiding Democratic Party candidates by 810% in the typicalelection. Id. at ix, 20133. And now, a decade after this bookspublication, the press and media do not even pretend to beneutral news services.

It should be borne in mind that the first step taken byany potential authoritarian or dictatorial regime is to gaincontrol of communications, particularly the delivery of news.It is fair to conclude, therefore, that one-party control of thepress and media is a threat to a viable democracy. It may evengive rise to countervailing extremism. The First Amendmentguarantees a free press to foster a vibrant trade in ideas. But abiased press can distort the marketplace. And when the mediahas proven its willingnessif not eagernessto so distort, it isa profound mistake to stand by unjustified legal rules that serveonly to enhance the press power.

And that's how it closes. Even if there are legitimate reasons to question the "actual malice" standard, to go on an unhinged Fox News-style rant about "anti-conservative bias" seems particularly ridiculous. It sure looks like Silberman has been spending a bit too much time believing propaganda, and is seeking to torpedo a free press in response.

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Filed Under: 1st amendment, actual malice, bias, big tech, clarence thomas, dc circuit, free speech, laurence silberman, liberia, media, news, oil drilling, section 230, supreme court

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Appeals Court Judge Attacks Fundamental Principle Of 1st Amendment Law, Because He Thinks The Media Likes Democrats Too Much - Techdirt

Although it was only a short session, this years iteration of the Kentucky General Assembly was an unprecedented assault on transparency and the constitutional guarantees of free speech and freedom of the press. As counsel for the Kentucky Press Association (KPA)one of whom was a primary author of the states Open Records Actswe saw first-hand how close Kentucky came to trading its status as a national leader in transparency for a new reputation as the one of the states most willing to trample on the First Amendment. Even for lawyers whove been around Frankfort and thought theyd seen it all, this years legislative push was truly shocking.

Take for example SB 211, a bill proposed by Sen. Danny Carroll of Paducah. Among many other things, this legislation would have made it a crime to insult, taunt, or challenge a law enforcement officer with derisive words or gestures if a reasonable person would have felt provoked by the speech. Never mind that challenging authority is the basis of our republic and that police are (or should be) trained to de-escalate tense situations; the Senate decided that the right response is to jail citizens who hurt police officers feelings and to mandate that they be held for at least 48 hours without bail. The original version went even further; it would have stripped all public assistance benefits from anyone convicted of this offense (and others related to protesting)a mean-spirited provision that trades on racial stereotypes and was rightly removed even from an otherwise unconstitutional bill.

Another egregious example was the attempt to amend SB 48, a rather innocuous bill concerning the home addresses of police officers and other officials (which are confidential under current law). The Kentucky House tried to amend this bill at the eleventh hour to add new criminal penalties and a private right of action against any person who disseminated information in print or online that could be used to identify a police officer, prosecutor, judge, or other named public employees or their family members. That means that any story about either Gov. Beshear (both former prosecutors), Attorney General Cameron, the LMPD Officers involved in the Breonna Taylor case, and even the bills sponsor (Rep. Blanton, a former KSP officer himself), would have been a crime if those officials claimed to have a reasonable fear of harm to themselves or their property. Moreover, upon a request from a protected individual or their family member, newspapers would have been required to scrub their archives of all such storiesand individuals forced to scrub their social media feedsor face the threat of prosecution or a lawsuit for punitive damages.

If these examples seem absurd and far-fetched to you: we agree. But despite what legislators said about their bills, that is exactly what the proposed language would do. And they likely would be on their way to being the law in Kentucky if not for the brave actions of a handful of legislators in both parties that stood up for the constitutional rights that all members claim to protect. For example, Rep. Jason Nemes from Louisville made the key motion in the House Judiciary Committee to strip SB 48 of the unconstitutional proposal from Rep. Blanton that the committee had approved just minutes before. Even after that succeeded, the bill rose again like a Zombie on the House floor at the behest of Republican leadership, and likely would have passed had time not run out on the final day before the veto periodthanks, in large part, to the courageous (if somewhat tedious) actions of many members of the Democratic caucus, who slowed down the action on the House floor and prevented the passage of SB 48, SB 211, and other unconstitutional acts the Governor would have been powerless to stop with his veto pen.

Among the unconstitutional bills that did not make it for a vote was the doxing bill, SB 267. That was one of many ways in which Frankfort tried to regulate what the citizens of the world can say about Kentucky residents. Even as our state and federal courts repeatedly hold that Kentucky has no power to police all online speech about Kentuckians, our General Assembly has tried to push through and pass bills that try to do just that.

Unfortunately, these bills are likely only a taste of what is to come. Kentuckians can expect the General Assembly to keep pushing laws that will keep them in the dark about their elected leaders and public servants and punish them for any criticism of those same officials. We can only hope that the courageous fewof both partieswill continue to stand up for the constitutional rights and transparency laws that are vital to a functioning democracy. Those who take those aspects of our democracy for granted nearly lost them this year and could do so soon if we are not all vigilant together.

That means that we, as citizens, must do better by focusing on the right things, at the right time, with the urgency appropriate to the situation. Too often we allow ourselves to be riled up about the wrong things and allow more space for those who want to slip these unconstitutional bills through to do just that.

The past few weeks provide an object lesson. Much of the ink spilled this session by certain transparency advocates concerned HB 312, a bill that modified the states open records laws in certain respects. The KPA was as surprised as anyone to see that bill, which was a mashup of proposals from prior sessions, come back when and how it did. However, KPA had been in active dialogue for the past two years with the bills sponsors and the Kentucky League of Cities over similar proposals. Therefore, we reacted quickly and, within a matter of hours, secured changes to a proposal that really would have eviscerated the states transparency laws (scuttling adoption of an expansive definition of preliminary records); preserving the rights of all media organizations (wherever located) to request records; and preventing new exceptions that would have overturned hard-won court victories in favor of the publics right to know. Yes, there are aspects of the bill that KPA opposessuch as the constitutionally dubious attempt to exempt the legislature from judicial review of its own open records decisions; that is why the KPA did not endorse the bill. But by having a seat at the table we were able the blunt the bills worst aspects and preserve the heart of the ORA from direct attack.

But you would not know that by reading the dramatic critiques of the bill, which portrayed minor, largely procedural changessuch as the use of a new standardized formas a dramatic rollback of 40 years of transparency. KPA would never stand by and watch that happen; nor would the authors, having spent decades actually litigating Open Records cases. Rather, we continued to work doggedly behind-the-scene to negotiate language that will protect the publics right to know, securing even more changes up until the very end of the process.

By crying wolf about bills like HB 312and a similar measure related to gruesome photos that is not likely to materially alter current lawcertain transparency advocates threaten to do real harm. In a time when the legislature seems set on undermining the First Amendment and the publics right to know, we must focus the publics attention on the real wolves at the door: bills that would substantively erode the Open Records law and trample on First Amendment rights. We need to do the hard work to look past what is trending on social media and tell our elected representatives that their job is to protect our foundational First Amendment rightsnot their own feelings or those of favored constituents.

Jon L. Fleischaker and Michael P. Abate serve as outside General Counsel to the Kentucky Press Association. They practice media, and constitutional, and appellate law, among other things, at Kaplan Johnson Abate & Bird LLP in Louisville.

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GUEST COLUMN: Frankfort's assault on the Constitution and transparency - Times Tribune of Corbin

We reported last week that the ACLU has joined the fray over the TCPAs constitutionality following AAPC. (We have a BIG podcast interview with those guys scheduled for tomorrow BTW.)

Well three more heavy-hitting briefs were just filed yesterday including one by FACEBOOK yes, that Facebookthat casts a whole new light on this thing.

Here are a few pieces of Facebooks introduction:

In AAPC, a splintered Supreme Court majority held that the TCPAs differential treatment of government-debt-collection speech and other categories of speech was unconstitutional. To fix that problem going forward, the Court invalidated and severed the debt-collection exception to the ATDS restriction, 47 U.S.C. 227(b)(1)(A)(iii). AAPC made clear that the post-severance ATDS restriction would now apply equally to all callers, including those making ATDS calls to collect government-backed debt. Crucially, however, AAPC was a pre-enforcement facial challenge seeking only prospective relief. So the Court did not have to resolveand did not resolvethe effect of its constitutional analysis on calls made when the content-based exception was in effect.

The only way to implement AAPCs equal-treatment mandate is to hold that the ATDS provision cannot impose liability for any ATDS calls made while the government-debt exception was in effect.

Now whats really ground breaking about Facebooks position is this concept that AAPCs specific and critical holding was that the First Amendment is an ironing board. (Remember that big piece I wrote on the subject?)

But enforcing the statute in cases involving calls prior to July 6, 2020 is actually inconsistent with the whole ironing board thing speech is not being flatted out, it remains all wrinkly and unwearable. Specifically the statute is enforceable in an uneven and constitutionally-unaccepted way.

While these arguments permeate the appellees brief already, Facebooks brief really puts a fine point on it: Plaintiffs proposed reading of AAPC really would put the decision at war with itselfexalting a footnote over the central holding of the case itself.

Really, really nice stuff guys. (That Roman Martinez fella is pretty bright.)

Additionally briefs were submitted by ACA, Intl and CUNA that are also outstanding.

You can read all three here:

Having now digested everythingand without the benefit of Plaintiffs reply brief just yetI have to tell you this is going to be a very close call. I love the ACLUs elegant First Amendment framework and Facebooks dont-use-AAPC-against-itself argument is killer.

But will the Sixth Circuit do the right thing? Backing Creasy means wiping out trillions of potential TCPA exposure and allowing four years of potential robocall sins to be wiped away. Then again, not backing Creasy would result in the continued erosion of our cherished First Amendment protections and deprive us even of that crummy ironing board that AAPC gave us. (I mean, I didnt want it before but now that someone is trying to take it away I changed my mind.)

I cant wait to find out how this one resolves. Really interesting stuff.

THIS is why I love the TCPA folks.

More here:
CREASY COMEBACK?: Three More Heavy-Hitting Briefs Prop-Up Constitutionality Battle in the Sixth Circuit - Lexology

The leaders of Google, Facebook and Twitter testified on Thursday before a House committee in their first appearances on Capitol Hill since the start of the Biden administration. As expected, sparks flew.

The hearing was centered on questions of how to regulate disinformation online, although lawmakers also voiced concerns about the public-health effects of social media and the borderline-monopolistic practices of the largest tech companies.

On the subject of disinformation, Democratic legislators scolded the executives for the role their platforms played in spreading false claims about election fraud before the Capitol riot on Jan. 6. Jack Dorsey, the chief executive of Twitter, admitted that his company had been partly responsible for helping to circulate disinformation and plans for the Capitol attack. But you also have to take into consideration the broader ecosystem, he added. Sundar Pichai and Mark Zuckerberg, the top executives at Google and Facebook, avoided answering the question directly.

Lawmakers on both sides of the aisle returned often to the possibility of jettisoning or overhauling Section 230 of the Communications Decency Act, a federal law that for 25 years has granted immunity to tech companies for any harm caused by speech thats hosted on their platforms.

These Big Tech companies are among the wealthiest in the world, and their lobbying power in Washington is immense. Besides, there are major partisan differences over how Section 230 ought to be changed, if at all. But lawmakers and experts increasingly agree that the tide is turning in favor of comprehensive internet regulation, and that would most likely include some adjustments to Section 230.

To get a sense of where things stand, I caught up by phone with Jonathan Peters, a professor of media law at the University of Georgia, who closely follows Big Tech regulation. Our conversation has been lightly edited and condensed.

In her introductory remarks at the hearing today, Representative Jan Schakowsky of Illinois said, Self-regulation has come to the end of its road. What does she mean when she talks about an era of self-regulation on the internet? And how was that allowed to take hold?

The background of this hearing is that platforms like Facebook, Twitter, Instagram and YouTube, and big parent companies like Google, have come to have an enormous amount of power over the public discourse. And the platforms routinely conduct worldwide private speech regulation, through enforcement of their content rules and their community guidelines, deciding what may be posted, when to honor any request to remove content and how to display and prioritize content using algorithms.

Another way of putting it is that they are developing a de facto free-expression jurisprudence, against the background of the platforms business and legal interest and their self-professed democratic values. That has proved extremely difficult in practice.

The internet exists on a layered architecture of privately owned websites, servers and routers. And the ethos of the web, going back to its early days, has been one governed by cyber-libertarianism: this theory that by design this is supposed to be a relaxed regulatory environment.

What these hearings are trying to explore is the question, as you mentioned: Have we reached the end of that self-regulatory road, where the government ought to have a greater role than historically it has had in this space?

With all of that in mind, is antitrust legislation from Congress likely? How does President Bidens arrival in the Oval Office change the prospects?

Its interesting: If you look at what Biden has said as a candidate and what Biden has done as president, theyre a little bit different. As a candidate, Biden said he would favor revoking Section 230. He does not have even the Democratic votes to go through with a full revocation of Section 230, although an amendment might be possible. I think hes facing the political reality that that is going to be a harder sell than he had initially thought.

In terms of whether broad antitrust legislation might pass this Congress, it does seem possible. Antitrust issues in the social media space have generated a lot more interest in the last couple of years than they have in the last 15 or 20 combined. If I could put that in just a little bit of historical context for you: 2019 marked the 100th anniversary of a monumental dissenting opinion in a Supreme Court case called Abrams v. United States. That was a case in which Justice Oliver Wendell Holmes really gave rise to our modern First Amendment, and the enduring concept of the value in a market of free trade in ideas.

With the rise of social media, our free-speech landscape today looks exceedingly different than it did when Holmes wrote those words. He was warning of the dangers of the governments ability to censor critics or other disfavored speakers, whereas now the entities best able to restrict our speech are nongovernmental internet and web platforms.

So, many traditional First Amendment principles dont map easily onto our reconstructed speech landscape. And I think the central concern at the heart of these antitrust cases is the power that is at the heart of what these companies do. Its not that they produce widgets; they play a significant role, every day, in public discourse on matters of public interest.

Have the events of Jan. 6 and the entire experience of the 2020 election which was riddled with false information about elections and voting affected the likelihood of change? Did it really turn up the urgency in a meaningful way around web regulation?

I would say that it did. And it also clarified the differences, in terms of why the Democrats believe that reform is necessary and why the Republicans believe that it is. There is a growing consensus that we need more regulation to ensure the openness and usefulness of the web, but Democrats and Republicans disagree on why.

Democrats generally would argue that the platforms allow too much harmful user content to be hosted and spread the kind of misinformation and disinformation we saw around the 2020 election, some of which of course contributed to or caused the Capitol insurrection. I would say that Democrats are also concerned with bullying, harassment and threats; hate speech; criminal activity that occurs on social media platforms; and the presence of dangerous organizations like terrorist groups or violently graphic content, and the effect those might have.

Republicans, by contrast, have sounded some of those same concerns. But they have focused a lot more on their concern that platforms censor conservative viewpoints that the platforms are engaging in viewpoint discrimination. Im not convinced that there is evidence of that, but that claim was made more loudly after President Trump was deplatformed by several of these major social media companies. I think it gave them another arrow in their quiver to try to advance that rhetorical argument that they had been making before the Capitol attack.

From Opinion

On an average day in the United States, more than 100 people are killed by guns. Most Americans want Congress to do something about this crisis, but for years, their representatives have offered them only political theater.

Why? Its not for lack of understanding of the problem, the cause of which is actually quite simple: The United States has a staggering number of guns. Over 393 million, to be precise, which is more than one per person and about 46 percent of all civilian-owned firearms in the world. As researchers at the Harvard T.H. Chan School of Public Health have put it, more guns = more homicide and more guns = more suicide.

But when it comes to understanding the causes of Americas political inertia on the issue, the lines of thought become a little more tangled. Some of them are easy to follow: Theres the line about the Senate, of course, which gives large states that favor gun regulation the same number of representatives as small states that dont. Theres also the line about the National Rifle Association, which some gun control proponents have cast arguably incorrectly as the sine qua non of our national deadlock.

But there may be a psychological thread, too. Research has found that after a mass shooting, people who dont own guns tend to identify the general availability of guns as the culprit. Gun owners, on the other hand, are more likely to blame other factors, such as popular culture or parenting.

Americans who support gun regulations also dont prioritize the issue at the polls as much as Americans who oppose them, so gun rights advocates tend to win out. Or, in the words of Robert Gebelhoff of The Washington Post, Gun reform doesnt happen because Americans dont want it enough.

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Read the rest here:
Is a Big Tech Overhaul Just Around the Corner? - The New York Times