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It may be dubbed the "Promoting Rights and Online Speech Protections to Ensure Every Consumer is Heard" (PRO-SPEECH) Act, but a new bill from Mississippi Republican Sen. Roger Wicker is anything but First Amendment-friendly. Wicker's measure would ban huge swaths of online content moderation, forcing private internet forums to host speech that may currently violate their terms of service and be considered hateful, harassing, vulgar, or otherwise undesired.

The bill would also take aim at freedom of association and free markets, disallowing some tech servicessuch as app stores and cloud computing companiesfrom choosing what products they offer or what businesses they'll contract with.

Introduced Thursday, the so-called PRO-SPEECH Act strikes at the heart of First Amendment protections, compelling companies under threat of sanction from the government to platform messages they otherwise wouldn't.

Essentially, Wicker's bill is "net neutrality" legislationsomething that was vehemently opposed by Republicans of yorebut for online content platforms, search engines, and marketplaces rather than internet service providers. The bill would make it illegal for digital entities to block or impede access to "any lawful content, application, service, or device" that doesn't interfere with platform functionality or "pose a data privacy or data security risk to the user."

The bill would also explicitly ban taking action against a user based on "political affiliation." Tech companies could no longer choose to ban, for instance, Nazi content or decline to host web forums devoted to white supremacist political groups. Web forums couldn't choose to be exclusively for conservative users, or progressive users, or so on.

"Approximately zero people actually want" the Internet this bill would create, Daphne Keller of the Stanford Cyber Policy Center commented on Twitter.

Notably, the bill would exempt from some provisions any company that "publicly proclaims to be a publisher."

It has been a common conservative delusion that Section 230 of the Communications Decency Act already turns on some sort of vital legal distinction between "publishers" on one hand and "platforms" on the other, with platforms having a responsibility to remain neutral conduits for content and only publishers allowed to set any rules for what types of content they will carry. This is not actually the way that Section 230 works.

But "Senator Wicker is trying to make the ridiculous and nonsensical 'publisher/platform' distinction an actual thing, despite the fact that this is blatantly unconstitutional," writes Mike Masnick at Techdirt. "The end result is that this bill leans into the moderator's dilemma and creates two types of internet sites: complete garbage dumpswhere no moderation can take place, and Hollywood-backed squeaky clean productions. It wipes out the parts of the internet that most people actually like: the lightly moderated/curated user-generated aspects of social media that enable lots of people to have a voice and to connect with others, without being driven away by spammers, assholes, and abusers."

In addition, the bill also redefines anti-competitive behaviorthe backbone of antitrust law violationsto include any large company blocking, prohibiting, or discriminating against any platform that competes with any part of its own business. No matter how many of a company's rules the quasi-competitor violated, it would have to be allowed.

The Federal Trade Commission (FTC) would have broad discretion to enforce the law, making it ripe for politics-based abuse. Small internet businesses would be exemptexcept for when the FTC decides they are not.

Violations would be considered unfair and deceptive practices under the Federal Trade Commission Act. Anyone could register a complaint with the FTC alleging a violation, creating a massive new undertaking for the commission as internet moderation police and a massive new layer of bureaucracy for tech companies, which would be required to respond to every complaint.

In essence, the law would quite literally make a federal case out of every aggrieved YouTuber who gets demonetized, business that thinks its search results aren't high enough, troll who feels he deserves a right to say whatever he wants online, etc. If tech companies don't issue a reparation to the complainant, the FTC would be forced to open an investigation within five months.

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The PRO-SPEECH Act Is Anything but First Amendment-Friendly - Reason

American democracy is in danger, and American journalism needs to respond with more than slogans.

Editorials are a good start and the Boston Globe has nowset the bar awfully damn high.

But the mightiest weapon in the journalistic arsenal isn't opinion columns.It's relentless news coverage.

Journalists have the unique ability to ask questions on behalf of the public, demand answers, assess truthfulness, decry stonewalling and do it all again the next day.

To rescue and revive democracy, news organizations don't need to "take sides" with one party or another, and they don't need to publish articles full of opinions.

What the top editors in our top newsroom must do, however, is set the agenda. They need to decide what is newsworthy, and then bring their resources to bear accordingly.

That's the true power of the press.

And those editors should start with an easy one by relentlessly covering the Justice Department's recent outrageous seizures of reporters' communication records. That means news storiesevery dayuntil the public is able to fully understand how they were authorized and by whom, how they were allowed to proceedand what will prevent similar occurrences in the future.

Assaults on freedom of the press aren't "inside baseball." These are the front lines. This is a huge story. As David Boardman, dean of the journalism school at Temple University, tweeted:

The formerly secret subpoenas were for records from reporters at the New York Times, the Washington Post and CNN, in order to identify their confidential sources. Two of the subpoenas were accompanied by outrageous gag orders. (Gag orders on news organizations!)

Their overdue public disclosure by the Justice Department in recent weeks made major headlines and spawned a number of angry opinion pieces.

But with the notable exception of the Times, there's been relatively little news coverage since then. (On Thursday night, the Times continued its streak with abarnburnerreport that Trump's DOJ had similarly subpoenaed communications records of Democrats on the House Intelligence Committee.)

What's particularly missing even from the Times coverage is the application of pressure on the current Justice Department leadership to fully explain what happened, when, why and how. That should be the drumbeat, every day.

Although the various leak investigations originated during the Trump administration, they extended well into Biden's. A huge element of this story is why those investigations weren't immediately abandoned and condemned and why the Justice Department under Merrick Garland won't come clean about what happened.

Some of the opinion pieces were powerful, particularly the one from the normally invisible Washington Post publisher,Fred Ryan.He appropriately pointed out that "the Biden Justice Department not only allowed these disturbing intrusions to continue it intensified the government's attack on First Amendment rights before finally backing down in the face of reporting about its conduct."

In fact, it was the Biden administration thatimposedthe gag order on the New York Times's lawyer, preventing him from disclosing the government's efforts to newsroom leaders or the four reporters whose email logs were at issue.[UPDATE June 13, 12:30 p.m.: Technically, the gag order was imposed by a federal magistrate judge, responding to an application from the Justice Department. The March gag order amended aJanuary orderthat had fully gagged Google from talking to anyone about the records request. TheMarch orderallowed Google to tell the Times's lawyer, but imposed a gag on him as well.]

"This escalation, on Biden's watch, represents an unprecedented assault on American news organizations and their efforts to inform the public about government wrongdoing," Ryan wrote.

The Justice Department on June 5 announced that it would no longer use subpoenas or other legal methods to obtain information from journalists about their sources, elicitingsome new headlines.

But that should not have placated anyone in the news business. What it should have prompted is a slew of additional questions about how this new policy would be applied in an accountable fashion.

AsAnna Diakun and Trevor Timmwrote in the Columbia Journalism Review, the new policy is "a significant improvement to the DOJ's previous approach. Still, there are questions to be answered. When will the DOJ officially update its news-media guidelines to reflect this change? And as theTimesnoted, the DOJ's statement appears to leave some 'wiggle room' surrounding the circumstances in which the policy applies, limiting it to when journalists are 'doing their jobs.' What exactly does this mean?"

Their final, critical question: Who will the Justice Department considera member of the news media?

None of the news reports I saw about the policy shift showed anything likethe appropriate skepticism. For that, you had to watchtelevision interviews with some of the reporters who were directly targeted.

On CBS Now, for instance, Times reporterMatt Apuzzomade the crucial point that there's no reason to take the Justice Department at its word until it fully explains itself. "First we have to understand what happened. How did it happen? Why did it happen?"

"This is becoming a bipartisan pattern," Apuzzo said.

Journalism groups are justifiably concerned.Bruce D. Brown, executive director of the Reporters Committee for Freedom of the Press, said in a statement that "serious unanswered questions remain about what happened in each of these cases."

And by coincidence, the esteemed free-press advocate Joel Simonannounced this weekthat he will step down after 15 years as executive director of the Committee to Protect Journalists. He told the Times: "Governments are increasingly taking aggressive action toward journalists, and there are very few consequences."

In addition to the three demands for records in leak investigations, we also learned in the last few days about a Biden-era demand from the FBI that deserves more coverage. The FBI issued a subpoena to USA Today, demanding it hand over identifying information about readers who had accessed a particular story online during a 35-minute window.

The request related to a Feb. 2 articleabout the shooting death of two FBI agents while serving a warrant in a child exploitation case in Florida. The 35-minute window in question was more than 12 hours after the shooter had killed himself inside his barricaded apartment.

The request was bizarre and inexplicable, and should have been blocked by superiors. Instead, it was only withdrawn "after investigators found the person through other means, according to a notice the Justice Department sent to USA TODAY's attorneys Saturday."

How could that have happened?

Some of the ideally relentless news coverage would also involve questions for the news executives who received subpoenas.

Why did New York Times lawyer David McCraw honor such an obviously absurd gag order? (The order, imposed in March, related to records that were four years old, evidently as part of a fishing expedition aimed to show that former FBI director James Comey disclosed a "secret" document that wasmost likely a hoax. I am not making that up.)

Why, once McCraw was allowed to discuss the request with Times publisher A.G. Sulzberger and CEO Meredith Kopit Levien, didtheyhonor the gag order? Why didn't they just call a press conference?

There are much tougher questions for CNN, which in its own reporting buried the fact that it caved to the Justice Department'srequestfor reporter Barbara Starr's email logsfor June and July 2017.

CNN lawyerDavid Vigilante, honoring a gag order the whole time, apparently fought the Justice Department's request from May 2020 all the way through Januaryof this year. He even won a court ruling that CNN shouldn't have to turn over the logs of emails that were internal to the company.

But that, apparently, was what CNN cared about most. So six days into the Biden administration, CNN turned over a list of Starr's external email contacts during the specified time period to the Justice Department.

CNN'sofficial lineis that those were "essentially records that the government already had from its side of these communications."

Sorry, that doesn't cut it.

Transparency and accountability for everyone!

More here:
To save democracy, let's start by saving the First Amendment - Salon

When I first read the recently published article by Chaplain (Major) David Evans entitled, Starting again: A call for chaplains to reconcile and properly support LGBTQI+ soldiers, my initial response was one of appreciation. I shared the article on Facebook and stated, The entire First Amendment is brought to bear in this one publication. A sensitive but important discussion. Chaplain Evans appropriately states, A chaplain is at the service of all soldiers. This is absolutely true. The oath I have taken to support and defend the Constitution of the United States means my charge as a chaplain a religious leader is to champion the free exercise of religion that the First Amendment to the Constitution protects. However, each chaplains interpretation of sacred texts and traditions pertaining to the capability of performing religious rites is a matter of the free exercise of religion.

Department of Defense Instruction (DoDI) 1300.17, Religious Liberty in the Military Services states, no Service member may require a chaplain to perform any rite, ritual, or ceremony that is contrary to the conscience, moral principles, or religious beliefs of the chaplain. At the core of the DoDI is the Free Exercise Clause of the First Amendment to the United States Constitution. The Free Exercise Clause and the associated Establishment Clause together comprise the concept of freedom of religion inherent in the First Amendment. The Establishment Clause is the first segment which states, Congress shall make no law respecting an establishment of religion. The Free Exercise Clause is the second segment which estates, [Congress shall make no law] prohibiting the free exercise thereof. In other words, the Establishment Clause prevents the state and federal governments from mandating religious practices. In contrast, the Free Exercise Clause prevents state and federal governments from inhibiting the religious practices of individuals.

To the heart of Chaplain Evans article, how the Chaplain Corps supports LGBTQI+ soldiers is of utmost importance. Recent command initiatives to enforce the standard that all persons are treated with dignity and respect are imperative. Existing policy, doctrine and regulation guide the Chaplain Corps and mandate every soldier, dependent and civilian is treated with dignity and respect. Nonetheless, as chaplains care for those whom we serve we must hold fast to our religious convictions in order to be the religious leaders the military requires us to be. If religious convictions do not matter for the religious leader, then there is reason to believe those religious convictions should not matter for anyone. Religious leaders and communities should not only be permitted, but should be encouraged, to interpret their sacred texts and traditions and to act in accordance with those interpretations (so long as their actions are not criminal and do not impinge on the Establishment Clause).

One of the issues at stake is whether or not a persons sexual orientation is a matter of religion. Most religious leaders worldwide believe sexual orientation is a matter of religious importance. The Department of Defense understands individual expressions of sincerely held beliefs (conscience, moral principles, or religious beliefs) which do not have an adverse impact on military readiness, unit cohesion, good order and discipline or health and safety as being protected under the banner of religious liberty (DoDI 1300.17). The argument Chaplain Evans presents is essentially that if the Chaplain Corps is not careful, individual expressions of sincerely held beliefs by chaplains regarding normative practices of sexuality could collectively have an adverse impact on the military. This is a fair caution, but could also be misconstrued. If state and federal governments begin requiring chaplains to transgress sincerely held beliefs, then we will restrict the free exercise of religion of the very people whom we have charged with the task of protecting the free exercise of religion.

In summary, the Chaplain Corps should unequivocally set the standard for treating people with dignity and respect; and there is room for improvement here. However, as chaplains, we should champion the free exercise of religion of those who have taken the oath to serve as chaplains just as much as we champion the free exercise of religion of those for whom we have taken the oath to serve. If we do not account for the free exercise of religion for all soldiers regardless of category, we will undermine our ability to advocate for others.

Chaplain (Capt.) Jordan Henricks is an active duty Army Chaplain currently serving with the 75th Ranger Regiment.

Commentary: The opinions expressed in this article are my personal opinions and do not represent the United States Army or the Army Chaplain Corps

Editors note: This is an op-ed and as such, the opinions expressed are those of the author. If you would like to respond, or have an editorial of your own you would like to submit, please contact Military Times managing editor Howard Altman,haltman@militarytimes.com.

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Responding to a call for chaplains to reconcile and properly support LGBTQI+ soldiers - ArmyTimes.com

PETITIONS OF THE WEEK ByMitchell Jagodinski on Jun 11, 2021 at 4:27 pm

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, First Amendment challenges to the use of membership fees by a union or bar association to engage in political speech, as well as the definition of a state tax under the federal Tax Injunction Act.

Two petitions ask the justices to consider the First Amendment implications of professional fees that are used for political and ideological speech. In Baisley v. International Association of Machinists and Aerospace Workers, an airline employee challenges a fee levied by an airline workers union even though he is not a union member. Under the federal Railway Labor Act, the employees exclusive bargaining representative is the International Association of Machinists and Aerospace Workers. The employee alleges that the union contracted with his employer, United Airlines, to compel employees to pay fees in an amount equal to union dues. He further alleges that the fees are used to fund the unions ideological and political activities unless a non-member affirmatively opts out of contributing to the unions speech. The employee argues that this practice violates both the Railway Labor Act and the First Amendment. He relies on prior decisions holding that public-sector unions and employers must get an employees affirmative consent before extracting union dues or fees.

Next, in Crowe v. Oregon State Bar, the justices are asked to review the use of mandatory attorney dues by the Oregon State Bar to fund political and ideological speech. The challengers are Oregon attorneys who say the state bar uses the mandatory dues to fund legislative advocacy and other speech on matters of public importance. They ask the court to clarify prior case law on bar-association dues and declare that the Oregon policy is subject to the same exacting First Amendment scrutiny as laws involving subsidized speech by public-sector unions.

Lastly, Healthcare Distribution Alliance v. James asks the court to clarify the difference between state taxes and other types of assessments, such as penalties or fees. New York passed a law imposing an annual surcharge on opioid manufacturers and distributors. The state uses the money to pay for remedial programs related to opioid abuse. Pharmaceutical trade groups challenged the law, arguing that it is unconstitutional. The U.S. Court of Appeals for the 2nd Circuit held that the surcharge is a tax under the federal Tax Injunction Act, which prohibits federal courts from enjoining the collection of state taxes. The trade groups say the 2nd Circuits ruling conflicts with decisions by three other circuits about what constitutes a tax under the TIA.

These and otherpetitions of the weekare below:

Healthcare Distribution Alliance v. James20-1611Issue: Whether the New York Opioid Stewardship Acts surcharge is a tax within the meaning of theTax Injunction Act, despite having features that other circuits repeatedly have held indicative of a punitive fee.

Leontaritis v. United States20-1614Issues: (1) Whether, if a jury is instructed to determine a fact by indicating a unanimous finding beyond a reasonable doubt and does so, the resulting verdict indicates a finding beyond a reasonable doubt, as opposed to a mere failure to find; and (2) whether, if a jury verdict finds a fact beyond a reasonable doubt, a district courts sentencing decision must accept the jurys determination or instead may base the sentence on its own independent finding that contradicts the jurys.

Baisley v. International Association of Machinists and Aerospace Workers20-1643Issue: Whether opt-out procedures for collecting union fees for ideological and political activities violate the First Amendment or theRailway Labor Act.

Nettles v. Midland Funding, LLC20-1673Issues: (1) Whether, underSpokeo, it is sufficient for standing simply to allege a violation of the procedural rights created by theFair Debt Collection Practices Act, as six circuits have held, or must a plaintiff also always allege an additional injury beyond such a violation, as five circuits (including the 7th in this case) have held; and (2) whether some additional injury is required for standing under the Act, whether it is sufficient to allege mental distress or lost time dealing with a violation of the Act, as the 4th, 11th, and D.C. Circuits have held, or whether something more than mental distress or lost time is required, as the 7th (in this case) and 9th Circuits have held.

Crowe v. Oregon State Bar20-1678Issue: Whether the statute that compels attorneys to subsidize Oregon State Bars political and ideological speech is subject to exacting scrutiny.

The rest is here:
Union fees, bar association dues, and the funding of political speech - SCOTUSblog

An attorney who specializes in First Amendment litigation said mediation by a universitys public relations team can cause staff and student media censorship, but it may be necessary for the department to sit in during interviews depending on the sensitivity of the topic.

Greg Greubel is a staff attorney at the Philadelphia-based Foundation for Individual Rights and Education, a nonpartisan organization working to protect the rights of faculty and students across the U.S.

Greubel said requiring staffers to forward interview request from student media to Marcom can be discouraging to student journalists, and it also hampers the rights of university employees.

It is a violation of the employees First Amendment rights to have this buffer between speaking to journalists and the university, said Greubel, who spoke about student journalists rights at the virtual convention of the Society of Professional Journalists March 26 .

Greubel said employees are not legally obligated to speak to student journalists, but its necessary they do.

Employees have the right to speak out on matters of public concern, Greubel said. They have the right to talk about it, and its actually very important that they do talk about it.

Greubel said he believes employees should not go through Marcom before being interviewed by student media. He said its censorship on the employees end. As a result of that, its secondary censorship on student journalists, he said.

Because they cant speak to you, that means you cant do your work, Greubel said. Its a secondary effect but does it cause censorship? I think so.

Greubel also said having Marcom intervene is a common practice across the country, though it may be an obstacle for student journalists.

If you direct all the communications through some university department, then theyre not going to be able to speak, maybe at all. If they do, its going to be a tarnished version, Greubel said.

Going through department heads strains credibility from employees, he said.

Greubel said having to notify Marcom of an interview request puts the employee on notice that theyre being monitored, in some sense.

If what these communications departments are trying to do is actually facilitate truth-telling through employees views, thats one thing, Greubel said. But if what theyre trying to do is to act as a sort of buffer and require university employees to speak through the same voice, then its a problem.

Veronica Valdes, The Mesquites spring editor-in-chief, said she once experienced Marcom sitting-in during an interview with Mari Fuentes-Martin, vice president of student success and engagement, last fall. Valdes was working on a story about events being rescheduled because of a COVID-19 spike on campus.

Valdes said she was surprised Jeanette De Diemar, vice president for advancement and external relations, attended the interview since she had called De Diemar for guidance on who to contact. De Diemar had said Fuentes-Martin would be the best source.

Valdes was told Fuentes-Martin was a university spokesperson, she said those people shouldnt need to go through Marcom since theyre already a university spokesperson.

De Diemar said choosing if a member of Marcom should sit in depends on the complexity of the story and how helpful marcom can be.

There are occasions where theres an overlap because Im an official university spokesperson, its part of my role, De Diemar said. There are people who by the nature of their role they would have participated in an interview.

De Diemar said this is not a common practice. Determining if a member of the department should sit in depends on the complexity of the story.

Greubel acknowledged it may be appropriate for Marcom to monitor an interview, depending on the topic.

It is naive to say they should never sit in, Greubel said.

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University employees have right to speak to student journalists, First Amendment expert says | Texas A&M University-San Antonio | TAMUSA - The...