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Scholars recommend limited government restrictions on false political speech.

When President Donald Trump tweetedthat Dems want to shut your churches down, permanently, he committed political fraud.

At least, that is the lesson drawn from a recent article on false political speech that undermines the electoral process by intentionally misleading voters. In this article, Martin H. Redish and Julio Pereyra argue that, in limited circumstances, political fraud ought to be one of the exceptions to the First Amendmentsguarantee of the right to share information and opinions without government interference.

Their analysis depends on a basic assumption about the purpose of the First Amendment. Redish and Pereyra adopt the view of the U.S. Supreme Court that one goal of the First Amendment is to ensure a functional democracy by keeping voters informed. Protecting false speech, Redish and Pereyra argue, is often vital to a functioning democracy. Individuals might not share contentious or even accurate information if the government can later deem it false. According to Redish and Pereyra, false speech should be protected in many, but not all, circumstances.

The dominant view among scholars and practitioners is that the First Amendment protection of the democratic process requires absolute protection of political speech. Alexander Meiklejohn argued in 1948 that the government should not play a role in political discourse. He feared that government interference would prevent the spread of accurate information and would result in a less informed electorate.

An absolute protection of all false political speech, however, also threatens democracy, Redish and Pereyra insist. They argue that political fraud is distinguishable from other false political statements because it undermines the legitimacy of the electoral process by manipulating voters.

Redish and Pereyra acknowledge that any attempt to regulate political speech calls for a delicate balancing act. Statutes that prohibit too much political speech might lead to a less informed electorate by reducing discourse. On the other hand, protecting too much free speech might lead to a misguided or misinformed electorate.

In United States v. Alvarez, the Supreme Court ruled that the government can only limit false speech when it results in defamation, fraud, or some other legally cognizable harm. Although the Court has not clarified this standard, some scholars argue that a legally cognizable harm means that the falsehood interferes with a legally enforceable right created by statute or court precedent. Under this view, the government can only restrict political fraud that violates the legal rights of another person.

Redish and Pereyra argue, however, that the legally cognizable harm requirement should be interpreted more broadly. In Alvarez, the Court upheld three statutes that restricted false speech. The plurality wrote that the legitimately regulated speech posed a serious risk of harm to the governments ability to function. Redish and Pereyra note that the surviving statutes did not target speech that harmed any legally enforceable rights.

Redish and Pereyra claim that an accurate interpretation of the Courts decision in Alvarez allows the government to limit false speech when it causes harm to a compelling government interest. They argue that the government interest in protecting the electoral process by preventing the manipulation of voters is compelling enough to justify intrusion on political fraud.

Redish and Pereyra caution, however, that any such government intrusion should be limited in scope. They recommend four substantive limitations on any laws that would exclude political fraud from First Amendment protection. They claim that, with these limitations, regulation of political fraud would appropriately balance the competing First Amendment concerns of free expression and electoral integrity.

First, Redish and Pereyra emphasize that any regulations of political fraud should be limited to statements about reality that are objectively incorrect. For example, President Trumps claim that Vice President-Elect Kamala Harris might be ineligible for the vice presidency is demonstrably false. Redish and Pereyra note that, under the First Amendment, ideas can never be regulated, but they say that facts can be.

Second, Redish and Pereyra arguethat the inaccuracy in any targeted political fraud must be unambiguous. This requirement of certainty would protect false statements on complex matters, such as the efficacy of a drug, where facts might be disputed and the science still evolving.

Third, any political fraud excluded from First Amendment protection must be the result of actual malice, Redish and Pereyra argue. They explain that the Supreme Court has defined actual malice as making statements one knows, or in effect knows, to be false. This requirement would protect speakers who make or share false statements they believe to be true. For example, it would ensure that public health officials could not be punished for claiming that masks are ineffective at preventing the spread the coronavirus based on information that was available to them at the time.

Finally, Redish and Pereyra argue that any regulation of political fraud should be restricted to lies that could potentially change the outcome of an election. They reason that political fraud poses a significant risk when it is widely shared and believed by enough voters to impact the results of an election. They claim that, in most cases, this requirement would protect false statements made by individuals who are not political actors because most people do not reach enough voters to swing an election. Instead, regulations would target public figures and individuals who coordinate widespread misinformation campaigns.

Although Redish and Pereyra recognize the risk of regulating political speech, they fear that unchecked political fraud poses an even greater threat to the democratic process. They conclude that the First Amendment not only allows lawmakers to limit certain political speech, but also that the democratic guarantees of the Amendment demand it.

Go here to read the rest:
A First Amendment Balancing Act - The Regulatory Review

An interesting story in Public Comment (Annie Gaus):

A new proposal by two San Francisco Supervisors to make "journalistic standards" a condition of City advertising contracts may be legally dubious, according to two leading First Amendment scholars.

Backing away from an earlier move to withhold City advertising funds from one local paper specifically, The Marina Times, the Board voted on Tuesday to approve placing ads in the 36-year-old paper, which circulates in a handful of Eastern neighborhoods.

Instead, Supervisors Hillary Ronen and Dean Preston announced that they are "reviewing options" to change Prop J, a 1994 law governing newspaper advertising contracts, to incorporate what Preston called "certain basic journalistic standards."

The imbroglio began at a grievance-laden Board of Supervisors meeting last week, during which Supervisors complained about what they considered unfair or inaccurate coverage by The Marina Times, making reference to "hate speech" and "disinformation," though no Supervisors provided any specifics. In a 7-4 vote, the Supervisors voted to single out The Marina Times from the City's advertising list.

San Francisco's contracting relationship with local newspapers dates back to Prop J, a 1994 law that requires the City to place ads for public notices in neighborhood or community newspapers. Each year, San Francisco's Office of Contract Administration evaluates the list according to certain content-neutral factors like circulation.

Two federal appellate precedents (not in the Ninth Circuit, where San Francisco is, but likely quite persuasive to courts even there) have held that similar viewpoint-based withdrawals of general government advertising violate the First Amendment (North Mississippi Communications, Inc. v. Jones and El Dia, Inc. v. Rossello). The matter might be different as to more specific advertising choices (e.g., if a city wants to promote itself as a place to which businesses should want to relocate, it might choose to run those ads in outlets whose editorial stances attract lots of business readers).

But when we're talking about general legally required public notices, the precedents I cite seem quite on point: The program stops being a targeted government speech program aimed at spreading a particular message in a particular place, and becomes something akin to a limited public forum, where the government gives newspapers access to funding, and must distribute it in a viewpoint-neutral way (cf. Rosenberger v. Rector)or like a general government contracting program, where the government is likewise constrained by the First Amendment (seeBoard of Comm'rs v. Umbehr).

The article quotes another Supervisor who raised the First Amendment objection:

"All of us on this Board have had negative things written about us in the press. Choosing to run for office means choosing to open yourself up to criticism, fair or not," said Sup. Catherine Stefani at Tuesday's Board of Supervisors meeting. "Taking on that responsibility does not mean that we get to become the arbiters of truth, political viewpoints, or journalistic standardsthat is far outside our prerogative, and far afield of the First Amendment."

And it also quotes both Berkeley Law Dean Erwin Chemerinsky and me as agreeing on this.

Original post:
"SF Supes Step in First Amendment Quagmire in Seeking to Update Newspaper Contracts" - Reason

How should the First Amendment apply to laws that tell giant platforms like Facebook or Twitter how to police third-party content? On one view, content moderation is a form of constitutionally protected speech in itself, much as a newspapers editorial choices are speech. But this view leads to an absurd result in which the First Amendments free speech guarantee becomes a mandate for a small number of corporate heads to rule public discourse. This paper therefore offers an alternative: When a law regulates the dominant platforms content policies, the laws downstream effects on the speech of users should determine whether it violates the First Amendment.

This kind of analysis will require significant legal innovation. The dominant platforms today host virality-driven environments whose internal dynamics undermine First Amendment laws traditional understanding that public discourse can mostly regulate itself. The First Amendments high-level purposes will have to translate differently to these spaces, with doctrinal details that often bear little resemblance to the black-letter law that applies in more traditional settings.

At worst, we may find ourselves faced with the question of how much the First Amendments traditional guarantees must be watered down to account for the new and dangerous physics of ad-driven viral discourse. But more optimistically, the First Amendment could become a spur for regulators to develop and implement new content-neutral measures for mitigating speech-related harm. These measures might create a new, slower model of online speechone that is less prone to manipulation and frenzy, less needful of censorship, and therefore more hospitable to the true freedom of speech.

The paper is also available here.

The rest is here:
Platform Speech Governance and the First Amendment: A User-Centered Approach - Lawfare

It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not-very nice people. So wrote Supreme Court Justice Felix Frankfurter in his dissenting opinion in United States v. Rabinowitz (1950). Albert Rabinowitz was a forger and his case involved the Fourth Amendment right to be free from unreasonable searches and seizures.

But the principle articulated by Justice Frankfurter applies with equal if not more force in First Amendment jurisprudence. Many of our most important First Amendment freedoms have been advanced in the name of hatemongers, flag burners and similar ilk.

Three examples come immediately to mind Clarence Brandenburg, Gregory Lee Johnson and Fred Phelps.

Clarence Brandenburg was a Ku Klux Klan leader who, with about a dozen other members of his hateful tribe, burned a cross before a television reporter in Hamilton County, Ohio. Brandenburg gave a speech that butchered the English language a bit, including the line: Were not a revengent [sic] organization, but if our president, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, its possible that there might have to be some revengeance [sic] taken.

Charged and convicted of violating an Ohio criminal syndicalism law, the Supreme Court unanimously reversed his conviction, finding that there is a difference between hateful ideas and unlawful incitement. The court famously declared in Brandenburg v. Ohio (1969) that the constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

The so-called Brandenburg or incitement test has protected many a political dissident or rabble-rouser through the years. It was truly a landmark free-speech precedent.

Gregory Lee Johnson was a political protestor who took part in the so-called Republican War Chest Tour in Dallas, Texas the site of the Republican presidential convention. Johnson and others protested the policies of President Ronald Reagan and some Dallas-based corporations.

While some protestors chanted America, red, white and blue, we spit on you, Johnson burned an American flag. The police arrested Johnson and charged him with violating a Texas flag desecration statute. A trial court convicted Johnson, but the Texas Court of Criminal Appeals reversed. On further appeal, the U.S. Supreme Court also ruled in Texas v. Johnson (1989) that the First Amendment protected Gregory Lee Johnsons repugnant form of political protest.

In oft-cited language, Justice William Brennan wrote: If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. Brennan and four other justices realized that by protecting the repugnant act of Gregory Johnson, they were ensuring freedom for all. This bedrock principle of the First Amendment remains a shining light in First Amendment jurisprudence.

Fred Phelps founded a group known as the Westboro Baptist Church, which somewhere along the way came upon the belief that God was killing Americas soldiers because the country tolerated and promoted homosexuality. Phelps and many of his children would travel around the country and picket near military members funerals. They would hold up hateful signs advocating their messages of intolerance.

They did so in Maryland at the funeral of slain Marine Matthew Snyder. Snyders father Albert later sued for intentional infliction of emotional distress and a federal jury agreed to the tune of more than $10 million. However, the U.S. Court of Appeals for the Fourth Circuit reversed on First Amendment grounds.

The U.S. Supreme Court agreed in Snyder v. Phelps (2011) that the First Amendment protected the awful speech of members of Westboro Baptist Church, who conveyed their hateful messages on matters of public concern but complied with police orders on distancing from the funeral.

In perhaps his most stirring passage, Chief Justice John G. Roberts, Jr. famously wrote:

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and, as it did here, inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a nation we have chosen a different course to protect even hurtful speech on public issues to ensure that we do not stifle public debate.

The First Amendment protected the likes of Clarence Brandenburg, Gregory Lee Johnson and Fred Phelps.

But thank God it does, because it also protects all of us.

David Hudson Jr. is a Freedom Forum Fellow for the First Amendment and a law professor at Belmont University who publishes widely on First Amendment topics.

See original here:
The First Amendment protects the unsavory and all of us too! - Hopkinsville Kentucky New Era

By Bethany Blankley The Center Squarehttps://www.thecentersquare.com/

A new national survey of 478 higher education institutions in the U.S. found that 9 in 10 restrict free speech in some capacity on campus but nearly half maintain policies that impermissibly restrict online speech.

The study was conducted by FIRE, the Foundation for Individual Rights in Education, a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of students and faculty members at American colleges and universities. These rights include freedom of speech, freedom of association, due process, legal equality, religious liberty, and sanctity of conscience.

The report, Spotlight on Speech Codes 2021: The State of Free Speech on Our Nations Campuses, analyzed the written policies related to free speech at 478 top American colleges and universities. It found that 88 percent of those surveyed maintain policies that restrict, or could be interpreted to restrict, expression.

These policies have real-world consequences, Laura Beltz, FIREs senior program officer for policy reform and author of the report, said in a statement. Students and professors around the country face punishment for speech that is clearly protected by the First Amendment or a schools free speech promises.

FIRE notes that restrictive speech policies extend beyond college campus property. With the advent of Zoom and online classes being conducted remotely, expression is being threatened online, FIRE found, in students own homes and on their own computers.

In New Jersey, a student at Stockton University faced possible suspension, a fine, and a mandatory social justice workshop after using a photo of President Donald Trump as his Zoom background while attending class online. By having a backdrop of the president, the university claimed other students said they felt offended, disrespected, and taunted. The student also posted a Patrick Henry-esque political post on Facebook in July, which prompted the university to charge the student with six policy violations, including harassment and cyberbullying, before FIREs public involvement caused the university to back down.

In June alone, 128 people came to FIRE asking for help when they believed their First Amendment rights were in jeopardy, the organization says.

In Colorado, a University of Colorado-Denver email policy bans students from sending or storing emails with messages that could be considered offensive."

The policy directs students not to use email to send any offensive or otherwise inappropriate matter. Listed examples include offensive comments about a range of topics, including race, gender, political beliefs, and even terrorism.

Im not sure what theyre trying to target by banning offensive comments about terrorism, but in any case, expression doesnt lose constitutional protection just because it has offended someone, Beltz argues.

The policy bans hyperlinks or other references to indecent or patently offensive websites and similar materials, holding students responsible for including a link or reference in an email that someone finds indecent.

While material that meets the stringent legal standard for obscenity is not constitutionally protected, expression cant be limited merely because someone has found it indecent, Beltz adds. Under CU Denvers policy, emailing a link to Cardi Bs WAP video or even a photo of Michelangelos David would be punishable. This absurd result is impermissible at a public university.

In New York, at Fordham University, a policy bans the use of any IT resource, including those off campus, to intimidate, insult, embarrass, or harass others.

Each of the 478 policies analyzed can be found in FIREs Spotlight Database. Schools are ranked according to color, with red indicating that the institution has the most restrictive policies, and green, the least. First Amendment protections analyzed include policies related to protest, online speech, harassment, and civility.

Among them, 21 percent received an overall red light rating for maintaining speech codes that both clearly and substantially restrict freedom of speech.

More than half of red light-ranked schools are located in the District of Columbia and seven states: Alaska, Delaware, Illinois, Oregon, South Carolina, Vermont, and Wyoming.

Roughly 12 percent of institutions analyzed, a total of 56, received green light ranking for having no policies in place that compromise student expression, according to the database.

Yellow light-ranked institutions represent the majority, 65 percent, which have policies in place that prohibit, or have an impermissible chilling effect on, constitutionally protected speech.

Read the rest here:
Report: 88 percent of universities restrict expression, nearly half restrict online speech - The Highland County Press