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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.

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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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Is there anything you think were missing? Anything you want to see more of? Wed love to hear from you. Email us at onpolitics@nytimes.com.

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Is a Big Tech Overhaul Just Around the Corner? - The New York Times

People who wish to hold a protest or other event on county property in Gaston County will now need permission ahead of time, according to a new ordinance approved Tuesday night by Gaston County commissioners.

The new rules require people to submit an application to the county at least 24 hours in advance of holding a protest with more than 25 people on county property. Festivals and other events on county property will require an application submitted at least two business days in advance.

It will be up to the sheriff and other county leaders to approve the applications. They're not supposed to deny any on social, political, or religious grounds.

Commissioners approved the new ordinance unanimously at their Tuesday night meeting, despite representatives from the ACLU and Duke University's First Amendment Clinic warning in a letter to commissioners that the rules are overly broad and may violate the First Amendment.

First Amendment Concerns

In the letter, the representatives argued that the notification requirement could stifle free speech, quoting a ruling in NAACP, Western Region v. City of Richmond that said, "The simple knowledge that one must inform the government of his desire to speak and must fill out appropriate forms and comply with applicable regulations discourages citizens from speaking freely."

The representatives also said the ordinance does not make room for spontaneous protests and gatherings that might occur in response to breaking news events.

They also criticized a provision in the ordinance that prohibits protests from occurring within 50 feet of a county building, calling it "overbroad and unconstitutional."

"The sidewalks and other open outdoor areas surrounding county buildings are almost always considered traditional public fora which must be open to the public for protest and assembly," the representatives wrote.

Speaking before Tuesday's vote, Gaston County Commissioner Ronnie Worley said it was not the commission's intention to limit free speech through the updated ordinance.

"Certainly this board's intention is not to inhibit or restrict First Amendment rights," he said. "It's about public safety. It's about the safety of our members of our law enforcement, especially."

He said the ordinance would give police time to prepare for protests and other mass gatherings. He also noted that the ordinance only applies to county property.

"Folks can still congregate and protest freely in other places any time, so it doesn't inhibit freedom or speech in any way," he said.

Past Ordinance Proposals

Tuesday's ordinance was a revision from an earlier, much more restrictive proposal. The earlier proposal would have required people to give 30 days notice and pay at least $250 to host a gathering of 25 people or more, or $750 for groups of 500 people or more on county property.

The proposal needed unanimous consent to pass, and failed after Commission Chairman Tom Keigher cast the lone "no" vote, raising questions about the proposal's constitutionality, The Gaston Gazette reported.

Commissioners have been considering updates to the county's mass gathering ordinance since protests began springing up in the summer of 2020 around a Confederate monument outside the Gaston County Courthouse.

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Gaston County Will Require 24 Hours Notice Before Allowing Protests On County Property - WFAE

The Kansas City Board of Police Commissioners approved two policies Tuesday dealing with requested police reforms.The first requires officers to have body-worn cameras on during every contact with the public. Video that won't be used in evidence will be retained for 180 days, the police department said.The second policy, the First Amendment Policy, prohibits officers from using less-lethal weapons and munitions, other than chemical agents, to disperse crowds in the event of an unlawful assembly. It also states, "Members will make all reasonable efforts to allow law-abiding individuals to continue to exercise their First Amendment-protected rights, and will focus efforts on those individuals in the active assembly who violate the law."The police department said it did extensive research and looked into best practices nationwide to draft the policies. Members also met with community and city leaders, as well as prosecutors and others to create policies that address community concerns."I commend you for continuing to do the work on this," Kansas City Mayor Quinton Lucas said in a news release.The police department said the full text of the policies will be available online soon.

The Kansas City Board of Police Commissioners approved two policies Tuesday dealing with requested police reforms.

The first requires officers to have body-worn cameras on during every contact with the public. Video that won't be used in evidence will be retained for 180 days, the police department said.

The second policy, the First Amendment Policy, prohibits officers from using less-lethal weapons and munitions, other than chemical agents, to disperse crowds in the event of an unlawful assembly. It also states, "Members will make all reasonable efforts to allow law-abiding individuals to continue to exercise their First Amendment-protected rights, and will focus efforts on those individuals in the active assembly who violate the law."

The police department said it did extensive research and looked into best practices nationwide to draft the policies. Members also met with community and city leaders, as well as prosecutors and others to create policies that address community concerns.

"I commend you for continuing to do the work on this," Kansas City Mayor Quinton Lucas said in a news release.

The police department said the full text of the policies will be available online soon.

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KC police board OKs 2 police reform policies on body cams, dealing with protests - KMBC Kansas City