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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

James Marks

Martinsburg

In recent years I've begun to wonder how our founding fathers might have drafted the Constitution differently had they known what our country, our citizens and our politicians would have become over time. Bear in mind that our Constitution is bar none, the most perfect governmental document contrived by man in the history of planet Earth, and keeping in mind that over the last two and a half centuries, we as a nation, have grown and evolved in our wisdom and learned from our mistakes to make us a more perfect union; i.e.; amendments to that same Constitution.

One thing that comes to mind is the issue of career politicians. Putting it another way, professional politicians might more accurately describe it. Productive or not, successful in accomplishing goals for the people, or not, was that the intention of the framers of our form of government? Since the period of his terms in office of public service by Franklin Roosevelt, the 22nd Amendment not withstanding, and up through occurrences more recently, it isn't uncommon for public servants to remain in office for multiple decades. This immediately bring to mind Joe Biden, now serving almost a half a century! Reflecting on President Washington's thoughts on a third term...he stepped aside to make way for a successor, proving to future generations (and his contemporary critics) his commitment to democracy rather than power. All this in remembering that initially Washington was a farmer, turned general, turned President! In lieu of present trends, I wonder if the framers might have contemplated term limits. I would doubt it considering the vast majority of Congressmen had to maintain their jobs outside of their congressional duties, so being full time politicians would have been out of the question, but I still would make one wonder.

A second thought is on how the creators of our nation might have looked on their first Amendment to our Constitution, more specifically the aspect of Freedom of the Press. Certainly there were contentious articles published in newspapers in the late 1700's and early 1800's to spark debate and maybe even dissension. Bringing that forward to today's journalistic environment and calling it contentious or debatable would be a momentous understatement. In America's press today, blatant disregard for honesty, the truth and facts are the rule, not the exception. Politically motivated, distorted and biased, and total untruths in the characterizing of facts, of quotes from words spoken, and of outcomes of actions taken by political officials is now the norm in America's press today. The Associated Press even more so exacerbates the issue. Have the printed word, radio broadcasts and television news reporting outlets not become the mouthpiece and literally an extension of a political party? And of course over time, this has been compounded and multiplied exponentially by the advent of radio and television, not to mention social media and the cell phone. And unlike the press of our colonial and founding period, the spewing of truths made into lies and lies into truth throughout media today is an occurrence on a moment by moment event that is immediately disseminated to millions of citizens. Maybe our founding fathers in their thoughts on the printing of untruths and non-facts, instituted the 1st Amendment with the thought being if given enough rope, they will hang themselves, proverbially speaking. Time will tell, I guess. But I do have to wonder had they known then what occurs today, would they have considered limits and boundaries on those freedoms, commensurate with the degree of honesty, accuracy, and the truthfulness of the articles they would present to the public?

How often today do we watch and listen to a news broadcast reported to us, particularly on a national issue, and think to ourselves, how can they be reporting that, when we know full well it to be untrue? How frequently do we open the newspaper to read an Associated Press article on the Peaceful Protest in a given metropolitan city, where in fact, a violent mob has destroyed property and peoples lives, and we are fully aware it is totally untrue, nonfactual, a blatant lie?

I reflect from the 1960's on my memory of Pravda (the Communist News Agency, i.e. propaganda machine) on how some news/information was revealed on a given subject that was so filled with untruths that it was literally comical, were it not on a subject of grave consequences. And now in today's context of what is offered up as news is so flagrantly deceitful, it is beyond comical and fringes on infuriating! My bet is that our founders are rolling over in their graves when it comes to the freedoms they have provided in this aspect of their and our First Amendment.

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Had our Founding Fathers known then what we know now - Martinsburg Journal