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Gene Policinski is president and chief operating officer of the Freedom Forum Institute.

When it comes to free expression and the First Amendment, its important for us to know when it protects what we say and write and when it doesnt.

Case in point: Proposed Arizona House bill HB2124, related to access to online content. The sponsor, state Rep. Bob Thorpe, proposes to allow users or the state attorney general to sue an internet site that edits, deletes or makes it difficult or impossible for online users to locate and access content on the site in an easy or timely manner for politically biased reasons.

The bill is in line with complaints now fashionable among political conservatives nationwide that online platforms and social media sites from Google to Facebook to Twitter and others somehow exclude or downplay their views while emphasizing liberal viewpoints.

Nothing wrong with raising such concerns. The inner policies and algorithms of these web behemoths largely generally remain hidden and the entire online world is simply too new and ever-changing to provide an accurate portrait from the outside.

So, in effect we dont know what were not seeing when we search or use such sites, and those companies are free to set their own practices and rules on what we do see or post. Whether for altruistic or political motives, proposals such as the Arizona legislation would change that except that the First Amendment rules out such government intervention in a private business.

The First Amendment guarantees against content or viewpoint discrimination and by extension, access to information apply to government, not private individuals or companies, which have their own First Amendment rights to decide what they will or wont say and post. And even legislation cannot empower individuals (or attorneys general) to override that constitutional protection by using civil penalties rather than criminal law see the old legal adage, you cannot do by the back door what you cannot do by the front door.

Moreover, do we really want to override the First Amendment with such open access laws? Turn to another adage the law of unintended consequences. Requiring internet providers to permit unrestrained access and right to post material denies such companies the ability to respond to their consumers demands on materials that can range from offensive to repulsive. Thorpes bill excludes libelous or pornographic material, but what about currently banned content on most social media sites, such as videos that show public assaults or are intended to bully or harass? Would internet companies and social media sites be mandated to carry deliberate misinformation about health issues?

There is a small window in the wall of First Amendment protection that could possibly permit regulation of private online companies, called the public function exception. In effect, it turns a private concern into a government operation when performing an essential government function. The exception rests on a 1946 Supreme Court decision, in Marsh v. Alabama, involving a so-called company town. The court reasoned that since the town functioned as a government entity, not a private enterprise, it had become one.

But the court has refined its ruling through the years, and in 1974 held that such a conversion takes place only when the private concern is providing services exclusively done by government. Clearly, providing an online platform or a social media site fails to meet that test.

Some critics of the current social media policies argue that those sites are effectively a digital public square by virtue of their ubiquitous presence in modern life. Some reports say that more than seven in every 10 Americans used social media sites in 2018 and that the number increases each year. But the very nature of the web, in which start-ups and competing sites of all kinds arise constantly, would also seem to prevent isolating even dominant companies for such a quasi-government role with the required exclusive provider condition.

As shown in other examples where First Amendment protections come into conflict with practices or actions that offend, or seem to run counter to the marketplace of ideas concept of the widest exchange of ideals or viewpoints, the court of public opinion often functions more effectively and more quickly than legal action or legislation. Public discussions and resulting social pressures to combat online bullying or videos showing assault or even murders have demonstrably changed those private provider policies on what is posted and permitted, for example.

A shortcut through First Amendment protections may seem an expedient method at the time but for very good reasons, free expression advocates should resist quicker solutions for some, in the name of protecting those long-term freedoms for us all.

Gene Policinski is president and chief operating officer of the Freedom Forum Institute. He can be reached at[emailprotected], or follow him on Twitter at@genefac.

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FIRST FIVE: Focus on when the First Amendment protects and doesn't - hays Post

A cross stands in the Roman Colosseum. (Photo credit: Kaveh Kazemi/Getty Images)

The editorial in the Feb.18 Orlando Sentinel is critical of private schools, mostly Christian, which participate in a state-school voucher program; the schools uphold biblical teachings on homosexuality. The newspaper says they should not qualify for the program because they discriminate against homosexuals the way Bob Jones University once discriminated against blacks. There are several problems with this line of reasoning.

Race and sexual orientation have nothing in common: race is not a behavioral category but sexual orientation is ineluctably ordered to behavior. Christian sexual ethics, which are based on Judaism, proscribe adultery, homosexuality, and other sexual acts. That is their right.

There is no rational argument for denying a person who is black, brown, or white from marrying to attending a Christian school: race is behaviorally neutral. Indeed, it is because Bob Jones Universitywhich also promoted anti-Catholicismcould not sustain a rational argument that it eventually was forced to change course.

There is a rational argument for allowing religious schools to sanction behaviors it finds sinful. To deny them this option is to deny them their identity. Moreover, to protect the institution of marriageindeed to grant it a privileged positionChristian sexual ethics does not approve of sexual conduct that is outside the union of a man and a woman in the institution of marriage. No such reasoning could plausibly be applied to denying mixed racial marriages.

An investigation of private schools in Florida by the Orlando Sentinel, published Jan.23, found 156 private Christian schools with "anti-gay policies."Almost half are Baptist. Catholic schools were mostly given a pass by the newspaper.

Catholic schools do not reject applicants on the basis of sexual orientation, though they will enforce teacher contracts which bar them from marrying someone of the same sex, and they generally do not admit students whose parents are homosexuals. The reasoning is sound: sending mixed messages to students only confuses them about the validity of Catholic sexual ethics.

As it turns out, for nine schools, the newspaper cites quoted statements as proof of their "anti-gay views." It is important to note that the statements have nothing to do with the status of a student's sexual orientation. Rather, they have to do with beliefs and practices.

1. Central Florida Christian Academy admits students who follow biblical teachings and abstain from "sexual immorality." The newspaper concludes this means "gay children aren't welcome." But it is not clear that it does. The school did not say it does not admit gay students. It suggested it does not admit students who are engaged in sexually immoral behavior. That could mean premarital sex (until recently confined to heterosexuals), as well as homosexual acts.

2. Calvary Christian High School in Clearwater is mentioned because it denies students who practice a "homosexual lifestyle or alternative gender identity" or "promoting such practices." Lifestyle, switching sexes, and [homosexual] practices are all behavioral categories, and as such are entirely legitimate for a Christian school to consider.

3. Wade Christian School in Melbourne says students can be expelled for a "homosexual act." The emphasis is on an "act," not orientation.

4. Master's Academy describes "homosexual behaviors" as sinful and does not enroll those who engage in them. Again, it is the behavior that matters.

5. Mount Dora Academy lists as an offense "sexual misconduct or professing immorality (including homosexuality) on or off campus." Conduct is not neutralit is normativeand is therefore a valid concern for Christian schools.

6. Landmark Christian School in Haines City does not accept or retain "faculty, staff, or students who profess to or practice a homosexual lifestyle." A lifestyle is empirically a behavioral category.

7. Cooper City Christian Academy in Broward County says students should refrain from "talking favorably about or engaging in" such things as "idolatry, Satanism, astrology, profanity...premarital sexual activity, pornography, homosexual behavior, gender-confusion behavior, [and] cross-dressing." All of these beliefs and practices are proscribed by our Judeo-Christian tradition.

8. Worshiper's House of Prayer Academy in Miami says it has a "zero tolerance" policy for "homosexual activity." Activity is conduct.

9. Donahue Academy is the one Catholic school listed. Its "anti-gay" rule bars those who "advocate" or act "upon those [disordered] inclinations romantically or sexually." This speaks to the religious beliefs of Catholic schools and the acting out of proscribed moral conduct.

In short, the Orlando Sentinel counts as "anti-gay views" anything associated with the sexual ethics of the three monolithic religions: Judaism, Christianity, and Islam. It has a First Amendment right to free speech to do that. But religious schools also have a First Amendment right to free speech, as well as the free exercise of religion.

Bill Donohue is President and CEO of the Catholic League for Religious and Civil Rights, the nation's largest Catholic civil rights organization.

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Orlando Sentinel's Attack on Schools Barring Gay Acts Is an Attack on the First Amendment - CNSNews.com

Recent antics to stir up controversy are disingenuous.

by THE DARTMOUTH EDITORIAL BOARD | 2/21/20 1:00am

If the Dartmouth College Republicans had not used the phrase Theyre bringing drugs in the subject line of an email sent to campus earlier this week, it is quite likely that none of what is described in the remainder of this editorial would have happened.

But, of course, that is what the College Republicans titled their email announcing a policy talk with a Republican candidate for U.S. Senate, Bryant Corky Messner, who was scheduled to have an event at the Rockefeller Center for Public Policy on Tuesday on the topic of the need for more border security specifically, a wall at the southern border to fight the opioid crisis.

Setting aside the rather galling implication that a border wall constitutes a serious solution to one of the United States most important problems today, one might reasonably understand why titling an email Theyre bringing drugs would upset people and lead to students expressing concern which is exactly what happened.

What cannot be reasonably understood is why, two days later, the College Republicans announced that the event had been postponed, citing serious security concerns. If there had been legitimate security threats made, then the College and local police would have been involved in the postponement decision which, as this newspaper reported yesterday, was not the case. In fact, as College Republicans secretary Griffin Mackey 21 told The Dartmouth, the decision to cancel was made because the group determined it did not have the budget or time to secure security resources.

So maybe this was all one big mix-up, in which the College Republicans sent out a provocative email to campus that was misconstrued by students concerned about the event. But that would not explain why the leadership of the College Republicans then told a right-wing news outlet that the event was postponed due to a possible violent response by left-wing campus activists at a campus with a large contingent of radical leftists, in the words of then-College Republicans chairman Daniel Bring 21.

This version of events has since spread to a few other right-wing websites, all of which tell the same story about liberal intolerance for free speech and conservative ideas on college campuses. Yet missing from any of these accounts or from the College Republicans themselves is any proof that there was a serious threat of violence from members of the Dartmouth College Democrats or others directed toward the event or Mr. Messner.

Much to his discredit, Messner has full-throatedly embraced the right-wing narrative that he was silenced by campus leftists.

.@DartRepublicans were forced to cancel my appearance due to the militant stance of the Dartmouth College Dems, Messners campaign posted on Twitter Tuesday evening. Security threats demonized free speech at an institution of higher learning. Stop liberal censorship!

The tweet, already on shaky grounds in terms of veracity the College Democrats never made any sort of militant stance toward Messner links to a page on Messners campaign website with a large photo of Mr. Messner, with his mouth covered with a black box with the word SILENCED written in white letters.

Liberals have taken over higher learning and have officially CANCELLED my appearance, the page reads. Help stop liberal censorship on campuses across the country by signing below. Strong believers in the First Amendment then need only to provide their name, email address and ZIP code and click on a button proclaiming DEMAND FREE SPEECH!

But the threat of violence must have subsided, as Messner braved the snows of New Hampshire and made the trek to Hanover on Wednesday, where he filmed a brief video apparently taken on the Green.

The First Amendment applies to everybody, Messner declared in the video, which his campaign posted on Twitter. And shouting down and intimidating people so they cant exercise their First Amendment rights is absolutely wrong. We will fight this battle. We will fight it hard.

This editorial board would be the first to agree with Mr. Messner about the freedom of speech after all, the First Amendment is the lifeblood of any newspaper. But the battle he is fighting is a rather pathetic attempt to spin a controversy out of something that, for all we can tell, did not actually happen.

Taking advantage of dubious controversies to promote free speech cheapens the cause of free speech. By casting himself as the victim of a supposed conspiracy, Messner cynically abused the cause of free speech to further his own campaign. But we do hope that Mr. Messner comes to campus to speak its his right to do so.

Nonetheless, Messners campaign antics ranging from misrepresentations to blatant lies are unbecoming of a candidate for the United States Senate. And the College Republicans evident attempt to stir up trouble is a sad reminder of just how far our political culture has fallen.

The editorial board consists of the opinion editors, the executive editor and the editor-in-chief.

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Verbum Ultimum: Crying Wolf - The Dartmouth

Do you think it is permissible to yell fire in a crowded movie theater in order to create a panic? How about whether it is legal to speak to a crowd and tell them to go out and shoot the first police officer they see, or homeless person or teacher?

If you responded no to those questions, does that make you an opponent of the First Amendment and its ban on laws that abridge the freedom of speech? The answer to that question is, of course, no.

The Supreme Court has long recognized that even a right as critically essential to our democracy as our freedom of speech is not absolute, and speech can be regulated if it poses a clear and present danger among other reasons. While virtually everyone accepts such a common-sense limitation on the First Amendment, there are those who argue that anyone who proposes limitations on the possession of guns is an opponent of the Second Amendments right to bear arms.

Similar to the freedom of speech, the right to bear arms is not unlimited, as made explicitly clear by the two most pro-gun cases decided by the Supreme Court. Those cases, District of Columbia v. Heller and McDonald v. the City of Chicago, held that the Second Amendment is an individual as well as collective right and that its protections apply to state as well as federal laws.

Both of those opinions and the numerous lower court decisions based on those cases however have declared that the right to bear arms is not unlimited. Accordingly, courts have approved many different types of reasonable laws that limit the possession, sale and use of weapons.

I thought of this when coming across reports in The Sun detailing two Baltimore shootings and comparing them to an attack in Colorado a few days earlier in which eight people were wounded. In the Baltimore shootings, unsurprisingly both victims died. In Colorado, the perpetrator undoubtedly was trying to kill his victims as evidenced by the several counts of attempted murder he was charged with and the fact that he stabbed one victim 20 times. The life and death difference between the Colorado and Baltimore crimes is that the weapon in one case was a knife and in the other a gun.

One of the slogans traditionally used by the NRA and other proponents of reasonable limitations on guns is that guns dont kill people, people do. This suggests that the instrument chosen by the criminal does not matter. But of course it does, as demonstrated not just by comparing the results of the recent Colorado and Baltimore crimes, but by reflecting on the incredible human tragedies caused by the assault weapons used in the 2017 Las Vegas massacre or other murders and terrorist incidents too numerous to enumerate.

So lets be clear. Reasonable laws limiting the possession and sale of certain guns are clearly not violative of the Second Amendment. Such laws include but are not limited to those banning weapons, such as the AR-15 designed for combat, not self-defense or hunting, and requirements that sales at gun shows, as with those at gun stores, should require background checks before the sales are completed. Yes, that might result in some delay and paperwork, but such is a reasonable price to pay to prevent felons and terrorists from purchasing weapons of death.

What we hear about less often, except from pro-gun groups on the fringe, is the emotional reason why gun laws are opposed by some. There seems to be a belief that citizens need firearms to protect them against our government, an argument hearkening back to the American Revolution. Sorry, but it does not work that way anymore. Taking arms against the government is not going to, and should not, happen.

We have a government of laws, an independent judiciary to interpret and compel obedience to those laws and institutions that will survive even the current president. Any future American revolution will come about through the ballot box, not the gun.

As with other constitutional protections, the right to bear arms is not absolute, and as with these other protections, the Second Amendment is not incompatible with reasonable limitations. Let us argue about the nature and the reasonableness of these laws as we do with other proposals and not be bogged down with illogical interpretations of the Second Amendment.

Lives depend upon it.

(Steven P. Grossman is the Dean Julius Isaacson Professor at the University of Baltimore School of Law.)

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Commentary: The right to bear arms is not absolute - Concord Monitor

Two teachers who resigned from Kennedy Catholic High School last week spent several months under the threat of losing their jobs upon sharing their same-sex engagements with school officials, their attorney told KUOW.

The Archdiocese allegedly wanted their keys and wanted them to be gone.

Paul Danforth and Michelle Beatties resignations from Kennedy Catholic have garnered international media attention since last week. Locally, hundreds of students, parents, and other supporters participated in a series of protests on Tuesday in support of the teachers, who many speculated were forced to step down as a result of their sexual orientations.

READ: LGBT teachers 'pushed out' of Catholic high school, families demand reinstatement

"Ultimately, this has been looming over them since November," McMinimee said. "So while it may have felt very abrupt to the students and staff at Kennedy, Paul and Michelle had been going to work every day for three months, not knowing if they'd be fired the next day."

She added that it was made clear to them from the beginning that once they were honest about being engaged and gay, that their employment was no longer compatible with Kennedy Catholic.

Danforth declined to comment for this story and Beattie could not be reached by the time this story was published.

McMinimee said the terms of a confidentiality agreement between the teachers and the Archdiocese of Seattle were overstepped when a spokesperson for the Archdiocese told KUOW that "no one requested" the resignations.

McMinimee added that Danforth and Beattie were told by school administrators that, they might be allowed to finish out the school year, if they didn't wear their rings and kept their engagements secret.

Theres no clear legal precedent on the state or federal level regarding protections or the lack thereof afforded to employees who work at church-operated schools. But last December, the U.S. Supreme Court agreed to hear two cases brought by Catholic schools contending they are shielded from employment discrimination lawsuits under the First Amendment.

It is also unclear if Washington state's anti-discrimination laws would apply to non-ministerial employees who work for Catholic institutions.

Looking forward, McMinimee said Beattie and Danforth dont intend to take further legal action they simply hope to effect change. One solution would be to add protections that prevent morality clauses, such as one found in the Archdiocese teacher contract, which could be used to target LGBT educators.

They hope that this sparks a greater discussion of change with respect to how is the diocese going to enforce these provisions? she said. Are they only going to enforce them against people who are in same sex relationships? Or are they going to consider other options, including having teaching contracts that are not the same as ministerial contracts?

A walkout in support of those affected by the resignations is scheduled to take place at Bishop Blanchet High School on Friday at 11:10 a.m. A rally outside of the Archdiocese of Seattle is slated to follow.

The Archdiocese of Seattle did not comment by the time of publication, but a spokesperson said a statement would come later.

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Archdiocese called for resignation of gay teachers from Kennedy Catholic school, attorney says - KUOW News and Information