Mediaboss Marketing

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 gpolicinski@freedomforum.org, or follow him on Twitter at @genefac.

See original here:
COMMENTARY: Focus on when the First Amendment protects ... and when it doesn't - Crow River Media

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.

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 gpolicinski@freedomforum.org, or follow him on Twitter at @genefac.

See original here:
First Five: Focus on when the First Amendment protects and doesnt - McDowell News

A legal ministry that defends religious freedom is asking the U.S. Supreme Court to vindicate two Georgia college students whose school egregiously violated their free speech.

Alliance Defending Freedom (ADF) is seeking the Supreme Court's deliberation after two federal courts declined to address the case of Gwinnett College students Chike Uzuegbunam and Joseph Bradford.

In 2016, college officials quickly stopped Uzuegbunam from sharing his Christian faith with other students on the Lawrenceville, Georgia campus because he had not reserved one of two zones where free expression was allowed without a permit. When Uzuegbunam reserved a zone and again tried to share his faith, officials again ordered him to stop because someone complained, which made his evangelization efforts "disorderly conduct" under a Gwinnett policy that applied to any expression that disturbs the peace and/or comfort of person(s)." Student Joseph Bradford chose not to speak at all after seeing how officials treated Uzuegbunam.

After ADF filedUzuegbunam v. Preczewski, to challenge the colleges speech zone and speech code policies, Gwinnettchanged its policies. But attorney Travis Barham says that is not enough.

"They never acknowledged that they silenced those two students and intimidated them into silence repeatedly over the course of this incident," Barham tells OneNewsNow. "So that's what this is about. The government shouldn't be able to violate our rights and then walk away scot-free."

The case has been appealed to the U.S. Supreme Court because of the importance of the issues it addresses.

"Students at the colleges and universities are going to be our future leaders, our future judges, our future politicians," Barham says. "That's why it's all the more important for colleges and universities to embody the First Amendment principles that made our country great and the First Amendment principles that they say they espouse."

Without a legal ruling on the merits of the lawsuit, ADF is concerned the school could easily restore its old, unconstitutional policies.

Go here to see the original:
Colleges urged to embody 1st Amendment principles - OneNewsNow

View this article online at https://www.fedsmith.com/2020/02/11/amend-hatch-act-restore-federal-workers-first-amendment-rights/ and visit FedSmith.com to sign up for free news updates

The Hatch Act, originally passed in 1939, substantially limits the political activity of most federal workers. The Supreme Court has ruled on more than one occasion that the Act is constitutional. Being constitutional does not necessarily make it the right thing to do.

Here are the basic restrictions that apply to most federal workers:

And here are the restrictions that apply tofurther restrictedemployees (those in intelligence or enforcement agencies, SES, ALJs and other highly paid employees):

While the intent of the Hatch Act provisions restricting federal workers may be sound, the result is, in effect, muzzling many federal workers and depriving them of their First Amendment rights.

Some of the restrictions as outlined Office of Special Counsel (OSC) guidance border on the absurd. Considerthis guidanceissued to a member or the Senior Executive Service whose wife was considering a run for Congress.

One question was, You first ask whether you can prepare food for fundraising events held at your home. The response? As a further restricted employee, you may not act in concert with a candidate for partisan political office. See 5 C.F.R. 734.402. The Hatch Act also prohibits further restricted employees from organizing, selling tickets to, promoting, or actively participating in a fundraising activity of a candidate for partisan political office. See 5 C.F.R. 734.410(b). Therefore, because you may not provide volunteer services to a candidate, you may not prepare food for, or otherwise help organize, any fundraising event. So he cannot make cookies for an event in his home. OSC also noted that there is no problem with his wife holding the event in their home, but he cannot make a welcoming speech. He is able to welcome them, however.

Does that do anything to protect our democracy? I think not. Does anyone assume this gentleman would not support his wifes candidacy? Does anyone think his direct reports or co-workers dont know that?

The Hatch Act restrictions serve to limit his right to speak and in the process reduce transparency. They also add confusion about what can and cannot be done. Many federal workers disciplined for Hatch Act violations had no intent to violate the law.

A far better approach is to retain limits on federal workers running for partisan office and absolute prohibitions on federal workers taking official action based on political views. A hiring manager makes a hiring decision based on politics? S/he should be fired. A federal employee awards contracts based on politics? S/he should be fired. A federal executive bakes cookies for his wifes fundraiser in their home? Who cares?

The way the Hatch Act is working now does nothing to protect our democracy, nor does it do anything to ensure electoral integrity. It prevents many employees from speaking out about the politicians whose decisions affect them, such as employees who are furloughed due to a lapse in appropriations. It drives political activity for many employees underground, and does nothing to limit the political activity of senior political appointees.

When Obama Administration Housing and Urban Development Secretary Julian Castro violated the Act in April 2016, nothing happened. The OSCissued a finding that he had, in fact, violated the Hatch Act, and that was it.

When Kellyanne Conway violated the Hatch Act at least twice, OSCissued a letterto President Donald Trump saying, If Ms. Conway were any other federal employee, her multiple violations of the law would almost certainly result in her removal from her federal position by the Merit Systems Protection Board.

In both of these cases, highly ranking political appointees violated the Hatch Act and got away with it. Both spoke in their official capacity in favor of the president they served in a manner that clearly violated the law.

OSCs letter to President Donald Trump was spot on any career employee who committed the same offense would be fired. One of the glaring weaknesses of the Hatch Act is that it is toothless with respect to an Administration in power. President Obama could ignore Julian Castros violation and President Trump can ignore Kellyanne Conways violation.

In 1973 the Supreme Court upheld the constitutionality of the Hatch Act. In his dissent, Justice William O. Douglas strongly disagreed with the decision. Justice Douglas said:

We deal here with a First Amendment right to speak, to propose, to publish, to petition Government, to assemble. Time and place are obvious limitations. Thus no one could object if employees were barred from using office time to engage in outside activities whether political or otherwise. But it is of no concern of Government what an employee does in his spare time, whether religion, recreation, social work, or politics is his hobby unless what he does impairs efficiency or other facets of the merits of his job. Some things, some activities do affect or may be thought to affect the employees job performance. But his political creed, like his religion, is irrelevant. In the areas of speech, like religion, it is of no concern what the employee says in private to his wife or to the public in Constitution Hall. If Government employment were only a privilege, then all sorts of conditions might be attached. But it is now settled that Government employment may not be denied or penalized on a basis that infringes [the employees] constitutionally protected interests-especially, his interest in freedom of speech.If Government, as the majority stated inMitchell,may not condition public employment on the basis that the employee will not take any active part in missionary work, it is difficult to see why it may condition employment on the basis that the employee not take an active part in political campaigns. For speech, assembly, and petition are as deeply embedded in the First Amendment as proselytizing a religious cause.Free discussion of governmental affairs is basic in our constitutional system.

I believe Justice Douglas was right, particularly when he said, In the areas of speech, like religion, it is of no concern what the employee says in private to his wife or to the public in Constitution Hall.

What we have is a law that restricts speech of federal workers, but in practice does not restrict the speech of highly visible senior political appointees. It limits transparency by driving political activity underground, where it is less likely to be known to anyone.

I prefer to see transparency, and free exercise of the First Amendment rights of everyone, whether s/he works for the federal government or for Burger King. But at least we can take comfort in knowing that senior executives will not be baking cookies for their spouses political campaigns.

2020 Jeff Neal. All rights reserved. This article may not be reproduced without express written consent from Jeff Neal.

Tags: Hatch Act

See the article here:
Amend the Hatch Act and Restore Federal Workers' First Amendment Rights - FedSmith.com

In most of the country, the kind of reporting I did in Narragansett no longer exists. Original, on-the-ground reporting the kind of reporting built on a deep understanding of people, places, and issues . . . the kind of reporting that requires time, resources, and the steadfast support of journalistic institutions (and sometimes their lawyers ) . . . the kind of reporting that provides the common facts that bind communities together and the oversight to hold leaders accountable. That kind of reporting is disappearing as the news industry continues its long, heartbreaking collapse.

Youve all felt the impact of that collapse. Youve felt it inside newsrooms, as friends and colleagues lose jobs they loved. Youve felt it in your hands, in ever-thinning local papers. And youve felt it in your communities, which are steadily more disconnected and divided.

We all know the two main factors behind this collapse one connected to how publishers fund news and one connected to how people find it. The advertising-based business model that supported American newsrooms buckled, causing the rapid loss of more than half the journalism jobs in the country and leaving news organizations struggling to pay for original reporting in the public interest. Meanwhile, the tech platforms became the most powerful distributors of news and information in human history, straining the direct relationship between journalist and reader that is essential for maintaining trust and loyalty. As a result, readers are increasingly unsure of what news is and where it comes from, making it easier for bad actors to unleash a flood of misinformation that has corrupted public understanding.

This is the moment when Im supposed to pivot and say that things are looking up. The truth is, theyre getting worse. Thats because theres another existential threat to journalism today, and far too few of us are talking about it.

Were losing popular support for the free press in this country. Over the past few years, weve witnessed the most sustained attack on the legitimacy of journalism in our history. Its an attack with catchphrases plucked from the mouths of tyrants and dictators. Fake news. Enemies of the people. Traitors. And a growing portion of the country believes these dangerous, misleading accusations.

Trust in independent news is evaporating and cleaving. A majority of Republicans now think the news media is better characterized as the enemy of the people than as an important part of democracy. More than 80 percent would rather get their news directly from President Trump than from the media. And there is evidence that skepticism of journalism is expanding across the political spectrum. A majority of Americans, regardless of party, do not trust the media to report the news fully, accurately, and fairly. And, perhaps as a result, nearly a third believe the government should be able to shut down news organizations.

With the news industry already struggling, this erosion of popular support for the press poses a threat not only to journalists and journalism but also to the very notion of truth and the health of our democracy. Weve already seen influential individuals, companies, and even nations exploit the trust vacuum to serve their own interests. Its the powerful, not the people, who benefit from a weakened press.

One of the lessons of the last few years is that our countrys institutions and norms are more fragile than we had assumed. And while law and precedent are valuable shields, public support for the principles of free expression and a free press is what gives them their enduring power. Look at Turkey or Hungary or India to see how quickly things can change when a society stops fighting for its democratic institutions.

So this is our task, all of us in this room. We must convince people that the free press is worth fighting for.

Its not enough to talk airily about holding power to account. We cant just assert the importance of bearing witness. It is time to stop talking about the First Amendment as an abstraction. Instead, we have to make powerful, practical arguments rooted in the lives of people and communities.

Heres a start. The free press lets you know how your tax dollars are spent. The free press makes sure that your kids health isnt jeopardized by contaminated water. The free press makes sure that the hospital you visit isnt spreading antibiotic-resistant germs.

The free press makes sure that the planes you fly in, the pharmacies you rely on, the banks that safeguard your savings are worthy of your trust. The free press shows how climate change may threaten your home and, if the worst happens, why your insurer may not be there to help.

The free press ensures you are protected by a justice system that jails the guilty and frees the innocent. The free press helps you make an informed decision about who to support for county clerk and who to support for president.

In a country with a free press, a new and deadly virus is promptly acknowledged and addressed, not hidden by the government until it becomes an international pandemic. No democratic country with a free press has ever suffered from a famine.

I think we can all agree that the press isnt perfect. We make mistakes, sometimes big ones. And when we do, we own up to them, and we strive to do better. But the imperfections of journalism make it no less essential.

At a moment when support for the press is fracturing along ideological lines, we must remind people why enshrining it in the First Amendment was one of the few areas of true consensus among the nations founders and why it remained so through our history. If youre a conservative, Id remind you that the free press protects against government corruption and overreach, provides businesses and entrepreneurs with the reliable information that fuels economic growth, and helps spread democracy around the world. If youre a liberal, Id remind you that the free press provides the scrutiny that keeps corporate power in check, interrogates the true impact of American interventions abroad, and makes sure that everyone, especially the little guy, has a voice.

A detailed, compelling accounting of the value of the free press is an essential message to share. But weve been delinquent messengers, taking far too long even to recognize that the message needs to be delivered.

Of course, as we make the popular case for the First Amendment, we have to keep fighting to fortify its legal framework. Across Democratic and Republican administrations, legal efforts have attempted to weaken safeguards for journalists and their sources. Activists, many politically motivated, are increasingly seeking to punish outlets for publishing unflattering information. These trends threaten decades of hard-won legal precedent. So we need to keep filing FOIA requests, battling libel lawsuits, pushing for whistle-blower protections, and doing all we can to defend the publics right to know.

To keep the First Amendment strong, we need to not only defend it in court but also convince our friends and neighbors why it matters to them on a personal level. They may not get a newspaper delivered to their doorstep, but the stakes of this struggle already reach inside their home.

If weve learned anything from the experience of the last few years and from the struggles of our colleagues reporting in repressive nations around the world its that we cannot take the free press for granted. And nothing is more perilous to a free society than when the public loses its reliable sources of information.

More here:
How to save journalism - The Boston Globe