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Submitted by William Elder.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances, wrote James Madison.

Strong clear words. Words often twisted to serve one political cause or another. These days it is the vociferous far right of the Republican Party, often religious conservatives. Religion, even their Protestant evangelical version of it, is alive and well in todays America, no fear except fear itself, as one President put it

Less clear is the jumbling together of freedom of speech, press, or the right of the people peaceably to assemble. Each could have used its own separate mention, clarification.

The press, reporting as best it can against the administrations all-out attempts to control, silence, or distort its factual examination of our shortcomings, is grappling with the right wings antipathy to fact itself, the truth regarding its failures and misgovernance, the gross incompetence of its leaders, especially top down.

The freedom of speech part, so bantered about by every side of every argument, forgets one key and vital right implied therein, though not implicitly stated: That implied right is: For your speech, however heartfelt, has the concomitant right to be ignored by all thoughtful men and women: We hear you; we understand; we choose to ignore your comments; we thank you! Next!

Petition(ing) the Government for a redress of grievances good or ill, substantive or frivolous if they were shingles they would keep us all dry for a thousand years, with a money-back guarantee for five hundred more! No Constitutional worry there.

This First Amendment is but one of the strong pillars driven into our political landscape by our Founders, not at the time of their Constitutional deliberations but forced upon them, as a required afterthought, an extended measure of not merely our structure of governance, but our invite to humanity come participate equally in it.

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Link:
The First Amendment To the Constitution of The United States of America - The Suburban Times

Under FCC regulations, political calls can be made to residential numbers. But, the commission argues, cellphones present different privacy interests, and robocalls to them are much more intrusive. At the same time, the number of households that dont have landlines is exploding, so the ability to call landlines is less valuable than it was.

After the 2015 amendment was enacted, the AAPC brought a suit in a federal court in North Carolina, asking the court to strike down the entire robocall ban. Its argument deployed one of the most powerful and elusive concepts in First Amendment law: the idea of a content-based restriction on speech.

Content basis as a legal category originated with a 1972 case called Police Department of the City of Chicago v. Mosley, a challenge to a Chicago ordinance that banned picketing within 150 feet of a schoolunless the picketing was part of a labor dispute. The Supreme Court unanimously struck down the ordinance; in an opinion for seven justices, Justice Thurgood Marshall wrote, Above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.

Garrett Epps: The important First Amendment principle now at risk

Since Mosley, the Court has evolved a rule: A content-based restriction on speech is presumptively invalid. This rule would be more useful if it defined what content-based means. For years after Mosley, it seemed to be a useful shorthand for two ideas: subject-matter-based and viewpoint-based. Government can sometimes regulate speech because of what its aboutfor example, it can restrict the office mailboxes of its employees to documents concerning business. Usually, however, it cannot, and it can virtually never restrict speech because it disapproves of the speechs point of view. Thus, a 1988 case, Boos v. Barry, struck down a District of Columbia ordinance that banned any demonstration or sign near a foreign embassyif the demonstration or sign criticized that foreign government.

Viewed this way, the notion of content-based was useful. But the ambiguity of the wording opened it up to play a role in the remarkable evolution of Justice Anthony Kennedy.

Kennedy, for all his endearing traits, was not a subtle thinker. In fact, his jurisprudence calls to mind an ungenerous comment by Justice Oliver Wendell Holmes Jr. about his colleague Justice John Marshall Harlan. Holmes compared Harlans intellect to a powerful vise the jaws of which couldnt be got nearer than two inches to each other.

As early as 1991, Kennedy was signaling that he believed the First Amendment was in essence absolute, no matter how important the interest the government was protecting. Unless the law fell into one of the few categories of unprotected speechdefamation, for example, or incitement to lawless actionthe government could not regulate it at all, regardless of how urgent the need. Even a law that passed strict scrutiny, he wrote in a separate opinion in a case called Simon & Schuster v. Members of New York State Crime Victims Board, should fall, for resort to the test might be read as a concession that States may censor speech whenever they believe there is a compelling justification for doing so.

Read this article:
The Supreme Court Could Use the First Amendment to Unleash a Robocall Nightmare - The Atlantic

Divorcing couples have a First Amendment right to disparage each other on social media even if probate judges are worried the bitterness will impact the mental health of children caught between their warring parents, the states highest court has ruled.

In a unanimous ruling, the Supreme Judicial Court said free speech rights were wrongly curtailed by a non-disparagement order forbidding the husband or wife from posting about the divorce on Facebook and other social media sites until their child turned 14. At the time the order was issued, the child was a toddler, the SJC said.

We conclude that the nondisparagement orders at issue here operate as an impermissible prior restraint on speech, the SJC ruled. The judge put careful thought into his orders in an effort to protect a child caught in the middle of a legal dispute who was unable to advocate for himself[but since] there was no showing of an exceptional circumstance that would justify the imposition of a prior restraint, the nondisparagement orders issued here are unconstitutional.

The social media ban was crafted by two Norfolk Probate and Family Court judges arising from the divorce between Ronnie Shakand his former wife, Masha M. Shak, who had one son born in 2017 during their 15-month marriage, records show.

In 2018, Ronnie Shak made multiple Facebook postings accessed by members of the former couples synagogue, Masha Shaks relatives, and a Facebook group with more than 700 members. The postings accused Masha Shak of wrongly blocking Ronnie Shak from seeing their son, leading Probate and Family Court Judge Virginia Ward to issue a two-paragraph order that banned both from posting any comments, solicitations,solicitations, references or other information regarding this litigation on social media."

Misha Shak sought a contempt citation when Ronnie Shak posted on Facebook after Wards order. Judge George Phelan then took up the matter and issued an 11-page order banning social media postings until the couples son turned 14. Phelan also put the ban on hold so the SJC could review the constitutionality of his decision, which he said he believed was necessary but raised significant legal issues that the top state court must address.

In a 13-page ruling written by Justice Kimberly S. Budd, the SJC said government has very limited authority to stop someone from publicly expressing their views under the First Amendment and Article 16 of the states constitution. Prior restraint is acceptable when harm is immediate and cannot be prevented by any means other than suppressing the free speech rights, the court noted.

But there was no evidence in this case, the court said in the decision issued Thursday.

The potential impact on a childs mental health at some point in the future does not meet that high legal threshold, especially in this case where the child cannot on his own access social media and when no information has been produced showing a current link between Facebook postings and proof of an emotional harm to the child, the court noted.

Budd added: As important as it is to protect a child from the emotional and psychological harm that might follow from one parents use of vulgar or disparaging words about the other, merely reciting that interest is not enough to satisfy the heavy burden of justifying a prior restraint."

The court noted that probate judges - and litigants - may be able to curtail social media postings under other laws, by reaching a mutually agreed upon non-disparagement order, or by civil lawsuits for emotional harm. Judges can also caution the parents their social media postings will impact custody decisions, the SJC said.

But none of the laws are even necessary, the court noted, if the parents recognize whats most important during divorce litigation - their children.

"The best solution would be for parties in divorce and child custody matters to rise above any acrimonious feelings they may have, and, with the well-being of their children paramount in their minds, simply refrain from making disparaging remarks about one another,'' the SJC said.

John R. Ellement can be reached at john.ellement@globe.com. Follow him on Twitter @JREbosglobe.

Excerpt from:
Divorcing couples have First Amendment right to disparage each other on social media, SJC rules - The Boston Globe

Updated: May 25, 2018:

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Read more:
No, a Pandemic Doesnt Overturn the First Amendment: Massachusetts Enjoined From Banning Debt-Collection Calls or Lawsuits During COVID-19 - JD Supra

Would mandating public exposure of Russian hostile information operations in the United States violate the Constitutions First Amendment guarantee of free speech? At first glance, the question seems absurd how would the Bill of Rights protect Russian intelligence and propaganda operations?

But the issue arises because Russian messages aimed at American audiences may include comments from American sources, raising concerns that exposure would imply that the original authors of the content are part of a Russian disinformation campaign.

This could have a chilling effect on the original American authors right to free speech. They might be branded as fellow travelers a derogatory label from the Cold War or at the very least, useful idiots a term sometimes attributed to Lenin to describe nave individuals who were susceptible to Communist propaganda.

Neither label applies here. Unlike the early days of the Russian Revolution or Cold War era, todays Russian propagandists are not seeking to advance Communist ideology, but rather are intended to weaken its perceived foes. The American authors they cite are not advancing or defending Russian causes.

Russias hostile information operations are continuous and extend to a broad range of domestic issues. Russia aims to create confusion, foment distrust of all institutions, and deepen discord on just about every contentious topic, including national debates on race, immigration, policing gun control, and other issues. Russian efforts seek to amplify extreme positions, often magnifying dissonance and aggravating divisions by promoting the polar expressions of both sides of the issue. This is where domestic content is used.

The First Amendment issue recently came up in continuing discussions among participants in a workshop on Russias Weapons of Mass Deception that examined the threat of hostile Russian information operations and possible countermeasures. This was not new territory for them.

Most had long firsthand experience in this area. They had served in the White House, the State Department, United States Information Agency, the Pentagon, the CIA, the FBI, Voice of America and Radio Free Europe, as well as independent research centers under both Republican and Democratic administrations. They pointed out that the United States has a long history of countering Soviet and Russian disinformation, propaganda, and other influence operations targeting the West.

Among the options discussed, one of the most useful and least controversial countermeasures to Russian influence operations is public exposure. The public has a right to know what the Russians are doing, how they are doing it, and the scale of their activities. Current efforts contribute to awareness of Russian information operations but do not ensure public disclosure.

Exposure is not censorship. It does not prevent or regulate speech. It could be achieved by legally requiring self-disclosure, by mandating government exposure of foreign information operations, or by a combination of the two mandatory self-disclosure of Russian efforts and exposure of those Russian actors who do not comply.

Ample precedents exist for mandating transparency and limiting foreign interference. Persons and organizations operating in the United States on behalf of foreign governments must register as foreign agents. This law was passed in 1938 to preclude censorship.

The constitutional guarantee of free speech is generally considered also to include the right of Americans to receive speech from foreign speakers, including hostile governments. Imposing a disclosure requirement does not prevent this; it enables the public to evaluate the material better.

Other examples of the disclosure include campaign financing, the sponsors of political ads, and the routine voluntary practice by newspapers to label sponsored inserts that are paid for by foreign governments.

The United States rarely shuts down foreign news broadcasting in this country, even though the broadcasts may offer alternate viewpoints or criticism of U.S. policies.

However, the U.S. government has required RT and Sputnik, which are funded by the Russian government, and CGTN, which is funded by the government of China to register as foreign agents. This is not because of foreign-government funding, but because of a judgment that, unlike the BBC and the other foreign broadcasters, these three are responsive to current foreign-government policy goals. They are not independent.

This does not mean they cannot operate in the United States. Indeed, a Midwest radio broadcaster transmits Sputnik news daily. They must identify themselves.

While discussants were comfortable with the government exposing foreign information campaigns, they did not want to see exposure become a means of belittling or vilifying Americans whose content might be repeated in part or in whole, correctly or out of context, by Russian operators. Close oversight of any effort could be required to ensure that selective exposure is not abused to support political agendas. All of the respondents are mindful of the current partisan environment.

The lack of any effective American response could encourage Russia as well as other adversaries of the United States to continue or escalate their campaigns. Exposing Russian activities is a matter of policy and politics, not the Constitution or the law.

First Amendment concerns are important, but they do not protect hostile information campaigns by foreign actors, nor are they a legal excuse for inaction by the United States.

Brian Michael Jenkins is a senior adviser to the president of the nonprofit, nonpartisan RAND Corporation.

Read more:
Exposing Russian information operations does not violate the First Amendment | TheHill - The Hill