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This Weeks Guest: Michael Avi Helfand

Kendra Espinoza is a low-income single mother from Montana who applied for a tax-credit scholarship program (created by the Montana state legislature in 2015) that would allow her to keep her daughters enrolled in school. But soon after implementing the program, the state banned any of the scholarship funds from going to religious schools. Since the Espinoza girls were in a private Christian school, the family was cut from receiving support.

Espinoza sued, and the following legal battle made its way to the U.S. Supreme Court, which last month heard oral arguments in Espinoza v. Montana Department of Revenue. The case implicates the religion clauses of the First Amendment, the 14th Amendments Equal Protection Clause, and the notorious Blaine Amendments adopted by many states during the heyday of anti-Catholic bigotry in America.

In this episode, Michael Avi Helfand, professor of law at Pepperdine University, joins Harry Ballan, special guest host and senior director at the Tikvah Fund, for a discussion of this important religious-liberty case. Listen as two legal authorities examine the knotty legal doctrines at issue, speculate how the courts justices are likely to rule, and explain why Espinoza should matter to every American Jew and all American citizens.

Musical selections in this podcast are drawn from the Quintet for Clarinet and Strings, op. 31a, composed by Paul Ben-Haim and performed by the ARC Ensemble.

Background

For more on the Tikvah Podcast at Mosaic, which appears roughly every Thursday, check out its inaugural post here.

If you have thoughts about the podcast that youd like to share, ideas for future guests and topics, or any other form of feedback, just send an email to editors@mosaicmagazine.com.

More about: Politics & Current Affairs, Religious Freedom

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Podcast: Michael Avi Helfand on the Urgent Religious-Freedom Case Now before the Supreme Court - Mosaic

Lawyers disagreed with Clearview AI's defense that it has a First Amendment right to scrape people's images from public posts.

The First Amendment protects a lot of things, even flipping off a cop or burning the flag. But it may not give a controversial facial recognition company the right to keep scraping data from the internet for a database of more than 3 billion images.

On a CBS This Morning segment on Wednesday, Clearview AI CEO Hoan Ton-That said his company has a First Amendment right to access public data, including photos from YouTube, Facebook, Twitter, LinkedIn and Venmo. It uses those photos for a controversial database primarily accessed by law enforcement. (Disclosure: CBS News and CNET are owned by the same parent company.)

Facebook, Twitter and Google have already sent cease-and-desist letters to Clearview, saying data scraping violates their terms of service. Clearview's legal counsel has been in touch with the companies, Ton-That told CBS, defending the practice with the first item in the Bill of Rights. On Thursday, LinkedIn said it's also sending a cease-and-desist letter to the company.

"There is also a First Amendment right to public information," Ton-That said in the interview. "The way we have built our system is to only take publicly available information and index it that way."

Privacy and technology lawyers are finding plenty of holes in the company's argument. They say that First Amendment protections apply only in cases where the government interferes with someone's speech and that an activity protected by the First Amendment could run afoul of a specific law. In addition, the First Amendment argument hasn't worked in previous data collection cases, though none of those involved facial recognition.

"I don't really buy it," said Tiffany C. Li, a privacy attorney and visiting professor at Boston University School of Law teaching technology law. "It's really frightening if we get into a world where someone can say, 'The First Amendment allows me to violate everyone's privacy.'"

Clearview didn't respond to a request for comment.

The First Amendment specifically protects people from the government interfering with someone's free speech. But it says nothing about private businesses, like Twitter and Google, which can set up ground rules for their sites and services. Because it doesn't cover private business, arguments that Twitter and Facebook violate the First Amendment by "censoring" postsalso often fall flat.

"Defending and respecting the voices of the people who use our service is one of our core values at Twitter, and we remain committed to protecting their privacy," Twitter said in a statement.

Google didn't immediately respond to requests for comment.

"If this were a government website that was posting information and someone was scraping it, as opposed to Facebook or Twitter data, there could be a much clearer argument," Li said. "Here, these were private parties."

Privacy attorney Tiffany C. Li

Even if the First Amendment does protect data scraping, Clearview's use of it could still violate privacy and biometrics laws across the US, said Albert Fox Cahn, a civil rights and technology attorney and executive director of the Surveillance Technology Oversight Project. Clearview is already facing a class action lawsuit in Illinois, in which plaintiffs claim the company violated the state's biometrics law.

"The way First Amendment analysis works is that just because you're protected under one law doesn't mean that you're protected under all laws," Cahn said. "Biometrics surveillance is different than other forms of data scraping -- to the extent that you're taking my image and profiting off of me, that creates a different legal issue than creating a directory."

Another way to think about this: The First Amendment protects your right to burn the flag, but it doesn't protect you from being charged with arson.

Still, tech giants would face an uphill battle if their main defense is that Clearview is violating their terms of service. Tech companies have tried to fight data scraping in the past. It hasn't always worked.

In 2017, LinkedIn, a professional network owned by Microsoft, sent a cease-and-desist letter to data analytics firm HiQ, saying the company was violating its terms of service by scraping public profiles and posts on the social network. LinkedIn blocked HiQ's access to public posts and warned the company would be violating the Computer Fraud and Abuse Act if it developed a workaround. The 1986 law contains broad definitions of what constitutes "hacking."

Like Clearview, HiQ used the First Amendment as a defense, arguing that the CFAA was a use of government authority to stifle access to information that was publicly available on LinkedIn. The social network lost the case and the data scraping was allowed to continue.

Now playing: Watch this: Clearview AI's facial recognition goes creepier than...

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The use of the First Amendment in the HiQ case, however, might not be a precedent for Clearview, lawyers say. That's because the decision ultimately came down to the court's interpretation of the CFAA's provisions, finding that data scraping on its own wasn't "hacking." In some cases, data scraping has benefits, like researchers using it to investigate racial discrimination on Airbnb.

On Thursday, LinkedIn said it's also taking action against Clearview AI.

"We are sending a cease-and-desist letter to Clearview AI. The scraping of member information is not allowed under our terms of service and we take action to protect our members," the company said.

Lawyers say Google, Facebook, LinkedIn and Twitter might not need to rely on the CFAA. Instead, they can use privacy protection to address the situation.

"If you want to deal with this, the way is not by messing with the CFAA. It's by going through biometric privacy laws," Li said. "I'm in favor of allowing for web scraping generally, but I'm also in favor of privacy."

Clearview says it's partnered with more than 600 law enforcement agencies in the US. Sen. Edward Markey, a Democrat from Massachusetts, has said Clearview presents "chilling privacy risks," while New Jersey's attorney general has barred the state's police from using the app over concerns about privacy and cybersecurity.

"Even if they're protected for the purposes of scraping, that doesn't mean they're protected for the ways they're using that data for biometric surveillance," Cahn said. "We shouldn't conflate immunity from the CFAA with immunity from every possible state and legal claim."

Originally published Feb. 6, 8 a.m. ET.Update, 3:12 p.m. ET:Adds that LinkedIn is now sending a cease-and-desist to Clearview.

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Clearview AI says the First Amendment lets it scrape the internet. Lawyers disagree - CNET

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