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In November 2015, the Washington Metropolitan Area Transportation Authority (WMATA), operator of the Washington public transit (bus and Metro) system, amendedguidelines regarding commercial advertisements that it would accept for Metro cars and Metro stations. The guidelines contain 14 numbered restrictions, including these four:

Ostensibly applying these guidelines, WMATA made some rather peculiar decisions, refusing, for example, to accept advertisements from:

And, rather astonishingly, WMATA rejected an ACLU ad consisting of nothing but the text of the First Amendment (in English, Spanish and Arabic) alongside the ACLU logo (Guideline 9: intended to influence the public regarding an issue on which there are varying opinions (!!))

[The rejected ads can all be seen here.]

The ACLU recently filed suit on behalf of itself, Yiannopoulos, Carafem and PETA in D.C. federal district court arguing that the WMATA policy is a violation of the First Amendment both on its face and as applied to the plaintiffs. [The complaint is posted here.]*

Note * Apparently, the ACLU has taken some heat from its supporters for including Yiannopoulos as a co-plaintiff. That is unfortunate; the ACLUs habit of taking the position that speech even speech we might regard as offensive, from people we might regard as offensive is worthy of protection may be maddening at times, but it is a highly principled one, and is itself worthy of support and protection.

The plaintiffs, surely, have a strong case. On what possible grounds can WMATA defend rejecting an advertisement consisting of the text of the First Amendment? Who decides whether any particular issue is one on which there are varying opinions, and on what basis is that decision made? Why should PETAs non-commercial message (Dont eat meat) be prohibited while Burger Kings commercial message (Eat more meat)is allowed?

WMATA will undoubtedly rely heavily on Lehman v. City of Shaker Heights (1974), a case in which the Supreme Court upheld (5 to 4) a ban on all political advertising in the Shaker Heights transit system. The court there rejected the notion that the rail and bus cars constitute a public forum protected by the First Amendment with a guarantee of nondiscriminatory access to such publicly owned and controlled areas of communication.

The streetcar audience is a captive audience. It is there as a matter of necessity, not of choice. Here, we have no open spaces, no meeting hall, park, street corner, or other public thoroughfare. Instead, the city is engaged in commerce. It must provide rapid, convenient, pleasant, and inexpensive service to the commuters of Shaker Heights. The car [advertising] space, although incidental to the provision of public transportation, is a part of the commercial venture. In much the same way that a newspaper or periodical, or even a radio or television station, need not accept every proffer of advertising from the general public, a city transit system has discretion to develop and make reasonable choices concerning the type of advertising that may be displayed in its vehicles.

The level of scrutiny such governmental action would receive would be low: the choices must simply be reasonable, and the policies and practices governing access to the transit systems advertising space must not be arbitrary, capricious, or invidious.

The ACLUs complaint argues that the guidelines constitute viewpoint discrimination of a kind that was not present in Lehmanallowing messages that reflect the AMAs (or the governments) views on health-related matters, or those that reflectcommercialpositions on industry goals, while rejecting advertisements reflecting other viewpoints requires the court to engage in a more exacting First Amendment analysis.

They may well succeed in that argument. Even if they dont, though, its hard to see a a court upholding WMATAs decision here even under the relaxed reasonableness standard. To my eye, these certainly do look like the kind of arbitrary, capricious, or invidious decisions that, even under a generous reading of Lehman,WMATA, as a state actor, has to steer clear of.

Read the rest here:
First Amendment banned from DC Metro literally! - Washington Post

For all people of good will regardless of party affiliation, race, creed, or color the events that took place thisweekend in Charlottesville were sickening and deeply disturbing.

Several clear themes emerged for me this weekend. And while they are pretty obvious, I thought I would share them with the broader ACLU community, in an effort to give voice to what many of us are feeling and to spark a further discussion that will allow us to move together with greater hope and resolve through what are likely to be troubling days ahead.

While the events of this weekend withwhite supremacists holding lit torches frightened and outraged many Americans, we can never underestimate the impact of these images on African-Americans. Thatrally reflected this nations history of slavery, racial violence, and terrorism, which has left an indelible mark on our democracy to this day. As employees, members, or supporters of an organization dedicated to racial justice, we are all affected. Many of us are even more directly affected because we and our family members are the direct targets of the white supremacists. I know that speech alone has consequences, hurtful and deep, and thats why I believe its important to place the ACLUs representation of white supremacist demonstrators in Virginia in the broader context of the values and principles that have guided this organization for nearly a century.

First, the ACLU unequivocally rejects the ideology of white supremacists and we work actively with all our might to oppose that ideology in diverse communities across the country and to defend the right of all Americans to speak out against those views. By budget allocation, the national ACLUs top issue areas are ending mass incarceration, protecting LGBT rights, and safeguarding immigrants rights, demonstrating our commitment to advancing equality and justice with communities that are often the targets of white supremacists' bigotry and hate.

The ACLU has represented or publicly supported Black Lives Matter activists in First Amendment matters at least five times in recent months. Our work against police agencies surveillance of activists has been frequently in support of the Black Lives Matter movement and American-Muslim organizations and individuals. Weve represented and taken public positions in support of anti-Trump protesters more than five times since the election and represented one of the Standing Rock protesters in a free speech case. The ACLU has also defended the free speech rights of African-American environmental activists in Alabama against a defamation lawsuit brought by the toxic waste-generating corporation they opposed. This is all in the past yearalone.

We are not newcomers to this work. Weve defended individuals targeted for their socialist, anarchist, and communist affiliations, for anti-war speech, and for civil rights activism throughout our history. We have repeatedly defended the free speech rights of day laborers against city ordinances grounded in anti-Latino racism that would have prohibited their expressing their availability for work. The ACLU was founded in 1920 when the attorney general of the United States carried out his Palmer raids to round up immigrants based on their subversive views. And we stood shoulder-to-shoulder with the emerging labor movement of the early 20thcentury. The First Amendment freedom of speech, freedom of association, freedom of the press, and freedom of religionhas always been foundational for our organization.

Second,and more directly related to the events of this weekend, there are important reasons for our long history of defending freedom of speech including speech we abhor. We fundamentally believe that our democracy will be better and stronger for engaging and hearing divergent views. Racism and bigotry will not be eradicated if we merely force them underground. Equality and justice will only be achieved if society looks such bigotry squarely in the eyes and renounces it. Not all speech is morally equivalent, but the airing of hateful speech allows people of good will to confront the implications of such speech and reject bigotry, discrimination and hate. This contestation of values can only happen if the exchange of ideas is out in the open.

Thereis another practical reason that we have defended the free speech rights of Nazis and the Ku Klux Klan. Today, as much as ever, the forces of white supremacy and the forces for equality and justice are locked in fierce battles, not only in Washington but in state houses and city councils around the country. Some government decision-makers are deeply opposed to the speech we support. We simply never want government to be in a position to favor or disfavor particular viewpoints. And the fact is,government officialsfrom the local to the nationalare more apt to suppress the speech of individuals or groups who disagree with government positions. Many of the landmark First Amendment cases, such as NAACP v. Claiborne Hardware and New York Times v. Sullivan, have been fought by African-American civil rights activists. Preventing the government from controlling speech is absolutely necessary to the promotion of equality.

Third, the First Amendment cannot be used as sword or shield to justify or rationalize violence. Violenceeven when accompanied by speech does not garner the protection of the First Amendment. It is also true that the airing of ideasno matter how repugnant or loathsomedoes not necessarily lead to violence. The violence of this weekend was not caused by our defense of the First Amendment. The ACLU of Virginia went to court to insist that the First Amendment be appliedneutrally and equally to all protesters. Reasonable members of our community might differ on whether we ought to have brought that case. But I believe that having divergent views within an organization dedicated to freedom of speech is a sign of strength not weakness. I also believe the ACLU of Virginia made the right call here. Some have argued that we should not be putting resources toward anything that could benefit the voices of white supremacy. But we cannot stand by silently as the government repudiates the principles we have fought for and won in the courts when it violates clearly established First Amendment rights.

Invoking the threat of violence cannot serve as the governments carte blanche to shut down protests. If that were the case, governments would almost always be able to shut down protests, even when the protesters themselves are peaceful, because others could exercise a hecklers veto through violence or the threat of violence. We must not give government officials a free pass to cite public safety as a reason to stifle protest. They have a responsibility to ensure the safety and security of all protestersand may make their case in court for reasonable time, place, or manner restrictions. That is what we sought in our lawsuit in Virginia.

Thehard job for us now is to find concrete strategies for healing the divides that were laid bare this weekend. For the broader society, this would require that white supremacy, bigotry, and racism be confronted and rejected. Freedom of speech has to be valued and heralded as the cornerstone of our democratic society. Political leaders must shape the political discourse to underscore what binds us together as people, rather than exploit our differences. And government officials must neutrally apply the First Amendment and ensure the safety of all Americans when they take to the streets to exercise their constitutionally protected rights.

For our organization, we must remain focused and vigorous in our defense of civil liberties and civil rights in every community and in every context. Our 97-year history of defending the constitutional rights of all persons even those we disagree withis imbued with a belief that these rights are indeed indivisible, unalienable, and granted to each of us in our democracy. Our job is to turn those promises and aspirations into a reality for all people. And that work has never been more important than now.

Read this article:
Equality, Justice and the First Amendment - ACLU (blog)

Neither in the plain wording of the First Amendment nor in numerous court decisions reaffirming and elaborating on it is there any license for violence or inciting it. Yet some of those who use free speech as a shield clearly are bent on doing harm to others.

A small group of bigots was successful in doing just that on Saturday in Charlottesville, Va. Ostensibly, they went to the college town, home of the University of Virginia, to protest plans by the city to remove a statue of Confederate Gen. Robert E. Lee from a municipal park.

But the appearance of many of them made it clear they were primed for a fight. In addition to Ku Klux Klan robes, there were helmets, body armor and clubs.

Let it be noted the same equipment could be seen on and in the hands of some counter-protesters.

Fighting broke out quickly. Then, according to police, a man from Ohio drove his car into a crowd, killing one woman and injuring 19 other people.

Adding to the days tragedy, two Virginia State Police officers died when the helicopter they were using to monitor the demonstration crashed.

No doubt investigations of the tragedy will focus on the assault by car. But a more wide-ranging probe also is needed to learn just what happened in the wider riot, and why police were unable to prevent it.

One reason is clear: Law enforcement authorities bend over backward to avoid infringing upon First Amendment rights. Wearing combat equipment and carrying weapons such as clubs is not viewed as a legitimate reason to make an arrest or halt a demonstration. Neither is fiery rhetoric, as long as it does not cross the line to openly exhorting people to commit acts of violence.

As many demonstrations have shown, however, the line between whipping up a crowds emotions and saying things that make some of its members attack can be a very, very fine one.

Knowing exactly what happened in Charlottesville is important so police and other government authorities can learn whether the riot could have been prevented.

It is possible it could not have been forestalled without banning the protest entirely and that clearly would have been an infringement upon First Amendment rights.

So, how to prevent similar violence in other places and over other disagreements? It may not be possible. Again, remember that those who organize demonstrations usually stay within First Amendment limits and almost never begin the violence themselves. It is those in the crowds who are the danger.

It is important that what happened be studied carefully and objectively to learn whether the authorities could have done something differently to prevent the violence.

But it may well have been impossible for them to do that. Once that fine line was crossed, infuriating people on both sides, fighting may have been inevitable. Too often, we tend to blame the police for failing to contain violence. Realizing that is unrealistic may be unpleasant, but it is knowledge that could be useful in avoiding violence at similar confrontations in the future and, rest assured, such showdowns will occur.

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Crossing the fine line of the First Amendment - The Daily Times

SOUTHERN INDIANA With the recent events in Charlottesville, many Americans are asking themselves: Does the first amendment protect all forms of speech?

According to Ted Walton, lawyer and partner at Clay Daniel Walton Adams, a law firm in Louisville, the First Amendment protections for the freedom of speech are wide and do include speech that is distasteful, offensive and hateful.

There is no hate speech exception to the First Amendment and in fact thats been reaffirmed by the Supreme Court very recently in an interesting case, Walton said.

That case, which was heard by the court earlier just this year, was Matal, Interim Director, United States Patent and Trademark Office vs. Tam, in which the Supreme Court unanimously ruled that an Asian-American band The Slants was legally allowed to trademark its name despite its potentially offensive nature.

This Supreme Court has really championed First Amendment rights and youve seen that with things like the campaign finance rulings that theyve passed," said Rhonda Wrzenski, associate professor of political science at Indiana University Southeast. "Theres been other rulings too where theyve allowed groups that werent necessarily popular to have more speech rights. So typically they make exceptions to the speech rights, theyve banned obscenities, defamations, inciting violence. Basically, threats.

Walton explained that, legally speaking, the First Amendment doesnt protect verbal acts

If you are using words in such a way that its directed at a particular person and meant to incite someone and beat somebody up, that can be a criminal act, Walton said.

Yelling Fire! in a crowded theater is a verbal act and intentionally creates a hazardous situation and is not protected by the First Amendment, according to Walton

Thats the dichotomy," Walton said. "You have folks that are standing up and saying they hate these groups [of people]. Its going to be protected speech. But if people are saying lets go drive a car into this group and somebody drives a car into that group, that person is not going to have First Amendment protection."

Originally posted here:
FIRST AMENDMENT: How far does it go? - Evening News and Tribune

Although your less-than-friendly neighborhood alt-righter might want to pervert it into a license to say any bigoted thing they want, the First Amendment of the Constitution of the United States of America simply ensures the peoples right to express themselves without fear of government reprisal. So while KekiBro69 or whomever might think that people telling him hes a piece of shit for parroting Nazi slogans have violated his free speech, the fact of the matter is that, as long as the government doesnt get involved, freedom of speech does not mean freedom from consequences. Twitter can kick him off its service, Google can deny his domain registration, a private university can decline to book him as a speaker, or a private company can fire him for violating their code of ethics, assuming said employer isnt violating contract law or the Civil Rights Act in the process.

So were clear on that? Yes? Okay, good. Because heres an example of the federal government actually attempting to interfere not only with the peoples right to free expression, but their right to peaceful assembly, as well as the Fourth Amendments ban on unlawful search and seizure. As reported by New York Magazine, this week web hosting service DreamHost revealed that it had received a search warrant from the Department of Justice requesting IP addresses and other potentially identifying metadata on visitors to DisruptJ20.org, which was used to organize protests against the inauguration of Donald Trump. The requested data includes information on dates and times the site was accessed, in addition to contact information, email content, and photos of thousands of people, according to DreamHost. The request, which applies to anyone who visited the site this past Januaryright when planning for the protest was at its heightwould affect more than 1.3 million people. What the DOJ wants with this information is unclear, but whatever it is, it probably isnt to mail protesters $20 bills.

DreamHost refused the request, and is scheduled to appear in court in Washington, D.C. this coming Friday, August 18. Thats according to the pro-online privacy organization Electronic Frontier Foundation, which calls the DOJs search warrant an unconstitutional action of staggering overbreadth. In the face of such a shameless attempt to violate a bedrock American right, were sure all our free-speech loving friends with whom we spend so much quality time in Facebook comment threads and Twitter mentions will rally together to defend this value that they clearlyand loudlyhold so dear. Right?

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Today in actual First Amendment violations: DOJ issues warrant for info on protesters - A.V. Club