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Italian Sons & Daughters of America v. City of Pittsburgh, decided yesterday by the Pennsylvania Commonwealth Court (Judge Patricia A. Mccullough, joined by Judges Rene Cohn Jubelirer, Christine Fizzano Cannon, Ellen Ceisler, Lori A. Dumas, and Stacy Wallace, and with Judge Michael H. Wojcik concurring in the result), reversed a trial court's decision approving of Pittsburgh's removal of a Columbus statue from a public park. The trial court had held that the removal didn't violate the First Amendment, because monuments permanently erected in a park were "government speech," but the Commonwealth Court concluded that the removal did potentially violate state law:

Here, in its First Amended Complaint, ISDA does not challenge Mayor Peduto's or the Art Commission's actions on First Amendment grounds; nor does ISDA contest that the placement of the Statue in Schenley Park constitutes government speech that the City otherwise may regulate, change, or remove as it sees fit. Thus, ISDA does not argue that government speech principles are inapplicable. Rather, ISDA argues that Mayor Peduto and the Art Commission, in taking action to remove the Statue, did not comply with applicable provisions of the Charter and Code, violated ISDA's rights to due process, violated public trust principles, and breached a contract entered into between the City and ISDA's putative predecessor, the Sons of Columbus.

In issuing its decision, the trial court did not make any findings of fact and did not rule on any of Appellees' expressly pleaded preliminary objections, including the objection to ISDA's standing. Instead, the trial court broadly concluded that, because the Statue constitutes government speech, ISDA cannot, as a matter of law, plead a viable claim because the City is free to do with the Statue as it pleases, notwithstanding any local or state-wide legislation or other restrictions to the contrary [on the view that] "Local ordinances and state laws cannot be used to restrict future government's speech rights." .

[But a]lthough a government generally may determine those views that it will espouse by way of its own speech, it nevertheless may not do so in violation of applicable "law, regulation, or practice." The fact that monuments or pieces of art constitute "government speech" only protects the government from certain First Amendment challenges. It does not, as the trial court here concluded, give government "free reign" to act as it pleases in defiance of the law.

The trial court below did not make any findings or rulings regarding whether Appellees' actions in seeking to remove the Statue from Schenley Park violated the Charter, the Code, or the Ordinance. It instead dismissed ISDA's claims on the ground that such procedural irregularities did not matter in light of Summum. The trial court further declined to make any findings or rulings regarding whether the Art Commission's administrative proceedings were constitutionally adequate or whether ISDA had standing to bring this lawsuit in the first place. The trial court instead cast ISDA's claims as "procedural arguments at best" and did not analyze them. The trial court further explained that, even if ISDA is correct and Appellees violated the Charter, Code, and/or Ordinance in pursuing the Statue's removal, the new mayor's administration is still free to comply, if it wishes to do so. Id. In any event, according to the trial court, ISDA's claims against Appellees are now moot, and the new mayor's administration has effectively been granted a "do over."

[W]e simply cannot agree with the trial court's conclusions that (1) the Statue's status as government speech renders Appellees' actions per se valid, and (2) ISDA's claims are irrelevant procedural quibbles now mooted by the new mayor's ability to comply with the law if he so chooses. We accordingly reverse the trial court's order dismissing the First Amended Complaint based on the government speech doctrine and remand for further factfinding and decision, as appropriate, on Appellees' remaining preliminary objections.

Nonetheless, the court upheld the trial judge's decision not to recuse himself:

[In one of the hearings], and in partial reliance on James W. Loewen's book Lies My Teacher Told Me,the trial court judge discussed at length his views on, inter alia, historiography, freedom of expression, Christopher Columbus, the post-Civil-War South, and the City's role in leading the nation on the issue of statue removal.

{Specifically, the trial court explained:

History is often said to be written by the "winners[,"] and our understanding of it as a nation tends to evolve over time as research reveals new understandings and our cultural norms change. Undoubtedly, history as taught to most in the United States has been from a nationalistic and [E]urocentric perspective. Certainly, our national understanding of history is evolving today as evidenced by the statue removal movement occurring all over the United States with respect to Confederate and Union generals, [p]residents, explorers like Christopher Columbus, civil leaders, and here in Pittsburgh, past cultural icons like composer Stephen Foster. My father, a career high school history teacher and lifelong reader of history, taught me at an early age that the commissioning of Confederate general[ ] statues in the Jim Crow [S]outh was part of the "Lost Cause" response to Reconstruction efforts and often [was] intended as [a] symbol of white supremacy, while the federal government's commissioning of military bases [ ] and battleships commemorating the Confederacy and the placement of Confederate figures in the halls of Congress were at least by some[ ] motivated by an intent to heal the nation. Recently, in July [ ] 2020, Congress voted to remove those same figures from the House of Representatives as our understanding of history has evolved and the statues are no longer deemed appropriate in our contemporary nation trying to heal the issue of racial divide, ultimately inflamed by the killing of George Floyd in Minneapolis.

Open[-]mindedness as a community requires that we listen to each other and weigh the concerns expressed collectively with the sincere intent of trying to understand all sides of an issue. We must also be mindful that freedom of expression can be a double-edged sword. The fate of the Christopher Columbus statue should be determined after all concerns are fully expressed and heard with an intent to reach a common ground that reflects Pittsburgh and its pride in being a diverse and welcoming community. However, this must be done while recognizing the good and bad that comes with statues depicting historical figures. While acknowledging that historical figures are people and necessarily come with heroic qualities along with character flaws, nonetheless, racism, slavery and prejudice must always be condemned and rejected by our city. Discrimination has and continues to exist. Indigenous people and the immigrants who followed have all unfortunately shared that experience, [ ] which should [not] be acceptable to a community striving for better. With this common understanding, I am asking that we strive to reach a consensus in good faith. It is my belief that through conciliation, Pittsburgh will lead the nation on this issue of statue removal vis a vis history and evolving community historical understanding.}

There is a presumption that Commonwealth judges are "honorable, fair and competent," and, when confronted with a recusal request, are competent to determine whether they can rule "in an impartial manner, free of personal bias or interest in the outcome." Our Supreme Court also has recognized that,

[w]hile the mediation of courts is based upon the principle of judicial impartiality, disinterestedness, and fairness pervading the whole system of judicature, so that courts may as near as possible be above suspicion, there is, on the other side, an important issue at stake: that is, that causes may not be unfairly prejudiced, unduly delayed, or discontent created through unfounded charges of prejudice or unfairness made against the judge in the trial of a cause. If the judge feels that he can hear and dispose of the case fairly and without prejudice, his decision will be final unless there is an abuse of discretion. This must be so for the security of the bench and the successful administration of justice. Otherwise, unfounded and ofttimes malicious charges made during the trial by bold and unscrupulous advocates might be fatal to a cause, or litigation might be unfairly and improperly held up awaiting the decision of such a question or the assignment of another judge to try the case. If lightly countenanced, such practice might be resorted to, thereby tending to discredit the judicial system. The conscience of the judge alone is brought in question; he should, as far as possible, avoid any feelings of unfairness or hostility to the litigants in a case.

Here, ISDA argues that the trial court judge should have recused himself from presiding over this case because the extensive commentary in the Order created an appearance of impartiality, bias, and impropriety. More specifically, ISDA argues that the trial court judge's interpretations of his father's teaching career, the Lost Cause of the Confederacy, the Jim Crow South, ethnic discrimination, and the City's exemplary future in leading the nation in statue removal injected extraneous and irrelevant issues into a lawsuit involving straightforward claims asserting that Appellees did not comply with the Charter, Code, and Ordinance. ISDA therefore argues that the trial court abused its discretion in denying the Recusal Motion.

We generally agree with ISDA that the personal commentary in the trial court's October 30, 2020 Order is irrelevant and extraneous and does not inform the legal analysis of the claims asserted in the First Amended Complaint.

We nevertheless cannot conclude that the trial court's denial of the Recusal Motion constituted a clear abuse of discretion. To the extent that ISDA claims that the personal nature and irrelevance of the commentary indicates bias, it is the very irrelevance of the bulk of the trial court's order that requires affirmance on this issue. The issues in this case center on the legislative status of the Ordinance, the procedures in the Charter and Code, if any, that are applicable to public monument removal, and ISDA's standing to bring this lawsuit. The trial court has yet to rule on any of those issues.

The personal opinions the trial court judge has expressed on subjects immaterial to their resolution do not themselves constitute evidence that, as to the disposition of the actual issues at hand, he will be biased, prejudiced, or unfair to a degree that raises substantial doubt as to his ability to preside impartially. Without such evidence, we must defer to the trial court judge's own self-assessment that he can, and we trust will, preside over the resolution of this matter in an impartial and judicious manner. Accordingly, we affirm the denial of the Recusal Motion.

More here:
Pennsylvania Court Lets Suit Over Removal of Columbus Statue Go Forward - Reason

Elon Musk revealed his intention to fund a national signature campaign for the First Amendment on X, sparking a mixture of praise and skepticism. While some lauded his commitment to free speech, others questioned his motives.

Musk's advocacy for free speech has been evident since acquiring X (formerly Twitter), where he confronts censorship attempts. However, X has now allegedly also become a platform for Nazi propaganda.

Elon Musk recently announced his plans to fund a national signature campaign supporting the First Amendment.

Taking to X, Musk wrote: "Given the relentless attacks on free speech. I am going to fund a national signature campaign in support of the First Amendment."

The announcement garnered widespread applause on social media, with users on the platform expressing eagerness to sign up.

Voting advocate Scott Presler offered his support, commenting: "We are currently collecting signatures for campaigns across the country. I can have an army of signature collectors at a moment's notice. Let me know if I may be of assistance."

An X user hailed Musk's initiative as historic, commenting: "You're going to go down in the history books. Not just for Tesla and SpaceX. But for saving free speech."

"I'm glad Elon is taking a stand when others with his level of influence are not. If we do not support him and defend our First Amendment rights at this juncture. With it being assaulted on all sides... we could very well lose it. A terrifying prospect to say the least," another user added.

However, some skeptics questioned Musk's motives, suggesting that the move was driven by ulterior motives rather than a genuine commitment to free speech.

One critic wrote, "He isn't taking a stand for free speech. He's doing this so he can use this platform to lie with impunity."

"The world's richest man didn't buy Twitter to save free speech. He bought it because he knows how powerful it is. Because he can use it to convince you of anything he wants you to believe. And the first thing he wants you to believe is that he saved free speechand you bought it," another added.

Musk's staunch advocacy for free speech has been evident, notably motivating his acquisition of Twitter. Since purchasing the platform, the billionaire has actively promoted an environment fostering diverse viewpoints and has confronted governmental and authoritative efforts to stifle expression. He has also pledged financial support for individuals facing professional repercussions due to their online engagement.

For instance, Musk was loud in his vocal opposition to regulatory overreach, such as the Canadian proposal for online streaming services. Taking to X, he wrote: "Trudeau is trying to crush free speech in Canada. Shameful."

More recently, Musk confronted the Brazilian government's decision to restrict access to specific X accounts within the nation. Despite facing a subsequent court order mandating the suspension of these accounts, Musk adamantly resisted such attempts at censorship through various means.

Musk's advocacy for free speech has led to X becoming a platform where Nazi ideology and propaganda thrive, with numerous paid subscribers using the platform to share content glorifying Adolf Hitler and his regime.

Investigations by NBC News also revealed that over 150 "Premium" subscriber accounts, along with thousands of unpaid accounts, have been disseminating pro-Nazi material on X, often violating the platform's rules. These accounts consistently post anti-Semitic or pro-Nazi content, including praise for Nazi soldiers, dissemination of Nazi symbols, and Holocaust denial.

The spread of pro-Nazi content extends beyond the platform's margins, with some posts garnering millions of views and widespread resharing.

According to the executive director of Life After Hate, Patrick Riccards, "A welcoming social media environment can make Nazi sympathizers feel validated in their views and recruit others to their cause. "For those who are already driven by hate, it is a big warm hug," he added.

Earlier this week, Musk announced that X will introduce a payment system where users must pay to post and engage with others. He explained that the move aims to combat the proliferation of fake and bot accounts by requiring a "small fee" for access to core features.

"Unfortunately, a small fee for new user write access is the only way to curb the relentless onslaught of bots," he wrote, per The Independent. "Current AI (and troll farms) can pass 'Are you a bot?' with ease." "The onslaught of fake accounts also uses up the available namespace, so many good handles are taken as a result," he added.

This follows a pilot program in New Zealand and the Philippines last year, which mandated a one-dollar-a-year subscription for new users to access essential functions. Musk's remarks suggest a broader implementation of this model.

Responding to queries, Musk hinted that the fee might only apply during the initial three months of a user's membership.

Continue reading here:
Elon Musk's Plan To Fund National Signature Campaign In Support Of First Amendment Met With Praise - Yahoo! Voices

At the same time, the justices also held that a mental state of recklessness would be enough to meet that threshold. [Colorado] must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence, Justice Elena Kagan wrote for the 72 majority. The State need not prove any more demanding form of subjective intent to threaten another. Since Colorado prosecuted him under a different standard, the court ruled that it had violated the First Amendment.

Sending threatening Facebook messages does not appear to have much in common with organizing protests against police violence, at first glance. But both cases involve questions of how far the First Amendment goes to protect speech that is, shall we say, adjacent to the possibility of violence. In Counterman, the justices referred to Claiborne multiple times. Kagan, writing for the majority, cited Claiborne alongside other cases to note that the First Amendment precludes punishment, whether civil or criminal, unless the speakers words were intended (not just likely) to produce imminent disorder.

She also noted that, in incitement cases, the court has often recognized that incitement to disorder is commonly a hairs-breadth away from political advocacyand particularly from strong protests against the government and prevailing social order, again pointing to Claiborne. The courts emphasis on an intent requirement in First Amendment cases would appear to doom the officers lawsuit against Mckesson, which hinges entirely on the lower standard of negligence.

More:
Don't Panic About the Supreme Court's Right to Protest RulingYet - The New Republic

Over at Vox, Ian Millhiser

The Supreme Court really should leave the trolling to the professionals. Denying that January 6 was a sui generis event, which it clearly was (unless you count Second Manassas), is now conservative gospel.

But Millhiser calls our attention to a case that the Nine Wise Souls declined to consider. This one comes out of the Fifth Circuit Court of Appeals, the federal judiciarys primary petri dish for growing really bad ideas. The case is Mckesson v. Doe. (Mckesson is civil-rights activist DeRay Mckesson, whom the government has been hassling ever since he helped found the Black Lives Matter movement.) In 2016, Mckesson organized a protest outside the headquarters of the Baton Rouge Police Department in response to the police shooting of a man named Alton Sterling, who got ventilated while pinned to the ground by officers. During the protest, someonenobody knows whothrew a rock and severely injured an officer. The victim of the rock throwing sued Mckesson for having organized the protest.

This, of course, is all bollocks. Suing the organizers of a protest for the actions of each participant is a none-too-subtle assault on the First Amendment, and also an open invitation for false-flag infiltrators seeking to damage the organizers of a protest. The controlling caseat least prior to the present momentwas NAACP v. Claiborne Hardware Co., a 1982 decision in which the Supreme Court refused to hold the leaders of the NAACP who had organized a boycott of white-owned businesses responsible for losses sustained by the store owners. The business owners claimed that their customers had been threatened by some of the boycotters, and they sought in court to hold the NAACP liable for the actions of unnamed people who had associated themselves with the boycott. One intriguing aspect to the case is that the events in question happened in 1969, but the Supreme Court didnt rule until thirteen years later.

The Fifth Circuit tossed out some of Officer Does causes of action but left one alive. The court said Mckesson was responsible for the violence because he had situated the demonstration at the police headquarters, and that he should have anticipated that violence would break out. Thus were First Amendment rights curtailed in the three states coveredTexas, Louisiana, and Mississippiand the Supreme Court on Monday washed its hands of the case, so the curtailment is going to be semi-permanent. Perhaps the carefully cultivated conservative majority blew off the Mckesson case so that it could get around to coddling the insurrectionists. Priorities, people.

Charles P Pierce is the author of four books, most recently Idiot America, and has been a working journalist since 1976. He lives near Boston and has three children.

Read more here:
Supreme Court Is Apparently Fine with the Assault on the First Amendment That Is Mckesson v. Doe - Esquire

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Read more here:
Kerrville Residents File First Amendment Lawsuit In Federal Court Against City - The Texan