Wall Street Journal | Facts, Falsehoods and the First Amendment Wall Street Journal The First Amendment sky is not falling as a result of the recent decision of the District of Columbia Court of Appeals permitting climatologist Michael Mann's case to proceed against the National Review Online, despite the claims of NRO's attorneys ... |
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Facts, Falsehoods and the First Amendment - Wall Street Journal
These days, it seems like the First Amendment is under assault from all sides. President Trump has waged war with news outlets, called to strip citizenship from anyone who sets the American flag on fire, and vowed to broaden libel laws to thwart adversaries.
On college campuses, there has been a sharp rise in the use of trigger warnings, safe spaces and disinvitation protests which are, in turn, portrayed as attempts to suppress opposing viewpoints. Just last week,violence broke out at the University of California, Berkeley, in response to a scheduled speech by right-wing commentator Milo Yiannopoulos.
But a different narrative is playing out in American high schools, where student support for First Amendment protections is the strongest its been in a decade, according to asurvey released this week by the John S. and James L. Knight Foundation, a nonprofit that promotes First Amendment protections and press freedom.
(More from The 74: School Bullying, Civic Engagement and the First Amendment in Donald Trumps America)
Of 11,998 students from 31 public and private high schools nationwide who participated in the survey, 91 percent agreed that people should be allowed to express unpopular opinions, an increase from 83 percent in 2004.
High school teachers are even more likely to support the First Amendment than their students. Of 726 high school teachers surveyed, 95 percent supported the right to express unpopular opinions, a slight decrease from 97 percent in 2004.
But as with any survey of this nature, language matters. Changing the word unpopular to offensive decreased support for free speech from 91 percent to 45 percent among students and from 95 percent to 53 percent among teachers.
Its important to understand the attitudes and perceptions of future generations, because theyre the ones who will ultimately be shaping norms, and norms often have sway on policy and the way the First Amendment is protected, said Jon Sotsky, the Knight Foundations director for strategy and assessment. Its very important to understand how these attitudes are shifting.
Despite the rise in student acceptance for free speech protections, Richard Garnett, a law professor at the University of Notre Dame who focuses on First Amendment issues, found the surveys results to be more glass half empty. He said he was troubled by a disconnect between young adults and an American tradition in which the remedy for offensive speech is more speech rather than censorship.
The irony, Id imagine all these high school kids in the survey, if you asked them, Are you for or against diversity, theyd be like, Oh, we love diversity, Garnett said. Well, if youre for diversity, you cant be for censoring stuff that offends you. Thats a two plus two equals five kind of thing.
Beyond perceptions of free speech protections, the Knight Foundation report offered a glimpse into student media consumption. While its no surprise that young adults receive most of their news on mobile devices through social media platforms like Twitter, the report found that students who actively engage with news on social media have stronger support for First Amendment freedoms. And while Americans trust in news is at all-time lows, students were far more likely than their teachers to consider information posted by everyday individuals more trustworthy than content from professional journalists.
High school students are also far less likely than adults to be concerned about privacy. While Sotsky noted that most kids dont have financial privacy concerns, such as credit card numbers, he observed that students, who have grown up in the digital age, are more likely to share personal information.
The surveys were conducted from March to June 2016. They have a margin of error of plus or minus 1 percentage point for students and plus or minus 4 points for teachers.
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First Amendment Is Strong at Nation's High Schools: 91% of ... - The 74 - The 74
February is First Amendment month, and yes, I know that its kind of silly all of the months that we have. Some of them are quite good, like Black History Month, Great American Pie Month, (Im guessing that explains why the VC 4-H has its annual pie auction in February) National Heart Month, and National Macadamia Nut Month.
Can we all agree that the First Amendment is a good idea? In fact, its not just a good idea, its the bedrock foundation of our free society. Right up there with the Declaration of Independence.
And having said that, lets get this silly idea out of the way. The First Amendment says that Congress Shall Make No Laws that abridge the freedom of speech and the press. It doesnt make exceptions for hate speech (whatever THAT is!) or speech that makes you uncomfortable or speech that challenges your dogmas. The First Amendment was specifically designed to provide protection for people you loathe, people you detest and fear. It was invented to protect those who offend you the most. People who advocate dogs and cats living together, people who want to hum happy tunes using nothing but sharp notes, and, worst of all, people who eat purple vegetables.
This appears to be something that our colleges, which used to be hotbeds of freedom of speech, have forgotten. Berkeley University, which was the birthplace of the Free Speech Movement in the 1960s, obviously needs an enema of some sort now since these days its more the home of the Constipated Speech Movement. And spare me your emails. I know that they were protesting someone who is a provocateur, who loves to poke fun at various sacred notions and enjoys outraging people. Doesnt matter. He has the right to speak. His right to speak should certainly be defended from goons in black leotards wearing black masks and wielding iron batons to silence those they disagree with.
The late Justice Antonin Scalia wrote defenses of the right of people to burn the flag because it was protected by the First Amendment, even as he admitted that, if he were king, he would prefer to cut their heads off!
So, when you hear that people are not being allowed to speak somewhere because someone considers them to be the moral equivalent of Hitler, and that same someone beats up people, sets fires and destroys store fronts in the name of combating fascism, you may be forgiven for being skeptical. Fascism is as fascism does.
There was only one Hitler, and no one else even comes close. But some of us are trying.
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The First Amendment: Not just a good idea - Valley Roadrunner
Cincinnati 12:07 a.m. ET Feb. 10, 2017
John C. Greiner, attorney for Graydon Head Legal Counsel. He's a commercial litigator with an emphasis on communications and media law. He serves on the firm's Appellate Practice Group. (Photo: Provided, Provided)
The social media platform Facebook recently lost a First Amendment challenge to the federal Telephone Communications Privacy Act. While the case is bad news in the short term for Facebook, the rejection of the constitutional challenge could have long-term consequences for the entire industry.
The case concerns birthday messages. Facebook employed computer software to send birthday announcement texts to users. In 2015, Facebook, through its short code SMS number 32665033, texted to Colin Brickman's cell phone number an unsolicited birthday announcement text stating Today is Jim Stewart's birthday. Reply to post a wish on his Timeline or reply with 1 to post Happy Birthday!. Although Brickman supplied Facebook his cell phone number, which is associated to his Facebook page, Brickman indicated in the notification settings of his Facebook account, prior to receiving the text message, that he did not want to receive any text messages from Facebook.
And Brickman apparently was serious about it. On Feb. 2, 2016, Brickman filed a class action suit against Facebook, alleging Facebook violates the TCPA by sending unauthorized text messages. Brickman asked the court to allow him to represent the class of (a)ll individuals who received one or more Birthday Announcement Texts from Defendant to a cell phone through the use of an automated telephone dialing system at any time without their consent.
A valid TCPA claim requires plaintiff to allege (1) a defendant called a cellular telephone number; (2) using an automated telephone dialing system (ATDS); and (3) without the recipient's prior express consent. A text message is a call within the meaning of the TCPA.
Brickman alleged that Facebook employs computer software to send birthday announcement texts without human intervention to users. According to his complaint, Facebook's computer system, without any human intervention, reviews user data on a daily basis to identify users who have birthdays on a particular day; identifies the users Facebook friends who will receive the texts for a particular user's birthday; identifies the cell phone numbers of the Facebook friends that will receive the message; automatically inserts the name of the user celebrating a birthday into a form text in the appropriate language for each of the user's Facebook friends, creates the text; compiles a list of cell phone numbers to which it will send Birthday Text Announcements, stores those cell phone numbers in a queue, and then causes the text messages to be sent from that queue.
Facebook argued the text message was triggered by human intervention, in that Brickman signed up for Facebook and linked his cell number to his profile. And in addition to these technical arguments, Facebook contended the TCPA violates the First Amendment. In its view, based on a recent U.S. Supreme Court case that struck down an Arizona sign ordinance, a law triggered by the content of a message is subject to strict scrutiny a standard that is almost impossible for the government to satisfy.
The good news for Facebook was the court agreed that the TCPA is content-based certain messages, such as emergency messages, are exempt based on their content. Others are not, again based on the content. That meant the court applied the strict scrutiny analysis. The bad news for Facebook was that in this case, the court concluded that the TCPA satisfied the standard.
In order to survive strict scrutiny, the government must prove the restriction furthers a compelling interest and is narrowly tailored to achieve that interest. Here, the court concluded the government has a compelling interest in protecting residential privacy. The TCPA is designed to do just that.
And the court concluded the TCPA is narrowly tailored. In support of its argument, Facebook argued the TCPA was under-inclusive meaning it did not actually address all of the instances necessary to achieve its purpose. In the Supreme Courts sign ordinance case, for example, there were 33 exemptions to the ordinance. But the TCPA has only two exemptions. The court concluded it was not under inclusive.
Facebook also argued that in other respects, the TCPA was over inclusive. That is, it sweeps too much interaction under its provisions. The court rejected this argument as well. In its view, the TCPA is limited to a narrow subset of automated calls made without the recipients consent. It does not restrict individuals from receiving any call they want to receive. Any speech that the TCPA would cover is removed from that coverage once the consumer consents.
The immediate effect of the ruling is that Facebook will have to defend Brickmans suit on fairly technical grounds. The big constitutional defense is off the table, at least for now. And consumers will continue to enjoy protection from unwanted communications.
Jack Greiner is a lawyer with the Graydon Head law firm in Cincinnati and represents Enquirer Media in First Amendment and media issues.
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Facebook loses 1st Amendment challenge to federal law - Cincinnati.com
Unofficial co-sponsors of the bill? Milo Yiannopoulos and Scottie Nell Hughes
Rep. Martin Daniel, left, and Sen. Joey Hensley introduce the "Tennessee Student Free Expression Act," for when the First Amendment just isn't enough.
Sure, the First Amendment is, you know, a constitutional protection and all, but if you're a conservative minority in a sea of big, bad liberals on college campus, sometimes you just need a safe space, you special snowflake you. It can be very hard these days to speak your mind in a country with a Republican president and a Republican majority in Congress and the Senate and a Republican supermajority in both chambers of the Tennessee Legislature and a Republican governor and two Republican senators and seven out of nine Congressional districts represented by Republicans, not counting all the many, many, many, many Republicans in office at the local level across the state of Tennessee. Nope, it is definitely the poor College Republicans and other conservatives on campus who definitely need greater free speech protection than what the First Amendment offers.
At least, that's what state Rep. Martin Daniel (R-Knoxville) and Sen. Joey Hensley (R-Hohenwald) are saying is their justification for filing the "Tennessee Student Free Expression Act," a revamped version of a similar bill Daniel filed last year. However, this year they are nicknaming the bill the "Milo Act," after Breitbart writer/editor and noted white supremacist Milo Yiannopoulos, whose recent appearance at the University of California at Berkeley was cancelled after protests turned violent.
Daniel and Hensley who have both been accused of assault in the past, Daniel during a primary debate last summer and Hensley in 2015 after his ex-wife alleged he hit her with his truck, twice are just horrified, horrified, that students in California would try to prevent Yiannopoulos from speaking and are using those protests as justification for their bill. (Never mind that Yiannopoulos spoke at Vanderbilt University without incident last fall.) At the press conference announcing the legislation, they showed clips from Berkeley, and then they showed a video from the University of Tennessee at Knoxville last fall in which a white male student dressed up as Trump had his wig knocked off by an African-American female student walking past him. The video characterized this as an "assault"; however, the woman keeps walking away with no further incident rude, yes, but nothing even close to assault.
The presser proceeded with Daniel and Hensley talking about the bill, followed by Trump surrogate andFox talking head Scottie Nell Hughes who has stated in the past that "riots aren't necessarily a bad thing," at least, if they are in support of Trump. A member of the UTK College Republicans also spoke, as did the student who had portrayed Trump in the aforementioned video. Someone else read a statement from Yiannopoulos, who said he wished he could be here but was, alas, stuck in Florida. Afterwards, legislative staff on both sides of the aisle seemed flummoxed by the lengthy production. ("What the hell was that?" one staffer texted this reporter.)
The bill itself is not nearly as noxious as last year's version, which stated, in part:
The governing boards of the institutions shall prohibit an institution from:
(1) Establishing safe zones;
(2) Requiring or encouraging the issuance of trigger warnings;
(3) Establishing a system for students or other persons to report incidents of mere bias, where no threats or harassment occurred;
(4) Disciplining students for microaggressions
Several UTK professors contacted by the Scene expressed relief that the newer bill is more vaguely worded, but they still have many concerns.
"The opening of the 'free speech' bill sounds like an insult: as if those of us who work at the university are not already advocates of free speech, as if we haven't spent our entire lives embracing and promoting free speech," says UT-Knoxville English professor and poet Marilyn Kallet. "No thinking person would oppose free speech. But isn't that what we are already doing?"
Another UTK English professor, Lisi Schoenbach, says the legislation raises more questions than it answers.
"Why such a bill would be necessary? And why the legislature should be involved in the governance of the university?" asks Schoenbach. "It appears to me that the bill repeats a lot of very standard language that can be found in any number of places regarding the importance of free expression on campus, except with extra emphasis on how important it is to have disagreeable and unpleasant speech on campus. Wouldnt this be an argument in favor of Sex Week, and lots of other campus speech that the legislature finds disagreeable?"
When asked about Sex Week and other such things on campus to which conservatives in the Legislature have taken exception, Hensley said the issue with that was not the free speech but the university spending money on it. When asked if bringing a speaker like Yiannopoulos would not also cost money, he changed the subject.
Pippa Holloway, a history professor at MTSU and president of the MTSU chapter of the American Association of University Professors, says the bill is completely unnecessary.
"The legislation's claim that 'state institutions of higher education have abdicated their responsibility to uphold free speech principles' has no basis in fact. I would challenge the representative to visit our campuses; meet with our students, faculty, and administrators; and learn more about how Tennessee colleges and universities operate before wading into territory he obviously knows little about," Holloway comments.
"The legislation would require colleges and universities to modify the content of their freshman orientation and send emails every semester during the first week of classes reminding students of their First Amendment protections. What about the other nine amendments in the Bill of Rights? Should we send out emails every semester reminding them of their Second Amendment rights also? And what about the Third Amendment? If students are asked to quarter a solider in their house during a time of peace, shouldn't we remind them every semester that they can say no? If those questions sound ridiculous, they should, because such micromanaging of the daily operations of college campuses through state law IS ridiculous," Holloway adds.
The thing is, state campuses already do have free speech policies in place. When asked if they had read UT's policy, for one, the legislators admitted they had not. It's also unclear that they have any idea as to who Yiannopoulos actually is. When introducing the bill, Hensley commented, "We dont want to allow hate speech or offensive speech, but certainly when it comes to political issues, every student should have their right to expression." When asked if that wasn't exactly what Yiannopoulos often incites hate speech Daniel replied, "Were just asking that university administrators abide by and respect the first amendment, thats all."
But Yiannopoulos is a proponent of hate speech, in addition to misogyny, racism, homophobia (despite being openly gay himself) and general meanness. He thinks women shouldn't learn science or math. It is nearly impossible to be so horrible that Twitter will actually permanently ban you, yet Yiannopoulos managed it. It seems likely that the writer has only glommed onto the legislation as part of his never-ending quest for self-promotion, especially given that he has a book coming out in March why legislators who had a problem with LGBT diversity funding at UT want to help promote a man whose book was originally going to be called The Dangerous Faggot Manifesto is, well, odd.
UT itself has only issued a vague statement on the bill, with spokesperson Gina Stafford saying in an email, The proposed legislation would apply to all public universities in Tennessee, including the University of Tennessee. The constitutional right of free speech is a fundamental principle that underlies the mission of the University of Tennessee, and the University has a long and established record of vigorously defending and upholding all students right to free speech.
The ACLU of Tennessee also says it will be keeping an eye on the bill.
"This legislations goal of promoting free speech on state campuses is certainly laudable, and the bill contains elements that indeed foster free expression. However, in areas of campus that are not considered public fora, a public university has multiple obligations not only to free speech but also to preventing creation of a hostile environment. The devil is in the details and we are still in the process of closely analyzing this measure," says executive director Hedy Weinberg.
Meanwhile, says Schoenbach, if Daniel and Hensley really want to know about free speech on campus, they should take a class.
"If only there were a way for them to learn about the difference between facts and opinions, critical thinking skills, evidence based argumentation. There should be some state-provided access to this sort of information!" says Schoenbach.
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First Amendment Needs Protecting from Liberals, Say Republican Legislators - Nashville Scene