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NICK EICHER, HOST:Its Monday morning November 6th and a brand new work week for The World and Everything in It. Good morning! Im Nick Eicher.

JENNY ROUGH, HOST:And Im Jenny Rough. Its time now for Legal Docket.

AUDIO:And we have a big, breaking story today. Many of you probably heard that Port,little Port Huron, the city of Port Huron, is going to the Supreme Court.

EICHER:Audio from a TV show produced in Port Huron, Michigan. A town with a population less than 30-thousand generating a case thats going to the Supreme Court.

ROUGH:And it stems from an action taken by the city manager of Port Huron a local official who got fed up with a persistent citizen activist posting negative comments on Facebook. The City Manager had heard enough, so he blocked the complaining citizen.

EICHER: But in so doing, did he violate the First Amendment? Its a little surprising were only now testing the question at the Supreme Court, because as long as weve had social media, it seems, weve had political brawls. But now the issue is ripe, and its not just Michigan. Theres also a case from California, and theyll both be considered.

Together they will answer the question: When can a public official block someone on social media?

ROUGH:Last week the Supreme Court heard oral arguments in both cases. And WORLD Associate Correspondent Jeff Palomino has our report.

JEFF PALOMINO, REPORTER:Lets say you are a concerned citizen.Youve become aware of something you think is a problem in your community.You want to make your opinion known, but how best to communicate with public officials?You turn to social media.You find your public official on Facebook or X, as Twitter is now known and express your views there.

But what happens if the government official youre talking to doesnt like what you say? What if he deletes your comments? What if he blocks you from their page?

This is exactly what happened to Kevin Lindke of Port Huron.

He claims that City Manager James Freed violated his right to say what he had to say about what was going on.

But to prove he violated the First Amendment, the public official has to be shown to have engaged instateaction.

Meaning Freeds actions must be fairly attributable to the State. Not something he did in hispersonalcapacity.

By the time this case got through the appellate stage one federal appeals courtthe Sixthhad created one test to define state action. But a different appeals courtthe Ninthhad created a different one.

JUSTICE NEIL GORSUCH:In both cases, we have a profusion of possible tests to choose among.

Thats Justice Neil Gorsuch he and his colleagues on the Supreme Court have to choose which test will prevail.

Now, a quick review of the facts in both cases. The Sixth Circuit case isLindke v.Freed. City Manager Freed used his Facebook page to talk about his passions and interests, including his daughter, his wife, his dog, his work, and his favorite Bible passages. But he also posted some administrative directives he issued as city manager. And when the pandemic hit in 2020, he shared policies issued for Port Huron. Thats the case weve been talking about.

TheNinthCircuit case isOConnor-Ratcliff v. Garnier. School board members created public Facebook and Twitter pages to promote their campaigns. After they won the election, they continued to use the platforms. They posted little of a personal nature. Instead, most of the information was about school-district business and news.

Christopher and Kimberly Garnier were parents in the district and they frequently left critical comments on these pages. So, the school board members blocked them.

At oral argument, attorney Allon Kedem argued for Lindke in the Port Huron case. He proposed the first test for state action.

That test Ill call the Channel of Communication test. Heres how he explained it.

ALLON KEDEM:Under our test for state action, a public official who creates a channel for communicating with constituents about in-office conduct and then blocks a user from that channel must abide by the Constitution. This test, which focuses on how the public official is using and purporting to use that account, is consistent with this Court's precedent under which a public official who purports to act in that capacity is a state actor.

The problem with this test is that most of the city managers posts were personal. Justice Alito wanted to know when a personal page transforms to a public one.

JUSTICE SAMUEL ALITO:what if 95 percent of the posts are personal and 5 percent of the posts involve discussion of his work?

KEDEM: So it would obviously be a more difficult argument for us to make, butif there's only one place to go to interact with the city manager about directives that he himself had issued,that doesn't change the fact that if you get blocked off from that page, you're suddenly losing access to a lot of information.

But Justice Alito wasnt sure about that line. How low did it go?

ALITO: but if it's like 1 percent, one-half of 1 percent, it's not? Is that what you're saying?

KEDEM: So it's not a quantitative test. It's qualitative.

Justice Gorsuch asked Kedem what if the citizen harassed the public official about the personal posts. What if he harrasses him about his cat pictures? Is that state action?

KEDEM: So I think it could be in the exact same way that it could be if, for instance, you were on an official page of the town and you were being harassing. At some point -

JUSTICE GORSUCH: No, no, all the harassing in my hypothetical has to do with cats.

KEDEM: No, I understand.

JUSTICE GORSUCH: The commenter hates cats.

KEDEM: Sure.

JUSTICE GORSUCH: --cats.

MR. KEDEM: Sure. And -

JUSTICE GORSUCH: And maybe he hates your children too, I don't know.

(Laughter.)

JUSTICE GORSUCH: But --butif I block that person for that, at some point, you know, even though it's all my personal stuff, that's state action?

Kedem said itwouldbe state action but gave reasons why a lawsuit like that might fail.

Lawyer Pamela Karlan proposed the second test for state action. She represented the parents in the California case, the ones who sued the school board members.

Ill call her test the doing their jobs test. She explains it to Justice Alito.

ALITO:Your test is whether government officials are doing their jobs, right?

PAMALA KARLAN: That's the starting point, and it creates what I would say is a kind of rebuttable assumption that when a government official is doing her job, she is a state actor.

Justice Alito pressed with a hypothetical. A city mayor is in the grocery store where hes repeatedly approached by constituents. He really doesnt want to be bothered, but he listens to comments by supporters and people sympathetic to his policies.

ALITO: But when somebody who is a known opponent approaches the mayor, the mayor says, look, please call my office. Is the mayor doing his job when he's doing that?

KARLAN:When they're clearly off duty, that is, you know, pushing the shopping cart down the aisle, arguably, they're not doing their job.But, when they create an ongoing site like the site here, they maintain a forum, if you will...

For Karlan, people are also doing their jobs when they do things the job legally requires. As evidence, she cited various laws, including the California school districts own by-laws, that said receiving feedback from constituents was an important part of school board members duties. She explains, this is what these board members did on Facebook and Twitter.

KARLAN: And here what you have is both of the Petitioners using "we" and "our" when they talked about what the Board is doing and anybody who looks at that is going to think: This is an official website. It looks like an official website. It performs all the functions of an official website.

Those are the tests proposed by the people who were blocked. But what about the government officials who did the blocking? The officials in both cases agreed on their tests.

This third test Ill call the duty and authority test. To see if an official engaged in state action the Court must look at those two things. Heres Hashim Mooppan for the school board members.

HASHIM MOOPPAN:if there is neither the exercise of duty nor authority, that's not state action...Now that raises the further question of: Well, how do you know whether there are duties and authorities? At that point, we're not talking about a test. We're talking about how to implement the test. And I think the things that the Court should be looking at are objective indicia that are capable of disentangling the two capacities.

Objective indicia like use of government resources to maintain the page, whether a person's boss could tell him what to do on the page, or whether the official was exercising exclusive duties. Sounds easy, but the Court spent a lot of time trying to define both terms.

Heres Justice Amy Coney Barrett.

JUSTICE AMY CONEY BARRETT:I think it's very difficult when you have an official who can in some sense define his own authority. So I think, for a governor or, you know, President Trump, it's a harder call than someone like a police officer, who's a subordinate. Or I could --you know, my law clerk could just start posting things and say this is the official business of the Barrett chambers, right? (laughter.)And --and that wouldn't be okay. But if, you know, the --that wouldn't be okay. (laughter.)

Defining duty was also a problem. Should it be broadly or narrowly defined? Justice Sonia Sotomayor explained her position.

JUSTICE SONYA SOTOMAYOR:Every elected official tells me that they're on duty 24 hours a day. And so, if they are during that 24 hours creating, themselves, and posting the Facebook and doing all of the communications they're doing, why isn't that state action?

The U.S. Solicitor General filed friend of the court briefs and argued on behalf of the city officials in both cases.

She agreed duty and authority was the correct test, but added one element. In close cases, the Court should look to the nature of the property involved. Only if its government property would there be state action.

Justice Elena Kagan expressed doubt about that. Social media has changed the way we communicate. And continues to.

JUSTICE ELENA KAGAN:Andpart of that change is that more and more of our government operates on social media. More and more of our democracy operates on social media.And I worry that the rules thatyou're suggestingis really not taking into account the big picture of how much is going to be happening in this forum and how much citizens will be foreclosed from participating in our democracy if the kind of rule you're advocating goes into effect.

And therein lies the tension.

One one side, a broad test that finds almost anything to be state action risks trampling the rights of millions of government employees. It would also risk waves of litigation and an outcome that instantly makes most speech subject to government control.

On the other side, social media is one of the most powerful mechanisms for private citizens to say what they need to say, as the musician John Mayer might put it.

So, a test thats too narrow risks cutting people off from their government.

In these cases, I predict the court will - to use the words of Justice Gorsuch from oral argument - coalesce around the duty and authority test with debate among the Justices over how wide that test is.

The eventual ruling will likely mean the California school board members engaged in state action but leave room for no state action by City Manager Freed. After all, even public servants need to say what they need to say, too.

And thats this weeks Legal Docket!

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.

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Legal Docket: Facebook and the First Amendment - WORLD News Group

Does the First Amendment block the ability of states to protect the online privacy of children? If a lower federal court decision from California is upheld, the astonishing answer is yes. That should trouble all of us.

To fully understand whats going on here, we have to take a step back. Almost 50 years ago, the Supreme Court launched America on an extraordinary First Amendment experiment. Though no one pretends that James Madisons First Amendment was meant to protect commercial speech, in 1976 the Supreme Court declared almost unanimously that the First Amendment would now defend corporations against the regulation of their words. The original case involved bans on advertising. Very quickly, though, the doctrine morphed to include a burden on anything that might be characterized as speechincluding the data corporations gathered from their customers. Even safety warnings have been attacked as compelled speech: If it violates the dignity of schoolchildren to be forced to pledge allegiance to the flag, then obviously, this argument claims, it violates the dignity of corporations to be forced to declare how to use their products without causing harm.

The law invalidated by the California court in September, the California Age-Appropriate Design Code Act, was model privacy-protection legislation for the internet age. CAADCA pushed commercial entities on the web to design their platforms to trigger high-privacy settings by default for children; stopped the tracking of children without real-time notice; stopped the selling ofkids data; required companies to limit the harms from design features such as autoplay, nudges, excessive notifications, and endless feeds; and required privacy notices in language to be accessible to kids. And yet, each of these featureseven providing accessible privacy noticeswas forced to justify itself under a First Amendment standard that requires a law to advance, as the doctrine has it, a substantial state interest directly, and not more extensively than necessary. (Yeah, its just that clear.) Though the lower court conceded that the states interest in protecting the privacy of children was indeed substantial, one by one, the judge second-guessed how the Legislature had tried to advance that substantial interest. Forty-five pages later, the law was dead.

Legal doctrine is all about practical consequences. And the practical consequence of decisions like this is that governments, be they state or federal, will have little capacity to protect us from online harms, especially the emerging harms from A.I. The regulation of online commercial activity is always the regulation of code and data. If efforts to push companies to design their online platforms to be more safe are met with challenges under the First Amendment, very quickly, the legislative will to make the internet safe will dry up. Lawsuits are slow and expensive. And if the state loses, the corporation not only earns its freedom from regulationit also gets to collect its legal fees from the state.

No one doubts that the equivalent regulation offline would be free of constitutional burden. California regulates the design of childrens toys, for example, to ensure that materials are safe and the structures are age-appropriate. No constitutional barriers block those choices. Of course, no one pretends that every regulation makes sense or achieves its objective. But the fight over effective safety regulation is a political one, not a battle of analogical reasoning by lower federal court judges enamored of flowery rhetoric by famous Supreme Court justices.

This was the clear message of the lone dissenting justice in the case that rewrote the First Amendment to protect commercial speech 50 years agothen-Justice William Rehnquist. Rehnquist was among the most important conservative justices in the modern history of the court. But his conservatism also left the state with discretion in imposing economic regulationsto protect both legislative authority and the dignity of the free speech doctrine itself. As he warned, the logical consequences of a decision which elevates commercial intercourse to the same plane as has been previously reserved for the free marketplace of ideas, are far reaching indeed. Courts, he feared, would improperly substitute [their] own judgment for that of the State. The doctrine would unduly impair a state legislatures ability to adopt legislation reasonably designed to promote interests that have always been rightly thought to be of great importance to the State.

Rehnquist could not seejust how right his words would become: As life moves increasingly online, regulation must move online as well. If every regulationincluding safety regulationmust run the gantlet of First Amendment review just because it involves code or data, then life online will quickly become a libertarian dystopia: free of regulation, crafted to corporate ends alone.

It is time for the Supreme Court to step back from its commercial speech experiment, at least online. No doubt, the state should have no power to skew speech to promote one view over another. No doubt, courts must ensure that political speech is protected fundamentally. But the online world is not found; it is made. And the state needs the power to ensure that it is made in a way that protects traditional valuesespecially safety and privacy, and especially among children. Ensuring privacywhat Brandeis referred to as the right to be left aloneis not the regulation of speech. Requiring that children are protected from manipulative and exploitative advertising is not state-sponsored censorship. The court should return the First Amendment to its core and important purpose: to protect against state-enforced ideology and attitudes and to secure healthy political debate. That critical purpose is far from Californias efforts to secure safety online.

Continued here:
How First Amendment protections are limiting our ability to ensure ... - Slate

NICK EICHER, HOST: Coming up next on The World and Everything in It: Free speech on campus.

As we know, speech rights and obligations can be complicated. Private universities are facing legal questions that are different from the questions government institutions face. Its difficult to know whats protected and whats not.

MARY REICHARD, HOST: Joining us now to help sort it out is Tyson Langhofer. He serves as senior counsel and director of the Center for Academic Freedom with Alliance Defending Freedom.

Tyson, good morning.

TYSON LANGHOFER, GUEST: Hey, good morning. Thanks for having me.

REICHARD: Glad youre here. Well, lets start with the baseline. What is the legal definition of hate speech?

LANGHOFER: There actually isn't a legal definition of hate speech, which is what really creates the problem in First Amendment context, because what might be hateful to one person may not be hateful to another person. And so we have taken the approach in America to have a very broad protection of speech so that the government doesn't get to define whose speech they think is hateful and thus prohibited and whose speech they think is okay and thus not prohibited.

EICHER: Okay, so going beyond the legal definitions which don't exist, are there uniform policies about hate speech on college campuses? Or is this just an ad hoc kind of case by case thing?

LANGHOFER: It is an ad hoc case by case thing, which is what creates the problem. So what the Supreme Court has said is that the government cannot look to the content or the viewpoint of somebodys speech in order to prohibit that speech. And so when a government official looks at somebody's speech and says, Well, that viewpoint is hateful, therefore, I'm going to prohibit it, the government or the Supreme Court has said that that is unconstitutional. And so what you see is there is no uniformity across the college campuses, because it is a subjective determination, which is what the Supreme Court has said the First Amendment prohibits.

REICHARD: You know, we've heard the chants "from the river to the sea, Palestine will be free" from those who are supporting Hamas, meaning Palestinian control over the entire territory of Israel's borders, from the Jordan River to the Mediterranean Sea. Now, some say that is not anti-semitic, it's only anti-zionist, Tyson, what do you make of that argument?

LANGHOFER: Well, I mean, I think that if you're advocating for the complete annihilation of a people group from a certain, you know, country, that that makes it difficult to argue that, you know, your that your argument against simply a country as opposed to, to a people group. But I mean, I think that the debate that we're having here, about what type of rhetoric that we can engage in, in a very, very politicized and highly inflammatory environment, is the very debate that the First Amendment is designed to protect. And what the Supreme Court has said, is that the highest principle of our First Amendment jurisprudence is to protect the thought that we hate. But I think that's what our First Amendment calls us to, is to protect those things. Now, obviously, there are certain limits. So if there are people calling for imminent violence against anyone, regardless of who they are, that's not protected. But if they're arguing in general for broader principles, then that is protected, even if we think that principle is hateful or wrong.

EICHER: So maybe that's the way to do it, because I intended to ask, how do you sort of make that balance between protecting free speech but also condemning ideas that justify abhorrent action? So that's the line whether it's sort of inciting or how do you make that distinction?

LANGHOFER: That's absolutely the line as the Supreme Court has drawn it. They've said there's there's very narrow areas that are unprotected speech, one of them would be a true threat. So if I'm threatening somebody in the moment and saying, I'm going to commit some act of violence against you that's not protected, you know, actually engaging or encouraging people to go engage in imminent violence that's also not protected, but advocating for principles that might lead people in the future to take some acts which are unlawful, that is protected. And that's sort of the line that we've drawn. And I think it's really important to understand that if you have a conservative originalist view of the Constitution, you have to understand that it is going to require us to allow people to say things that we vehemently disagree with, that we think are wrong and immoral, but that also protects us as Christians to engage in speech that we believe is consistent with our biblical worldview, that many people would say it is hateful or shouldn't be protected as well.

REICHARD: I have to ask this question: why are some of our most prestigious campuses inundated with these pro Hamas views? What's going on?

LANGHOFER: Well, I think when you see that they have been taught this the issue of of critical theory, where everything is intersectional. And and it's all about who we deem as the bigger victim. And there's not a broader justice, there's not an absolute, that's it's the victim, and it's based upon identity rather than actual actions. And I think that has led them to stop looking at the actual facts on the ground, and just looking at whose identity do we believe is more oppressed? And in that, in that framework, I then determine who is the victim and who we should be supporting, as opposed to looking at it broader, what is the truth of the situation, and what is just in this situation, regardless of what their identities are? Everybody should be, you know, advocating for a just result, regardless of the identity of the individual who's being victimized.

EICHER: Tyson, I know you've been paying very careful attention to this for many years. What is your assessment of what's missing from the conversation about free speech and mitigating harm on campus? What's missing?

LANGHOFER: Yeah, I think what's missing is this. There's a large and growing portion of campus which is advocating for social justice. And we want justice as well as Christians, we desire justice. But what they don't understand is that you cannot achieve justice without obtaining the truth. What is the truth, truth and justice are inextricably linked. We must arrive at truth and then we can get the justice and everybody I think can agree we want a just society. But shutting down certain viewpoints is not going to get us to truth. And it's not going to get us to justice. And I think that's what's missing is this ability to to engage with people that we very, very much disagree with, but to do it in a way that where it's a dialectic rather than a debate, right? It's the ability to learn and to listen to the other side, and explore what they're saying. All right, at the same time, of being able to give them your viewpoint and recognize they're both created an image of God and that they're both we all have that inherent human dignity and we should respect them as a person, even if we disagree with their viewpoint.

REICHARD: Tyson Langhofer serves as senior counsel for the Alliance Defending Freedom. Thanks for joining us!

LANGHOFER: Thank you for having me.

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.

Read more:
The right to disagree matters | WORLD - WORLD News Group

Both sides agreed to federal mediation after a district judge suggested the constitutional claims had merit.

The new policy strikes the prohibitions on teachers and strikes a statement that the violation of those policies is insubordination. It clarifies that school district employees are free to express themselves in their private capacity but cant divulge deliberative and confidential information until that information has already been shared by the district to someone outside the district. The teachers union said the new policy protects the First Amendment rights of educators in Woodland Park.

Since the ban on speaking to the press, multiple teachers told CPR they were terrified of speaking on-the-record and asked to be anonymous without any identifying features in news reports.

The U.S. Court of Appeals for the 10th Circuit has twice found such restrictions on public school employees speech unconstitutional. In a spring interview with CPR, Superintendent Ken Witt was asked about the ban.

I think the policy speaks for itself, he said.

Owen, the plaintiff, who is also a science teacher in Woodland Park, said its critical that teachers are able to share their voice to advocate for their students.

Its a victory for the community at large, which deserves to know whats happening in our childrens schools.

The district does not have a collecting bargaining agreement with the union but as part of the agreement the unions president will meet with Superintendent Witt monthly as a way to hear union concerns.

WPSD is committed to continuing its practice of seeking input and perspectives from educators directly rather than through union organizations, the district said in a statement.

See the rest here:
Woodland Park teachers win their fight to restore First Amendment ... - Colorado Public Radio

The man who was issued two traffic citations after he flipped off a Flagler County Sheriff's Office deputy on Aug. 8 has had his day in court, with both tickets dismissed by the judge.

FCSO Master Deputy Kyle Gaddie issued two citations one for following too closely and one for impeding traffic in the left lane to St. Augustine resident Jeff Gray, who calls himself a civil rights investigator and First Amendment auditor. Gray, a retired truck driver, regularly posts about his interactions with law enforcement on his YouTube account, HonorYourOath Civil Rights Investigations.

Gray said the citations were retaliatory because he'd flipped Deputy Gaddie the middle finger as Gray passed the FCSO agency vehicle on Interstate 95.

The case was overseen by Judge Andrea Totten at the Kim C. Hammond Justice Center in Flagler County on Oct. 30. Totten dismissed both citations levied against Gray.

Gray has already uploaded a video of the dismissal to his YouTube account. In Gray's video, Gray's attorney, Eric Friday, said Gaddie attempted to use Gray's own video of the incident to prove Gaddie's case.

Gray's video includes an audio recording of Gaddie's testimony, referencing Gray's YouTube video of the incident.

"Before I even finished," Friday said in Gray's video, "the judge said she didn't need to hear anymore."

Read more from the original source:
Flagler County judge dismisses traffic tickets against 'First ... - Palm Coast Observer and Ormond Beach Observer