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Editors note: This commentary is by Peter Berger, an English teacher at Weathersfield School, who writes Poor Elijahs Almanack. The column appears in several publications, including the Times Argus, the Rutland Herald and the Stowe Reporter.

Over recent decades, public schools have been drafted to play Hemingway while the rest of us have taken turns impersonating Joyce.

This brings us in a roundabout way to the First Amendment.

The Founding Fathers were adamant that free speech and a free press are essential for the health and survival of a free republic. I agree with Benjamin Franklin that there is no such thing as public liberty without freedom of speech. In a day where we see the press corralled, berated and threatened at campaign rallies, and where the president echoes Stalin and Mao to declare our free press the enemies of the people, Im especially leery about any abridgement of anyones free speech rights.

However, I tell my students that the First Amendment doesnt mean you can say whatever you want whenever you want to. The government limits citizens speech all the time without violating the Constitution in a judges courtroom, in my classroom during instruction and tests, and, borrowing from Justice Holmes, by barring us from knowingly and falsely shouting Fire in a crowded theater.

The nexus of free speech and classrooms is important to me as a teacher not only because of my ardor for the First Amendment, but also because it illustrates societys failure to grasp classroom reality which brings us back to Joyce and Hemingway.

Courts have clarified students free speech rights in several signal decisions. In a Vietnam-era student protest case, the Supreme Court ruled that students and teachers dont shed their constitutional rights to freedom of speech or expression at the schoolhouse gate, and that schools can suppress student political speech only if that speech would materially and substantially interfere with the schools mission and operation.

One concurring opinion stipulated that students free speech rights are not the same as or co-extensive with those of adults. A dissenting justice expressed what he considered the courts consensus that school officials should be granted the widest authority in maintaining discipline and good order unless their limitations on students speech are motivated by their own political opinions. Going further in his dissent, another justice warned that the courts decision effectively compels the teachers, parents, and elected school officials to surrender control of the American public school system to public school students.

Two decades later the court clarified its position in a case involving a student who used sexually suggestive language and lewd innuendo in a campaign speech at a school assembly. This time the courts majority held that while the First Amendment protects some offensive forms of speech for adults, the same latitude of expression is not permitted to children in a public school. Officials concern for the sensibilities of other students constitutes a legitimate reason to limit student speech.

These precedent-setting rulings bear on a more recent case that affords a look at decisions that officials including judges make and how they dont reflect but do affect real students and teachers like me. The case this time featured breast cancer awareness bracelets bearing the inscription I (heart) boobies. Administrators banned the bracelets as vulgar and inappropriate for middle school. When two female students defied the ban and were suspended, they sued the district for violating their First Amendment right to free speech.

The schools attorney argued that the I love boobies message pushes the limits of propriety in public schools, undercuts efforts to maintain reasonable decorum, and disrupts the schools proper focus on education. He asserted that administrators should be able to prohibit the use of lewd language to convey political or social messages when the same message can be conveyed in a more decorous manner without lewd language.

The ACLU lawyer representing the students countered that I love boobies did not reasonably pose a substantial material disruption to learning and middle school student behavior.

A series of federal courts eventually concluded that the boobies bracelets were not plainly lewd and were protected as a commentary on a social issue, specifically breast cancer. The Supreme Court declined to hear the case on appeal, which left standing the lower courts decision and overturned the districts ban.

Its worth noting that at the same time this federal court in Pennsylvania was outlawing the ban, a federal court in Indiana was ruling that a school in its jurisdiction could impose a ban on the same boobies bracelets.

Lets set aside the vagaries of our federal court structure, and the image of 13 robed federal jurists discussing boobies for a full hour. Lets also agree that fighting breast cancer is worthwhile.

The principal of the school, herself a breast cancer survivor, banned the bracelets as imposing a substantial risk of disruption and distraction. In contrast, while conceding that there are always immature boys, one of the student plaintiffs opined, But I dont think its that disruptive.

Who should get to decide how much disruption is too much a seventh-grader or the school principal?

Before you answer, consider the T-shirt promoting testicular cancer awareness, also in current circulation, that bears the message, I love balls. How about the bisexual female high school student who came to school wearing a shirt declaring I Enjoy Vagina? Do we allow this as protected speech regarding her sexual preference? Do we allow a male student to wear the same shirt? How about the male football team?

The courts have ruled that administrators decisions must turn on whether they can reasonably forecast that the speech in question will disrupt education, violate other students rights, or obstruct appropriate discipline. No one can better judge what could likely disrupt a particular school than the principal and teachers who work there, the people entrusted with educating our children in the first place.

If you cant trust me to decide about bracelets and T-shirts, how can you possibly trust me to disseminate ideas?

As for our distinguished jurists, anybody who cant predict that many adolescents will have a disruptive, harassing field day with slogans that include reproductive organs and allied body parts shouldnt be in the position of deciding whats reasonable.

Once again your public schools have been rendered impotent.

Smirking vulgarity has triumphed in the name of free speech.

The courts and the general public will cluck their tongues at the further decline of public education.

Deal with it, Hemingway, theyll demand as they duck for cover.

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Peter Berger: Students and First Amendment rights - vtdigger.org

After months of a pending verdict in a case that raised consequential questions about the constitutional limitations on politicians' social media accounts, a federal court ruled last week that Loudoun County Chairwoman Phyllis Randall (D-At Large) violated Lansdowne resident Brian Davisons right to free speech by temporarily banning him from her Facebook page.

From a circuit court in Richmond to a federal district court in Alexandria, Davison, a software engineer and father of two, has won and lost battles in courtrooms in his pursuit of defending the First Amendment and accessing public records.

But the latest outcome of Davisons suit is one likely to affect politicians around the country, and maybe all the way up to the White House.

What started off as a pro se free speech suit by Davison against the countys chairwoman and Board of Supervisors could now play a key role in a recent lawsuit against President Donald Trump brought by the Knight First Amendment Institute at Columbia University alleging the president suppressed dissent by blocking critics from his Twitter account.

More and more elected officials are turning to online tools to conduct policy, to engage their constituencies, to advance their political agendas. But theyre also using the tools of censorship in those online platforms, and theyve been doing so without an honest conversation about what the First Amendment has to say about that censorship, Alex Abdo, senior staff attorney at the Knight institute, said. We wanted to start that conversation, and the case in Loudoun County has provided an excellent roadmap for how to think about governmental use of social media in the digital age.

Both Davison and the institutes lawsuits grapple with what is becoming a growing trend of politicians barring critics from their social media pages.

The issue has created a legal gray area around public forums in the digital age and peoples web protections under the First Amendment.

Do the social media accounts of politicians create a public forum protected by the First Amendment when they open up their pages to constituents? And if an elected official blocks or deletes critical comments of a user in that forum, does it violate their rights under the First Amendment?

According to U.S. District Judge James C. Cacheris July 25 ruling, yes, it does.

By prohibiting Plaintiff from participating in her online forum because [Randall] took offense at his claim that her colleagues in the County government had acted unethically, Defendant committed a cardinal sin under the First Amendment, Cacheris stated in a 44-page ruling.

Although Cacheris admitted the consequences of Randalls overnight ban of Davison from her page were fairly minor, he said the court could not treat a First Amendment violation in this vital, developing forum differently than it would elsewhere simply because technology has made it easier to find alternative channels through which to disseminate ones message.

Loudoun officials say the county is considering appealing Cacheris ruling.

Meanwhile, the Knight First Amendment Institutes suit against Trump and his associates argues the presidents @realDonaldTrump Twitter account is a public forum protected under the First Amendment that he uses as a key channel for official communication to make formal announcements and defend the administrations positions.

The institute alleges Trumps view-point based blocking of the seven users from his @realDonaldTrump account infringes the Individual Plaintiffs First Amendment rights and imposes an unconstitutional restriction on their participation in a designated public forum.

A murky outcome

But as lawyers from the First Amendment Institute point to Judge Cacheris ruling to help their case against the president, other legal experts say litigating the institute's case and similar suits going forward will be difficult.

A separate ruling just three days after Cacheris' on a free speech suit Davison brought against members of the Loudoun County School Board from a different judge in the same federal court is already showing signs of the legal conundrum.

In a 20-page ruling, U.S. District Judge Anthony J. Trenga said it was unclear whether Davisons First Amendment was violated by several members of the School Board after they removed his critical posts on their Facebook pages.

Here, the law is less than settled as to whether the plaintiff had a right to post on a Facebook page maintained by a public official and that this right was violated when those postings were removed or when plaintiff was prevented from posting his comments, Trenga said.

Trenga noted it was not clear as a legal matter whether the Facebook pages in question were limited or public forums.

These [cases] are relatively new and every court could come up with a different decision, said Clay Hansen, executive director of the Charlottesville-based Thomas Jefferson Center for the Protection of Free Expression. ... I think until we have some conflicting rulings where we have a split among courts that is at the federal circuit level and we can see this being resolved by a supreme court until we get to that stage we wont have any clear sense of how any particular court will handle it.

Hansen said the Trump case will likely be harder to litigate because the president uses both the @realDonaldTrump handle -- an account he created before assuming office -- as well as the official @POTUS account that has been handed off from one administration to the next.

In the case against Randall, the chairwoman tried to argue her Chair Phyllis J. Randall Facebook account was a personal page, but Cacheris pointed out that Randall created the page the day before she assumed public office with the help of her chief of staff. He also noted she created the account for the purpose of addressing her constituents and asked them to post on the page in question, thus, the account was born out of and inextricably linked to the fact of Randall's public office.

Following Trengas decision, County Attorney Leo Rogers said an appellate court would need to clarify how and when social media constitute public forums.

Eric Goldman, a California-based law professor at Santa Clara University who heads a blog that has closely followed Davisons suits, thinks although Cacheris ruling will be persuasive evidence in the First Amendment Institutes case, but the contrasting set of facts in the Randall and Trump cases could be problematic in litigating a case against the president and similar ones in the future.

I think this ruling gives the plaintiffs additional support for their legal arguments. So, I'm sure they'll be citing it and I'm sure that the judge will be interested in it, Goldman said. Whether or not the facts are extrapolatable enough is I think going to be a point of contention. And so, the defense arguments will be this is different and here's all the reasons why: Trump is in a different position than the supervisor in this case, or the implications of blocking somebody on Facebook are different than the implications of blocking someone on Twitter.

Goldman said the judge in the Trump case will also need to consider, from a philosophical perspective, the implications a favorable ruling could have on the nation.

I think that any judge is going to have to think very carefully about what it means to say that the president violated the Constitution, Goldman said. ... Judges are going to see in their career dozens of burglaries, but they're probably not all going to have one case where they rule on the top elected official in our country having violated our foundational principles.

The cost of activism

In addition to Davisons two suits against the county's Board of Supervisors and School Board, in a separate suit he has challenged Loudoun Commonwealths Attorney Jim Plowman (R). All of the suits accuse the defendants of either blocking him from their Facebook pages or deleting critical comments he posted.

In March, Judge Cacheris ruled that Plowman did not violate Davisons First Amendment right by deleting the Lansdowne residents Facebook posts.

However, Davison is in the process of appealing Cacheris March decision and says he plans to also appeal Trengas ruling in his suit against the School Board.

Davison is now in the midst of a Freedom of Information Act (FOIA) Act suit against state Sen. Siobhan Dunnavant (R) in Henrico County.

He says a victory in a Richmond Circuit Court last year in his request for the Virginia Department of Education to release test score data showing student growth instilled a sense of confidence in him to pursue his First Amendment cases.

But his legal pursuits have not come without a cost. Davison says the repercussions of the suits will follow him for the rest of his professional career.

If Im a politician or Im an attorney, these cases help me, Davison said. In no way shape or form do these cases help me. When we have government clients, if they look my name up and see, Oh wow theres controversy around this person' that can only hurt me. There can be no near-term advantages that I can see, only consequences.

Still, he believes he's fighting for a fundamental American freedom.

From my perspective, it was just, 'Hey, am I going to sit here and watch it and put up with it? And I finally just got tired and thought I could help, Davison said of his lawsuits.

Related coverage:

-"Loudoun resident files civil rights suits against county officials over social media censorship" -"Federal judge sides with Loudoun commonwealths attorney in First Amendment suit" -"Loudoun County chairwoman, Lansdowne resident meet in federal court" -"U.S. District judge rules Randall violated Lansdowne residents First Amendment right" -"Federal court dismisses Lansdowne residents free speech suit against Loudoun County School Board"

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Loudoun County resident's First Amendment case may benefit free-speech group's suit against Trump - Loudoun Times-Mirror

(Reuters) - In 1986, when Congress enacted the Computer Fraud and Abuse Act, the Internet was still in its larval stage. Some U.S. government agencies communicated via the Defense Departments Arpanet, the Internets precursor. Universities and research centers were just starting to network with the government and each other. Commercial Internet service providers didnt exist. Tim Berners-Lee hadnt yet published his revolutionary proposal to link computers around the worldto share information. Mark Zuckerberg was 2 years old.

The CFAA, in other words, was not written to answer the question posed in litigation between the data analytics company hiQ and the social media site LinkedIn: Does a social media site control access to information its users post publicly? As Ive previously explained, hiQs business is to sell employers data analysis bases on their employees public LinkedIn profiles. LinkedIn believes hiQs data harvesting violates its rules. In May, LinkedIn sent hiQ a cease-and-desist letter advising the data company that LinkedIn had blocked its access to members profiles. If hiQ attempted to circumvent the block, LinkedIn said, it could face prosecution under the 1986 computer fraud law, which criminalizes unauthorized access to a computer.

Last month, hiQ sued LinkedIn, seeking an injunction to allow hiQ to continue scraping public data from LinkedIn. LinkedIn is allowing hiQ access while the litigation moves forward, but hiQs CEO, Mark Weidick, has said (including to me in an interview Tuesday) that his business probably wont survive if it loses its case against LinkedIn.

But hiQs fate is hardly the only consequence of the case. U.S. District Judge Edward Chen of San Francisco, who presided last week over a hearingon hiQs motion for a preliminary injunction, will have to decide whether the CFAA is in tension with the First Amendment. Can private Internet companies use the CFAA to control access to public information? Or does the doctrine of constitutional avoidance preclude interpreting the 1986 law in a way that implicates the First Amendment?

Its no accident that both hiQ and LinkedIn brought in top-notch constitutional lawyers to argue at last weeks hearing. Former U.S. Solicitor General Donald Verrilli of Munger Tolles & Olson represented LinkedIn, which contends hiQ has no First Amendment right of access to LinkedIns computer servers. Under the 9th Circuits interpretation of the CFAA, LinkedIn argued, hiQ is akin to a trespasser who has been warned to go away.

Verrilli drew an analogy between LinkedIns publicly available profiles and books in a public library. You go and get books and other information and material from the public library, but the fact that the information's available to the public in that sense doesn't mean that you can break into the library with a crowbar at two in the morning because you're seized with a desire to read 'Moby Dick', Verrilli said. It doesn't mean that you can take a book out, when you're supposed to return it in two weeks, and keep it for a year, because you want that information. It doesn't mean if your library privileges have been revoked for abusing the rules, that you can show a fake ID at the door to get back in. The information's public, but it's subject to conditions.

Verrillis library comparison was sufficiently compelling that hiQs constitutional heavyweight, Harvard professor Laurence Tribe, took care to counter it. Library books, he said, used to have borrowing cards in the back of books showing how often books were checked out. A borrower could presumably could have looked at those cards to figure out which books were most popular a rudimentary form of the data analytics hiQ performs. LinkedIn, in Tribes analogy, is trying to use the threat of government prosecution under the CFAA to bar hiQ from looking at an electronic equivalent of those old-school library book cards.

For the government to make it a crime for me to make use of that information because they want to be the exclusive distributors of information about what's popular to read would, of course, be unconstitutional, Tribe said. That's the setting in which I want to put this case.

According to hiQ, which is also represented by Farella Braun & Martel, LinkedIns trespassing comparisons dont apply because hiQ never ventured beyond public LinkedIn profiles. The data company didnt use someone elses password to access LinkedIn, for example, or hack LinkedIn servers. HiQ argued that social media sites like Facebook, LinkedIn and Twitter are modern-day public forums, as the U.S. Supreme Court just held in June, in Packingham v. North Carolina. The CFAA, hiQ contends, cannot be read to give LinkedIn the power to use government authority to suppress the public flow of information.

Giving any powerful entity, public or private, the ability to choke off, at its discretion, speech is a dangerous path down which we should not go, Tribe said at the hearing.

Judge Chen, who previously presided over one of the 9th Circuits landmark CFAA cases, U.S. v. Nosal, was admirably engaged with both sides lawyers during oral argument, thanking them at the end of the hearing for their superb presentations. He promised a quick decision, since, as he said, I've got a feeling it's not going to end here.

Ive got a feeling hes right about that.

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HiQ v. LinkedIn: Does First Amendment limit application of computer ... - Reuters

Shirley Tipton's Friday, July 28 Herald and News letter, "Johnson Amendment needs to be kept alive", deeply disturbs bothers and angers me.

This letter is predicated upon blatant ignorance! Her letter in essence is not only promoting continuing government censorship of the First Amendment and free speech by targeting and censoring pastors, but likewise defends another career criminal politician from America's shameful past.

I previously alluded to this in my Sept. 27, 2016 letter, also to the Herald and News, titled: "Trump description would fit LBJ well."

question: why are the worse socialists in America ignorant, deluded self righteous senior citizens who blindly "suck up to the party line," continue to re-elect repeat offenders to both houses of Congress and state legislatures, and stubbornly embrace the almighty nanny state?

Perhaps the links listed below will help expose and rebuke the unconstitutional 1954 Johnson Amendment which rightly is government censorship. These include:

"How the Johnson Amendment Threatens Churches's Freedoms" by Michelle Terry

"Come Out of Hiding Pastors, Trump Has Set You Free", May 11, 2017 by Dave Daubenmire.

This along with other credible writers such as Devvy Kidd, Chuck Baldwin, etc. remain archived

"Lawmakers Have a Plan to Stop IRS From Censoring the Free Speech of Pastors" by Rachel del

guidice", October 4, 2016.

Need I continue on? Probably not. Again, after reading Shirley Tipton's letter "I got heated up

like the barrel jacket on a World War II German MG-42 machine gun!" Yet, the Bible states: "Be ye angry and sin not, do not let the sun go down on your wrath."

I attempt to channel my anger into civic activism.

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Promoting First Amendment censorship | Letters | heraldandnews.com - Herald and News

As a chapter chair of College Republicans, I have never been more alarmed by the blatant attack on our First Amendment rights to freedom of speech than I am at the present.

Over the past decade (and particularly the past year), universities across the country have left conservative-leaning students and faculty reeling over their treatment of seemingly benign ideas. Organizations like Campus Reform were forced into existence as a response to faculty and administration officials on various campuses to expose behavior that was intended to stifle conservative views. While student groups like College Republicans and Turning Point USA are attempting to reverse the dangerous course that many of these campuses are set on, the have a long way to go before higher-education can be taken seriously again.

While stories about liberal campuses enforcing liberal policies and in some cases disenfranchising their conservative students go back many years, it appears that incidents have spiked over the past year in particular. It doesnt take much for many of us to recall the riots in Berkeley, California over Milo Yiannopoulos and the violence that was caused. However, the nonsense continues heavily in California, where a case in which conservative students at Orange Coast College allege that their college hired an investigator to harass them is only one of many in the state.

However, its clear that the problem isnt just California, its everywhere. The Foundation for Individual Rights in Education (FIRE) has logged hundreds of cases across the nation, including ones in Louisiana and Texas. The organization has handled cases at LSU, Texas A&M San Antonio, TCU, Texas Tech, and others over cases regarding free speech and other topics. As recently as yesterday, in a case that has not been noted by FIRE but rather by media outlets, a student government diversity chair from the University of Central Florida declared on social media that Trump supporters are not welcome on our campus. These cases are not isolated; they are rampant throughout the United States.

Today, that very same sort of case came to Southern Methodist University in the worst sort of way. Last week, the SMU chapter of Young Americans for Freedom submitted a request in order to place 2,977 flags in memory of the victims of the September 11th attacks. Not only was their request denied by SMU administration, but the administration included in its response letter that The University also respects the right of all members of the community to avoid messages that are triggering, harmful, or harassing. The SMU College Republicans, along with SMU College Democrats, Turning Point USA at SMU, Mustangs for Life, SMU Feminist Equality Movement, and SMU Young Americans for Freedom all responded with a fierce bipartisan rebuke of the administrations decision.

A flag memorial to honor those who lost their lives in the events of 9/11, or displays promoting the education and discussion of the pro-life, pro-choice movements among SMU students must not be viewed as attacks on others. In choosing to view these displays as such, SMU is deviating from its call as a center of higher learning. Its mission is to be a place where ideas are challenged and intellect thrives, not a place to hide or silence alternative points of view, reads the letter from the student groups to the SMU president. The letter is absolutely correct: inhibition of free speech, no matter which side of the spectrum, no matter how much you individually disagree with it, and no matter how stupid it may seem to you, is not good for a free society. Its insulting to the memory of the 2,977 victims of 9/11 to insinuate that a memorial to them would be triggering, and its even more disconcerting the standard that this policy would set. Colleges and universities will undoubtedly produce our nations next set of leaders, conservative or liberal. By teaching these students that its okay to void another persons opinion simply because it offends you in some way isnt diverse, and its intellectually bankrupt. In fact, its degrading the very purpose of our Constitution. It teaches potential future leaders that its okay to take away the rights of someone due to their opinions.

Luckily for us, it appears that the student body at Southern Methodist University at least understands that free speech is something to be valued. Lets hope that message is spread to the rest our campuses as well.

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SMU Becomes the Face of the Collegiate War On The First Amendment - The Hayride