Mediaboss Marketing

Les Abend with his plane at the county airport, from where the county attempted to evict him in retaliation, a jury said, for Abends opinions. ( Les Abend for FlaglerLive)

It started as an eviction case. It ended as a First Amendment case. The First Amendment won. Flagler County government lost.

After deliberating 90 minutes Tuesday, a jury of four men an two women found that Flagler County had improperly sought to evict a tenant from a hangar at the county airport, and was doing so only in retaliation for the tenants criticism of Roy Sieger, the airport director, violating the tenants First Amendment rights.

It was a remarkable case on several levels: It invalidated the countys eviction. It tied back into a controversy over the airport advisory board that the county arbitrarily disbanded in 2020, when the advisory board was raising issues of noise and overspending at the airport. It validated by jury verdict allegations of imperiousness on the part of the airport director. And it did so in a County Court trial, when First Amendment cases are usually handled in federal or circuit court.

The county filed its eviction suit at the end of January, thinking thats all it would be. But that turned out to be a culmination of long-simmering animus between Sieger and Les Abend, the tenant.

Revenge is a dish best served cold, Dennis Bayer, Abends attorney, told the jury, arguing that Sieger was essentially taking his revenge on Abend with the eviction, more than two years after their previous clashes. The jury agreed.

Sieger, a county employee, is the director of Flagler Executive Airportstill more colloquially known, to his chagrin, as Flagler County Airport.

Abend is a licensed pilot for 49 years and a flight instructor whos flown everything from gliders to the Boeing 777. He writes for various aviation journals and is an on-air analyst on aviation on various media, including CNN, NBC, MSNBC and FOX. He served on then briefly chaired the Flagler County Airport Advisory Board. Hed been renting a hangar at the county airport for his blue and white Piper Arrow plane for $321 a month since March 2018.

Tensions began to rise between the advisory board and Sieger not long after that. Then board members took their complaints to the County Commission, openly criticizing Sieger there as authoritarian and dismissive of their recommendations, especially on noise issues that neighbors wanted addressed. They subsequently criticized him for building what they considered to be an unnecessary Taj Mahal of a terminal in an airport that doesnt have the traffic to support it. Sieger has always advocated for a terminal in an airport without one.

On Sept. 9, 2020, the County Commission didnt think it needed the boards advice anymore. It disbanded it. Abend saw Siegers fingerprints on the move. The county would later argue that Sieger had no authority to disband the advisory board, that it was entirely the purview of the County Commission. On paper, thats true. In reality, the countys claim is somewhat disingenuous: Sieger has always wielded authoritative control of the airport, with the administrations blessing. I and the commissioners have full confidence in Mr. Siegers operation of the Airport, Petito wrote Abend last December. I dont typically involve myself in his daily affairs or any other department heads for that matter. Commissioners were barely involved in the scrapping of the advisory board, and only on a ratifying basis when it voted to have it disbanded at the urging of then-Administrator Jerry Cameron.

A year passed. On Sept. 26, 2022, the county declared a state of emergency ahead of Hurricane Ian. Three days later, some 1,500 utility workers, contractors and others associated with recovery efforts staged at the airport in what amounted to an instant makeshift city, including sleeping quarters, dining and showering facilities, in addition to trucks, heavy equipment and fueling stations, in the countys description.

The storm had left 46,000 customers, or 70 percent of the countys population, without power. Some 2.1 million customers lost power across the state. But the airport had not closed: planes were still landing and taking off, as shown in the flight logs for the relevant period of time, court papers note. Two schools were continuing their flight lessons. Paying tenants had a harder time. One pilot complained to the Airplane Owners Pilot Association about difficulties accessing hangars. (The county claims the association found its handling of the emergency to have been superb.)

Abend had for six months planned to fly his plane to a wedding around that time. Hurricane Ian cleared the area the night of Sept. 29. The next day, two days ahead of Abends planned trip, he went to the airport to prepare. He noticed a few vehicles in the way, and had a friendly conversation with an FPL official, who said the vehicles would be moved by the time he needed to fly 48 hours later. Abend also texted and emailed Sieger, summarizing the conversation with the FPL official.

Sieger never responded (he would later claim that hed been texted to his personal phone), though 24 hours later, Sieger emailed all tenants, asking them not to fly if they could help it, but that it would be arranged if they needed to. Do not attempt to taxi your aircraft without assistance from airport personnel and do not interfere with the emergency response crews working on the field, he wrote. In fact, emergency crews were not working on the field, only staging, or parking, their equipment there while they rested and waited for dispatching orders, as even pictures distributed by the county illustrated. The county at the time boasted about its role as a host of the big operation.

Nine weeks later, Sieger terminated Abends lease, giving him until last Jan. 13 to leave.

Abend was floored. He asked why, taking up the matter with Petito, who told him no reason need be given. Abend smelled something fishy, like that dish his attorney would later mention to the jury. He retained Dennis Bayer, the Flagler Beach attorney, and informed the county that he would contest the eviction.

Sieger has shown a propensity to not accept and to resent any recommendations for airport operations from third parties, including the duly appointed volunteer advisory board, Abend would argue in court, through his attorney. Sieger has engaged in actions towards Abend that could be deemed hostile and retaliatory. Sieger has advised third parties that he thought Abend was seeking to have Sieger fired by the County.

Assistant County Attorney Sean Moylan handled the case for the county. (He could not be reached before this article initially published.) The county categorically denied that Sieger was hostile or retaliatory, and reasserted the language of the lease: Nothing in the lease agreement provides for a challenge to the 30-day termination, much less to do so by wrongfully retaining possession of public property, Moylan wrote Bayer. Mr. Abends indication of his intent to breach the agreement and follow whatever unwritten terms he unilaterally conjures demonstrates a haughty disdain for the Airport and for fair dealing.

Bayer filed a motion to dismiss, arguing that the county should have stated a cause of action more precise than the vague allegations that Abend had interfered with workers at the airport. The county countered that it didnt have to give an explanation, since the lease language gave either side the right to end the month-to-month arrangement with 30 days notice, and without further rationales. County Judge Andrea Totten denied the motion.

The county is right so far as the lease language goes: it didnt have to give a reason. But it admitted that in the entire history of the airport, it had never unilaterally terminated a lease for no cause. And its retaliatory actions were not veiled: it doubled the rent on Abend.

The Countys decision to terminate cannot be exercised in a manner that is either retaliatory, discriminatory, or unlawful, Bayer argued. In this instance, the termination is retaliatory and discriminatory towards [Abend] based upon Abends lawful exercise of his First Amendment right of free speech. When combined with the way that [Sieger] eliminated the advisory board due, in large part to Abends advocacy, the termination here was taken for purposes of retaliation against Abends exercise of free speech.

Disarmed by its own historythat lack of evictions without causethe county emphasized Abends interaction with the FPL official, characterizing it as interfering with the emergency. Abend called it a fabrication, and an attempt by the county to back-fill a reason to evict him.

While the airport had restricted access to tenants like Abend, a restriction that violate their lease, Bayer argued, tenants still flew their planes but did not see their leases questioned or terminated.

My argument to them was whywhy was my client selected to be the first to be treated this way, Bayer said. And the evidence pointed to being retaliation for his criticism of how Mr. Sieger was operating the airport. The county tried to make it sound like it was a result of interfering with operations after storm, but Abend testified that he followed all the protocols established by the county. The connection with that history over the advisory board was unavoidable.

The jury in the two-day civil trial before Judge Totten had to answer two questions: Did the Plaintiff, Flagler County, properly terminate [Abends] hangar lease? The jury said No. (The case was actually against Abends company, Pen and Pilot, but he and his wife are the only principals.)

Did the Plaintiff, Flagler County, improperly terminate the lease with [Abend] in retaliation for [Abend] exercising [his] right to free speech under the First Amendment to the United States Constitution? The jury said yes.

Sieger, Petito and Charles Weaver, the FPL manager whod handled the staging, testified for the county. Abend and Daryl Hickman, a former chairman of the airport advisory board, testified in defense.

Abend gets to keep his lease at the hangar (the county has 130 people on its waiting list for hangar space). But the terms are unclear.

Certainly I won this for me, but in a way I won this for all the other tenants, Abend said today, though he remains dismayed over the way the county handled, then ignored, then disbanded the advisory board even as the same issues of concern then continue today, not least among them noise.

Its just a shame the county didnt take the advice of numerous people with numerous backgrounds that were trying to make the airport better, and they were doing it without compensation, Abend said. All they were trying to do is make the airport better and to make Roy Sieger look good, but it just fell on deaf ears. Two years went by and Roy found a reason to get rid of me, and the jury agreed.

See original here:
Jury: Tenant's Eviction Was Retaliatory Violation of 1st Amendment - FlaglerLive.com

If I had to write a First Amendment casebook for law schools (and I almost did), I certainly would not model it after any of the main ones now in use. Though most are expensive (some cost upwards of$300), that is certainly not their major flaw.

My problem with these tomes is that they are first and finally about doctrinal law announced by the Supreme Court (and even on that score they can be inadequate), and feature very little about the modern practices of law in trial and appellate courts.

Dont get me wrong, I have no truck with theMarbury v. Madison (1803) principle of the supremacy of Supreme Court review. My problem is there is much more to First Amendment law than high court case-crunching. Below are seven reasons, among others, why I think most First Amendment casebooks are inadequate in preparing law students topractice in this area of law, which is expanding.

Of course, the law of free expression expands well beyond Supreme Court precedents as evidenced by speech-and-press-enhancing laws in state constitutions, state statutes, and local laws. As every seasoned lawyer knows, the totality of such laws provides the truest measure of expressive liberty. And then there isthe culture of free expression simply consider how the advent of the internet effectively changed the law of obscenity in many (though not all) respects. Additionally, federal statutory protections are possible as evidenced by the proposedFreedom of Speech and Press Act.

Bottom lines

Has the time not come to slay these old doctrinal dragons? Or, to be more diplomatic: The time is long overdue to shelve these weighty (and pricey!) First Amendment casebooks. The present and future demand a new (perhapselectronic) generation of free-expression coursebooks.

Publishers take note, professors take action, and students get ready to move beyond yesterday and toward tomorrow.

Related

Note to reader:I will be out of the country for the next two weeks. But not to fear: Well be sharing two Looking Back issues of First Amendment News during that time one featuring an interview with a well-known constitutional litigator, and the other being a profile of an unknown dissenter. Both are likely new to you.

See you on the other side of the calendar!

RKLC

A federal judge issued a limited gag order Monday against Donald Trump, saying the former president must stop disparaging prosecutors, witnesses and court personnel involved in his upcoming D.C. trial on charges of conspiring to obstruct the results of the 2020 election.

The decision by U.S. District Judge Tanya S. Chutkan takes the country further into legally and politically uncharted territory with a criminal defendant who is known for incendiary public statements and is also a leading 2024 presidential candidate. Mr. Trump is facing felony charges, and he does not get to respond to every criticism if that response could affect a potential witness, Chutkan said in court. He doesnt get to use all the words.

But the judge declined to impose restrictions as broad as the Justice Department wanted, saying Trump was free to verbally abuse President Biden, his likely rival in the 2024 election. Trump can also claim that the case against him is politically motivated, as long as he doesnt denigrate individual prosecutors.

Mr. Trump can certainly claim hes being unfairly prosecuted, but I cannot imagine any other case where a defendant is allowed to call the prosecutor deranged, or a thug, and I will not permit it here simply because the defendant is running a political campaign, Chutkan said, quoting from pastTrump statementsto make her point.

[ . . . ]

Todays decision is an absolute abomination and another partisan knife stuck in the heart of our Democracy by Crooked Joe Biden, who was granted the right to muzzle his political opponent, the unsigned statement from the Trump campaign said. President Trump will continue to fight for our Constitution, the American peoples right to support him, and to keep our country free of the chains of weaponized and targeted law enforcement.

TheSupreme Courton Monday rejected North Carolinas appeal in a dispute with animal rights groups over a law aimed at preventing undercover employees at farms and other workplaces from taking documents or recording video.

The justicesleft in placea legal victory for People for the Ethical Treatment of Animalsin its challenge to the state law, which was enacted in 2015. PETA has said it had wanted to conduct an undercover investigation at testing laboratories at the University of North Carolina at Chapel Hill but feared prosecution under the Property Protection Act.

In a 2-1 decision, the 4th U.S. Circuit Court of Appeals ruled in February that the law could not be enforced against PETA and likely others in similar situations when its undercover work is being performed to conduct newsgathering activities.

The Alexandria city council unanimously voted to repeal some restrictions on panhandling Saturday that city officials said had violated the First Amendment. The council heard arguments Tuesday from the city attorneys office and Alexandria police in favor of rescinding an ordinance that restricted aggressive panhandling, including soliciting money using methods that cause fear of injury. Saturdays 7-0 vote came after a follow-up hearing.

The ordinance, enacted in 1994, also limited panhandling within 15 feet of ATMs, which ran afoul of a 2015 decision by the U.S. Court of Appeals for the 4th Circuit. (The 4th Circuit covers Maryland, Virginia, West Virginia, North Carolina and South Carolina.) The court ruled that a Charlottesville law that prohibited people from soliciting cash near a mall violated the free speech rights of homeless panhandlers.

Related

This Article presents the findings of a quantitative and qualitative study of the application of qualified immunity and other governmental immunities in the context of public protest. Relying on three unique datasets of federal court decisions examining First Amendment and Fourth Amendment claims, the Article concludes that public protester plaintiffs face an array of obstacles when suing state, local, and federal officials for constitutional injuries. Quantitative findings show that protesters claims are frequently dismissed under qualified immunity doctrines and that plaintiffs also face strict limits on municipal liability, new restrictions on First Amendment retaliation claims, and the possible extinction of monetary actions against federal officials. Qualitatively, the study shows protesters rights are under-developed in several respects, including recognition of the right to record law enforcement and limits on law enforcements use of force. The study lends additional support and new urgency to calls for qualified immunity reform or repeal, as well as reconsideration of other governmental immunities. It also concludes that much more than money damages for injured plaintiffs is at stake. Lack of adequate civil remedies may significantly chill future public protest organizing and participation.

When social media platforms like Facebook and YouTube moderate content, are they engaged in protected speech? Or are they engaged in an invidious form of censorship? The answer, which lies at the heart of a pair of cases the Supreme Court agreed to hear on Friday, could fundamentally alter the nature and operation of social media platforms and the internet itself.

Reacting to complaints from the political right that large social media platforms including Facebook and YouTube actively censor conservative views, Texas and Florida enacted laws prohibiting the platforms from removing, deleting, or deplatforming speech or speakers based on viewpoint. The laws differ in some respects, but both create a legal cause of action against social media platforms that engage in any of the laws defined methods of censorship. They also require that platforms provide an explanation for any posts censored and publicly disclose their guidelines for removing speech or speakers from the platforms.

President, CEO, and general counsel of the Alliance Defending Freedom, Kristen Waggoner, joins us for a discussion on freedom of speech and religious liberty. ADF has played various roles in 74 U.S. Supreme Court victories and since 2011, has won cases before the Court 15 times.

According to its website, ADF is the world's largest legal organization committed to protecting religious freedom, free speech, marriage and family, parental rights, and the sanctity of life.

ADF has litigated many high-profile and controversial free speech cases, including the recent Supreme Court case involving a web designer who didn't want to be compelled to design websites for same-sex weddings. Before that, ADF litigated the 2018 Masterpiece Cakeshop case, which involved a cake designer who similarly didn't want to provide his services for same-sex weddings on religious grounds.

After the initial conversation was recorded, The Washington Post and The New Yorker released articles critical of ADF. Nico and Kristen recorded an additional, brief conversation to address these articles. That is included at the end of the podcast.

Related

After spending more than two decades in the Department of Politics at Princeton University, I'm pleased to announce that I will joining the faculty ofYale Law Schoolin the fall of 2024. At YLS, I also expect to be the faculty director of a new center focused on academic freedom and free speech issues.

I've been extremely fortunate to have been at Princeton, and I leave with nothing but good feelings and best wishes for my students and colleagues there. It is time to take on some new challenges, however, and I very much look forward to joining a new set of students and colleagues at Yale.

Yale Law School has an unparalleled role in shaping the legal academia and influencing policymakers, and I'm looking forward to finding my own niche there.

I'm not unmindful of the significance of this move at the present moment. YLS has, of course, had its own recent controversies regarding free speech and ideological diversity. Yale hasnotoriouslybeenlackingin right-of-center public law faculty for decades. Co-blogger Josh Blackman says YLS is afailed academic institution. I hope not! But the lack of political diversity on elite law school faculties is unhealthy, and I'm glad to be able to do my small part to mix things up.

Related

Review granted

Pendingpetitions

State action

Reviewdenied

Free speech related

Previous FAN

FAN 398:Where were Little Browns sensitivity readers? A few thoughts on the Wenner Rolling Stone controversy

This article is part ofFirst Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the articles author(s) and may not reflect the opinions of FIRE or of Mr. Collins.

Read the original post:
What's wrong with First Amendment casebooks? Where to begin ... - Foundation for Individual Rights in Education

As the states flagship, land-grant institution, the University of Kentucky exists to advance the Commonwealth. We do that by preparing the next generation of leaders placing students at the heart of everything we do and transforming the lives of Kentuckians through education, research andcreative work, service and health care. We pride ourselves on being a catalyst for breakthroughs and a force for healing, a place where ingenuity unfolds. It's all made possible by our people visionaries, disruptors and pioneers who make up 200 academic programs,a$476.5 million research and development enterpriseand a world-class medical center, all on one campus.

In 2022, UK was ranked by Forbes as one of the Best Employers for New Grads and named a Diversity Champion by INSIGHT into Diversity, a testament to our commitment to advance Kentucky and create a community of belonging for everyone. While our mission looks different in many ways than it did in 1865, the vision of service to our Commonwealth and the world remains the same. We are the University for Kentucky.

Read the rest here:
State of the First Amendment Address on Nov. 2 to focus on free ... - UKNow

The article, which is directly relevant to theNetchoicecases that the Court will consider this Term, is here; here's the Introduction:

Major U.S. platforms can powerfully influence public discourse by removing, promoting, and otherwise moderating users' online speech. Better information about their content moderation would help policymakers enact better laws. It would also serve Internet users' interests as readers, speakers, and participants in democracy.

A recent wave of "platform transparency laws" around the world now require such disclosures. The EU, for example, adopted transparency laws following extensive consultation with experts, and continues to take public comments on implementation issues. The U.S. approach has instead followed an increasingly familiar and depressing pattern: State lawmakers enact hastily-drafted laws, and platforms try to get those laws struck down as First Amendment violations. The Supreme Court recently agreed to hear cases about two such state laws, from Texas and Florida. Its review will encompass only portions of those states' sweeping transparency mandates: the provisions concerning notice and appeal for individual users affected by content moderation. Its ruling on those questions, however, may effectively determine the constitutionality of the states' other transparency mandates.

Judicial analysis of Texas's and Florida's transparency mandates has, to date, been quite superficial. We should hope for better from the Supreme Court. Precedent does not provide clear answers to important constitutional questions about platform transparency, though. Platforms' and states' legal arguments both rely on flawed analogies: Platforms compare themselves to newspapers, and states compare them to food vendors or hospitals. Both analogies give short shrift to the rights and interests of Internet users.

Advocates and courts in platform transparency cases can find plenty of loose analogies, and few or no precise ones. They can also find precedent to support almost any standard of First Amendment review, which leaves them free to be as outcome-oriented as they wish in advancing their preferred policies. With the Supreme Court having granted review in the NetChoice cases, now is the time to think much harder about what those preferred policies should actually be, and what doctrinal framework will best achieve it.

This Article discusses First Amendment concerns with platform transparency laws generally, and the Texas and Florida laws in particular. I will argue that the laws have major problems that were scarcely addressed in the rulings so farand that there are arguments and framings in favor of transparency that have also been insufficiently considered. I will also identify concrete ways in which the laws might be improved.

[* * *]

The Texas and Florida transparency laws are part of broader "must-carry" legislation enacted by Texas and Florida in 2021. Platforms challenged the laws in two cases, NetChoice v.Moody and NetChoice v.Paxton (collectively called "NetChoice" here). To date, the parties' and courts' attention has mostly focused on the states' must-carry rules, which compel platforms to change their editorial policies. Florida's law, for example, would require platforms to carry all speecheven hate speech or disinformationas long as it was posted by a political candidate. Texas's law would require platforms' policies on hate speech, disinformation, and other topics to be neutral as to speakers' viewpoint.

The major problem with the Texas and Florida transparency laws is that they will powerfully incentivize platforms to change their editorial rules for online speech. Both platforms and their users will suffer First Amendment harms as a result. Transparency lawsincluding the provisions under review by the Supreme Courtcan be expected to change platforms' speech rules in two very predictable ways. The first is by imposing new documentation burdens, which can affect every step of platforms' industrial-scale editorial operations. Platforms can reduce those burdens by changing their policies. They may take down fewer offensive or harmful posts, or apply blunter rules like simply prohibiting all discussions of racism or prohibiting all nudity regardless of artistic or medical context. They may also simply shut down speech-supporting features like comments on videos.

Even the biggest platforms may have sound economic reasons to forfeit editorial control in these ways. But this state-imposed burden will pose an even bigger problem for the mid-sized platforms caught up in Texas's and Florida's laws, and held to standards designed for incumbent giants like YouTube. Platforms with fewer resources will have more reason to change their editorial policies or even cease competing with incumbents in offering particular features. Texas and Florida lawmakers say that their laws are intended to curb the biggest platforms' concentrated power over online speech. But their laws' poorly-calibrated burdens are likelier to do the oppositereducing the diversity of forums for online speech, and increasing state influence on the platforms that remain.

The second way that transparency laws will cause platforms to change their speech policies is through state coercion. The NetChoice transparency laws will give the Texas and Florida Attorneys General (AGs) powerful new tools to influence platforms' speech policies. This problem is easy to foresee because it is happening already. Even with their current, more limited authority to investigate "deceptive" representations to consumers, AGs have pressured platforms to align their speech rules with enforcers' political preferences.

Texas AG Ken Paxton brought such an investigation against Twitter in express retaliation for its ouster of former President Trump, for example. He demanded that the platform turn over what one expert called "every document regarding every editorial decision that Twitter has ever prepared"an expense the company could presumably have avoided by quietly adopting the AG's preferred speech rules. Indiana's AG similarly investigated whether Twitter's posted rules violated consumer protection laws when the company removed his jocular tweet questioning the outcome of the 2020 Presidential election. That inquiry has since led him to subpoena civil rights leaders, including the head of the NAACP, about their conversations with platforms.

An Office of the AG (OAG) investigation in Washington, D.C. provides an example with a different political valence. Because it led to litigation over the OAG's subpoena to Facebook, it also provides an unusual amount of public detail about the real-world dynamic between platforms and enforcers. That case arose from the OAG's concerns about anti-Covid-vaccine postsspeech that may endanger public health, but is also often lawful. The OAG told reporters that its goal was to "make sure Facebook is truly taking all steps possible to minimize vaccine misinformation on its site," presumably by taking down users' posts. The OAG's subpoena demanded that Facebook disclose the identities of users who had posted misinformation. Learning the names of individual speakers was necessary, the OAG said, in order to assess whether the platform had adequately penalized people who repeatedly violated the platform's rules.

Laws like the ones in Texas and Florida will require a massive number of new disclosures, and empower AGs to investigate the truth of each compelled statement. AGs enforcing the laws could easily believe they are acting within their statutory authority, while effectively pressuring platforms to change their speech policies on culture war flashpoint issues ranging from LGBTQ+ rights to hate speech. Rational platforms will likely choose to appease those AGs or other enforcers at least some of the time. Affected Internet users may never know about concessions negotiated by platforms and state enforcers, or be aware of government actors' roles in shaping the information they can see and share online.

Transparency laws don't have to work this way. It is possible to expand platform transparency without simultaneously expanding states' influence over online speechor, at least without doing so to the dramatic degree that the Texas and Florida have. In this Article, I list many alternative approaches, as well as ways in which the Texas and Florida laws themselves could be amended to reduce their most obvious threats to online speech. None of these improvements will happen, though, if courts do not scrutinize transparency laws more closely. The basic questions of First Amendment analysiswhat state interests the laws advance, at what cost to speech, and with what possibilities for better tailoring by legislative draftersdeserve careful attention in the transparency context.

Such attention was sorely lacking in the lower court NetChoice litigation. Both the Fifth and Eleventh Circuits applied what the latter called "relatively permissive" review under Zaudererv.Office of Disciplinary Counsel, a 1985 Supreme Court case about deceptive attorney advertising. Their rulings did not meaningfully examine the ways in which mandatory disclosures about speech and editorial policies might vary from disclosures about the tobacco, sugary beverages, or hospital prices. The Fifth Circuit upheld all of Texas's transparency mandates. The Eleventh Circuit upheld most of Florida's, though it rejected as unconstitutional the user notification provisions at issue before the Supreme Court.

The courts' cursory analysis is understandable given the scant briefing to datethe platforms' brief to the Eleventh Circuit, for example, spent just one of its 67 pages on transparency. But the transparency issues in NetChoice are complex and weighty. Like other questions in NetChoice, they are also truly novel. As one Fifth Circuit judge put it, "[t]hese activities native to the digital age have no clear ancestral home within our First Amendment precedent."

The job of the parties' lawyers, of course, is to make the questions look easy, like something resolved long ago in another context. Platforms attempt to do this by arguing that they are basically like newspapers. They compare transparency mandates to laws requiring the Wall Street Journal to publicly explain every detail of its editorial policies and publication decisions. Such mandates, they argue, are obviously counter to the First Amendment, and prohibited by a case about litigation discovery against newspapers, Herbert v. Lando. Texas and Florida, on the other hand, insist that their rules are basic consumer protection measures, to be reviewed under Zauderer and lower court cases applying its standard of review. Their arguments frame compelled speech about editorial policies as constitutionally indistinguishable from labels on food or warnings in advertisements for commercial services. Both the "platforms are newspapers" and "platforms are ordinary sellers of goods and services" arguments usefully illuminate some aspects of platform transparency laws. But both are also incomplete, whether as analogies for the function of today's platforms or as pointers to relevant case law.

Following this Introduction, Part II of this Article will describe the specific transparency mandates at issue in the NetChoice cases, and briefly outline major relevant precedent. Part III will then describe the concrete ways in which poorly-tailored transparency mandates may cause platforms to change the editorial policies that they apply to Internet users' speech. This burden on speech is fundamentally different from the burdens created by transparency mandates for commercial offerings in areas like food safety. Case law addressing analogous speech-related problems exists, but is scant.

Part IV will explore the potential state interests and First Amendment framings for platform transparency laws, and delve more deeply into the case law. Subpart IV.A begins with the consumer protection interests advanced by the states in NetChoice, and critiques Zauderer as a basis for upholding the Texas and Florida laws. Subpart IV.B then considers precedent involving more complex disclosures from regulated industries like banking or pharmaceutical production. It flags what I believe is a major lurking issue in NetChoice: A ruling on platform transparency issues will likely be relevant for future cases in which businesses seek to "weaponize" the First Amendment as a legal tool against the regulatory state. That issue is far bigger than platform regulation. Its gravitational pull will likely shape the choices of advocates and Justices in NetChoice.

Finally, in Subpart IV.C, I discuss a fundamentally different basis for transparency mandates, as a tool to advance democratic self-governance goals. This foundation is underexplored in case law and academic literature about platform transparency. But it is, I will argue, profoundly important as a basis for future, better transparency laws. It also provides a potential constitutional framing that avoids many of the pitfalls of Zauderer.

Like many First Amendment cases, the outcome of this one will likely turn on the standard of review. Unlike in many First Amendment cases, the right standard of review is highly indeterminate. Advocates and judges can effectively pick the outcome they want, and find an argument to support it. Platforms' arguments in NetChoice would lead to strict scrutiny, effectively killing most possible transparency laws. The states' arguments have led to review so lax as to disregard major constitutional issues.

A better standard of review would lie in between. In principle, it might be found in intermediate scrutiny. Or the exacting scrutiny standard from election law cases might be a fit, in recognition of states' democratic interests in platform transparency laws. That would be a stretch from existing precedent. But so is applying Zauderer, or much of anything else. Perhaps even Zauderer itself could be interpreted as the source of a sufficiently robust standardthough given the analysis in the Fifth and Eleventh Circuits so far, I am skeptical.

Whatever analysis the Supreme Court adopts, it should insist on a clear connection between states' goals and the laws' consequences, and require meaningful tailoring. The First Amendment problems with badly-drafted platform transparency mandates are far too real for hasty analysis and unduly permissive standards of review.

View post:
Journal of Free Speech Law: "Platform Transparency and the First ... - Reason

CHRIS DUNKER Lincoln Journal Star

A board member on the Lower Elkhorn Natural Resources District is suing her colleagues in federal court for leveling sanctions against her after she criticized the behavior of another director earlier this year.

Melissa Temple, who won election to represent eastern Norfolk on the 15-member board in 2022, was removed from her subcommittee assignments and barred from being reimbursed for travel expenses by a majority of the board in August.

On Tuesday, Temple sued the board in U.S. District Court in Lincoln for violating her First Amendment right to free speech, claiming that the resolution adopted by the board prevents her from doing her duties as a duly-elected board member.

I cant fully do my job or advocate for the public good or protect my constituents if my free speech is sanctioned, Temple said in a phone interview.

The lawsuit, the first filed by the Nebraska College of Laws First Amendment Clinic, also seeks a preliminary injunction to suspend the punishments against Temple until the case is resolved.

According to the complaint, Temple said she witnessed another member of the Board of Directors Scott Clausen interrupt and make condescending comments to a local business executive during the public comment portion of the boards meeting.

Clausens comments were allegedly made after an email from the boards chairman asked directors to listen respectfully when the public is able to address the board.

The lawsuit also accuses Clausen of making derogatory remarks about Temple in the presence of other directors and staff during a public board meeting, including saying she was not smart enough to be on a proposed committee.

Clausen also allegedly asked why the board was concerned about nitrates in drinking water a growing public health concern in Nebraska and other agricultural states if it was just affecting women and children.

Temple filed a formal complaint against Clausen with the board chairman in line with the NRDs bylaws, and later spoke to reporters who had obtained a copy of the document through a public records request.

An investigation into the complaint by the boards executive committee ended inconclusively, and a short time later, Clausen filed his own complaint against Temple claiming her allegations against him were false and part of an effort to defame him, the lawsuit states.

While Clausens complaint was being investigated, Temple told local media outlets she believed the process was biased and unfair and would result in a loss of accountability for the board.

In July, the executive committee ended its investigation with a finding that Temple had violated the code of decorum by failing to serve as a model of leadership and civility by sharing details of the investigation, including accusations of misogyny against other directors.

After the investigation, the board later scheduled a vote on four proposed sanctions public reprimand, removal from all subcommittees for a year, suspension of the right to make motions for a year, and barring reimbursement for NRD-related travel for a special meeting in August when Temple was going to be absent.

More than 60 people spoke during the special meeting in support of Temple, asking directors not to censure her. Following a closed session, the board approved a resolution with three of the four sanctions. The penalty that would have prevented Temple from making motions for a year was removed.

The punishments leveled at Temple prevent her from participating in much of the boards work, according to the lawsuit, which states a significant amount of Lower Elkhorn Natural Resources District business takes place at the subcommittee level.

Temples attorneys cite a 2022 case decided by the U.S. Supreme Court that found a member of a community college board had his First Amendment rights violated when a majority of the board adopted a resolution to censure him.

Justices found the sanctions imposed by the board violated the members First Amendment rights by preventing him from doing his job and denying him any privilege of office.

The complaint also says that stripping Temple of her ability to seek NRD-related travel expenses ran counter to state law, which says board members shall be reimbursed for any costs incurred through their duties.

Temple said that action has prevented her from obtaining reimbursement to the Nebraska Natural Resource Districts annual conference in September, and will prevent her from attending conferences and trainings on behalf of her constituents and the district.

The lawsuit accuses the Lower Norfolk Natural Resources District of retaliating against Temple for engaging in protected speech, both in trying to address her concerns internally as well as in speaking about them publicly.

Like all elected officials, Temple has a right to speak freely on issues of governmental policy and concern, and her decision to speak with the Norfolk Daily News is therefore protected activity under the First Amendment, the lawsuit states.

The lawsuit seeks a declaration that the NRDs actions violated Temples First Amendment rights, as well as her rights to due process and equal protection under the Fifth and Fourteenth Amendments.

It also seeks a declaration that the actions taken at the special board meeting in August are void, an injunction against the sanctions from being enforced, as well as damages and attorneys fees.

I would like my rights as an elected official to be restored, Temple said. I want to be a fully functional board member, I want the voice of my constituents to be represented fully.

Sydney Hayes, assistant director of the First Amendment Clinic at the University of Nebraska-Lincoln, said the case was a good candidate to become the student-run law firms first effort.

The right to criticize public officials is so woven into the fabric of democracy and the First Amendment, and the fact that Director Temple was sanctioned for criticizing one of her colleagues that really is the only reason she was sanctioned is why we wanted to pursue this case, Hayes said.

Daniel Gutman, the director of the clinic, said that although the clinic filed the lawsuit and represents Temple, students wont join the law clinic until January. At that time, the third-year students will pick up and argue the case.

This is a core First Amendment issue and were a First Amendment Clinic, Gutman said. When this case came to us, it was important that we advocate for it.

Get local news delivered to your inbox!

Original post:
UNL's First Amendment Clinic files lawsuit on behalf of sanctioned ... - Grand Island Independent