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STORY: After a year-long war of words between Florida Governor Ron DeSantis and Walt Disney, the fight is now going to court.

The entertainment giant earlier this week sued the Republican leader to prevent the state from ending the company's virtual autonomy in central Florida where it has its theme parks.

Disney has accused the governor of retaliation after the business spoke out against DeSantis's efforts to strike discussions of sex and gender from schools.

The lawsuit has now led some to believe that DeSantis may regret his verbal attacks on the media company.

Kendrick: Disney does have a strong case

Leslie Kendrick is the director of the Center for the First Amendment at University of Virginia School of Law

Disney has essentially a special relationship with the government of Florida, has a deal that not everyone has, although there are many other entities that have these that have enjoyed special tax districts that are similar to what Disney has enjoyed. [FLASH] But the government can't condition you keeping that benefit on your political views. "

The 73-page lawsuit comes a year after the company criticized a Florida law banning classroom discussion of sexuality and gender identity with younger children, prompting DeSantis to repeatedly attack "woke Disney."

Disney said DeSantis' actions amounted to a "targeted campaign of government retaliation."

The reason we have the five freedoms of the First Amendment is primarily to keep a check on people in power."

Ken Paulson is a First Amendment expert at Middle Tennessee State University:

"If our government abuses its power, we have the free speech right to call them out. We have the free press right to investigate and report on them. We have the right to assemble and raise our voices in protest. And we have the right to petition government for redress of grievances. Four of the five freedoms in the First Amendment are designed to keep government honest and to keep those in charge from using their power to violate our collective rights under the Bill of Rights.

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DeSantis: "I don't think the suit has merit. I think it's political."

DeSantis has called Disney's lawsuit a politically motivated attack and accused the company of lacking accountability.

The governor's spokesman said on Wednesday that his office was unaware of any legal right that allows a company to operate its own government or maintain special privileges, a reference to the decades-old district that is home to Disney World.

For Disney to prevail, a jury would have to find a connection between the company's comments and the changes to the development district, renamed under DeSantis' control as the Central Florida Tourism Oversight District.

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Desantis feud with Disney to test First Amendment - Yahoo News

The prominent feminist legal scholar Catharine MacKinnon in 2020 published a law review article making an argument that has become depressingly commonthat the First Amendment has been transformed over the last century from a shield of the powerless to a sword of the powerful, including authoritarians, racists and misogynists, Nazis and Klansmen. MacKinnon is by no means alone in this opinion.

The idea that the First Amendment has been weaponized by the powerful has gained increasing traction in the digital age, when social media can supercharge political tribalism and amplify extreme voices. Free Speech Is Killing Us read the headline of a 2019 New York Times op-ed by New Yorker reporter Andrew Marantz, and similar arguments have been published frequently in elite mainstream outlets, including The New York Times Magazine and the Los Angeles Times.

But look closer and the facts on the ground paint a very different picture than the breathless narratives of weaponized free speech. The truth is that core First Amendment principles of viewpoint and content neutralitywhich mean the government may never restrict speech simply because officials disagree with or disapprove of a particular opinion, idea, or topichave been essential for unconvinced progressives like MacKinnon to speak, read, perform, teach, and protest in states where majorities are hostile to progressive ideas.

In Llano County, Texas, a group of concerned citizens gradually morphed into an official censorship board, removing inappropriate books without input from librarians. In true authoritarian fashion, they even barred their fellow citizens from attending their meetings. The 17 books that these citizen-censors got banned as inappropriate included works on LGBT+ issues as well as historical books about the origins of the Ku Klux Klan. But on March 30, a federal judge in Texas issued a preliminary injunction ordering the books to be returned to the librarys shelves. The judge reminded the censors that the First Amendment protect[s] the right to receive information, and it prohibits the removal of books from libraries based on either viewpoint or content discrimination.

That same month in Tennessee, a Trump-appointed judge delayed the implementation of a law criminalizing public drag performances on First Amendment grounds. The judge sided with the plaintiffa Memphis-based LGBTQ theater grouppreliminarily finding that the laws prohibition of expressive conduct was impermissibly content based as well as overly broad and vague. The judge concluded that the record here suggests that when the legislature passed this statue, it missed the mark.

In Florida, the First Amendment has provided the most important protective armor for those on the wrong side of Gov. Ron DeSantis War on Woke.

Several elements of DeSantis controversial Stop W.O.K.E. Act have been preliminarily halted by courts due to First Amendment concerns. In November, a federal court ordered Floridas public universities not to enforce the law, the tentacles of which reach into university classrooms just as they reach into K-12 classrooms and private employers' trainings.

The law officially bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoint, wrote U.S. District Judge Mark Walker. Defendants argue that, under this Act, professors enjoy academic freedom so long as they express only those viewpoints of which the State approves. This is positively dystopian.

Judge Walker also had to safeguard the First Amendment right of Floridians to peacefully protest.

In the wake of Black Lives Matter protests following the murder of George Floyd, the Florida Legislature passed a 2021 anti-riot law that was written in such vague and overbroad language, the judge wrote in his decision, that authorities could have used it to prosecute peaceful protesters or people close to a demonstration that turned violent. If this court does not enjoin the statutes enforcement, wrote Walker, the lawless actions of a few rogue individuals could effectively criminalize the protected speech of hundreds, if not thousands, of law-abiding Floridians. The law remains blocked pending an authoritative state supreme court interpretation.

These recent decisions convincingly demonstrate that the First Amendment serves an essential role in protecting minorities against majoritarian intolerance and revanchism.

In Florida, the First Amendment has provided the most important protective armor for those on the wrong side of Gov. Ron DeSantis War on Woke.

While its true that the First Amendment permits speech that many progressives find abhorrent and discriminatory, thats a feature not a bug of robust and principled free speech doctrine. And its not based on white supremacist or right-wing ideology. Rather, this doctrine is informed by a potent mix of universalist ideals and the lived experience of a nation, including groups and individuals who have felt the oppressive consequences when these ideals have been violated or selectively applied.

Thurgood Marshalls illustrious career highlights the mutually reinforcing relationship between free speech principles and the fight for racial justice. Marshall was the legal mastermind of the NAACPs highly successful campaign to transform the First Amendment into a legal shield for the civil rights movements ability to protest peacefully. While serving as the Supreme Courts first black justice, Marshall penned the majority opinion in Mosley v. Chicago, which declared, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. Its impossible to believe that Marshalls opinion reflected a wish to punch down on the people he had devoted his career to defending. To the contrary, the immediate beneficiary of that rulingalong with so many landmark free speech rulingswas an African American who was protesting racially discriminatory policies.

Fortunately, there are still many prominent voices committed to both freedom and equality who recognize that these values are indispensable pillars of justice. When Stanford Law School Dean Jenny S. Martinez wrote a letter denouncing students disruption of a talk by a conservative federal judge last month, she explicitly highlighted the importance of content and viewpoint neutrality for the weak and marginalized.

I can think of no circumstance in which giving those in authority the right to decide what is and is not acceptable content for speech has ended well, Martinez reminded her law students. Indeed, the power to suppress speech is often very quickly directed towards suppressing the views of marginalized groups.

Martinez, like many progressives and liberals before her, understands that free speech has been and continues to be a powerful shield protecting the marginalized and the oppressed. Across America today, the real danger is not the weaponization of free speechas some like MacKinnon contendbut its suppression by powerful lawmakers and intolerant majorities. Fortunately for Americans of all stripes, judges continue to ensure that free speech remains an engine of both equality and freedom.

Jacob Mchangama is the CEO of the Future of Free Speech Project, Research Professor at Vanderbilt University, and author of Free Speech: A History From Socrates to Social Media.

Nadine Strossen was national president of the American Civil Liberties Union (ACLU) from 1991-2008, and is professor emerita at New York Law School. She is the author of HATE: Why We Should Resist It with Free Speech, Not Censorship.

Both are Senior Fellows at the Foundation for Individual Rights and Expression (FIRE).

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The First Amendment Is for the Powerless and Marginalized - The Daily Beast

Bristow challenged the law as violating the First Amendment right of access to court records; the court concluded that he had standing to do so, but concluded that he was unlikely to succeed on the merits:

To determine whether the First Amendment guarantees a qualified right of access to a particular category of court records, courts apply the "experience and logic" test. In applying the "experience and logic" test, courts assess (i) whether the category of documents at issue has "historically been open to the press and the general public" and (ii) whether public access to those records "plays a significant positive role in the functioning of the particular process in question." A qualified right of access attaches where both prongs are met. "Under a qualified right, sealing is appropriate if it is 'essential to preserve higher values' and is 'narrowly tailored' to serve such ends."

Bristow asserts that the "experience and logic" test is satisfied because "[f]iled divorce complaints in the State historically have been accessible to the general public as a matter of routine prior to October 1, 2022," when the statute went into effect. The State does not disagree.

Although as a general matter divorce complaints may have been accessible to the public prior to Mich. Comp. L. 552.6a's enactment, a wider historical perspective demonstrates that divorce proceedings have traditionally been shielded in some measure from public view. Defendants refer to cases evidencing historical restrictions on access to divorce proceedings to protect the privacy of the parties involved. See Nixon v. Warner Communications, Inc. (1978) ("[T]he common-law right [to inspect and copy judicial records] has bowed before the power of a court to insure that its records are not 'used to gratify private spite or promote public scandal' through the publication of 'the painful and sometimes disgusting details of a divorce case.'") (quoting In re Caswell (R.I. 1893) (holding that a court clerk was not required to furnish a copy of a divorce case to a journalist)); Katz v. Katz (Pa. Super. Ct. 1986) (holding that "divorce hearings are the type of proceedings which courts may close to protect the rights of the parties"). These authorities demonstrate the historical acceptance of restrictions on access to divorce complaints to protect significant interests, such as the privacy of the individuals involved.

The State asserts that "[b]ased on the established case law, public access in divorce cases does not play a significant role in the functioning of the family court." The Court agrees that public access to a copy of a divorce complaint provides little benefit to the proper administration of divorce proceedings.

As an initial matter, the public has little to glean from a divorce complaint itself. Michigan's no-fault divorce regime, by definition, identifies no wrongdoing by the individuals involved. Nor does a divorce complaint reveal information about the functioning of courts or government agencies or the alleged violations of private or public rights. Rather, divorce complaints merely mark the initiation of a legal process between private individuals. Further, because Michigan law permits the unsealing of a divorce complaint after service on the defendant, the public is able to access the complaint during the pendency of the proceedings, and therefore, retains the ability to monitor the proceedings for fairness. See Detroit Free Press ("[P]ublic access acts as a check by assuring us that proceedings are conducted fairly and properly.").

Importantly, any possible benefit the public might receive were it allowed access to a divorce complaint during the short time between its filing and service on the defendant is heavily outweighed by the benefit of protecting divorce plaintiffs from the threat of further abuse. As the State points out, sealing a divorce complaint between the time of its filing and service provides plaintiffs time to find safety while they are subject to a heightened risk of abuse. The statute thus plays a positive role in the functioning of the divorce proceeding by protecting those who choose to utilize it.

Bristow fails to identify how public access to divorce complaints before they are served plays a significantly positive role in such proceedings. Instead, Bristow largely frames his argument in terms of how the restriction impacts him or his clients. Specifically, Bristow asserts that he is unable to obtain copies of divorce complaints from the Macomb County Clerk's office unless he has entered his appearance on behalf of a client. However, as Bristow acknowledges, he can still obtain a copy of the complaint by filing his appearance in the case. And his clients can do the same by visiting the clerk's office in person. On balance, Bristow's interests, while impacted, are not substantially impeded.

Furthermore, those interests have little, if any, to do with the concern of the "logic" prong, i.e., the impact of a restriction to public access on the functioning of a government process.

The cases upon which Bristow relies do not counsel otherwise. In Shaefer and Planet III, news service organizations sought access to all newly filed nonconfidential civil complaints that they deemed newsworthy. In granting access to the complaints, both courts emphasized the beneficial impact of the public's ability to understand the facts of a civil case so that it could monitor and serve as a check on the proceedings.

By contrast, here, under Michigan's no-fault divorce regime, divorce complaints do not contain detailed factual allegations about the subject matter of the complaint. Coupled with the intensely private nature of the proceedings, such a complaint does not provide the public with the sort of "crucial" information for which access is an important check on the proceedings.

The Court concludes that Mich. Comp. L. 552.6a(1)'s temporary restriction on the public's access to divorce complaints is both (i) supported by historical example and (ii) plays a significant positive role in the functioning of the divorce process because of the protection it provides to divorce plaintiffs at risk of abuse. Accordingly, the Court concludes that Bristow is unlikely to succeed in his contention that there is a First Amendment qualified right of access to divorce complaints before the filing of a proof of service.

Even assuming that Bristow could establish that a qualified First Amendment right attaches under the "experience and logic" test, the Court finds it likely that Mich. Comp. L. 552.6a(1) is constitutionally appropriate because it is narrowly tailored to "preserve the higher value[ ]" of protecting divorce plaintiffs from the heightened risk of violence or abuse. The State cites several tragic incidents of domestic violence highlighting the danger posed to victims of abuse shortly after leaving their abusers. In addition to these individual tragedies, the State points to studies finding that the most dangerous time period for domestic violence victims is shortly after they file for divorce.

Bristow further maintains that the statute is overbroad because it does not provide for a case-by-case determination of whether the complaint should be made nonpublic. But a holding that the State must compel abused plaintiffs seeking to end their marriages to publicly accuse their abusive spouses of misconduct might well tragically ignite an already flammable domestic relationship. Such a requirement would likely deter plaintiffs from making such accusations out of fear of retribution from the defendant. Put simply, the case-by-case approach suggested by Bristow is no answer for the type of harm that the State intends to prevent.

Bristow points to In re Marriage of Burkle, in which a California court rejected an argument that "the same utilitarian values" that support the presumptive openness of criminal and civil trials "somehow lose their potency in the context of divorce proceedings." In re Marriage of Burkle (Cal. Ct. App. 2006) (punctuation modified).

Burkle is very different from the instant case. The statute at issue in that case broadly permitted the sealing of any divorce pleading listing the parties' financial assets and did not permit the unsealing of such records absent good cause. Unlike the restriction in Burkle, Mich. Comp. L. 552.6a(1) only temporarily renders divorce complaints non-public until they are served on the defendant. Moreover, while the statute in Burkle applied to any divorce pleading that divulged the parties' financial assets, Mich. Comp. L. 552.6a(1) narrowly applies only to divorce complaints; it does not mandate sealing any other filing in the divorce proceeding.

The Court agrees with the State that Mich. Comp. L. 552.6a(1) is narrowly tailored to preserve the higher value of protecting divorce plaintiffs subject to domestic violence or abuse. As the State points out, the statute applies only to divorce complaints. Under the statute, both defendants and their attorneys of record may obtain a copy of the complaint before the filing of a proof of service. Moreover, the restriction on the public applies only until the proof of service is filed. Mich. Comp. L. 552.6a(1). Thus, the statute does not prejudice defendants or their attorneys in divorce proceedings. At bottom, the statute applies narrowly to allow divorce plaintiffs a temporary period of time to make arrangements to protect themselves from potential abuse.

Congratulations to Frank Krycia, who represents defendant Anthony Forlini (the Macomb County Clerk), and Toni L. Harris, Charles A. Cavanagh & Kathleen A. Halloran, who represent the Michigan Attorney General.

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No First Amendment Problem with Temporarily Sealing Divorce Complaints Until Proof of Service Is Filed - Reason

The parents felt that their concerns over race relations in the school district were going unheard and turned to social media to post hundreds of repetitive comments on the school board members Facebook and Twitter pages. The two school board members eventually blocked the parents for spamming their accounts.

In another case, Lindke v. Freed, the city manager of Port Huron, Mich., blocked a resident from his Facebook page who was critical of the citys Covid-19 restrictions.

The U.S. Court of Appeals for the Ninth Circuit ruled that the parents rights were violated in the California case, while the Sixth Circuit ruled in favor of the Michigan official.

The 2018 ruling found that Trump and one of his aides cannot point to the presidents own First Amendment interests as justification for blocking the individuals an argument his legal team had made. But in 2021, the Supreme Court threw away that ruling.

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Supreme Court to hear First Amendment cases regarding public ... - POLITICO

California law provides,

(a) The driver of a motor vehicle when reasonably necessary to insure safe operation shall give audible warning with his horn.

(b) The horn shall not otherwise be used, except as a theft alarm system.

The Ninth Circuit upheld this law earlier this month, against a challenge brought by a driver who wanted to honk her horn as an expression of support for political process. The court, in Porter v. Martinez (opinion by Judge Michelle Friedland, joined by District Judge Edward Korman, with a dissent by Judge Marsha Berzon), generally reasoned that the law was a content-neutral restriction on expression, and is narrowly tailored to the substantial government interest in traffic safety:

There is nothing novel about Section 27001's traffic-safety justificationin fact, it seems the California legislature had traffic safety in mind when it first enacted a version of Section 27001 in 1913. That early version of the law prohibited honking "for any purpose except as a warning of danger." . The traffic-safety justification for restricting the use of the horn can also be seen in the vehicle codes of at least forty other states, indicating a near-nationwide consensus on the need for such laws. This long history and consensus, coupled with the common-sense inference that the horn's usefulness as a warning tool will decrease the more drivers use it for any other function, support the State's asserted interest in traffic safety.

There's now a petition for en banc rehearing, filed by Porter's lawyer, David Loy of the First Amendment Coalition (a group that I've often represented in Amicus Brief Clinic cases); here's the Introduction:

As drivers commonly do without inci1dent, Porter beeped her horn to support a protest. After being cited for doing so, she brought this First Amendment action. Over Judge Berzon's dissent, the panel majority upheld a ban on expression in a public forum without a single fact showing the expression causes any risk of harm. The majority relied on fact-free conjecture by an "expert" and disregarded facts showing political horn use causes no hazard.

The First Amendment requires the government to prove hard facts before restricting speech. Rule 702 requires a foundation that expert opinion is reliable. By endorsing censorship based on conjecture and admitting speculative opinions from "experience" with no showing of reliability, the majority decision conflicts with the Supreme Court, this Court, and multiple other circuits. It confuses the law, threatens freedom of speech, and opens the door to unreliable opinions whenever a purported "expert" asserts "experience," from product liability actions to personal injury cases to prosecution for numerous offenses. Rehearing en banc is warranted to harmonize this Court's precedent on these vital issues.

An interesting issue; we'll see soon whether the Ninth Circuit agrees to hear the case en banc.

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Horn-Honking and the First Amendment - Reason