Mediaboss Marketing

This past Independence Day, a U.S. federal judge in Missouri v. Biden found that the Biden Administration violated Americans' First Amendment rights in urging social media companies to censor opinions. It also found that the Administration had funded universities and non-governmental organizations to create a veritable hit list of censorship, which it used to tell social media companies which people and ideas to deboost and censor.

Citing the need to censor speech as the only way to protect the American public, the Biden Administration told the court that it is too dangerous to apply the First Amendment to social media posts, given the depredations of sorting through misinformation from foreign states, political actors, or cranks.

The court was not impressed, and issued a preliminary injunction telling the Biden Administration it could no longer coerce Facebook, Twitter/X, and the like to censor users, because doing so violated the First Amendment. Under the order, the Administration also could not engage third parties to craft its censorship agenda. The court excoriated the Biden Administration for establishing an "Orwellian Ministry of Truth" in its zeal for censorship.

On appeal, a district court reinforced the first part of the injunction against the Administrationthat it cannot coerce social media censorshipbut failed to prohibit the second. As things stand, the Administration can still engage non-governmental actors to target people and ideas for censorship in the name of identifying "misinformation" online. The case currently sits at the Supreme Court, but more important than any judicial orders and opinions is the information unearthed during discovery.

Evidence revealed that employees at a dozen Federal government agencies and the Biden White House directly pressured social media companies to censor viewpoints it found contrary to the official narrative it pushed to the American people. Depositions of high-ranking career staff and political employees and unearthed emails between the government and social media companies like Facebook and Twitter/X revealed the government's tactics to suppress speech. The Surgeon General's office, the FBI, the CDC, the State Department, the Department of Homeland Security, and the White House itself were all closely involved.

Emails from the White House to Facebook show government officials threatening to use regulatory power to harm social media companies that did not comply with censorship demands.

Government agencies funded universities and NGOs to support enterprises with Orwellian names like "Virality Project" and "Center for Countering Digital Hate" to create a target list for the Administration's censorship efforts. With government backing, these entitieslinked sometimes to prominent universities like Stanford and the University of Washingtonwork with corporate teams in social media companies' "trust and safety" divisions to censor offending speech.

The problem is that the government and these entities are bad at identifying misinformation, and they have a predilection for censoring people and ideas that are critical of government policy, whether those criticisms are true or false.

Take, for instance, the censorship of COVID science. According to court documents found during discovery, the Biden administration insisted on censoring and deboosting content that accurately pointed out the rapidly waning efficacy of the COVID-19 vaccine against infections, which they used to justify executive orders imposing vaccine mandates.

The Virality Project issued a report identifying particular people they deemed responsible for a substantial portion of "vaccine mis-and disinformation" online. The Project received tips from the public and government "stakeholders" to construct its hitlist for censorship, which it conveyed to social media companies. In essence, the Virality Project served as a proxy for the government to exert its influence over Big Tech and suppress speech.

The Biden White House pressured Facebook to censor vaccine discussions, such as groups of vaccine-injured patients, that did not violate Facebook's community standards. In response to harsh communications from Biden COVID advisor Andy Slavitt in 2021, Facebook limited the reach of these groups and censored them.

Ironically, even the White House itself was caught by its censorship demands. At the Biden administration's behest, Facebook implemented algorithms to suppress posts their computers deemed "anti-vax." In April 2021, when the CDC issued a "pause" on the distribution of the Johnson & Johnson COVID vaccine because it had identified an elevated level of strokes in women, the Facebook algorithms tagged the White House account as an anti-vax account. The Administration angrily ordered Facebook to stop censoring its speech.

While we await the Supreme Court to decide whether it will endorse the injunction against the Administration's strong-arming of social media to endorse its censorship demands and restore the First Amendment to the US, Congress should act to dismantle the Administration's plainly unconstitutional Ministry of Truth.

Since the appellate courts seem reluctant to restrict the Administration from funding outside organizations to set its censorship agenda, Congress should use its power to cut the funding to the various agencies for these purposes. After a new House speaker is elected and budget negotiations begin anew, budget allocations for censorship would be an excellent target for spending cuts that every American elected official should be ashamed not to back.

Censorship violates the American civic religion. The Biden Administration and every elected official should remember that they all swore an oath to abide by the Constitution, which protects free speech. And if they cannot remember, voters should repeatedly remind them of that fact until they do.

Dr. Jay Bhattacharya, MD, PhD, is a Professor of Health Policy at Stanford University School of Medicine, a founding fellow of Hillsdale College's Academy of Science and Freedom, and a plaintiff in the Missouri v. Biden case.

Joe Grogan, JD, is a Senior Fellow at the University of Southern California's Schaeffer Center. Previously, he served as Assistant to President Donald J. Trump, as Director of the Domestic Policy Council, and as Associate Director for Health Programs at the Office of Management and Budget.

The views expressed in this article are the writers' own.

See the article here:
The Biden Administration Is Waging War on the First Amendment - Newsweek

On Tuesday, D.C. District Judge Tanya Chutkan, following a hearing on Monday, issued in writing a partial gag order in Donald Trumps Jan. 6 prosecution.

She prohibited all parties or counsel in the case from making

any public statements, that target (1) the Special Counsel prosecuting this case or his staff; (2) defense counsel or their staff; (3) any of this courts staff or other supporting personnel; or (4) any reasonably foreseeable witness or the substance of their testimony.

In doing so, she sent three unmistakable messages to defendant Trump and the country: She is firmly committed to the orderly administration of justice; her commitment is fueled by fearlessness; and no one is above the law.

The order is elegant. She grounded the order in long-standing Supreme Court law that a trial court has a duty to protect [its] processes from prejudicial outside interferences and that [t]he First Amendment does not override that obligation. Then, she carefully focused on conduct by Trump that could reasonably be expected to increase the risk of violence to anyone in his trial processwitnesses, prosecutors, and court staff.

That alone raises the guardrail against appellate reversal on First Amendment grounds, even by this Supreme Court. In addition, she reinforced the legal permanency of the order by adding:

This Order shall not be construed to prohibit Defendant from making statements criticizing the government generally, including the current administration or the Department of Justice; statements asserting that Defendant is innocent of the charges against him, or that his prosecution is politically motivated; or statements criticizing the campaign platforms or policies of Defendants current political rivals, such as former Vice President Pence.

The judge notably avoided saying how shed respond to comments about herself, having reportedly suggested earlier in Mondays hearing that she wasnt too concerned about her own safety.

What matters to the country and the administration of justice is that Chutkan refused to simply take a one-small-step-at-a-time approach. With Trumps increasingly violent social postings about witnesses, the judge recognized that halfway measures risk a danger to our justice systemand real world threats of violence often follow Trumps pronouncements in short order.

The threats are not hypothetical. In August, Abigail Shry, a Trump follower, was arrested for a voicemail death threat to the judge.

Last month, Trump brazenly declared that in times gone by, the punishment would have been DEATH for now-retired Chairman of the Joints Chief of Staff Gen. Mark Milley. Why? Because Milley dared to have a relatively standard back channel de-confliction conversation with the Chinese military at a time of world crisis. And Milley happens to be a key witness against Trump.

For Chutkan, the risk of simply giving Trump an escalated general warning was twofold. First, it would give Trump another one or two free strikes until she issued a formal written order. Second, the judiciary would lose authority if it looked ineffectual to the public.

Of course, now comes the hard part. As weve written before, Trump, by his nature and his political strategy, will feel compelled to test the limits of the order that the judge ultimately issues. In fact, hes already testing those limits. On Tuesday in Iowa, Trump rallied supporters against Chutkan, saying the judge doesnt like me too much. He added, I am willing to go to jail if thats what it takes.

Trump has already filed his notice of appeal. It will not delay the trial.

A reactionary Supreme Court majority lurks in the background. They might well relish issuing a high-minded opinion waxing poetic on First Amendment principles that they will apply (or misapply) in favor of the leading Republican candidate for president. At the same time, in recent cases, the justices have seemed to be fed up with Trumps petitions for special treatment.

In addition to clearly underscoring the areas where Trump may properly speak, Chutkan did several important things to avoid reversal.

First, her order did not include words proposed by special counsel Jack Smith that would forbid inflammatory or disparaging speech about witnesses or court personnel. An order worded too vaguely could be viewed as chilling speech that is protected as well as that which is not. As recently as June, both liberal and conservative justices warned against such a chilling effect.

Second, the order included crucial context for its central prohibition on targeting. Chutkan cited undisputed testimony showing that when Defendant has publicly attacked individuals those individuals are consequently threatened and harassed. She cited in particular Trumps recent public statements that particular individuals are liars, or thugs, or deserve death.

On that basis, the court concluded that such statements pose a significant and immediate risk that (1) witnesses will be intimidated by the prospect of being themselves targeted for harassment or threats; and (2) attorneys, public servants, and other court staff will themselves become targets for threats and harassment.

Finally, Chutkan made an undeniable point about why even social posts that are quickly deleted would violate the order: She noted that the significant and immediate risk she cited is largely irreversible in the age of the Internet once an individual is publicly targeted.

These findings matter because higher courts do not lightly disturb a district courts determination of undisputed facts. She found that Defendants statements pose sufficiently grave threats to the integrity of these proceedings that cannot be addressed by alternative means and the order has been tailored to meet the force of those threats. The quoted language is aimed at the Supreme Courts requirement that restrictions on speech to protect judicial proceedings be contoured no more broadly than required to meet the threat.

Perhaps most importantly, the court moored the order in the safest harbor availableforbidding targeting anyone associated with the case from issuing what the Supreme Court has called true threats of violence. True threats are defined as words that subject individuals to fear of violence and to the many kinds of disruption that fear engenders.

As recently as June, the Supreme Court ruled that such words are not protected by the First Amendment.

Even with a carefully worded order, it is predictable what Trump will do and why. His attacks on prosecutors and courts become fodder for his political fundraising.

Trumps attacks also nourish his single-minded strategy: He appears not to worry about jeopardizing his defenses in criminal cases by ranting and by defying judges. Instead, he aims everything at energizing his electoral base to donate and turn out at the polls. He views this as his path to regain the presidency, arrange for his attorney general to end his prosecutions, and possibly to pardon himself.

Given Trumps pattern of aggressive public counterattacks to any judicial restrictionsor even application of standard judicial ruleshe will surely walk right up to the line or over it to demonstrate his defiance.

The more extreme and provocative his imagery, the more obvious it will be that Trump is violating the gag order.

On the other side of the criminal case, special counsel Jack Smith will not hesitate to move to hold Trump in contempt if he ventures over the line.

In response, Chutkan will have an array of options. She could give Trump a last warning before imposing sanctions. Or, following Mondays pattern, she could issue an immediate order for him to show cause why he should not be held in contempt.

This would trigger briefing by the parties, and then a contempt hearinga minitrial on the sole issue of whether the gag order has been violated in any material manner.

The hearing would turn on prosecution evidence that the very nature of Trumps statements is an invitation and provocation to violence.

In that event, if the facts were to support a contempt finding by a preponderance of the evidence, the court should carefully calibrate a remedy that would send a major deterrent message to Trumpand to the countryabout the rule of law. Stiff monetary fines, doubling with any further violations, are one example.

Whatever the course of coming events in Chutkans courtroom, heres what we can count on: She is not one to be intimidatedor to slow rulings that demonstrate that no one is above the law.

Read more:
Gag order against Trump will withstand First Amendment claim. - Slate

Supreme Court Justice Oliver Wendell Holmes famouslywrote, if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought not free thought for those who agree with us but freedom for the thought that we hate.

As events this month suggest, its a sentiment that is easier to agree with in the abstract than when confronted with speech one deeply abhors in the wake of a tragedy. Following Hamass deadly terrorist attack on Israel,college students,faculty,protesters, and others have made statements supporting or justifying the attack even in some casescelebrating Hamass atrocities that have unsurprisingly elicited outrage from many corners.

Any commentary on Hamass attack or Israels response is, of course, fair game for criticism and condemnation. That exchange of views is what the First Amendment protects. FIRE haslong defended thefree speech rights of speakerson all sides of theIsraeli-Palestinian conflict.

The mere expression of an opinion however repugnant is always protected.

But some reactions to opinions about the latest escalation of the conflict have gone beyond counterspeech:

The list will no doubt grow in the coming weeks.

When politicians and institutions attempt to curb discussion on a prominent political issue over which Americans have intense disagreements, they threaten constitutionally protected speech.

The government has no authority under the First Amendment to censor, punish, or retaliate against speakers based on the views they express, even if 99% of society finds those views offensive or utterly abhorrent. (While NYU is not a public institution bound by the First Amendment, itguarantees free speech to both students and faculty promises it must uphold.)

True threats,incitement to imminent unlawful action, andharassment are not protected. But the recent calls to punish speech about the Israel-Hamas conflict extend well beyond expression that falls into one of those narrow categories.

The mere expression of an opinion however repugnant is always protected.

The authority to regulate hate speech an inherently vague and subjective label is a gift to those who want an excuse to stamp out views they personally detest. FIRE knows from its long history defending free speech on campus how often both sides of the Israeli-Palestinian debate face censorship under this rationale. The target simply depends on who holds power at a given time and place.

Once we abandon the principle of viewpoint neutrality, all bets are off.

Its even more important to stick to free speech principles during times of crisis, when rising passions create a heightened risk of authoritarian overreach.

For further evidence, look at whats happening abroad. Israels communications ministerproposed emergency regulations that would allow police to arrest citizens and journalists who publish content that would harm national morale. Indian officials arethreatening censorship of views opposed to the governments stance on the Israel-Hamas war and of expressions of support for Palestinians.

France, for its part,outright banned all pro-Palestinian protests because they are likely to generate disturbances to the public order. Never mind whether a particular protest is peaceful or not.

FIRE has written extensively about Fordhams shameful decision to ban the student group because of its political beliefs.

Read More

Banning peaceful demonstrations for the ostensible purpose of preserving public order has an ugly history in the United States, where state and local governments frequently used this tactic to shut down civil rights protests, citing the potential for violence to break out because of fierce opposition to the protesters support for racial equality. Fortunately, the Supreme Court wouldaffirm that constitutional rights may not be denied simply because of hostility to their assertion or exercise.

In times of crisis or upheaval, this principle faces its greatest test. When tragic events stir understandably intense feelings of grief and anger, people tend to have little patience for speech that inflames those emotions. Thats human nature. But we cannot let outrage at speech we find reprehensible blind us to the wisdom of the First Amendment and the danger of empowering the government to police what we say. Its even more important to stick to free speech principles during times of crisis, when rising passions create a heightened risk of authoritarian overreach.

Let every participant in the debate over the Israeli-Palestinian conflict show their cards, even those with the most extreme views. And let others marshal arguments and evidence to refute or discredit those views. Let it all happen out in the open.

At the end of the day, werenot better off knowing less about what our fellow Americans actually think. As FIRE co-founder Harvey Silverglate has said, I want to know who the Nazi in the room is so I know not to turn my back to them.

InSnyder v. Phelps, the Supreme Court upheld the right of the Westboro Baptist Church to picket soldiers funerals with signs bearing messages like Fags Doom Nations and Thank God for Dead Soldiers. Its hard to find a case involving speech that draws less public sympathy. But as the Court said in an 8-1 decision uniting justices across the ideological spectrum:

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, andas it did hereinflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different courseto protect even hurtful speech on public issues to ensure that we do not stifle public debate.

Free speech comes at a price. But its nothing compared to the price we will pay if we abandon it.

See more here:
As the Israeli-Palestinian conflict escalates, so must our commitment to free speech - Foundation for Individual Rights in Education

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