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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.

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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.

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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.

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

It's part of the University of the Pacific (McGeorge Law School) Law Review symposium on Israel, Palestine, and the First Amendment, and it's based on amicus briefs that I had filed together with Profs. Michael Dorf and Andrew Koppelman. You can read the article here; here's the opening paragraph and the Introduction:

Anti-BDS laws, which bar government contractors from boycotting Israel, are generally constitutionalfor the same reason that anti-discrimination laws are generally constitutional: Refusals to deal are, outside some narrow situations, generally unprotected by the First Amendment.

Decisions not to buy or sell goods or services are generally not protected by the First Amendment. That is the necessary implication of Rumsfeld v. Forum for Academic & Institutional Rights, and it is the foundation of the wide range of anti-discrimination laws, public accommodation laws, and common carrier laws throughout the nation.

Thus, for instance:

Of course, all these people would have every right to speak out against same-sex weddings, Catholicism, the Democratic Party, unions, and Israel. That would be speech, which is indeed protected by the First Amendment. For this reason, when phrases such as "otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial relations" appear in various anti-BDS statutes, courts should read them as covering only commercial conduct such as that listed in the preceding phrases ("refusing to deal with" and "terminating business activities with"), and not extending to advocacy.

But as a general matter, a decision not to do business with someone, even when it is politically motivated (and even when it is part of a broader political movement), is not protected by the First Amendment. And though people might have the First Amendment right to discriminate (or boycott) in some unusual circumstancesfor instance when they refuse to participate in distributing or creating speech they disapprove ofthat is a basis for a narrow as-applied challenge, not a facial one.

For this reason, properly crafted anti-BDS statutesthe subjects of this symposium, and of recent debates about boycotts more broadlyare constitutional, as are contracts based on such provisions. And, of course, the logic of this would apply to a wide range of statutes that forbid (or mandate) various kinds of boycotts or other refusals to deal.

The details are in the full article (just 14 pages).

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Now Published: "The First Amendment and Refusals to Deal" - Reason

Other judges say it is. U.S. District Judge Matthew Kacsmaryk ruled on Sept. 21 that West Texas A&M University, a public university in Canyon, Texas, can constitutionally ban on-campus drag performances, at least for now. Kacsmaryk, a Trump appointee best known for attempting to revoke the Food and Drug Administrations approval of medication abortion, described all drag performances as inherently sexualized and stated that at this point in Free Speech jurisprudence, it is not clearly established that all drag shows are categorically expressive conduct entitled to First Amendment protection. In March 2023, Spectrum WT, a student organization that seeks to provide a safe space for LGBT+ students and raise awareness of the LGBT+ community, planned to host a fundraiser to raise funds for The Trevor Project, a non-profit organization that provides crisis intervention and suicide prevention services to queer youth. This fundraiser would have included a drag show. Before Spectrum WT could host its event, West Texas A&M University President Walter Wendler issued a letter announcing that the university will not host a drag show on campus. In his letter, Wendler likens drag performances to blackface and describes them as derisive, divisive and demoralizing misogyny and claims they stereotype women in cartoon-like extremes for the amusement of others[,] discriminate against womanhood [and] contribute to womens suffering via a slapstick sideshow that erodes the worth of women. Wendler also stated that he would not permit Spectrum WTs drag show, or any future ones, even when the law of the land appears to require it. In response to this letter, Spectrum WT sued Wendler and other university administrators for violating the First Amendment. As part of its lawsuit, Spectrum WT requested a preliminary injunction which would have, if granted, presumed Wendlers actions unconstitutional and temporarily barred the university from enforcing its ban on drag shows until the court reached a final decision in the case. In his order denying Spectrum WTs request for a preliminary injunction, Kacsmaryk gives four reasons to justify his decision to deprive Spectrum WTs drag show of First Amendment protection. First, he writes that drag shows do not obviously convey or communicate a discernable, protectable message. Second, the universitys campus is not a traditional public forum. Third, Wendler can regulate sexualized conduct to protect children. Fourth, an on-campus drag show could potentially violate federal, state, and university policies prohibiting discrimination against women. For the foregoing reasons, Kacsmaryk concludes that President Wendler did not violate a clearly established right and that his disapproval of an on-campus drag show was not objectively unreasonable. While Kacsmaryks order presumes the constitutionality of President Wendlers actions, it is not a final decision, nor does it carry any precedential weight for this case or other cases. Kacsmaryks suggestion that drag show performances are protected by the First Amendment runs counter to every other federal judge that has adjudicated state efforts to censor drag. Judges in Florida, Montana, Utah and Tennessee have blocked laws seeking to ban or restrict drag performances. Another federal judge in Texas has invalidated anti-drag legislation as unconstitutional since Kacsmaryks order last month. U.S. District Judge David Hittner struck down Texas S.B. 12 on Sept. 26 as violative of the First Amendment. This law, described by Texas officials as a drag ban, sought to ban so-called sexually oriented performances from public property and allowed municipalities to regulate sexually oriented performances however they see fit. Hittners ruling comes after he granted S.B. 12s challengers a preliminary injunction on Aug. 31 before the law took effect. Texas Attorney General Ken Paxton intends to appeal Hittners ruling to the Fifth Circuit Court of Appeals and has pledged to appeal to the U.S. Supreme Court if Texas again loses. Spectrum WT, represented by the Foundation for Individual Rights and Expression, has since appealed Kacsmaryks denial of a preliminary injunction to the Fifth Circuit Court of Appeals while its lawsuit proceeds in the District Court. In a press release, it characterized Kacsmaryks order as disheartening and a slap in the face to freedom of speech.

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Federal judge says drag not protected by First Amendment The ... - TU Collegian