IMDb likely has First Amendment right to display people’s ages – Washington Post

A recently enacted California law, AB 1687, requires websites that provide employment services to an individual for a subscription payment to stop publishing a subscribers age whenever the subscriber so demands. In practice, this law was aimed at IMDb, which lets people in the entertainment industry post various rsum information online (via its IMDb Pro service) but also publishes biographical information about people subscribers or not including their ages. The law wasnt limited to information that IMDb learned through its relationship with subscribers; it also covered information that IMDb independently acquired.

Wednesday, U.S. District Court Judge Vince Chhabria temporarily blocked the enforcement of the law, ruling that IMDb was likely to succeed in its First Amendment claim:

Its difficult to imagine how AB 1687 could not violate the First Amendment. The statute prevents IMDb from publishing factual information (information about the ages of people in the entertainment industry) on its website for public consumption. This is a restriction of non-commercial speech on the basis of content. Therefore, the burden is on the government to show that the restriction is actually necessary to serve a compelling government interest. [Footnote: The government has not argued that birthdates or other age-related facts implicate some privacy interest that protects them from public disclosure, and its doubtful such an argument would prevail in any event.] The government is highly unlikely to meet this burden, and certainly nothing it has submitted in opposition to the preliminary injunction motion suggests it will be able to do so.

To be sure, the government has identified a compelling goal preventing age discrimination in Hollywood. But the government has not shown how AB 1687 is necessary to advance that goal. In fact, its not clear how preventing one mere website from publishing age information could meaningfully combat discrimination at all.

And even if restricting publication on this one website could confer some marginal antidiscrimination benefit, there are likely more direct, more effective, and less speech-restrictive ways of achieving the same end. For example, although the government asserts generically that age discrimination continues in Hollywood despite the long-time presence of antidiscrimination laws, the government fails to explain why more vigorous enforcement of those laws would not be at least as effective at combatting age discrimination as removing birthdates from a single website. Because the government has presented nothing to suggest that AB 1687 would actually combat age discrimination (much less that its necessary to combat age discrimination), there is an exceedingly strong likelihood that IMDb will prevail in this lawsuit.

[Footnote: The government casts AB 1687 as ordinary economic regulation falling outside First Amendment scrutiny. But IMDb Pros commercial relationship with its subscribers has no connection to IMDbs public site, which relies on data obtained from third parties or from the public record. The government would perhaps be on stronger ground if AB 1687 were limited to preventing IMDb from misappropriating the data furnished by subscribers to its industry-facing site.]

Sounds right to me, though Id go further and say that such a restriction on publishing truthful information would be unconstitutional even if it did combat age discrimination more effectively than other alternatives would. (Note that I signed on to an amicus brief in the case that supported this position; the brief was written by M.C. Sungaila, and was signed by, among others, noted liberal professor and University of California at Irvine dean Erwin Chemerinsky, our own David Post and the Reporters Committee for Freedom of the Press.

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IMDb likely has First Amendment right to display people's ages - Washington Post

Milo learns the First Amendment isn’t a get-out-of-jail-free card for … – Washington Post

Christine Emba edits The Posts In Theory blog.

Speech is free, but not consequence-free. Milo Yiannopoulos managed to skirt this reality for years, but eventually it comes for us all.

A quick recap for those who have not been following this sordid tale: MILO, as hes best known (all-caps his own), is an Internet personality and now-former Breitbart News senior editor best known for his glibly offensive remarks about minority groups, his hatred of political correctness and his support of Donald Trump.

Many on the right hailed Milo as a much-needed iconoclast, one of the few brave enough to defend free speech, speak uncomfortable truths and push back against the simpering social justice warriors of the left. After his charmingly titled Dangerous Faggot speaking tour was met with protests at college campuses, including some most notably at the University of California at Berkeley this month that turned violent, he was invited to speak at this years Conservative Political Action Conference.

This weekend, however, video emerged of Milo joking about pedophilia and molestation. In short order he was disinvited from CPAC, his book deal was canceled, and he resigned from Breitbart.

It is interesting to consider that while the right championed his racist, misogynist invective as a much-needed tonic for our stifled public discourse, discussions of child sex abuse were not seen the same way. The defense of free expression seemed to go only so far as be free to insult those we already disagree with, but please, no further than that. For all the invocations of the First Amendment, there is apparently still a line. Milo crossed it, the end, goodbye. I, for one, do not look forward to his apology tour and inevitable transformation.

Yet the fact that a line exists at all brings to light a point often overlooked when free speech is bandied about as a hallowed but somehow threatened ideal. Yes, speech is free, but not free from dissent. You can say what you like, but no one has to listen to you. The fact that you have spoken something controversial in public does not make your provocation correct or worthy of acclaim.

The First Amendment guarantees that Congress shall make no law ... abridging the freedom of speech. That is all. It does not say that private companies such as Facebook must promote all kinds of content equally, or that Simon & Schuster is obliged to hand out book contracts to everyone who wants one. It should not be stretched to imply that institutions must provide a platform for every opinion that comes their way. And while the First Amendment often makes it possible for individuals to challenge the dominant discourse, it gives them no more help than that.

Some myself included have argued that the best remedy for hateful speech is more speech, not less. But it is worth pointing out that more speech can take a number of forms. It could be the addition of other, opposing speakers to a lineup featuring a contentious guest. It could be a petition asking for the guest to be disinvited. It could be protesters telling said speaker to shut up and get off of their campus, or even calling the speaker a racist or Nazi. Some of these methods are far more productive than others, and some are less likely to promote useful discourse. But free speech also means that such responses must be allowed to occur and may well bring about consequences that the original speaker might not enjoy.

Positive freedom relies on prudence. If the things you say provoke an intense and unpleasant reaction, it may be worth wondering whether your critics have a point. And if youre in favor of free speech when it comes to some topics but not others, perhaps you should investigate why your limits lie where they do.

The Milo debacle helpfully illustrates the limitations of invoking free speech to cast a benevolent glow on any and every injudicious statement, and the bind created when any opposition is cast as unjust, illiberal silencing. It may finally be time to stop flogging the First Amendment as some sort of get-out-of-jail-free card for foolish talk. Were wonderfully free to say whatever we want to. But that doesnt mean we should.

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Milo learns the First Amendment isn't a get-out-of-jail-free card for ... - Washington Post

Celebrating the First Amendment in Floyd, VA – WVTF

The first amendment to the U.S. constitution is just a few short lines, but it speaks volumes. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

This past weekend, more than a hundred people in Floyd, Virginia came out to celebrate those words and explore their meaning. Robbie Harris prepared this report.

In a cathedral-like post and beam auditorium at the Floyd Eco Center, they sang songs, read poems and essays theyd written for the occasion and shared their thoughts about that powerful sentence. The celebration was the brainchild of Alan Graf, a civil rights attorney, activist and lover of blue grass music whod hoped to retire in Floyd and learn to play the banjo.

But in the past few months, he says, hes seen his beloved first amendment coming under attack, and he felt he had to say something. I think our best defense against any grabbing of power is our ability to speak and thats why I wanted to put together this celebration to remind people to use it

Graf explains, he devoted his life to being a watchdog for civil rights because of his own familys story. His grandparents were killed in the Holocaust in Germany during World War II.

So its in my family to fight against totalitarian regimes - and I see the writing on the wall. And so Ive been defending the constitution for 25 years - I feel religious about the Bill of Rights, first, second, third, fourth - well, every amendment, but particularly the first amendment. I see it as the peoples last stand against a totalitarian regime."

Thats in part because it limits the power of government as Floyd County Commonwealth Attorney Eric Branscom points out.

It was in 1791 that the first amendment, along with the rest of the Bill of Rights, became part of the Constitution. Its important to note that the first amendment and the freedoms therein are not positive rights, theyre negative rights, which means they exist as limitations on the government rather than rights granted by the government."

And that leaves a lot of room for interpretation, making the Bill of Rights something the legal system has grappled with ever since. And so have the poets, the philosophers and musicians among us.

Heres Kim ODonnel reading a poem she wrote for the first amendment celebration:

There is no such thing as free speech. Soldiers stand and fall, arrive home in a box beneath a flag. We have been given nothing that we did not pay for.

A rich man grabs a woman against her will and she eats her rage and every word she wants to say until she is emaciated from her hunger for truth.

She speaks out and he arrives in our capital, takes an oath beneath our flag.

There is no such thing as free speech. We have been given nothing that we did not pay for.

And just because freedom of expression is protected, that doesnt mean you have to agree with or accept whatever is expressed. Over the years, the legal community has come up with this balancing act; the remedy to any speech you dont like or dont agree with is more speech.

Original Music by Michael Kovick, Silence is Complicity.

I know that things aint just what they ought to be. You and I could turn it around. When we stand up for what we believe in, first amendment rights are found and if you dont like it and you dont stand up how is anybody gonna know where you stand? I want to know. Silence is complicity.

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Celebrating the First Amendment in Floyd, VA - WVTF

NRA-Backed Law Violates the First Amendment in the Name of Protecting the Second – Reason (blog)

Mike Kemp/Blend Images/NewscomLast week the U.S. Court of Appeals for the 11th Circuit overturned a censorious Florida law that tried to stop doctors from pestering their patients about guns, sacrificing the First Amendment in the name of protecting the Second. Such laws, which the National Rifle Association supports, show how fake rightsin this case, an overbroad understanding of the right to armed self-defenseendanger real ones.

Florida's Firearm Owners' Privacy Act, enacted in 2011, was a response to complaints that pediatricians and family practitioners had become excessively nosy about guns in the homes of their patients. The American Medical Association, the American Academy of Pediatrics, and the American Academy of Family Physicians encourage their members to ask parents about guns, treating them as hazards analogous to alcohol, swimming pools, and poisonous household chemicals. Sometimes gun owners object to such inquiries, especially if they seem to be colored by a moralistic anti-gun ideology. The 11th Circuit's decision describes half a dozen examples that influenced Florida's legislators:

Assuming these accounts are accurate, the behavior of these doctors may have been unreasonable or even (when they misrepresented Medicaid requirements) unethical. But their requests for information about guns were not unconstitutional, since the Second Amendment applies only to the government. The law passed in response to these anecdotes nevertheless purported to protect the Second Amendment rights of Floridians by regulating what doctors say to their patients. As the 11th Circuit notes, that makes no sense (citations omitted, emphasis added):

There was no evidence whatsoever before the Florida Legislature that any doctors or medical professionals have taken away patients' firearms or otherwise infringed on patients' Second Amendment rights. This evidentiary void is not surprising because doctors and medical professionals, as private actors, do not have any authority (legal or otherwise) to restrict the ownership or possession of firearms by patients (or by anyone else for that matter). The Second Amendment right to own and possess firearms does not preclude questions about, commentary on, or criticism for the exercise of that right. So, as the district court aptly noted, there is no actual conflict between the First Amendment rights of doctors and medical professionals and the Second Amendment rights of patients that justifies [the law's] speaker-focused and content-based restrictions on speech.

In addition to prohibiting doctors from discriminating against gun owners (a provision the appeals court upheld), the Firearm Owners' Privacy Act forbade them to request or record information about guns unless it is "relevant to the patient's medical care or safety, or the safety of others"a standard that rules out routine inquiries about firearms. The law also instructed doctors to "refrain from unnecessarily harassing a patient about firearm ownership during an examination." As 11th Circuit Judge Stanley Marcus notes in a concurring opinion, that "incomprehensibly vague" provision raises due process as well as free speech concerns, since doctors are "left guessing as to when their 'necessary' harassment crosses the line and becomes 'unnecessary' harassment." Violations of these rules were punishable by fines and disciplinary actions such as letters of reprimand, probation, compulsory remedial education, and license suspension.

The speech restrictions imposed by Florida's law are clearly content-based, since they target communications dealing with a specific subject. The Supreme Court generally views content-based speech restrictions as "presumptively invalid" under the First Amendment, meaning they are subject to "strict scrutiny," which requires showing they are narrowly tailored to serve a compelling government interest. The 11th Circuit concludes that the Firearm Owners' Privacy Act fails even the more lenient standard of "heightened scrutiny," which the Supreme Court applied in a 2011 case involving state regulation of pharmacists. That test requires the government to show the challenged law "directly advances a substantial governmental interest and that the measure is drawn to achieve that interest," meaning there is a "fit between the legislature's ends and the means chosen to accomplish those ends."

Noting that state legislators "relied on six anecdotes and nothing more" when they enacted the Firearm Owners' Privacy Act, the appeals court finds the official rationales for the lawwhich, in addition to the Second Amendment, invoke patient privacy, protection against discrimination, and public healthinadequate to justify its speech restrictions. "Florida may generally believe that doctors and medical professionals should not ask about, nor express views hostile to, firearm ownership," the 11th Circuit says, "but it 'may not burden the speech of others in order to tilt public debate in a preferred direction.'" As for patients who object to questions about gun ownership, the appeals court says, they are not required to answer them, and they are free to choose less inquisitive doctors.

Florida's attempt to protect gun owners from offensive questions is reminiscent of the Oklahoma law requiring businesses to let employees keep firearms in company parking lots. When ConocoPhillips challenged that law in federal court, the NRA launched a boycott of the oil and gas company. "We're going to make ConocoPhillips the example of what happens when a corporation takes away your Second Amendment rights," said NRA Executive Vice President Wayne LaPierre.

ConocoPhillips cannot take away people's Second Amendment rights any more than Florida doctors can. And just as doctors have a right to ask patients about guns, even if that makes some patients uncomfortable, businesses have a right to control their own property, which includes the right to ban guns there. In both cases, the NRA argues, in effect, that the Second Amendment requires violating people's rights.

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NRA-Backed Law Violates the First Amendment in the Name of Protecting the Second - Reason (blog)

Even Michigan Avenue ‘musicians’ are protected by the First … – Chicago Tribune

OK, full disclosure here. My 4th floor office here in the Tribune Tower has a window that faces Pioneer Plaza and the Michigan Avenue Bridge. It's wonderful. Unfortunately, during the warm weather months it also means that some talentless guy with a saxophone decides that it is the perfect place to park himself, lay down a hat for change and tonelessly blat out the same three notes over and over and over again. Pretty much all day. It's awful. Some days so much so that it's a good thing we can't open our windows because I am tempted to drop things on the bad man to make him stop.

As much as I hate these "musicians" I love the First Amendment more. So 42nd Ward Alderman Brendan Reilly and Mayor Rahm Emanuel have been forced to back off their proposed ban by a threat from the ACLUbased on First Amendment rights. There are a lot of things that are annoying that are covered by the Constitution. Editorial cartooning among them. Thank God for that glorious document!

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Even Michigan Avenue 'musicians' are protected by the First ... - Chicago Tribune

Chiloquin settles First Amendment lawsuit – Herald and News

A freedom of speech lawsuit against the city of Chiloquin has been settled out of court and a motion to dismiss the suit was approved Friday.

Plaintiff Richard Twamley confirmed Monday his lawsuit against the city was resolved through a settlement agreed upon by both parties. Twamley said he found the terms of the settlement agreeable, but said specific details were under seal and wont be made public.

Twamley said he would need to contact his attorney before offering further comment.

Story continues below video

He sued Chiloquin and former Mayor Joe Hobbs Oct. 27, 2016, for an incident Dec. 15, 2015, during which Hobbs allegedly denied Twamley an opportunity to speak during public comment at a city council meeting. Twamley sought $1.7 million for the denial of his First Amendment rights as well as emotional distress.

According to the lawsuit, Twamley intended to speak to the council that night regarding a 2014 legal settlement between the city and the Chiloquin Rodeo Association, which Richard Twamley said occurred without proper authority. Twamley said his comments were ruled out of order by Hobbs and the plaintiff was not allowed to continue speaking on the topic.

At the beginning of council meetings in Chiloquin, a disclaimer is read saying officials will rule out of order comments of a discrediting nature, as well as personal attacks on officials and city personnel.

A response to Twamleys allegations was not filed in court by Chiloquin. A representative of City Hall could not be reached Monday for comment due to the federal holiday.

Twamley has been an outspoken critic of Chiloquin along with his wife, former Mayor Patricia Twamley, and Dennis Jefcoat, who acted as Patricia Twamleys adviser. In addition to letters to the editor printed in the Herald and News, the three each filed lawsuits against Chiloquin, though Patricia Twamleys suit was settled in the citys favor in 2014 and Jefcoats suit was dismissed for lack of evidence in 2016.

When asked Monday if he will continue to voice criticisms of the city, Richard Twamley said he would need to consult his attorney before responding to the question.

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Chiloquin settles First Amendment lawsuit - Herald and News

Appeals Court Says Filming The Police Is Protected By The First Amendment – Techdirt

In news that will surprise no one, police officers decided they must do something about someone filming the police department building from across the street. That's where this Fifth Circuit Court of Appeals decision begins: with a completely avoidable and completely unnecessary assertion of government power.

Phillip Turner was filming the police department. He was accosted by two officers (Grinalds and Dyess). Both demanded he provide them with identification. He refused to do so. The officers arrested him for "failure to identify," took his camera, and tossed him in the back of a squad car. Given the circumstances of the initial interaction, it's surprising the words "contempt of cop" weren't used on the official police report. From the opinion [PDF]:

Grinalds asked Turner, Hows it going, man? Got your ID with you? Turner continued videotaping, and Grinalds repeatedly asked Turner if he had any identification. Turner asked the officers whether he was being detained, and Grinalds responded that Turner was being detained for investigation and that the officers were concerned about who was walking around with a video camera. Turner asked for which crime he was being detained, and Grinalds replied, I didnt say you committed a crime. Grinalds elaborated, We have the right and authority to know whos walking around our facilities.

Grinalds again asked for Turners identification, and Turner asked Grinalds, What happens if I dont ID myself? Grinalds replied, Well cross that bridge when we come to it. Grinalds continued to request Turners identification, which Turner refused to provide. Grinalds and Dyess then suddenly and without warning handcuffed Turner and took his video camera from him, and Grinalds said, This is what happens when you dont ID yourself.

Turner asked to speak to their supervisor. Given that this happened right across the street from the department, Turner didn't have to wait very long. A supervisor arrived and came to at least one correct conclusion:

Lieutenant Driver identified himself as the commander. Driver asked Turner what he was doing, and Turner explained that he was taking pictures from the sidewalk across the street. Driver asked Turner for his ID, and Turner told the lieutenant that he did not have to identify himself because he had not been lawfully arrested and that he chose not to provide his identification. Driver responded, Youre right.

Texas police officers love to misread the state's "failure to identify" statute. It doesn't say what they think it does or what they want to believe it does. A former cop-turned-law student has a full explanation here, but suffice to say, cops cannot arrest someone for refusing to ID themselves -- at least not in Texas. The charge can be added after an arrest (if the refusal continues), but it can't be the impetus for an arrest.

After some discussion between the officers, Turner was released and his camera was given back. Turner filed a civil rights lawsuit. The lower court granted immunity to the officers on all allegations. The Fifth Circuit, however, refuses to go as far. And in doing so, it actually takes it upon itself to address an issue it easily could have avoided: whether the First Amendment covers the filming of public servants, specifically law enforcement officers.

First, the court asks whether the right to film police was "clearly established" at the time the incident took place (September 2015). It can't find anything that says it is.

At the time in question, neither the Supreme Court nor this court had determined whether First Amendment protection extends to the recording or filming of police. Although Turner insists, as some district courts in this circuit have concluded, that First Amendment protection extends to the video recording of police activity in light of general First Amendment principles, the Supreme Court has repeatedly instructed courts not to define clearly established law at a high level of generality: The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established. Thus, Turners reliance on decisions that clarified that [First Amendment] protections . . . extend[] to gathering information does not demonstrate whether the specific act at issue herevideo recording the police or a police stationwas clearly established.

The court doesn't leave it there, although it could have. The court notes that there's a circuit split on the issue, but just because the issue's far from decided doesn't mean courts have not recognized the right exists. It points to conclusions reached by the First and Eleventh Circuit Appeals Courts as evidence the right to film police has been acknowledged. Even so, there's not enough clarity on the issue to remove the officers' immunity.

We cannot say, however, that existing precedent . . . placed the . . .constitutional question beyond debate when Turner recorded the police station. Neither does it seem that the law so clearly and unambiguously prohibited [the officers] conduct that every reasonable official would understand that what he is doing violates [the law]. In light of the absence of controlling authority and the dearth of even persuasive authority, there was no clearly established First Amendment right to record the police at the time of Turners activities.

This is where the opinion gets interesting. While many judges would leave a trickier, somewhat tangential issue open and unanswered, the Fifth Circuit Appeals Court decides it's time for it to set some precedent.

We conclude that First Amendment principles, controlling authority, and persuasive precedent demonstrate that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.


To be sure, [s]peech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. Filming the police contributes to the publics ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy. Filming the police also frequently helps officers; for example, a citizens recording might corroborate a probable cause finding or might even exonerate an officer charged with wrongdoing.

In the Fifth Circuit -- joining the First and Eleventh Circuits -- the First Amendment right to film police has been asserted. Unfortunately, the issue still remains mostly unsettled, and there's currently nothing in front of the Supreme Court that would set national precedent. Unfortunately, the decision doesn't help Turner with his First Amendment claim, but it will help others going forward.

The court also reverses immunity on one of Turner's Fourth Amendment claims. While it finds the officers were justified in questioning him, they went too far when they arrested him. First, as pointed out above, the "failure to identify" law can't be used to predicate an arrest. And, after questioning him, the officers still had nothing approaching the probable cause they needed to make a warrantless arrest. Even though Turner was detained in the back of the squad car for only a short period of time, the fact that he was obviously not free to go makes it an arrest under the Fourth Amendment.

Strangely, the dissent, written by Judge Edith Brown, claims the Appeals Court has no business setting precedent. In her opinion, the nation's second-highest courts should stand idly by and wait for the Supreme Court to do the work.

The majority asserts, unconnected to the particular facts and unnecessary to the disposition of this case, that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions. The majority derives this general right to film the police from First Amendment principles, controlling authority, and persuasive precedent. But the Supreme Court has repeatedly reversed attempts to define clearly established law at such a high level of generality. White, 137 S. Ct. at 552.

The judge narrowly defines Turner's filming to ensure it would never fall under this supposedly "broad" definition of the right. She says the Appeals Court defines the protection as covering "filming police." But Turner wasn't doing that.

To the extent there is any consensus of persuasive authority, those cases focus only on the narrow issue of whether there is a First Amendment right to film the police carrying out their duties in public. E.g., Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011). Turner did not allege that he filmed police officers conducting their public duties, but rather that he filmed a police station.

Somehow, filming police officers as they enter and exit a public building is not "filming police carrying out their duties in public." Remarkably, Judge Brown says there may be "reasonable" security concerns that could Constitutionally prevent Turner's actions.

The majority does not determine that the officers here violated Turners First Amendment rightsperhaps because it would be reasonable for security reasons to restrict individuals from filming police officers entering and leaving a police station.

If police officers are entering and exiting a building from doors clearly viewable by the public from a public area, the officers obviously aren't that concerned about their "security." If so, they would use an entrance/exit members of the public can't see or don't have access to. If the Fourth Amendment doesn't protect the privacy of citizens in public areas, the same public areas can't be given a heightened privacy protection that only covers public servants.

Unsurprisingly, Judge Brown thinks Turner's involuntary stay in the back of a squad car could reasonably be viewed as Turner just hanging out there waiting to speak to a supervisor:

Because Turner himself requested a supervisor, a reasonable police officer in that situation could believe that waiting for the supervisor to arrive at the scene did not transform Turners detention into a de facto arrest. At the very least, Officers Grinalds and Dyess did not act objectively unreasonably in waiting for the requested supervisorespecially because Lieutenant Driver had to come from the Fort Worth Police Station across the street.

Except that most people "waiting for a supervisor" don't do so while:

a.) handcuffed

b.) sitting in the back of a locked squad car

The length of the detention doesn't matter. And it was ultimately the supervisor's arrival that sprung Turner. If not for the arrival of the supervisor -- who immediately recognized Turner couldn't be arrested for refusing to ID himself -- Turner would undoubtedly have spent an even longer period being detained, if not taken into the PD and processed.

The good news for Turner is that his sole remaining Fourth Amendment claims -- the wrongful arrest -- lives on. But the bigger win -- the First Amendment protections confirmation -- helps everyone else but him.

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Appeals Court Says Filming The Police Is Protected By The First Amendment - Techdirt

Limbaugh: The First Amendment Doesn’t Give the Press ‘Immunity … – Breitbart News

Monday on his nationally syndicated radio show, conservative talker Rush Limbaugh said the reaction of the media to President Donald Trumps tweet labeling them an enemy of the American people was because some journalists believe the First Amendment gives them immunity from criticism.

I want to thank F. Chuck Todd of NBC for opening my eyes to this. For the longest time Ive been genuinely curious why it is that media people think that they cannot be criticized.

And they really do. They really think they can go out and research people and they can dig up dirt from anybody they want, their pasts, and they can broadcast it all over. And if somebodys life, somebodys marriage, somebodys relationship, somebodys kid gets destroyed or ruined, fine and dandy.

They can do all of that they want, but you turn it around and you start investigating your favorite journalist to find out how many illegitimate kids he or she might have had in college or how many DUIs they had, you know, or how many communist sympathizer meetings they went to, then all hell breaks loose and they start squealing like stuck pigs, You cant do that! Were journalists!

I said, Where does this come from? Its more than just hubris. I finally found out. You know what it is, Mr. Snerdley? These clowns actually believe that since they are recognized in the First Amendment that they have constitutional immunity.

Criticizing them is attacking the First Amendment. They really believe this. Criticizing them is akin to attacking the Constitution, and thats un-American, and thats why you hear these journalists say. Its un-American to criticize. Its un-American for Trump to be destabilizing. Its un-American for Trump to be going out there and trying to do damage to the media. Weve got First Amendment protection.

Well, so does the president, and the president happens to be mentioned in the Constitution before the media. The presidents mentioned in Article 2. The media doesnt make it til the First Amendment. But yet the media thinks theres nothing bad about running around and trying to attack political figures and destroying them.

This is what it is, folks. They are so far gone, they really think that they are the last line of defense between freedom and democracy and tyranny. And attacking them and challenging their reputation is no more and no less than attacking the Constitution and trying to destroy America and democracy. Thats what they think. That explains why you cant go after them.

Anyhow, lets take another brief break here.


Look, the only thing the First Amendment does for the press is the same thing it gives everybody else. They can say what they want to say. Thats essentially what the First Amendment says for the press like it says it for you and me. It singles them out and references them in terms of their importance, a free and unintimidated, whatever, unattached media. And nobody objects to that, but it does not grant them immunity from criticism. It does not grant them freedom to be disagreed with. It does not grant them freedom from opposition.

They seem to think that it does. And I think it all falls under the notion of how really poorly constitutional education, American history educations been for decades in this country. Not to mention the kind of poison thats injected into the young skulls full of mush populating journalism schools all over the United States. But really, folks, its the one thing that, as far as the medias concerned, justifies what theyre doing.

Now, as I say, you wont even get them to admit what theyre doing. You wont even get them to admit theyre trying to destroy Trump. They come up with some, No, no, no, no. It is the job of the media to hold powerful people accountable. Yeah. Right. Why doesnt that apply to powerful Democrats? And dont tell me that it does, because everybody knows you give em a pass. Each and every time something comes up with em, you cover for em. Its a joke.

(h/t Mediaite)

Follow Pam Key on Twitter @pamkeyNEN

The rest is here:

Limbaugh: The First Amendment Doesn't Give the Press 'Immunity ... - Breitbart News

This Presidents’ Day, defend the First Amendment – The Hill (blog)

In many ways, free speech is the right that protects all others, reinforcing every freedom that we hold dear and that so many have fought and died for.

This Presidents' Day, we should reflect on the reasons our Founding Fathers enshrined this right in our First Amendment. And we must acknowledge that this fundamental right is under attackeven for those who have fought to protect it.

Brandon Coleman, a Marine Corps veteran, began working as a therapist at the VA hospital in Phoenix to provide care for his brothers and sisters in arms. When he found that veterans there were dying due to negligence, he spoke upand for that, he was punished. When he told management what was going on, they told him thats how people get fired. They even tried to use his own personal medical records against him, and issued a gag order to silence him.

Colemans VA experience reminds of President Abraham Lincoln, who famously said that we as a nation will never be destroyed from the outside. "If destruction be our lot, we must ourselves be its author and finisher, he said if the United States loses its freedoms, it will be because we destroyed ourselves.

Veterans like Brandon fought to defend us against external threats, but more and more are realizing that the biggest threat to our freedom is a government that is quick to limit our inalienable rights. The oath servicemen and women take to support and defend our Constitution doesnt end when we hang up our uniforms and return to civilian life.

Brandons case is one of many instances in which the very same government thats supposed to be protecting the right to free speech has tried to suppress it. Its not just happening at the VAlook at the way the government has intimidated religious groups by leaking donor lists, or the scandal at the Internal Revenue Service (IRS), in which the agency targeted certain groups because of their views on public policy.

Time and again, the government has silenced those it disagrees with by using citizens private information against them. Which makes it all the more concerning that a growing number of states are now trying to get more information about Americans who exercise their First Amendment rights.

In South Carolina, legislation was recently filed in the state Senate that would force essentially every nonprofit organization that educates citizens about public policy to disclose to the government the names, addresses, and employers of supporters who donate more than a certain dollar amount. Similar efforts have surfaced in both Nebraska and South Dakota. Touted under the banner of transparency, these so-called disclosure laws are nothing more than thinly-veiled attacks on free speech.

Throughout our history, the First Amendment has allowed citizens to challenge the government and powerful groups in all sectors, rooting out fraud and corruption. It has allowed marginalized groups to speak out against injustice, spurring progress toward equality. It has allowed millions of Americans to contribute to a marketplace of ideas, fostering a free society, a thriving culture and the largest economy in the world.

All too often today, our free speech right that was designed to hold the government accountable is being used by the government to harass, intimidate, and silence the very citizens the right is meant to protect.

With a new administration and a new Congress, there may now be a real opportunity to scale back and prevent further threats facing our First Amendment rights. But during these turbulent political times, we cant take that for granted.

Abolition, the womens movement, civil rights the inalienable right to free speech is what gave the foot soldiers in all of these movements the ability to speak up for themselves. Now that free speech is under attack, will we speak up for it?

Mark Lucas is the executive director of Concerned Veterans for America.

The views expressed by this author are their own and are not the views of The Hill.

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This Presidents' Day, defend the First Amendment - The Hill (blog)

No, Milo Yiannopoulos’ 1st Amendment rights aren’t at risk – Washington Examiner

The rights of Milo Yiannopoulos were violated. Angry about his politics and uncomfortable with his trolling, violent protestors kept him from delivering scheduled remarks in a public venue. His right to free speech was categorically infringed.

But that was more than three weeks ago at UC Berkley and it bears zero resemblance to the current controversy surrounding Milo's CPAC speech. In reality, there's little threat to his First Amendment rights.

For those unfamiliar with the obnoxious populist provocateur, Milo has made a career of exposing liberal double standards. The operating procedure of the Breitbart writer is pretty simple. He mocks the pieties held by many on the Left, trashing in particular the special treatment afforded to individual groups.

And Milo puts on a good show. Normally his antics are more entertaining than his arguments are incisive. But he's always aggravating on purpose. That's gotten him kicked off of Twitter and college campuses, all the while catapulting his career.

But his comments about pedophilia are beyond reprehensible. In a recently surfaced January 2016 video, Milo speaks fondly and even defends "relationships between younger boys and older men." Later he makes light of the sexual abuse that rocked the Catholic Church, quipping that he's "grateful for Father Michael" and adds that he "wouldn't give nearly such good head if it wasn't for him."

Is all of this terribly offensive? Absolutely. Is it protected speech under the First Amendment? Yes. Does that mean that CPAC will violate Milo's rights if they cancel his speech? Not at all.

As a private organization, CPAC can give a venue to whomever they please. Whether they cut or keep Milo in the speaking line-up for this week's conference in Washington, D.C., is completely up to them. Whether he speaks or is silenced, his rights won't be violated.

There's only one way the Berkley episode can be replayed this Friday. If a violent mob rips him from the stage or the government bars him from speaking. Clearly, there's little chance of that happening.

Philip Wegmann is a commentary writer for the Washington Examiner.

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No, Milo Yiannopoulos' 1st Amendment rights aren't at risk - Washington Examiner

First Amendment-loathing FEC commissioner to quit – Canada Free Press

Federal Election Commission member Ann Ravel, a left-winger who proposed regulating political speech on the Internet, announced she is stepping down from the FEC on March 1.

Ravel, appointed by President Obama, caused a firestorm in 2015 when she said

it would be under the purview of the FEC to look at some of the issues that arise in new media and the impact of new media, in particular with respect to disclosure and ensuring that there is no corporate contributions, for example excessive contributions or contributions to a particular candidates for example.

In other words, she appeared to be saying that media outlets coverage of politicians could be tantamount to contributions to those candidates. This is, of course, the way statist bureaucrats think.

The comments were made at a conference co-hosted by the leftist Brennan Center for Justice. George Soross Open Society Institute has given at least $4.5 million to the Brennan Center since 2005.

Ravel played the victim card when Americans pushed back.

I was, I should say vilified, and it was said by one of my fellow commissioners that I was trying to censor the Internet and as a result there was a barrage of really angry, threatening misogynist responses to me about it and suffice it to say nothing has happened.

In her letter of resignation to President Donald Trump she raised the Lefts standard authoritarian talking points.

I respectfully urge you to prioritize campaign finance reform to remedy the significant problems identified during the last election cycle. Disclosure laws need to be strengthened; the mistaken jurisprudence of Citizens United reexamined; public financing of candidates ought to be expanded to reduce reliance on the wealthy; and Commissioners who will carry out the mandates of the law should be appointed to expired terms at the FEC. Thank you very much.

But her whining at taxpayer expense will soon end.

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First Amendment-loathing FEC commissioner to quit - Canada Free Press

Racially insensitive posts protected under First Amendment – Daily O’Collegian

Despite calls for expulsion or suspension, Oklahoma State University cant legally punish the students who posted offensive words and images on social media at the beginning of the semester, according to OSU officials.

African-American students and others who are outraged by (the incident) have every right to be outraged by this, but if youve turned the focus on punishing the speech, you dont solve the problems of the racism, said Joey Senat, who specializes in media and First Amendment law.

When you say that person should be expelled because I didnt like that persons speech, they dont understand the larger issues and what the First Amendment actually is intended to mean, he said.

On Martin Luther King Jr. Day, a photo including four OSU students, two of whom were wearing a dark substance resembling blackface, wasposted on Instagram and caused uproar on social media.

About a week later another OSU studentposted a photo on Snapchat of herself wearing a mud mask with the caption, When he says he only likes black girls. The photo sparkedprotests on campus and led to a meeting between OSU President Burns Hargis and African-American Student Association members.

In both instances, Hargis issued a statementsupporting student protest anddiscouraging intolerance and discrimination at OSU.

But for some, the statements and apologies arent enough.In a recent Letter to the Editor, an individual called for the students involved to be expelled or, at least, suspended.

However, there is no justification for censoring the students speech because it did not present a true threat, Senat said. Its counterproductive, he said, to suggest students be disciplined by suspension or expulsion.

You cant stop these people from thinking what they think, he said. You can only drive them underground, but that doesnt get to the root problem of the racism. It doesnt get to the societal issues of racism. It doesnt allow for solutions and progress.

Students shouldnt rely on the university, a taxpayer-funded entity, to solve their problems, Senat said. Instead, he suggests offering counter speech to racism.

Students should be out there protesting, Senat said. Confront those ideas. Thats how you go about trying to change someones mind and show them the error of their ways. They should be out there making it known this is not acceptable in their community, but thats a far cry from government being involved.

Senat said students and others who want these individuals disciplined need to keep in mind that next time it could be their speech someone wants punished or censored because it was offensive.

We cant expect government to step in and punish everyone because were offended or we justifiably disagree with someone elses speech, Senat said.

Lee Bird, vice president for student affairs, said the university is working to provide educational opportunities for students and has started a dialogue with the students responsible for the social media posts.

Theres a legal, right way to approach (the incidents), Bird said. The institution just cant say, Well, you cant do a blackface again, or, You cant do this.

Bird, who co-wrote a handbook for universities regarding the First Amendment, said restricting what students can say on campus through speech codes violates the First Amendment. A speech code is a regulation that prohibits expression normally protected under the First Amendment, according to FIRE, a nonprofit organization concerned with free speech on university campuses.

People think, Lets just write a code and prohibit it, Bird said. Well, thats not how the First Amendment works.

Bird said she, along with other university officials, has spent several hours meeting with the students involved, encouraging them to educate themselves and looking ahead at how the institution can proceed.

The students involved were ignorant, she said, which is the bigger issue.

What we learned from this case is we have a lot of students that are completely uninformed, ignorant about many race issues, Bird said. I think we need to help encourage students to educate themselves and where the institution may have to realign diversity classes or those requirements to help make sure that our students really do understand more about diversity.

Laura Arata, an OSU professor who specializes in the history of race, said the recent incidents are reflective of what she sees in the classroom.

Each semester, Arata said she asks her Survey of American History students whether racism is still a problem today.

Responses always range from No, it's definitely not, to Yes, absolutely it is," Arata said in an email to the OColly. To me, this is the clearest indication possible that there are some very important, very complicated, very deep conversations most of us need to have, even if it makes us uncomfortable.

Arata advocates having conversations that go beyond defining right and wrong. She said this is an opportunity to talk about why the actions are hurtful.

We are a diverse country and, of course, we're going to experience different things in all kinds of different ways, but that doesn't mean we don't need to acknowledge them and consider different viewpoints, she said.

Bird said she acknowledges knowing the university cant legally take action might not be comforting for victims. She believes OSU students need to understand the effects their actions can have and should be more thoughtful of those in their community, she said.

People need to understand that all these behaviors have an impact on our community, affect institutional reputation, make it harder to recruit, and I think the Cowboy nation is better than that, she said. I would hope that students would not be bystanders to hate, but they would be personally involved. If it was (an) international student, a Muslim student, an African-American student, an LGBT student, it doesnt matter hate is hate.

When you see something, say something, deal with it, speak to it.


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Racially insensitive posts protected under First Amendment - Daily O'Collegian

Holy Shit Even Fox News Is Calling Out Donald Trump’s Anti-First Amendment Comments – PerezHilton.com

Just wow.

This exchange on live TV is really something.

On Fox News Sunday, host Chris Wallace went after Reince Priebus, who is Donald Trump's Chief of Staff in the White House, regarding Trump's comments about the news media being the "enemy of the people."

And you know how it is when you're The Donald and you've lost Fox News, well, you're probably losing everybody.

Related: John McCain Calls Trump A Dictator

Watch this particular exchange, where Wallace completely calls out Trump and Priebus over the anti-freedom of the press comments (below):


Again, that's a Fox News host not afraid to call out The Donald's awful and destructive statements!!!

Video: Trump's Ridiculous Press Conference Goes To Late Night!

The entire interview is a thing of beauty, too and Priebus gets his ass handed to him repeatedly by Wallace, who doesn't back down for a second.

Watch the full thing (below):

Brutal for Priebus. Brutal for Trump. Sad!

But great for America and we need Fox News to keep calling out The Donald just like the rest of the media has been for the last two years!!!

Related: Trump Made Chris Christie Order Meatloaf While Dining In The White House!

What do U think about these clips, Perezcious readers??

Let us know in the comments (below)!!!

[Image via Fox News.]

Tags: celebrity feuds, chris wallace, controversy, crazzzzy, donald trump, fox news, fox news sunday, politik, reince priebus, scary!, tacky and true, tv news, viral: news, wacky, white house

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Holy Shit Even Fox News Is Calling Out Donald Trump's Anti-First Amendment Comments - PerezHilton.com

First Amendment survives challenge from Florida gun law – Minnesota Public Radio News (blog)

If youre at all a fan of the First Amendment, there was plenty to like about todays decision by the 11th U.S. Circuit Court of Appeals striking down a Florida law that prohibited doctors from asking whether there are guns in the home (heres the full law in question).

But lets focus on the concurring opinion of William Pryor, who was on the short list to replace Justice Antonin Scalia on the U.S. Supreme Court.

Pryor is a conservative, so he took great pains to point out that the decision is not about the Second Amendment; its about the First.

And much of his opinion was aimed strictly at conservatives, apparently anticipating their criticism.

Heres some examples.

If we upheld the Act, we could set a precedent for many other restrictions of potentially unpopular speech. Think of everything the government might seek to ban between doctor and patient as supposedly irrelevant to the practice of medicine. Without the protection of free speech, the government might seek to ban discussion of religion between doctor and patient. The state could stop a surgeon from praying with his patient before surgery or punish a Christian doctor for asking patients if they have accepted Jesus Christ as their Lord and Savior or punish an atheist for telling his patient that religious belief is delusional.

Without the protection of free speech, the government might seek to censor political speech by doctors. The state might prevent doctors from encouraging their patients to vote in favor of universal health care or prohibit a physician from criticizing the Affordable Care Act. Some might argue that such topics are irrelevant to a particular patients immediate medical needs, but the First Amendment ensures that doctors cannot be threatened with state punishment for speech even if it goes beyond diagnosis and treatment.

Pryor said doctors already discuss highly controversial topics with patients. Whether to play football, or telling teenagers to abstain from sex, and recommending organ donation.

He called the very idea a thought experiment and then lowered the boom with this beautiful piece of prose:

If today the majority can censor so-called heresy, then tomorrow a new majority can censor what was yesterday so-called orthodoxy.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion . . . . Our decision applies this timeless principle to speech between doctors and patients, regardless of the content. The First Amendment requires the protection of ideas that some people might find distasteful because tomorrow the tables might be turned.

Todays decision was not close. The vote was 10-to-1.

The one belonged to Gerald Bard Tjoflat, who is 87 years old and is the longest-service justice in the U.S. Court of Appeals system.

He does see the case as a Second Amendment question:

The majority and I agree that Florida possesses a substantial interest in protecting both Floridians reasonable expectation of privacy during medical treatment and the full exercise of their Second Amendment rights. If that is so, then it is hard to imagine a law more precisely tailored to advance those substantial state interests than the one presently before us. The Act does not categorically restrict the speech of medical professionals on the subject of firearms. Instead, it simply requires an individualized, good faith judgment of the necessity of speech related to firearm ownership to provide competent medical care to a patient.

a constitutional right is a right to be free of governmental restrictions on the exercise of the right it is not a right to be free of private criticism for the exercise of the right, much less private questions about the exercise of the right, law professor Eugene Volokh in his Washington Post column analyzing todays decision. A doctor no more violates your Second Amendment rights by asking you about whether you own a gun than the doctor violates your First Amendment rights by asking you how much TV your children watch, or your Lawrence v. Texas sexual autonomy rights by asking you whether youve been having sex with multiple partners.

Heres the courts full opinion:

Bob Collins has been with Minnesota Public Radio since 1992, emigrating to Minnesota from Massachusetts. He was senior editor of news in the 90s, ran MPRs political unit, created the MPR News regional website, invented the popular Select A Candidate, started the two most popular blogs in the history of MPR and every day laments that his Minnesota Fantasy Legislature project never caught on.

NewsCut is a blog featuring observations about the news. It provides a forum for an online discussion and debate about events that might not typically make the front page. NewsCut posts are not news stories but reflections , observations, and debate.

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First Amendment survives challenge from Florida gun law - Minnesota Public Radio News (blog)

Chip Minemyer | High school students say First Amendment freedoms, ‘real’ facts matter (WATCH VIDEO) – TribDem.com

Austin Minnick is concerned about the proliferation of fake news and claims of alternative facts by those appearing before the news media.

Kaitlin Dowd believes even unpopular messages such as burning a flag as a political statement represent free speechprotected by the First Amendment.

Natalie Marteney has seen examples of messages posted on social media that might be hurtful to others.

They were part of a group of Meyersdale Area High School students who visited The Tribune-Democrat on Friday, and who represent a thoughtfulness movement among teens as they maneuver the tricky terrain of digital news, Facebook and Twitter posts, local and national media behaviors, and a divided political landscape.

Teacher Steve Smerbeck noted that his group is more engaged with the news of the day and in the debates over how news is generated and consumed than what he might have encountered in the past.

Everyone has a right to their opinion, said Minnick, a junior who writes opinion pieces for the Meyersdale school newspaper, which is distributed in electronic form as PDF pages.

You dont always have to agree with someone. ... Its a matter of treating them with respect.

Bittner, a senior, has seen a difference between how people interact on social media and how they might discuss issues face to face.

Either way, he said, it is important to have the right to say, I dont agree with you.

That sentiment is at the heart of the First Amendment to the U.S. Constitution which guarantees citizens the right to speak their minds, practice a religion, publish news or gather in protest of the actions of the government.

A new survey conducted by theJohn S. and James L. Knight Foundation shows that support for the First Amendment among high schoolers is the highest its been in a decade.

The Knight Foundation surveyed 11,998 students and 726 teachers in what is the sixth installment in a series of national reports. The results were released Feb. 7.

The organization was founded by the former newspaper company Knight-Ridder and now supports journalism and the arts with the goal to foster informed and engaged communities, which we believe are essential for a healthy democracy, according to its website.

Some promisingfindings of the Future of the First Amendment study:

When asked if they had taken a class that dealt with the U.S. Constitution and the First Amendment, 68 percent of high school students said yes.

When asked if they believed the First Amendment goes too far in the rights it guarantees, 32 percent of students and 58 percent of teachers answered strongly disagree the top response for both groups.

Asked whether people should be allowed to express unpopular opinions, 57 percent of students and 68 percent of teachers chose strongly agree; 34 percent and 27 percent, respectively, responded mildly agree.

Students and teachers alike struggled once the topicsbecame: People should be able to say whatever they want in public, even if what they say could be seen as bullying to others, and People should be able to say whatever they want in public, even if what they say is offensive to others.

The concepts of bullying and offensive tested respondents willingness to grant unlimited freedom of speech.

On another current topic, both teachers and students chose strongly disagree 56 and 64 percent, respectively when asked if people should be allowed to burn or deface the American flag as a political statement.

Also, participants were asked how concerned they were about the privacy of personal information on the internet.

Most of the respondents were either very concerned (31 percent for students, 50 percent for teachers) or somewhat concerned (45 percent for students, 41 percent for teachers).

Ina very interesting question, participants were asked if high school students should be allowed to report on controversial issues in their student newspapers with the approval of school authorities. Students said they should (30 percent strongly agree, 33 percent mildly agree) while teachers were more reluctant (26 percent mildly agree, 32 percent mildly disagree, 29 percent strongly disagree).

Smerbeck discussed a recent story by Meyersdale High journalists about a practice involving school lunches. He said the reporters got a fact wrong and then corrected it but the school administration never challenged their right to generate the story.

In my 30 years of working at Meyersdale, weve never had an incident of prior restraint, he said. Weve written some things that were unflattering for the district.

The Meyersdale group included seniors Bittner, Marteney, Kellie Montgomery and Tanner Deal; juniors Minnick and Kathryn Most; and sophomores Dowd, Kasie Campbell and Wes Caton.

You can read the entire Knight Foundation survey at:www.knightfoundation.org/future-first-amendment-survey.

The bottom line for survey participants and the Meyersdale group: First Amendment rights matter, Dowd said.

Thats why American is what it is, she said. The thing you associate with America is freedom.

Chip Minemyer is the editor of The Tribune-Democrat and TribDem.com. He can be reached at 814-532-5091. Follow him on Twitter @MinemyerChip.

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Chip Minemyer | High school students say First Amendment freedoms, 'real' facts matter (WATCH VIDEO) - TribDem.com

Major First Amendment victory in Docs v. Glocks case – Pacific Legal Foundation (PLF) (press release) (blog)

Yesterday, the 11th Circuit issued its en banc opinions in Wollschlaeger v. Gov. of the State of Florida, AKAthe Docs v. Glocks case. As previously discussed here, here, and here, the case concerns whether Florida can prohibit doctors from asking their patients about their gun ownership or possession unless the question is directly relevant to a patients care. The issue is controversial because many doctors, especially pediatricians, often routinely ask patients (or their parents) questions about potential hazards in the home, be it swimming pools, poisons, or guns.

The primary legal issue before the 11th Circuit was whether the Florida law restricted speech based on its content and the speaker, and if so, what level of scrutiny should be applied to determine if the restriction is unconstitutional. Last year, PLF filed an amicus brief in the case arguing that all content-based speech restrictions should receive strict scrutiny, regardless of whether the speech is made in a professional setting. The second issue in the case (which PLF does not take a position on) concerned the anti-discrimination provision of the law. The Court upheld that provision narrowly: a move that even the doctors were amenable to,as indicated during oral argument.

In the first of its majority opinions*, the Court easily determined that the challenged law restricted speech based on its content and speaker. Next, the Court declined to apply deferential review under the professional speech doctrine. As discussed at length in PLFs brief, the professional speech doctrine is unprincipled and unsupported by a majority of the Supreme Court, so the 11th Circuits rejection of that standard in this case is most welcome. Finally, applying the U.S. Supreme Courts 2011 decision inSorrell v. IMS Health,the Court held that the law could not survive heightened scrutiny, so it declined to decide whether strict scrutiny was warranted. In short, the Court thoroughly dismantled the States justifications for the speech-restricting provisions, generally holding that the State offered insufficient actual evidence to justify restricting the speech of doctors.

There are also some additional things worth mentioning from the two concurring opinions. The first concurrence, written by Judge Wilson, would have applied strict scrutiny to strike down the speech-restricting portions of the law. This is particularly noteworthy because Judge Wilson was on the original panel that wrote three separate opinions before the case was taken en banc. Judge Wilson penned dissents to all three of those opinions, but with his concurrence yesterday he announced for the first time his conclusion that strict scrutiny is appropriate in light of the Supreme Courts 2015 decision in Reed v. Town of Gilbert.Second, the concurrence written by Judge William Pryor and joined by Judge Hull, reiterates that this case does not create a clash between the First and Second Amendments. While Docs v. Glocks is certainly catchy, it never accurately described the legal and constitutional issues presented in the case.

Even though the 11th Circuit did not go on to apply strict scrutiny to content- and speaker-based speech restrictions in a professional context, this case is certainly a strong win for the vindication of the right to free speech protected under the First Amendment. Doctors and speech advocates should certainly celebrate that.

*With an unusual move, the Court issued two majority opinions. I consider the opinion of Judge Jordan to be the primary opinion, though, and in any event Judge Jordans opinion is the one that announces the bulk of the Courts opinion on the First Amendment questions of interest to PLF.

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Major First Amendment victory in Docs v. Glocks case - Pacific Legal Foundation (PLF) (press release) (blog)

Court Says Google Has A First Amendment Right To Delist Competitor’s ‘Spammy’ Content – Above the Law

Last summer, a Florida federal court reachedsome unusual conclusionsin a lawsuit filed by SEO company e-ventures, which felt Google had overstepped its bounds in delisting a lot of its links. Google defended itself, citing both Section 230 and the First Amendment. The court disagreed with both arguments.

As to Section 230, the court found that Googles delisting efforts werent in good faith. The reason cited was e-ventures claim that the delisting was in bad faith. So much for this seldom-used aspect of Section 230: the Good Samaritan clause which states no third-party company can be found liable for actions it takes to remove content it finds questionable. And so much for viewed in the light most favorable to the non-moving party. Apparently, Googles long history of spam-fighting efforts is nothing compared to an SEO wranglers pained assertions.

The court also said Google had no First Amendment right to handle its search rankings however it saw fit, which is more than a little problematic. While it admitted Googles search rankings were protected speech, its statements about how it handled search engines werent. And, for some reason, the court felt that Googles ads undermined its First Amendment protections because its desire to turn a profit somehow nullified its editorial judgment.

It was a strange decision and one that suggested this court might be considering getting into the business of telling service providers how to run their businesses. It also suggested this court believed the more successful the business was, the fewer rights and protections it had. These dubious conclusions prevented Google from having the case dismissed.

Fortunately, this wasnt the final decision. As Eric Goldman points out, last years denial only delayed the inevitable. After a few more rounds of arguments and legal paperwork, Google has prevailed. But theres not much to celebrate in this decision as the court has (again) decided toroute around Googles Section 230 Good Samaritan defense.

Regarding 230(c)(2), the court says spam can qualify as harassing or objectionable content (cite toe360insightwith a but-see to theSong Ficase). Still, the court says e-ventures brought forward enough circumstantial evidence about Googles motivations to send the case to a trial. By making it so Google cant even win on summary judgment, rulings like this just reinforce how Section 230(c)(2) is a useless safe harbor.

Had it ended there, Google would be still be facing e-ventures claims. But it didnt. The court takes another look at Googles First Amendment claims and finds that the search engine provider does actually have the right to remove spammy links. Beyond that, it finds Google even has the First Amendment right to remove competitors content. From theorder[PDF]:

[T]he First Amendment protects as speech the results produced by an Internet search engine. Zhang v. Baidu.com, Inc., 10 F. Supp. 3d 433, 435 (S.D.N.Y. 2014). A search engine is akin to a publisher, whose judgments about what to publish and what not to publish are absolutely protected by the First Amendment. See Miami Herald Publg Co. v. Tornillo, 418 U.S. 241, 258 (1974) (The choice of material to go into a newspaper . . .whether fair or unfairconstitute[s] the exercise of editorial control and judgment that the First Amendment protects.) The presumption that editorial judgments, no matter the motive, are protected expression is too high a bar for e-ventures to overcome.

And the court walks back its earlier conclusion the one that seemed to find profit-motivated editorial judgment to be unworthy of First Amendment protections.

Googles actions in formulating rankings for its search engine and in determining whether certain websites are contrary to Googles guidelines and thereby subject to removal are the same as decisions by a newspaper editor regarding which content to publish, which article belongs on the front page, and which article is unworthy of publication. The First Amendment protects these decisions, whether they are fair or unfair, or motivated by profit or altruism.

The case is now dismissed with prejudice which bars e-ventures from complaining about Googles delisting efforts in federal court. e-ventures has gone this far already in hopes of seeing its terms-violating content reinstated, so it will likely attempt to appeal this decision. But it really shouldnt. Its unlikely another set of judges will help it clear the First Amendment hurdle. Not only that, but this area of law should be well-settled by now, as Goldman points out:

Of course Google can de-index sites it thinks are spam. Its hard to believe were still litigating that issue in 2017; these issues were explored in suits likeSearchKingandKinderStartfrom over a decade ago.

The plaintiff was given a long leash by the court, which should have tossed last year. Even with the extra time and the court doings its Section 230 circumvention work for it, e-ventures still couldnt prevail.

Court Says Google Has A First Amendment Right To Delist Competitors Spammy Content

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Court Says Google Has A First Amendment Right To Delist Competitor's 'Spammy' Content - Above the Law

BLOG SPOT: First Amendment keeps presidents in check – Goshen News (blog)

As a news guy I have often been called on to cover protests, and they are something I always enjoy going to.

Of course, protests are news, but they are also an expression of free speech, which is the cornerstone of our representative republic and allows me to ply my craft without the worry of some government thug threatening me, which is a tactic that is used against journalists around the globe daily.

Journalists are supposed to set aside their biases when covering all events, even protests that may have speech and themes they find onerous in the extreme. Thats very hard to do sometimes but must be done to provide acurate coverage of an event.

I once was assigned to cover a Ku Klux Klan rally, where the free speech was both profane and ignorant. During that event I was taking pictures and drifted into the area where protesters were hurling insults, bottles and rotten fruit across a barricade at the Klan members. As I snapped a photo an overzealous police officer clobbered me with a riot stick.

As I groggily found my feet I asked him why he had struck a member of the press. He yelled for me to move on and expressed disdain for my profession. I didnt move on, I went back to snapping photos, but I kept checking behind me to see if the big guy with a big club was coming back. He didnt.

I only use the situation to illustrate that at times, free speech and freedom of the press are threatened by intolerance. Nobody wanted to listen to the hate spewed by the Klan, including me, but I understood that our Constitution allows even morons the right to say what they want.

I often use free speech events as a teaching experience. A few years ago there was a group of proselytizers who would stand at the Five Points intersection near my house and shout out that the passersby were all sinners and were destined for a hot time in hell. One of my children objected to the daily harangue she experienced. I backed them up, pointing out that our rules of engagement allow people to shout out that sinners are among us.

Then this week President Donald Trump used his bully pulpit to level untrue accusations at us media types for producing fake news in response to reporters asking him for proof of his allegations that there was massive voter fraud, and a host of other Trumpisms.

Trumps castigation of the national media has delighted his supporters and has left reporters scratching their heads why some Americans are not believing them when they report verifiable, factual information that debunks Trumps false claims.

So even a president can make use of free speech at the cost of others for his own goals.

I think that development is why more White House reporters are challenging Trump in real time about this facts. The technique has risks, as reporters are often seen as confronting the president and not giving him a second chance to provide factual information. For now, I see no recourse for the press corps.

Our duty as reporters is to report the news and verify claims by any and all presidents, mayors, county commissioners and school board members. If we dont do that we leave Americans vulnerable to manipulation for personal or political gain by those they have granted power.

Fortunately, our founding fathers recognized this vital role of the press and included the institution in the First Amendment. I for one, am very grateful for that foresight.

Roger Schneider is city editor at The Goshen News and has been a journalist for 39 years.

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BLOG SPOT: First Amendment keeps presidents in check - Goshen News (blog)

Letter: First Amendment is first for a reason – East Oregonian (subscription)

Recently there has been a national trend towards limiting free speech from the political right. This movement manifests in a broad array of circumstances, including national and regional politics, state organizations, nonprofits and personal conversations. It seems that wherever one looks there is evidence of the need of social conservatives to prevent people from expressing their minds.

A few examples would include the Presidents outrage over Fake News; internet trolls attacking factual accounts of peaceful public protests, and local politicians threatening to withdraw support from organizations whose members they simply disagree with. And of course Tuesdays letter to the editor in this newspaper calling for penalties provided on reporting in such a biased and untrue method.

The authors of the United States Constitution were students of the enlightenment and understood that free speech is both a bulwark against tyranny as well as a path toward scientific progress. They knew that no tyrant can long survive the bright light of the truth, and scientific insights require open, unfettered communication. Every person who uses a cellular phone owes a debt not just to the capitalist who sold it to them but also the scientists and engineers who built it using information and conversations which were not limited by the government.

And also, of course, we should note that those governments and groups that the United States claims to oppose universally hold that free speech should be limited or outright forbidden. So the more we oppose free speech, the more we begin to look like our sworn enemies.

Finally, heres the first amendment as a reminder:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Andrew Picken


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Letter: First Amendment is first for a reason - East Oregonian (subscription)

Flag lesson in First Amendment angers some parents – wral.com

Fayetteville, N.C. A Cumberland County high school teacher has been suspended after he stepped on an American flag as part of a history lesson on Monday.

A photo posted on Facebook shows Lee Francis, a history teacher at Massey Hill Classical High School in Fayetteville, standing over an American flag at the front of the class.

Students said Francis tried to burn and cut the flag before dropping it on the floor as part of a lesson on the First Amendment. At least two students walked out of the classroom during the demonstration.

"I put the flag on the ground and I took two steps with my right foot and I said, 'This is an example of free speech,'" Francis said. "Two students got up and left immediately with no word, no disruption at all...I assumed something had happened. One student came to where I was and took the flag from me."

Francis has been suspended with pay in connection with the incident until he meets with Superintendent Dr. Frank Till on Thursday.

Francis, who has relatives in the military, said he did not intend to offend students, but wanted to drive home the Supreme Court's definition of free speech.

Melissa Ramos has a daughter at the school and a son who is stationed at Fort Bragg. She said she was furious about the demonstration and demanded that Francis be fired.

"Just personally, as a military family, to have someone do that, thank goodness she wasn't in that class because of her experiences having friends not come home," she said. "There are so many other ways that he could have taught that instead of trying to desecrate the flag that so many people in this country have fought so hard for.

In a statement, Superintendent Dr. Frank Till Jr. said in a statement, "Clearly there are other ways to teach First Amendment rights without desecrating a flag. The situation is currently under investigation."

"I think he's right, absolutely there could be other ways to teach the subject, but in the same vein the way that I taught it can't necessarily be wrong," Francis said.

The Facebook post has gone viral with more than 10,000 shares.

The investigation is ongoing.

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Flag lesson in First Amendment angers some parents - wral.com