Editor:

Thank you for publishing Its time to start resisting the crusade to erase history (June 20).

This column by Christine Flowers reflects the opinion of many, and it comes at a time when many in positions of influence are afraid to express it.

Were told that violence is peaceful, the flag is racist, our anthem is racist, everything must be erased from history, police deliberately look to kill blacks, politicians suck up to thugs and vandals and the list of absurdities goes on. And politicians and people with influence embrace it. The media reports all this in a favorable light, so it is refreshing to see an article with some sanity.

I am grateful to Flowers for writing it, and I urge her to continue to write on the anti-Orwellian philosophy she expressed. I hope we see more of this.

Joe Kolenda

Amity Township

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Letter: Column a refreshing take on issue of free speech - The Mercury

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Social media promised the world free speech but now stands accused of not doing enough to stop the spread of hate - The West Australian

We, as the independent, student-run newspaper of Temple University, well know the importance of First Amendment rights in our campus community. In the Bill of Rights, our right to free speech is listed alongside our right to a free press.

In the aftermath of George Floyds murder on May 25 and the protests following it, weve seen Temple respond to at least a dozen instances of current and incoming students seen on social media using hateful, racist language.

On June 4, Temple tweeted a response to these events saying that each one was reported to the Dean of Students and the university will take action as warranted.

Then, on June 5, Temple tweeted a clarification on the universitys disciplinary policy for offensive speech, stating the university respects the First Amendment rights of all, including those that express unpopular and even hateful speech that is antithetical to the universitys mission.

Temple also referenced the universitys Student Conduct Code, stating it is in accord with the First Amendment and students are not disciplined solely for speech unless circumstances indicate there is a violation under the Code.

The universitys Student Conduct Code does not include any reference to hateful speech or racism. Instead, it asks students to respect all university and local community members regardless of race.

That same day, Temple also tweeted that recognizing everyones First Amendment rights does not mean that Temple tolerates racism.

Earlier this week, we wrote about the importance of uplifting the Black Lives Matter movement in our community in the wake of Floyds murder. Since then, weve seen Black Lives Matter protests expand to our own campus and one of our own students, Evan Gorski, beaten by a now-charged Philadelphia Police Inspector for exercising First Amendment rights in protesting for racial justice.

Temple released a statement in the wake of Floyds murder opposing racial oppression. The university has not released any details on disciplining students involved in racist social media posting or commented on Gorski.

In the past few weeks, weve come to know the weight of the phrase silence is violence as it pertains to actively speaking out against racial injustice, and we want to be clear: on our campus, hate speech is not free speech.

The university has an obligation to students to create a welcoming and safe campus for students to learn, live and socialize between many groups of people. Temple cannot condone racist and hateful speech, especially when this threatens the physical and emotional security of its students, faculty and staff.

While we encourage students to express their political and ideological viewpoints in healthy discourse, we do not welcome hateful or racist speech in these conversations. Hate speech can create a hostile academic environment that is disruptive to the learning process for people of color.

Therefore, the Editorial Board believes that in the Temple community, racism in hateful speech needs to be actively fought against, denounced and barred. Not condemning hate speech is tolerating it.

The universitys inability to protect the First Amendment rights of a student speaking out against racism while simultaneously permitting other students to express racist speech puts the entire Temple community students, faculty, staff, alumni and community members in danger.

The Student Conduct Code states Temple recognizes ignorance and violence have no place on campus, values diversity and strives to understand all cultures and experiences of students. It also states that only when the universitys interests as an academic community are substantially involved should the special authority of the university be asserted.

With the university stating hateful speech is antithetical to the universitys mission, the Editorial Board strongly believes that the universitys interests as an academic community are threatened by the use of this hateful speech by students. As such, we insist the university recognizes the violent nature of hate speech and acknowledges the responsibility to assert special authority and take action to protect the community. Otherwise, by respecting hate speech that is antithetical to the universitys mission, the university is antithetical in failing to upkeep its mission.

The Editorial Board first and foremost calls on the university to denounce and expel students involved in racist acts or in sharing racist language and to publicize the disciplinary actions taken in handling these incidents.

Second, the Editorial Board calls on the university to publicly acknowledge and defend Gorski who, despite now being released, was wrongfully charged and jailed after a violent incident with a Philadelphia Police Inspector.

Finally, the Editorial Board demands the university reevaluates and reconsiders language in the Student Conduct Code to actively speak out against racism, racist speech and racist acts in the Temple community. This will allow the university to address and punish hateful speech, thereby demonstrating the universitys adherence to its own mission.

We also encourage the university to consult with multicultural student groups and community members when amending its Student Conduct Code to ensure the changes more adequately service the needs of the Temple community.

Pointing to language that ineffectively protects or safeguards members of the community as a defense for hateful speech is inexcusable. If the Student Conduct Code is failing to uphold and institute the universitys ethics and needs to be changed, then change it.

Editors Note: Colin Evans, Digital Managing Editor, contributed reporting to the accompanying news story. He played no part in this editorial.

See the original post:

Hate speech is not free speech on campus The Temple News - Temple News

Living in a society plagued by racism and injustice, many people across the world have taken to social media and their communities, protesting to voice their opinions of violence and injustices being committed.

Although freedom of speech and assembly is granted to all in the United States Constitution, there are things non-citizens should be aware of as they advocate for a better society to protect themselves against unintended immigration consequences.

Today, our lives and beliefs are on display for all to see, nearly everyone owns a smartphone and information is often shared through Facebook, Instagram, and other social media platforms. For those afforded the privilege of U.S. citizenship, clicking post or share will not impact their status as citizens. However, for non-citizens, pressing a button could potentially jeopardize their immigration plans.

Since March 31, 2019, the Department of State has requested additional information about the social media accounts of both immigrant and non-immigrant visa applicants, including the applicants username on numerous social medial platforms. It has become increasingly important for non-citizens to responsibly manage their social media presence.

So, what does responsibly manage their social media presence mean? Generally, just keep in mind that social media accounts may be reviewed by US government officials for visa applications or before granting immigration benefits.

For example, a non-citizen alluding to marijuana use in an Instagram post, even in a state in which marijuana is legal, could face inadmissibility issues, as previously discussed by my colleague, Elizabeth Van Arkel. This does not mean that non-citizens should refrain from using social media, as even the lack of social media presence may raise flags with immigration officers, but it is important to remember that social media content will be subject to review by immigration officers who hold immense discretion in adjudicating most visa applications.

If you have questions or concerns about whether your social media content poses immigration concerns, contact an immigration attorney.

While the right to assemble is also protected by the Constitution, in the last week, protestors have still been subject to arrests. Whether or not the arrest is supported by evidence or the law, and regardless of whether an arrest results in a conviction, non-citizens can face severe immigration consequences. Non-citizens without any immigration status, meaning they are undocumented, could be placed in removal proceedings, potentially leading to deportation. Even for those with some type of immigration status, including lawful permanent residents, arrest and/or criminal charges can create serious immigration consequences.

If you are arrested while protesting and charged criminally, you should ask to speak to a criminal defense attorney and discuss your immigration status with them or ask that they contact an immigration attorney. If you are arrested, even if you are not charged, you should also speak to an immigration attorney. You are not required to discuss your immigration status with anyone other than your attorney.

At Davis Brown, we advocate for equity and denounce racism. We support and encourage the expression of free speech and the freedom of assembly rights afforded by the First Amendment of the United States Constitution. We recognize and champion immigrants who advocate for the betterment of a county that has not yet accepted them as its own. And we want to help our clients achieve their immigration goals.

Excerpt from:

Exercising Free Speech Through Social Media and Assembly While Also Protecting Your Immigration Plans - JD Supra

Whatever the written Constitution says, whatever precedent says, constitutional rights mean little if there is no public or (especially) elite support behind them. Judges are not immune from the intellectual headwinds nor from their sense of public support for their rulings, and a right that lacks support in public and elite opinion is not worth the paper its written on.

Our president has done his part to undermine free speech norms with his consistent (though so far empty) threats to retaliate against the hostile mainstream media. The threats themselves do not violate the Constitution, but they do undermine support for freedom of the press in his base.

Meanwhile over at the New York Times, a pretty good bellwether of mainstream elite progressive opinion, James Bennett was forced to resign for publishing an op-ed by a sitting Senator, taking the position supported by 58% of the American public that the president should consider using the military restore order to cities plagued by riots to "disperse, detain and ultimately deter lawbreakers," because it offended members of the Times' staff.

Katie Kingsbury, the new acting op-ed editors, has told staff, "Anyone who sees any piece of Opinion journalism, headlines,social posts, photosyou name itthat gives you the slightest pause, please call or text me immediately."

Of course the Times is a private entity and can have whatever op-ed policies it chooses. But the notion that the Times has to be ever on the alert about publishing anything in its *Opinion* pages that may offend even the most sensitive member of its staff, something that Times editors would have laughed at a decade ago, suggests a very troubling decline in the *attitudes* needed to support freedom of speech in the constitutional context.

If these trends continue on left and right, in the long-run the freedom of speech under the First Amendment is in big trouble.

UPDATE: I don't whether to laugh or cry, but the Times' story on the Bennett resignation says, "the Op-Ed, by Senator Tom Cotton, Republican of Arkansas, had 'Send In the Troops' as its headline."

Now, you'd think the link would go to the op-ed, so that interested readers could see what all the fuss is about.

Nope. It goes to an article discussing staffers' complaints about the op-ed. Apparently, New York Times' writers and editors now fear that merely linking to the offending op-ed will get them punished.

See the original post:

Is the Future of Freedom of Speech in Jeopardy? - Reason

Police brutality is a serious issue in the United States one which must be resolved in light of George Floyds horrifying murder and the violence used against those protesting its prosecution. The Emory College Republicans are committed to supporting positive community engagement and upholding fundamental principles of democracy, of which free speech and freedom of the press are foundational. We stand with the protestors in their demands for reform, and we look forward to discussing practical solutions in an upcoming panel sponsored by the Student Government Association, College Council and Bridge Emory.

On May 31, several student organizations penned an open letter addressed to several Emory administrators. The letter raises concerns over several University policies, including demands of continued funding for the office of Belonging and Community Justice (BCJ), expansion of protesting rights and increased training for Emory Police Department officers. The authors have asked all members of the Emory community to sign their names onto the letter in support. As the leaders of Emory College Republicans, we are reluctant to become signatories because we have serious reservations regarding, not the spirit of the letter, but a specific policy demand made therein. We believe that the proposed additions to Section 8.14.5.5 of the Universitys Open Expression Policy present a clear and present danger to free expression on campus.

We understand and support the need of black students on campus to have access to resources and programming opportunities. As strong advocates for the freedoms of speech and assembly, we also support the request to amend Section 8.14.7.3 of the Open Expression Policy. Having more than one official determine the conclusion of a student protest will help ensure that students voices are not unnecessarily silenced. Minority students face a very specific set of challenges on campus and we support policy aimed at mitigating these difficulties. That said, when such actions impede free speech, as they do in the proposed amendment to Section 8.14.5.5, we feel obligated to voice our concerns.

Section 8.14.5.5 of the Universitys Open Expression Policy lists violations of other policies that relate to open expression These include, but are not limited to, violations of federal, state or local law, interference with the general operations of the University and other guidelines that may be influenced by open expression. The letter requests that administrators amend Section 8.14.5.5 of the Open Expression Policy to curb the dangers of threats to deny education based on religion, race, sex, gender or sexual orientation. While we acknowledge this may make students feel more comfortable on campus, we also believe that these guidelines may, in some cases, harm student discourse. Higher education has value precisely as a setting in which students can face and learn from unfamiliar opinions. Confronting ones own beliefs is an essential aspect of an intellectually fruitful environment and is a necessary step one must take to become an active participant in campus dialogues. Stifling such challenging voices not only prevents the community from objecting to their assertions but also allows these individuals to face no social retribution for their prejudiced beliefs.

The American Civil Liberties Union (ACLU), which advocates for the civil rights of police brutality victims, stands united with us against restrictions of free expression. As its page on campus speech states, where racist, misogynist, homophobic, and transphobic speech is concerned, the ACLU believes that more speech not less is the answer most consistent with our constitutional values. Ceding the power to punish speech to an institution that minority groups, as is evident in the aforementioned letter, believe to be ignorant of their needs could not possibly result in greater respect for free expression. We share the concerns regarding administrators abilities to resolve issues in an unbiased manner and, as such, we naturally oppose such expansion of administrative power. While we are genuinely empathetic to the feelings of alienation held by many students at Emory, allowing the University to arbitrarily censor speech it deems to be hateful under the vague guidelines provided in the letters request to amend Section 8.14.5.5 is not the answer. It would not only fail to assuage these feelings but also unjustly silence students voices.

Our goals are similar to those espoused in the letter promoting student safety and increasing student body engagement with the community but we are concerned that its approach to doing so will stymie meaningful dialogue. The place for controversial or even provocative arguments is in the classroom and in community demonstration, not ambiguously-phrased restrictions on speech. The University robustly protects political dialogue, yet has shown itself entirely willing to investigate and punish bad actors who intend only harm, such as occurred following anti-semitic vandalism at the Alpha Epsilon Pi fraternity in 2014. We support many parts of the letter, including continued funding for BCJ, expansion of protesting rights and increased training for Emory Police Department officers, but we are deeply concerned that proposed regulations of student speech and activism will suppress dialogue on a campus that has shown unique respect for student voices.

Jasmine Jaffe (22C), Sean Anderson (22B), Robert Schmad (23C), David Gaviria (23C) and Davis Van Inwegen (22C) are members of the executive board of the Emory College Republicans.

Link:

Student Letter to Admin Well-Intentioned but Stifles Free Speech - The Emory Wheel

JURIST Student Guest Columnists Deepali Bhandari and Deeksha Pokhriyal of NALSAR University of Law in Hyderabad, India urge change in the UAPA legislation...

The plight of Indian journalists is not in hiding anymore as it has been ranked 142 on the World Press Freedom Index 2020. The government has time and again introduced new laws to curb freedom and violate the rights of the citizens.

The Unlawful Activities (Prevention) Act 1967 (UAPA) was developed as an anti-terrorism law to prevent such unlawful activities association and maintain the sovereignty and integrity of India. Throughout the years it has been amended for effective application and to serve the primary intent of the act.

The UAPA has been amended on multiple occasions to incorporate the changing techniques of terrorism, from shifting the burden of proof to making extra-territorial arrests. The most recent amendment that came was the Unlawful Activities (Prevention) Amendment Act, 2019 (UAPA, 2019) which dealt with expanding the definition of terrorist to include individuals under Section 35 and 36 of Chapter VI of the Act. It allows the DG of NIA seizure of property from proceeds of terrorism under Section 25 and the powers of officers with the rank of inspectors and above to investigate cases under UAPA Section 43. A Review Committee to denotify the individual notified as a terrorist is also constituted by the Central Government thus removing all the chances of any institutional mechanism for judicial review.

The primary objections to the Amendment are under Section 35, in addition to the categorization of organizations as terrorist organizations, extended the power to include within its scope the categorization of individuals as terrorists as well. Secondly, the new Amendment is contrary to the principle of innocent until proven guilty and also violates the International Covenant on Civil and Political Rights, 1967which recognizes the mentioned principle as a universal human right. Thirdly, it is being used to repress rather than combat terrorism since the amendment provides that designation of an individual as a terrorist would not lead to any conviction or penalties. Fourthly, no objective criterion has been laid for categorization, and the government has been provided with unfettered powers to declare an individual as a terrorist.

Petitions Challenging the UAPAs Constitutionality

A Public Interest Litigation (PIL) was filed by Sajal Awasthi against UAPA, 2019 in the Supreme Court to declare it unconstitutional as it violates basic fundamental rights. He said it indirectly curtailed the right to dissent and was against Articles 14 (right to equality),19 (right to freedom of speech and expression) and 21 (right to life) of the Indian Constitution. Furthermore, it does not provide any opportunity to the individual termed as a terrorist to justify his case before the arrest. The petitioner also said that

Right to Reputation is an intrinsic part of [a] fundamental right to life with dignity under Article 21 of the Constitution of India and terming/tagging an individual as terrorist even before the commencement of trial or any application of judicial mind over it, does not adhere to procedure established by law.

Another petition filed by the Association for Protection of Civil Rights (APCR) contended that the new Section 35 allows the Centre to designate an individual as a terrorist and add his identity in Schedule 4 of the Act while earlier only organizations could be notified as terrorist organizations. The amendment does not specify the grounds of terming an individual as a terrorist and that conferring of such a discretionary, unfettered and unbound powers upon the Central government is antithesis to Article 14.

Another instance of the usage of the draconian UAPA was seen when the Delhi Police booked Umar Khalid (Jawaharlal Nehru University (JNU) student leader) and Meeran Haider and Safoora Zargar (2 other students of Jamia Millia Islamia (JMI) University) under UAPA. The students from JMI were arrested for allegedly hatching a conspiracy to incite communal violence over the CAA which the police said was a premeditated conspiracy.

The UAPA Undermines Human Rights Guarantees

The Amnesty International Executive Director responded to the news that the Jammu and Kashmir police invoked UAPA against journalist Masrat Zahra under Section 13 for uploading anti-national posts on Facebook with criminal intentions to induce the youth and glorifying anti-national activities and Peerzada Ashiq for stories on diversion of COVID testing kits said that it signals the authorities attempt to curb the right to freedom of expression. This intimidation against journalists endangers the attempt to address the COVID-19 pandemic. The police validated the cases brought against the journalists saying that Masrat Zahras post could provoke public to disturb law and order and Peerzada Ashiqs story could cause fear or alarm in the minds of public. He also said that UAPA has been used to target journalists and human rights defenders who criticize government policies.

The Jammu and Kashmir police had also invoked Section 13 of UAPA against people who were accessing social media through VPNs to dodge the longest ever internet ban imposed by the government when it scrapped Article 370 of the constitution to divide the state into two centrally administered UTs. The government said that it was done to curb the misuse of the sites by miscreants for propagating false information/rumors. However, there should be a real threat to the security of India if a person is to be charged under such provision and any utterance on social media should not be treated as one which causes or is intended to cause disaffection against India.

UAPA being a piece of security legislation allows the government to arrest the citizens that might commit crimes mentioned under it. It is problematic legislation for various reasons.

Firstly, it does not allow dissent. It criminalizes mere thoughts and political protests that cause disaffection with the state. It is an assault of citizens right to expression which is also a collective right of groups and unions to disseminate their views and UAPA majorly targets this right. Secondly, it can simply be used to bypass fundamental rights and procedures. For instance, those arrested under UAPA can be incarcerated up to 180 days without a charge sheet being filed. It thus directly violates Article 21 of the constitution. Thirdly, it confers upon the government broad discretionary powers and also authorizes the creation of special courts with the ability to use secret witnesses and to hold closed-door hearings.

It is being used to suppress dissent through intimidation and harassment thus threatening the very existence of public debate and freedom of press and criminalizing the performance of civil liberties.

UAPA empowers the parliament to restrict the rights and freedoms of citizens to protect the sovereignty and integrity of India. The Government contended that the amendment was brought because it is the individuals who commit the terrorist acts and having power only to designate organizations as terrorist organizations would be of no use because those individuals could continue their activities under a different name. But the issue still remains whether the parliament under any circumstance can classify the individual as terrorist only because it believes him to be involved in terrorism without any trial or whatsoever. The RSS itself in 1992 had been declared unlawful under UAPA but individual members were not arrested on solely being a part of the organization. Vajpayee in his speech in 1993 apprehended that the Government would declare all the opposition as unlawful. The government, however, keeps asserting that they bear no malice and only seek to keep the country united against existential threats. Hence, it is clear that this law can be used as a tool against the opposition and attacks the very importance of speech in a democracy in the name of security.

Conclusion

The government has time and again used draconian laws such as sedition and criminal defamation laws to silence dissent. These laws are vaguely worded and overly broad and have been used as political tools against critics showing a movement towards thought-crimes. The legislature in realizing the purpose of this Act has eroded human rights. The Amendment also violates the mandate of Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The above arguments have pointed out how the amendment puts fundamental rights of its citizens in peril and threatens the mere existence of opposition. Under the guise of such laws, the government has booked journalists doing their jobs and citizens fighting for their rights and justice.

When such horrendous legislation violates and takes away the rights of citizens, it becomes the duty of the Supreme Court to step in and restore faith in democracy. This Amendment reflects the intention with which laws were made under the colonial regime in order to curb several freedom movements under the veil of ensuring public order. The Act mainly criminalizes acts on the basis of ideology and association. Thus, it can be seen that the above are the signs of moving from democracy to autocracy.

Deepali Bhandari is pursuing B.A.LL.B (Hons.) at NALSAR University of Law, Hyderabad, India. She has a keen interest in constitutional law and public policy.

Deeksha Pokhriyal is pursuing B.A.LL.B (Hons.) at NALSAR University of Law, Hyderabad, India. Her area of interest lies in the field of constitutional law and human rights law.

Suggested citation: Deepali Bhandari and Deeksha Pokhriyal, The Continuing Threat of Indias Unlawful Activities Prevention Act to Free Speech, JURIST Student Commentary, June 2, 2020, https://www.jurist.org/commentary/2020/06/bhandari-pokhriyal-uapa-free-speech/.

This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at commentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

Original post:

The Continuing Threat of India's Unlawful Activities Prevention Act to Free Speech - JURIST

A number of outlets have reported that social media use has significantly increased during the COVID-19 pandemic, as many are quarantined at home with time to kill. Meanwhile, just as social media use has spiked, the circumstances of George Floyds death have led to daily protests throughout the nation. In the midst of this perfect storm as Americans take to their smartphones, tablets, and laptops to argue their views on complex societal concerns, a tricky issue has presented itself to employers what to do if an employee posts racist or other objectionable content on his or her social media feed?

There are several issues at play with this quandary. First and foremost, as we have previously reported, in contrast to public-sector workplaces, private employers are not bound by the First Amendments right to free speech. Public-sector employers have to tread more cautiously in dealing with employee expression issues. Unlike their public-sector counterparts, employees in the private sector do not have free speech rights at work as a general proposition. Nevertheless, as a best practice, employers should limit disciplinary action, including termination, for online conduct to scenarios in which the conduct violates the employers articulated policies. To that end, employers should ensure that the companys anti-harassment policy specifically applies to online conduct, including postings on social media. Likewise, in this day and age, all companies should have social media policies that incorporate the companys anti-harassment policy. If your company has a code of conduct, online conduct should be addressed there as well.

In addition to having policies that prohibit discrimination or harassment online, companies must enforce these policies consistently. In other words, if an employer learns that an employee used a racial slur online and disciplines the employee for this conduct, the employer will need to act consistently in similar situations that involve potentially discriminatory or harassing conduct. Likewise, an employer that has a history of terminating employees for obscenity, but does not similarly punish employees who disseminate racist statements (either online or in the physical workplace), may find itself on the receiving end of a discrimination claim.

Finally, depending on location, there are also state laws to consider when taking action against an employee for a social media post. For example, in some states, political affiliation is a protected class, and thus, employers must be careful that the offensive post is not directly tied to an employees political affiliation. Likewise, some states prohibit terminating an employee for lawful off-duty conduct. Online speech that attacks a protected class or constitutes actionable harassment, however, would not fall into that category.

These are tricky issues, often directly impacting an organizations core values. In addition to potential legal liability, an employers approach to an objectionable employee posting can have wide-ranging effects in terms of employee morale and public perception. A decision regarding whether and how to best respond should be taken carefully, and should take all of these considerations into account, including the advice of legal counsel.

[View source.]

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You are my Employer, not the Thought Police Employee Online Activity in a Time of Turmoil - JD Supra

This is a rush transcript and may contain errors. It will be updated.

Marc Steiner: Welcome to The Real News. This is Marc Steiner, and its great to have you all with us once again.

Every day, there are new signs that our right to free speech, that freedom of the press we hold so dear, our right to assembly, our rights to protest and speak our minds, are being undermined and threatened by the Trump administration and state governments around the country. Last Thursday, Trump signed an executive order that would eliminate legal immunity for social media companies like Twitter, who hes angry at. It seems to be completely illegal.

Since the 2016 election, our guests, as youll find out in a moment pointed out in her Atlantic article, that the anti-protest legislation has grown exponentially, over a hundred bills introduced, 23 passed, inside of state legislatures. Armed protesters are treated with kid gloves and lauded by the President, when he talks about shooting looters and calling out the US army to stop protesters, in the wake of the death of George Floyd.

Were joined today by Nora Benevidez to discuss the threat towards civil liberties or democracy, and how we address it. Shes director of the US Free Expression Programs for Penn National here, which is part of Penn International, and joins us to talk about these issues that we all face. Nora, welcome to The Real News. Good to have you with us.

Nora Benavidez: Hi, Marc. Thank you.

Marc Steiner: Always a pleasure to talk to you. So lets open this tweet that you had that was put out by The Atlantic about your article. The tweet was, The First Amendment is no good if it is used protect one side of the political spectrum, but disregarded by the other. So lets talk a bit about what were facing in a larger scale here.

I mean, your piece, [inaudible 00:01:34] its weighed on the state legislatures, which is where the rubber meets the road, in some levels, when stopping protests. But the reality is that theres this overarching push at this moment that leaks out, or a real threat, to what weve come to expect to be our every day rights. So outline that for us, in terms of your work.

Nora Benavidez: Absolutely. Well, its great to be here. You know, I think one of the things were seeing is that there is sort of a narrative shift. And protest is seen as criminal, but only if youre exercising it and promoting certain views.

I thought back at the very, very beginning of these protests and the movement in the wake of the killing of George Floyd. I thought through how anti-lockdown protests were viewed, and the way they were treated back in April and in May, and how different were seeing law enforcement reactions now.

And of course, there are always these counterarguments where people say, Well, theres violence, but most of the protests that are happening, and a lot of the protesters are marching and exercising protected First Amendment rights. And theyre being met with tear gas, rubber bullets, journalists are being attacked and sought out by law enforcement, and arrested, in these sweeps to pull them away from reporting.

And I think that, when we compare it with what happened during the anti-lockdown protest, weve seen generally very little that law enforcement did to crack down, or even try to limit what people were doing during that phase. And so, it just seems to point to, at a higher level.

We can get into the legislation and the trends that weve seen in our PEN America report. But at a very high level protest is criminal, if youre promoting certain views. And if you are dissenting, if you are black, Indigenous or another person of color, so much of what weve witnessed is this really targeted assault on First Amendment rights.

Marc Steiner: So I want to start with this one piece, because I think its emblematic of what were the dangers that were facing at the moment. I mean, and this is not the heart of your discussion. I just want to start here, and well get into the heart of what youve been talking about and writing about, and with the report that PEN released.

But when you see President Trump attacking Twitter, after they fact checked him, and saying that they have unchecked power, and that hes going to limit their right to not be held liable for things that are said on Twitter, which is, it resists section 230 of the Communications Decency Act, which hes trying to use, but its actually the opposite of that.

And so, when you see that, because it becomes, it ends up becoming this popular will of the people who support him, that he speaks to with this. And therein lies the danger to me, is that we are facing this serious authoritarian tendency.

Nora Benavidez: Absolutely.

Marc Steiner: And I dont like to use the word fascist, because thats supposed to be specific about a political regime, but theres increasing authoritarian tendencies. And I think this is, thats why this, to me, is so dangerous, because of how its happening, and where its coming from.

Nora Benavidez: Absolutely. I mean, we live in a democracy, or we purport to, where our elected officials represent us, and where they represent and participate in democracy, by representing our views. And were now in this phase of a completely undermined authority.

We have a leader that is targeting truth, I think, that is targeting, then, the ability for people to promote ideas, and to really just connect with each other in that marketplace of ideas. Thats what our platforms and social media do.

They open up space for people and in the Presidents moves to yet again, try to limit, or decide what is allowed on those sites, its really just kind of a double down of tactics weve seen him display over the last several years, and even before his presidency.

As President, we know, for example, that part of what hes done is target reporters, when he dislikes their coverage. He removes people from press briefings. The administration generally has a antagonistic view, where they denigrate reporters and coverage, which somehow portrays the administration in ways that it does not like.

That really is this permeating tone towards anything that is dissenting, that anything that tries to unearth a story that the administration and leaders do not want, they try to censor it, which is frankly Authoritarianism 101. That is sort of that precursor step that weve seen in other contexts.

As an organization that monitors that slow, slow step away from democracy, weve been really troubled by the issues and the practices, and frankly, the rhetoric in this country. And the executive order, I think, is just one example, where Im not even sure its exactly enforceable as an executive order, but it also just begs the question of, what are our leaders doing?

And its hard. I really think that Trump is succeeding in trying to create his own narrative, a narrative that undermines truth, and really undermines our shared ability to agree on things, which is, I actually think, at the heart of it, the underpinning of our democracy.

If you and I are not able to connect over the most basic issues, the most basic truths and the foundation of society, were not going to be able to vote on our candidates that are running for office. Were not going to be able to then think about what we actually believe in, because everything is suffering from a lack of, and an undermined, credibility.

Marc Steiner: I want to talk about how some of the things are connected here, that are happening to us, that you wrote about in your article in the Atlantic, and also the PEN Report.

Nora Benavidez: Yeah.

Marc Steiner: But let me start with PEN International and PEN America for a moment. I mean, this is an organization that has been, that over the decades, has been fighting for freedom of speech and freedom of the press across the globe. And Im very curious, and I think many of our viewers would be very curious, about the conversations that may be taking place with you, among you now, here in this country and around the world, when you all of a sudden have to focus on the United States.

I mean, when the organization first was set up, it was wanting to focus on all authoritarian regimes around the country, around the world and what was happening, but those focal points are here in our country, allegedly the worlds greatest democracy. And that, to me, is just very telling, and extremely chilling.

Nora Benavidez: Well, we were founded, I think back at how corny it sounds, we were founded almost a hundred years ago, and it was right after World War One. I remember writers really came together all over the world, concerned about how words would be used, how words could be weaponized, whether that is censorship of writers and opinions, or the use of propaganda.

And frankly, everything that those writers and our founders were concerned about, I think, were seeing play out again and again and again. And its been almost a hundred years, and those issues, whether its disinformation, whether it is dissent and dissidence, its. Frankly, the same issues. And so, Im very proud, frankly, to be able to defend free expression.

From our membership base, we see people who are just exhausted by the assault on truth. And we want to engage with them as much as possible, to try to bring together and create a moment of solidarity where we can. Because I think its just, its a very painful, painful moment.

Marc Steiner: Lets just dive into some of that. I mean, one of the things you talk about a lot in your article, and the PEN Report, have to do with all the laws that have been enacted around the country by state legislatures over the last several years, that really limit protests and speech.

And youre seeing it now also being played out in the demonstrations that were seeing, with the kind of violent reaction that theyre getting, even to the nonviolent protest. So I mean, so what exactly has been happening in these last four years that may be flying under the radar, that most of us dont see around the country?

Nora Benavidez: Well, its a great question. I remember from the outset of the report, weve known that targeting of activists is often an issue. And certainly, were building on years of looking at how journalists are targeted, and what kinds of voices get silenced. But I noticed, in a very informal way, slowly, that I was seeing more and more and more bills being proposed across our country that are trying to limit protest rights.

Frankly, from the outset, we did not want to assume that that was politically motivated. And we started by analyzing bills introduced across the country in 2015. Frankly, in 2015 and 2016, there were very few bills proposed at all that would limit protest rights.

Then, in 2017, following Trumps election and his becoming President, and then many state legislatures flipping and turning red, where they were Republican majority, we saw a surge of dozens and dozens of bills proposed at the state level, that really seemed inspired by recent protests.

What weve found is that there are over a hundred bills, 116 total, that have been proposed over the last five years, all of which target our protest rights. And often legislators are pretty candid in saying that they introduce these bills, inspired by recent events, targeting protests, which really begs the question of, Well, what is their role, and why are they introducing these other than, or if only to, chill our First Amendment rights?

Marc Steiner: I mean, and its not something to just take lightly. I mean, one of the things thats pointed out by PEN is that since this has been happening, 14 protestors and one journalist were arrested, under the provisions being passed for these various state governments. And so this is just beginning.

And when you tie that to the President of United States, saying in a Tweet, that Minneapolis protestors were thugs and what he said in his other places, knock the crap out of demonstrators, but then talking about the very good people that were walking in armed to state capitals. I mean the juxtaposition of those things, is glaring, at best.

Nora Benavidez: Well, let me break I agree. I totally agree. And let me break down a couple of things that we observed.

Marc Steiner: Please.

Nora Benavidez: Some of the key findings, if you will. Again, we really wanted to start by assuming it was not politically motivated, and not really targeting certain protest movements. But unfortunately, out of the 116 bills that we analyzed, the great majority are really introduced in the wake of highway protests that are led by black activists and Black Lives Matter, and then bills that criminalize protests around pipeline or other construction sites, which we know are motivated by Dakota pipeline protests.

And so, when you look at the totality of these bills, that is over 60 bills, for example, that just criminalize minority-led movements. And it really seems to highlight that protests happen, and then legislators introduce bills to target those protesters.

Over and over again, weve really seen this conclusion in all of our findings, that protests happen. And then, especially in the states where there are massive demonstrations, Minnesota, Missouri, North Dakota, those also then have the highest number of bills that are getting introduced. And frankly, not all of these bills pass.

That is something that we try to reiterate over and over in the report. Out of 116 bills, only 23 have become law, and only two of those have been challenged legally. And so what were facing is a few things.

I think, one, were seeing that its really hard to challenge these bills. So many of them are kind of okay constitutionally, that they might pass muster. And were just not sure how theyll get applied.

We also see that given that so many bills get introduced, even if they dont become law, I think there is this effort on the part of legislators to just create that narrative, that protest is criminal.

So many of these bills are redrawing the line of whats acceptable or lawful protest. So if you are in a protest of more than 15 people, that could potentially in some states now be seen as a riot, or as unlawful conduct.

That is absolutely antithetical to our First Amendment. Its antithetical to years of cases and precedent where we know that our rights, to march, to demonstrate, are all protected by the First Amendment. And so, when we see bills getting introduced, dozens of them, that lets say, criminalize people marching on a highway, well, one, weve seen legislators admit that they introduced these to target protestors.

We already have criminal statutes on the books. We have highway obstruction as a misdemeanor charge. And so its just creating this chilling effect, targeting protesters, and targeting specific protestors.

Marc Steiner: So you have that in concert with a couple of things going on here. And I think theyre connected. I mean, when you have a Donald Trump calling out the US Army in Washington, DC, and threatening to do so in States and the argument being played out now, whether or not thats even legal, is it legal or isnt it legal, with Posse Comitatus, or is it the Insurrection Act of 1807, 1871, and how those two play, how those play into this, what that legal argument might mean, and you see that happening, and actually, these cases being challenged.

And now, over one third of the federal judgeships have been named by the most right wing conservative legal minds in this country, given the names of Donald Trump, who appoints them to a court, and the Senate approves them. So I mean, theres a real intersection here, I think, that I think Americans need to be aware of.

Nora Benavidez: Absolutely. And a colleague of mine equated it to voter suppression, that this happens slowly.

That over time, the whittling away of our constitutional rights is something that happens often when were busy, when were marching, for example, or where, in the middle of a pandemic, we are not able to actually go to our state capital, potentially, and voice concern or upset or hold our legislators accountable.

And so, under that cover of, frankly, the pandemic and everything were seeing here, it really kind of, at least leads me to be concerned that, over the next several years, were going to continue seeing this assault on the right to protest.

Ive already noticed that at least one governor has talked about the need to introduce bills to continue to target protesters in 2021. And so its sort of like, in a very surreal, prescient way, looking at what were doing now, and will that lead to potential future efforts to crack down on protesters?

And so, we need to be vigilant and think through what are the consequences, if we dont have legislators that are really representing us?

Because there are some actually fantastic legislators, some that we mentioned in the report that have been marching with protestors, that say, If this bill passed, I would have been thrown in jail and prosecuted.

Those are the things that we need to be spotlighting, highlighting with our colleagues, highlighting with allies. I think the other element, though, in all of this, is that narrative piece that Ive brought up.

Were seeing more disinformation than ever surrounding the protests, where there is so much confusion already surrounding, do I attend a protest? What are the ramifications in a pandemic context? And what were seeing are people, bad actors promoting fake protests, encouraging people to come out where protests are not happening.

Were seeing photos and videos taken from years ago, or in different countries. And theyre being appropriated and made to seem like those are protests happening now and theyre violent. And so, its really this perfect storm, where were confused.

People are upset, wanting to come out, and come together. And yet is just this, were riddled with a false and misleading narrative that whats happening is criminal. And we need to unpack that. And frankly, I think its a misconception so much of the time, where journalists doing their job should not be arrested.

Protesters who are peaceful, who are even filming other protesters, and begging them to not be violent, those people should not be arrested. And yet the kind of online narrative that were seeing is just that this is, it warrants the kind of over militarized reaction from local, state and federal law enforcement.

Marc Steiner: Let me just finally ask you this, then, Nora. Im curious, what are PEN or other groups going to, or what are you doing, in terms of countering this? And what are you suggesting people do, and organizations do?

Nora Benavidez: Well, one, I think, frankly, please read the report. Because I have seen a dearth of information and resources that actually point out these lopsided First Amendment rights.

If we know that legislators are doing this, we are that much more, better positioned in 2021 to fight these types of proposals. And where there will be proposals, because I am sure they will crop up in 2021, were ready to fight back against them, but we want to do that with local partners.

And so, in the various states that weve seen bills introduced, were monitoring the situation, were looking at, how can we maximize that redo and the recrafting of a narrative here, that protest is not inherently criminal? That means engaging with legislators, trying to educate them about that, educating them about the very serious costs of introducing bills that are unconstitutional, and then working with our allies in various cities and States.

Right now, I think theres a moment where, frankly, Im glad our report is out in the world, but there are much bigger issues. And were trying to listen and hear from our partners, hear what people are wanting and needing. And I think when it comes to the legislative and policy issues, were ready to fight back, and try to challenge those problematic and unconstitutional bills.

Marc Steiner: Its been a really interesting conversation. Weve been talking with Nora Benavidez, who is the Director of US Free Expression Programs with PEN, and talking about that new report that came out, that we will be linking to, as well, because its something we all have to read and understand, and know where were going, arresting dissent, legislative restrictions on the right to protest.

All of it should take a look at that and read it and think about it. And once again, Nora Benevidez, thank you so much for joining us. Its a pleasure to have you with us.

Nora Benavidez: Thanks, Marc.

Marc Steiner: And Im Marc Steiner here for The Real News Network. Let us know what you think. Take care.

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Creeping Authoritarianism Threatens Free Speech And The Free Press - The Real News Network

Immigration agents are facing accusations of targeting protesters who are recipients of the Deferred Action for Childhood Arrivals program, or DACA.

Police in Phoenix, Arizona, arrested community activist Mxima Guerrero as she was leaving a protest on May 30 with a group of legal observers.

She was one of three DACA recipients arrested over that weekend in Phoenix.

Democracy Now! gets an update from Sandra Castro Solis with the Phoenix-based grassroots immigrant justice group Puente Human Rights Movement, who says that despite the risks, were in a moment where people want to be out in the streets building that solidarity.

Democracy Now! produces a daily, global, independent news hour hosted by award-winning journalists Amy Goodman and Juan Gonzlez.

Our reporting includes breaking daily news headlines and in-depth interviews with people on the front lines of the worlds most pressing issues.

On DN!, youll hear a diversity of voices speaking for themselves, providing a unique and sometimes provocative perspective on global events.

Missed an episode? Check out DN on FSTV VOD anytime or visit the show page for the latest clips.

#FreeSpeechTV is one of the last standing national, independent news networks committed to advancing progressive social change.

#FSTV is available on Dish, DirectTV, AppleTV, Roku, Sling, and online at freespeech.org.

Amy Goodman Arizona DACA Democracy Now! Free Speech TV Immigration Phoenix Sandra Castro Solis United States

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DACA Recipients Want to Be in the Streets Building Solidarity But ICE Arrests 3 at Phoenix Protest - Free Speech TV

Black student leaders met with interim LSU president Tom Galligan and other school administrators for over an hour Monday to resolve the university's heavily criticized initial response to an incoming student who was caught on video yelling a racial slur.

LSU's initial response, students in attendance said, made it seem like there was no process in place to hold the incoming student accountable. But, during the meeting, Galligan and school administrators assured the students such a process was indeed in place for students who make blatantly racist remarks.

Galligan did not disclose the specific consequences, if any, the incoming student will face, citing privacy protections under the Family Educational Rights and Privacy Act; but the student leaders presented a list of changes they wanted made to LSU's student code of conduct that would cover future scenarios and provide more clarity and explicit language that pertains to offensive language towards minority groups.

"Changing or editing or revising the code of conduct is positive," said Devin Woodson, a 20-year-old junior and co-chair of the LSU Black Male Leadership Initiative. "But to end racist speech anywhere in America, especially at a university level, it has to be more than just the wording. We have to make sure we're keeping everyone accountable."

On Friday, Drew Dollar, a confirmed admitted student at LSU from West Monroe, was shown in a shared video on Twitter yelling, "I hate n******."

Skai Jackson, an actress and author, shared the video plus Dollar's Instagram account and asked followers to call and email his school. "Someone like him shouldn't be able to attend college," Jackson posted.

Jackson's video had 541,200 views as of Monday evening.

Dollar's Instagram account is now either private or deleted. Attempts to reach Dollar were unsuccessful. In another shared video on Twitter on June 4, Dollar posted another private or deleted video in which he said:

"Um. F***. I can't do nothing about it. I can't do nothing about it. I mean, if you actually, like, knew me, knew me, you'd know that's not actually what I, like, think. It's literally just like a meme, which is obviously bad. I know that. But, yeah, you're right. I can't deny it. Just please have some mercy, yeah, please."

LSU's official Twitter account responded to several complaints about the video with a repeated statement that included a link to a complete statement.

"To be clear, we at LSU condemn hate and bigotry in any form, including racially incendiary remarks," the statement read. "As a state university, however, we are subject to constitutional limitation on our ability to take action in response to free speech."

LSU's tweet was met with widespread condemnation from alumni, former and current LSU athletes and students.

It also threatened to undermine the efforts Galligan and LSU administrators made to engage the campus' black community in the midst of nationwide protests against police brutality and racial inequality.

Last Wednesday, Galligan stepped in the middle of a circle of about 300 people at a student-organized protest, BlackOutLSU, near Middleton Library and said into a loudspeaker "black lives matter."

"So I pledge," Galligan said then, "for as long as I am your interim president, that I will work with you to do something about it. All right? And the place to start is home, what can we do on our campus to make it a better place."

LSU's initial response also struck a nerve within a community that had experienced racism on campus for decades most of which dealt with the same issue of speech.

In September, a student was accused of insulting other students with racial slurs at a football game at Tiger Stadium. LSU's now-disbanded Delta Kappa Epsilon fraternity members regularly hung racist public messages on banners on football game days. The happenings were regular enough, that, in November 2015, a hanging wire from a tree was mistaken for a noose.

"I do believe it's building up," said Stewart Lockett, 23, who was LSU's third black person to be Student Government president. "I think it's going to build up to a point and people are going to be so frustrated, they won't be able to take it any longer."

Cambryn Crier, president of the LSU Chapter of the NAACP, helped organize BlackOutLSU, which assembled black student leaders and opened up a dialogue with LSU administrators.

They agreed to meet via Zoom on Sunday, and, when the social media fallout occurred with LSU's initial response, they agreed to meet on Monday. The coalition will meet again on Tuesday and Wednesday.

Monday's meeting had 20 members, and, along with Galligan, school leadership included LSU Board of Supervisor Chair Mary Werner, board member Robert Dampf and executive vice president and provost Stacia Haynie.

Within the meeting, LSU leadership apologized for the tweet. The university also posted an apology on Twitter late Monday night. Restricted by privacy laws, they only reassured the student leaders that there was a process in place within the school's student code of conduct.

Galligan said in an interview with The Advocate that LSU "will, in fact, investigate every incident of racist behavior that we learn about and we will take action if appropriate under our student code."

LSU's student code says the school "has the legal right to establish standards for academic and personal conduct for continued membership in the University community, to deny membership to those who do not meet these standards, and to impose outcomes and discipline on any Student who is found in violation of these standards.

Law experts say several public universities have such language in student codes, but, since they are public schools, and therefore attached to the state government, any school rule is trumped by federal law, including the First Amendment.

Ken Levy, an LSU law professor, said if Dollar is denied admission, LSU could expect a First Amendment lawsuit. Jonathan Peters, a faculty member at the University of Georgia School of Law, said court cases, such as Papish v. Board of Curators (1973), have set precedent that Dollar could indeed win such a suit.

If Dollar is denied entry, it could set a precedent for infringement upon other types of speech assumed to be free under the law.

However, the University of Florida, dealing with a similar issue, announced Monday night that a prospective student who posted racist comments on social media "will not be joining the University of Florida community this fall."

But if such a student were indeed admitted to LSU, how would Galligan reconcile that decision with his pledge to black student leadership?

"I am committed to change," Galligan said. "I can't, again, speak on individual cases. And, so, I can say that I am committed to change. I'm also committed to the value of free speech. But free speech is not unlimited."

"Maybe the better way to put it is the right to speak is not unlimited," he continued. "It is very protected, but under the appropriate circumstances, it may be regulated."

Yet, some black student leadership have made it clear that allowing Dollar to attend LSU would prove contrary to the school's promises for racial justice.

"He literally said he hates n******," said Devin Scott, an 18-year-old sophomore, who is LSU's Senate Vice Chair of Student Life, Diversity and Community Outreach. "Once you go that far and its blatant that its coming out of a place of hate and not out of you disliking something. Its no slippery slope at all. Its just clear as day that this is hate speech and he should not be allowed to come to LSU."

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Day after LSU's bungled response to racist video: An apology and meeting with black student leaders - The Advocate

As BroadwayWorld previously reported, the Actors Fund, the national human services organization for everyone in performing arts and entertainment, has teamed with SiriusXM Broadway host Seth Rudetsky and his husband, producer James Wesley, to produce a daily online show, entitled Stars in The House, featuring stars of stage and screen singing and performing live (from home!) on social media to promote support for The Fund's services.

Stars in the House continues today (2pm) with Plays In The House: Free Speech: Performing Artists and the Power of the Spoken Word with Gilbert Bailey, Gabriel Brown, Andra Burns, Michelle Liu Coughlin, Darian Dauchan, Samy Figerado, Ann Harada, Orville Mendoza, Ines Nassara, Karen Olivo, Nova Peyton, Christopher Richardson, Awa Sal Secka, Pearl Sun, and Jason Veasey.

New shows will be produced DAILY at the traditional theater times of 2pm and 8pm ET, featuring performances by stars of stage and screen, in conversation and song with Rudetsky and Wesley.

Current and past episodes can be found on the website starsinthehouse.com, as well as a donate button linking viewers to The Actors Fund.

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VIDEO: STARS IN THE HOUSE Celebrates Free Speech with Karen Olivo, Andrea Burns, Ann Harada and More- Live at 2pm - Broadway World

A federal appeals court on Monday said that prison guards who threw an inmate in solitary confinement for three months after that inmate expressed constitutionally protected free speech could not held liable for their actions, reasoning that the guards were entitled to qualified immunity.

The court ruled that while the guards punished the prisoner in violation of his First Amendment right to free speech, the right was not clearly established at the time of the incident, leaving the officers free from civil liability.

According to court documents, Dwayne Bacon, a prisoner at Federal Correction Institution in Ray Brook, New York, wrote a letter to his sister in 2015 stating that he wanted one of the female corrections officers at the prison.

[T]here is only one Black Woman here. I believe she is an Indian. She is very beautiful and healthy. I do want her but I want a few other Women as well, Bacon wrote.

After admitting he was referring to a specific officer, Bacon was placed in disciplinary segregation in the Special Housing Unit (SHU), also known as solitary confinement. In the incident report, the officers claimed Bacon had violated the prisons rules against making sexual proposals or threats, calling the letter to his sister an indirect sexual threat towards the safety of the officer. Bacon was slapped with 30 days in the SHU, though he claims he spent a total of 89 days in isolated confinement. However, a few months later, the prisons regional director reversed the disciplinary sanctions and had them expunged from his record after finding questions concerning the evidence relied upon.

Bacon filed a lawsuit alleging that he was punished in retaliation for writing a letterin violation of his First Amendment right to free speech. He claimed that the guards issued a false misbehavior report to have him placed in isolation.

A lower court ruled that Bacon was disciplined for making a threat rather than writing a letter.

A three-judge panel on the U.S. Court of Appeals for the Second Circuit found that, giving substantial deference to their decisions, the guards had violated Bacons constitutional rights but were still protected by qualified immunity.

Qualified immunity is a legal doctrine initially created by the Supreme Court which has steadily developed to prevent citizens from holding government actors accountable for constitutional violations enshrined in the Civil Rights Acts 1983.

The modern doctrine holds that qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.

However, in order for such a right to be clearly established, the particular conduct of the alleged violator must have previously been established sometimes meaning an earlier case involving virtually the exact same set of facts to such an extent as to place the statutory or constitutional question beyond debate. This is a subjective and often absurdly high bar for plaintiffs to clear.

[T]he issue is whether, at the time Bacon sent a letter to a third party 3 expressing his desire for a woman later identified as a female correctional officer, precedent from the Supreme Court or this court put prison officials on notice that they could not punish him for his statements in that correspondence, the panel wrote.It did not. The right therefore was not clearly established and the defendants hence are entitled to qualified immunity.

The panel concluded with a more concrete explanation of the holding that can be applicable in future cases.

We hold that the First Amendment protects a prisoners right to express non-threatening sexual desire in communications with a third party outside the prison, the decision stated before affirming the lower courts dismissal of the case.

Read the full order below.

Second Circuit QI by Law&Crime on Scribd

[image via Inked Pixels/Shutterstock]

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Inmate Wrote That He Wanted a Female Prison Guard and Ended Up in Solitary for 3 Months. A Court Granted the Jailers Immunity. - Law & Crime

Read: Donald Trumps unprecedented assault on the media

Although the actual legal effect of the order remains unclear, its intent is not. Democracy is impossible if private citizens cannot publicly oppose their leaders. The ultimate goal of Trumps retaliation is to chill criticism of his actions and behavior, by sanctioning online platforms that engage in such criticism. Contrary to the presidents claim, Twitter was not stifling free speech by criticizing the head of state. But in directing the federal government to punish Twitter and other social-media companies, Trump was engaging in a form of censorship.

Social-media companies have First Amendment rights. They are allowed to define their own terms of service, and to decide who is in violation of them. Twitter is no more obligated to let you use its service than a restaurant owner is to serve you if you are not wearing shoes or a shirt. This has worked to Trumps benefitalthough his posts frequently violate the terms of service of social-media platforms, his power and influence means that the companies are loath to remove him for his transgressions.

Nor would removing the liability protections of Section 230 necessarily lead to a fairer, less moderated internet. Although some conservatives, prodded by Republican lawmakers, have suggested that the laws protections are conditioned on platforms remaining neutral toward political viewpoints, no such provision exists in the text of the law, and such a requirement would raise its own free speech issues.

What Section 230 does do is keep companies from being sued when one of their users makes a defamatory claim, like falsely accusing someone of murder, as Trump himself has done repeatedly to the conservative cable-news host Joe Scarborough over the past few weeks. Trump, as president, enjoys some protections against defamation suits, but removing the protections of Section 230 would make online publishers more, not less, likely to moderate the things their users write, lest they be sued for a fraudulent or defamatory claim. Every restaurant review, comment section, or status update would become a liability risk for the company hosting them.

There is a genuine debate to be had about the limits of Section 230. As Sarah Jeong wrote in The New York Times last July, the liability shield prevents platforms from being sued for libelous claims made by users, but it has also been used to protect companies that refuse to take down revenge porn. The presumptive Democratic nominee for president, Joe Biden, has argued that Section 230 should be revoked to prevent platforms like Facebook from promoting false information. Senator Ron Wyden of Oregon, the lawmaker who wrote Section 230, has defended the provision, arguing that If you unravel 230, then you harm the opportunity for diverse voices, diverse platforms, and, particularly, the little guy to have a chance to get off the ground. Whether you think these arguments are good or bad, they are at least tied to what the law actually does. As Jeong wrote, there can be no honest debate over a version of C.D.A. 230 that doesnt exist.

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Trumps Warped Definition of Free Speech - The Atlantic

Twitter Inc. and President Donald Trump are generating headlines this week over a dispute tied to social networks attempts to moderate what users post.

But its hardly the first time that the San Francisco-based company has tangled with Washington over free-speech issues.

Twitter TWTR, -1.99% has lobbied this year and last year on a Senate bill called the Ending Support for Internet Censorship Act, according to an analysis of disclosures by OpenSecrets.org, a website run by the nonpartisan Center for Responsive Politics.

The measure, rolled out last June by Republican Sen. Josh Hawley of Missouri, would lead to Federal Trade Commission audits of big social-media companies for political bias. As Hawley introduced the legislation, the senator said it states that if tech giants want to keep their government-granted immunity from traditional publisher liability, the companies must bring transparency and accountability to their editorial processes and prove that they dont discriminate.

Trump praised Hawleys bill last July, saying the senator is doing some very important legislation, because we have to do something about what is happening. Hawley talked up his bill on Wednesday in the wake of the presidents latest fight with social-media platforms.

They get this special immunity from suits and from liability thats worth billions of dollars to them every year. Why are they getting subsidized by federal taxpayers to censor conservatives? he told Fox News on Wednesday.

Read more:Trump threatens to close social-media platforms as he fights with Twitter

Twitter and other social-media companies, on the other hand, have criticized the legislation through statements issued by their trade associations.

NetChoice, whose members include Twitter, Facebook Inc. FB, -0.16% , Alphabet Inc.s GOOG, +0.86% GOOGL, +1.07% Google and Paypal Holdings Inc. PYPL, +4.18% , said last June that the bill prevents social media websites from removing dangerous and hateful content, since that could make them liable for lawsuits over any users posting. The trade group also said Republicans should be very worried about Sen. Hawley giving control of the internet to the FTC, since it empowers a future Democratic administration to suppress conservative speech online.

The Internet Association said the measure forces platforms to make an impossible choice: either host reprehensible, but First Amendment protected speech, or lose legal protections that allow them to moderate illegal content like human trafficking and violent extremism. That shouldnt be a tradeoff.

Twitter has spent $350,000 this year on its Washington lobbying efforts as of March 31, according to OpenSecrets.org figures. Thats after the company spent $1.48 million last year its biggest annual outlay on lobbying ever, but far less than the $16.7 million that Facebook Inc. FB, -0.16% shelled out in 2019.

Besides lobbying on Hawleys Ending Support for Internet Censorship Act, Twitter has disclosed lobbying in the past year and a half on the Save the Internet Act, a Democratic measure related to net neutrality, and the EARN IT Act, a bipartisan bill targeting online child sexual exploitation. A company spokesperson said Wednesday that its Public Policy team advocates on behalf of our company, our employees and the people who use Twitter.

Analysts have said that there are so many different bills aimed Big Tech that the chaos likely will prevent Congress from making progress on any one issue.

On Tuesday, Twitter marked tweets by Trump with a fact-check warning label for the first time. The president then tweeted that Twitter is completely stifling FREE SPEECH, and he promised big action against the company.

See:Totally absurd Harvard law prof on Trumps charge Twitter is stifling free speech

Also read:Twitter deeply sorry as widower asks that Trumps Scarborough tweets be deleted but wont remove them

Twitters stock was down about 3% on Wednesday, as the broad S&P 500 index SPX, +0.48% gained 1%. The companys shares have lost 12% over the past 12 months, while the S&P has advanced 7%.

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Heres how Twitter has lobbied on free-speech issues as Trump threatens company - MarketWatch

When President Donald Trump made unsubstantiated claims on Twitter May 26 about mail-in voting, it fact-checked him inserting beneath his tweets a hyperlink to more information on the subject.

President Trump then accused Twitter of totally silenc[ing] conservatives [sic] voices and threatened that [w]e will strongly regulate, or close them down, before we can ever allow this to happen.

The president of the United States is threatening to censor social media platforms because he doesnt like what they say.

No more blatant and frightening violation of the First Amendment is possible, he said. The core of the First Amendments free speech guarantee bars government from restricting speech based on viewpoint. If the Trump administration makes any effort to regulate Twitter, even in ways that would not appear to violate the First Amendment, Twitters lawyers can and should point to the presidents threats as evidence of unconstitutional animus.

What about free speech by Trump and conservatives?

Twitter is a private company. Under basic First Amendment principles, Twitter can say what it wants and edit as it pleases, Magarian said. However, Twitter is also a distinctly powerful platform for speech. Some people argue that Twitter should have some obligation to protect and respect free speech principles, and those arguments have weight.

But Twitters decision to provide links to additional facts does not violate free speech principles, Magarian said.

Twitter has faced frequent, sharp public criticisms for taking no action when users post false, misleading and harmful statements. In this case, Twitter let Trump have his say. In fact, what Twitter did promotes free speech.

In fact, what Twitter did promotes free speech, he said. Twitter has faced frequent, sharp public criticisms for taking no action when users post false, misleading and harmful statements. In this case, Twitter let Trump have his say. Twitter then made an editorial judgment that publishing the presidents unsubstantiated claims about an important public issue justified giving Twitters users easy access to more information about that issue. Free speech principles are supposed to promote debate and make us more informed. Twitter did exactly that.

The presidents response to Twitters action broadly calls into question conservatives constant complaints that political correctness and (in Trumps words) the lamestream media silence right-wing speech, Magarian added. Conservatives have used communications technology very effectively to promote their viewpoints. What does it say when, facing the mildest and most constructive imaginable form of criticism, the conservative president threatens to censor his critics? Perhaps it says that conservatives like Trump dont really care about the free speech of anyone but themselves.

Social media platforms should promote free speech, Magarian said.

They should try to prevent misinformation, especially government propaganda, in ways that do not stifle the free exchange of ideas, he said. The government must not use its power to attack ideas it objects to. What Trump has said and done today betrays every one of those simple, crucial free speech principles.

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WashU Expert: Trump attacks on Twitter betray free speech principles - Washington University in St. Louis Newsroom

from the privacy-and-interoperability-go-hand-in-hand dept

When people mention the digital divide, often theyre referring to the divide between people who have access to the internet and those who do not. However, we can also visualize it as the divide between those who benefit from free expression on social media and other digital platformsand those who dont.

In order to get ahead of this burgeoning digital divide, policymakers will need to preserve the values of privacy and consumer choice in a way that one does not undermine the other.

This past February, the New York Times profiled Jalaiah Harmon, the creator of the viral TikTok dance, The Renegade. But Harmon didnt create the dance on TikTok; she used a smaller app, Funimate, and crossed-posted her video to Instagram. Instagram is where other popular TikTok creators first learned of the dance. TikTok, like many platforms, doesnt encourage posters to give credit to creators.

Instead of Jalaiah benefiting from the virality of her own dance, other TikTok users did. Those benefits include brand deals, media opportunities, and the chance to connect with the professional dance world. If Jalaiah had been able to easily cross-post from Funimate to TikTok, she may have been able to benefit from The Renegade right from the start.

Apps like Funimate, Dubsmash, and Likee offer smaller, vibrant communities, often popular with users of color and other marginalized communities. These smaller platforms may provide functionality that other apps dont, or they may just foster community in a way that appeals more to users that are not considered mainstream who want to preserve their unique culture. Apps like TikTok may not provide that opportunity, and that is okay when consumers have choices in the marketplace.

However, because these communities are smaller, users have fewer opportunities to monetize their creativity. These smaller applications also have a harder time benefiting from the creativity of their users. In the case of Jalaiah, instead of new users flocking to Funimate to check out Jalaiahs other videos, TikTok benefited from the dance and probably grew its user base because of it.

In Washington, conversations about interoperability (the technical capability of different platforms to communicate with each other and work together) have become one of several pro-competition, pro-consumer choice policy solutions to gain notice.

In the TikTok/Funimate case, interoperability would allow users to create videos on Funimate but have them viewable on TikTok. This functionality would also make it easier for TikTok users to leave TikTok if they thought another video sharing app would provide them with better content, better usability, or just a better community.

One of the most common excuses by tech companies to avoid engaging in interoperability, or even basic data sharing at the users request, is that doing so may violate concerns about preserving users privacy. This excuse is meant to force policymakers to give platforms a reprieve from either more stringent privacy protections, or, if Congress must pass comprehensive privacy rules, to lock in existing platforms and online companies with a competitive advantage. That is a false choice.

Most platforms get a lot of data from their users. Whether its for personalizing the user experience, targeting ads, or both, internet companies collect so much personal information that they know a lot about what the user wants, who their user is, what the user does, whom the user connects with, what the user likes, and where the user moves.

As a result, it is often hard to stop using a platform or leave for its competition. We call this concept the cost of exclusion. If leaving a platform equals leaving memories, artistic works, or friends behind, or even abandoning a digital-self that represents us in ways that we cant offline, then very few people are going to do it. The social cost is too high.

Without a growing user base, newer platforms often cant compete with older, dominant players. This is especially problematic for platforms that cater to marginalized groups like people of color, queer people, or people with disabilities.

Interoperability can help new platforms build up a store of data they can use to improve their services, because when they gain a new user, that user can also bring access to their data and portions of their social graph from the old service. This can increase the power of users voting with their feet by leaving one service to switch to another. If users data becomes shared across services, then the new service theyve chosen can doubly benefit: It gets a new user and a new source of data.

But while sharing data can be useful to both users and platforms alike, how do we preserve users privacy? And how can we prevent the data from being exploited?

First, we need a comprehensive privacy law. A comprehensive law would set a baseline expectation for preserving user privacy, regardless of the size of an online service or platform. Baseline expectations between platforms give all users, regardless of what platform they choose, protection against data discrimination or other privacy violations.

Second, we need interoperability rules that govern internet platforms to be a part of the privacy conversation. These rules wouldnt just govern how platforms are made interoperable, but would also give users additional privacy protections. As a baseline, interoperability rules could limit how platforms use the data they get from interoperable systems. The rules could also prevent platforms from using that data for advertising or any other purpose not explicitly requested by the user.

With combined privacy and interoperability protections, an individual user will remain protected and as their data moves from one platform to the next, with the freedom to share and benefit from their creativity without accepting weaker privacy or giving into the cost of exclusion from a dominant platform. If a user does decide to use an interoperable system, then that users friends or followers data could be available to the new platform if the consent is given by the users friends for interoperable sharing.

The internet is a powerful tool for free expression and, as such, we must preserve spaces where marginalized groups congregate, create, and interact as a community. Niche communities may not represent your individual viewpoint, and some may be outright hateful, but if we are to preserve consumer choices for free expression for some communities, we cannot deny it for others.

If larger platforms are essentially stealing the content, work, and ideas of users on smaller platforms, then that harms not only the individual who created the content, but the original platform that housed the content. Privacy-preserving interoperability could be the solution to preserving spaces for marginalized communities, while still allowing them to benefit from their work.

Filed Under: competition, digital divide, free speech, greenhouse, interoperability, privacyCompanies: funimate, tiktok

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Fighting The Free Speech Digital Divide Requires Interoperability and Privacy Protection - Techdirt

During a Patriot Day and 2nd Amendment rally, Governor Andy Beshear was hanged in effigy from a tree on Capitol grounds.

FRANKFORT, Ky. Multiple groups of protesters participated in rallies in Frankfort during the Memorial Day weekend.

Protesters claimed Governor Andy Beshear denied them their constitutional rights, some called on the governor to reopen the state and others said they want better conditions for those incarcerated in the state.

A moment captured during Sunday's Patriot Day and 2nd Amendment rally has garnered national attention.

An effigy of the governor was hanged from a tree on Capitol grounds and quickly went viral on social media.

Many in and outside of Kentucky called for those responsible to face charges.

WHAS11's Kristin Goodwillie talked to a professor and legal expert with University of Louisville Brandeis School of Law to find out if a crime was committed by hanging an effigy of the governor or if the act is a freedom of speech?

"The government would have to show that it was intended as a threat. Not just that it was perceived as a threat by other people," professor Sam Marcosson says.

Marcosson says it would have to be either a threat situation or incitement situation to be considered a crime.

Download the WHAS11 News app now for the latest information and updates.

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Threat or free speech? Effigy of Kentucky Gov. Andy Beshear - WHAS11.com

from the time-for-a-gut-check dept

Everytime I ask anyone associated with Facebooks new OversightBoardwhether the nominally independent, separately endowed tribunal isgoing address misuse of private information, I get the sameanswerthats not the Boards job. This means thatthe Oversight Board, in addition to having such an on-the-nose propername, falls short in a more important wayits architectsimagined that content issues can be tackled substantively withoutaddressing privacy issues. Yet surely the recent scandals that haveplagued Facebook and some other tech companies in recent years haveshown us that private information issues and harmful-content problemshave become intimately connected.

Wecant turn a blind eye to this connection anymore. We need thecompanies, and the governments of the world, and the communities ofusers, and the technologists, and the advocates, to unite behind aframework that emphasizes the deeper-than-ever connection betweenprivacy problems and free-speech problems.

Whatwe need most now, as we grapple more fiercely with the public-policyquestions arising from digital tools and internet platforms, is aunifiedfield theoryor,more properlya GrandUnified Theory(a.k.a. GUT)of free expression and privacy.

Butthe road to that theory is going to be hard. From the beginningthree decades ago when digital civil-liberties emerged as a distinctset of issues that needed public-policy attention, the relationshipbetween freedom of expression and personal privacy in the digitalworld has been a bit strained. Even the name of the first bigconference to bring all the policy people, technologists, governmentofficials, hackers, and computer cops reflected the tension. Thefirst Computers, Freedom and Privacy conference was held inBurlingame California, in 1991, made sure that attendees knew thatPrivacy was not just a kind of Freedombut its own thing that deserved its own special attention.

Thetensions emerged early on. It seemed self-evident to most of us backthen that the relationship between freedom of expression (and freedomof assembly and freedom of inquiry) had to have some limitsincludinglimits on what any of us could do with the private information aboutother people. But while its conceptually easy to define infairly clear terms what counts as freedom of expression,the consensus about what counts as a privacy interest is murkier.Because I started out as a free-speech guy, I liked thelaw-school-endorsed framework of privacy torts, whichcarved out some fairly narrow privacy exceptions to the broadguarantees of expressive freedom. That privacy tortssetup meant that, at least when we talked about invasion ofprivacy, I could say what counted as such an invasion and whatdidnt. Privacy in the American system was narrow and easy tograsp.

Butthis wasnt the universal view in the 1990s, and itscertainly not the universal view in 2020. In the developed world,including the developed democracies of the European Union, thebalance between privacy and free expression has been struck in adifferent way. The presumptions in the EU favor greater protection ofpersonal information (and related interests like reputation) andsomewhat less protection of what freedom of expression. Sure, theinternational human-rights source texts like the UniversalDeclaration of Human Rights (in Article 19) may protect freedomto hold opinions without interference and to seek, receive and impartinformation and ideas through any media regardless of frontiers.But ranked above those informational rights (in both the UniversalDeclaration of Human Rights and the International Covenant on Civiland Political Rights) is the protection of private information,correspondence, honor, and reputation. This differencebalance is reflected in European rules like the General DataProtection Regulation.

Theemerging international balance, driven by the GDPR, has created newtensions between freedom of expression and what we loosely callprivacy. (I use quotation marks because the GDPRregulates not just the use of private information but also the use ofpersonal information that may not be privatelikeold newspaper reports of government actions to recoversocial-security debts. This was the issue in theleading right to be forgotten caseprior to the GDPR.) Standing by themselves, the emerginginternational consensus doesnt provide clear rules forresolving those tensions.

Dontget me wrong: I think the idea of using international human rightsinstruments as guidance for content approaches on social-mediaplatforms has its virtues. The advantage is that in internationalforums and tribunals it gives the companies as strong a defense asone might wish in the international environment for allowing some(presumptively protected) speech to stay up in the face of criticismand removing some (arguably illegal) speech. The disadvantages areharder to grapple with. Countries will differ on what kind of speechis protected, but the internet does not quite honor borders the waysome governments would like. (Thailand'slse-majestisa good example.) In addition, some social-media platforms may want tocreate environments that are more civil, or child-friendly, orwhatever, which will entail more content-moderation choices andpolicies than human-rights frameworks would normally allow. Do wewant to say that Facebook or Google *can't* do this? That Twittershould simply be forbidden to taga presidential tweet as unsubstantiated?Some governments and other stakeholders would disapprove.

Ifa human-rights framework doesnt resolve thefree-speech/privacy tensions, what could? Ultimately, I believe thatthe best remedial frameworks will involve multistakeholderism, but Ithink they also need to begin with a shared (consensus) ethicalframework. I present the argument in condensed form here: "ItsTime to Reframe Our Relationship With Facebook.(I also publisheda book last yearthat presents this argument in greater depth.)

Cana code of ethics be a GUT of free speech and privacy? I dontthink it can, but I do think it can be the seed of one. But it has tobe bigger than a single companys initiativewhich moreor less is the best we can reasonably hope Facebooks OversightBoard (assuming it sets out ethical principles as a product of itswork on content cases) will ever be. I try not to be cynical aboutFacebook, which has plenty of people working on these issues whogenuinely mean well, and who are willing to forgo short-term profitsto put better rules in place. While it's true at some sufficientlyhigh level that the companies privilege profits over public interest,the fact is that once a company is market-dominant (as Facebook is),it may well trade off short-term profits as part of a grand bargainwith governments and regulators. Facebook is rich enough to absorbthe costs of compliance with whatever regimes the democraticgovernments come up with. (A more cynical read of Zuckerberg's publicwritings in the aftermath of the companys various publicwritings, is that he wants the governments to get the rules inplace, and then FB will comply, as it can afford to do better thanmost other companies, and then FB's compliance will be a defenseagainst subsequent criticism.)

Butthe main reason I think reform has to come in part at the industrylevel rather than at the company level, is that company-levelreforms, even if well-intended, tend to instantiate a public-policyversion of Wittgenstein's "privatelanguage" problem.Put simply, if the ethical rules are internal to a company, thecompany can always change them. If they're external to a company,then there's a shared ethical framework we can use to criticize acompany that transgresses the standards.

Butwe cant stop at the industry level eitherwe needgovernments and users and other stakeholders to be able to step inand say to the tech industries that, hey, your industry-widestandards are still insufficient. You know that industry standardsare more likely to be adequate and comprehensive when theyrebuttressed both by public approval and by law. Thats whathappened with medical ethics and legal ethicsthe frameworkswere crafted by the professions but then recognized as codes thatdeserve to be integrated into our legal system. Theres aninternational consensus that doctors have duties to patients (First,do no harm) and that lawyers and other professions havefiduciary duties to their clients. I outline howfiduciary approaches might address Big Techs consumer-trustproblems in a series of Techdirt articles that begins here.

Thefiduciary code-of-ethics approach to free-speech andprivacy problems for Big Tech is the only way I see of harmonizingdigital privacy and free-speech interests in a way that will leavemost stakeholders satisfied (as most stakeholders are now satisfiedwith medical-ethics frameworks and with lawyers obligations toprotect and serve their clients). Because lawyers and doctors aregenerally obligated to tell their clients the truth (or, if for somereason they cant, end the relationship and refer the clientsto other practitioners), and because theyre also obligated todo no harm (e.g., by allowing companies to use personalinformation in a manipulative way or to violate clientsprivacy or autonomy), these professions already have a Grand UnifiedTheory that protects both speech and privacy in the context ofclients relationships with practitioners.

BigTech has a better shot at resolving the contradictory demands on itsspeech and privacy practices if it aspires to do the same, and if itembraces an industry-wide code of ethics that is acceptable to users(who deserve client protections even if theyre not paying forthe services in question). Ultimately, if the ethics code is backedby legislators and written into the law, you have something muchcloser to a Grand Unified Theory that harmonizes privacy, autonomy,and freedom of expression.

Ima big booster of this GUT, and Ive been making versions ofthis argument before now. (Please dont call it Godwin-UnifiedTheoryhaving one lawnamed after me is enough.) But here in 2020 we need to do more thanargue about this approachwe need to convene and begin tohammer out a consensus about a systematic, harmonized approach thatprotects human needs for freedom of expression, for privacy, and forautonomy thats reasonably free of psychological-warfaretacticsof informational manipulation. The issue is not just false content,and its not just personal informationopensocietieshave to incorporate a fairly high degree of tolerance forunintentionally false expression and for non-malicious ornon-manipulative disclosure or use of personal information. But anopen society also needs to promote supporting an ecosystemapublic sphere of discoursein which neither the manipulativecrafting of deceptive and destructive content nor the manipulativetargeting of it based on our personal data is the norm. Thatsan ecosystem that will require commitment from all stakeholders tobuilda GUT based not on gut instincts but on critical rationalism, colloquy, and consensus.

Filed Under: data protection, facebook oversight board, fiduciary duty, free speech, grand unified theory, greenhouse, multi-stakeholder, oversight board, privacy

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In Search Of A Grand Unified Theory Of Free Expression And Privacy - Techdirt

A feature of public life in Tamil Nadu in the last three decades has been the indiscriminate institution of criminal defamation proceedings against Opposition leaders and the media. It is no surprise, then, that the most comprehensive judgment on the limits of the States power to prosecute members of the press for defamation should come from the Madras High Court. The verdict of Justice Abdul Quddhose, quashing a series of defamation complaints filed since 2011-12, is remarkable for applying a set of principles that would firmly deter the hasty and ill-advised resort to State-funded prosecution on behalf of public servants. The first principle is that the State should not impulsively invoke provisions in the CrPC to get its public prosecutor to file defamation complaints in response to every report that contains criticism. The court deems such impulsive actions as amounting to throttling democracy. It advises the government to have a higher threshold for invoking defamation provisions. It notes that each time a public servant feels defamed by a press report, it does not automatically give rise to a cause for asking the public prosecutor to initiate proceedings on her behalf. The statutory distinction between defaming a public servant as a person and as the State itself being defamed has to be maintained.

Justice Quddhose goes on to fault the government for according sanction to the initiation of cases through the prosecutors without explaining how the State has been defamed. He cautions prosecutors against acting like a post office, noting that their role is to scrutinise the material independently to see if the offence has been made out, and if so, whether it relates to a public servants conduct in the course of discharging official functions or not before filing a complaint. So, the court finds that many were cases in which public servants ought to have filed individual cases. An earlier Madras High Court ruling noted that an essential ingredient of criminal defamation must be that an imputation was actuated by malice, or with reckless disregard for the truth. A recent judgment by Justice G.R. Swaminathan enunciated what is known in the United States as the Sullivan rule of actual malice. While quashing a private complaint against a journalist and a newspaper, the judge said two of the exceptions to defamation given in Section 499 pertained to public conduct of public servants and conduct of any person on any public question. This implied that the legislature itself believed that unless it is demonstrated that reporting on a public servants conduct or on a public question was vitiated by malice, the question of defamation does not arise and that even inaccuracies in reporting need not occasion a prosecution for defamation. Within a matter of days, the HC has struck two blows for free speech and press freedom.

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Batting for free speech: On filing of defamation cases against press - The Hindu