Monthly Archives: February 2017

With free speech under so much fire from so many directions lately, its encouraging to see Virginia lawmakers sponsoring bills to protect it.

One measure, sponsored by Del. Terry Kilgore, R-Gate City, would extend legal protection against spurious lawsuits to both political speech and to consumer reviews of the sort that have grown popular on websites such as Yelp.

The bill takes aim at SLAPP cases, or Strategic Lawsuits Against Public Participation. A perfect example occurred in Richmond a couple of years ago when Style Weekly published a letter from parents criticizing a school principals performance. The principal sued, and the case went all the way to the Supreme Court. Consumers also have found themselves staring down the barrel of a lawsuit after posting critical commercial reviews.

The measure would not protect people against defamation, and it shouldnt. But it would ensure that people can express their honest views in the public square without having to worry they will be bankrupted by legal fees for doing so.

The second measure, from our own Del. Steve Landes, R-Weyers Cave, and 19 co-patrons, is a shot over the bow of public colleges and universities.

It stipulates: Except as otherwise permitted by the First Amendment to the United States Constitution, no public institution of higher education shall abridge the freedom of any individual, including enrolled students, faculty and other employees, and invited guests, to speak on campus.

Believe it or not, some in higher education actually think this is a bad idea.

Siva Vaidhyanathan, who teaches media studies at the University of Virginia, says there is a moral panic in America that free speech is under assault at universities, but its absolutely not true.

Wrong. It absolutely is true. The evidenceof such an assault is pervasive and overwhelming. Denying it requires the sort of willful refusal to face facts that climate-change skeptics often exhibit.

The fact that most of the criticism appears to be coming from the left is telling.

Liberals have done their level best to squelch the free speech of far-right activists and conservatives at public college campuses across the country in recent years. They have a right to protest and in many cases, The News Virginian has supported those protests, having found the views of many on the extreme right abhorrent (we dont much like the views of many on the extreme left, either, but thats for another day.) But intimidating and physically denying anyone the right to peacefully express their views, no matter how objectionable, is in itself objectionable and cannot be justified.

Marcus Messner, who teaches about media at VCU, also claims the problem is fictitious because students there express themselves on a broad variety of topics every day.

Good for VCU. But the point is irrelevant. Just because students at VCU hold forth does not mean there is no effort to squelch free expression elsewhere. One might as well argue that since the vast majority of police officers treat most black men well, no black man ever experiences police brutality.

Landes bill is a narrow casting of the First Amendment for Virginias public institutions. The mere fact that it is meeting resistance shows how very badly it is needed.

Adapted from The Richmond Times-Dispatch

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EDITORIAL: Free speech on campus - The Daily Progress

Iowa State University violated the free speech of a student group that advocates for marijuana legalization by barring it from using the schools logo, the Eighth Circuit Court of Appeals agreed Monday.

The ISU chapter of the National Organization for Reform of Marijuana Laws, NORML, sued the college in 2014 after administrators refused to let the group print T-shirts depicting the universitys logo alongside a pot leaf. A District Court decided in the groups favor last year, and a federal appeals panel voted 3-0 this week to uphold that ruling.

University administrators violated the student groups First Amendment right to free speech by using the schools trademark policy to prevent NORML ISU from printing the apparel, the appeals panel agreed.

NORML ISU is one of roughly 800 student groups officially recognized by campus administrators, and advocates locally for the legalization of marijuana, according to court documents. Upon being profiled on the cover of the Des Moines Register in late 2012, however, the group suddenly found itself facing scrutiny in the form of what two courts have since equated as unconstitutional discrimination.

The groups former president, Josh Montgomery, told the Register in October 2012 that NORML ISU has gotten nothing but support from the university, according to the cover story.

He even got approval from the licensing office to make a NORML T-shirt with the ISU logo; the red shirt features Cy the Cardinal on the front and a pot leaf on the back, the article acknowledged.

The story quickly caused concern among campus officials, according to correspondence uncovered during litigation. Subsequent attempts to reorder the previously approved NORML ISU T-shirts were rejected by the universitys trademark office, and the school updated trademark policies in January 2013 to prohibit designs that suggest promotion of unlawful activity, including illegal drug use.

But NORML ISUs use of the cannabis leaf does not violate ISUs trademark policies because the organization advocates for reform to marijuana laws, not the illegal use of marijuana, the Eighth Circuit ruled Monday.

The state engages in viewpoint discrimination when the rationale for its regulation of speech is the specific motivating ideology or the opinion or perspective of the speaker, the appeals court wrote. Defendants actions and statements show that the unique scrutiny they imposed on NORML ISUs trademark applications was motivated by viewpoint discrimination.

Im most excited about the ruling being unanimous, former NORML ISU President Paul Gerlich told the Register following Mondays ruling. That shows how we were clearly in the right from the start.

University officials acknowledged the ruling but were not certain if theyd appeal further, ISU spokesman John McCarroll told the newspaper.

Read this article:
University violated campus group's free speech by prohibiting pro-marijuana shirt: Appeals court - Washington Times

As a practical proposition if I enjoy normal life expectancy, this case will consume the bulk of my remaining time on earth. In the event that I dont, the thuggish Mann will come after my family, as has happened to my late friend Andrew Breitbarts children.

This is how well-known political commentator Mark Steyn recently summed up his opinion about the libel suit filed against him by Penn State climate scientist Michael Mann, which is expected to be set for trial soon.

I did not seek this battle. But I will not shirk the fight, and I will prevail, Steyn predicted in a recent blog.

Remarks made by Rand Simberg, a policy analyst with the Competitive Enterprise Institute (CEI) in 2012 were the genesis of the Mann suit. Simberg referred to Mann as the Jerry Sandusky of climate science. Sandusky was a coach with the Penn State universitys football team who had been convicted of child molestation. The university has been roundly condemned for neglect in allowing Sanduskys antics to continue for so long.

This hyperbolic statement of comparing the Sandusky case to Manns was an effort to lambast Penn State for clearing Mann of accusations of scientific misconduct. Apparently, since Penn States administration had failed to rid itself of Sandusky, Simberg was saying that the exoneration of Mann by that same university was suspect.

Political commentator Steyn said as much, declaring in National Review magazine that any investigation by a deeply corrupt administration was a joke.

This was no doubt a strong comment by Steyn, but it was an opinion, and an opinion, regardless of how harsh it is, about a public figure is held to be protected speech press, under the First Amendment, according to the 1964 Supreme Court decision New York v. Sullivan.

Mann is most famous for his development of the so-called hockey stick image to illustrate his assertion that global temperatures have spiked over the last century, a spike Mann and others attribute mostly to human activity in the industrial age.

After Mann responded by suing CEI, Simberg, National Review, and Steyn for defamation, the defendants all asked that the lawsuit be dismissed on the grounds that their remarks were constitutionally protected free speech. The original trial judge allowed Manns suit to continue. Judge Natalia Combs Greene even argued that Manns defamation suit was likely to succeed. She said, To call his work a sham or to question his intellect and reasoning is tantamount to an accusation of fraud.

Surprisingly, the D.C. Court of Appeals declined to dismiss. Judge Vanessa Ruiz spoke for the three-judge panel when she wrote, Tarnishing the personal integrity and reputation of a scientist important to one side may be a tactic to gain advantage in a no-holds-barred debate over global warming. That the challenged statements were made as part of such debates provides important context and requires careful parsing in light of constitutional standards.

Despite these words, which would seem to have favored the defendants, Judge Ruiz then concluded, But if the statements assert or imply false facts that defame the individual, they do not find shelter under the First Amendment simply because they are embedded in a larger policy debate.

The D.C. appellate court said, in remanding the case back to the district court for trial, Dr. Mann has supplied sufficient evidence for a reasonable jury to find, by a preponderance of the evidence, that statements in the articles written by Mr. Simberg and Mr. Steyn were false, defamatory, and published by appellants to third parties, and, by clear and convincing evidence, that appellants did so with actual malice.

Steyn, in an article for National Reviews online blog, The Corner, cited Simbergs analogy of the Mann and Sandusky cases. Im referring to another cover-up and whitewash that occurred [at Penn State] two years ago, before we learned how rotten and corrupt the culture at the university was. But now that we know how bad it was, perhaps its time that we revisit the Michael Mann affair, particularly given how much weve also learned about his and others hockey-stick deceptions since.

Then, Steyn added the biting words that precipitated Manns retaliatory lawsuit: Mann could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in service of politicized science that could have dire consequences for the nation and planet.

Steyn did note, Not sure Id have extended that metaphor all the way into the locker-room showers with quite the zeal Mr. Simberg does, but he has a point, adding that Manns hockey-stick graphic was used to advance the fraudulent climate-change thesis, and that Mann was the ringmaster of the tree-ring circus. (Editorial note: This is typical of Steyns wit, using tree-ring, instead of three-ring. Of course, animal-rights activists, the close cousins of the radical environmentalists, have now succeeded in shutting down the largest of the circuses).

While National Review has recently been dismissed as a defendant in this particular case, leaving Steyn and Simberg as the defendants, Dr. Judith Curry had previously filed a very interesting amicus curiae, or friend-of-the-court brief on the side of National Review and the individual defendants. An amicus curiae brief is often filed in high-profile cases by parties who, while not actual litigants in the case, have a strong interest in the cases outcome.

Dr. Curry recently announced she was leaving academia due to the poisonous nature of the scientific discussion around human-caused global warming. She had challenged some of the assertions of the advocates of the climate change theory, and Mann had responded by calling her three books and nearly two hundred scholarly articles a meager contribution to science and stating she played a particularly pernicious role in the climate change denial campaign [by] laundering standard denier talking points but appearing to grant them greater authority courtesy of the academic positions she has held.

In short, Mann dismissed Currys work as boilerplate climate change denial drivel.

A comparison of anyone to a convicted child molester, as was done by Simberg, even though a reasonable person could see that it was simply a hyperbolic statement, is certainly a harsh statement. But the use of the expression of climate change denier to scientists like Curry is even stronger. As despicable as the analogy to the sexual molestation of little boys is, the denier label used so freely by the climate change crowed, including Mann, conjures up a comparison to the denial of the Holocaust the systematic murder of millions in Hitlers gas chambers.

For his part, Mann has repeatedly attacked those who disagree with him on this issue as peddling pure scientific fraud, and fraudulent denial of climate change, and even taking corporate payoff for knowingly lying about the threat climate change posed to humanity.

The Curry brief noted, As it relates to this case, Dr. Curry has been critical of Appelle Michael Manns methodological approach to climate science and the conclusions he has reached. Dr. Curry has experienced personal and professional attacks from Dr. Mann for her criticism of his work. Dr. Mann has a pattern of attacking those who disagree with him and this case is another in a long line of tactics to silence debate over the science of global warming.

Dr. Curry said that she has tried to understand Michael Manns perspective in suing so many people, while at the same time so freely throwing insults at others and even defaming other scientists. My understanding is this. Michael Mann does not seem to understand the difference between criticizing a scientific argument versus smearing a scientist.

The amicus brief of Dr. Curry highlighted its concern about allowing such a lawsuit to continue. If Dr. Mann and others like him who use libel laws to silence critics are allowed to prevail, those who use normal scientific debate will find themselves disadvantaged in the marketplace of ideas.

This is why libel suits involving public figures such as Mann are required to overcome significant hurdles in order to succeed. The plaintiff in a libel suit must prove not only that the statements found offensive are false, the plaintiff must additionally prove to a jury by clear and convincing evidence (a higher standard than the preponderance of the evidence of most civil actions, and closer to the beyond reasonable doubt requirement of criminal cases) that the defendant knew the statement was false. And the statement must have been made with actual malice, or a desire to cause damage. (For example, writing that a football player won the Heisman Trophy would not be libelous, even if the writer knew that was not true, because such a statement is not damaging and no intent to cause harm exists).

Finally, a plaintiff must show that some actual damage was caused to his reputation.

Jonathan Adler, a professor at Case Western Reserve University law school, explained the dangers of making it too easy for public figures to win such lawsuits. It threatens to make it too easy for public figures to file lawsuits against their critics, and, as a consequence, threatens to chill robust political debate.

Adler also expressed concern over the reasoning of the appellate court, when it held that, because Penn State had investigated and then exonerated Mann of doctoring scientific evidence to support his thesis of global warming, Simberg and Steyn cannot then criticize that investigation. It cannot be that once some official body has conducted an investigation of an individuals conduct, that further criticism of that individual, including criticism that expressly questions the thoroughness or accuracy of the investigatory body, is off limits.

This would preclude criticism of a judicial processes that exonerated individuals found not guilty, Adler notes.

Nor is it consistent with existing First Amendment doctrine to suggest that hyperbolic accusations of bad faith or dishonesty against public figures involved in policy debates is actionable, Adler added. In other words, the opinions expressed by Steyn and Simberg were just that opinions.

Even the threat of a libel suit is often enough to inhibit the free expression of honest political opinions, because of the potential enormous costs of litigation. Winning in a successful defense, but nevertheless out thousands of dollars, does not make one feel much like a winner. As one federal court once put it in the context of controversies in the field of science (and applicable in other fields, as well), More papers, more discussions, better data, and more satisfactory models not larger awards of damages mark the path toward superior understanding of the world around us.

See the original post here:
Climate Lawsuit Threatens Free Speech - The New American

The First Amendment does not always protect civil servants from reprisal. (Image: Jared Rodriguez / Truthout)

Recent internal memos on how and when federal employees can speak their minds has left those frustrated by President Trump in murky waters, according to advocates.

For climate scientists at the Environmental Protection Agency (EPA) or rogue members of the National Park Service, this uncertainty around their ability to speak without fear of reprisal is causing confusion and despair as the Trump administration assumes control and attempts to assert its version of the facts, according to Public Employees for Environmental Responsibility (PEER), a watchdog group that represents civil servants at agencies like the EPA.

"There will be a number of instances where people are speaking their minds and the rules aren't all that clear," said PEER Director Jeff Ruch, who counsels government employees about their rights. "And you have a chief executive who is somewhat thin-skinned, and that may trickle down through his appointees," who could punish employees for actions perceived as dissent.

Ruch said there seems to be a "level of mutual mistrust" between civil servants who staff federal agencies as nonpartisan workers and President Trump, who promised on the campaign trail to gut agencies like the EPA, and announced a hiring freeze for many agencies shortly after taking office.

"The hiring freeze was not an economic measure but an effort to drain the swamp, as if [federal employees] are a malignant force and, if you can bleed them off, then government will be better," Ruch said. "And a lot of this could be offensive to some of these career civil servants."

Some civil servants have dared to challenge Trump. Since the National Park Service's Twitter account was temporarily shuttered after it questioned White House statements on the size of the crowd at Donald Trump's presidential inauguration, dozens of "alternative" federal agency accounts (such as AltEPA and AltFDA) have opened and amassed followings that rival their official counterparts.

These accounts identify with the anti-Trump resistance, and are unofficial. Many make it clear that tweets and posts are not coming from government employees in their official capacity, if from government employees at all. Ruch said PEER has been fielding questions from operators of these alternative accounts, which often challenge Trump's public statements and draw attention to the latest climate science.

Agency employees who speak out against Trump are treading on difficult ground, particularly since federal civil servants have limited rights to free speech in the workplace. In 2006, the Supreme Court ruled that the First Amendment does not protect public employees for statements made while acting in their official capacity, making it risky to speak out against a new administration that has been openly hostile to the media and anyone else who challenges its narrative.

Moreover, the Hatch Act of 1939 prohibits the vast majority of federal employees from participating in certain political activities on the job, including advocating for and against political candidates. Trump has filed 2020 campaign paperwork and is considered a political candidate. This means that federal employees are prohibited from speaking for or against his reelection in their official capacity, according to a memo circulated by the US Office of Special Counsel last week.

Ruch said making a statement as simple as, "This is a disaster, we've got to get rid of this guy," around the water cooler at a federal office could apparently cost a federal employee their job.

Federal employees do have First Amendment rights as private citizens, but that doesn't protect them in the workplace. Not too long after the White House's snafu with the National Park Service's Twitter account, the EPA sent out an agency-wide memo advising employees about the difference between addressing the public as an EPA employee and in their "individual personal capacity."

The memo urges employees not to refer to their agency title, such as "inspector" or "climate scientist," when writing, speaking or making social media posts in their personal capacity, and not to make such statements from EPA computers:

If you feel you must refer to your EPA position or title, then the prudential advice is to do so as one of several biographical details with EPA not having any undue prominence. You should be clear you are expressing an individual personal opinion, not speaking on behalf of the Agency.

Ruch said it's unclear exactly what EPA employees would have to reveal about themselves to make sure their official status as an agency scientist or attorney is not "unduly prominent" compared to, say, their educational background or volunteer positions.

"Federal employees who depart from the official talking points enter murky waters," Ruch said. "Unlike White House staff, who are merely counseled about clear ethics violations, public employees trying to educate the public about the consequences of Trump initiatives may be targeted for discipline or removal."

Ruch said the Trump administration could use this ambiguity to target dissent in its ranks, and purge critics of Trump's policy directives for making statements that would otherwise be considered "borderline and marginal." This looming threat is almost certainly having a chilling effect, especially at agencies that deal with hot-button issues like climate change and immigration.

"Sean Spicer said, 'Get with the program or get out'," Ruch said.

Still, this did not keep EPA workers in Chicago from attending a February 6 rally opposing Scott Pruitt, Trump's nominee to head the agency, and speaking against him from their standpoint as employees.

Ruch said it was unclear if these employees were breaking ethics rules. The recent memos suggest that federal agencies would rather their employees not say anything to the public at all. However, despite all of this uncertainty over what federal employees can and can't say in a nation under Trump, resistance to Trump at federal agencies continues.

"Besides social media, organizations like PEER, federal unions and even professional scientific societies will increasingly become channels for public employee free speech," Ruch said. "Times have changed -- both the public and public employees are demanding more candor and have less tolerance for censorship than ever before."

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Free Speech Restrictions Leave Federal Workers Anxious About Challenging Trump - Truth-Out

Jim Funk still remembers when a Gainesville police officer grabbed his arms and escorted him away.

It was an event that shocked and scared Funk but also sparked a discussion about free speech and assembly in Gainesville. His run-in proved to Funk that the cityhas work to do toensure free speech to all its citizens.

That kind of disturbed me that something like that would happen, Funk said.

Funks run-in happened in November at Artwalk, a monthly event held in downtown Gainesville, while he was gathering petitions for medical marijuana. Funksaid he was approached by police officers and the events coordinatorand was told he couldnt gather signaturesbecause he wasnt affiliated with a reserved booth.

Funk said he could gather signatures because the event was on a public street. After debating the issue for a while, police said Funk caused a scene an accusation Funk denies and he was carried out. Though Funkbelieves it was an isolated incident, he still feels he was treated with injustice and that his speech was limited.

They basically can assault someone in public whos an old man not doing anything, and they can get away with it, Funk said.

The discussion about free speech has mainly been ledby Gainesville resident James Thompson, an acquaintance of Funk. Shortly after Funks incident, Thompson emailed Gainesville City Commissioners and Mayor Lauren Poe. He has since been in touch with members of Parks, Recreation & Cultural Affairs, city commissioners and city lawyers.

Poe said he firmly stands behind free speech in Gainesville, and wants to ensure it remains protected.

We dont want anything that would create a chilling effect on people practicing their free speech, Poe said.

Thompson received a list of court cases supporting Gainesvilles law from a city lawyer, David Schwartz. In response, Thompson went through each case and pointed out why it didnt apply.

At the time of his initial complaint, the Citys Administrative Procedure 34 said more than two canvassers contacting a single member of the public could be restricted, along with profanity and actions designed to gather crowds. Since then, the city manager updated the procedure to 34-A, which struck down those restrictions. However, a procedure only affects how city staff operatesinternally, and is not city law.

The current ordinance, which hasnt been updated, still has language limiting more than two canvassers from contacting a single member of the public at any time, Thompson said. It is found in Chapter 19, article 2, under peddlers and canvassers.This means people gathering petitions or passing out information might be unable to do so in a group.

That law is pretty egregious, and really a bad liability situation in my opinion, Thompson said. You basically dont need to make laws to limit free speech. We have a constitution, we have a set of practices, we have a set of rules. You cant create free speech zones, thats unconstitutional.

Thompson said limiting free speech makes sense when its a public safety concern, but that doesnt apply to Gainesville.

We all think of Gainesville as this perfect liberal open-minded town, but the fact is, you know, when people hold events even in public streets they have grand expectations about what they can do to limit others, and thats not the case, Thompson said.

Initially, Thompson planned to let the issue sit until the city took care of other dated laws on the books. The city hired Municipal Code Corporation in December to review existing laws. After the laws are reviewed, a recommendation will be made to the commission. The process should wrap up in two to three months, said Gainesville Clerk of the Commission Kurt Lannon.

Poe said he thinks it is too early to see if the code will be changed.The commission will wait until they receive a recommendation from the group.

This is why we wanted to hire an outside person, so we wouldnt crowd the view with our own personal biases and assumptions, Poe said.

With the election of President Donald Trump and subsequent national protests, Thompson said free speech in Gainesville needs to be protected now more than ever. He thinks making changes to the laws around assembly cannot wait.

I thought its very important for Gainesville to have this stuff cleared up before anything bad happens, to basically state that Gainesville is going to stand by the First Amendment and stand by its citizens, Thompson said.

Though Thompson considers himself liberal, he said it doesnt matter what the protests are for.

Thats exactly the time when we are supposed to protect free speech, is when it makes us uncomfortable and when it is unwelcome[d], Thompson said. In fact, it doesnt matter what these people are petitioning or assembling for, they should be allowed to do what theyre allowed to do with their rights.

Read more:
Gainesville Resident Fights To Protect Free Speech - WUFT