Monthly Archives: February 2017

Unofficial co-sponsors of the bill? Milo Yiannopoulos and Scottie Nell Hughes

Rep. Martin Daniel, left, and Sen. Joey Hensley introduce the "Tennessee Student Free Expression Act," for when the First Amendment just isn't enough.

Sure, the First Amendment is, you know, a constitutional protection and all, but if you're a conservative minority in a sea of big, bad liberals on college campus, sometimes you just need a safe space, you special snowflake you. It can be very hard these days to speak your mind in a country with a Republican president and a Republican majority in Congress and the Senate and a Republican supermajority in both chambers of the Tennessee Legislature and a Republican governor and two Republican senators and seven out of nine Congressional districts represented by Republicans, not counting all the many, many, many, many Republicans in office at the local level across the state of Tennessee. Nope, it is definitely the poor College Republicans and other conservatives on campus who definitely need greater free speech protection than what the First Amendment offers.

At least, that's what state Rep. Martin Daniel (R-Knoxville) and Sen. Joey Hensley (R-Hohenwald) are saying is their justification for filing the "Tennessee Student Free Expression Act," a revamped version of a similar bill Daniel filed last year. However, this year they are nicknaming the bill the "Milo Act," after Breitbart writer/editor and noted white supremacist Milo Yiannopoulos, whose recent appearance at the University of California at Berkeley was cancelled after protests turned violent.

Daniel and Hensley who have both been accused of assault in the past, Daniel during a primary debate last summer and Hensley in 2015 after his ex-wife alleged he hit her with his truck, twice are just horrified, horrified, that students in California would try to prevent Yiannopoulos from speaking and are using those protests as justification for their bill. (Never mind that Yiannopoulos spoke at Vanderbilt University without incident last fall.) At the press conference announcing the legislation, they showed clips from Berkeley, and then they showed a video from the University of Tennessee at Knoxville last fall in which a white male student dressed up as Trump had his wig knocked off by an African-American female student walking past him. The video characterized this as an "assault"; however, the woman keeps walking away with no further incident rude, yes, but nothing even close to assault.

The presser proceeded with Daniel and Hensley talking about the bill, followed by Trump surrogate andFox talking head Scottie Nell Hughes who has stated in the past that "riots aren't necessarily a bad thing," at least, if they are in support of Trump. A member of the UTK College Republicans also spoke, as did the student who had portrayed Trump in the aforementioned video. Someone else read a statement from Yiannopoulos, who said he wished he could be here but was, alas, stuck in Florida. Afterwards, legislative staff on both sides of the aisle seemed flummoxed by the lengthy production. ("What the hell was that?" one staffer texted this reporter.)

The bill itself is not nearly as noxious as last year's version, which stated, in part:

The governing boards of the institutions shall prohibit an institution from:

(1) Establishing safe zones;

(2) Requiring or encouraging the issuance of trigger warnings;

(3) Establishing a system for students or other persons to report incidents of mere bias, where no threats or harassment occurred;

(4) Disciplining students for microaggressions

Several UTK professors contacted by the Scene expressed relief that the newer bill is more vaguely worded, but they still have many concerns.

"The opening of the 'free speech' bill sounds like an insult: as if those of us who work at the university are not already advocates of free speech, as if we haven't spent our entire lives embracing and promoting free speech," says UT-Knoxville English professor and poet Marilyn Kallet. "No thinking person would oppose free speech. But isn't that what we are already doing?"

Another UTK English professor, Lisi Schoenbach, says the legislation raises more questions than it answers.

"Why such a bill would be necessary? And why the legislature should be involved in the governance of the university?" asks Schoenbach. "It appears to me that the bill repeats a lot of very standard language that can be found in any number of places regarding the importance of free expression on campus, except with extra emphasis on how important it is to have disagreeable and unpleasant speech on campus. Wouldnt this be an argument in favor of Sex Week, and lots of other campus speech that the legislature finds disagreeable?"

When asked about Sex Week and other such things on campus to which conservatives in the Legislature have taken exception, Hensley said the issue with that was not the free speech but the university spending money on it. When asked if bringing a speaker like Yiannopoulos would not also cost money, he changed the subject.

Pippa Holloway, a history professor at MTSU and president of the MTSU chapter of the American Association of University Professors, says the bill is completely unnecessary.

"The legislation's claim that 'state institutions of higher education have abdicated their responsibility to uphold free speech principles' has no basis in fact. I would challenge the representative to visit our campuses; meet with our students, faculty, and administrators; and learn more about how Tennessee colleges and universities operate before wading into territory he obviously knows little about," Holloway comments.

"The legislation would require colleges and universities to modify the content of their freshman orientation and send emails every semester during the first week of classes reminding students of their First Amendment protections. What about the other nine amendments in the Bill of Rights? Should we send out emails every semester reminding them of their Second Amendment rights also? And what about the Third Amendment? If students are asked to quarter a solider in their house during a time of peace, shouldn't we remind them every semester that they can say no? If those questions sound ridiculous, they should, because such micromanaging of the daily operations of college campuses through state law IS ridiculous," Holloway adds.

The thing is, state campuses already do have free speech policies in place. When asked if they had read UT's policy, for one, the legislators admitted they had not. It's also unclear that they have any idea as to who Yiannopoulos actually is. When introducing the bill, Hensley commented, "We dont want to allow hate speech or offensive speech, but certainly when it comes to political issues, every student should have their right to expression." When asked if that wasn't exactly what Yiannopoulos often incites hate speech Daniel replied, "Were just asking that university administrators abide by and respect the first amendment, thats all."

But Yiannopoulos is a proponent of hate speech, in addition to misogyny, racism, homophobia (despite being openly gay himself) and general meanness. He thinks women shouldn't learn science or math. It is nearly impossible to be so horrible that Twitter will actually permanently ban you, yet Yiannopoulos managed it. It seems likely that the writer has only glommed onto the legislation as part of his never-ending quest for self-promotion, especially given that he has a book coming out in March why legislators who had a problem with LGBT diversity funding at UT want to help promote a man whose book was originally going to be called The Dangerous Faggot Manifesto is, well, odd.

UT itself has only issued a vague statement on the bill, with spokesperson Gina Stafford saying in an email, The proposed legislation would apply to all public universities in Tennessee, including the University of Tennessee. The constitutional right of free speech is a fundamental principle that underlies the mission of the University of Tennessee, and the University has a long and established record of vigorously defending and upholding all students right to free speech.

The ACLU of Tennessee also says it will be keeping an eye on the bill.

"This legislations goal of promoting free speech on state campuses is certainly laudable, and the bill contains elements that indeed foster free expression. However, in areas of campus that are not considered public fora, a public university has multiple obligations not only to free speech but also to preventing creation of a hostile environment. The devil is in the details and we are still in the process of closely analyzing this measure," says executive director Hedy Weinberg.

Meanwhile, says Schoenbach, if Daniel and Hensley really want to know about free speech on campus, they should take a class.

"If only there were a way for them to learn about the difference between facts and opinions, critical thinking skills, evidence based argumentation. There should be some state-provided access to this sort of information!" says Schoenbach.

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First Amendment Needs Protecting from Liberals, Say Republican Legislators - Nashville Scene

Jacksonville activist Curtis Lee, who battled the citys Police and Fire Pension Fund over a costly records request, has been recognized by the First Amendment Foundation for his efforts to ensure a more open government.

Lee, nominated by his former attorney and current judge Bob Dees, is the recipient of the 2016 James C. Adkins/Sunshine Litigation Award.

Im pleased for the recognition, Lee said. I did what I did not to make money, but because I thought it was the right thing to do.

About six years after Lee relocated to Jacksonville from New York, he spotted a story in The Florida Times-Union about the underfunded Police and Fire Pension Fund. It sparked his interest.

He became a regular at council and pension fund meetings. But ultimately, his simple request for documents from the pension fund spiraled into three court cases and more than $400,000 in legal fees for the city of Jacksonville.

Before Lee could even view the documents, he was told he would have to pay $326. Lee said he would pay only for the documents he wanted to copy. However, the pension fund managers still wanted the $326, plus $280 to have someone monitor him while he sifted through records, a 2015 Florida Times-Union article said.

Lee sued and he won. The win came with a bit of a snag: He wouldnt get a reimbursement for his legal fees. On appeal, Jacksonville Police and Fire Pension Fund tried to argue it had made an honest mistake and violated the law in good faith. The court sided with Lee, instructing the pension fund to pay $75,000 to Lee. The Florida Supreme Court agreed.

To Lee, the win has statewide implications. The First Amendment Foundation, through its award, recognizes his effort.

Governments already have a large advantage over citizens, who usually do not have as much money as these entities to contribute to a legal fight. A court decision saying governments could then avoid paying judgments if it was determined they violated the law in good faith, Lee said, would further tip the scales.

If that was the case, the effectiveness of the law and of the publics right to records would be undercut, Lee said.

Florida Times-Union editor at large Frank Denton won the award in 2014. Also to be recognized this year, Scott Ellis, clerk of the court for Brevard County, won the 2016 Pete Weitzel/Friend of the First Amendment Award.

Both awards will be presented at the foundations annual Sunshine Recognition luncheon March 14 at the Governors Club in Tallahassee during Floridas Sunshine Week celebrations.

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First Amendment Foundation honors Jacksonville activist - Florida Times-Union

Cincinnati 12:07 a.m. ET Feb. 10, 2017

John C. Greiner, attorney for Graydon Head Legal Counsel. He's a commercial litigator with an emphasis on communications and media law. He serves on the firm's Appellate Practice Group. (Photo: Provided, Provided)

The social media platform Facebook recently lost a First Amendment challenge to the federal Telephone Communications Privacy Act. While the case is bad news in the short term for Facebook, the rejection of the constitutional challenge could have long-term consequences for the entire industry.

The case concerns birthday messages. Facebook employed computer software to send birthday announcement texts to users. In 2015, Facebook, through its short code SMS number 32665033, texted to Colin Brickman's cell phone number an unsolicited birthday announcement text stating Today is Jim Stewart's birthday. Reply to post a wish on his Timeline or reply with 1 to post Happy Birthday!. Although Brickman supplied Facebook his cell phone number, which is associated to his Facebook page, Brickman indicated in the notification settings of his Facebook account, prior to receiving the text message, that he did not want to receive any text messages from Facebook.

And Brickman apparently was serious about it. On Feb. 2, 2016, Brickman filed a class action suit against Facebook, alleging Facebook violates the TCPA by sending unauthorized text messages. Brickman asked the court to allow him to represent the class of (a)ll individuals who received one or more Birthday Announcement Texts from Defendant to a cell phone through the use of an automated telephone dialing system at any time without their consent.

A valid TCPA claim requires plaintiff to allege (1) a defendant called a cellular telephone number; (2) using an automated telephone dialing system (ATDS); and (3) without the recipient's prior express consent. A text message is a call within the meaning of the TCPA.

Brickman alleged that Facebook employs computer software to send birthday announcement texts without human intervention to users. According to his complaint, Facebook's computer system, without any human intervention, reviews user data on a daily basis to identify users who have birthdays on a particular day; identifies the users Facebook friends who will receive the texts for a particular user's birthday; identifies the cell phone numbers of the Facebook friends that will receive the message; automatically inserts the name of the user celebrating a birthday into a form text in the appropriate language for each of the user's Facebook friends, creates the text; compiles a list of cell phone numbers to which it will send Birthday Text Announcements, stores those cell phone numbers in a queue, and then causes the text messages to be sent from that queue.

Facebook argued the text message was triggered by human intervention, in that Brickman signed up for Facebook and linked his cell number to his profile. And in addition to these technical arguments, Facebook contended the TCPA violates the First Amendment. In its view, based on a recent U.S. Supreme Court case that struck down an Arizona sign ordinance, a law triggered by the content of a message is subject to strict scrutiny a standard that is almost impossible for the government to satisfy.

The good news for Facebook was the court agreed that the TCPA is content-based certain messages, such as emergency messages, are exempt based on their content. Others are not, again based on the content. That meant the court applied the strict scrutiny analysis. The bad news for Facebook was that in this case, the court concluded that the TCPA satisfied the standard.

In order to survive strict scrutiny, the government must prove the restriction furthers a compelling interest and is narrowly tailored to achieve that interest. Here, the court concluded the government has a compelling interest in protecting residential privacy. The TCPA is designed to do just that.

And the court concluded the TCPA is narrowly tailored. In support of its argument, Facebook argued the TCPA was under-inclusive meaning it did not actually address all of the instances necessary to achieve its purpose. In the Supreme Courts sign ordinance case, for example, there were 33 exemptions to the ordinance. But the TCPA has only two exemptions. The court concluded it was not under inclusive.

Facebook also argued that in other respects, the TCPA was over inclusive. That is, it sweeps too much interaction under its provisions. The court rejected this argument as well. In its view, the TCPA is limited to a narrow subset of automated calls made without the recipients consent. It does not restrict individuals from receiving any call they want to receive. Any speech that the TCPA would cover is removed from that coverage once the consumer consents.

The immediate effect of the ruling is that Facebook will have to defend Brickmans suit on fairly technical grounds. The big constitutional defense is off the table, at least for now. And consumers will continue to enjoy protection from unwanted communications.

Jack Greiner is a lawyer with the Graydon Head law firm in Cincinnati and represents Enquirer Media in First Amendment and media issues.

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Facebook loses 1st Amendment challenge to federal law - Cincinnati.com

News Release NEFAC Feb. 9, 2017

Contact: Justin Silverman 774.244.2365 mail@nefirstamendment.org

The New England First Amendment Coalition is pleased to announce the addition of Lia Ernst, a staff attorney at the American Civil Liberties Union of Vermont, to its Board of Directors.

Were very excited to have Lia join NEFAC and help our efforts defending the First Amendment in Vermont, said Justin Silverman, the coalitions executive director. Shes going to be a tremendous resource not only for our organization but for all New Englanders.

At the ACLU of Vermont, Ernst litigates civil liberties, civil rights and open government cases; advocates before state and municipal governmental bodies on ACLU legislative priorities; and educates community groups on protecting and exercising their rights.

Before coming to the Vermont affiliate, Ernst had been a legal fellow at the ACLU of Massachusetts and a legal intern at the ACLU of Michigan. She also clerked for two years with U.S. District Court Judge Julian Abele Cook Jr. in Detroit and for one year with Judge Norman H. Stahl of the U.S. Court of Appeals for the First Circuit in Boston. In between, she was an associate attorney at a Michigan law firm outside Detroit, focusing on criminal defense and attorney ethics.

Ernst is a graduate of the University of Michigan Law School and holds a masters degree in anthropology from the University of Wisconsin. Her undergraduate degree is from Swarthmore College, where she majored in biology. She served two years in the Peace Corps in Guinea, West Africa after college.

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Lia Ernst of Vermont ACLU Joins NEFAC Board, Strengthens First Amendment Efforts - vtdigger.org

Nevadas newly elected U.S. senator, Catherine Cortez Masto, has already taken up the cudgel against the First Amendment previously wielded by her predecessor, Harry Reid.

She put out a press release recently announcing that she has joined with other congressional Democrats to reintroduce a constitutional amendment that would overturn Supreme Court rulings that have held that it is a violation of the First Amendment to restrict the amount of money corporations, nonprofits, unions and other groups may spend on political campaigns and when they may spend it.

In its current incarnation it is being called the Democracy for All Amendment. In previous years it bore the unwieldy acronym DISCLOSE Act Democracy Is Strengthened by Casting Light on Spending in Elections. Reid frequently took to the floor of the Senate to pound the table for the amendment and disparage the Koch brothers political spending as the embodiment of evil.

The U.S. Constitution puts democratic power in the hands of the American people not corporations or private companies, the press release quotes Cortez Masto as saying. Since the Citizens United decision, big corporations have gained unprecedented influence over elections and our countrys political process. I am proud to be a cosponsor of this legislation; its critical that we end unlimited corporate contributions if we are going to have a democratic process and government that will truly work for all Americans.

In the 2010 Citizens United decision, a 5-4 Supreme Court struck down the part of the McCain-Feingold campaign finance law that prohibited organizations such as Citizens United, a political action committee, from expending funds for electioneering immediately prior to an election. In this case the Federal Election Commission blocked the 2008 broadcast of Hillary: The Movie, which was critical of Hillary Clintons presidential bid.

During the arguments in the case, the Justice Department attorney defending the law admitted the law also would censor books critical of candidates, though newspapers and other media, most owned by large corporations, were exempted from the law and may criticize, editorialize and endorse or oppose candidates freely. Some corporations are more equal than others.

Cortez Mastos statement concluded, The Democracy for All Amendment returns the right to regulate elections to the people by clarifying that Congress and the states can set reasonable regulations on campaign finance and distinguish between individuals and corporations in the law.

The problem is that free speech is not free if the incumbent government satrapy can curtail its dissemination.

Justice Anthony Kennedy explained this in his majority opinion in Citizens United v. FEC: As a restriction on the amount of money a person or group can spend on political communication during a campaign, that statute necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. Were the Court to uphold these restrictions, the Government could repress speech by silencing certain voices at any of the various points in the speech process. (Government could repress speech by attacking all levels of the production and dissemination of ideas, for effective public communication requires the speaker to make use of the services of others).

The fact the expenditure is coming from a group instead of an individual does not negate the First Amendment guarantee of the freedom of expression by prohibiting Congress from restricting the press or the rights of individuals to speak freely, because it also guarantees the right of citizens to assemble peaceably and to petition their government.

An assembly is not just a crowd of people on the street, it is also an organization.

Reid in one of this many diatribes on the subject said: But the flood of special interest money into our American democracy is one of the greatest threats our system of government has ever faced. Lets keep our elections from becoming speculative ventures for the wealthy and put a stop to the hostile takeover of our democratic system by a couple of billionaire oil barons. It is time that we revive our constituents faith in the electoral system, and let them know that their voices are being heard.

This implies the voters are too stupid to hear an open and free-wheeling debate and not be influenced by the volume or frequency of the message.

Lest we forget, in the 2016 presidential election, Donald Trump was outspent by Hillary Clinton by two-to-one $600 million to $1.2 billion.

Censorship is unAmerican and unnecessary. Cortez Masto should abandon this assault on free speech.

Thomas Mitchell is a longtime Nevada newspaper columnist. You may email him at thomasmnv@yahoo.com. He also blogs athttp://4thst8.wordpress.com/.

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New senator wants to shred First Amendment protection - Mesquite Local News