Daily Archives: March 4, 2017

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A university has updated its free speech policies following a lawsuit filed by a conservative speaker whose event was almost cancelled at the school.

Ben Shapiro, Editor-in-Chief of The Daily Wire and his partner organization, Young Americas Foundation, sued California State University, Los Angeles, after a virtual riot broke out at his scheduled speaking engagement. Shapiro was met by a mob of violent protesters who had blocked entrances to the event, physically attacked attendees, and blocked entrances to the speech, according to The Daily Wire.

Shapiro and Young Americas Foundation dismissed the lawsuit after the school made some changes to its free speech policies, as noted in The Daily Signal.

California State University, Los Angeles, pledged to not impose any fees, including security fees, based upon the viewpoint of the speech at future events. The school also pledged to not unilaterally refuse to schedule or cancel any scheduled event based upon the viewpoint of the speech that is to take place, adding that it will enforce terms of its Administrative Policy on Time, Place, and Manner of Free Expression P007 in a viewpoint-neutral manner, as reported by Young Americas Foundation.

While CSULA changed its policies to be more conducive to free speech, other universities restrict opinions deemed controversial, sometimes prohibiting various speakers from addressing students on campus. (RELATED: Study: Over 90% Of UK Colleges Censor Speech)

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California University Embraces Free Speech After Threatened With Lawsuit - Daily Caller

Congress should cut the budget of the federal Equal Employment Opportunity Commission (EEOC). Doing so will help the economy and protect civil liberties. As CEI and others have noted, the EEOCs actions have often discouraged hiring and undermined free speech.

Under the Obama administration, the EEOC sued employers for using hiring criteria required by state law, demanding that they violate health and safety codes. It even pressured employers to hire felons as armed guards. The EEOC sued companies that quite reasonably refuse to employ truck drivers with a history of heavy drinking, even though companies that hire them will be sued under state personal-injury laws when they have an accident. The EEOC has also used costly lawsuits to pressure businesses into hiring or rehiring incompetent employees. In 2011, a hotel chain had to pay $132,500 for dismissing an autistic clerk who did not do his job properly, in order to get the EEOC to dismiss its lawsuit. In 2012, a caf owner had to pay thousands of dollars for not selecting a hearing- and speech-impaired employee for a customer-service position that the employee was unqualified for.

The EEOC has also been criticized by free speech advocates and legal scholars. In 2016, the EEOC was criticized for ordering a racial harassment investigation simply because an agency employee repeatedly wore a cap with the Gadsden flag on it.

Since the EEOC is an independent agency (it currently has three Democratic commissioners and only one Republican commissioner), this problem will likely persist even under the new administration. Last month, the EEOC angered free-speech advocates by using an erroneous definition of religious harassment to force an agency to pay over $20,000 to a lawyer and Labor Department employee because a supervisor used the word Hebrew slave to describe himself.

The EEOC sometimes exhibits contempt for the very laws it administers. The EEOC was found guilty of systematic, illegal, reverse discrimination in Jurgens v. Thomas (1982), which it continued to illegally engage in for years, even after being ordered to stop.(See Terry v. Gallegos, 926 F.Supp. 679 (W.D. Tenn. 1996)). EEOC officials have also frequently committed sexual misconduct. (See, e.g., Spain v. Gallegos, 26 F.3d 439 (3rd Cir.1994)). The Washington Post reported in 2009 that the Equal Employment Opportunity Commission, responsible for ensuring that the nations workers are treated fairly, has itself willfully violated the Fair Labor Standards Act on a nationwide basis with its own employees.

Given the EEOCs contempt for the law, and its attacks on free speech, its budget should be cut substantially. Budget cuts would effectively force EEOC staff to focus more on their core area of activityprocessing valid federal employee claimsrather than suing private employers (which costs more and can lead to a loss before a federal court), or stretching the law to overturn agency rulings. There are many overlapping legal remedies for discrimination and federal employee dismissal, so a smaller EEOC budget need not lead to valid harassment and discrimination claims going unaddressed. Most discrimination victims already sue without help from the EEOC.

In the long term, Congress should consider structural reforms to the agency itself, such as those proposed by law school professor and U.S. Commission on Civil Rights member Gail Heriot, which would streamline its mandate to focus solely on federal employees.

The rest is here:
Congress Should Rein in Free Speech Violations with Budget Cuts ... - Competitive Enterprise Institute (blog)

Rustavi2 staff members, supporters and prominent public figures, including Georgias first lady, Maka Chichua (left), gathered outside the studios of the television network on March 3. (Screenshot of Rustavi2 report)

Journalists at Georgias last major opposition broadcasting company are digging in and refusing to comply with a court order altering the outlets ownership structure. Doing so, they say, would sound the death knell for independent media in the country. Defiant supporters pitched tents outside the studios of the television channel Rustavi2, forming a human shield in front of the building in response to a March 2 Supreme Court decision to return ownership of the broadcaster to businessman Kibar Khalvashi. We will continue our work and we are staying on the air, said Rustavi2s General Director Nika Gvaramia, who was flanked by the companys news crews as he spoke. The governing party, the Georgian Dream, has long criticized Rustavi2 as a hyperpartisan outlet, supportive of Georgias self-exiled ex-president Mikheil Saakashvili. But Rustavi2 also has been a must-watch for its critical coverage of the Georgian Dreams performance. The station may now be headed toward a standoff with law enforcement officials, given that it has mobilized opposition political parties, civil society groups and prominent public figures to defy execution of the court verdict. The Supreme Court on March 2 rejected the companys appeal of an earlier verdict to reinstate Khalvashi as majority owner. The company and its supporters allege that the Georgian Dream party and its founder, oligarch Bidzina Ivanishvili, influenced the Supreme Courts decision in order to bring the recalcitrant channel to heel. Government officials deny meddling in the case, insisting that the ownership dispute is strictly commercial in nature. However, Georgias leading human rights watchdogs and freedom of information advocacy groups joined forces in criticizing the Supreme Courts judgment and earlier verdicts by lower courts, describing the decisions as legally dubious. All three instances of judicial proceedings, as well as the final result, do not meet the requirement of independent court decision-making, and strengthen our doubts about the governments crude interference, several of Georgias most prominent civil society groups, including Transparency International Georgia, said in a joint statement. The United States Embassy in Tbilisi said that it views with concern the Supreme Courts decision that could effectively limit the access to opposition voices to Georgian broadcast media. Similar concerns were voiced by international media freedom watchdogs like Freedom House. Rustav2s chief, Gvaramia, said that he and his staff are eager to buy the company back from Khalvashi an offer the businessman was quick to decline. He said such a buyout could land the station back in the hands of self-exiled ex-president Mikhail (Misha) Saakashvili. So long as there is a Misha menace, I am not selling the TV company, Khalvashi said. The businessman claims that he was improperly strong-armed by then-president Saakashvili to relinquish his majority stake in Rustavi2 in 2006. Gvaramia served as a minister of justice and, later, headed the Education Ministry during Saakashvilis administration. Leaked phone conversations last year suggested that Gvaramia and Saakashvili maintain close contact, including engaging in strategy sessions to stave off what they describe as a government takeover of Rustavi2. Many media analysts charge that the court decision could mark the final act in an assiduous campaign carried out by the Georgian Dream to neutralize mass medias watchdog function. Initially, during the early days of its rule, the Georgian Dream was credited with breaking the Saakashvili-era governments control of the national airwaves, which were at that time dominated by three news channels: Rustavi2, Imedi and Public TV. But observers say that the Georgian Dream later carried out its own takeover of television news broadcasts, via which the vast majority of Georgians obtain information about the doings of the government. We have seen the [Georgian Dream] government slowly but surely moving to usurp the media space, focusing primarily on television, said Nino Danelia, a media studies professor at Tbilisi-based Ilia Chavchavadze University. Imedi TV dropped two major current-affairs talk shows in 2015 amid claims of government pressure. The network moved to absorb a small, mostly free-wheeling station, Maestro, and then merged with GDS, a station owned by billionaire Ivanishvilis son, Bera. Imedi TV now leans toward celebrity gossip and infotainment, and is largely government-friendly. In February, Public TV announced controversial plans to suspend political talk shows citing the need to upgrade both the equipment and content. Rustavi2 has been seen as the last holdout operating beyond the influence of Georgian Dream officials. One opposition group, the Republican Party, went so as far as to warn in a March 3 statement that the court ruling on Rustavi2 marks a pivotal moment in Georgias post-Soviet experience, in which a pluralistic system is giving way to the formation of an authoritarian regime. The Georgian Dream already has full control of other democratic institutions, like the executive government, the parliament and, as weve seen, the judiciary, so full submission of the news media is its goal now, Danelia said. The Georgian Dream and Prime Minister Giorgi Kvirikashvili refuted those allegations and called for the courts decision to be respected. The government will spare no efforts to protect the freedom of the media in the country, the prime ministers office said in a statement. The dispute over Rustavi2s ownership dates back to the Saakashvili era, when the company went through byzantine, reportedly government-orchestrated, ownership changes. Founded in 1994 in the town of Rustavi, about a 20-minute drive outside of Tbilisi, Rustavi2 gained popularity for broadcasting exposes on corruption and stagnation during the administration of the late president, Eduard Shevardnadze. Eventually becoming the nations most watched news channel, Rustavi2 played an instrumental role in catalyzing the Rose Revolution, which brought Saakashvili to power. Two of the companys original founders, entrepreneurs Davit Dvali and Jarji Akimidze, claimed they were robbed of the station by the Saakashvili government in 2004. Khalvashi was then seen as one of the governments many hand-picked favorites to take over Rustavi2, but he too was allegedly forced to sell his stake under duress after a falling-out with the government. Khalvashi and the two original founders became unlikely allies in the current ownership dispute, with the businessman promising to give half of his shares to Dvali and Akimidze should the court reinstate him as the channels majority owner. Following the Supreme Courts decision, though, Khalvashi appeared to back away from that promise. With the court decision in place, many media observers and opposition leaders are painting a dark future for free speech in Georgia. Gvaramia said that what was ultimately at stake was whether free speech will exist in Georgia, whether democracy will have a chance in Georgia, [and] whether Georgia will become a part of the Euro-Atlantic space. Other observers remain guardedly optimistic that the government will be unable to control the flow of information. No Georgian government has won a battle with the media, said Danelia, the media studies professor. It may take a long time, but ultimately the government will lose.

Editor's note:

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Georgia: With TV Station Takeover, Is Free Speech at Stake? - EurasiaNet

State Senate passes bill protecting students' free speech The News Tribune Joe Fain, the sponsor of the measure, called it an important bill that reasserts the value of journalism by ensuring that student journalists at the high school and college level "have the types of free speech protections that we Americans have always ... and more »

Excerpt from:
State Senate passes bill protecting students' free speech - The News Tribune

Wichita 4:11 p.m. CT March 3, 2017

Texas A&M University-Kingsville students walk the up and down the pavilion between classes Thursday, the university has had it highest enrollment ever this year.(Photo: ToddYates/Caller-Times File)

Our nation's institutions of higher learning are supposed to be repositories of knowledge, enriched by the free flow of information and competition of ideas, but they are increasingly failing in this mission. Sadly, college campuses, which tend to embrace liberal ideologies, including tolerance, oftentimes are among the most intolerant of opposing views, as evidenced by the imposition of speech codes and enforcement of "free speech zones," which limit what can be said and where it can be expressed.

The Foundation for Individual Rights in Education notes that it "has received an increasing number of reports that colleges and universities are inviting students to anonymously report offensive, yet constitutionally protected, speech to administrators and law enforcement through so-called 'Bias Response Teams.'" More than 230 schools have formed such teams, which oftentimes operate under broad definitions of "bias," and create "a chilling effect on campus expression," FIRE reports. Tensions have reached a boiling point on many campuses, as illustrated by several recent examples in California. Orange Coast College suspended a student for recording a professor's anti-Trump rant, before backing down after a national outcry. At UCLA, conservative communications instructor Keith Fink is accusing his department of political discrimination after suffering reductions in his class size and the rejection of his permission-to-enroll forms, which allow students to enroll in a class with the instructor's permission, under a new department head with reportedly very left-leaning ideals. Only 200 of the 241 students who attempted to enroll in Fink's course were admitted, even though the classroom has a capacity of 293. Ironically, the subject of the argument is Fink's popular "Sex, Politics and Race: Free Speech on Campus" course.

Sometimes, attempts to stifle speech even get violent. A Cal State Fullerton instructor was suspended for allegedly striking a student from the College Republicans, who were staging a counterprotest of students rallying against President Donald Trump's policies. And then there was the violent protest that forced the cancellation of controversial conservative speaker Milo Yiannopoulos' planned event at UC Berkeley a few weeks ago.

But there is a bit of a silver lining as well. Just about a week prior to the UC Berkeley riot, a rowdy crowd forced the cancellation of another Yiannopoulos talk at UC Davis. In response, interim Chancellor Ralph Hextor announced that he is forming a work group of students, faculty and staff to recommend policies to ensure that even the most polemical speakers can have their voices heard on campus. "When we prevent words from being delivered or heard, we are trampling on the First Amendment," Hextor stated recently. "Even when a speaker's message is deeply offensive to certain groups, the right to convey the message and the right to hear it are protected." Quite so. Moreover, there is no place for speech codes and free speech zones on college campuses - or anywhere else. After all, as FIRE senior program officer Adam Steinbaugh wrote in a recent Washington Examiner column, "How will students be able to defend their rights in the legislature or the courts if debating them in the classroom is to be discouraged?"

The Orange County Register (Santa Ana, Calif.)

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Troubling times for free speech on campus - Times Record News

President Donald Trump's war on the news media violates the spirit of the free press. How far can he go before he violates the letter of the First Amendment? Case in point: the exclusion of CNN, the New York Times, Politico and other media outlets from a White House press briefing on Friday. It violates the basic constitutional ideal that the government can't discriminate among various speakers on the basis of their viewpoints. Under existing case law, however, the exclusion probably doesn't violate the Constitution because the news outlets remain free to speak despite losing a degree of access.

To see why the White House's actions were so constitutionally pernicious, begin with the U.S. Supreme Court's modern interpretation of the First Amendment. The core concept is that the government can't target certain ideas because of the perspective that they embody. The court calls this "viewpoint discrimination." And it's considered so serious a violation of free speech that it applies in areas that traditionally were considered exempt from the First Amendment, such as obscenity and libel.

If the goal of the First Amendment is to facilitate a free marketplace of ideas, viewpoint discrimination puts the government's thumb on the scale to the benefit of some ideas and the detriment of others. It makes the marketplace unfree.

If you prefer to think of the purpose of free speech as facilitating political participation by all citizens, viewpoint discrimination is equally wrong. Instead of allowing all ideas to contend to produce the political truth that will guide policy, viewpoint discrimination favors those with certain political ideas over others who disagree.

Plainly, then, the exclusion of some news media from Friday's off-camera "gaggle" with press secretary Sean Spicer violates the ideal that the government should preserve viewpoint neutrality. The whole point of excluding those news organizations was to punish them for expressing ideas Trump doesn't like and to favor alternative organizations the president prefers.

The exclusion comes close to violating existing First Amendment law. Certainly the government couldn't condition the exercise of a First Amendment right on a news organization's viewpoint. If reporters are allowed to participate in certain conversations and therefore report firsthand on them only if they take the government line, that could be construed as an unconstitutional condition on their speech.

Another way that the exclusion could be seen to violate existing doctrine is if the press gaggle is understood as a government-created forum for conversation with a White House representative. In such a "limited public forum," the government can choose the subject matter. But it's flatly prohibited from discriminating against certain participants on the basis of their viewpoints.

The counterargument to both approaches would be that the excluded organizations aren't being prohibited from saying whatever they want. They're just being denied access. And there's no constitutional right to a private audience with a government official, even an official spokesman.

For example, the president certainly can choose among various possible interviewers and can lawfully consider the interviewer's viewpoint in making that decision.

A court applying current doctrine might well adopt this narrow conception of the informal press gaggle. But that approach shows the limits of interpreting the First Amendment in the light of past practice when the president is devoted to finding new ways to limit the press.

In practice, blocking access for some organizations while providing preferred access for others is intended precisely to affect what the excluded organizations say. If you're in the room, you can report on what was said directly, without quoting another source.

What's more, the news organizations aren't passive recipients of whatever the spokesperson happens to say. The gaggle is a dialogue in which the questions might matter as much as the answers.

In that sense, the reporters participating in the gaggle aren't just passively listening. They're actively speaking. Limiting attendance to preferred news organizations is deeply in conflict with principle of viewpoint discrimination.

The Trump administration might think it's being cute by limiting press access without directly prohibiting speech. But a president who says he loves the First Amendment should be held to the standard of loving its values, not just its technical rules as currently interpreted.

The courts should be open to a broader interpretation of the First Amendment to fit the new challenges of the moment. If they aren't, the freedom of the press runs the risk of becoming obsolete.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter.

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Trump's love-hate relationship with free speech | National ... - Kankakee Daily Journal