Daily Archives: April 2, 2017

On Thursday, the Supreme Courtruled in Expressions Hair Design v. Schneiderman that imposing restrictions on how merchants inform buyers about the prices they charge triggers First Amendment scrutiny. This would seem to be an obvious conclusion, but the decision is an important, although limited, victory for those who want to convey honest information to their customers, and for those who have a right to receive that information.

The case dealt with New York Business Law 518, which prohibits merchants from imposing a surcharge on customers who use credit cards, but allows for a cash discount. To put it simply: the law allows stores to advertise discounts for paying cash, but makes ita crimeto advertise an economically equivalent surcharge for paying with plastic.

Expressions Hair Design, along with several other merchants, sued the state, arguing that the law was vague and a violation of their First Amendment right to convey information to their customers. The federal district court agreed, but the U.S. Court of Appeals for the Second Circuit reversed that decision. The circuit courts ruling held that the First Amendment wasnt implicated because the law didnt regulate speech but merely regulated prices. The Supreme Court granted review to determine two issues: The threshold question of whether the law regulated speech rather than conduct and, if so, whether the law violated the First Amendment.

Chief Justice John Roberts, writing for a majority of the Court, held that the New York law was not only a price regulation dealing with conduct, but also a speech regulation: What the law does regulate is how sellers may communicate their prices. As he explained:

A merchant who wants to charge $10 for cash and $10.30 for credit may not convey that price any way he pleases. He is not free to say $10, with a 3% credit card surcharge or $10, plus $0.30 for credit because both of those displays identify a single sticker price$10that is less than the amount credit card users will be charged. Instead, if the merchant wishes to post a single sticker price, he must display $10.30 as his sticker price. Accordingly, while we agree with the Court of Appeals that 518 regulates a relationship between a sticker price and the price charged to credit card users, we cannot accept its conclusion that 518 is nothing more than a mine-run price regulation. In regulating the communication of prices rather than prices themselves, Section 518 regulates speech.

While this part of the Courts decision is an important victory for free speech, the Court also held that the law was not vague and did not decide whether the speech restriction amounted to a First Amendment violation under the commercial speech doctrine. In what has become a theme, the Court made a point of ruling as narrowly as possible and remanded the case to the Second Circuit to make that hard balls-and-strikes call that John Roberts discussed at his confirmation hearing. This means the merchants will have to continue to fight for their rights in the lower court.

Although the judgment remanding the case to the circuit court was unanimous, Justices Stephen Breyer and Sonia Sotomayor (joined by Justice Samuel Alito) wrote separate concurring opinions. Justice Breyer continued his disheartening plea for the Court to adopt a rational-basis-type test when dealing with certain commercial speech (meaning the government wins). As Cato pointed out in our amicus brief, however, this approach has no foundation in First Amendment law. All restrictions based on content of speech should be subject to exacting scrutiny. Justice Sotomayor wrote a longer concurrence, arguing that because of the complexity of the case, the Court should have sought the input of the New York Court of Appeals (New Yorks highest state court) to get a clearer picture of what the statute actually does.

Ultimately, while the victory was small, the Court chose to recognize the law for what it wasa restriction of the merchants ability to tell their customers the truth. Only time will tell whether the Second Circuit will now do the right thing and rule that the restriction violates the First Amendment.

Link:
An Important but Limited Victory for Free Speech - Cato Institute (blog)

HARRISONBURG, Va. Corey Stewart led a rally against illegal immigration on the steps of a historic courthouse Saturday after two local restaurants, bowing to threats of boycotts, backed out of hosting the firebrand Republican running for Virginia governor.

You know youre winning the battle when your opponents try to shut you down, Stewart told the crowd.

Stewarts campaign originally booked a Harrisonburg restaurant for his Rally to End Illegal Immigration. But the restaurant canceled last week after receiving phone calls and emails from members of Harrisonburg Indivisible and other local activists. Complaining about Stewarts divisive rhetoric, they told restaurant managers they would no longer patronize the eatery if it hosted the rally.

Stewarts campaign then reserved a room at a second restaurant, but that got canceled as well after another round of emails and phone calls. His team scrambled Friday to get a permit to hold the rally at the Rockingham County Courthouse, where on Saturday Stewart declared a victory for free speech.

[GOP chair slams Va. gubernatorial contender for calling rival a cuckservative]

Stewart used his canceled reservations saga in fundraising appeals as a critical campaign finance deadline approached Friday, claiming that the activists were on the payroll of financier George Soros something the activists said was not true.

George Soros and his group of paid liberal activists, Indivisible, have launched an attack intending to stop my rally against illegal immigration, one fundraising email reads. They are trying to convince people that my ideas are unreasonable. But how can protecting the safety of American citizens and upholding the rule of law be considered unreasonable?

Stewart is in a three-way race for the GOP nomination with former Republican National Committee chairman Ed Gillespie and state Sen. Frank Wagner (Virginia Beach). On the Democratic side, Lt. Gov. Ralph Northam and former congressman Tom Perriello are vying for their partys nod. Gov. Terry McAuliffe (D) is prohibited from seeking reelection this year under the state Constitution, which bars governors from serving consecutive terms. Both nominations will be decided in June 13 primaries.

Stewart was chairman of Donald Trumps Virginia campaign, and he is seeking the governorship in similarly provocative style. Far behind Gillespie in fundraising and endorsements, the chairman of the Prince William Board of County Supervisors has often sought to stoke controversy and attract counterprotesters to his events.

[Trumps Virginia Mini-Me: Corey Stewart ties his ambitions to the GOP candidate]

Stewart has used heated rhetoric regarding illegal immigrants, vowing to hunt them down. He has, at times, called the preservation of the states Confederate monuments the most important issue in the governors race. His campaign got lots of mileage out of video showing liberal protesters mobbing him in Charlottesville in February, when he held a rally to defend a Robert E. Lee statute that city leaders want removed.

Harrisonburg looked like fertile ground for that kind of visual. Nicknamed the Friendly City, it is a college town with a population more diverse than its Shenandoah Valley surroundings might suggest. The Latino population has grown from just under 9 percent in 2000 to nearly 19 percent in 2015, according to census figures. About 17 percent of residents are foreign-born, up from 9 percent in 2000. Church-based refugee resettlement programs and a poultry industry dependent on immigrant labor are behind the trends.

Yet Saturdays rally was no repeat of the Charlottesville mob that shouted Stewart down. The event drew only about 20 supporters and 10 protesters. Except for a man who shouted Scumbag! at Stewart, the protesters were not disruptive. They stood silently around a sign that said, No matter where you are from, were glad youre our neighbor, in Spanish, English and Arabic.

In a conversation after the rally, Stewart stressed that he does not oppose legal immigrants, only those who come to the country illegally.

Danny Maybush, a truck driver in a Make America Great Again cap, said he only opposed immigrants who come up here and want to get a better life and start some stupid gang.

I like that its a melting pot, he said of the country. I have a Hispanic family that lives near me, and they came here legally, and they all work hard. We had a big snow the year before [last]. I was going to snowblow their driveway but they already had seven people out there going at the driveway.

The on-again, off-again lead-up to the rally ultimately proved to be more dramatic than the event itself. Stewart began by unfolding a piece of paper with three mug shots. They were of three illegal immigrants from El Salvador who were charged last week in the death of a Lynchburg teenager, 17-year-old Raymond Wood. Stewart went on to ask for a moment of silence for Wood and all the other boys and girls in Virginia and across the country who have been murdered by illegal aliens.

That was the kind of rhetoric that John Schaldach, a Harrisonburg Indivisible organizer, said he objected to when he organized the email and phone call campaign to the two restaurants, Daves Taverna and Wood Grill Buffet.

Ask them to cancel the Stewart event, his email to activists said. Let them know if they dont, you will not patronize Daves and you will ask your friends to do the same. Please be kind to the manager! ... Thank you for taking action on this critical local issue! Together we can make sure Corey Stewart knows his message is not welcome here.

Schaldach, a 46-year-old piano technician, did not dispute Stewarts right to express his views in public, as the candidate ultimately did at the courthouse. But he said the activists had a right to let local restaurants know that they opposed his message.

My concern is that his rhetoric is divisive, he said. The effect of his rhetoric is a segment of our community ends up feeling isolated. ... He talks about illegal immigration, and then he talks about crime and he mixes it all together. And you come out the other end, and you think immigrants are related to crime. When, in fact, the opposite is true. ... Theres no evidence they commit more crimes.

In linking the protest to Soros, Stewart was echoing a claim White House press secretary Sean Spicer and others have lobbed against Indivisible activists who have sought to disrupt GOP town hall meetings nationally.

[Republicans see AstroTurf in Democratic protests]

Soros has pumped millions into liberal causes since the 2004 election cycle. But Soros spokesman Michael Vachon has disputed claims that Soros has paid Indivisible protesters or picked up their transportation tab. Schaldach said his group gets no money from Soros.

The Harrisonburg group is one of more than a thousand Indivisible spinoffs created nationwide and organized around the Indivisible Guide, an organizational how-to manual drafted by former Democratic staffers. Stewarts campaign noted that some of the aides now work for Soros-funded organizations, such as the National Immigration Law Center.

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Corey Stewart declares victory for free speech after two venues back out of immigration rally - Washington Post

You hear it all the time from conservatives: The left mustremember to tolerate dissenting opinions. Butif youve followed the news cycle recently, you may have noticed that it hasnt been the left imposing social penalties on its members for expressing controversial opinions recently. Its been the right.

Tomi Lahren formerly of The Blaze, who was once hailed as the second coming of Ann Coulter, is now fighting to retain control of her Facebook page after being unceremoniously dropped for daring to express a pro-choice opinion. Meanwhile Milo Yiannopoulos formerly of Breitbart whom the right once claimed to venerate because of his willingness to flout the taboos of discourse was toppled last month when it was discovered he had once seemingly condoned ephebophilia.

So what gives? Why are members of the left regularly denounced as special snowflakes when the right just took down two of its highest profile pundits for daring tostray from the ideological reservation?

Both ends of the political spectrum can be vociferous defenders of speech with which they agree, but are sorely tested when speech offends them, said Ken Paulson president of the First Amendment Center and dean of Middle Tennessee State Universitys College of Mass Communication, as well as former editor-in-chief of USA Today. America became a great country in large part because everyone could share an opinion, and over time, the best ideas forged our nation. Today everyone is free to speak, but wheres the value if no one is willing to listen?

The First Amendment protects insightful ideas, but also stupid, insensitive, hateful and deeply offensive speech,Paulson added in an email. Theres no cherry-picking the right to speak.

David Hudson, alaw professor at Vanderbilt University,echoed Paulsons views.

I call it the dissonance between the ideal and the real, Hudsontold Salon in an email. The ideal is that we support free speech; we tolerate and even encourage opposing viewpoints. The real is that we despise contrary viewpoints and take measures to silence them; we fail to adhere to the essence of the First Amendment our blueprint for personal liberty.

Liberals and conservatives both suppress speech, Hudson concluded. Neither side has a monopoly on it. Censorship is as common an impulse as sex. What we need is a greater commitment all across the political spectrum to accept and listen to speech that we dont like.

The Foundation for Individual Rights in Education, or FIRE, was able to back up Paulsons and Hudsons observation about both sides suppressing dissent by citing their own experience. In an email to Salon,Senior Vice President of Legal and Public Advocacy Will Creeley described having to stand up for speakers from right-wingers like Milo Yiannopoulos to left-wingers like Bill Ayers, and that they have had to defendstudent activists regardless of whether they are promoting pro-LGBT or anti-abortion positions.

Unfortunately, there are many more instances of students, administrators, and lawmakers from across the political spectrum calling for censorship of speech they dislike, Creeley wrote. He also pointed out that a great deal of campus censorship defies simple political labels. For example, weve stood up for the rights of students seeking to discuss thoughtsof self-harm with friends, stage artistic installationsthat explore institutional ties to slavery, promote animal rights,and criticize former PresidentsBarack Obama and President George W. Bush simultaneously.

In the opinion of this writer, Hudsons final sentence that we need a greater commitment all across the political spectrum to accept and listen to speech that we dont like speaks to the heart of this issue. When right-wingers silenced Lahren for being pro-choice or Yiannopoulos for being blase about sexual abuse, they came up with rationalizations as to why the expression of those views was somehow beyond the pale, just as the 40 percent of American millennialswho were willing to support government suppression of bigotry against minorities no doubt had rationalizations for why that form of censorship would be okay.

The point here is not that one has to agree with Yiannopoulos or racial bigotry or Lahrens perspective on abortion. It is that, regardless of whether one agrees or disagrees with those perspectives, it is essential for a free society worthy of the term to practice free speech as well as preach it.

To quote Evelyn Beatrice Halls famous biography of Voltaire:

I dont agree with what you say but I will defend to the death your right to say it.

More:
Free speech vs. safe spaces: Are conservatives special snowflakes when it comes to discourse they don't like? - Salon

UN rights experts have voiced concerns over bills recently introduced by a number of US states aimed at restricting the right to assembly, saying they are undemocratic and violate international human rights obligations adopted by Washington.

Since January 2017, a number of undemocratic bills have been proposed in state legislatures with the purpose or effect of criminalizing peaceful protests, the UNs top experts on freedom of expression and freedom of assembly, David Kaye and Maina Kiai, said in a recentstatement.

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The proposed bills, if approved would severely infringe upon the exercise of the rights to freedom of expression and freedom of peaceful assembly, the statement says, noting that it would be incompatible with US obligations under international human rights law and with First Amendment protections.

The trend also threatens to jeopardize one of the United States constitutional pillars: free speech.

According to the UN experts, since the presidential election in November, US lawmakers in at least 19 states have introduced legislation restricting assembly rights by various degrees.

This comes as the US has seen an unprecedented surge in mass protest movements, from Black Lives Matter demonstrations to mass protests against Trumps migration laws, environmental and Native American protests against the Dakota Access oil pipeline, and the Womens Marches. The latter, for instance, was held across hundreds of cities and ended up as one of the largest demonstrations in US history, some estimates indicate.

Individuals and organizations across society have mobilized in peaceful protests, as it is their right under international human rights law and US law. These state bills, with their criminalization of assemblies, enhanced penalties and general stigmatization of protesters, are designed to discourage the exercise of these fundamental rights, the UN experts warned.

In their analysis, the UN experts pointed out a number of bills regarding unlawful obstruction of traffic by protesters, for instance in Florida and Tennessee, where it has been proposed to exempt drivers from persecution if they accidentally hit and kill people demonstrating in the road.

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A similar Indiana Senate bill could allow law enforcement to use any means necessary to clear the roads of demonstrators, while at least eight other states propose bills that would disproportionately criminalize protestors for obstructing traffic, like the one in Missouri, which sets a prison term of up to seven years for obstruction of traffic.

Kaye and Kiai mentioned that many of these bills target opponents of the Dakota Access Pipeline construction in North Dakota and could have a chilling effect on environmental protesters. A little over a month ago, several dozen law enforcement officers in riot gear raided the protesters camp near the site and arrested a number of people who had been camping there for months.

The experts also criticized the use of the word unlawful regarding public assembly in the proposed legislation, as well as the term violent, which they deemed to be entirely inappropriate in the phrase violent protest common for most of the bills.

There can be no such thing in law as a violent protest. There are violent protesters, who should be dealt with individually and appropriately by law enforcement, they said, noting that one persons decision to resort to violence does not strip other protesters of their right to freedom of peaceful assembly.

This right is not a collective right; it is held by each of us individually. Peaceful assembly is a fundamental right, not a privilege, and the government has no business imposing a general requirement that people get permission before exercising that right, they explained.

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US anti-protest bills 'undemocratic' & 'alarming' trend against free ... - RT

Ernest Freeberg, Guest columnist 5:05 a.m. ET April 2, 2017

The Dough Boy, a memorial to veterans of World War I, sits in front of the Old Knoxville High School, pictured May 27, 2010. (NEWS SENTINEL ARCHIVE)(Photo: KNS Archive, J. Miles Cary/News Sentinel)Buy Photo

Today, Americans will pause to remember the centenary of President Woodrow Wilsons stirring message to Congress, asking for a declaration of war on Germany. We have no selfish ends to serve, he told lawmakers in 1917. We desire no conquest, no dominion. Instead, the United States would join this terrible conflict in order to bring peace and safety to all nations and make the world itself at last free.

Many Americans were deeply inspired by Wilsons call for the nation to fight in the name of a just and lasting peace. After Germany was beaten, Wilson predicted, the United States would lead in the creation of a new international order that would defend the rights of small nations and,through collective action, make the world safe for democracy.

While the Great War marks a major turning point in the nations engagement in international affairs, it is well for us also to remember the terrible toll that this war took on Americas democracy on the home front.

Ernest Freeberg(Photo: Submitted)

First, we must understand that a great number of Americans remained unpersuaded by Wilsons arguments. A vibrant peace movement had seen the war coming for more than a decade, and had warned against the threat that militarism posed to American values a bloated budget, higher taxes, and an expansion of federal authority that would distort the nations democratic values. Further, a third of Americans in 1917 were either immigrants or the children of immigrants, and fighting with the Allies tugged on the conflicting loyalties felt by German, Irishand Jewish Americans. Christian pacifists, such as Tennessees Alvin York, felt religious scruples against violence, and political radicals scoffed at Wilsons lofty sentiments, declaring the war a turf battle between Europes economic rivals. The only victors, they warned, would be American bankers and arms manufacturers; this would be a rich mans war and a poor mans fight.

This is a 1919 photo of Sgt. Alvin York of the U.S. Army in an unknown location. Two Tennessee researchers who think they pinpointed the World War I battlefield where Sgt. Alvin C. York's valor earned him a Medal of Honor. (AP Photo/Department of U.S. Army)(Photo: DEPARTMENT OF U.S. ARMY, ASSOCIATED PRESS)

Desperate to draft, train and ship an army of 4 million men to France, the Wilson administration decided that free and open debate was a luxury that the nation could not afford. The attorney general asked citizens to report anyone who seemed suspiciously unenthusiastic about the war, and federal agents soon spent countless hours tracking down bogus tips. Congress passed the Espionage Act, a law that proved useless in catching spies but empowered prosecutors to send thousands of anti-war speakers to jail, some for 10-year sentences. Another federal law threatened similar harsh punishment for anyone who spoke or wrote any disloyal, profane, scurrilous, or abusive language about the government, the Constitution, the flagor the armed forces. The U.S. Post Office used these laws to silence any publication that dared to challenge the governments policy.

memday4.SY--met-- A detail of a battle scene on the pedestal of World War I Doughboy statue at Fifth Ave. in front of the Old Knoxville High school building has been completely restored and cleaned. 2005 Saul Young/News Sentinel (Photo: Saul Young)

This intolerant fervor spread to state lawmakers, who passed their own sedition laws, forced teachers to take loyalty oaths, and struck a blow for liberty by taking the German language out of the public-school curriculum.

Not content to silence its critics, the Wilson administration took unprecedented control of the marketplace of ideas. Recruiting some of the nations finest writers, scholars and artists, the government advertised America at home and abroad. When the war broke out in August1914, few observers on either side of the Atlantic could agree on the causes of this horrendous conflict. But by 1917, government propaganda portrayed the war as a cosmic clash between the forces of darkness and light. As a concerned journalist observed, the government conscripted public opinion as they conscripted men and money and materials. They goose-stepped it. They taught it to stand at attention and salute.

World War I soldiers visit a Red Cross canteen at the Southern Railway station. (McClung Historical Collection)(Photo: McClung Historical Collection)

All this fake news had a terrifying effect. Across the country, Americans with a bad case of war fever attacked immigrants, pacifists, political radicalsand sometimes just those stubborn individualists who dared to speak their mind in public. Men exercised their patriotism by flogging, tar and feathering, and lynching their fellow citizens.

In the end, American soldiers made a decisive contribution to the Allies victory. But Wilson proved unable to deliver the more rational and just postwar order he had conjured in his 1917 war declaration. Disillusioned, a growing number of Americans came to recognize the enormous pressures that war puts on the nations democratic traditions. Among them was a small group of lawyers, from all sides of the political spectrum, who created the American Civil Liberties Union, first organized to defend the rights of those jailed for opposing the nations role in World War One. An important but often forgotten legacy of the Great War, the ACLU has been working ever since to defend the right of citizens to speak their minds in times of war.

Ernest Freeberg is the head of the University of Tennessee History Departmentand the author of "Democracys Prisoner: Eugene V. Debs, the Great War, and the Right to Dissent" (Harvard University Press, 2008).

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Ernest Freeberg: President Wilson waged a war on free speech - Knoxville News Sentinel

By Kate Daniels and Megan Provost | March 31, 2017 10:07 pm

The Madison branch of the Industrial Workers of the World held a demonstration speaking out against fascism and recent violence against members of their union Friday.

The demonstration, titled All Out Against Fascism and Hate, and organized by the unions General Defense Committee, attracted roughly 45 people to Library Mall.

Demonstrators gathered at Library Mall to listen to speakers such as Alex Gillis of the Union de Trabajadores Inmigrantes, Lariisa Stewart of the Madison Feminist Directory and Sam Olson of the Wisconsin Bail Out the People Movement. Speakers covered topics such as injustice against minority groups and national responses surrounding President Donald Trumps election.

According to Erik LW, member of the IWW, the demonstration was a direct response to the recent shooting of an IWW member in Seattle during a counter protest of a Milo Yiannopoulos event.

Were just trying to bring more attention to basically a violent movement that were seeing in this country and around the world, LW said.

In the demonstrations Facebook event, IWW specifically cited student organizations on campus that they believed were perpetuating violent ideals. Those organizations included the American Freedom Party and Young Americans for Freedom.

YAF partnered with Young Americans for Liberty to mobilize and promote their agenda of free speech in response to the accusations of fascism by the IWW.

We all kind of joined together to discuss how were kind of upset with how our campus has been kind of rebelling against free speech, YAF Recruitment Chair Abby Streu said.

Streu and YAL Chair Cahleel Copus were quick to dismiss claims of fascism and violence made against their organizations by the IWW.

We are not out here protesting our ideas. Were literally out here promoting free speech, Copus said. We think that free speech is a beautiful thing. Its a great liberal tradition on college campuses that people freely exchange all ideas, and we want to promote that concept.

While the event remained peaceful, heckling was present between both sides of the demonstration.

This is not an attack on your free speech. Were standing up for people who need it, Stewart said in response to opposing demonstrators.

YAF member Kyle Reski said he believed the demonstrations were not productive.

I appreciate disagreement, but when people are just screaming at you calling you racist and hateful and violent you cant have a conversation with that, Reski said.

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Demonstrators protest against fascism, promote free speech on Library Mall - The Daily Cardinal