Daily Archives: May 2, 2017

Lincoln Caplan, Joel Simon, Nicholas Lemann, Michael Oreskes, and Emily Bell. Photo: Meritxell Roca.

The internet in its halcyon days was lauded as a open space that could promote free speech in the US and worldwide, but it is now a realm that has settled into domination by a few companies. As we enter an age in which the internet is fully integrated into our daily lives, the main channel by which we access information, a reconsideration of the values of the First Amendment is required.

This was the motivation for a symposium on May 1 at Columbia University called Disrupted: Speech and Democracy in the Digital Age. Attended by a mix of legal professionals, academics, and journalists, the message was clear: Legal thinking around the First Amendment must renew itself in the new era. The internet is deeply affecting the shape of public discourse. In turn, how can the values of freedom of expression, freedom of the press, and freedom of assembly shape and govern the digital space?

This was the first public event hosted by the Knight First Amendment Institute at Columbia University (the Tow Center for Digital Journalism was co-sponsor). The Institutewill surely be at the center of this debate for years to come. The First Amendment Institute, now up and running after its inception last year under founding director Jameel Jaffer, will be dedicated to research, education, and litigation pursuing freedom of speech.

Law, by nature, is always catching up to technology. Leslie Kendrick, professor of law at University of Virginia, made the distinction between east coast code and west coast codeeast coast code being the codified legal precepts, and west coast code being, well, all those lines written in computer language. East coast code, she said, is always behind west coast code; west coast code moves fast and is always inventing things the law cannot anticipate.

Legal efforts on behalf of the First Amendment have traditionally focused on the right to say thingsthe right to hand out pamphlets, as Tim Wu, professor of law at Columbia and contributing opinion writer for The New York Times, put it. But almost everyone on stage yesterday agreed that, with the internet, the right to say things is no longer under threat. Instead, there are a host of other threats enabled by the advent of the internet.

Now that anyone can publish freely online, one threat to free speech comes from the ability of companies or social media platforms to control who gets heard; how many readers newspapers reach; and which citizens have a voice in a cluttered online environment of bots and ads. Zeynep Tufekci, writer for the Times and professor of communications at University of North Carolina, wondered whether Twitter users leaving the platform because of harassment might be having their freedom of assembly violated. She also warned of new censorship techniques, in use now in China, which drown out anti-government speech rather than the traditional method of silencing. Teams of social media users linked to government agents pump out celebrity controversies, Tufekci said, at the same time other users are trying to raise the profile of the Tiananmen Square massacre.

Such censorship techniques take advantage of the fact that all of us have limited attention. And, as Wu has written extensively on, the entire internet is built so that our attention is the currency. Facebook, in particular, makes money off of being able to keep you on their platform, clicking. And theyve become immensely good at targeting content to you. The data they have on individuals is unprecedented: no longer demographic, but individual and granular. New litigation around the First Amendment must pay attention to this market.

Another threat to freedom of the press is the breakdown of economic models. As Nicholas Lemann, formerly dean of the Journalism School at Columbia, put it, the big story in journalism now is not Trump, but the massive loss of jobs suffered in the past few years. Michael Oreskes, senior vice president and editorial director of NPR (and a CJR board member), emphasized that the greatest loss has been in local papers: Many city halls around the country are no longer covered. While the internet has been very good in making information available globally, local news has suffered because it does not have this universal appeal.

Addressing such questionsthe economic downfall of journalism, the new attention market, a new type of censorshipwill require a more imaginative view of the (quite brief) First Amendment, said Jamal Greene, professor of law at Columbia. Consider, he mused, if we passed a law limiting the number of people you could follow on Twitter to 50. In one sense, such a law would in conflict with the First Amendmentbut in other ways, such a move might promote discussion and deliberation. How we will negotiate such cases will be the work of the coming generation.

The bottom line is that Twitter and Facebook are private companies that have become our primary sites for public discourse. The function of journalismand indeed, the function of democracydepends on upholding the First Amendment to preserve the public sphere.

Watch the full event stream here.

Read this article:
Legal thinking around First Amendment must evolve in digital age - Columbia Journalism Review

The tattoo trade has won another notable legal victory in its long-running battle against unreasonable government regulation.

In late March a three-judge panel of the U.S. Court of Appeals for the 9th Circuit ruled unanimously in favor of California tattoo artist James Real, who is currently mounting a constitutional challenge to the city of Long Beach's anti-tattoo shop zoning law and other prohibitory regulations. "We have held that tattooing is 'purely expressive activity fully protected by the First Amendment,'" the 9th Circuit bluntly reminded the federal district court, which had previously dismissed Real's complaint. "This includes '[t]he tattoo itself, the process of tattooing, and even the business of tattooing.'" Translation: Get your act together, district court.

This is a key win for Real, who had suffered a massive early defeat when the federal district court held that he lacked standing to challenge the city's zoning law as unconstitutional on its face and that he lacked standing to challenge the law as applied to him. The district court also held that the city's actions cannot be viewed as violations of Real's First Amendment rights.

The 9th Circuit reversed the district court on all counts. Its decision in Real v. City of Long Beach orders the district court to rehear Real's case and "to try Real's facial and as-applied First Amendment claims, on the grounds that the City's zoning ordinances operate as unlawful prior restraints on speech and are unreasonable time, place, or manner restrictions on speech." I suspect Real is going to fare a little better in district court the second time around.

As I previously reported in Reason's June 2016 issue, tattoo artists are increasingly taking the government to court and winning on the merits:

Over the past half-century, tattoo artists have been subjected to all manner of overreaching, ill-fitting, and just plain nonsensical government controls. They've been hassled by clueless health departments, shut down by moralizing zoning boards, and outlawed entirely by busybody city councils and state legislatures. But tattoo artists can be a prickly bunch, and increasingly they're opting to fight back. In recent years tattooists around the country have launched a series of civil liberties lawsuits designed to put the government's regulatory malfeasance on trial. And while the ink-masters aren't winning every case, their legal attacks are finally starting to turn the tide.

James Real's preliminary victory at the 9th Circuit is further evidence that the tide is turning.

Follow this link:
Federal Court to Government Regulators: The First Amendment Protects Tattoo Shops - Reason (blog)

Andrew Lichtenstein/Polaris/NewscomPresident Donald Trump's willingness to alter the terms of the First Amendment as part of his desire to censor critical press of him is firmly established: See his constant complaints of "fake news" (to be fair, his complaints are sometimes correct) and his desire to "open up libel laws." The president has no direct influence over the content of libel laws because they're state-level laws. There are many pivotal Supreme Court rulings on the relationship between libel laws and the First Amendment protections of free speech and a free press. Trump would have to rewrite the First Amendment in order to get what he wants.

Trump is not going to be altering the First Amendment. Let's just start with that. Even if he weren't an extremely divisive president, it would be quite the uphill battle. But it is worth taking note at how establishment officials looking to maintain influence within the Trump administration respond. It's worth separating out what is possible from what is likely.

The coverage of Sunday interview between ABC's Jonathan Karl and White House Chief of Staff Reince Priebus on This Week seems designed for the purpose of keeping this fight between Trump and the press on front burner, as if the president's absence from the White House Correspondents Dinner and counter-rally didn't already have that effect.

Priebus knows that Trump isn't changing anything about the First Amendment and that there will be no changes to libel laws in the near future. But he is not willing to say that. He can't. He won't. So during his Sunday interview with Karl he says "It's something we've looked at. How that gets executed or whether that goes anywhere is a different story."

We don't know what "looked at" means (perhaps a Google search of pages that explain state libel laws?), but some media analysts are concerned about the implications that this might actually happen. It probably won't, but the media benefits from playing up this conflict as much as Trump does.

Let's take a look at where that conversation shifted after talking about libel laws, because that's where I'd rather we were paying attention. Trump has also said he would like to criminalize flag-burning, which Priebus also vaguely defended in a similar fashion. There is a lot of popular support for laws against burning flags, though when truly pressed, a majority of Americans tend to come down against a constitutional amendment. The wording of the poll question matters.

Trump is not alone in his desire to change the First Amendment in ways that benefit his particular world view, and if nothing else, his efforts should be use as an object lesson. Priebus complains that the press has been irresponsible in its reporting. This is not a new complaint from government officials targeting the press. In the wake of the Edward Snowden revelations, the New York Times itself (a noted Trump target) hosted commentary by Michael Kinsley suggesting there needed to be some sort of oversight over what the press was allowed to publish.

Americans have a remarkable facility for looking for exceptions to the First Amendment and deciding that some controversial or unpleasant statements simply are not valid forms of speech. On the other side of the aisle, there's a concerted push to invalidate the Supreme Court's Citizens United decision by attempting to amend the Constitution to deprive corporations of legal personhood and of their right to free speech.

And we more prominently have the current push to insist that "hate speech" does not qualify as "free speech" and the belief by many poorly educated Americans (some of whom are actual politicians who should know better). These comments by Priebus should be reminders that if and when there are restrictions placed on the free speech of American citizens, it's the leaders of government who will be calling the shots. We have a president who is thin-skinned and self-interested. We also have any number of political operatives who are willing to play along with him in order to maintain power.

That is all to say, in the event the First Amendment does face the threat of actual new restrictions it will bear the stamp of "public interest." It will be a lie, but not as obvious a lie as what Trump is trying to sell. Guys like Priebus (on both sides of the aisle) will happily sell the Bill of Rights down the river if it will help facilitate the type of government control over society that they want. The Trump administration may deregulate businesses on the one hand, and that's great, but they really have no interest in making the government less powerful.

Back in December, Matt Welch provided a useful five-step process in countering Trump's bad ideas. It's definitely worth reading here.

Go here to see the original:
No, Trump Won't Change the First Amendment, But It Matters That People Want To - Reason (blog)