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Monthly Archives: June 2017
Why We’re Suing the FBI for Records About Best Buy Geek Squad Informants – EFF
Posted: June 1, 2017 at 10:19 pm
Law Enforcement Should Not Be Able to Bypass the Fourth Amendment to Search Your Devices
Sending your computer to Best Buy for repairs shouldnt require you to surrender your Fourth Amendment rights. But thats apparently whats been happening when customers send their computers to a Geek Squad repair facility in Kentucky.
We think the FBIs use of Best Buy Geek Squad employees to search peoples computers without a warrant threatens to circumvent peoples constitutional rights. Thats why we filed a Freedom of Information Act (FOIA) lawsuit today against the FBI seeking records about the extent to which it directs and trains Best Buy employees to conduct warrantless searches of peoples devices. Read our complaint here [PDF].
EFF has long been concerned about law enforcement using private actors, such as Best Buy employees, to conduct warrantless searches that the Fourth Amendment plainly bars police from doing themselves. The key question is at what point does a private persons search turn into a government search that implicates the Fourth Amendment. As described below, the law on the question is far from clear and needs to catch up with our digital world.
A federal prosecution of a doctor in California revealed that the FBI has been working for several years to cultivate informants in Best Buys national repair facility in Brooks, Kentucky, including reportedly paying eight Geek Squad employees as informants.
According to court records in the prosecution of the doctor, Mark Rettenmaier, the scheme would work as follows: Customers with computer problems would take their devices to the Geek Squad for repair. Once Geek Squad employees had the devices, they would surreptitiously search the unallocated storage space on the devices for evidence of suspected child porn images and then report any hits to the FBI for criminal prosecution.
Court records show that some Geek Squad employees received $500 or $1,000 payments from the FBI.
At no point did the FBI get warrants based on probable cause before Geek Squad informants conducted these searches. Nor are these cases the result of Best Buy employees happening across potential illegal content on a device and alerting authorities.
Rather, the FBI was apparently directing Geek Squad workers to conduct fishing expeditions on peoples devices to find evidence of criminal activity. Prosecutors would later argue, as they did in Rettenmaiers case, that because private Geek Squad personnel conducted the searches, there was no Fourth Amendment violation.
The judge in Rettenmaiers case appeared to agree with prosecutors, ruling earlier this month that because the doctor consented both orally and in writing to the Geek Squads search of his device, their search did not amount to a Fourth Amendment violation. The court, however, threw out other evidence against Rettenmaier after ruling that FBI agents misstated key facts in the application for a warrant to search his home and smartphone.
We disagree with the courts ruling that Rettenmaier consented to a de-facto government search of his devices when he sought Best Buy's help to repair his computer. But the court's ruling demonstrates that law enforcement agents are potentially exploiting legal ambiguity about when private searches become government action that appears intentionally designed to try to avoid the Fourth Amendment.
The FBI's use of Geek Squad employees to do their dirty work of searching people's devices without warrants is in part possible because there is a legal distinction between searches conducted by purely private parties and searches by private parties done on behalf of government agents.
The Fourth Amendment protections for persons, houses, papers, and effects, against unreasonable searches and seizures, only protects against searches conducted by state actors or someone deputized to act on their behalf.
That means if a private actorlike your next door neighborbreaks into your home and finds evidence of a crime, theres nothing keeping the police from using your illegally gotten property or information against you. The neighbor may be liable for trespass, but it wouldn't amount to a Fourth Amendment violation. This is called the private search rule and it applies unless a court determines that the private actors are working for the government when conducting the illegal searches.
The federal appeals court covering California and other western states has ruled that determining whether a party is a state or private actor comes down to two elements: (1) whether government officials knew of and agreed to the intrusive search and (2) whether the party conducting the search intended to assist law enforcement or further her own ends.
Under this rubric, the FBI's Geek Squad informants should plainly qualify as agents of the government. The records disclosed thus far indicate that FBI agents paid Geek Squad informants to conduct these wide-ranging searches of customers' devices, suggesting that officials both knew about the searches and directed the informants to conduct them. The payments Geek Squad informants received also demonstrate that they conducted the searches with the intent to assist the FBI.
Because both factors are present in the FBI's use of Geek Squad informants, we think any court encountering facts similar to Rettenmaier's should rule that the Fourth Amendment applies to the searches conducted at Best Buy facilities. Because the Fourth Amendment generally requires the FBI to obtain warrants before searching devices, the warrantless searches by Geek Squad personnel were the result of an unconstitutional search and thus any evidence obtained as a result of the illegal searches should be thrown out of court.
However, even if the Geek Squad is found to be a state actor, the government may still argue that computer owners waived any reasonable expectation of privacy in their digital files when they consented to Best Buys terms for repairing their devices. The U.S. Supreme Court applies a reasonable person standard when a property owner is aware that they are consenting to a government search.
This proved to be the pivotal argument in Rettenmaier's case, as the government argued in its briefs that computer owners waived their Fourth Amendment rights by signing a written form stating that they are on notice that any product containing child pornography will be turned over to the authorities.
We disagree with the government's flawed argument. While the Best Buy service contract does put customers on notice that it will report child porn to the FBI if it finds it, we don't think it comes close to informing customers that Geek Squad employees are working for the FBI and will search their hard drives far beyond the scope of permission customers gave. As the Rettenmaier motions show, it appears that Best Buy staff searched unallocated storage space where the problems with the computer would not be found.
When a customer turns their devices over to Best Buy or any other repair shop, their consent to searches of their devices should be limited to where the problems with the computer are locate. Thus, customers cannot plausibly consent to expansive searches of their entire devices.
A real world analogy highlights the absurdity of the government's argument. When you go to the doctor for a sore throat, you dont expect the doctor to order an MRI of your entire body.
The FBI's exploitation of the private search doctrine by relying on Geek Squad informants to conduct searches of people's devices is incredibly problematic. As technology advances, the wealth of information that may be stored or accessed from our digital devices implicate profoundly more private spheres of our lives, from protected medical and financial information to personal information about our friends, family, and loves ones.
If courts continue to rule that the Geek Squad informants arenot state actors,thenthey are free to turn over any evidence they find to the government and law enforcement can then reconstruct the private partys search free of any Constitutional taint to then obtain a warrant for the evidence. This subverting of Constitutional protections is made possible by an outdated and problematic legal concept known as the Third Party Doctrine that bars Fourth Amendment protection when a user voluntarily shares information with a third party (here, the Geek Squad), thus defeating any reasonable expectation of privacy in the evidence. This legal theory has been applied to eviscerate individual privacy interests in such private information as bank records shared with your financial institution and cell site location information shared with your cell phone providers and produced to law enforcement without a warrant.
Currently, theres a circuit split on how this search reconstruction may take place. In the Fifth and Seventh Circuits, courts permit law enforcement to search the entire computer without a warrant based on the private partys search. In contrast, the Sixth and Eleventh Circuits restrict government searches only to the files searched by the private party. And in at least one district court in the Northern District of Indiana, the court decided that a private computer repairman had the authority to consent to a government search on behalf of the computer owner by virtue of his possession of the device.
We think that the FBI's use of Geek Squad informants is not an isolated event. Rather, it is a regular investigative tactic law enforcement employ to obtain digital evidence without first getting a warrant as the Fourth Amendment generally requires. EFF continues to look for opportunities to challenge this type of law enforcement behavior. If you have had your digital devices sent to the main Best Buy repair hub in Brooks, Kentucky for repair and it resulted in criminal proceedings against you, contact us at info@eff.org.
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Why We're Suing the FBI for Records About Best Buy Geek Squad Informants - EFF
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More Americans Are Embracing Their Second Amendment Rights – The Daily Caller
Posted: at 10:19 pm
We are over 100 days into the Trump administration, and there have been record numbers of gun sales as citizens are empowered by new leadership to embrace their Second Amendment rights. In April alone, the National Instant Criminal Background Check System (NICS), the system gun retailers use to verify if a potential buyer can legally buy a gun, ran a whopping 2,045,564 background checks, showing there is renewed support for a strong Second Amendment after 8 years of anti-gun policies. And at the U.S. Concealed Carry Association (USCCA) our membership numbers continue to rise because the right to self-defense is one of our most fundamental beliefs as Americans.
In December 2015, a Gallup poll showed that 16% of Americans put terrorism as the number one issue facing our country. Sure enough, homeland security was also one of the biggest issues at the forefront of the 2016 election. Americans are worried about protecting themselves and their families, and have decided to take full advantage of their Second Amendment rights.
Under the past administration, President Obamas solution to violence and terrorism in this country was to legislate policies to keep people from legally obtaining guns. Now, under an administration thats pro-Second Amendment, gun owners can finally stop feeling criminalized for wanting to defend themselves.
An NBC/Washington Post poll also from December 2015 shows more people believe that the best way to stop terrorism is to allow citizens to arm themselves, instead of stricter gun control laws. A majority of people surveyed were also against an assault weapons ban, showing that the liberal claims of the majority of the country is against assault weapons, are false. In the same poll, only 22% of respondents were confident in the governments ability to prevent a terrorist attack an unsettlingly low number. All of these numbers from a year and a half ago, when our country was so close to an election, all explain the recent uptick in gun sales.
Americans watch the news, and are aware of what is going on around the world. We see it almost daily. Terrorist attacks in Europe, in places that seemed perfectly safe until recently, and even acts of domestic terrorism here in the United States have citizens concerned about their safety. Not to mention the instances of everyday crimes, which interestingly enough, is usually higher in places that have stricter gun laws. Legal access to firearms make citizens and their communities safer, and a country of armed, responsible citizens is a deterrent to criminals everywhere.
Lone-wolf terrorist attacks are on the rise, and the police cant always get there fast enough to stop the attacker before they hurt or kill people. Many attackers are known to the FBI and law enforcement, but there is little the government can do to intervene if the attacker keeps a low enough profile. It is up to responsibly armed citizens to be the first line of defense when these situations arise. Whether they are protecting just themselves, their family, or a classroom full of schoolchildren, people can see a clear need to arm themselves and know how to respond in a life threatening situation.
Back when the framers of the Constitution spelled out our freedoms in writing, the gun lobby did not exist. They were under no pressure from any interest groups regarding guns, and with pure intentions, wrote that the right to keep and bear arms shall not be infringed. With a leader in the White House that embraces and respects the Second Amendment, the tide is quickly turning toward a society that embraces responsible gun ownership, and does not condemn people for want to protect themselves.
Tim Schmidt is the president and founder of the U.S. Concealed Carry Association, and may be contacted at [emailprotected].
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More Americans Are Embracing Their Second Amendment Rights - The Daily Caller
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SECOND AMENDMENT PRIMER Part II – Canada Free Press
Posted: at 10:19 pm
"Shall Not Be Infringed"
Weapons change, but the man who uses them changes not at all.Gen. George S. Patton
It seems that a segment of the shooting population pines for the old times, and actually believes things were better way back when. Guns were in .30 cal and .45 ACP, the uniforms were pressed to a razors edge, and Mitsubishi was a thing only known for being shot out of the sky. Back when the ships were made of wood, and the men were made of iron. But the truth is, weapons evolve. And you either get with that evolution, or you go extinct. To borrow a quote from my favorite humor website Cracked.com, showing up to fight iron age enemies with bronze age weapons, you might as well have been carrying a breadstick. GUNS AMERICA
The prevailing thought on the gun control political left is that times have changed but technology has no reason to. That is, while a man had the right to defend himself using a single shot musket in 1791 against an attacker using a single shot musket, a man in 2017 using a five shot revolver has no right to defend himself against a perp with a 30 shot semiauto AR. Or a variant: the home owner with a 30-round AR has no right to use his repeating firearm against four attackers using a 10 shot semiauto pistol, a crowbar, a butcher knife, or a runaway truck. For the left, self-defense is unfair to begin with, and for all self-defense cases the left has a pat answer: The Founders Never Gave Americans the Right.
Justice Scalia did.
For the left. equality is everything. Self-defense by its nature discriminates against the attacker who may not be as well-armed. What they would prefer is for the perp to have the 30 shot AR, and for the home defender to have a replica single shot musket, or better yet, an Obamaphone with which they can call 911.
As you can see in the linked video, the victim has plenty of time to make the call. And wait for the police to show up. And too, that a single shot firearm would have sufficed.
As in all things, the left takes a logical point illogically to its logical conclusion: meaning that in the 18th century when the Bill of rights were composed, man used mostly muzzle-loading single shot muskets. When the founding Fathers wrote the constitution, the gun controller will posit, they never had in mind repeating firearms for use by civilians
David Deming - - Wednesday, April 12, 2017 Washington Times
For decades the federal judiciary has been trying to interpret the Second Amendment out of the Constitution. It is, as Sanford Levinson has termed it, an embarrassment to an elite class of legal scholars that finds firearms to be unusual and repulsive objects. Now the 4th U.S. Circuit Court of Appeals has declared that the semi-automatic AR-15 rifle is not covered by the Second Amendment, despite that fact that is the most common rifle sold in the United States. This execrable decision is the latest outrage in a long series of disingenuous judicial contortions.
The courts have never come to terms with the fact that any intelligible reading of the Second Amendment requires an interpretation that acknowledges and reconciles its two clauses. The operative clause speaks of the right of the people, while the prefatory clause justifies the operative clause by professing that a well regulated militia is necessary to the security of a free state.
Prior to the Heller decision by the Supreme Court (2008), for 60 years or more the federal judiciary almost unanimously ruled that the Second Amendment did not guarantee an individual right. The militia mentioned in the prefatory clause was taken to be the National Guard. Thus, the right described in the operative clause was interpreted to be the right of states to maintain militia. This interpretation was never credible because it excised the Second Amendment from its contextual and historical underpinnings.
The Obama-appointed left-liberal circuit courts, their predecessors and leftist media had the nation convinced that the 2nd Amendment ratified in 1791 actually meant the National Guard established in 1903. You see, not only are the political left Time Travelers, being delusional with uncontrollable tyrannical tendencies to rewrite law, they also live in the fourth dimension where $8000 deductibles actually mean AFFORDABLE Health Care.
The factual argument is that all firearms were designed for the military or police at first and came into general use later (and here I except fully-automatic small arms and artillery for what should be obvious reasons). Everyone belonged to the militia - as all able-bodied Americans legally do today unless they are prohibited from membership by law.
The militia is defined as all able-bodied non-trans-gendered Americans who used to be able to pick up a 12 lb. musket in 1791, but have trouble picking up a 6 lb. AR today that can fire 30 times as many rounds as the musket. Military and civilian small arms have operated in the same fashion (select auto fire is the exception, and have not been available to the general public since the 1930s.)
David Derning:
What weapons are excluded? Those not in the common use by an individual citizen, such as poison gas or large artillery pieces. The phrase used in Heller, dangerous and unusual, is properly understood to refer to weapons of mass destruction.
For the record, there are over a half million fully automatic firearms in the hands of specially-licensed American citizens and collectors and they are never used in the commission of crimes.
THE REPEATING FIREARM EXISTED IN PRE-REVOLUTIONARY AMERICA
David Koppel of the Volokh Conspiracy, Washington TImes:
The first repeaters to be built in large quantities appear to be the 1646 Danish flintlocks that used a pair of tubular magazines, and could fire 30 shots without reloading. Like a modern lever-action rifle, the next shot was made ready by a simple two-step motion of the trigger guard. These guns were produced for the Danish and Dutch armies. Brown, at 106-7.
30 rounds, just like the modern AR-15 - exactly the kind of firearm the Founders had on mind when they referred to Shall Not Be Infringed.
David Kopell continues:
Gun-control advocates often argue that gun-control laws must be more restrictive than the original meaning of the Second Amendment would allow, because modern firearms are so different from the firearms of the late 18th century. This argument is based on ignorance of the history of firearms. It is true that in 1791 the most common firearms were handguns or long guns that had to be reloaded after every shot. But it is not true that repeating arms, which can fire multiple times without reloading, were unimagined in 1791. To the contrary, repeating arms long predate the 1606 founding of the first English colony in America.
Firearms technology and the original meaning of the Second Amendment
One of the men to credit for why repeating arms became much less expensive during the 19th century is James Madison, author of the Second Amendment
To function reliably, repeating firearms must have internal components that fit together very preciselymuch more precisely than is necessary for single-shot firearms. Before President Madison and Secretary Monroe started the manufacturing revolution, firearms were built one at a time by craftsmen.
THE REPEATING FIREARM IS EXACTLY WHAT THE FOUNDING FATHER HAD IN MIND
Koppel: What kind of repeating arms were available before 1815, when the Madison-Monroe mass production innovation program began? The state of the art was the Girandoni air rifle, invented around 1779 for Austrian army sharpshooters. Lewis and Clark would carry a Girandoni on their famous expedition, during the Jefferson administration. The Girandoni could shoot 21 or 22 bullets in .46 or .49 caliber without reloading. Ballistically equal to a firearm, a single shot from the Girandoni could penetrate a one-inch wood plank, or take an elk. (For more on the Girandoni, see my article The History of Firearms Magazines and Magazine Prohibitions, 88 Albany L. Rev. 849, 852-53 (2015).)
Liberals who neither know history, civics, understand law, or how to count, may be surprised to find that 1779, just like the existence of repeating firearms, came before 1791 when the Second Amendment was ratified. Conservatives dont find any of it surprising.
The first repeaters had been invented about three centuries before. The earliest-known model is a German breech-loading matchlock arquebus from around 1490-1530 with a 10-shot revolving cylinder. M.L. Brown, Firearms in Colonial America: The Impact on History and Technology, 1492-1792, 50 (1980). Henry VIII had a long gun that used a revolving cylinder (a revolver) for multiple shots. W.W. Greener, The Gun and Its Development, 81-82 (9th ed. 1910). A 16-round wheel lock dates from about 1580. Kopel, at 852.
Production of repeaters continued in the seventeenth century.
The only factor for repeating firearms not being common in the Revolutionary War was cost. They were prohibitively expensive to manufacture with any precision - and it was specifically precision that was required to manufacture firearms capable of self-reloading.
THE AR-15 - THE BARBIE DOLL FOR GUYS
Designed a half-century ago, the AR-15 was the later of many self-loading repeating firearms that came before and now are in common use for over a century. It is common and for that reason is validated by the Heller decision to be legal for all. It is popular because it is a universal, it is light and maneuverable, it is user friendly and fast, and it is a capable firearm free people demand for its varied purposes.
Andrew G, BenjaminAll Rights Reserved
David Kopel is Research Director, Independence Institute, Denver; Associate Policy Analyst, Cato Institute, D.C; and Adjunct professor, Denver University, Sturm College of Law. He is author of 17 books and 100 scholarly journal articles
Andrew G. Benjamin is a real estate and tax specialist, equities trader, a former economic advisor to New York city mayor Rudy Giuliani; serving on the transition teams Subcommittee on Taxation, Finance and the Budget. Benjamin also wrote extensively about intelligence, economic issues, the Mideast, terrorism, technology, high end audio and transnational politics.
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SECOND AMENDMENT PRIMER Part II - Canada Free Press
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Gun regulation: A shotty violation of Second Amendment rights – Virginia Tech Collegiate Times
Posted: at 10:19 pm
Gun rights can be a touchy topic, especially considering Virginia Techs past. I would like to start off by saying that when I advocate for gun rights and against gun-free zones, I do not seek to neglect the horrific mass shootings that have taken place on college campuses and around the United States.
The people of the United States have the right to own a firearm under the Second Amendment of the Constitution, which states: A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed. Many politicians, specifically politicians on the left, seem to believe that this amendment needs to be updated or interpreted differently. As former Supreme Court Justice Antonin Scalia once said, The Constitution is not a living organism, it's a legal document, and it says what it says and doesn't say what it doesn't say."
As citizens, we know how inefficient and unorganized our government can be, so why should we trust our politicians when they say that we will be safe, if not safer, without our own personal protection? Personally, I would rather be in control of my safety, especially if it comes down to a life or death situation.
One of the ways the left is trying to take away gun rights is by passing an assault rifle ban. Not too long ago, I did not see a problem with banning assault rifles, as I assumed it meant militaristic rifles that the everyday American has no logical use for. However, I later found out the term assault rifle can mean whatever a politician wants it to mean. Politicians, primarily on the left, are misleading the American people by using terms that have no concrete meaning.
Another way the left has tried to take away gun rights is by implementing gun-free zones. A gun-free zone is exactly what is sounds like; its a place where citizens are not legally allowed to carry guns. In a fairytale, perhaps this would be a great idea. No one carries a gun, no shootings and no robberies, right? Wrong. The people who commit gun violence are not law-abiding citizens. If you havent noticed, murder and assault are already illegal. The law does not act as a deterrent for any of the people who have committed or wish to commit such acts.
The only people who truly abide by gun-free zones are the people who respect the law and have no intent of using their gun to harm an innocent person. These zones unarm the good guys and have no impact on the bad guys, essentially making citizens in a gun-free zone sitting ducks. Many gun-free zones are advertised as such. By advertising that a place is a gun-free zone, one is in turn announcing that those inside are defenseless, and therefore an easy target. Edmund Burke once said, The only thing necessary for the triumph of evil is for good men to do nothing. Politicians on the left are making it so that good men have no option but to do nothing.
The gun does not pull the trigger, just like a spoon doesnt make someone overweight. People make themselves overweight and people choose to pull the trigger.
Now that I have established that theres little logic behind creating extremely rigid gun laws, lets look at the lefts record of accomplishment, or in this case, the lack of such. Illinois is one of the top ten states with the strictest gun laws. Chicago, one of Illinois major cities, had 762 gun-related deaths in 2016 alone. This is the highest number of gun-related deaths the city has seen in 19 years. Detroit, the city with the second highest murder rate in the country, also has some of the most restrictive gun laws in the country. In 2016, Detroit had 302 homicides.
These two cities not only have some of the harshest gun laws in the nation, but they also have some of the highest murder rates in the United States. A list of a few countries and regimes that were or still are gun-free zones include Nazi Germany, the Soviet Union and now the struggling socialist country of Venezuela. These draconian gun laws are ineffective and illogical as shown by their inability to keep those residing inside safe and secure.
Our government should be promoting gun ownership rather than placing powerless laws on them. A great example of more armed citizens decreasing crime is Switzerland. In Switzerland, every man who is a citizen serves in the Swiss national military and is obligated to keep their rifle and ammunition in his home. As of 2010, Switzerland only had 0.5 gun-related deaths for every 100,000 citizens. As a conservative, I am not supportive of the government mandating that every U.S. male in the military own a personal gun, however, I do think politicians and citizens on the left need to realize that by un-arming themselves and other citizens, they are in fact creating more victims to gun-related deaths.
Another flaw in the gun control debate is that leftists fail to recognize the personal responsibility of the shooter. The gun does not pull the trigger, just like a spoon doesnt make someone overweight. People make themselves overweight and people choose to pull the trigger. The shooter makes a cognitive decision to pull the trigger and harm another person. If a student misspells a word on a spelling test should the teacher ban pencils? Of course not, so why should our government ban guns when someone misuses one? They shouldnt; a gun, like a pencil, is a tool. Theres no logic nor facts supporting that banning guns will work or has worked. As Ronald Reagan once said, We must reject the idea that every time a law's broken, society is guilty rather than the lawbreaker.
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Gun regulation: A shotty violation of Second Amendment rights - Virginia Tech Collegiate Times
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Shots fired during Gunpowder Falls hike raise Second Amendment questions – Maryland Daily Record (subscription)
Posted: at 10:19 pm
Maryland Daily Record (subscription) | Shots fired during Gunpowder Falls hike raise Second Amendment questions Maryland Daily Record (subscription) Hugh Pocock was hiking in Gunpowder Falls State Park on Memorial Day with his two sons when they heard gunshots. It was loud, but the trio assumed it was someone doing target practice and were not too concerned. But as Pocock and his sons began ... |
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New state law protects First Amendment rights – Stowe Today
Posted: at 10:19 pm
Student journalists and their teachers and advisers just gained greater First Amendment protections under a new Vermont law.
The Vermont Press Association is pleased the Legislature moved quickly this year to provide proper First Amendment safeguards for student-journalists and their advisers, said association President Adam Silverman, an editor and writer at the Burlington Free Press. School superintendents, principals and other administrators should refrain from censoring student publications. That is why there is a First Amendment.
The Vermont law, recently signed by Gov. Phil Scott, protects student journalists against retaliation for writing articles that address controversial political issues.The bill also blocks retaliation against teachers and advisers for articles written by students.
Silverman said the law places speech in journalistic publications on par with students rights to speak on their T-shirts, leaflets, flyers, armbands and in all other parts of the school day.
The new statute, along with an unrelated shield law bill, which also has been signed by Gov. Scott, were the two top priorities for the press association going into the legislative session, Silverman said.
Student-journalists representing Burlington High, Bellows Free Academy-St. Albans, Woodstock Union and the University of Vermont were among witnesses who testified in favor of the new law.
A noted First Amendment law school professor, a longtime award-winning journalist and a university newspaper adviser also affirmed the need for the legislation in Vermont.
The Vermont students testified about some pushback they received at their schools when trying to cover stories that had been reported by local professional media outlets.The stories included reports on an impasse being declared for teacher negotiations, a study of handicapped accessibility in school buildings, sexting cases by students and local rallies outside schools for Black Lives Matter.
The Senate Education Committee and the full chamber passed the bill unanimously. The bill got mired in the House for two months before the education and judiciary committees considered it. The House eventually gave the bill the green light.
Scott met with some of the witnesses for a ceremonial bill signing Thursday in South Burlington. He told the group that journalists play an important role in society and also said it was important for young Vermonters to be active in politics.
If we want to change the direction of this country or this state,you have to get involved, right?You have to get there, you have to step up, Scott said. Having the press be able to tell the stories without being victimized is important in keeping politicians honest.
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Does the First Amendment Protect Alt-Right Parades in Portland? – NBCNews.com
Posted: at 10:19 pm
Portland Mayor Ted Wheeler speaks during a press conference on January 17, 2017 in Portland. Don Ryan / AP
"It may be tempting to shut down speech we disagree with, but once we allow the government to decide what we can say, see, or hear, or who we can gather with, history shows us that the most marginalized will be disproportionately censored and punished for unpopular speech," said the organization in a statement immediately following Wheeler's call to block the parades.
"The mayor is not just anyone on the street, he's a government official who has to uphold the Constitution," said Mathew dos Santos, legal director for the American Civil Liberties Union of Oregon. "And he's not doing that," he said.
"Portland has a proud history of protest. I am a firm supporter of the First Amendment, no matter the views expressed. I believe we had a case to make about the threats to public safety posed by this rally at this place and at this time. My job is to protect the safety of everyone... protesters, counter-protesters, and bystanders alike," said Wheeler in a
Alt-right groups have scheduled a "Trump Free Speech Rally," on June 4. A "March against Sharia" event was scheduled for June 10 but organizers decided to cancel the rally in Portland and move it to Seattle instead.
Organizers felt the city was no longer safe for them.
"Due to Mayor Wheeler's inflammatory comments and what we feel is an incitement of violence, he has shamefully endangered every scheduled participant. Consequently, in order to ensure the safety of those who had planned on attending, we have taken the decision to cancel the Portland March Against Sharia," wrote the organization planning the march in a
June 4th parade organizer Joey Gibson said the mayor "needs to sit down and take a minute and listen," and feels that he is trying to "pin" Jeremy Christian on his movement.
Christian, who was arraigned on
The City of Portland has already
Wheeler also urged the federal government to follow in his footsteps and revoke federal permits issued to the group.
But the U.S. General Services Administration, charged with issuing permits, announced on Wednesday that it would allow the parades.
"All rules and regulations were followed by the applicant for the permit, including the timeframe for review. Since the permit was lawfully obtained to assemble at this federal location, GSA has no basis to revoke the permit," the agency said in a statement.
Revoking permits amounts to government suppression of speech, which has always been illegal, dos Santos said. You cannot withhold permits based on people's viewpoints, he said.
The case is a mirror image of another First Amendment battle out near Chicago 40 years ago.
In 1977, a neo-Nazi organization chose to stage their parade in the suburban Chicago town of Skokie, which at the time was home to thousands of Holocaust survivors.
Parade goers were slated to wear Nazi uniforms and emulate salutes and anti-Jewish chants from Nazi Germany.
Outraged community members tried to put a stop to the parade by using the same arguments set forth by Wheeler. The group said the parade promotes hate speech that would inflict emotional distress upon survivors of the Holocaust.
A girl leaves a message at a makeshift memorial for two men on May 29, 2017 in Portland. The men were killed on a commuter train while trying to stop another man from harassing two young women who appeared to be Muslim. Terray Sylvester / Reuters
Ultimately the Nazi group, represented by the ACLU, won at the Supreme Court level and was legally allowed to march under the first amendment. The group ended up holding a rally downtown instead.
"Part of the problem with hate speech is that it's in the eye of the beholder," said Geoffrey Stone, a professor at the University of Chicago Law School. "There is no neutral way to decide what hate speech is and courts will not even attempt it," he said.
The alt-right group has not made any indication that they are planning to incite imminent danger or violence during the parade, which may be questionable under the law, he said. "The idea that you can ban speech because it's offensive or may cause anxiety is not consistent with the first amendment."
Thus far, the alt-right group has not brought suit against the city for revoking their permits, but if the situation does arise, it's an open and shut case, Stone said.
"It's inconceivable to me that a court would uphold the mayor's argument," he said. "This is long standing, well-settled law, and the mayor has it completely wrong," he said.
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ACLU Says Shawnee Mission School Board Policy Violates First Amendment – KCUR
Posted: at 10:19 pm
The ACLU of Kansas says a new policy adopted by the Shawnee Mission School Board may violate the U.S. Constitution's First Amendment. It has sent a letter to Board President Sarah Goodburn, urging the board to rescind the policy.
In its letter, the ACLU highlights an exchangeGoodburn had with a parent at a board meeting May 22. At that meeting, resident Jeff Passanraised concerns about an alleged conflict of interest by board member Deb Zila, involving Zila's vote to approve a new district contract with insurance broker CBIZ. CBIZ employs Zila's daughter.
After naming Zila, Passan was interrupted by Goodburn.
"You got this beforehand? What we can and cannot talk about in open forum? Naming specific people is really not allowed," Goodburn said.
She was apparently referring to the Board's recently modified guidelines for speakers at a meeting. It says, in part, that speakers should be "civil, use respectful language and refrain from any personal attacks." The policy also states "matters related to a specific student or employee" should not be discussed.
In a video of the May 22 meeting, Passan looks briefly flummoxed, then responds to Goodburn:
"So, if in the future there is a particular vote which I, as a person who lives in the Shawnee Mission School District, disagree with and want to publicly ask about that, am I not allowed to do that?" he asked.
Goodburn can be heard on the video responding to Passan, repeating the wording of the guidelines. After Passaninterjects that he is "being civil and respectful", Goodburn says: "You can say a 'board member' but a specific board member you cannot say."
The Shawnee Mission Post reported Goodburn later acknowledged Passan had not technically been in violation of the speaker guidelines because Zilais not an employee of the district.
The ACLU, in its letter, says that's not good enough.
"People have a well-established First Amendment right to criticize both elected officials and other public servants," the letter says (emphasis by the ACLU). "By prohibiting commenters from discussing "matters related to a specific student or employee", the Board's current guidelines are overbroad and inconsistent with the First Amendment."
The letter ends by urging the board to "remove the guidelines" and "in the future, refrain from admonishing commenters who mention board members by name."
In an emailed statement, a district spokesperson wrote the district had received the ACLU's letter.
"As the Board continues its review of draft guidelines," the spokesperson wrote, "it will take the comments in the letter into consideration as it balances the privacy rights of individual students and employees with the free speech rights of individual citizens."
Kyle Palmer is KCUR's morning newscaster. You can follow him on Twitter @kcurkyle.
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Quad-City Times wins national First Amendment Award – Quad City Times
Posted: at 10:19 pm
Quad-City Times Editorial Page Editor Jon Alexander was recognized with a national award for editorials written in 2016 pushing for government transparency.
He received the APME First Amendment Award, competing against work by newspapers nationwide in the 40,000 to 149,999 circulation category. His editorials, published in early 2016, pushed against the practice of closed-door meetings by Davenport City Council, which are now open to the media and the public.
The 2017 Associated Press Media Editors Awards were given to watchdog journalism that saved lives, exposed bias, held government officials accountable and shed light on hidden practices.
This is a huge honor to be recognized by our peers on a national stage for doing what I believe to be one of the key roles of newspapers, to advocate for our readers, Quad-City Times Executive Editor Autumn Phillips said.
Alexander will receive the award during a reception in October in Washington, D.C., at APMEs annual News Leadership Conference.
Other recipients of the First Amendment Award this year were The (Charleston, S.C.) Post and Courier, in the 150,000 and over category and the Peoria Journal Star, in the 39,999 and under circulation category.
The Chicago Tribune earned the grand prize in Public Service for Dangerous Doses, which exposed pharmacies that were dispensing drug combinations that could cause harm or death.
The Sarasota Herald-Tribune and Springfield (Ill.) State Journal-Register also received top honors in Public Service.
The annual APME contest honors excellence and innovation in journalism and reflects the Associated Press Media Editors mission of fostering newsroom leaders, empowering journalists to succeed and cultivating ideas that work. Teams of judges are comprised of APME national board members and top editors at The Associated Press. Phillips is on the board of APME but was not a judge in the First Amendment contest.
"I believe quality journalism and the commitment to the communities we serve is central to our newspaper's success," said Publisher Deb Anselm. "A big part of that is to watch out for this community by exercising our First Amendment Rights."
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Robb: No, your First Amendment rights aren’t being attacked – AZCentral.com
Posted: at 10:19 pm
Donald Trump calls the press 'the enemy.' If that's the case, there's a lot more people on that list, says columnist E.J. Montini.
Criticisms of Ducey and Trump are rooted in muddled thinking about the First Amendment's free speech protections.(Photo: Photo: Getty Images)
Gov. Doug Ducey was right to veto the legislation (Senate Bill 1384) limiting the ability of school administrators to regulate the content of student newspapers. Much of the criticism of the veto was rooted in muddled thinking about the First Amendments free speech protections.
The First Amendment is a negative injunction: Congress shall pass no law abridging the freedom of speech, or of the press ...
That gives Americans the right to write or say what they want. But it doesnt guarantee an audience. Or a publisher.
At the high school level, the publisher of a student newspaper is clearly the school. The vetoed bill would have sharply curtailed the authority a publisher usually has over content. Administrators could only exercise oversight over material that is defamatory, violates privacy or law, or creates an imminent danger of inciting disorder or unlawful conduct.
Those are all nebulous standards, subject to judgment, disagreement and litigation. The bill stated that the school isnt liable for content published in the student media, but thats a doubtful immunity.
The Arizona Constitution is highly protective of the right to sue. Courts are likely to look askance at letting the adults in the equation, and the only deep pockets in the picture, off the hook.
Schools exercising the usual authority of a publisher isnt an infringement on the First Amendment rights of student journalists. If the publisher of this newspaper took the advice of some of you and discontinued this column, my First Amendment rights wouldnt have been violated.
MONTINI: Ducey praises 'free speech' law that could put you in jail
A school punishing a student for content published on a private blog or Facebook might implicate First Amendment rights. But not publishing something in a publication paid for by the school doesnt. Thats exercising the prerogatives of a publisher.
This is a minor point, but not an irrelevant one. One of the challenges our schools face is maintaining an orderly learning environment. Schools arent helped by the Legislature concocting another legal thicket for them to negotiate.
Its unfair to Ducey to bring Donald Trump into the conversation at this point. Ducey behaved responsibly with his veto. Trump is behaving irresponsibly in his war with certain media. Nevertheless, much of the commentary regarding Trumps war with the media is also rooted in muddled thinking about the First Amendment.
The New York Times has a First Amendment right to write what it wants about Trump. And Trump has a First Amendment right to say what he thinks about what The Times writes about him.
Trump exercising his First Amendment rights doesnt curtail or threaten The Times First Amendment rights.
Some commentators make a more subtle point. By attacking certain media, they assert, Trump is undermining the role of the press that the First Amendment was intended to protect.
This is a historical miscue. At the time the First Amendment was adopted, the press, mostly newspapers and pamphleteers, were fiercely and transparently partisan.
The notion of the media as neutral and objective transmitters of information is a modern-era pretense. And the American people have never bought it.
In 2013, Gallup asked how much trust and confidence do you have in the mass media such as newspapers, TV, and radio when it comes to reporting the news fully, accurately, and fairly a great deal, a fair amount, not very much, or none at all? Well before Trump twitter storms became an important element of public discourse, 55 percent of respondents answered not very much or none at all.
There have been reports that the Trump administration was mulling abandoning the daily White House briefing or even booting reporters out of the White House, and this has been decried as an attack on the First Amendment. This has been the most muddled thinking of all.
Nothing in the First Amendment guarantees self-selected media office space in the White House or an administration spokesman to play gotcha with on a daily basis. Getting rid of both might reduce the herd mentality and emphasis on gotcha journalism and produce more diverse and substantive reporting.
Trump is frequently reckless and irresponsible in his attacks on the media. But so long as we are free to write and say that, the First Amendment is not under siege.
Reach Robb at robert.robb@arizonarepublic.com.
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