Daily Archives: November 25, 2019

But the photojournalists found it improbable that they were suspected of breaking any laws. Were they being targeted because they were members of the press? Was the government trying to obtain access to their source lists and the intelligence theyd gathered in the course of their reporting? Suspicions to that effect were bolstered when The Intercept reported on an apparent pattern: U.S. and Mexican authorities seemed to be coordinating harassment of the journalists. Then a leak from an anonymous source at the Department of Homeland Security added clarity. The [U.S.] government had listed their names in a secret database of targets, where agents collected information on them, an NBC affiliate in San Diego reported. Some had alerts placed on their passports, keeping at least two photojournalists and an attorney from entering Mexico to work.

Conor Friedersdorf: Look whos trying to seize private property

If accurate, that is a serious abuse of power: The government allegedly jeopardized the livelihood of these journalists, as well as their ability to relay useful information to Americans. A government spokesperson told CNN at the time that Customs and Border Protection does not target journalists for inspection based on their occupation or their reporting. But in one case, a Mexican border official who turned one of the photojournalists away told her he was doing so at the behest of the American government.

Now the photojournalists are suing three federal border agencies. Their complaint, filed this week in federal court, alleges several related violations of their civil rights. They were subject to questioning that substantially burdened Plaintiffs First Amendment rights to freedom of speech, association, and the press, the lawsuit asserts, requiring them to disclose confidential information about their observations, sources of information, and/or work product, including the identities of individuals with whom they may have interacted in the course of their work as journalists.

The American Civil Liberties Union, which filed the lawsuit on their behalf, stated Wednesday that border officers at ports of entry may ask questions relating to immigration or customs, but they may not use border screening as a pretext to interrogate journalists about their work.

Journalists often possess information that would be valuable to competing ideological factions in the federal government and to various members of the federal bureaucracy. If they are forced to compromise sources or to turn over information every time they enter the United States from abroad, the task of news-gathering will become significantly more onerous, some activity protected by the First Amendment will be chilled, the public will get less information, and the free press that the Framers tried to protect will be weakened.

News-gathering is unusual among occupations in that its specifically protected by the Constitution. If even members of the press, with their ability to raise distinct First Amendment claims, are subject to harassment at the border, the abuse of power is unlikely to end there.

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Does the First Amendment Hold at the Border? - The Atlantic

Taking First Amendment class increases support for free speech

General support for the First Amendment has modestly increased among high school students in the past 15 years, but not across all demographics, according to a report released last week by the Knight Foundation.

It found that opinions were linked to both race and gender. Boys and white students were more likely to unequivocally support the First Amendment, while girls and nonwhite students were more likely to agree with the statement: The first amendment goes too far in its rights and guarantees.

Yet nonwhite students are the only demographic to see a slight decrease in support since 2004: Girls, boys, and white students all saw increased support.

Notably, students who have taken classes involving the First Amendment were more likely than others to support its various rights and protections, according to Knight, a nonprofit that promotes journalism.

Around two-thirds of students reported taking classes that touched on the First Amendment. This number has remained relatively steady over time, even though the gap in support has narrowed over time between those taking these classes and those not.

The initial Knight survey in 2004 involved more than 100,000 students at hundreds of high schools, and subsequent surveys including the most recent have selected roughly 10,000 students at a time from a randomly drawn sample of 30 to 40 high schools, according to the report. (The pool of high schools stayed the same through 2016.)

The College Fix could not arrange an interview with report author Evette Alexander, Knight Foundation director for learning and impact, before this article was published.

Only strongly disagree answer is for flag desecration

Students have been asked about wider cultural issues surrounding the First Amendment since the surveys inception in 2004. They include offensive song lyrics, public offensive speech and the responsibilities of social media companies.

According to the report, students tend to mildly agree with support for First Amendment protection of these areas on average. The only topic in which average support for the First Amendment dips into strongly disagree is flag burning and desecration.

On this subject of the flag, views started to diverge by race in 2016, with students of color much more likely to be milder in their disagreement with flag desecration.

The report speculates this could be a result of growing support for movements such as Black Lives Matter and for professional athletes kneeling during the national anthem. Nonwhite students are significantly more likely than their white counterparts to support the First Amendment right of athletes to kneel.

More ambiguously, news consumption was not a reliable predictor of support for the First Amendment. This may be a result of the surveys apparent failure to ask respondents what type of news they consume.

While news consumption did not necessarily predict support, students who reported often using social media in the 2018 survey were significantly more supportive of specific First Amendment rights and protections, the survey found.

MORE: Most high schoolers support censorship of offensive opinions

The report concludes that the divide is growing between students of color and white students. Both the gender and race gaps on the survey did not begin to show growth until around 2011.

Interestingly, the average opinions of white students have remained relatively stable, with students of color becoming increasingly less supportive of the First Amendments rights and protections.

The report found a modest increase in average disagreement with the statement the first amendment goes too far in its rights and guarantees, except for an unexplained sharp decline around 2006.

Overall opinions were steady between 2004-2006 and then again from 2011-2018. Between 2006 and 2011, however, there was a sharp drop and then a quick buildup back to general support for the First Amendments protections.

The report suggests the racial divisions can be partially explained by a contentious 2016 election and associated anti-immigrant, misogynistic and ethnic nationalist rhetoric. It cited the Unite the Right rally in Charlottesville in 2017 and mass shootings in El Paso, Texas, and Dayton, Ohio, this summer as having likely effects.

What the Northeast and the South share in common

The Knight Foundations press release notes that this divide beginning in 2011 correlates with the widespread adoption of social media. In a previous survey from 2018, 82 percent of college students believed that social media has led to an increase in hate speech.

When it comes to bullying, hate speech and other uses of social media involving the First Amendment, girls are more likely than boys to support government or school intervention.

Overall, students generally disagree with schools getting involved in First Amendment issues outside of the bounds of school, but the same gender and race gaps exist. Minorities and girls tend to agree with schools punishing offensive behavior, while boys and white students tend to disagree.

There were notable differences in support based on the region of the country as well. The West and the Midwest were more likely to disagree with the statement the first amendment goes too far in its rights and guarantees, while the Northeast and the South were more likely to agree with it.

The Midwest has most consistently disagreed over time, while the Northeast has most consistently agreed with the statement. The geographical data has fluctuated somewhat and is not entirely consistent.

Since 2004, the Northeast and South have become more similar, as have the Midwest and West, in terms of attitudes towards the First Amendment, according to the report.

Opinions on the surveys statement tend to show a divide between the East Coast and West Coast, as opposed to North and South. The north vs. south political belief that the former is liberal and the latter is conservative does not play out in the results of the survey.

The South is perplexing in this survey because its largely red states with conservative values, but here they tend to agree that the First Amendment goes too far.

MORE: College women, blacks favor inclusivity over free speech

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Nonwhites are the only high school students whose support for First Amendment has fallen: survey - The College Fix

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Theres much in the Knight Foundations recent report Student Views on the First Amendment that raises serious concern. Girls and students of color, for example, are more likely to agree that the First Amendment goes too far in the rights it guarantees.

But the report also gives reason for optimism. The survey data indicate two positive trends regarding civics education. First, the percentage of high school students reporting that they have taken courses that provide instruction on the First Amendment has increased over time and seems to be holding steady, with roughly two-thirds of respondents reporting that they have taken such courses.

Another reason for optimism: instruction seems to make a difference. As the report notes, such coursework has a significant impact on student support for First Amendment rights and protections.

This outcome is not at all obvious. Another Knight Foundation survey, for example, finds that teachers may not be completely on board, with only 45% favoring First Amendment protections for school newspapers reporting on controversial stories. Further, high school is a time when students start exploring topics, like math and language, in significant depth. And for the first time they have the opportunity to take coursesfrom child psychology to fashion designthat engage their budding career interests. With this as the competition, its not obvious that government and civics coursesthe proverbial spinach of the high school curriculumwould rise to the challenge and make a dent in students sensibilities.

Given this less-than-obvious result, its worth thinking what might be behind it. No doubt, curricular content plays a role. Consider, for example, that a 2017 Brookings study found a majority of students surveyed did not know that hate speech is constitutionally protected. Clearly, teaching students what the First Amendment does and does not protect is an essential step to close gaps in basic knowledge.

While pundits wring their hands over such results, the experienced and artful teacher knows how to turn a knowledge gap like this into genuine surprise that sparks discussion. Discussion leads to aha! moments. All this suggests that curriculum is only part of the story. To make a difference, we cant expect that teaching First Amendment content (alone) will do the heavy lifting. In all likelihood, the teachers who are making the biggest difference are those who introduce and help students practice First Amendment Thinking.

Maria Krisanova/Unsplash

By First Amendment Thinking, I mean the habit of seeing how the rules of the game play out when the details of the situation conform and do not conform to ones own concerns. Its likely, for example, that female students and students of color are less supportive of the First Amendment because they are thinking of a time when they have felt the pains of exclusion, discrimination, harassment, or fear because someone else was exercising his or her First Amendment right to be a jerk. Teaching First Amendment content (alone) conveys the lesson that, except in rare circumstances, one has to tolerate such speech. This can be a fairly bitter pill for anyone who feels as though they are already disadvantaged and marginalized within the dominant society. To always be the person expected to check their emotions and maintain a posture of tolerance in the face of bigotry gets old.

And in the face of such bigotry, the case for censorship can seem compelling. Its the artful teacher who encourages students to develop the discipline of First Amendment Thinking by, for example, inviting students to imagine whether someone, somewhere, might take offense at a text that the student considers profound. It doesnt matter what the text isa poem by Maya Angelou, a theory advanced by Albert Einstein, a Margaret Atwood novel, the Bible, the Quran, a Harry Potter film. It doesnt take long before students realize that the speech they consider most sacred will be offensive to someone. By flipping the script in this way, the artful teacher helps students understand why offense cannot serve as justification for censorship without catching them in the censors trap as well.

Further, First Amendment Thinking encourages students to adopt Nobel laureate James Buchanans famous dictum, which is to understand government oversight without romance. As applied to state censorship, Buchannans insight reminds us that it is dangerous to assume that people who have the power to censor others will always exercise that power in the best interest of the public. First, the public interest is a tangle of competing interests, so even a well-intentioned political actor will not be able to live up to the challenge. Second, because people who hold the power to censor have interests of their own, it is unlikely that they will have a strong incentive to protect the interests of those who do not hold such power. This includes marginalized minority groups who have historically borne the brunt of political and cultural oppression.

In short, First Amendment Thinking helps students understand why we have a Constitution in the first place. Constitutional constraints like the First Amendment are not put in place to advance the interests of a particular group. On the contrary, the Founders put these constraints in place to protect the rights of every individual from unconstrained power. What the Knight Foundation report shows is that theres nothing obvious or easy about thinking like an informed citizen. It takes patience and artful teaching.

Read this article:
Artful Teachers Teach First Amendment Thinking - Forbes

Free Speech Rules: The First Amendment and Government Property

Say the government is handing out money, or access to government property, or some other benefit. Can it exclude certain kinds of speech, or certain kinds of speakers?

It's complicated, but here are the five rules of the First Amendment and Government Property

Rule 1: A few forms of government property are treated as so-called "traditional public forums." There, the government generally can't exclude speech based on its content.

The classic examples are sidewalks and parks, as well as streets used for parades. Unless speech falls within one of the narrow First Amendment exceptions (such as true threats of crime, or face-to-face insults that tend to provoke a fight), the government can't restrict it. Such places are technically government property; but that gives the government no extra authority to control such speech.

The postal system is analogous. At least since the mid-1940s, the Supreme Court has held that the government can't exclude certain kinds of content from the mail. To quote Justice Holmes in an early case, "The United States may give up the Post Office when it sees fit," but until then "the use of the mails is almost as much a part of free speech as the right to use our tongues."

Rule 2: Sometimes, the government deliberately opens up property or funds in order to promote a wide diversity of private speech, using objective criteria. Many public schools, for instance, let student groups use classrooms that aren't otherwise being used. Public libraries often offer rooms for meetings of community groups. Public universities might offer free e-mail accounts or web hosting to all students, and sometimes public universities offer money to student groups to publish newspapers or invite speakers.

These are called "limited public forums," and the government can limit them to particular speakers (for instance, just students), or to particular kinds of speech (for instance, just speech related to the university curriculum). It can also have reasonable, viewpoint-neutral exclusions (for instance, saying that certain benefits or property can't be used for promoting or opposing candidates for public office). But it can't impose viewpoint-based criteriait can't, for instance, let all groups use a meeting room in a library but exclude racist groups.

Rule 3: A lot of government property is open to the public, but not for speech. Airports, for instance, are set up to promote transportation, not speaking; but people there will wear T-shirts with messages on them, talk to friends, maybe even approach strangers with leaflets. In these so-called "nonpublic forums," the rule is much like in limited public forums: Speech restrictions are allowed, but must be reasonable and viewpoint-neutral.

Rule 4: Some government property is set up for the government itself to speak; and there, the government can pick and choose what viewpoints it conveys or endorses. The walls of most public buildings are an example; the government can choose what art to put up there, and it might refuse to display art that conveys ideas that it dislikes.

Likewise, when the government spends money to promote its own messages, it doesn't have to promote rival messages. It can have a National Endowment for Democracy without having to fund a National Endowment for Communism. It can put out ads supporting racial equality, without paying for ads supporting racism.

Sometimes there are close cases; for instance, when Texas authorized many kinds of license plate designs, but excluded Confederate flag designs, the Supreme Court split 5-to-4. The majority thought license plate designs were government speech, and the government could pick and choose which ones to allow, even when the government accepted dozens of designs requested by private groups. The dissent thought they were a limited public forum, in which viewpoint discrimination was forbidden because the government was supporting so many different (and often contradictory) forms of speech. But while there are close cases, many are pretty clear: The government often clearly promotes views it chose itself, and sometimes clearly promotes a wide range of private views.

Rule 5: Similar principles likely apply to government benefit programs, and not just to the provision of real estate or of money. Charitable tax exemptions, for instance, are likely a form of limited public forum: The government can discriminate based on content (you can't use tax-deductible donations to support or oppose candidates for office), but not based on viewpoint.

Likewise, the Supreme Court held that the government can't deny full trademark protection to trademarks that are seen as "disparaging," "scandalous," "immoral," or racist. Such restrictions, the Court said, were impermissibly viewpoint-based.

Of course, private property owners aren't bound by the First Amendment, whether they're distributing money or access to real estate. And, as we see, the government as property owner isn't bound by the First Amendment quite the same as it is when deciding whether to jail or fine them for their speech. But, except when it comes to the government's own speech, viewpoint discrimination is generally forbidden even on government property.

So to sum up:

The government generally can't exclude speech based on its content in "traditional public forums."

The government can deliberately open up "limited public forums," that are restricted to particular speakers or kinds of speech, but it can't impose viewpoint-based criteria.

In "nonpublic forums," speech restrictions are allowed, but must be reasonable and viewpoint-neutral.

For government property set up for the government itself to speak, the government can pick and choose what viewpoints it conveys or endorses.

Similar principles likely apply to government benefit programs, and not just the use of physical property.

Written by Eugene Volokh, who is a First Amendment law professor at UCLA.Produced and edited by Austin Bragg, who is not.

This is the eighth episode of Free Speech Rules, a video series on free speech and the law. Volokh is the co-founder of The Volokh Conspiracy, a blog hosted at Reason.com.

This is not legal advice.

If this were legal advice, it would be followed by a bill.

Please use responsibly.

Music: "Lobby Time," by Kevin MacLeod (Incompetech.com) Licensed under Creative Commons: By Attribution 3.0 License http://creativecommons.org/licenses/b

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The First Amendment and Government Property: Free Speech Rules (Episode 8) - Reason

Pharmaceutical companies rely on direct-to-consumer advertisements to reach potential customers and extolthe benefits of their medications. This type of commercial speech enjoys protection under the First Amendment, though not to the same degree as other forms of expression. Merck v. HHS tests the limits of the federal governments ability to control and compel commercial speech.

Several drug manufacturers and a professional organization of advertisers, whose businesses are affected by a Department of Health and Human Services rule requiring direct-to-consumer television ads to include a disclosure of the wholesale price of the advertised drugs, sued to block the rule. This rule was promulgated through the Centers for Medicare and Medicaid Services and justified under the power given HHS by the Social Security Act to issue rules necessary to the efficient administration of those programson the theory that the disclosures would result in lower prices for Medicare and Medicaid recipients. This regulation requires the wholesale acquisition cost of a 30-day supply of any advertised drug to be featured on any TV ad.

Part of the freedom of speech, however, is the right not to speak against ones will. In particular the notion of being forced to read from a state-drafted script against ones beliefs or interests is anathema to the founding conception of discourse in a free society. In the field of commercial speech, there is only a narrow allowance for compelled speech to ensure that consumers are not misinformed or mislead in their purchasing decisionsin other words, to prevent the fraud that isnt protected by the First Amendment. The price-disclosure regulation threatens to widen this exception so far as to allow the government to use compelled speech as a substitute for regulation, in this case regulating drug prices themselves.

The district court held that mandating disclosure of wholesale drug prices exceeds the agencys rulemaking authority under the Social Security Act. Now on appeal, the government is again attempting to defend its regulation as not violating the First Amendment.

Cato has filed an amicus brief supporting the challengers in the U.S. Court of Appeals for the D.C. Circuit. We argue that accepting the governments First Amendment arguments would stretch the jurisprudence allowing greater regulation of commercial speech farther than ever before and encourage compelled speech as a convenient alternative to normal regulation. If HHS prevails, agencies may decide its better to force private parties to act as government mouthpieces, instead of expending their own resources and political capital to further regulatory aims.

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Government Tries to Regulate Drug Prices by Violating the First Amendment - Cato Institute

A group of activists and other Rochester residents are asking Monroe County Executive Cheryl Dinolfo not to sign a controversial law. WXXIs James Brown has details.

Rev. Lewis Stewart, faith leaders and criminal justice advocates are asking Monroe County Executive Cheryl Dinolfo not to sign a controversial law.

The measure, passed this month, makes it illegal to annoy, alarm or threaten the personal safety of first responders and various forms of law enforcement. Those who do, would face a hefty fine and possibly jail time. It passed in a party-line vote earlier this month. The bills co-author, County Legislator Karla Boyce, said she was inspired to introduce the bill by recent instances of first responders put in danger.

Opponents say similar bills were stuck down in courts because they were overbroad and unconstitutional. Theyre also worried the law would disproportionately affect people of color.

Stewart calls the bill ridiculous, tyrannical and said it tramples on the first amendment.

A police officer might be annoyed by a citizen using a phone and his or her camera or annoyed by a protest sign and they will suffer a penalty via this legislation, said Stewart.

Democratic Legislator Vince Felder said he asked the countys law department to explain the circumstances where someone could be charged with annoying an officer. He said they couldnt. Felder doesnt doubt the sincerity behind the bill but he does question its language, in particular, using the word annoy.

First of all, its a subjective thought process that youve put in the hands of a police officer, Felder said. Secondly, the (U.S.) Supreme Court has ruled over and over again that you can cuss police officers out, you can stick your middle finger up at them, you can do just about anything and its protected.

Felder also said that Republican lawmakers didnt follow appropriate protocol because the bill was considered as a matter of urgency and was not taken through the typical committee process.

A nearly identical law is on the table in Broome County. Several people were arrested and more than 100 protesters packed a county legislature meeting in Binghamton Thursday. Their goal was to stop an ordinance nearly identical to Monroe Countys.

The measure has not yet been approved in Binghamton. In law awaits Dinolfos signature in Monroe County. Thats expected in December.

The group also took issue with efforts of local law enforcement leaders to slow down the states criminal justice reforms. The new laws limit pre-trial detention and eliminate cash bail for nonviolent offenses, among other changes. They take effect in January.

Law enforcement leaders across the state, including many in Rochester, are asking that Gov. Andrew Cuomo reconsider the new laws and give them more time and money for implementation.

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Activists say new harassment law tramples on the first amendment' - WXXI News