Monthly Archives: March 2021

Despite what one might think are far more pressing problems, in the past few weeks a number of Tennessee legislators have threatened to penalize state colleges and universities that permit athletes to take a knee during the playing of the national anthem prior to athletic events.

If ever there were a need for national unity, this might be the time, and there is certainly value in uniting behind common symbols. At the start of the Revolutionary War, Americans united behind the principles articulated in the Declaration of Independence. The following year Congress prescribed the design of the U.S. flag. During the War of 1812, Francis Scott Lee penned lyrics to accompany the flag, which Congress finally adopted as the national anthem in 1931.

Over time, the flag and the national anthem have been collectively celebrated together at sports events where individuals typically face the flag, often with hands across their hearts, as the anthem is played. Although they were designed to unite, both symbols can be flashpoints for protest.

Flag burning remains one of the most provocative (and, in my judgment, counterproductive) actions people can take to protest U.S. policies. Perhaps in part because it is so often associated with disrespectful actions by Americas enemies, the act of flag burning prompts visceral reactions against those who employ it. When state and national legislators sought to enact criminal penalties for flag burning, however, the U.S. Supreme Court reminded the nation in Texas v. Johnson (1989) and U.S. v. Eichman (1990) that flag burning was a form of symbolic speech that the First Amendment to the U.S. Constitution protected both against state and federal actions.

Years before, in West Virginia State Board of Education v. Barnette (1943), the Court had overturned a previous decision issued just three years earlier to declare that school children, with religious objections, could not be forced to salute the flag. Writing for the Court, Justice Robert Jackson noted that If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens by word or act their faith therein.

At a time when some are still questioning whether the current President was legitimately elected and others have forcefully invaded the U.S. Capitol Building killing and wounding police officers in the process, one doesnt have to be a prophet or a son of a prophet to know that our nation is deeply divided. Over the past few years, videos have depicted an increasing number of African Americans (some unarmed) who have died in apparent police overreactions. In protest, some professional athletes chose first to sit, and later to kneel, during the anthem to express their concerns. Precedents suggest that students at state colleges and universities have an even greater constitutional right to do so, while the very idea of taking a knee is both peaceful and far more respectful than the act of flag burning.

Students are not robots, and colleges and universities strive to teach students to think and act for themselves. Instead of using threats of withholding state money against schools whose students have enough backbone to express their opinions, we should work together on remedying the issues that have led to their protests.

The American philosopher George Santayana said that Those who cannot remember the past are bound to repeat it. We should remember that despite all our many positive achievements, Americans once burned down abolitionist printing presses, force fed women suffragists, and jailed peaceful demonstrators protesting racial segregation. In time, we found that the path that led to renewed national healing was that of listening and improving our laws and procedures so that they more closely approximated equal justice for all. Instead of threatening student athletes, we should listen to them and respect their peaceful protests. Lets continue to build a state and a nation where all Gods children, regardless of their skin color or political affiliation, can take pride in both of Americas premier symbols.

Dr. John R. Vile is a professor of political science and dean of the University Honors College at Middle Tennessee State University. He is the author of The American Flag: An Encyclopedia of the Stars and Stripes in U.S History, Culture, and Law, of Americas National Anthem: The Star-Spangled Banner in U.S. History, Culture, and Law, and many other books.

Originally posted here:
Let's keep Tennessee's knee off the First Amendment - Johnson City Press (subscription)

On a recent episode of Amicus, Dahlia Lithwick talked with Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, to unpack how the scope of the First Amendment continues to grow even as it fails in the face of so many of the free speech issues we face today. A portion of their conversation, which has been edited and condensed for clarity, has been transcribed below.

Dahlia Lithwick: I think Ive had a Post-it note pinned to my screen saying, Do a First Amendment show for three years. It sweeps in every news cycle. From the Facebook Supreme Court, your own litigation around Trumps tweets, cancel culture, the speech defenses that came up at the impeachment trialI think of the First Amendment as a framework that governs all of those things. But of course it implicates less and less of those things. As you suggested to me, when we were thinking about this show, the First Amendment is everywhere but nowhere. I wonder if you could talk a little bit about this tension, where the Supreme Court is protecting more and more activity under the First Amendment, but as private actors flood this zone, the First Amendment actually matters less and less. Is that an accurate description of what is going on?

Jameel Jaffer: Yeah, I think so. When I said that the First Amendment is everywhere and nowhere, I was thinking about the fact that the Supreme Court does keep expanding the First Amendments reach to more and more kinds of expressionnot just expression but speech very broadly construed. There was a case called Sorrell from a few years ago, which involved data mining and drug companies efforts to market their drugs to doctors. The Supreme Court held that this particular kind of commercial activity was speech, and theres a stray phrase in Justice Anthony Kennedys opinion, which says something like, Information is speech. Data is speech.

There is this thread in recent Supreme Court jurisprudence that is consistent with that very broad conception of the First Amendment. This idea that the First Amendment protects not just speech as colloquially understood but any effort to convey information. If youre a First Amendment enthusiast, then maybe your first reaction to that is, Well, isnt that great? Isnt it great that the First Amendment is getting attached to more and more things? Well, it might be great or it might be not so great.

The consequence of attaching the First Amendment to new forms of expression or speech is that it becomes much, much harder for government to regulate those activities. Theres a case in the district court now, involving Clearview, which is a company that scraped millions and millions of photographs from the internet in order to build a facial recognition app. The ACLU and others have sued Clearview under an Illinois state law that applies to the collection and sale of biometric information. Clearview is represented by Floyd Abrams here, who is a legendary First Amendment litigator. Clearview is arguing that their activities are protected by the First Amendment and that this Illinois law is unconstitutional as applied to its activities.

That just gives you a sense of whats at stake in these debates about the scope of the First Amendment. Because if you interpret the First Amendment very, very broadly to encompass the right of a company like Clearview to scrape photographs from the internet and build facial recognition apps of this kind, then you have really disabled legislatures from enacting laws that many people, including me, think are necessary to protect individual privacyand maybe even necessary to protect the integrity of public discourse, which is supposed to be what the First Amendment is all about. So the First Amendment is everywhere in the sense that the courts are extending the First Amendments application to more and more kinds of activity.

But its also true that the First Amendment is strangely absent in some places where we really should want it to be present. Some of them have nothing to do with the digital age and some of them are just much more places where we for a long time would have expected the First Amendment to be, but it doesnt seem to be. Im thinking about protest rights, for example, or whistleblower rights, right? During the Black Lives Matter protests over the last year, there were all kinds of abuses by police, abuses of protesters, abuses of the journalists being prevented from reporting on important public activities of the police. The First Amendment seemed to do very little work in protecting those core First Amendment rights.

I would say the same thing with respect to whistleblowers. The Obama administration infamously used the Espionage Act more than any previous administration against whistleblowers who were sharing information with the press, and the Trump administration continued the trend. The First Amendment is really nowhere to be found when it comes to the right of whistleblowers to share informationnational security secrets with the press where those national security secrets would inform the public of the abuse of power by government officials, for example, or large-scale waste or fraud on the part of government officials. The First Amendment doesnt seem to be doing very much work. So the First Amendment is everywhere in some senses and nowhere in other senses.

What youre saying is there are benefits to being able to regulate some of this under First Amendment doctrine, but theyre real harms. And one of the harms is that it then falls almost entirely onto private entities. In some ways thats a good thing. I think you would contend right from the beginning we dont want the government deciding what is speech. But youre saying that the cost of saying, You know what, this has nothing to do with the First Amendment. Its entirely a private entity and they should regulate that, it might be what the Framers wanted, but it creates a whole host of new problems.

I think all of that is true. Now we have these private entities that are doing a lot of the work of regulating speech. When we engage in political speech now, its often on social media platforms or on new communications platforms that are controlled not by the government but by private corporations. Those private corporations now have a very significant role in determining who gets to speak, and what can be said, and what ideas get traction in the public sphere. That, I think, is a new thing and one that we havent collectively quite figured out how to deal with.

It feels as though part of what youre saying is the Supreme Court has been diligently beavering away and we all stipulate this is the most speech-protective Supreme Court probably in historycreating new free speech rights in all sorts of contexts. Yet there are these archaic rights, like assembly, which is something that we dont quite know what it means. Its fallen into disuse. The doctrine is aged. So its not actually doing the things its meant to be doing.

The circle is expanding to encompass a whole bunch of other stuff, and then theres this other circle that is completely a separate sphere from government regulation of speech, which has all these private actors. We keep falling into this habit of thinking of them as First Amendment problems, but theyre entirely separate.

Its true that these private companies are not bound by the First Amendment in that particular sense. Id just say that thats true under current doctrine. There are many serious First Amendment theorists who think the current doctrine is wrong and that the First Amendment should have something to do with whether Facebook, for example, can tell somebody that they cant use Facebook. But under current doctrine, thats not governed by the First Amendment. Facebook is free to make whatever decisions it wants.

But when governments try to regulate the technology companies, often the technology companies are relying on the First Amendment as a means of challenging the legitimacy of those regulations. The Clearview case is a good example of it, but its not the only example. Theres another case that my institute is tangentially involved in in Maine, involving an internet privacy law that restricts what internet service providers can collect about their customers and how they can use that data. The ISPs are challenging the law on First Amendment grounds. Theyre saying, This law prevents us from collecting certain kinds of information and from doing targeted advertising on the basis of that information and thats a restriction of our First Amendment rights and the law needs to be struck down.

So its not just that the First Amendment doesnt regulate the activities that these companies are engaged in; its that when Congress tries to regulate those activities, these companies rely on the First Amendment to challenge the legitimacy of the regulations. Some people are looking to the First Amendment to be the solution to our problems in the digital public sphere. I think theres a real question: Can the First Amendment be a solution here? But theres also a question: Is the First Amendment the problem? Is the First Amendment, as currently understood, an obstacle to the kind of legislation and regulation we need to protect the integrity and the vitality of the digital public sphere?

To hear their entire discussion,listen below, or subscribe to the show onApple Podcasts,Overcast,Spotify,Stitcher,Google Play, or wherever you get your podcasts.

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Who Gets First Amendment Protections These Days, Anyway? - Slate

By Tim Eyman

Editors Note: A judge last month ruled that Tim Eyman will no longer be allowed to have financial control over political committees and issued $2.6 million in fines after state Attorney General Bob Ferguson filed a lawsuit against him in 2017 alleging he laundered donations, disobeyed campaign finance law and solicited kickbacks, accusations Eyman continues to deny.

In the past 22 years, by working together with our thousands of heroic supporters, weve qualified 17 statewide initiatives for a public vote. They all limited the governments power over us and have saved taxpayers $46.9 billion. And our four two-thirds-vote-to-raise-taxes initiatives have saved taxpayers billions more by stopping and deterring tax increases.

While other initiatives spend $1.2 million to qualify, we averaged $672,000 because we run a tight ship and I often risked my own money.

After two decades of effort, vehicle tabs and property tax increases are dramatically lower than they used to be (liberal judges vetoed those initiatives, but the publics overwhelming vote pushed politicians to adopt them anyway), government affirmative action is prohibited, the state auditor conducts performance audits of state and local governments, the King County Council was reduced from 13 politicians to nine, red-light ticketing cameras were banned in numerous cities and tax advisory votes allow voters to vote each November on tax increases imposed by the Legislature and inform voters which taxes were increased, their costs and how legislators voted on them.

These amazing accomplishments happened despite fierce opposition from liberals controlling the Legislature, governors office, the judicial system and the media.

Because I led those efforts and constantly kicked the hornets nest of big government, politicians and the press have been gunning for me.

So in 2012, when a reporting complaint was filed against me by a disgruntled former vendor, I knew what was coming: a witch hunt. And because the government had unlimited resources and I didnt, I knew Id never survive it without assistance.

So I asked for help.

As my attorney (former supreme court justice) Richard Sanders said: Thousands of people voluntarily chose to help Mr. Eyman and his family there is nothing unlawful about that. People and businesses entered into voluntary business relationships with Mr. Eyman all of them were legal. Mr. Eyman never took money from anyone he wasnt a signer on anyones bank account except his own. In every instance, the money he received came from people who chose to voluntarily give it to him. And he consulted with professionals why wouldnt he? to ensure he was following state and federal laws.

Democrat Attorney General Bob Ferguson spent nearly $2 million of taxpayer money going after me, my family, friends and supporters. Thats more than all other reporting cases in the last eight years combined!

Generous people responded to my pleas for help, recognized this injustice and abuse of power and helped me fight back. Their checks were made payable to Tim Eyman Legal Defense Fund, Tim Eyman & Family and Tim Eyman Watchdog for Taxpayers LLC none were campaign donations. Their voluntary assistance, plus our own savings, went toward paying the lawyers and financially surviving this brutal eight-year onslaught.

A year ago, Sanders wrote: During the recent mediation conference, the AG made clear their priority: the lifetime ban. They dont care about the money, they want to shut you down. When you told the mediator it was blackmail, you were exactly right. This whole thing is about breaking you so you give up and agree to the ban. But you refused. Good for you! After hundreds of hours of examining the facts and researching the AGs case against you, its clear to me you didnt violate any laws. You were never the committees treasurer professional CPA Stan Long was your committees treasurer and he did not believe these transactions needed to be reported. He was right, the AG is wrong. Tim, in all my years on the court, Ive never seen such a miscarriage of justice. Seven years of investigation? Harassment of your wife? Frankly, Im astounded youre still functioning. Anyone else wouldve given up a long time ago. I admire your commitment.

As predicted, a former Gov. Chris Gregoire-appointed judge in Thurston Countys kangaroo court rubber stamped the AG, ignoring the law and the constitution. Go to tinyurl.com/FergusonHypocrisy to learn how the AGs bizarre claims are fundamentally flawed and reek of hypocrisy (How much has Democrat Bob Ferguson personally profited from politics? Over $2.8 million!).

Im committed to appealing these ridiculously unconstitutional restrictions on the First Amendment because if they get away with it with me, you could be next.

While it gets appealed, despite the risks, I will continue fighting for taxpayers because our efforts are needed now more than ever. Politicians have an insatiable tax appetite and are hell-bent to impose income taxes, carbon taxes and other taxes this session. Were committed to stopping them.

Fergusons fascist eight-year jihad has cost me everything I have. But Im not going to let him slow me down. Because like President Trump said: Theyre not after me, theyre after you, Im just in the way.

Tim Eyman is a longtime political activist from Yakima who graduated from Washington State University and now lives in Bellevue. He can be reached at 425-590-9363 or tim.eyman@gmail.com.

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Eyman Commentary: I'm Committed to Appealing Restrictions on the First Amendment - Centralia Chronicle