Monthly Archives: April 2021

As the murder trial of former Minneapolis police officer Derek Chauvin enters its third week, all eyes are not just on the facts surrounding the death of George Floyd, but also on the state of policing in America.

Unconventionally, the prosecution has called multiple current or former members of the Minneapolis police force to testify against Chauvin, painting a stark contrast between ethical policing and the horrors revealed through multiple videos taken on May 25, 2020. Meanwhile, a string of separate narratives has unfolded during the trial, with numerous bystander witnesses describing the helplessness they felt as they watched Floyd expire while pleading with Chauvin and the other officers to ease up and give him basic medical assistance. Its impossible to watch any snippet of the trial without concluding that something went seriously wrong that day and that it wasnt a lack of sufficient police power.

Yet thats precisely what the Ohio legislature appears to be aiming at in the wake of Black Lives Matter protests. One House bill would, among other things, make it a crime to [i]nterfere with or obstruct a law enforcement officer in a manner that . . . Inhibits or restricts the law enforcement officers control of a subject or detainee, if done with reckless disregard as to whether the action diverts or obstructs the law enforcement officers attention. In theory, then, peacefully shouting at a police officer to stop what appears to be unreasonable force against someone like Floyd could become a crime in Ohio.

Another provision would empower police officers to bring civil actions for money damages against private persons for injuries the officers allegedly suffered during the performance of official duties in connection with offenses against the public peace which include rioting, vandalism, disorderly conduct and failure to disburse. Officers could also sue any organization that provides material support or resources with purpose that the material support or resources will be used . . . to plan, prepare, carry out, or aid in conduct thats banned under the law. The Ohio Senate has introduced similar bills. The notion of empowering police officers to sue bystanders is especially ironic given the raging debate over the perceived overuse of qualified immunity as a defense to private actions against police officers for alleged violations of individual constitutional rights.

Over the weekend, the proposals prompted a slew of gatherings across the state, with organizers calling on Ohioans to Protest While You Can against the anti-protest bills in Ohio. Activists argue that the measures run afoul of the First Amendment, while supporters claim they are needed in order to keep future protests under control. To be sure, the First Amendment includes a right to assemble peaceably, so government officials can constitutionally take steps to restrain the ability to protest in the interest of public safety. Protestors who participate in events that wind up blocking traffic, violating a curfew or ignoring a police order to disburse can validly face arrest; the First Amendment wont protect them.

Given the wider stakes playing out on national television in connection with the Chauvin trial, however, the Ohio legislatures maneuvers are nothing short of bizarre. America is mired in a debate about what to do about over-policing not any lack of available police force tactics. Numerous figures across the political spectrum, including President Joe Biden and former Deputy Attorney General Rod Rosenstein, have urged a reconfiguration of police departments to incorporate personnel with expertise in social sciences such as mental health care, youth services and housing in addition to law enforcement. Although Biden is also calling for an uptick in police hiring, many in Congress have consistently balked at additional federal money for state and local governments, including dollars that would help fund police forces.

Ohio lawmakers clumsy response to the delicate balancing of free speech rights and the need to retain order in the public sphere also hits the wrong note in light of the Jan. 6 insurrection at the U.S. Capitol, which stands as a horrific tale of an overwhelmed and vastly outnumbered Capitol police force, whose plan for containment was a catastrophic failure. Although hundreds of individuals who participated in the riots are now under criminal investigation, arrest or indictment, the bare existence of even more criminal laws would not have prevented what happened on Jan. 6. A more prepared, equipped and staffed police presence might have. Its still up to Congress to empanel a 9/11-style commission to get to the bottom of what went wrong on that day.

The story of law enforcement in America has always come down to two competing interests: public safety and the safety of officers on one hand, and the constitutional rights of individual citizens on the other. Tamping down on the latter indiscriminately is hardly the way out of the thorny problem of contemporary policing.

Kimberly Wehle is a professor at University of Baltimore School of Law and author of the books "How to Read the Constitution and Why, and What You Need to Know About Voting and Why. Follow her on Twitter and Instagram @kimwehle.

Read the original here:
Protect the police or the First Amendment? | TheHill - The Hill

Editor:

Like every piece of legislation crafted by the left, the Equality Acts noble title has little to do with its intent. Its main purpose is to give more rights to certain people at the expense of the rights of others. Its primary target is the First Amendments freedom of religious worship and exercise. The radical secularists goal is to rid our country of its moral foundation, the Judeo-Christian ethic. That and capitalism are the main obstacles to Marxism.

Readers may be wondering why they have not heard religious denominations speaking out against this assault on our religious liberties. The answer is that they do not want to be treated like Georgia. The left has silenced denominations through intimidation. What state or religious institution wants to be maligned and misrepresented by the media, corporations, and the left. Their Marxist partners have shown their contempt for religion by burning Bibles and churches during their riots in 2020.

Our senators need to hear from their constituents, churches and denominational leaders before they vote, not after the law is passed. Will people be silenced by intimidation or make their voices heard?

Alan Marsdale

Oley

Read the rest here:
Letter: Equality Act targets First Amendment rights | Letters to the Editor | readingeagle.com - Reading Eagle

KALAMAZOO, MI MLive/Kalamazoo Gazette journalist Brad Devereauxs work on issues of public transparency has been recognized with the prestigious First Amendment Award from the Associated Press Media Editors.

Devereaux was announced as the winner during the APME boards annual meeting Wednesday, April 14, held over Zoom. This is Devereauxs second time winning the organizations First Amendment Award, having secured it five years ago for reporting on a police department in Saginaw County.

As a whole, MLive Media Group reporters, photographers and videographers won 51 awards in this years APME contest for work published in 2020.

Related: MLive Media Group wins 51 AP awards for 2020 coverage

Earning Devereaux the First Amendment Award win this year was a series of stories published on MLive.com and in the Kalamazoo Gazette detailing a long-held practice among Kalamazoo city commissioners to routinely meet behind closed doors, in advance of public meetings, to discuss issues on the upcoming agendas.

There is nothing more gratifying to a journalist than performing the watchdog role on behalf of our readers and communities, said John Hiner, vice president of content for MLive Media Group. Its gratifying that the Gazettes efforts to compel transparency in government were recognized with this honor.

The series, titled Kalamazoos Closed-Door Meetings, in its entirety:

Those subquorum meetings, Devereaux discovered, had been held for decades in Kalamazoo with few, if any, questioning the practice. Legal experts say the meetings, held with fewer than a quorum of city commissioners present, cut citizens out of key discussions and likely violated Michigans Open Meetings Act.

Devereaux, 36, of Kalamazoo, knew as the reporter responsible for covering Kalamazoo City Hall that he had a duty to be there on the publics behalf.

They kept the door shut on me and anyone else not invited to attend, he said.

Devereaux used the Freedom of Information Act to seek documentation on the meetings, as well as discussing their history, purpose and legality with officials, citizens and experts alike.

When the meetings were questioned, elected officials were quick to point out the city attorney said they were legal, Devereaux said. I was given conflicting information about what was happening at the private meetings. There were no minutes taken, so the only information about what happened was in the minds of the attendees.

Documents he received in response to his FOIA request detailed topics for prior closed-door meetings, which ran the gamut of controversial local issues. Among them was discussion of a recent change in holiday decorations that caused some in Kalamazoo to criticize the citys new Candy Cane Lane.

If candy canes are too controversial to talk about in public, what else are you talking about behind closed doors? Devereaux asked. And why?

The closed-door meeting discussion included much more than candy canes: public safety issues, protests, recreational marijuana rules, and hundreds of other topics. To me, these sound like discussions the public should be allowed to hear.

The stories not only highlighted a government transparency issue previously unknown to most Kalamazoo residents; they also drove change.

A city commissioner critical of the long-held practice, after talking with Devereaux about the issue, proposed the city change the format to ensure public access. Officials discussed the proposal and ultimately voted in favor of replacing the private, small-group meetings with public Committee of the Whole meetings now being held regularly.

Related: Kalamazoo commissioners will test out public meetings to replace closed-door sessions

City residents can now watch the meetings to see detailed presentations from city staff and discussion of issues that, previously, would have been out of reach for all but those invited to the subquorum meetings.

Few things are more central to the mission of journalism than serving as a check on our governments and on all those who hold power, said Mark Tower, news leader for MLive/Kalamazoo Gazette. We stand for everyday people their eyes and ears as well as their voice. From the instinct and tenacity that spurred his initial questions and FOIA requests to the execution of the stories, Brad Devereauxs work is a clear example of that core mission.

The Michigan APME First Amendment Award, according to the organization, recognizes individuals and news organizations that made a distinguished contribution on behalf of the First Amendment or Freedom of Information and work done to overcome obstacles on behalf of the unrestricted flow of information vital to a free society.

In 2016, Devereaux won APMEs First Amendment Award for his coverage of reserve police officers in the Saginaw County village of Oakley. He used the Freedom of Information Act to report the story, even as village officials threw up roadblocks and legal action ensued.

The series of more than 50 articles, titled Small Town, Big Problem, detailed ongoing legal and insurance problems for the small village related to its large force of reserve police officers.

In recognition of his work on that series, Devereaux also won the State Bar of Michigans Wade H. McCree Award for the Advancement of Justice.

Devereaux, a Romeo-area native, graduated from Romeo High School in 2002. In 2007, he graduated from Western Michigan University with a journalism degree.

Devereaux has worked as a reporter for MLive.com and the Kalamazoo Gazette as well as The Saginaw News, and also worked as news editor for the Lovell Chronicle in Lovell, Wyoming.

In addition to the First Amendment Award, Devereaux and MLive multimedia specialist Joel Bissell together won first place for Best Illustration or Graphic, for a GIF they created to show how high water and other forces have shrunk beaches in South Haven and elsewhere.

Elsewhere in the 2020 Michigan APME contest, Kalamazoo Gazette was recognized with a first place win in the Spot News category, for coverage of summer protests and unrest in Kalamazoo.

Judges had high praise in their comments.

Simply outstanding balanced coverage and a great team effort, judges wrote. Staff members did not stand on the sideline but put themselves in the middle of this unrest, which allowed readers to see and feel and the tension and passion that boiled over into the streets.

The Kalamazoo Gazette also one second place for best digital presence in its division, and multimedia specialist Joel Bissell received a third place award for Best Feature Photo.

More from MLive:

Kalamazoo airport zip-ties valve shut after PFAS firefighting foam spilled

Kalamazoo homeless encampment doubles in size after Mills Street site vacated

A mask shouldnt have a political party, says GOP leader who thinks he caught COVID-19 at Republican meeting

See more here:
MLive/Kalamazoo Gazettes Brad Devereaux wins First Amendment Award for exposing closed-door meetings - MLive.com

Anti-Zionism is anti-Semitism.

Anti-Semitism is the dislike of the unlike.

Anti-Semitism is hatred of Jews, period.

An anti-Semite is someone who hates Jews more than is absolutely necessary.

Don't miss our top stories. Get The Jewish Week in your inbox. FREE SIGN UP

Defining anti-Semitism? Its not entirely objective. Perhaps the best approach paraphrasing U.S. Supreme Court Justice Potter Stewart in his famous comment about pornography is the old, clichd, I cant define it, but I know it whe r=n I see it. This approach, however, poses a problem that makes it difficult to measure Jew-hatred: All too often incidents or expressions are characterized as anti-Semitism when they are not, or ignored when they certainly are. The gut feeling the kishka factor is important. But gut reactions are not the same as hard data. In 2021, the conversation about anti-Semitism is not about anti-Semitism; it is about how anti-Semitism is processed, how anti-Semitism is defined.

So what is anti-Semitism?

Not an easy question to answer, these days, an era of BDS, of intersectionality, of campus instability. And, when it comes to anti-Zionism, the diciest question is at what point criticism of Israel becomes anti-Semitism.

That question is at the heart of an ongoing debate around the working definition devised by theInternational Holocaust Remembrance Alliance (IHRA), a resource group on the Holocaust for educators, museum professionals and policymakers. The IHRA definition, adopted in 2016, defines anti-Semitism as a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of anti-Semitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.

Not great, but so far so good.

Jerome A. Chanes

The problem began with a set of examples that the IHRA adopted to guide it in its work. These examples, which came under the rubric of targeting the State of Israel, included some dozen bullet-points, most of which describe legitimate anti-Semitism.

Some, however, would paint an overly broad indictment of anti-Israel rhetoric that critics say could result in the stifling of free speech when it comes to Israel and the Palestinians.

The debate has been heard in academia, in municipal politics, and in diplomatic circles. Most recently it was heard at CUNY, where the Student Senate voted down a resolution to adopt the IHRA definition. Proponents of the resolution, including the campus Hillel, said adopting the definition would make campus Jews safer. Opponents, including a Jewish student law association, said it would defame defenders of Palestinian rights.

Does the IHRA definition clarify when Israel criticismbecomes anti-Semitic? Or does it aid in the weaponization of anti-Semitism byhelping limit freedom of expression on the campus and elsewhere?

An example: When activists characterize certain policies of the State of Israel as racist is that vile anti-Semitism or protected speech and legitimate debate? My view is that criticism indeed, even harsh criticism of the policies of the government of Israel is entirely legitimate. The point at which it becomes anti-Semitism is the point at which thelegitimacyof the Zionist enterprise and, by extension, the legitimacy of the State, is questioned, because at that point the legitimacy of Jewish peoplehood is called into question and this, tautologically, is anti-Semitism. The Zionism-is-Racism movement of the 1970s is a good example. And the IHRA definition makes this distinction, saying that claiming that the existence of a State of Israel is a racist endeavor is a contemporary example of anti-Semitism.

The IHRA is less helpful in defining anti-Semitism as applying double standards by requiring of [Israel] a behavior not expected or demanded of any other democratic nation.

Many who want to weaponize anti-Semitism cite this bullet point to label the BDS movement as anti-Semitic. One pro-Israel group,StandWith Us, cites the application of double standards in encouraging Facebook to adopt the IHRA definition of anti-Semitism. Critics of the clause, however, say they have every right to pick their targets, and a pro-Palestinian campus group has no obligation to call out China for its treatment of Uighurs or Myanmar for its oppression of the Rohingya.

It is clear that incorporating the IHRA definition into federal and state legislation, as some wish, would be harmful. But there indeed may be IHRA legislation coming down the pike in the Congress, legislation that will be supported by many in the Jewish community. Recent anti-Semitic incidents have created a climate of fear. But such fear may lead people to act rashly, and to support policies with unintended consequences, such as stifling free speech.

Further, politically, when boycotting Israel is defined as anti-Semitism, it is a slippery slope, creating an atmosphere in which calling for a halt in settlement building and blocking funds for their construction even by the White House could be seen as anti-Semitic.

At bottom, codifying the IHRA into law or campus speech codes will have a chilling effect on criticism of Israel especially on the campus and put the Jewish community on the wrong side of the First Amendment.

More basic, as policy analyst Jonathan Jacoby suggests, is the agenda of those pushing for the adoption the IHRA agenda: The effort to define anti-Semitism in IHRA is largely a ploy of the pro-Israel Right to fight an anti-Israelism of the Left.

When boycotting Israel is defined as anti-Semitism, it is a slippery slope.

Additionally, there are objective consequences of fighting anti-Israelism at the expense of other forms of anti-Semitism. Anti-Semitism from white supremacist, radical Christian and other right-wing extremist groups has become a mainstay of social media, and has inspired physical attacks on Jews from Pittsburgh to Poway. Thanks in part to Donald Trump, conspiracy mongers like the Proud Boys and QAnon, whose dangerous theories often devolve into or echo vicious anti-Semitic expressions, have become part of segments of the political mainstream.

Yet our new definers of anti-Semitism including some Holocaust survivors groups and right-wing Israeli advocacy organizations choose to emphasize anti-Israel expression as a greater danger than real threats from the extreme right.

Political analyst Hank Sheinkopf, in a personal conversation, captured the moment: The IHRA definition, if codified in law, will set a standard that will allow for only limited discussion, and will, in fact counterintuitively permit more extremist action.

Definitions? I have always liked historian David Bergers workmanlike definition of anti-Semitism: Anti-Semitism means either of the following: (1) hostility toward Jews as a group that results from no legitimate cause or greatly exceeds any reasonable, ethical response to genuine provocation; or (2) a pejorative perception of Jewish physical or moral traits that is either utterly groundless or a result of irrational generalization or exaggeration.

Straightforward. No political or ideological baggage.

Works for me. It ought to work for our community.

Jerome Chanes, a senior fellow at the Center for Jewish Studies of the CUNY Graduate Center, has written extensively on anti-Semitism. He is the author of four books and numerous articles, reviews, and book-chapters on Jewish public affairs, history, and arts and letters. His current project is a book setting a context for 100 years of Israeli theatre.

Read more here:
The IHRA Definition of Anti-Semitism Puts Jews on the Wrong Side of the First Amendment - Jewish Week

I am suing Twitter for defamation because they said, I, James OKeefe, operated fake accounts. This is false, this is defamatory, and they will pay, the infamous Project Veritas filmmaker said on his website.Section 230 may have protected them before, but it will not protect them from me. The complaint will be filed Monday.

He then went on to suggest that Twitter was perma-banning him for his most recent video of a CNN sound guy bragging to his date that his employer took down Trump with biased coverage. (So much for the claim that Dominion rigged the vote.)

Twitter permanently suspended James OKeefes personal account on the platform today, following a series of bombshell undercover videos of a CNN employee, he said, before taking to Facebook to complain some more about not being allowed to speak his truth.

Heres OKeefes lawyer Harmeet Dhillon, fresh off her stunning success (AHEM) in getting that Biden win in Pennsylvania overturned, explaining to Sean Hannity that only a manly man like James OKeefe would have the spine to take on CNN, the New York Times, and Twitter.

You may not register or create fake or misleading accounts or use multiple accounts to manipulate Twitter conversations, Twitter support said in an email to OKeefe. While you may use Twitter pseudonymously, or as a parody, comedy, or fan account, you may not use misleading account information in order to engage in spamming, abusive, or disruptive behavior, including attempts to manipulate the conversation on Twitter.

The fact that OKeefe himself published the email may make it more difficult to prove that he was grievously defamed when the company turned around and made roughly similar statements to the media.

Theres also the small matter of whether the suggestion that OKeefe operated sock puppet accounts, even if defamatory, would actually harm his reputation. Pretending to be something hes not is kind of James OKeefes calling card.

This is a guy whose breakthrough move was filming himself dressed as a pimp, complete with faux fur coat and cane, trying to get an ACORN employee to help him dummy-up a mortgage application for a prostitute.

In 2017, a woman associated with Project Veritas pretended to have been impregnated as a teenager by Alabama Senate candidate Roy Moore in a bizarre attempt to discredit his other accusers and the Washington Post.

In 2010, he and two compatriots were arrested for sneaking into the office of then-Senator Mary Landrieu dressed as telephone repairmen. They pleaded guilty to a misdemeanor and paid a fine.

Also in 2010, OKeefe tried to lure a CNN reporter onto a sex boat where he would secretly film himself seducing her in an attempt to discredit the network.

Even the latest sting video the one that supposedly got Twitter to shut OKeefe up as a favor to CNN was shot by an actress claiming to be a nurse who catfished the CNN employee on Tinder. So there may be some difficulty establishing damages to the reputation of a person whose reputation is, umm, mixed.

Theres also the minor detail that Twitter can kick anyone off the site they like, and that the terms of service are not exactly favorable to user lawsuits. Just ask Devin Nunes.

But other than that, knock yourself out, fella.

James OKeefe RESPONDS to TWITTER ACCOUNT SUSPENSION Following BOMBSHELL CNN TAPES: Says He Plans to SUE THE PLATFORM FOR DEFAMATORY STATEMENTS [Project Veritas]James OKeefe vows to sue Twitter for defamation after ban for alleged use of fake accounts [Fox]Project Veritas founder wants to sue Twitter for defamation over recent suspension

Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.

Read more:
Project Veritas Gonna Sue Twitter For Defamatory Section 230 Censorship And First Amendment Assault Or Something - Above the Law

The First Amendment of the Constitution says, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...

This amendment clearly meant something far different to the Constitutional framers than many today assume it means.

Jefferson began editing the New Testament in 1804 while a sitting president, attempting to make his version the U.S. government-sanctioned version; thus insuring it would be read in every American classroom. After drafting the First Amendment, Madison said it would aid in the spread of Christianity. Franklin, a self-proclaimed deist, complained the framers werent seeking Gods guidance enough while drafting the Constitution, the opposite of how deism is defined today.

The term, church, in the 18th century referred to institutional religion. This term does not equate with God anywhere within the writings of Americas founders. And, the Declaration clearly defines a Creator actively involved in the affairs of humanity.

Legitimate secular university polls report 80% of American educators, 75% of physicians and 50% of U.S. scientists believe in God. Even though so many agree the evidence demonstrates design, the ACLU refuses to protect their credentialed scientific conclusions. Instead, the ACLU demands American educators deliberately lie to our children by omission, leaving out the fact that most major historical and nearly half of living scientists agree the scientific evidence demonstrates design.

The God question is central to the scientific thought and inquiry of nearly every major historical scientist. Yet, many today pretend God isnt a question for science, including some of the same progressives angry over the one-sidedness of talk radio. To allow only one myopic view is to teach our children questioning what is true and presenting differing viewpoints isnt relevant to education.

Many educators do, in fact, address the God question. Any theory assuming universal reality is a result of unguided natural processes is claiming there is no Grand Designer is non-verifiable and therefore irrational. Our extremely tiny window inside such an immense fishbowl cant possibly determine the universal reality is either not created or unguided. Atheism has no more protection under the First Amendment than any other view. Is science really served when our children are taught only one non-evidence-based superstition?

The Encyclopedia Britannica and most scientists today admit science doesnt know how life came to be. Life may predate our own sun. Thus, it is an obvious lie to say life came about by natural, unguided processes, as the television series, Cosmos, grandly proclaims, without providing a shred of supporting evidence. Elsewhere, this series contradicts itself. It says scientists shouldnt be afraid to admit what they dont know. If science doesnt know how life came to be, this is what American textbooks should teach.

When 87% of Americans claim to believe in God, is it reasonable or fair for our childrens textbook authors to pretend there is no Creator, as if they somehow would know? What evidence do they have for magically existing universes, and why should we believe them or entrust our childrens education to them?

Richard Aberdeen

Hermitage

Visit link:
Letter: On God and the First Amendment | Communities | mainstreet-nashville.com - Main Street Nashville

After months of delay, on April 5 the Supreme Court finally granted certiorari and ruled in Biden v. Knightthe case, renamed after President Biden took office, concerning whether the First Amendment prevented then-President Trump from blocking his critics on Twitter. The justices vacated the ruling by the U.S. Court of Appeals for the Second Circuit and instructed the lower court to dismiss the case as moot.

That could have been that. But Justice Clarence Thomas issued a concurrence in the case that could have implications well beyond the Twitter accounts of politicians. The justices speculations on the possibilities for regulating social media platforms are already changing the tone of the debate on the political right, where commentators have pointed to unsubstantiated claims of political bias by social media platforms in order to push for greater regulation. Thomass concurrence is just a nonbinding statement, issued without briefing, in which one of the courts nine justices speculates about what legal theories might justify curtailing social media websites First Amendment rightsbut conservatives are celebrating it as a roadmap for reining in the social media giants.

It is no such thing. Thomas raises three questions about the legal status of social media websites. First, are they de facto state actors subject to First Amendment restrictions? Second, might they be compelled, as common carriers, to carry speech against their will? And third, might they be barred, as public accomodations, from discriminating against certain content or viewpoints? In an effort to promote the idea that the sites right to exclude speech might be permissibly curtailed, Thomas treats these questions as though they are unexplored, unsettled, even wide open. As we will explain, however, the answer to all three questions is no.

Applying old doctrines to new digital platforms is, Thomas submits, rarely straightforward. Yet in the case before him, it really was. When the government opens a space to free expression, it creates a designated public forum in which it may not discriminate based on content or viewpoint. At issue in the case was whether Trump, by using his Twitter account for government business, leaving the account open to replies, and then blocking certain users, had discriminated among viewpoints in a designated public forum. The Second Circuit reached the conclusion that Trump had done so and that the First Amendment barred him from blocking the individual plaintiffs in the case.

While the governments petition for certiorari was pending, the parties agreed that the case was mootthough they disagreed about why. The government argued that the mootness arose from Trumps ceasing to be president. The respondents contended that it arose when Twitter suspended Trumps account following the Jan. 6 riot.

In Thomass view, the suspension of Trumps account informs the merits of the case. It seems rather odd, he proposes, to say that something is a government forum when a private company has unrestricted authority to do away with it. But its actually not odd at all. Suppose a mayor regularly offered commentary on his administration at events, open to the general public, held at a large conference room at a local Hilton. The room would constitute a designated public forum, yet Hilton, a private company, would still retain unrestricted authority to do away with that forum. If the mayor used the room to incite a riot, for example, Hilton would have every right to kick him out.

Thomas seems to think that Twitter is not like the Hilton because digital platforms are highly concentrated and have enormous control over speech. Both propositions are dubious. On the one hand, a mayor who got himself booted by Hilton, Marriott and Hyatt hotels might find himself quickly running out of large conference rooms in his city. On the other, Trump can easily speak, and attract widespread attention for his speech, from an alternative social media website, a new network of his own, or even his own personal website.

The key question in the case at hand was whether the interactive space in Trumps Twitter accountwhere an unblocked user can respond to his tweetswas a designated public forum. As the Second Circuit explained, the space clearly met that standard: it was intentionally opened for public discussion when [Trump], upon assuming office, repeatedly used [his account] as an official vehicle for governance and made its interactive features accessible to the public without limitation. But Thomas focuses on an entirely distinct question in discussing Twitter and public-forum doctrine: whether the whole of Twitter is a public forum. That question turns not on any action Trump took in regard to his account, but on the very different issue of whether Twitter itself is a de facto state actor.

Thomas acknowledges that because Twitter had unbridled control of [Trumps] account, the First Amendment restrictions that restrain the government, in the operation of a public forum, may not apply to Twitter. In fact, in Manhattan Community Access Corp. v. Hallecka decision Thomas joinedthe Supreme Court confirmed that only the equivalent of a state actor can be deemed to operate a public forum, and that a private entity that opens its property for speech by others is not transformed by that fact alone into a state actor.

As Halleck explains, a private entity can qualify as a state actor in only a few limited circumstances. One is when the private entity performs a traditional, exclusive public functionand there is nothing either traditionally or exclusively governmental about running a social media website. Another circumstance is when the government compels the private entity to take a particular action. Thomas speculates that plaintiffs might have colorable claims against a digital platform if it took adverse action against them in response to government threats. He acknowledges, however, that no threat is alleged here, and that its unclear what sort of government threat could turn the likes of Twitter into a state actor. Thomas cites cases holding that the threat must be so coercive that the private partys action is not voluntary and is in effect that of the State.

The public forum doctrine is the sole topic at issue in the case at hand. The doctrine, however, is not even the primary subject of Thomass concurrence. Thomas devotes most of his attention to exploring two legal theories that might allow greater government control over content moderation. The first is common carriage. Riffing on a single academic article by Adam Candeub, Thomas suggests that digital media might be like toll bridges, railroads or telephone networkswhich must offer service indiscriminately and on general terms.

By contrast, newspapers actively curate content. The presentation of an edited compilation of speech generated by other persons is a staple of most newspapers opinion pages, declared the Supreme Court in Miami Herald Publishing Co. v. Tornillo. Thus, newspapers cannot be compelled to carry speech they find objectionable. Their editorial judgments fall squarely within the core of First Amendment security, wrote the Miami Herald court. The same goes for social media, which actively exercise editorial judgment in moderating contentand thus deserve the same constitutional protections as newspapers. As Justice Antonin Scalia once declared: [T]he basic principles of freedom of speech and the press, like the First Amendments command, do not vary when a new and different medium for communications appears.

On multiple levels, social media sites are more like newspapers than any of the examples Thomas cites. Unlike newspapers or social media, railroads and telephone networks hold themselves out as serving everyone equally, without editorial intervention. In 1974, the Federal Communications Commission (FCC) extended traditional common carriage regulation to nascent cellular telephonybut not to wireless dispatch services such as those operated by police departments, fire departments, and taxicab companies, for their own purposes. The U.S. Court of Appeals for the D.C. Circuit upheld the classification of the latter as private carriage: What appears to be essential to the quasi-public character implicit in the common carrier concept is that the carrier undertakes to carry for all people indifferently. Likewise, the FCCs 1985 Computer II order created the distinction that still undergirds telecommunications law: Services that offer pure transmission are common carriers while those offering data processing are private carriers. The key, as Thomas explained in his 2005 Brand X decision, is how the consumer perceives the service being offered.

Thomas argues that, even absent such perception, common carrier regulation may be justified when a business, by circumstances and its nature, rise[s] from private to be of public concern, quoting a 1914 decision involving insurance regulation. He also cites an 1894 decision in which telegraph network operators demanded limitations on their liability as a benefit of traditional common carriage regulation. Neither case says when communications platform operators are not merely conduits, but speakers with their own speech rightslike newspapers.

Where courts have upheld imposing common carriage burdens on communications networks under the First Amendment, it has been because consumers reasonably expected them to operate conduits. Not so for social media platforms. To understand why, consider net neutrality.

In 2015, the FCC reissued rules requiring most mass-market internet service providers (ISPs) not to block or throttle lawful internet trafficand formally classifying them as common carriers. The D.C. Circuit upheld the order, and concurring with the courts denial of a rehearing, the two judges who wrote the panel decision explained that the order did not implicate the First Amendment because it applied only insofar as broadband providers represented to their subscribers that their service would connect to substantially all Internet endpoints. This merely requires ISPs to act in accordance with their customers legitimate expectations. Conversely, the judges wrote, ISPs could easily avoid the burdens of common carriage status, and exercise their First Amendment rights: [T]he rule does not apply to an ISP holding itself out as providing something other than a neutral, indiscriminate pathwayi.e., an ISP making sufficiently clear to potential customers that it provides a filtered service involving the ISPs exercise of editorial intervention.

Every social media service provides just that kind of filtered service, spelling out detailed terms of service that expressly reserve the right to remove content that violates those terms. Although subscribers to standard broadband service might legitimately expect to obtain access to all lawful internet content, users of a social media service cannot reasonably expect that they may use the service to say whatever they want.

Thomas cites Turner Broadcasting v. FCC, in which the Supreme Court upheld forced carriage under the First Amendment. In that case, the court ruled that cable companies must carry local broadcasters channels for free. Turner seems to parallel conservatives contemporary arguments about Big Tech: When an individual subscribes to cable, the physical connection between the television set and the cable network gives the cable operator bottleneck, or gatekeeper, control over most (if not all) of the television programming that is channeled into the subscriber's home. A cable operator, unlike speakers in other media, can silence the voice of competing speakers with a mere flick of the switch.

But the comparison between cable companies and social media platforms doesnt hold water. Prior to the advent of direct broadcast satellite television, cable operators controlled the only pathway for bringing multichannel video programming services to consumers. This was thanks, in part, to exclusive local franchises granted by municipalities, which controlled access to rights of wayclear state action. Today, no platform controls the only pathway to expression, and the government confers no monopoly privileges on any particular tech service.

Whats more, Turner is not, fundamentally, a speech case. Although the law at issue in Turner gave some broadcasters a right to cable carriage (and therefore favored their speech over the cable providers), the majority nonetheless concluded that the law was not content based. The cable providers had not objected to any content or viewpoints expressed in the broadcasters programming; rather, as the majority noted, cable operators suffered an economic loss from not being able to charge for the one-third or so of their channel capacity allotted to broadcasters. The majority therefore applied only intermediate scrutiny.

When it comes to the regulation of speech on social media, however, the presumption of content neutrality does not apply. Conservatives present their criticism of content moderation as a desire for neutrality, but forcing platforms to carry certain content and viewpoints that they would prefer not to carry constitutes a content preference that would trigger strict scrutiny.

Under strict scrutiny, any gatekeeper power exercised by social media would be just as irrelevant as the monopoly power of local newspapers was in Miami Herald. Ironically, Thomas himself wanted to apply strict scrutiny in Turner because, as a dissent he joined put it, Congresss interest in platforming diverse and antagonistic sources was not content-neutral. Yet a platform mandate for diverse and antagonistic sources is essentially what many conservatives are arguing for now. Whether must carry for cable was really content neutral in Turner was debatablethe majority saw no subtle means of exercising a content preferencebut the agenda behind must carry for social media is unmistakable.

Thomas asserts, in his Knight concurrence, that common carriage could be imposed on social media companies especially where a restriction would not force the company to endorse the speech. But a second reason Turner did not apply strict scrutiny was its conclusion that forcing cable companies to carry local broadcasters channels would not force cable operators to alter their own messages to respond to the broadcast programming they are required to carry. Noting that the FCC had first instituted some form of must-carry mandate in 1966, the Supreme Court concluded: Given cables long history of serving as a conduit for broadcast signals, there appears little risk that cable viewers would assume that the broadcast stations carried on a cable system convey ideas or messages endorsed by the cable operator. Similarly, Thomas alludes to Pruneyard Shopping Center v. Robins, which forced a mall to let students protest on its private property. The views expressed by members of the public on the malls property, Pruneyard declared, will not likely be identified with those of the owner.

Although users cannot reasonably expect social media services to operate as pure conduits, they can and do associate websites with the content they allow. Like newspapers, and unlike telephone networks, social media sites are increasingly held accountable for the consequences of the speech they carry. They are regularly boycotted by usersand, increasingly, by advertisers, under growing pressure from their own investorsfor refusing to take down objectionable content. This is business reality for Facebook, as reflected in the multiple references in its most recent quarterly report to risk factors related to how the companys handling of content is perceived. In Facebooks last quarterly earnings call, CEO Mark Zuckerberg spent most of his time explaining how the company would handle misinformation about the then-impending election.

Section 230 of the Communications Decency Act allows platforms to moderate what shows up on their services without fear of liabilitywhether they choose to leave content up or take it down. Clearly, Congress did not want social media to be forced to function as mere conduits (like telegraph and telephone networks) for the speech of others.

But Thomas makes another argument, too. Even if digital platforms are not close enough to common carriers, he suggests, legislatures might still be able to treat digital platforms like places of public accommodation. But in two key cases that Thomass concurrence does not address, the Supreme Court ruled that anti-discrimination laws could not trump private entities First Amendment rights to speak, to refrain from speaking, or to decline to associate with others speech. The same goes for newspapers and social media companies.

In Masterpiece Cakeshop v. Colo. Civil Rights Commission, the Supreme Court ruled that the commission violated the First Amendments Free Exercise Clause though its hostility toward the religious beliefs of a baker whom it sanctioned for refusing to create a custom cake for a same-sex wedding because of those beliefs. [A]s a general matter, Thomas opined, in a concurrence, public-accommodations laws do not target speech but instead prohibit the act of discriminating against individuals in the provision of publicly available goods, privileges, and services. Thomas drew this language from a ruling that, in turn, invoked Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, a landmark decision barring the city of Boston from dictating which signs or messages a private organization had to allow at its St. Patricks Day parade. Notably, Thomas cites neither Masterpiece Cakeshop nor Hurley in his Biden v. Knight concurrence.

Much as activists today press for more detailed social media moderation policies, LGBT rights groups had complained that the parade lacked written procedures for selecting participants, and that what procedures there were were not applied uniformlyresulting in discrimination against LGBT groups wishing to participate in the St. Patricks Day parade. Although the state courts accepted these objections, the Supreme Court held that in doing so, they had, in effect, improperly turned the parade sponsors speech itself into a public accommodation. In excluding LGBT signs, the sponsors had decided not to propound a particular point of view, the Supreme Court concluded, and that choicewhatever the sponsors reason for itlay beyond the governments power to control.

After quoting Miami Heralds affirmation of a newspapers First Amendment right to compile, curate, and edit opinions as it sees fit, Hurley rejected the notion that a parade is merely a conduit for the speech of participants, rather than itself a speaker. The parade sponsors were intimately connected with the communication advanced in the parade. Letting the LGBT groups use the parade to disseminat[e] a view contrary to the sponsors own would, the Supreme Court ruled, compromise the sponsors First Amendment right to autonomy over the[ir] message. Again, the same goes for social media platforms.

So which decisionTurner or Hurleyapplies to social media? Are social media platforms more like cable companies, which can be compelled to carry others speech, or more like parade sponsors, which cannot? Like the parade sponsors in Hurley, social media operators all refuse to carry certain content and viewpoints. The cable operators in Turner, by contrast, raised no such objections. They had, the record showed, an incentive to drop local broadcasters and to favor affiliated programmers. The more channels over which [they] exercise[d] unfettered control, therefore, the higher their profits. Their complaint turned on their bottom line; they raised no argument about their right to free expression.

That cable operators never objected to the content of broadcast channels is unsurprising. Broadcast content is usually highly sanitizedpoliced by the FCC for indecency and by broadcasters themselves for anything that might offend advertisers targeting mass audiences. Halleck expressly declined to address the constitutionality of forcing cable operators to carry objectionable content. If cable operators object to carrying, say, QAnon content, the case will be altogether different from, and harder than, Turner.

Much as parade organizers decide who may march, under what conditions, and in what order, social media sites algorithmically rank, order, and present a newsfeed parade of user-generated content. And just as organizers can exclude some would-be marchers whose views are antithetical to the message of the parade, social media moderators ban certain content, users, and groups whose views are antithetical to the message of the site.

Hurley itself raised another important distinction between parades and cable. Unlike the programming offered on various channels by a cable network, it said, while discussing Turner, the parade does not consist of individual, unrelated segments that happen to be transmitted together for individual selection by members of the audience. Although usually composed of distinct units, Hurley observed, a parade is expressive of a common theme.

Do social media sites have such a common theme? The platforms themselves clearly think so. Facebook sees itself as a place for expression, one that give[s] people a voice. Twitter, for its part, says that it aims to enable people to participate in the public conversation freely and safely. While these themes might make for a dull parade, they are nonetheless the makings of a specific, curated, expressive messagea message that is destroyed if calls for violence, harassment, misinformation and the like are allowed. Hurley should therefore protect the right of social media to decide what messages not to associate themselves with.

These are just some of the legal questions and factual details that Thomas does not address. More questions remain, such as what role the Takings Clause might play in any legislation that follows Thomass proposed model; indeed, the dissent Thomas joined in Turner specifically noted that Fifth Amendment issues would have to be addressed before cable networks could be treated as common carriers. Only when the arguments Thomas raises make their way to the Supreme Courtperhaps after a state legislature enacts the kind of law he proposeswill the justices have a complete legal and factual record on which to base sound and impartial analysis.

Here is the original post:
Justice Thomas's Misguided Concurrence on Platform Regulation - Lawfare

Buy Photo

Alexander Cullen, who moved to Appleton in February, stops to take a picture of competing signs on Friday in Appleton. In response to a sign with homophobic language on a building along Richmond Street, the city of Appleton has placed a sign nearby that reads "Hate has no home here."(Photo: Wm. Glasheen/USA TODAY NETWORK-Wisconsin)

APPLETON - In response to an electronic sign on a privately owned building that usesa homophobic slur, the city of Appleton put up its own sign Friday with a message letting the community know that all people are welcome in Appleton.

The city's sign reads, "Hate has no home here," and is in the parking lot of the Good Company restaurant. Good Company is next door to 200 N. Richmond St., where an electronic sign displays a picture of Sen. Joseph McCarthy and a series of messages that read"Where did the f-----s... Put My Head?" ... "I'm Joe McCarthey (sic)" ... "I was right."

The city received multiple complaints about the McCarthy sign, but there's nothing the city could do about it, Appleton Mayor Jake Woodford said. The sign itself doesn't violate any city codes and the speech is protected under the First Amendment.

"What we've been saying to members of our community is (the language used on the sign)has no home in this community," Woodford said. "We want Appleton to be a place where all people feel welcomed, and that the First Amendment applies to all of us and belongs to all of us."

RELATED:Appleton sign displays homophobic slur, images of senator Joseph McCarthy

"We put the sign out as areminder of our values as a community, which is that we believe hate has no home here," Woodford said. "And we believe in the dignity and respect of all people."

The city owns the sign it's an extra the Appleton Police Department uses during events, Sgt. Meghan Cash said and Good Company allowed the city to put the sign in the restaurant's parking lot, Woodford said.

Public messages and statements that make any community member feel threatened or disrespected is not acceptable and we are proud of our citys community statement," Appleton Police Chief Todd Thomas said in a statement. "First Amendment rights apply to all of us, and with that right we believe there is also a responsibility take ownership of your words. We are proud of ours.

In response to a sign with homophobic language on a building along Richmond Street, the city of Appleton has placed a sign nearby that reads Hate has no home here, seen here on Friday in Appleton.(Photo: Wm. Glasheen/USA TODAY NETWORK-Wisconsin)

Members of the community have planned a protest of the McCarthy sign at 2 p.m. Saturday outside of 200 N. Richmond St., according to a Facebook event posting.

Woodford said it was important for the city to acknowledge when events or language in the community hurt people, and they feel the city's sign is a way to show that.

"I would argue a vast majority of people in this community believe people should be treated with dignity and respect," Woodford said. "So that's why we did this."

OTHER NEWS:Appleton Area School District plans full reopening next school year after a topsy-turvy pandemic year

OTHER NEWS:Recount confirms Sheri Hartzheim's razor-thin victory over incumbent Kyle Lobner in Appleton Council race

Contact Natalie Brophy at (715) 216-5452 or nbrophy@gannett.com. Followher on Twitter @brophy_natalie.

Read or Share this story: https://www.postcrescent.com/story/news/2021/04/16/appleton-city-leaders-put-up-sign-counter-one-homophobic-slur/7257601002/

See the original post here:
'Hate has no home here': City of Appleton puts up sign countering sign with homophobic slur - Post-Crescent

When Christians met in each others homes for prayer or Bible study, they had to be careful. Such gatherings were illegal, and the organizers never knew who might inform the authorities.

Although that sounds like a scene from the Soviet Union, it actually describes the situation in California under COVID-19 regulations that the Supreme Court blocked last Friday. By issuing an injunction against Gov. Gavin Newsoms restrictions, the court reaffirmed that politicians must comply with the Constitution when they decide how to deal with an epidemic.

The main rule at issue in this case limited at-home religious gatherings, whether inside or outside, to people from no more than three households. If two people from different households joined a host for a prayer meeting or Bible study session, for example, no one else was allowed to come.

As the petitioners noted, that limit does not permit an individual to gather with others in her own backyard to study the Bible, pray or worship with members of more than two other households, all of which are common (and deeply important) practices of millions of contemporary Christians in the United States. Meanwhile, California was allowing much larger groups to gather in other settings: inside of stores, barbershops, nail salons, tattoo parlors, movie studios and (in some counties) restaurants, for example, or outdoors at restaurants, wineries, gyms, movie theaters, zoos, museums, sporting events, concerts, political demonstrations, weddings and funerals.

The upshot was that Californians could sit for a haircut with 10 other people in a barbershop, eat in a half-full restaurant (with members of 20 different families), or ride with 15 other people on a city bus. But they were not allowed to host three people from different households for a Bible study indoors or in their backyards.

Justice Elena Kagan, who objected to the Supreme Courts injunction in a dissent joined by Justices Stephen Breyer and Sonia Sotomayor, argued that Californias regulations did not implicate the First Amendment because they were neutral and generally applicable. The state has adopted a blanket restriction on at-home gatherings of all kinds, religious and secular alike, she noted.

The petitioners argued that Gov. Newsoms rules nevertheless amounted to a subtle but unmistakable religious gerrymander. Five justices were inclined to agree, saying the plaintiffs were likely to prevail in their claim that the restrictions on private religious meetings violated the First Amendment.

This is not the first time that the Supreme Court has called attention to the impact of COVID-19 control measures on religious freedom. It blocked enforcement of New York Gov. Andrew Cuomos onerous restrictions on houses of worship last November, vacated a decision upholding Colorados limits on religious services in December, and reached similar conclusions in four cases involving state and local regulations in California two months later.

By now, the court said, it should be clear that public health regulations are subject to strict scrutiny whenever they treat any comparable secular activity more favorably than religious exercise and that the relevant consideration is the risks various activities pose, not the reasons why people gather. To pass strict scrutiny, a state has to show that measures less restrictive of the First Amendment activity such as face masks, physical distancing and more generous group limits could not address its interest in reducing the spread of COVID.

Kagan is certainly right, based on the Courts pre-pandemic precedents, that disease control measures can be constitutional even if they incidentally impinge on religious freedom. But Kagan, Breyer and Sotomayor always seem willing to accept politicians public health judgments, even when they are scientifically dubious, change in the midst of litigation, or result in policies that privilege politically influential industries or explicitly treat religious gatherings as a disfavored category.

At this point, it is not clear that Kagan et al. can imagine a disease control policy that would violate the Free Exercise Clause, provided it was presented as necessary for the protection of public health, as such policies always are.

Jacob Sullum is a senior editor at Reason magazine.

Send letters to letters@suntimes.com.

See original here:
Prohibited prayer and the limits of government authority even in a pandemic | Sullum - Chicago Sun-Times