Monthly Archives: September 2021

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

When the founding fathers passed the First Amendment to our Constitution on December 15, 1791, there were no computers let alone an internet. When they passed the amendment the only speech available was the unamplified voice and the printed word.

The press in 1791 was controlled by publishing houses that published newspapers, magazines, and books. All publishing houses had then and still now have editors whose job it is to edit everything that reaches the public. Editors cut out or rewrite bad style, misconceptions, insensitive expressions and, at that time, even profanity. The signers assumed editors would guarantee the speech would be decent and civil.

Today large newspapers have news editors, sports editors, art editors, music editors, food editors, society editors, whose job it is see that what leaves their office for the printers is true, verified, and inoffensive to sensitive ears.

The Internet has exploded with unedited publishing or, perhaps I should say, unedited printing. Hate messages, lies, intimidations, bullying, slander, traitorous demands, attacks on our fragile democracy in favor of autocracy and oligarchy abound. There seems to be no depth of evil the Internet cant reach despite all efforts of the social media. The signers of the First Amendment could not foresee what is happening on the Internet today.

Every person with a computer connected to the Internet now has a newspaper or TV station in the shape of a web page, Facebook page, or some other social media web presence. Foreign powers and domestic terrorists in 2016 set up sites under American names in order to promote the candidate that favored them and debase his opponent.

The signers of the U.S. Constitution and its amendments could not have dreamed of the extent of evil reaching our eyes and ears today. The Constitution is supposed to be the foundation underlying all our laws; it merely sets the parameters for laws. It is supposed to be flexible, adjusted to fit the times. The Constitution has been amended 27 times since its ratification in 1788.

The signers of the Constitution and its amendments depended on their descendants to add granularity to the broad strokes of their creation. Justice Oliver Wendell Holmes added the first condition on the broad free speech protection offered by the First Amendment.

Holmes wrote in his 1919 opinion, representing a unanimous court, in Schenck v. United States: The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

Since the Holmes declaration, laws against defamatory speech, against written libel and spoken slander, a definition of profanity, and various other restrictions have been added. So, freedom of speech is not absolute.

When Donald Trump sent the mob listening to him down Pennsylvania Avenue (to the Capitol) to fight like hell! And if you dont fight like hell, youre not going to have a country anymore, he was not merely communicating with the angry mob. His speech was like yelling Fire! in a crowded theater, raising a clear and present danger.

The danger could not have been clearer or more present for the police defending the Capitol or the congressional leaders who were rushed to safe rooms to save their very lives. The gallows erected outside the Capitol with Vice President Pences name on it made clear what the mob had come prepared for.

All of this came into being from months and years of unrestricted access to editorless print disguised as publication on the Internet and in the air waves. Freedom of speech is not absolute, and we must find ways of preventing unrestrained hatred and bizarre irrationality from unrestricted access to the Internet. Otherwise, the constitutional right to free speech could provide a pathway to overthrowing the very government that provides that right, an act of national suicide.

Robert Beard is professor emeritus, linguistics and Russian programs, at Bucknell University.

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Could the 1st Amendment destroy America? | News, Sports, Jobs - Williamsport Sun-Gazette

Silicon Valleyled by giant technology companies like Amazon, Google, Facebook, and Microsoft, which increasingly control our on- and off-line livesused to be the poster child for the theory that the internet was an exception to the general need for government regulation. From John Perry Barlows libertarian declaration of the internets independence from Governments of the Industrial World, you weary giants of flesh and steel, to more measured but still emphatic arguments from technology elites and scholars, the consensus typically has been that as long as the government removed legal obstacles to the rapid growth of technology platformsfor example, by immunizing platforms against the actions of their usersSilicon Valleys natural genius could be trusted, under the watchful eye of market forces, to innovate, scale, and generally improve peoples lives.

Despite this long-standing freedom from regulation, Silicon Valleys regulatory exceptionalism may be coming to an end. In the news, the industrys controversies loom just as large as its successes. From Facebooks role in facilitating Russian meddling in the 2016 U.S. presidential election and Amazons increasing monopoly-like power over internet commerce, to Twitters controversial banning of President Donald Trump and Apples campaign to encrypt its way onto the wrong side of law enforcement agencies around the world, there is a growing willingness by policymakers to subject technology companies to a broader set of regulations. As Jonathan Zittrain observes, the United States is entering a new era of digital governance, moving from a discourse around rights ... to one of public health, which naturally asks for a weighing of the systemic benefits or harms of a technology, and to think about what systemic interventions might curtail its apparent excesses.

But as I argue in a recently published article, the First Amendment is likely to act as a potent tool, for good or ill, against government regulation. The First Amendment prohibition on government action that abridg[es] the freedom of speech has been understood to encompass two more specific prohibitions: the prohibition on government restriction of speech, and a prohibition on government compulsion of speech. As scholars have long noted, because the First Amendments scope is quite malleable, it is easy for companies to engage in First Amendment opportunism to advance their legal positions using the First Amendment: for example, that being forced to write computer code to help the government access an encrypted device is a kind of compelled speech in violation of the First Amendment. And because the core business of all leading technology companies is the facilitation of communication via computer code, the First Amendment presents plausible deregulatory arguments across a variety of policy areas. For these reasons, technology companies are best placed to advance what some observers have called digital Lochner: the return of deregulatory constitutional law, but this time grounded in the digital First Amendment rather than substantive due process.

To be sure, not all deregulatory uses of the First Amendment are bad; in particular, companies can play an important role in defending the First Amendment rights of their users. But when major technology companies invoke their own First Amendment rights to resist government action intended to advance societal First Amendment values, courts should be highly skeptical. I use the ongoing controversy over Floridas law limiting the moderation of social media content to illustrate a new approach to evaluating Silicon Valleys First Amendment arguments, one that puts the rights of users and the speech interests of society front and center.

The article is available here, and I also recommend the other pieces in the symposium of which it is a part, about content moderation.

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Technology Giants and the Deregulatory First Amendment - Lawfare

Enforcement of Florida's "Combating Public Disorder Act" has been partially blocked by a federal judge, who appeared to agree with those challenging the "anti-riot" law that it was unfairly targeted at black Floridians and people protesting racial injustice.

Challengers to the law argued that it had a chilling effect on free speech and protest in the state.

Lawyers for Florida Gov. Ron DeSantis countered that there had been no such chilling effectwhy, just look at how black residents were out protesting on June 19 this past summer, they said, pointing to a flyer that billed itself as a "Juneteenth Black Joy Celebration" at a community park in West Palm Beach.

This mockery of an argument didn't go over so well with the court, which scolded DeSantis for having "conflated a community celebration of a federal holiday commemorating the end of slavery with a protest."

"If Governor DeSantis included this particular post to imply that any gathering of Black people in a public space is a de facto protest, Plaintiffs' concerns about how the statute's new definition of 'riot' will be enforced are indeed well-founded," wrote Chief Judge Mark Eaton Walker of the U.S. District Court for the Northern District of Florida last week. "It should go without saying that a public gathering of Black people celebrating 'Black joy' and release from bondage does not automatically equate to a protest."

In a decision that opens by detailing Florida's history of using anti-riot laws "to suppress activities threatening the state's Jim Crow status quo," Walker issued a preliminary injunction against DeSantis and several county sheriffs enforcing the new definition of rioting ensconced in Florida's House Bill 1.

The lawproposed by DeSantis following racial justice protests last summer and enacted in April 2021, just before the verdict in George Floyd's murder was handed downstipulates that someone "commits a riot if he or she willfully participates in a violent public disturbance involving an assembly of three or more persons, acting with a common intent to assist each other in violent and disorderly conduct," and this results in "injury to another persondamage to propertyor imminent danger of injury to another person or damage to property." The plaintiffs in this caseincluding the Dream Defenders, Black Lives Matter Alliance Broward, the Florida State Conference of the NAACP Branches, and several other groupssay this new definition could criminalize not just people acting violently but anyone who shows up at a protest or rally where violence happens to break out.

The "overbroad and vague" nature of the law could subject "non-violent protestors to criminal liability for exercising protected rights to speech and assembly," the groups argued.

Evidence they provided to the court establishes "that their members have engaged in self-censoring for fear of the challenged statute's enforcement against them," noted Walker. "The chill is evidenced by the unwillingness of their members to turn out at protest events in the weeks following HB1's enactment, the fact that some of the Plaintiffs have chosen to modify their activities to mitigate any threat of arrest at events, and the fact that at least one Plaintiff has ceased protest activities altogether."

"If this Court does not enjoin the statute's enforcement, the lawless actions of a few rogue individuals could effectively criminalize the protected speech of hundreds, if not thousands, of law-abiding Floridians," writes Walker. "This violates the First Amendment."

The anti-riot act didn't just open up the possibility that more protesters could be arrested. It also immunizes people who hurt or kill "rioters" from civil liability, while creating several new crimes (including "cyberintimidation by publication"), stiffening penalties for existing crimes, and making an array of other changes. ("There's a lot going on in this lawnot all of it terriblebut there are many troubling components," wrote Reason's Scott Shackford back in April. "There is hardly aplace in America where the penalties for crimes are too small, and Florida is no exception. We don't need to increase the penalties for existing crimes just because they take place during riots.")

"The intended effect of the Act is to deter the exercise of First Amendment rights by certain individualsnamely, those interested in changing the way police interact with Black communitiesby threatening (in Defendant Governor Ron DeSantis's words) to have 'a ton of bricks rain down on' them," suggest the plaintiffs in their initial complaint.

Moreover, "the text, legislative history, timing, and public statements about the Act made by Florida officials all make clear that the Act was racially motivated," they argue:

The Act was first introduced in the fall of 2020 in direct response to nationwide protests sparked by multiple killings of unarmed Black people by the police. Through various procedural machinations, the Florida legislature hurried the legislation's timeline, curtailed public comment, and even gave the Act an unusual immediate effective date in order to coincide with the eve of the verdict in the murder trial of Minneapolis police officer Derek Chauvin over the killing of George Floyd, an unarmed Black man. And as noted, multiple provisions reveal that the Act was explicitly designed to single out and punish Black organizers and those who lead protests seeking to end police violence against Black people.

In his recent ruling, Walker notes that "it is well within the Florida Legislature's purview to ban coordinated violent or destructive conduct." But the language of the anti-riot law is unclear about who will be lumped in with such activity.

The judge spends ample space dissecting the law's wording. DeSantis "insists the statute is clear in that 'it merely prohibits participating in, or assisting others in participating in, violent protests,'" he points out. But this interpretation "strains the rules of construction, grammar, and logic beyond their breaking points," the judge suggests.

Here, our potential rioter must "willfully participate in a violent public disturbance." This begs the questions of (1) what does it mean to participate, and (2) what is a violent public disturbance?"

This is where things fall apart. Although both Governor DeSantis and Sheriff Williams argue that the phrase "willfully participate" is commonly understood, neither party offers an actual definition. Is it enough to stand passively near violence? What if you continue protesting when violence erupts? What if that protest merely involves standing with a sign while others fight around you? Does it depend on whether your sign expresses a message that is pro- or anti-law enforcement? What about filming the violence? What if you are in the process of leaving the disturbance and give a rioter a bottle of water to wash tear gas from their eyes?

A "violent public disturbance" raises similar questions. Is a violent public disturbance a peaceful protest that later turns violent? Is it a protest that creates an imminent risk of violence? Do the violent actions of three people render an otherwise peaceful protest of 300 people a violent public disturbance? Does a rowdy group of Proud Boys or anarchists have veto power over peaceful protests under this definition? At least one Florida court has defined a "riot" as a "violent public disturbance." Perhaps, then, a person riots if they willfully participate in a riot?"

Ultimately, the law creates "a wide scope of potential interpretations for individuals, failing to give them reasonable notice," while also "empower[ing] law enforcement officers to exercise their authority in arbitrary and discriminatory ways," the judge concludes. That is, it "both fails to put Floridians of ordinary intelligence on notice of what acts it criminalizes and encourages arbitrary and discriminatory enforcement, making this provision vague to the point of unconstitutionality."

DeSantis argued that halting enforcement of the law would leave Florida powerless to stop and punish violent rioters.

But "the Governor still has the power to take any measures to prevent overt threats of violence or violence, and to declare that a danger exists to the person or property of any citizen or citizens of the state and order any sheriff to exercise their full powers to suppress riots," points out Walker. "Moreover, state law enforcement officers have numerous criminal statutes at their disposal that prohibit and punish unlawful conduct, and which protect public safety and private property."

(The judge also clarifies that he is not "enjoining all law enforcement agencies across the state from enforcing this specific law. Instead, this Court is granting the narrow relief of enjoining the Governor and three sheriffs from enforcing Florida's law against 'rioting' as defined by" this new language.)

Lastly, the judge has some words for people who would cheer this new law and new rioting language based solely on whom they presume it will target.

"It is not lost on this Court, nor should it be lost on the public, that this statute sweeps in all manner of conduct and speech, regardless of the point of view of the speaker or the cause he or she may be advocating," writes Walker. "This definition of 'riot' casts a broad net. Though Plaintiffs claim that they and their members fear that it will be used against them based on the color of their skin or the messages that they express, its vagueness permits those in power to weaponize its enforcement against any group who wishes to express any message that the government disapproves of."

Walker cautions that "while there may be some Floridians who welcome the chilling effect that this law has on the Plaintiffs in this case, depending on who is in power, next time it could be their ox being gored."

See more here:
Florida Anti-Riot Law 'Violates the First Amendment,' Says Court in Scathing Rebuke of Gov. Ron DeSantis - Reason

When the founding fathers passed the First Amendment to our Constitution on December 15, 1791, there were no computers let alone an internet. When they passed the amendment the only speech available was the unamplified voice and the printed word. The press in 1791 was controlled by publishing houses that published newspapers, magazines, and books. All publishing houses had then and still now have editors whose job it is to edit everything that reaches the public. Editors cut out or rewrite bad style, misconceptions, insensitive expressions and, at that time, even profanity. The signers assumed editors would guarantee the speech would be decent and civil.

Could the 1st Amendment destroy America? | News, Sports, Jobs Today large newspapers have news editors, sports editors, art editors, music editors, food editors, society editors, whose job it is see that what leaves their office for the printers is true, verified, and inoffensive to sensitive ears.

Every person with a computer connected to the Internet now has a newspaper or TV station in the shape of a web page, Facebook page, or some other social media web presence. Foreign powers and domestic terrorists in 2016 set up sites under American names in order to promote the candidate that favored them and debase his opponent. The signers of the Constitution and its amendments depended on their descendants to add granularity to the broad strokes of their creation. Justice Oliver Wendell Holmes added the first condition on the broad free speech protection offered by the First Amendment.

The signers of the U.S. Constitution and its amendments could not have dreamed of the extent of evil reaching our eyes and ears today. The Constitution is supposed to be the foundation underlying all our laws; it merely sets the parameters for laws. It is supposed to be flexible, adjusted to fit the times. The Constitution has been amended 27 times since its ratification in 1788. The Internet has exploded with unedited publishing or, perhaps I should say, unedited printing. Hate messages, lies, intimidations, bullying, slander, traitorous demands, attacks on our fragile democracy in favor of autocracy and oligarchy abound. There seems to be no depth of evil the Internet cant reach despite all efforts of the social media. The signers of the First Amendment could not foresee what is happening on the Internet today.

Holmes wrote in his 1919 opinion, representing a unanimous court, in Schenck v. United States: The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. When Donald Trump sent the mob listening to him down Pennsylvania Avenue (to the Capitol) to fight like hell! And if you dont fight like hell, youre not going to have a country anymore, he was not merely communicating with the angry mob. His speech was like yelling Fire! in a crowded theater, raising a clear and present danger.

All of this came into being from months and years of unrestricted access to editorless print disguised as publication on the Internet and in the air waves. Freedom of speech is not absolute, and we must find ways of preventing unrestrained hatred and bizarre irrationality from unrestricted access to the Internet. Otherwise, the constitutional right to free speech could provide a pathway to overthrowing the very government that provides that right, an act of national suicide. Since the Holmes declaration, laws against defamatory speech, against written libel and spoken slander, a definition of profanity, and various other restrictions have been added. So, freedom of speech is not absolute.

Robert Beard is professor emeritus, linguistics and Russian programs, at Bucknell University. Since the Holmes declaration, laws against defamatory speech, against written libel and spoken slander, a definition of profanity, and various other restrictions have been added. So, freedom of speech is not absolute.

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Could the First Amendment destroy America? | News, Sports, Jobs - Bollyinside - BollyInside

Americans have become much more knowledgeable about the First Amendment in general over the last few years perhaps due to an increase in attention to related issues during the days of the Trump administration, the coronavirus pandemic, and the nationwide protests of 2020. But there's still some confusion over how exactly things work, the latest annual survey on civic knowledge from the University of Pennsylvania's Annenberg Public Policy Center found.

For instance, while 74 percent of Americans know that freedom of speech is protected by the First Amendment, 61 percent incorrectly think that means Facebook is required to permit all Americans to freely express themselves on the social media platform. Political affiliation doesn't really matter here, either 66 percent of self-described conservatives, 61 percent of self-described moderates, and 55 percent of self-described liberals believe that.

In reality, the First Amendment protects citizens from government censorship. Facebook, a private entity, is able to remove posts or users depending on whether they violate its terms of agreement, though it's unlikely the ethical, philosophical, and political debates over whether that should continue to be the case will simmer anytime soon.

The survey was conducted for APPC bySSRSon August 3-8 among 1,007 U.S. adults. The margin of error is 3.8 percentage points. Read more results here.

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Poll: Most Americans incorrectly believe Facebook protected by First Amendment - The Week Magazine

COLLEGE PARK, Md. (AP) A federal judge who sentenced a California architect on Friday to probation for her role in the Capitol riot stressed that the Jan. 6 insurrection represented a threat to democracy and continues to resonate in sad and unfortunate ways.

U.S. District Judge Paul Friedman noted that security fencing has gone up around the Capitol in preparation for a rally on Saturday by what he called misguided people protesting what they allege is the mistreatment of jailed insurrectionists who tried to stop the certification of former President Donald Trumps loss to Joe Biden.

Friedman sentenced Valerie Elaine Ehrke to three years of probation and ordered her to perform 120 hours of community service.

Justice Department prosecutors said they recommended a probationary sentence for Ehrke because she was inside the Capitol for about one minute, only stepped about 15 feet into the building and didnt engage in any violence or property destruction. Friedman said Ehrkes role in the insurrection was about as minimal as it gets.

More than 600 people have been charged with federal crimes related to the riot. Ehrke is one of about 70 defendants who have pleaded guilty to riot-related charges.

Friedman noted that some believe the jailed insurrectionists are patriots.

And some of them may be on some level. But on another level, the conduct they engaged in in order to pursue their beliefs is not First Amendment speech and not First Amendment legitimate protest, Friedman said. What came to be was a riot, was an incitement, was an insurrection.

He echoed another judges position that probation shouldnt be the automatic outcome for misdemeanor convictions like Ehrkes. Everybody who stormed the Capitol represented a threat to democracy, to our democratic norms, and continue to resonate in sad and unfortunate ways, Friedman said.

Ehrke is the seventh Capitol riot defendant to be sentenced. She pleaded guilty on June 30 to illegally parading, demonstrating or picketing in a Capitol building.

Over 40 other Capitol riot defendants have pleaded guilty to the same misdemeanor offense, which carries a maximum sentence of 6 months imprisonment and a $5,000 fine.

Ehrke told the judge that the Jan. 6 riot was such a unique situation.

I did not have the depth of experience to understand that I needed to get out of there or stay away, she said.

In a letter submitted to the court before her sentencing, Ehrke called herself a fine member of society who often picks up trash in her neighborhood and has worked on architectural projects in her community free of charge.

I am a small town girl who loves my town, my state and my country, she wrote.

Prosecutors asked Friedman to sentence Ehrke to three years of probation and 40 hours of community service. Assistant U.S. Attorney Kevin Birney said Ehrke was among the first Capitol riot defendants to agree to plead guilty.

The government places a lot of weight on that, he added.

Ehrke traveled to Washington, D.C., from her home in Arbuckle, California, on Jan. 5 to attend Trumps speech on the following day. After hearing the speech, she initially returned to her hotel room.

However, when she saw a news story about how people were going to the U.S. Capitol, she decided she wanted to be part of the crowd, prosecutors wrote in a court filing.

Ehrke recorded and uploaded videos to Facebook as she walked to the Capitol, including one with a caption that said she was heading to the breached building. Ehrke would have heard an alarm sounding throughout the Capitol when she entered. She was stopped at the back of a crowd of people when police started pushing them back through a hallway and out of the building through a door.

We made it inside, right before they shoved us all out. I took off when I felt pepper spray in my throat! Lol, Ehrke posted on Facebook.

The picture for Ehrkes Facebook profile was a flaming Q, an apparent reference to the QAnon conspiracy theory. Many QAnon followers believe Trump was fighting a secret campaign against a Satan-worshipping cabal of deep state enemies, prominent Democrats and Hollywood elites operating a child sex-trafficking ring.

The riot disrupted the certification of the 2020 Electoral College vote count. More than 100 law enforcement officers were injured during the mobs attack, which also caused more than $1 million in property damage.

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Woman gets probation for 'minimal' role in Capitol riot - Associated Press