Monthly Archives: March 2022

During a time of war in Europe and deep political divisions in the United States, there are calls for individuals, organizations and governments to suppress speech that makes others uncomfortable, speech that is hateful, or that is considered untrue, such as fake news.

Arguments for free speech in the United States tend to begin and end with First and Fourteenth Amendments. The First Amendment prohibited federal government restrictions on speech: Congress shall make no law abridging the freedom of speech, or of the press. The Fourteenth Amendment (1868) extended these prohibitions to state governments.

These amendments generally do not apply to nongovernmental organizations such as universities, media, firms, clubs or nonprofit groups, and often these organizations will attempt to restrict or punish the speech of their employees, customers or outside individuals. Probably the most common justifications for such private censorship are that these groups perceive certain statements to be false, damaging to an organizations functioning, or injurious to its reputation. But while censorship might be perceived to provide short-term advantages, there can be substantial long-term costs.

One argument against censorship by private organizations is that current beliefs of truth and falsehood could be wrong. As John Stuart Mill argued in On Liberty (1859), if a censored opinion is right, speech restrictions deny the chance for exchanging error for truth. All censorship is an arrogant assumption of infallibility. As a recent example, if a person or organization stated two years ago that the COVID-19 virus escaped from a lab in Wuhan, China, the remark was dismissed as a conspiracy theory, xenophobic and racist. People who expressed this view faced social censure and, in some cases, threats to their employment. Now, the Wuhan lab origin of COVID-19 is considered plausible. Had opposing views not been suppressed, might we have discovered the truth about this critical issue more rapidly?

But what if the opposing view is clearly false; should such speech still be tolerated? If you rarely hear opposing views, you become less able to explain and defend views that you think are true. It is by countering false arguments with data, analysis and rhetoric that we build a strong foundation for what is true. But rarely hearing an opposing view makes one tend to become lazy or careless in thinking. Our societys widespread tendency to respond with insults to views with which we disagree is a sign of this intellectual laziness.

But even if there are arguments for allowing false speech, should society allow hate speech? Or public speech that encourages violence towards members of a group based on race, religion, national origin, sexual orientation or some other characteristic? Hate speech is a form of group libel.

As Jacob Mchangama notes in Free Speech: A History From Socrates to Social Media, there is a long history of group libel laws laws against hate speech in the United States. Prior to the Civil War, many southern states passed laws banning publications and speeches that called for the abolition of slavery on the grounds that such incendiary speech insulted white Americans of the South and increased their fear of violent slave uprisings. After the war, similar group libel laws were used to suppress speeches and publications advocating for equal rights for Black Americans.

Except for the United States, most nations today, whether democratic, authoritarian or totalitarian, have group libel laws to suppress hate speech. Should the U.S. join this almost universal consensus that hate speech should be banned? In the 1930s and 1940s, the American Civil Liberties Union (ACLU) and Eleanor Roosevelt, who played a major part in writing the Universal Declaration of Human Rights, argued in favor of preserving this aspect of American exceptionalism almost unlimited free speech. They made two arguments:

First, if a particular group supports some hate speech laws but opposes others, it will be seen as hypocritical and its ability to overturn unfavorable laws will be compromised. The ACLU argued in 1934 that by defending the right of the racist Ku Klux Klan to speak, it would become almost impossible to legally curtail speech and writings that sought equal rights for minorities. One of the key lessons of the history of liberty is that the best way to protect your rights is to defend the same rights of others.

Second, as Roosevelt noted, laws against hate speech are almost invariably perverted to protect the powerful from being discomforted by the speech of the powerless. Elites will insist on laws preventing insults to themselves and groups they favor, while withholding such protections for groups they do not favor. Examples are numerous. In Finland, a former interior minister recently went on trial for hate speech for comments that included quoting a Bible text. And authoritarian governments are particularly enthusiastic to embrace laws against hate speech. In Russia, criticizing the government can be punished as hate speech for insulting the Russian people.

Individuals, organizations, societies and governments benefit from allowing, and openly refuting, false speech. Unless a speech calls for immediate physical violence, laws banning hate speech are weapons that tend to cause greater harm to the users than to the targets. Despite current external and internal disputes, the United States should continue its radical, 233-year-old experiment in ever expanding the limits of free speech.

Frank R. Gunter, Ph.D., is a professor of economics at Lehigh University and retired U.S. Marine colonel. The views expressed here are his alone and do not necessarily reflect those of the university or its College of Business.

Read the rest here:
False speech: What is it good for? | TheHill - The Hill

The internet lost its mind yesterday when an op-ed by former FIRE intern Emma Camp appeared in The New York Times calling on colleges and universities to redouble their efforts to cultivate intellectual freedom in the classroom.

Even as a liberal who has attended abortion rights protests and written about standing up to racism, I sometimes feel afraid to fully speak my mind, Camp wrote, suggesting the feeling is widely shared among her fellow students.

To help prove her point, Camp pointed to data from the College Free Speech Rankings, a survey conducted by FIRE in partnership with College Pulse and RealClearEducation. The survey found that 83% of college students find it necessary to self-censor on campus at least some of the time, and 21% say they do so often. Many students, regardless of their race, ethnicity, or sexuality, also find it difficult to have open and honest conversations about topics related to race, sexual assault, transgender issues, and abortion.

As far as arguments go, Camps was fairly typical among newspaper columnists: Introduce a problem through personal experience, tie it together with data that shows the problem is more widespread, and conclude by offering a reasonable solution. Camp is a skilled writer and thinker, and FIRE is proud to call her one of our alumni. Her proposed solution is indeed reasonable: Colleges should have speech-protective policies in place that foster free expression on campus. FIREs been saying the same thing for the last 23 years.

To refute Emmas argument, critics falsely claimed speech suppression on college campuses isnt a real problem, and that the College Free Speech Rankings is not a valid study. Domestic correspondent for The New York Times Magazine and 1619 Project cofounder Nikole Hannah-Jones (whose rights FIRE defended back in 2021) tweeted a screenshot of Emmas reference to the Free Speech Rankings and wrote, Many of these articles/columns [cite] the same study but its never been clear to me which type of students are self-censoring and which views.

In fact, all of our data are available for free online, and the raw datafile is also available for free by request. We even provided a built-in tool to analyze the data online and zero in on the exact questions Hannah-Jones is asking. For instance, the tables below provide the crosstabs for race/ethnicity and sexuality with our self-censorship question:

According to the survey, one in five Black students report self-censoring fairly or very often, as do almost one in five Hispanic (18%) and Asian (17%) students. These percentages are higher for multiracial students (22%), American Indian students (25%), and students who identified their race/ethnicity as Something else (32%). When it came to sexuality, students identifying as heterosexual/straight or as something else self-censored most often.

When FIRE teamed up with College Pulse in 2019 to design the most ambitious campus free speech survey ever attempted surveying nearly 20,000 students attending 55 colleges, including demographic data on students age, race, gender, sexuality, and political orientation we hoped collecting data would add more depth to our understanding of how students experience free expression culture on their campuses.

In other words, the data are there. The data are reliable.

The next year, we expanded the survey to include more than 37,000 students at 159 institutions. Far from being an unreliable source of information, FIREs College Free Speech Rankings is the most comprehensive quantitative source of information on this issue.

Most of the criticisms we saw online are not substantive by any stretch of the imagination, and failed to offer any substantial methodological critiques of the survey questions or about how College Pulse sampled the students and weighted the data. If the critics of our survey do not understand the methodology, they need only to look at the actual survey to find answers, and we are more than happy to answer questions regarding methodology. The charge that the survey is bogus seems like a superficial gripe from those who just dont like the results or havent taken the time to dig into them.

FIRE is a nonprofit, nonpartisan organization committed to defending individual liberties and freedom of speech on college campuses. We dont just protect speech from the right. We dont just protect speech from the left. We defend protected speech, period.

That includes attempts by College Republicans and Turning Point USA to host former Vice President Mike Pence and conservative journalist Andy Ngo for on-campus speaking events. It also includes speech from socialists, professors advocating for the removal of Confederate statues, and marijuana legalization advocates. Critics who claim we only take up for one side of the partisan divide just dont know FIRE. We have promoted former President Obamas liberal take on campus free speech, fought against a slew of divisive concepts bills which limit discussions on race and sex in college classrooms, and argued on behalf of Hannah-Jones herself when her bid for tenure at University of North Carolina at Chapel Hill was disrupted by influential donors. Because of this incident, she is included in our Scholars Under Fire database, and we included UNC Chapel Hill among our 2022 Ten Worst Colleges for Free Speech.

We couldnt help but notice that a lot of critics of Emmas op-ed didnt seem to pay any attention to the lawsuit we filed in Texas today on behalf of Michael Phillips, a history professor fired for talking about the history of racism in Dallas. But well keep doing the work, whether Twitter notices or not.

Given Hannah-Jones standing and influence, we feel her criticisms merit special attention. In addition to the question above, she also asked, How do we know racial minorities or LGBTQ students or progressives are not included in this number? Truth is, we dont.

But thats simply not accurate. The 2021 dataset is publicly available and includes the demographic information in question. We have data from over 12,000 students who identify as Black, Hispanic/Latino, Asian, or multiracial (Note: All survey data discussed for race/ethnicity are weighted by demographic information obtained from the 2017 Current Population Survey, the 2016 National Postsecondary Student Aid Study, and the 2018-19 Integrated Postsecondary Education Data System). We also sampled over 9,000 students who identified as bisexual, gay or lesbian, pansexual, queer, or questioning, and almost half of the students surveyed (45%) identified as very or somewhat liberal.

So, truth is, we do know: The data comes from a good number of racial minorities, LGBTQ students, and students somewhat or very left of center and the surveys report also contains analysis of data submitted by students who identified as nonbinary (1,318 responses).

In other words, the data are there. The data are reliable. We encourage Hannah-Jones and everyone else on Twitter to see for themselves.

Furthermore, findings from the College Free Speech Rankings are largely consistent with other survey data on college students. The Knight Foundations annual survey found that 63% of students believe their campus climate deters free expression, up from 54% in 2015 when the question was first asked. Additionally, for three years running, Heterodox Academy has published its Campus Expression Survey, which found that 60% of college students expressed reluctance to discuss controversial topics on campus. (Note: FIRE Senior Research Fellow Sean Stevens co-designed the original version of the Heterodox survey)

FIRE defends the rights of students and faculty members no matter their views.

That being said, sometimes raw numbers obscure the personal experiences of individual students on campus, which is why, as part of the College Free Speech Rankings report, FIRE collected written responses from students who indicated they had self-censored. Thats useful qualitative data, too and what we learned may surprise some Twitter critics. For example, one student at Arizona State University wrote, I am scared to be openly transgender or anti-police/progressive in general due to how violent some people can be and the fact that ASU tends to protect harassment and conservativism.

Another student at Barnard College wrote, In a class discussion after a controversial racist incident involving a black student and public safety officers, I wanted to express that I didnt think the actions of the officers were entirely unjustified. I felt like I couldnt say this because everyone around me was saying how racist it was (even though none of these students were black but I was). And then theres the student at the University of Virginia who wrote, As a person of color at a university that is predominantly white and has a culture around the rich, white lifestyle, it can be hard to express opinions that call out those attitudes. As FIRE knows from years of experience, the defense of free speech is important for everyone.

FIRE defends the rights of students and faculty members no matter their views at public and private universities and colleges. When students dont feel comfortable expressing themselves, we take notice. And if there is one resounding conclusion from the College Free Speech Rankings and other surveys, its that Emma Camp is right: Self-censorship is a pervasive and worsening problem on college campuses. Were going to keep working to protect free speech rights nationwide. We invite our critics to join us.

Read more here:
Critics of FIRE's Free Speech Rankings get it wrong again. - Foundation for Individual Rights in Education

The World Day Against Cyber Censorship, also known as the international day of freedom of expression on the internet, began to be marked in 2008 by Reporters Without Borders along with Amnesty International.

World Day Against Cyber Censorship is observed every year on 12 March to highlight the importance of free speech and expression on the internet. The day also highlights how governments all over the world are stifling free speech online.

The World Day Against Cyber Censorship, also known as the international day of freedom of expression on the internet, began to be marked in 2008 by Reporters Without Borders along with Amnesty International.

The organisations have called for free speech on the internet over the years. They also aim to highlight all forms of cyber censorship that are preventing the spread of information on the World Wide Web.

While many people argue that free speech can and does include misinformation, propaganda and censorship, the internet remains a space for ordinary citizens to make their voice heard and bring about transformation in society.

Several users, while supportive of freedom of speech and expression, may fall prey to propaganda and fake news on the World Wide Web. This World Day Against Cyber Censorship, here are some points to keep in mind while browsing the internet so that you do not fall prey to any misinformation or censored posts by entities or governments:

Dont rely on social media as the sole source of information: Always crosscheck news or information which is being circulated on social media platforms like Facebook and Twitter. Do not share these posts or pictures without verifying their authenticity.

Always report fake or provocative content: Always report violent or demeaning video clips, images, memes to the platforms they were posted on.

Use a VPN: Hide your digital footprint by using a Virtual Private Network or VPN. VPNs can help add an extra layer of security and privacy to your digital network. They can also help be a source of protection from government surveillance in countries which censor the internet such as China.

Read all the Latest News, Trending News, Cricket News, Bollywood News, India News and Entertainment News here. Follow us on Facebook, Twitter and Instagram.

Read more here:
World Day Against Cyber Censorship: Here are some points to keep in mind when using internet - Firstpost

From Hiers v. Board of Regents, released today by Judge Sean Jordan (N.D. Tex.):

Writing for himself and Justice Brandeis nearly a century ago, Justice Oliver Wendell Holmes extolled what he viewed as a foundational tenet of freedom of expression in our country: "[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thoughtnot free thought for those who agree with us but freedom for the thought that we hate." Since that time, the Supreme Court has consistently recognized that the Founders "believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth."

This case implicates these bedrock constitutional principles protecting freedom of thought and expression. The setting is a public university, the University of North Texas ("UNT"), and the speaker is [an untenured] mathematics [adjunct] professor at that university, and a public employee, Nathaniel Hiers. Amidst a slew of constitutional claims asserted by Hiers following his departure from UNT, a single question is paramount: What can a public employee say, and what can he choose not to say, without fear of reprisal from his employer?

On November 26, 2019the same day that Hiers [a nontenured, adjunct professor,] stated his desire to teach a second class in the springthe incident forming the basis of this lawsuit occurred. An anonymous person had placed in the mathematics faculty lounge a stack of flyers, each of which warned faculty against committing "microaggressions" on college campuses. The flyer defines microaggressions and provides examples of statements characterized as microaggressions that it suggests faculty should avoid using in the workplace. For instance, statements such as "I believe the most qualified person should get the job" and "America is the land of opportunity" are cited as microaggressions promoting the "[m]yth of [m]eritocracy."

Upon seeing these flyers, Hiersin what all parties agree was intended as a jokepicked up a stick of chalk, drew an arrow pointing to one of the flyers, and wrote the following message on a nearby chalkboard: "Please don't leave garbage lying around."

Hiers' contract was not renewed as a result of this; his department chair, Ralf Schmidt, explained the decision this way:

Dear Nathaniel,

My decision not to continue your employment in the spring semester was based on your actions in the grad lounge on 11/26, and your subsequent response.

In our conversation you characterized the flyers that upset you as political statements. I looked at them in detail, and they are anything but. Every example of a microaggression listed there makes very much sense, and I am disappointed about your general dismissal of these issues and that you failed to put yourself in the shoes of people who are affected by such comments.

I also think that leaving behind a chalkboard message like you did is not a benign thing to do. Think about how people who see this might react. They don't know who wrote this; it might be a faculty member, grad student or anyone else. The implicit message is, "Don't you dare bringing [sic] up nonsense like microaggressions, or else." This is upsetting, and can even be perceived as threatening.

Finally, I was disappointed at your response during our conversation. Everyone makes mistakes, and I'm all for forgiveness if actions are followed by honest regret. But you very much defended your actions, and stated clearly that you are not interested in any kind of diversity training.

In my opinion, your actions and response are not compatible with the values of this department. So with regret I see no other choice than to not renew your employment. Please know it gives me no pleasure; in fact, we were counting on you, and it causes considerable difficulties to replace you as a teacher.

The court concluded that Hiers' First Amendment retaliation claim could go forward:

Public employees do not surrender all First Amendment rights because of their employment. [W]hen citizens enter government service, they necessarily accept certain limits on their freedom of speech. But if employee expression [that is not part of the employee's official duties] touches on a matter of public concern, the First Amendment prohibits the government from taking an adverse employment action against the employee for such expression without sufficient justification.

It is undisputed that Hiers suffered an adverse employment decisionterminationand his speech motivated the university officials' termination decision. That leaves two questions: First, was Hiers speaking on a matter of public concern? And if so, was Hiers's interest in doing so greater than the university's interest in promoting the efficiency of the public services it provides through its employees? The university officials do not address the second question, so the Court will focus its analysis on whether Hiers's speech touched on a matter of public concern.

Personal complaints and grievances about conditions of employment are not matters of public concern. Rather, speech addresses a matter of public concern when it relates "to any matter of political, social, or other concern to the community." The lynchpin of the inquiry, then, is the extent to which the speech advances an idea that transcends personal interest or conveys a message that impacts our social or political lives.

Here, Hiers's critique of the flyer on microaggressions transcended personal interest and touched on a topic that impacts citizens' social and political lives. His speech did not address a personal complaint or grievance about his employment. The point of his speech was to convey a message about the concept of microaggressions, a hot button issue related to the ongoing struggle over the social control of language in our nation and, particularly, in higher education.

True, Hiers's chalkboard message did not illuminate his reasons for disagreeing with the flyer. Hiers did not, for example, articulate his belief that "many of the statements that the fl[y]er condemns as 'microaggressions' can (and should) be interpreted in a benign or positive manner" and that "the fl[y]ers teach people to focus on the worse possible interpretation of the statement, to disregard the speaker's intent, and to impute a discriminatory motive to others." Had he done so, there would be little doubtif anythat his speech would be constitutionally protected. But taken in context, the result is the same: Hiers's speech reflected his protest of a topic (microaggressions) born from the present-day political correctness movement that has become an issue of contentious cultural debate.

The flyer itself, which Hiers effectively incorporated by reference into his message, supplies important content and context. It broadly defines microaggressions as "everyday verbal, nonverbal, and environmental slights, snubs, or insults, whether intentional or unintentional, which communicate hostile, derogatory, or negative messages to target persons based solely upon their marginalized group membership." A microaggression, in other words, can be composed of non-threatening speech, deployed unintentionally, or the result of unconscious stereotypes or bias. The flyer contains examples of purported microaggressions that peoplein particular, university faculty membersshould avoid in the name of reducing the harm to marginalized groups. Statements such as "I believe the most qualified person should get the job" and "America is the land of opportunity" are cited as microaggressions promoting the "[m]yth of [m]eritocracy." And the phrase "America is a melting pot" is listed as a microaggression because of its "[c]olor [b]lindness."

Hiers responded by criticizing the concept of microaggressions promoted by the flyer. That he did so by jokingly referring to the flyer as "garbage" does not deprive his speech of the First Amendment's protection. See Rankin v. McPherson (1987) (holding that a hyperbole about assassinating the President during a conversation about the President's policies addressed a matter of public concern). After all, humor and satire are time-tested methods of commenting on a matter of political or social concern. And while Hiers's chalkboard message was not detailed or well-reasoned, it unequivocally advanced his viewpoint on microaggressions. In Hiers's words, the concept of microaggressions described by the flyer, is "garbage." See Snyder v. Phelps (2011) ("While these messages may fall short of refined social or political commentary, the issues they highlight are matters of public import [and t]he signs certainly convey [the speaker's] position on those issues[.]").

Arguing that Hiers's speech did not relate to a matter of public concern, the university officials characterize his message as "uncivil" and attempt to draw parallels between this case and those involving the use of profanity or sexually explicit comments in the classroom. [But p]utting aside whatever one might think about his viewpoint, an objective reader would understand Hiers's criticism of microaggressions as a criticism concerning a hotly contested cultural issue in this country. Moreover, Hiers's method of communicating his criticism did not involve the kind of features that would place it outside the First Amendment's ordinary protection. For example, Hiers's message, while perhaps rude or even offensive, did not amount to "fighting words." Nor was Hiers's speech obscene as that term is understood. Rather, Hiers expressed the kind of pure speech to which the First Amendment provides strong protection.

The First Amendment protects "even hurtful speech on public issues to ensure that we do not stifle public debate." So while Schmidt, the other university officials, and some UNT professors may have taken great offense at Hiers's chalkboard message, that offensiveness is "irrelevant to the question whether it deals with a matter of public concern." To be sure, nothing that Hiers said could be more disturbing than a law-enforcement employee's expressed desire to see violence inflicted on the President of the United States. See Rankin (holding that such speech was constitutionally protected).

The university officials' reliance on Martin v. Parrish (5th Cir. 1986), only serves to underscore the flaws in their argument. In Martin, a university professor was terminated for telling his students while teaching that their attitude was "a bunch of bullshit" and that "if you don't like the way I teach this God damn course there is the door," among other profane phrases. Concluding that these "epithets did not address a matter of public concern," the Fifth Circuit explained that "surroundings and context are essential" when determining whether constitutional protection is afforded to indecent language. Taken in context, the court reasoned, the professor's profanity "constituted a deliberate, superfluous attack on a captive [student] audience with no academic purpose or justification."

Hiers's speech is meaningfully different from that in Martin in terms of both content and context. As to content, Hiers used no profane or vulgar language. When the Fifth Circuit said that schools could punish "lewd, indecent or offensive speech," it did not mean to include all speech that someone somewhere might find subjectively offensive. Otherwise, government restrictions would encompass nearly all forms of speech, and the First Amendment would be rendered a nullity in the public-employment context. And as to context, which is "essential," Hiers's speech did not take place in a classroom or in front of a captive audience of students. He spoke to his colleagues and supervisors in the faculty lounge, where professors regularly talk about political and social issues with one another, "and often with a heavy dose of banter." Put simply, Martin holds no sway here.

The same is true of Buchanan v. Alexander (5th Cir. 2019). There, the Fifth Circuit determined that the use of profanity and sexually explicit discussions about professors' and students' sex lives were not related to the education of college students training to be preschool and grade school teachers and did not touch on a matter of public concern. That's because, "in the college classroom context, speech that does not serve an academic purpose is not of public concern." Again, Hiers did not use profanity, speak about professors' or students' personal lives, or speak in the classroom context. So once more, the university officials are comparing apples to oranges.

Switching gears, the university officials point out that it's unclear from the complaint whether there was widespread debate on microaggressions at UNT when Hiers spoke on the subject. That may be true, but it doesn't change the outcome here. Hiers's speech directly addressed a newsworthy social and cultural issue that continues to be an important and sensitive topic in public discourse, especially as it relates to colleges and universities across the country. In recent years, the concept of microaggressions has been vigorously debated by scholars, as well as the subject of congressional testimony. To suggest that speech on such a matter is not of public concern is to deny reality.

Together with content and context, the form of Hiers's criticism of microaggressions also weighs in his favorthough only slightly. Hiers's speech was not made in public or visible to everyone in the larger university community. But neither was it made in private. Similar to the intra-office questionnaire in Connick v. Myers (1983), Hiers's criticism of microaggressions was displayed on a communal chalkboard in a space open to faculty, administrators, and possibly even doctoral graduate students. What's more, Hiers alleges that UNT professors regularly discussed all manner of topics, including political and social issues, in the faculty lounge. [T]he chalkboard appears to have served as a sort of bulletin board for the UNT mathematics department. Thus, although Hiers did not sign his name to the chalkboard message, his speech could have triggered a more robust intra-office debate on the topic of microaggressions. After all, Hiers was responding to someone else's anonymous speech when he criticized the flyer, and his anonymity did not last long. Under these circumstances, the form factor weighs slightly in favor of finding that Hiers's speech touched on a matter of public concern. In sum, the Court concludes that the content, context, and form of Hiers's chalkboard message, as revealed by the whole record, show that his speech touched on a matter of public concern.

Having determined that Hiers spoke on a matter of public concern, the next step for the Court is to balance his interest in speaking against "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."

In balancing these interests, courts consider "whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise." It is unnecessary "for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action." But there must be some "reasonable predictions" or "danger" of disruption.

Here, the university officials have not addressed the Pickering balancing test, effectively conceding the point at this early stage. They have not asserted any interest in restricting the speech at issuelet alone argued that any such interest outweighs Hiers's interest in speaking. [B]ecause one side of the scale sits empty, the Pickering balance strongly favors Hiers. The Court thus concludes that Hiers plausibly alleged that his interest in speaking on the topic of microaggressions outweighed UNT's interestswhatever those might bein restricting his speech. Hiers's retaliation claim passes step two of the Pickering balance.

"Preserving the 'freedom to think as you will and to speak as you think' is both an inherent good, and an abiding goal of our democracy." The university officials allegedly flouted that core principle of the First Amendment when they discontinued Hiers's employment because of his speech. Accepting the allegations as true, the Court concludes that Hiers plausibly alleged that the university officials violated his right to freedom of speech.

The court also concluded that, to the extent the decision not to rehire Hiers was motivated by his refusal to apologize, that violated Hiers' right not to be compelled to speak:

Hiers alleges that the university officials pressured him to apologize for expressing his views on microaggressions. Based on the complaint and its attachments, particularly Schmidt's email detailing the reasons for Hiers's termination, it is not clear what this apology would have entailed. On the one hand, Hiers may have been pressured to apologize for the way he delivered his messageattacking a colleague's belief in a flippant mannerrather than for the viewpoint he expressed.

But Hiers's allegations, on the other hand, also give rise to a plausible inference that this apology would have involved him recanting his contrary beliefs about microaggressions. After all, Hiers alleges that the university officials terminated him not only because he refused to apologize for his speech but also because he declined to attend additional diversity training. Taking these allegations as true and viewing them in the light most favorable to Hiers, it is plausible that the university officials unconstitutionally punished Hiers for refusing to affirm a viewthe concept of microaggressionswith which he disagrees. "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 to confess by word or act their faith therein." [And] Hiers has plausibly alleged that the university officials discontinued his employmentthat is, punished himbecause he did not express honest regret about his views and speech on microaggressions.

[A]ccording to the complaint, Schmidt pressured [Hiers] to apologize for expressing his views on microaggressions. The university officials then terminated Hiers's employment, according to the complaint, because he stood by his criticism of microaggressions, did not apologize for his message, and declined to participate in extra diversity training. These allegationsagain, taken as true and viewed in the light most favorable to Hierssupport a plausible inference of compulsion.

Finally, the university officials argue that Hiers "was never required to publicly announce his support for the concept of microaggressions or to otherwise publicly apologize for his conduct." But they cite no authority, and the Court has found none, indicating that it matters whether the government seeks to compel speech in public or in private. To the contrary, precedent establishes that the government violates the First Amendment when it tries to compel public employees to affirm beliefs with which they disagree. Period.

Read more from the original source:
University Adjunct Prof Fired for Labeling Flyers About "Microaggressions" as "Garbage" - Reason

On December 30, 2019, Li Wenliang, an ophthalmologist at Wuhan Central Hospital in Hubei, China, began to warn friends and colleagues about the outbreak of a novel respiratory illness. Four days later, he was summoned to appear before local authorities, who reprimanded him for making false comments that severely disturbed the social order.

In hindsight, Li was the first person accused of disseminating medical misinformation during the coronavirus pandemic, despite the fact that he was telling the truth. And as the virus spread, many other countries decided that the emergence of a deadly new disease warranted new restrictions on what people say. Human Rights Watch reports that at least 83 governments used the pandemic to justify violating the exercise of free speech.

The United States has avoided the worst excesses of this global authoritarian turn. The First Amendment constrains its government from infringing on freedom of speech. And many Americans reliably object to nongovernmental attempts to suppress ideas, favoring the liberal notion that the remedy for speech that is false is speech that is true, as Justice Anthony Kennedy once put it.

But like wars, terrorist attacks, and other events that confront us with mass death, pandemics cause some people to doubt the liberal project and to clamor for an alternative that feels safer. So a growing faction in the U.S. feels that, when it comes to medical misinformation, liberal remedies for false, unreasoned, or uninformed speech are insufficient to our new pandemic realityas if being wrong on most subjects is permissible, but being wrong on COVID-19 is too costly to tolerate.

Read: Whats the harm in medical misinformation?

The First Amendment hasnt kept public officials from calling upon Facebook, YouTube, Twitter, and other tech platforms to restrict false or misleading claims about vaccination and other COVID-related issues. The White House has urged tech companies to censor individuals engaged in protected speech. Senator Amy Klobuchar introduced legislation in hopes of pressuring social-media companies to do more to prevent the spread of deadly vaccine misinformation. And the government can apply pressure on private speech in other ways: The Department of Homeland Security, for example, is characterizing misinformation as a terrorism threat. All of these efforts reflect a judgment that, at least on pandemic matters, the liberal approach to dissent has greater costs than benefits.

But that judgment is mistaken. During past crises, even wars, the case for liberal speech norms remained so strong that Americans look back on departures from them with regret. Likewise, I can think of at least four reasons why neither government officials nor corporate bosses should try to protect the public by newly restricting the expression of ideas, even during a pandemic.

Proponents of aggressive measures to restrict misinformation imagine that by preventing others from being exposed to falsehoods about vaccines, they will only increase trust in science. But my early confidence in the Pfizer and Moderna vaccines and my willingness to urge others to get vaccinated was inextricably tied to my confidence that all relevant information, including dissenting perspectives, was making its way into public discourse where countless people could interrogate it, rather than being suppressed by public or private actors with unknown motives. The author Jonathan Rauch calls that process of unconstrained public deliberation liberal science, and I suspect that faith in it was especially important for vaccine uptake in the U.S., as Americans report having low trust in government relative to citizens in other wealthy countries.

If youre vaccinated, think back to before you got the jab and ask yourself: If the Trump administration had announced that federal employees werent allowed to spread misinformation about any of the vaccines supported by Operation Warp Speed, or if Facebook had suppressed all personal stories of vaccine side effects, would that have caused you to trust the vaccines more or less?

As a general matter, no person or group or office is capable of assessing what facts or viewpoints constitute misinformation so reliably as to justify censorship based on their conclusions. A concept as malleable as misinformation tends to be interpreted in biased or self-serving waysand not only by the Chinese government. After Puerto Rico enacted a prohibition on spreading false information about emergencies in 2020, the ACLU filed a challenge on behalf of two journalists who feared the laws would stifle legitimate reporting on the governments COVID response.

Even if a reliable judge of misinformation did exist in a given jurisdiction, that person likely wouldnt be the one who decides which ideas are restricted. And even if, for the first time in history, an infallible judge of misinformation was identified and put in charge of restricting ideas, they would still lack popular legitimacy. Many people would disagree and rebel against that judges decisions.

Restricting misinformation during this pandemic is especially unlikely to be viable because the scientific consensus continues to evolve, as does the virus itself. So far, the prevailing advice to get vaccinated has served those who took it extremely well, but variants could emerge that pose a greater challenge to existing vaccines. If efficacy drops off, people should be able to discuss that in real time, without having those discussions labeled as misinformation.

The free-speech advocate Nadine Strossen is among those tracking real-life situations in which public- or private-sector authorities have wrongly accused people of spreading misinformation. The Puerto Rican government charged a prominent clergyman with allegedly disseminating false information on WhatsApp about a rumored executive order to close all businesses, she reported in Tablet last year. In fact, only a short time later, the governor did issue such an order.

Strossen also notes that YouTube took down a video in which Nicole Malliotakis, then a New York State legislator, announced that she was suing thenNew York City Mayor Bill de Blasio over his vaccine-passport directive. Malliotakis declared the policy an invasion of privacy. That, Strossen writes, is a position that the Supreme Court might well end up sharing. YouTube initially deemed the video a violation of its misinformation policy, though the service ultimately restored the clip. Whether or not YouTube actually had a good-faith health reason for its initial removal, Strossen notes, the vague policy can easily be invoked as a pretext, masking other motives.

Read: When your doctor is on TikTok

The backlash against Americans who try to cancel others or to shut down conversations rather than engage in them is so widespread that many attempts to deplatform a person inspire others to rally around the target, increasing their fame and reach as well as support for their views.

I suspect that this happens again and again partly for psychological reasons that the political psychologist Karen Stenner describes in The Authoritarian Dynamic. As she explains it, people with authoritarian predispositions want to suppress difference and achieve uniformity, a project that requires autocratic social arrangements in which individual autonomy yields to group authority.

But when they try to force everyone to adopt a social consensus for the greater good (for example, Vaccines are good; everyone must get one, and no one must speak ill of them) the people who are most averse to uniformity and protective of difference and diversity suddenly rebel.

These rebels have little concern for the uses of collective authority until other peoples ambitions for its usage suggest that they ought to take an interest in its limits, Stenner writes. But when autonomy and diversity seem to be in jeopardy, deemed by those with less stomach for public discord and partisan strife to be too risky for the collective, they bolster their commitment to tolerance of difference and opposition to social conformity. I recognize that psychology in myself. When liberal free-speech norms are secure, I focus on the substance of debates, such as the overwhelming evidence that getting vaccinated reduces ones risk of death. But once liberal norms are threatened, as when anti-vaxxers are deplatformed, Im less interested in the substance of what people are saying than in defending their ability to say it.

Andy Carvin and Graham Brookie: Heres how to fight coronavirus misinformation

The podcaster Joe Rogan has attracted criticism for interviews with vaccine-skeptical guests who made false or misleading claims. Accuracy is worth defending for its own sake, so I wish Rogan would do more to probe dubious claims by guests and to flag and correct statements that prove false. And I dont dismiss the possibility that his podcast influenced some to forgo jabs or the possibility that some unvaccinated listeners died. The hundreds of medical professionals and scientists who signed an open letter urging Spotify, which carries Rogans show, to adopt an anti-misinformation policy are clearly hoping that more assertive content moderation will save lives.

But the evidence for that conclusion is insufficient. As my colleague Daniel Engber has written:

Vaccine refusal, in its broadest sense, has taken a catastrophic toll in the United States But the claim that pandemic falsehoods aired on Rogans show are substantially responsible ignores the sticky facts of our predicament. Surveys now suggest that roughly one in six American adults says they wont get vaccinated for COVID-19. Thats roughly what the surveys showed over the summer; its also roughly what the surveys showed in the summer of 2020, when the pandemic was still young. One in six adults, some 45 million Americans in all, is seemingly immune to any change of context or information. One in six adultsa solid tumor on our public health that doesnt grow or shrink.

Perhaps Americas pandemic performance would be better in a world without The Joe Rogan Experience. But it could be that the vaccination rate would be unchanged in that alternate reality, because podcasts arent an important driver of attitudes toward vaccination, or because vaccine skeptics tend to find voices who question the mainstream regardless. Maybe the shows theyd seek out but for Rogan would be less responsible than he is. Maybe Rogans pro-vaccine guests were uniquely able to reach skeptics via his podcast, while Rogan listeners who found vaccine-skeptical guests persuasive were already anti-vax and unlikely to change.

Admittedly, if I were forced to bet on the proposition that COVID-19 misinformation on a popular podcast or cable-news show did some harm, Id bet yes. But restricting discourse based on mere circumstantial evidence of harm is an authoritarian standard.

Thats not to say that private companies must never engage in censorship in the name of avoiding harm. If someone posted a recipe with poisonous ingredients, or a message directing another person to commit suicide or violence against others, I would not object if Facebook removed it.

But any speech limitationpublic or privateneeds a clear limiting principle. The Supreme Court set a useful standard in defining illegal incitement: to qualify, statements must be directed to inciting or producing imminent lawless action and likely to incite or produce such action. Any standards for taking down alleged misinformation online should be similarly demanding. A free society should not attempt to shut down speakers whom millions of people want to hear based on speculative claims that some of their viewpoints cause unquantifiable harm.

It would be nice if everyone agreed about how to fight COVID-19. But normally, Americans understand that this is a huge, populous, multicultural, pluralistic country where diversity and difference are inescapable. In almost every dispute of consequence, tens of millions of us are right and tens of millions of us are wrong. Yet when it comes to COVID-19 vaccines, the fact that a minority of Americans have refused to get a shot is being treated as evidence of a misinformation crisis for which media and tech companies are responsible. The presumption is that if not for a dysfunctional information environment, uptake would be universal.

In fact, vaccine skepticism is a phenomenon as old as vaccines, manifesting across centuries of outbreaks that took place in wildly different information-technology environments. More broadly, the unfortunate truth is that all of us are misinformed and incorrect about many important matters, not because of technology-driven misinformation but because of enduring human fallibility.

Americans need only look abroadfor instance, to Li Wenliangs experienceto verify that abusive actors invoke the need to fight pandemic misinformation specifically to increase their own power and infringe on liberty. While much harm might be avoided if any misinformation a human was about to utter was magically muted, there is no way, in a world without such magic, to suppress misinformation without stymieing difference and debate on every matter of consequence.

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Tolerating COVID Misinformation Is Better Than the Alternative - The Atlantic