2020 is the challenging year that just wont go away, however much we wish it would, as many current issues over First Amendment freedoms flop over into the new year.
In the broad realm of freedom of speech, theres little doubt debate will continue in the new Congress around the tangential First Amendment controversy over legal protections for companies hosting content on the web aka Section 230 of the 1996 Communications Decency Act.
The law largely removes liability from companies for user-posted content on their sites. While not directly a First Amendment issue, the fight does have major implications for users free speech on the web, as we know it today, as well for as social media companies rights.
President Donald J. Trump and conservatives claim the provision is being used to hide partisan discrimination by major technology companies against right-wing voices. Liberal critics say the law removes incentives for such online operations to seriously fight misinformation.
Advocates for keeping the law as is say that without it, social media companies would face a myriad of potential lawsuits and thus dramatically limit what users can freely post on sites like Facebook, Twitter, YouTube, WhatsApp and Instagram. No company will be able moderate the webs current traffic, they say, estimated by multiple sources at 500,000 hours of user video uploaded to YouTube, 188 million emails and 18 million texts every minute.
Controversy will also continue surrounding the First Amendments two least-known freedoms petition and assembly as multiple state legislatures consider increasing criminal and civil penalties for demonstrators who block streets or sidewalks or simply participate in events where, at some point, a violent act occurs.
Critics of the proposals, many of which have been introduced over the past five years, say their real motives are the stifling of dissenting or minority views, though advocates claim the new provisions are rooted in legitimate law and order concerns about violence and property damages.
In the area of religious liberty, the U.S. Supreme Court is expected to rule this spring on Fulton v. City of Philadelphia, involving both the First Amendments free exercise and establishment clauses. In the case, a religious-backed foster care agency is challenging a city decision to cancel a contract because the agency refused to provide services to married same-sex couples, citing religious grounds.
There is no doubt that as COVID-19 pandemic restrictions on public gatherings continue into the new year, so will legal challenges rooted in the First Amendments protection of religious liberty.
There are some new First Amendment issues for 2021 as a result of the incoming Biden administration, though even here, many are tinged by actions or views from the Trump years.
A top concern for free-press advocates is the potential for the Supreme Courts new conservative majority to review the 1963 New York Times v. Sullivan decision, which provided wide protection from defamation claims by government officials and other public figures if actual error was inadvertent or not caused by reckless disregard for the truth.
A longstanding target of press critics and Trump, the decision is rooted in the theory that such protection is needed to foster the widest possible debate on public issues. Trump and others claim the decision makes it virtually impossible for officials and public figures to successfully repair deliberate damage to their reputations and that it gives journalists free license to report so-called fake news.
Of concern for some is the potential return to Obama-era regulations reversed by Trump that were aimed at combatting sexual harassment on college campuses, which critics said stepped on free-speech protections, particularly where online comments were deemed to be sexual in nature.
The Supreme Court is expected to decide in January whether to hear an appeal of a decision by the U.S. Court of Appeals for the Third Circuit that public school authorities may not punish student speech made away from school grounds. Other circuits have made differing decisions.
Some First Amendment experts also are concerned the incoming administration may be open to reducing or eliminating the First Amendment protections for what some deem hate speech or speech demeaning to women or minority religious groups. At present, such speech generally is protected, with some arguing that in addition to a core right to voice ones own views, it is necessary to hear such speech to effectively argue against it.
Free-press supporters are already calling on President-elect Joe Biden to actively repudiate the Trump claim that mainstream news media are the enemy of the people, with some calling for new legislation to aid financially ailing local news operations seen by some as counterintuitive for a free press along with an international-U.S. effort to support free-press principles and journalists globally.
Welcome to the First Amendment in 2021 with its echoes of 2020s year of pandemic, protest and presidential-political turmoil.
Gene Policinski is a senior fellow for the First Amendment at the Freedom Forum, and president and chief operating officer of the Freedom Forum Institute. He can be reached at firstname.lastname@example.org, or follow him on Twitter at @genefac.
- First Amendment Versus The Civil Rights Act: A Clash Of Titans - Employment and HR - United States - Mondaq News Alerts - May 3rd, 2021
- Commentary: How to live your First Amendment freedoms - Press Herald - May 3rd, 2021
- Students and First Amendment Week: The Right to Be Loud - BVU The Tack Online - May 3rd, 2021
- The First Amendment and Social Media The Tack Online - BVU The Tack Online - May 3rd, 2021
- Justices Appear Poised to Strike Down California Law in Case with Potential to Allow More Dark Money in Politics - Law & Crime - May 3rd, 2021
- A close call this time, but lawmakers have a bad attitude on openness | Cotterell - Tallahassee Democrat - May 3rd, 2021
- The Two Teds - Episode 3 - The First Amendment - Gibson Dunn - April 19th, 2021
- MyPillow CEO Recruits First Amendment Heavy Hitters to Fight Dominion - The Daily Beast - April 19th, 2021
- Some LGBTQ groups and leaders are taking different sides in First Amendment case - Out In Jersey - April 19th, 2021
- Tenth Circuit Grants Qualified Immunity to Police Who Knowingly Violated the First Amendment - Cato Institute - April 19th, 2021
- Spencer and Volokh Discuss the First Amendment and Content Moderation on Social Media Platforms - UMass Dartmouth - April 19th, 2021
- Lecturers speak on the importance of the First Amendment in the civil rights movement - Iowa State Daily - April 19th, 2021
- Protect the police or the First Amendment? | TheHill - The Hill - April 19th, 2021
- Smartmatic Calls Bulls--t on Foxs First Amendment Argument - Vanity Fair - April 19th, 2021
- Letter: Equality Act targets First Amendment rights | Letters to the Editor | readingeagle.com - Reading Eagle - April 19th, 2021
- MLive/Kalamazoo Gazettes Brad Devereaux wins First Amendment Award for exposing closed-door meetings - MLive.com - April 19th, 2021
- The IHRA Definition of Anti-Semitism Puts Jews on the Wrong Side of the First Amendment - Jewish Week - April 19th, 2021
- Project Veritas Gonna Sue Twitter For Defamatory Section 230 Censorship And First Amendment Assault Or Something - Above the Law - April 19th, 2021
- Letter: On God and the First Amendment | Communities | mainstreet-nashville.com - Main Street Nashville - April 19th, 2021
- Justice Thomas's Misguided Concurrence on Platform Regulation - Lawfare - April 19th, 2021
- 'Hate has no home here': City of Appleton puts up sign countering sign with homophobic slur - Post-Crescent - April 19th, 2021
- Prohibited prayer and the limits of government authority even in a pandemic | Sullum - Chicago Sun-Times - April 19th, 2021
- Clarence Thomas plays a poor devils advocate in floating First Amendment limits for tech companies - TechCrunch - April 6th, 2021
- First Circuit Upholds First Amendment Right to Secretly Audio Record the Police - EFF - April 6th, 2021
- Justice Clarence Thomas Takes Aim At Tech And Its Power 'To Cut Off Speech' - NPR - April 6th, 2021
- "Fake News" and the First Amendment - University of Dayton - News Home - April 6th, 2021
- Bar owners went beyond First Amendment rights with their 'raised voices, interrupting,' AG argues - Cambridge Day - April 6th, 2021
- Clarence Thomas blasts Section 230, wants common-carrier rules on Twitter - Ars Technica - April 6th, 2021
- Drones (and the First Amendment) take on regulatory overreach in North Carolina - Chatham Journal Weekly - April 6th, 2021
- The university response to offensive speech often reflects a feeble commitment to diversity, equity and inclusion - Poynter - April 6th, 2021
- Online event examines the relationship between free speech and firearms - Nevada Today - April 6th, 2021
- Official Website for the Governor of Maryland - maryland.gov - April 6th, 2021
- Opinion: Remembering the Core Four Pillars of Journalism Amid a Pandemic - Times of San Diego - April 6th, 2021
- Tenth Circuit Misses Opportunity to Affirm the First Amendment Right to Record the Police - EFF - April 2nd, 2021
- Is There a First Amendment Right to Tweet? - JSTOR Daily - April 2nd, 2021
- Is blocking a constituent on Twitter against the First Amendment? This DC resident thinks so | The Hill is Home - The Hillishome - April 2nd, 2021
- The 6th Circuit Reached the Right Conclusion on Preferred Pronouns. Other Courts Should Follow Suit. - Heritage.org - April 2nd, 2021
- Why It's So Hard to Prosecute White Extremists - The Marshall Project - April 2nd, 2021
- Loeb School announces free spring classes and writing workshops - The Union Leader - April 2nd, 2021
- Parler Forced To Explain The First Amendment To Its Users After They Complain About Parler Turning Over Info To The FBI - Techdirt - March 31st, 2021
- Terrorism and Other Dangerous Online Content: Exporting the First Amendment? - Just Security - March 31st, 2021
- The First Amendment: Rarely Popular, Always Necessary - The Dispatch - March 31st, 2021
- The First Amendment: What It Is & What It Isn't - WSHU - March 31st, 2021
- Drawing a Line Between Internet Trolls and the First Amendment - Government Technology - March 31st, 2021
- BREAKING: ACLU Representatives Join Unprecedented Podcast to Discuss HUGE Ramifications of Creasy/Lindenbaum/TCPA on First Amendment Rights - Lexology - March 31st, 2021
- Courts: Bystanders have right to record police under the First Amendment - Newsday - March 31st, 2021
- RCFP urges court to order Texas AG to stop investigating Twitter - Reporters Committee for Freedom of the Press - March 31st, 2021
- Pronouns in the University Classroom & the First Amendment - Reason - March 31st, 2021
- Matt Taibbi: A Biden appointee's troubling views on the First Amendment - National Post - March 31st, 2021
- Pronouns and the Philosophy Professor - The Wall Street Journal - March 31st, 2021
- Letters to the editor | Opinion | journalpatriot.com - Wilkes Journal Patriot - March 31st, 2021
- Jane Briggs-Bunting, who championed the 1st Amendment, dies at 70 - Detroit Free Press - March 31st, 2021
- Was a Trump critic's 1st Amendment violated by Yale? We're about to find out. - MSNBC - March 31st, 2021
- The Cyberlaw Podcast: Can Editorial Middleware Cut the Power of the Big Platforms? - Lawfare - March 31st, 2021
- Judge In Chauvin Trial Rules That Underage Witnesses Can Testify - NPR - March 31st, 2021
- An Alternative to Impeachment: New Bill Helps Enforce Accountability for Capitol Riots - Just Security - March 31st, 2021
- Rep. Walsh refuses to vote as House approves firearms ban at Capitol grounds - The Daily World - March 31st, 2021
- Sixth Circuit Rules That Religious Freedom Entitles Professor To Debate Students Gender Identity In Class - Above the Law - March 31st, 2021
- Attorney: Owosso Barber Won't Pay $9000 In Fines Following 'Operation Haircut' Protest - WKAR - March 31st, 2021
- Court: University of Iowa officials can be held liable for First Amendment violations - The Gazette - March 23rd, 2021
- 'Clear and gross violation of First Amendment freedom': Andy Harris faults government over COVID battle with church - KPVI News 6 - March 23rd, 2021
- Appeals Court Judge Attacks Fundamental Principle Of 1st Amendment Law, Because He Thinks The Media Likes Democrats Too Much - Techdirt - March 23rd, 2021
- Roundtable debate discusses UPD and First Amendment rights - Binghamton University Pipe Dream - March 21st, 2021
- How the meat lobby is waging war on the First Amendment - Crain's Chicago Business - March 16th, 2021
- Requirements are an assault on the First Amendment - Antelope Valley Press - March 16th, 2021
- Biden Justice Department inherits tricky tech, media law issues - Reporters Committee for Freedom of the Press - March 16th, 2021
- Letter: Why the left wants the First Amendment modified - Daily Journal - March 16th, 2021
- Opinion | Iowa protest bill stifles free speech and assembly through harsh penalties - UI The Daily Iowan - March 16th, 2021
- Sunshine Week and a Show Me State statesman - The Highland County Press - March 16th, 2021
- Twitter Sued Texas AG Ken Paxton over First Amendment Concerns - Dallas Observer - March 16th, 2021
- Ammon Bundy arrested after missing trial on trespass charge - ABC News - March 16th, 2021
- Santa Monica Lawmakers Withdraw Law That Would Have Restricted Certain Forms of Protest - SM Mirror - Santa Monica Mirror - March 16th, 2021
- Control over online speech should be in the hands of users, not the government - Bucks County Courier Times - March 16th, 2021
- Court clarifies protections for testifying workers, but rules they can still be demoted - coloradopolitics.com - March 16th, 2021
- Who Gets First Amendment Protections These Days, Anyway? - Slate - March 7th, 2021
- Let's keep Tennessee's knee off the First Amendment - Johnson City Press (subscription) - March 7th, 2021
- Eyman Commentary: I'm Committed to Appealing Restrictions on the First Amendment - Centralia Chronicle - March 7th, 2021
- After settlement, freedom of speech, yellow sign and First Amendment 'stand tall in Brookfield' - Worcester Telegram - March 7th, 2021
- Judge Andrew P. Napolitano: Silencing free speech -- when the First Amendment is not enforced, this can happen - Fox News - March 7th, 2021
- Editorial: The public square doesn't always get First Amendment protection - The Bulletin - March 7th, 2021