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Category Archives: First Amendment
Facebook has a political fake news problem. Can we fix it without eroding the First Amendment? – NBC News
Posted: October 27, 2019 at 3:03 pm
It might have surprised you when you heard that 2020 presidential candidate Sen. Elizabeth Warren, D-Mass., WAS working on legislation that would increase taxes on every American family and eventually force 30 percent of those families to file for bankruptcy. You may also have read social media comments by people calling her a dangerous socialist.
The problem is, none of this is true. Warren is not working on legislation that would raise taxes on all Americans and there is no evidence her proposals would lead to such an increase in bankruptcy filings. But politicians can and do post lies on social media such as Facebook and Twitter. And those companies do not have to delete those lies.
Politicians (and anyone, really) can post lies on social media like Facebook and Twitter. And those companies do not have to delete those lies.
In the abstract, it feels like such lies should be easy to disprove. People will simply point out the lie, and the truth will come out. In the abstract, people will not base their opinions and votes on false information they read on social media.
But we dont live in the abstract. We live in reality. And in reality, what you read on social media can affect your views and votes. That is exactly why candidates, who tend not to like to throw money away, are increasingly spending money on advertisements on social media. Some of these candidate-funded ads are filled with truths, others with lies.
These political lies poison and erode our democracy. But we have two main options to combat them. First, we can exert enormous pressure on social media platforms to prevent or delete false campaign statements. This would be the cleanest way to implement change, but this is extremely unlikely to happen. Second, the government can step in and force social media companies to set up some basic protocols to guard against the posting of campaign lies. This would be a whole new frontier for the government, and regulation of online speech is tricky to say the least.
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And that is why Warren posted an admittedly false Facebook ad earlier in October. In the fake ad, Warren alleged that Mark Zuckerberg, the founder of Facebook, had endorsed Trumps re-election campaign. She then quickly admitted that allegation was false. Her point was to argue that politicians can lie on Facebook, and spend money on ads that are patently false.
The impetus behind the ad, at least in part, was a Trump campaign ad which falsely claims that former vice president and 2020 presidential candidate Joe Biden offered to pay people in the Ukraine $1 billion to help his son. Some, but not all, television stations refused to air the spot.
Not everyone gets to blatantly lie in Facebook ads. That is a special privilege largely reserved for politicians. Facebook treats ads from politicians as different from other ads largely because there are other considerations when it comes to political speech, which is often deemed newsworthy. If these ads were not posted by politicians, they would be subject to a review by Facebooks independent fact-checkers and content rules.
Twitter, similarly, has an exemption for accounts run by military or government entities. Those accounts are not subject to Twitters prohibitions against things like specific threats of violence. In addition, Twitter will typically let stand any posts it views as newsworthy, even if false or misleading. And it is easy to see why anything posted by the president of the United States is newsworthy.
To be fair, social media corporations are in a difficult position. If they start policing lies, it means a person or group of people will have to act as the truth police. It means social media corporations will be subject to claims of censorship and political bias. It is much easier for these corporations to just take a step back and let politicians post whatever they want. This may be why, in the face of Warrens attacks on Facebook and its policies, Zuckerberg has stated in no uncertain terms that Facebook has no plans to police ads that constitute political speech.
Here is the next problem democracy is difficult and messy. And social media corporations have provided a platform that dirties up already dirty campaigns.
Social media platforms like Facebook are the new town squares. The days of politicians and voters meeting in the center of town to debate candidates and issues are mostly gone. But the days of politicians posting, liking and sharing their views on social media are here to stay, at least until the next big technological invention.
It is time to clean up the town square. Lets pick up the false flyers and the patently deceitful pamphlets.
Because media corporations appear to have no appetite to regulate this political speech, it may be up to the government to ensure that our marketplace of ideas is not corrupted by lies and deceit.
We do have a loose blueprint to follow. The Federal Communications Commission (FCC), an independent government agency, regulates television and radio. The general rule is that the FCC cannot regulate the content that is aired on television and radio stations because that would be censorship and would run afoul of the First Amendment. But there are significant exceptions to that rule. For instance, the FCC can regulate obscene and indecent programming in order to protect children. In addition, the FCC has a prohibition against broadcasting false information that causes substantial public harm. But this prohibition applies to comments about crimes or catastrophes. Not all false campaign statements fall within that bucket.
Even if this prohibition against false speech was applied more broadly, the big hurdle is that the FCC can only regulate content over television and radio because the government grants individual radio and television stations licenses in order to broadcast. The broadcast spectrum is viewed as owned by the people, and so the government can regulate it.
A professor at Duke University, Philip M. Napoli, has tried to find a way over that hurdle. He has argued that we should view user data as a public resource. And therefore, because social media is using a public resource, the FCC could regulate that resource, as it regulates individual television and radio stations. This is a smart and novel argument, and one that would allow the FCC to regulate some speech without trampling on the First Amendment.
But another word for novel is untested. In our current political climate, it seems unlikely that we would agree to vastly expand the purview of the FCC and charge it with regulating even the most egregious campaign lies. This option also presents practical problems, as social media corporations like Facebook do not currently control the content of the ads that politicians post.
In the long run, either social media corporations must start self-policing or the government must find a way to do it for them. In the short term, the best Band-Aid we have against lies is ourselves. We owe it to ourselves to be vigilant about what we see posted on social media. As voters, we owe it to our democracy to question campaign speech, even when it comes from the campaign itself. Our government is relying on us to be fact-checkers. We must try.
Jessica Levinson is a professor and the director of the Public Service Institute at Loyola Law School, Los Angeles. Her work focuses on election law and governance issues.She is the former president of the Los Angeles Ethics Commission.
Posted: at 3:03 pm
GAINESVILLE, Fla. (WCJB) -- If you've driven through Gainesville in the past three years, you've seen the problem multiply - panhandlers, dangerously close to cars, sitting in intersections, and walking through traffic.
The domino effect started with Supreme Court ruling Reed v. Town of Gilbert in 2015. A city's sign-restriction ordinance went up against First Amendment, and the First Amendment won.
Cities across the country started having their panhandling ordinances struck down.
In North Central Florida, Gainesville Police and Alachua County Sheriffs Deputies were told they can no longer enforce their respective rules soon after.
The countys solution was not to regulate people or what they are saying, but instead to regulate the place.
You can solicit or panhandle from the sidewalk. You can't do it in the median, said ASO's Lt. of Patrol Operations Jayson Levy.
Alachua County's Public Safety Ordinance" went into effect in Feb. 2018.
Panhandling is perfectly legal in the unincorporated areas of the county, but standing in medians or stepping into traffic, no matter what you're doing it for, is not.
So far, deputies have only given one citation in year and a half they have been enforcing it.
"Its like writing somebody a ticket that has a suspended license, Levy said. How am I going to pay my ticket for a suspended license if I can't pay for my license in the first place?"
County leaders say the problem areas are all within city limits. Gainesville city leaders say theyre working on a solution, too.
They also say it wont be a quick fix.
Very preliminary, in discussion stages, said Gainesvilles City Communications Director Shelby Taylor. (Were) examining what has worked in other communities."
They say they have been working on an answer following a crash that killed a panhandler in April of 2019.
Commissioner Harvey Ward is one of the people working to draw up a new city ordinance. He said mimicking the countys approach isnt an option.
We need a better way of thinking about this, Ward said. "A different way of thinking about this. The county has an ordinance, but to my understanding is that it isn't necessarily legally defendable."
The ACLU and Southern Legal Council sent a letter to county officials just over a year ago, saying the same thing, but Alachua County has not backed down.
Our attorney's office did a great deal of research, looked at ordinances from other communities and was convinced this one would stand the constitutional test, said Alachua Countys Communications Director Mark Sexton.
SLC members now say the way the county has enforced the ordinance has not been problematic, and they are not pursuing a lawsuit
Still, Gainesville leaders aren't convinced, and are looking for their own unique solution.
As a part of that process, public works has been very careful to go out and measure intersections and think, maybe this median is one that's unsafe, but maybe other medians are safer for that sort of thing, Ward said.
But as to what will be done, or when, there's no clear answer yet.
I'd like to think we're maybe getting close, but I can't give you a date on when that might come around, Ward said.
Stay with TV20 as we continue to follow this story in Gainesville, Alachua County, and North Central Florida.
Originally posted here:
The Panhandling Problem: When public safety clashes with the 1st Amendment - WCJB
Posted: at 3:03 pm
The Madison School District in Wisconsin fired school guard Marlon Anderson for quoting the n-word back to a Madison West High School student in explaining why the student shouldnt have used that word.
The district has a zero tolerance policy for use of the word by any student or employee. But the issue is more complex than one might think; the courts have ruled on both sides.
When I appeared on a panel before the Inns of Court in Houston, Texas, on the topic Free Speech on Campus, the matter of hate and racist speech came up and whether the Constitution protects it.
It does and does not. One panelist, a lawyer and regent at a flagship university in Texas, said that if an African-American student offended someone with racist language, he or she would be history, expelled before the end of the day.
But if public schools take government money, they must comply with the First Amendment.
The second panelist, an African-American law student, said, I know the n______ word is protected. She said the word.
I had to deal with this issue as a trustee at a college in Texas. Two African-American employees got into a heated argument, with one losing her temper and referring to the other with a racist epithet. The target asked the administration to fire the offender, and it did.
When I asked the administration whether the First Amendment protected the offenders epithet, the response was that another ruling by the Supreme Court supported the firing. In 2006 the court ruled inGarcetti v. Ceballosthat the administration can to some extent control the speech of employees to maintain an effective public workplace.
Suppose, as an illustration, a professor is hired to teach freshman composition but decides instead to teach, say, poetry, arguing that the Constitution protects his academic freedom and right to free speech in the classroom.
The school can fire him for this free speech. TheGarcetti ruling states, We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. Anderson was on an on-the-job public employee when he spoke the offensive word.
Still, I think firing the guard for accurately quoting a student does not pass the smell test. Court history generally argues for freedom of even hate and racist speech. Said the late Supreme Court Justice Antonin Scalia, If you stop speech that hurts other peoples feelings, the First Amendment will become a dead letter. And when Justice Samuel AlitoSamuel AlitoCan a black high school guard be fired for quoting the n-word? Supreme Court abortion case poses major test for Trump picks Supreme Court to hear Louisiana abortion case MORE was an appellate judge, heopined, There is no categorical harassment exception in the First Amendments free speech.
Many in the scholarly world have also argued for constitutional protection of hate speech. For example, John Banzhaf, a professor at George Washington University Law School,observed, There is no hate speech exception of the U.S. Constitution. And Eugene Volokh, who teaches free-speech law at UCLA School of Law,asserts, There is no First Amendment exception for racist speech, or exclusionary speech, or ... for speech by university students that created a hostile educational environment for others.
If the KKK can march down streets in Jewish neighborhoods in Skokie, Ill., security guard Marlon Anderson can quote a kid for using a racial slur and tell him not to use it again in the school.
RonaldL.Trowbridgeis a policy fellow at the Oakland, California-basedIndependent Instituteand a former director of the Fulbright Scholars Program. He later served as chief of staff for former U.S. Chief Justice Warren Burger.
The Case Against Free Speech: The First Amendment, Fascism, and the Future of Dissent – The Humanist
Posted: at 3:03 pm
P.E. MOSKOWITZBOLD TYPE BOOKS, 2019272 PP.; $28.00
Words like controversial and provocative are overused. When you read or hear that so-and-sos stand-up comedy is controversial, thats usually the culture-war commentariat wishing that reaction into being rather than actually describing a pre-existing reaction. Which is why for every one person who finds it controversial, there are a thousand people whove been convinced that many people find it controversial and that such a reaction is something to be angry about. Of course, the politics of controversy is a means of distraction. If youre thinking and talking about whether so-and-sos stand-up is controversial, you arent thinking and talking about (say) healthcare or food regulation or employee-employer relations. Likewise, when you read or hear that such-and-such speaker is provocative, that often means they say things like feminists are ugly, blacks are naturally stupid, and the poor deserve their misery. These things have been said for decades and centuries. I suppose they do provoke reactions, especially among young people who havent heard such things yet, and so in a narrow sense are provocative. But the word is mostly a media euphemism; a way of seeming objective and even-handed. In other words, a way of obscuring.
P.E. Moskowitzs new book, The Case Against Free Speech, has what many would call a provocative (even controversial) title, although, like the controversial stand-ups and provocative speakers, upon investigation its actual substance is rather tame. On page one Moskowitzclarifies that his book isnt anti-free speech but only anti-the-concept-of-free-speech (meaning he doesnt think free speech exists or ever has) and that he doesnt favor censorship laws that prohibit fascist and racist speech.
Moskowitz gives two reasons for why he thinks free speech as a concept [is] meaningless. First, because with inequalities of power and wealth, the notion that all of usrich, poor, and in-betweenshare and enjoy a common individual liberty like free speech is political mumbo-jumbo. The rich spend hundreds of millions of dollars every year so their political desires are heard; the rest of us can be fired for speaking out of line at work. Those without power are harassed and surveilled by the police, and this harassment and surveillance has its effects on peoples willingness to speak freely.
Moskowitz points to his talks with Black Lives Matter activists who were harassed and surveilled by the police for months before a judge ordered the police to stop (or, more precisely, to stop being so obvious), as well as Standing Rock protesters who, while encamped, were surrounded by police, spied on overhead by drones, tracked by private security companies, and had their camp infiltrated by informants. The Standing Rock protest was most notable not for its size or duration but for the scale of the states response. Protesting the construction of a single pipeline, the state responded with extreme force and total surveillance.
In truth, more harm is done in a single executives meeting (and a hell of a lot more at a single meeting of some dark money political foundation) than was done by those protesters. And yet those meetings dont have drones buzzing overhead. No FBI infiltrators. The powerful speak freely and the rest of us suffer in silence (or will be made to). While the company CEO golfs with the attorney general and talks about easing up on enforcement of labor laws, the entire workforce is fired off for talking amongst themselves about unionizing or just joking about how much of a hellhole working there is.
A concrete instance of this occurred recently when Koch Foods settled a class-action lawsuit brought against the company by some of their food-processing workers in Mississippi; a few months later, ICE raided the companys food-processing plants and arrested almost 240 workers. The obvious lesson for migrant workers being: speak up and you run the risk of getting deported.
The second reason Moskowitz gives for thinking free speech is conceptually meaningless is that we already censor speech in favor of other values, such as privacy, property rights, and even economic efficiency. A bank lying to you about the interest rate on a loan, a company using a celebrity look-a-like to sell products, a tapped phone conversation, an emergency medical responder filming the person theyve saved, starting a company called Facebookthese are all forms of speech (or at least attorneys have tried to argue they are), but the Supreme Court has ruled that none of them are protected by the First Amendment.
The criminalization and/or prevention of all these things is effectively censorship; the state is telling you that you arent allowed to speak in certain places or say certain things. (In cases of professional speech, such as equal protection laws for home ownership, the state literally mandates that you say certain things, otherwise you cant conduct business in that industry). But these laws arent seen as censoriousor as attacks on our culture of free speechbecause theyre generally recognized as protecting other fundamental values. As Moskowitz mockingly puts it, everyone would look sideways at the person who breaks into his or her neighbors houses to berate them, then defends their actions by saying, No interest of home ownership outweighs the rights of someone to come into your house and yell at you. The value of dominion over your own home is weighted above your neighbors right to be heard. The issue clearly isnt between free speech and censorship, then, but between free speech and other values. Which raises the question: How should we decide which value wins over the others?
Moskowitz uses the case of Nazi Socialist Party of America v. Village of Skokie (1977) to illustrate how the false pretense of free speech as an absolute value is used by bigots and fascists. In 1976, the Nazi Socialist Party of America wanted a permit to march in the majority Jewish neighborhood of Skokie, Illinois. The village tried blocking the rally by passing ordinances forbidding events where participants planned to wear military-style outfits and by requiring all rallies to provide $350,000 in insurance money beforehand. Famously, the ACLU defended the fascists in courtin response the ACLUs Illinois chapter lost a quarter of its membershipand eventually won them the right to march through Skokie. The rally never happened. Frank Collin, the leader of the Nazi Socialist Party, said he was just fighting for free speech for white Americans (yes, fascists were already using this shtick in the 1970s), and with the Supreme Court victory there was no need to actually go through with the rally. Of course, many suspected the rally never happening had less to do with that and more to do with the Jewish Defense League telling Collin that if he came into Skokie theyd make sure he left in a body bag.
Like fascist rallies today, when the Nazi Socialist Party did march around Chicago they got a police escort. Why exactly? As a Chicago columnist wrote at the time:
If I wanted to stand outside Wallys Polish Pump Room this Saturday and shout that everybody who eats Polish sausage is a pig, I suppose that would be my constitutional right. At least the ACLU would probably think so. However, I dont think I should expect the city to give me a police escort when I go there.
I suspect that if I and few of my friends walked around rich neighborhoods with a fake guillotine chanting The capitalists will not divide us, the only police escort wed be getting is one to the station (handled with as much care as the Jewish Defense League wouldve given Collin and his fascist stooges).
Radical protests get police violence; fascist protests get police escorts. Some of the reasons for this are probably sinister, but one that isnt has to do with the different tactics of the two protest groups. Radical protests are usually in sympathetic places; theyre done in order to rally mass support for something. Fascist protests, on the other hand, are usually in hostile places; theyre there to invoke a response so they can play the victim later. I agree with those who say anti-fascists should hold rallies of their own rather than counter-protest fascist ones. But I also cant blame communities like Skokie and groups like the Jewish Defense League for pronouncing that if you come to provoke a reaction you will absolutely get one. The least the rest of us can do is not fall for the fascists playing the victim afterward or pretend that their rallies have anything to do with free speech.
The Case Against Free Speech isnt very deep in analysis or original in thought. Anyone whos read literary theorist Stanley Fish will already be familiar with most of the books anti-the-concept-of-free-speech premises. The Case Against Free Speech is, however, a much-needed, easy-to-read primer on a subject that seems to be given unlimited attention but zero thought. Establishment press outlets run hundreds of op-eds a year on the crisis of free speech just because their columnists are the laughing stock of Twitter. When right-wing media isnt reporting on a migrant worker getting pulled over for drunk driving or a black man in Chicago caught stealing a refrigerator, theyre covering some college scandal like Alice Walkers books being taught in a class outside the African-American Studies department. Koch-coordinated political foundations have spent hundreds of millions of dollars over the last thirty years making it seem as if free speech in academia is the defining political issue of our time, creating a network of organizations and websites like College Fix and Campus Reform that encourage college students to spy and snitch on one another for being too politically correct, then trickling these stories (and sometimes just directly paying for them to be published) into the media.
At one point, Moskowitz asks, Whats the return on investment for billionaires spending so much money on free speech and political correctness? His answer is that its their way of controlling universities. Similar to fascists using free speech as a smokescreen for their politics, billionaires use political correctness as a smokescreen for their interests. While theres definitely some truth to this, the rich already effectively control universities through donations and by sitting on college boards. The board of higher education in most states is a whos who of owners and executives. At George Mason, the Koch Brothers had a say in the hiring and firing of professors.
As I wrote at the beginning of this review, I think most of the debate on free speechpolitical correctness, cancel culture, trigger warnings, etc.is just a distraction. A way of controlling how and what people think about when they think theyre thinking about politics. A sort of anti-politics that distracts people so nothing happens. Thats why the PC hysteria is identical to what it was thirty years ago. We argue amongst ourselves about college speakers and stand-up comedians while the rich do whatever they want on everything else. Moskowitz is right that in an unequal society, free speech is an impossible ideal. Which is just another reason to fight for a society more equal in wealth and power.
Posted: at 3:03 pm
House Democrats passed H.R. 4617 on Wednesday. The "Stopping Harmful Interference in Elections for a Lasting Democracy Act, or the SHIELD Act, amends the Federal Election Campaign Act of 1971 to require "implementation of compliance and reporting systems by Federal campaigns to detect and report such acts, and for other purposes," the text reads.
The legislation provides a specific timeline for notification.
COMMITTEE OBLIGATION TO NOTIFY.Not later than 1 week after a reportable foreign contact, each political committee shall notify the Federal Bureau of Investigation and the Commission of the reportable foreign contact and provide a summary of the circumstances with respect to such reportable foreign contact.
(2) INDIVIDUAL OBLIGATION TO NOTIFY.Not later than 3 days after a reportable foreign contact
Democrats gave themselves a pat on the back for passing a bill that they say will "protect our democracy."
Lawmakers introduced the bill a few weeks after a whistleblower complaint accused President Trump of trying to threaten Ukrainian President Zelensky into investigating his political rival Joe Biden. The whistleblower could only provide a secondhand account of the phone call, but Democrats used the complaint to launch an impeachment inquiry against Trump last month.
The office of Wyoming Republican Rep. Liz Cheney called the SHIELD Act House Democrats attempt to "circumvent the First Amendment."
Securing Americas elections is crucial to the functioning of our democratic process," Cheney said in a statement on Wednesday. "Instead of working to achieve this fundamental priority, the legislation that Democrats brought to the floor this evening is a thinly veiled attempt to control political speech in the name of national security. By giving the federal government the authority to define what constitutes legitimate news and forcing Americans who wish to engage in political speech to navigate burdensome bureaucratic obstacles, this bill is a clear violation of our First Amendment right to free speech.
"I hope our Democrat colleagues will realize the damage their partisanship and political games are doing. We must work together to pass meaningful legislation that secures our elections.
Rep. Don Bacon (R-NE) shared his similar concerns with the SHIELD Act, likening it to a "Trojan Horse."
"This Trojan Horse legislation presents some seemingly reasonable protections but will have substantial consequences for American journalists because while it identifies legitimate journalistic activities as protected from requirements in this legislation, it fails to define it, he said. So, who will define legitimate journalistic activities? The government?
He worries that SHIELD could prompt the Federal Elections Commission "to make laws that abridge the freedom of the press."
Bacon supports a Republican-led alternative called the Honest Elections Act, which he says takes steps to prevent foreign meddling in our elections without infringing on our constitutional freedoms.
Mitch McConnell slams election-security bill as ‘transparent attack on the First Amendment’ – The Washington TImes
Posted: at 3:03 pm
Senate Majority Leader Mitch McConnell on Wednesday slammed a bill that would require political candidates and campaigns to report to the government any illicit foreign offers of assistance.
Mr. McConnell, Kentucky Republican, spoke from the Senate floor in opposition to the Stopping Harmful Interference in Elections for a Lasting Democracy (SHIELD) Act, ahead of the proposal being considered across the Capitol building in the House of Representatives.
Introduced by Rep. Zoe Lofgren, California Democrat, the SHIELD Act would create a duty for candidates and campaigns to notify the FBI and Federal Election Commission about any illicit offers of assistance made directly from or on the behalf of foreign governments, among other provisions.The House passed it later Wednesday by a vote of 227 to 181.
Its a textbook example of policy designed to reduce the amount of free speech in our country, Mr. McConnell argued, calling it a transparent attack on the First Amendment.
This proposal will not do anything to stop malign foreign actors, something that every member of this body cares deeply about, said Mr. McConnell.
In addition to requiring candidates and campaigns to notify the government about illicit foreign offers of assistance, Ms. Lofgren said passage of the SHIELD Act would address several other factors that have allowed the U.S. electoral process to be disrupted from abroad.
The SHIELD Act closes gaps in the law that allow foreign nationals and foreign governments to launder money into our elections, Ms. Lofgren said previously. It promotes full transparency of the sources behind online advertising campaigns, and it codifies a basic norm that political committees should report offers of illicit campaign assistance from foreign governments to the FBI and to the FEC, rather than welcome interference from foreign governments.
Foreigners interfered in the 2016 U.S. presidential race and are poised to meddle in next years election as well, according to top U.S. law enforcement and intelligence officials.
An investigation conducted by the Department of Justice into the 2016 election found that the Russian government targeted the contest in a sweeping and systematic fashion to disrupt the electoral process and denigrate former Democratic presidential candidate Hillary Clintons campaign.
Federal investigators examining the 2016 race uncovered dozens of suspicious interactions between Russians and members of President Trumps election team, but their probe did not establish that the Trump Campaign coordinated with the Russian government in its election interference activities.
Mr. Trump subsequently said in June that he would be willing to accept damaging information about his political opponents from foreign governments. The following month, he asked Ukrainian President Volodymyr Zelensky during a phone call to investigate former vice president and current Democratic presidential candidate Joseph R. Biden, triggering the impeachment inquiry currently underway on Capitol Hill.
Eighty-seven percent of voters, including 80 percent of Republicans, believe political campaigns should alert the FBI about information offered by foreign governments, according to the results of a Quinnipiac University poll released in July.
A bill similar to the SHIELD Act, the Foreign Influence Reporting in Elections Act, was introduced earlier this month in the Senate by Sen. Mark Warner, Virginia Democrat.
Mr. McConnell has previously opposed election security bills offered in Congress, prompting Democratic critics to mockingly refer to him in recent months as Moscow Mitch.
Posted: August 25, 2017 at 3:46 am
In this day in age, if an employee has something to say, they should be able to say it, right? Not exactly. One Google employee recently learned the hard way when he was fired after writing and circulating a memo where he criticized the companys diversity efforts.
When the memo went public on August 5th, women and under-represented groups in tech criticized it andGoogle denounced it. But, after Google fired the engineer claiming hed violated the companys code of conduct, things changed. Some people appalled that someone could lose his job for expressing dissent, while some took to Twitter discussing the topic of free speech.
However, the First Amendment only protects the publics right to free speech from government censorship, and not corporate censorship. One of the reasons that a private employer can censor speech is because the First Amendment does not cover private entities as it is limited only to government federal, state and local.
Veronica Nannis, a partner with Joseph Greenwald & Laake focusing on qui tam litigation and whistleblower rights, sat down with IPWatchdog to discuss the question controversial topic of free speech in the workplace.
Private employers are typically allowed to censor speech that occurs on the job. The First Amendment does not cover them, she explained. They are also allowed to censor speech or activity that discriminates against, creates a hostile work environment or harasses another employee. In that regard, and as with all our rights, our right to free speech generally ends where another persons rights begin.
An employees off-the-clock, private, political or religious activities are protected by both federal and state discrimination laws, but once political speech enters the work place, a private employer may legally discipline or fire an employee for such proselytizing in many cases, per Nannis. The gray areas in between are times when you need to seek consultation with an employment attorney in your state.
As it related to the Google incident, it was first reported that a memo authored by a Google employee, titledGoogles Ideological Echo Chamber, was being circulated among Google employees. Later that day, the memo was obtained by the media and made public. The memos author was identified in the press as a senior employee named James Damore. In the memo, Damore criticized the efforts of tech companies, Google included, to employ programs and hiring practices concentrating on diversity. Specifically, Damore was critical of tech company initiatives which had the goal of recruiting and employing female engineers.
The crux of Damores critique was that the reason for the low number of women in the tech industry was not something that could be countered by policies promoting diversity through recruitment, education, or anti-discrimination measures, explained Nannis. Rather the reason there are so few women in the tech field is due to biological differences, including higher agreeableness and more neuroticism, that leave women less well-equipped to perform the work that tech jobs demand.
The media coverage sparked debate, some outrage, and a focus on Googles culture, among other things. After days of the media firestorm, Google had terminated Damores employment. Googles CEO, Sundar Pichai, stated, in an email published by the Washington Post, that although Google strongly supported the rights of its employees to express themselves and debate issues like those discussed in Damores memo, To suggest a group of our colleagues have traits that make them less biologically suited to that work is offensive and not OK. It is contrary to our basic values and our Code of Conduct. Pichai reiterated that point by stating that portions of the memo violate our Code of Conduct and cross the line by advancing harmful gender stereotypes in our workplace. For his part, Damore stated, as reported in the Financial Times, that he is currently exploring all possible legal remedies. Damore also stated that prior to his employment being terminated, he had filed a complaint with the National Labor Relations Board and that its illegal to retaliate against a NLRB charge.
According to Nannis, while whistleblowers are protected under various state and federal laws and retaliation laws can protect employees who file complaints or grievances, Google explained that the company could not have retaliated against Damore, because it was unaware of his NLRB complaint until news of the same was reported in the media after his dismissal.
Anti-retaliation laws generally require the employer to have known about the complaint and to have fired the employee, at least in part, due to it, she said.
So, how can employees protect themselves from incidents like Googles in the future?
Know your rights, be sensitive to others rights and know your employers rights too. Many states, including Maryland where I practice and California where Google is located, are at-will employment states, she explained. An at-will state means that, absent a contract, certain union protection, legal prohibition or public policy, an employer can demote or fire an employee for any reason,or no reason at all. If you live in an at-will state, your private employer does not need a reason to fire you. So, while an employee can speak at will, a private employer can fire at will as well.
In addition, Nannis advises to look to see if there are any state laws protecting private employer censorship of speech for non-work related activities. California is one of a handful of states, including Colorado, New York and North Dakota, where there are laws protecting limited out-of-work speech.
She added, If the Google employee had given an off-the-clock speech about his political views as may relate to IT and he had not mentioned Google by name, he would have had a stronger defense under California law, and Google might have had a harder time firing him for out-of-work activities. However, without the protection of one of these exceptions, an employee in an at-will state risks firing when he or she speaks out in a way that displeases their private employer.
Amanda G. Ciccatelli is a Freelance Journalist for IPWatchdog, where she covers intellectual property. She earned a B.A. in Communications and Journalism from Central Connecticut State University in 2010. Amanda is also currently the Lead Strategist of Content Marketing, Social Media & Digital Products at Informa, a leading global business intelligence, academic publishing, knowledge and events business. She also works as a Freelance Journalist for Inside Counsel. Amanda was formerly a Web Editor at Technology Marketing Corporation. Follow her at @AmandaCicc.
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Are Corporate Employees Protected by the First Amendment? - IPWatchdog.com
Posted: at 3:46 am
The NAACP's interim president Derrick Johnson has officially requested a formal meeting with NFL commissioner Roger Goodell to discuss NFL players and their ability to exercise their First Amendment rights.
According to a letter sent to the league by the NAACP, the meeting will specifically focus on Kaepernick's perceived "blackballing" by the league in light of his protests last season. It also questions the silencing of NFL players' platforms, citing Tommie Smith and John Carlos's black power salute at the 1968 Olympics, among other examples.
Kaepernick's lack of a job has raised many eyebrows throughout the offseason, particularly with the quarterbacks being signed ahead of him. Johnson penned a concern regarding Kaepernick's First Amendment rights and also strongly insinuated that his protest was the sole cause of him not being signed. An excerpt of the letter reads:
Last season, Mr. Kaepernick chose to exercise his First Amendment rights by protesting the inequitable treatment of people of color in America. By quietly taking a knee during the national anthem, he was able to shine a light on the many injustices, particularly, the disproportionate occurrences of police misconduct toward communities of color. As outlined in your office's public statement, this act of dissent is well within the National Football League's stated bylaws. Yet, as the NFL season quickly approaches, Mr. Kaepernick has spent an unprecedented amount of time as a free agent, and it is becoming increasingly apparent that this is no sheer coincidence.
"No player should be victimized and discriminated against because of his exercise of free speech -- to do so is in violation of his rights under the Constitution and the NFL's own regulations.
Obviously, invoking the Constitution is a powerful tool, and it raises questions about what's covered by free speech. The NAACP also stressed the important of free speech in the Civil Rights Movement, along with the importance that it's upheld moving forward.
The exercise of free speech has proven to be a vital tool in in bringing to the public's attention often ignored issues of social justice, particularly in the African-American community. The powerful act of utilizing one's platform to address issues of discrimination and inequality has long been employed by many of the world's greatest athletes.
Some teams may be a starting quarterback injury away from signing Kaepernick, but the Baltimore Ravens disproved that theory when rumors swirled after Joe Flacco's back injury. They ultimately chose to sign Thaddeus Lewis to spell Flacco. There have been protests in front of the NFL headquarters regarding Kaepernick, including one on Wednesday.
Since losing the starting job in San Francisco, Kaepernick has faced tremendous scrutiny. Other athletes have joined in on his protest, and depending on how the next few weeks go, these protests may start to pick up steam if Kaepernick remains unsigned -- whether it's fair or not.
Posted: at 3:46 am
August 24 at 6:24 PM
Regarding the Aug. 23 Metro article Crisis vaults McAuliffe into spotlight:
It is outrageous for Virginia Gov. Terry McAuliffe (D) to assert that the American Civil Liberties Union of Virginia bears some responsibility for the violence in Charlottesville. The citys decision to revoke the permit for Jason Kessler to hold a rally in Emancipation Park was a prior restraint on free speech. The Supreme Court said prior restraint is the most serious and the least tolerable infringement on First Amendment rights.
Prior restraint can be justified only if government places reasonable limitations on the time, place and manner of the speech. It was the citys burden to show that revoking the permit for Emancipation Park and granting a permit for McIntire Park met these standards. The federal court said the city failed to do so.
The ACLU finds Mr. Kesslers views loathsome. To suggest that Mr. Kesslers speech was not entitled to First Amendment protection would eviscerate the First Amendment. As Supreme Court Justice Samuel A. Alito Jr. reaffirmed: The idea that the government may restrict speech expressing ideas that offend ... strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought that we hate.
David A. Drachsler, Alexandria
The writer is a member of the Litigation Screening Committee of the American Civil Liberties Union of Virginia.
Posted: at 3:46 am
Recently in Charlottesville, Va., the 'Southern strategy' veil was lifted again. White supremacy born out of hatred, bigotry and profound ignorance resulted in chaos, violence and death again!
Fundamentalists like the Huckabee crowd, Robertson's, Falwell's, Bannon's and maybe some of you will offer the usual rationalizations, moral equivalencies and justifications. The fundamentalist right have hijacked the First Amendment to preach their filth of hate and bigotry.
The most dominant flag at this sickening display in Charlottesville was the Confederate flag. The Star Spangled Banner, our beautiful symbol, is flown around the world as a beacon of freedom, hope and decency; something not one of these terrorists would understand, including President Trump. No matter what Trump says he cannot explain away being intellectually and morally destitute.
Please proceed, Special Counsel Bob Mueller. You sir, are a Vietnam combat decorated Marine. You have had your skin in the game, fighting for flag and country. Leave no stone unturned and no one left behind. Justice and decency must prevail!
Jenson lives in Detroit Lakes, Minn.
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Letter: The right has hijacked the First Amendment to preach hate ... - INFORUM