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Category Archives: First Amendment
Posted: January 18, 2020 at 11:17 am
Legislators at every level have adopted an operational ethos of ignore all relevant laws and sign it." This is a deeply concerning trend, and one that will result in dystopian realizations as politics continue moving toward the extremes. However, my fragile hope for the future remains intact thanks to the courts consistent rejection of this ethos. The University of Michigan is only the latest subject of both this trend and justices ruling in a case concerning our most potent liberty: speech.
On May 2, 2018, the Universitywas sued by Speech First, an organization dedicated to upholding the First Amendment on college campuses. The subject of the legal dispute was the Universitys Bias Response Team (BRT), which, according to Speech First, stifled freedom of speech and was therefore unconstitutional. In September 2019, the Sixth Circuit Court of Appeals ruled that the BRT acts by way of implicit threat of punishment and intimidation to quell speech," and the Universityagreed to disband the BRT. This case is hugely symbolic, more so than it may appear.
The most basic freedom belonging to each person is life, defined by their freedom of conscience. Both life and free conscience are impossible to breach without direct action perpetrated by one unto another. Freedom of speech, therefore, is the concretization of our freedom of conscience. And fundamentally, this is why Speech First v. Schlissel is so symbolic: The courts defended our most basic right.
No student at the University should ever feel discriminated against. Yet, while the BRT held this same belief as its cornerstone, the metric used to determine if an offense had occurred the Universitys anti-harassment policy did not offer any objective definitions as to what constituted a violation. And here lies the unconstitutionality, as described by the Department of Justice: The University imposes a system of arbitrary censorship of, and punishment for, constitutionally protected speech.
This broader conflict is not unique to the University. Colleges across the country face similar challenges in trying to secure welcoming campus environments without infringing upon students First Amendment rights. In this, Im sympathetic with the universities. Were riding a 50-year wave of legal victories for equality in a number of areas; so, in keeping with the trend, lets try to fix campus speech, right? Sure, but not like this.
Todays political climate is one of friction and frustration on both sides. Any comment not perfectly impartial sets off a firestorm, regardless of the reasoning behind the statement, the context or the speaker. We are on a hair trigger. So, how, in this era so characterized by scrutinizing the most minute actions and verbiage, did the University fly right by the First Amendment?
Sadly, today, the legitimacy of actions taken in pursuit of something noble are largely ignored. Those in charge act impulsively without considering their actions. The University wanted to create a safer campus climate, so it created an agency capable of implicitly punishing students who voiced opinions that offended others. To me, this sounds like a paragon of this trend, a laudable end to be achieved by censorship. And the courts said no.
At last, herein lies my optimism for the fate of America: the judiciary. Currently, it seems the shared methodology to enact change, among both parties, is to act now and consider legality later. And yet, the courts have stood tall. The Department of Justice filed a lawsuit against the state of California for violating Article 1, Section 10; a federal judge blocked Alabamas abortion ban; and the Sixth Circuit Court of Appeals ruled against the Universitys Bias Response Team. This case was altogether important and worrying, but I find its conclusion reassuring for the future. The courts remain the protectors of our fundamental rights amidst brazen violations, and it looks like they might just continue holding the torch even if legislators at every level keep trying to blow it out.
David Lisbonne is a junior in the College of Engineering and can be reached at email@example.com.
Posted: at 11:17 am
Instagram, and its parent company Facebook, took down posts regarded as too sympathetic to Iranian Gen. Qassem Soleimani, who was assassinated January 3 in a controversial US airstrike. The news website Coda (1/10/20) was credited with breaking the news, and Newsweek (1/10/20) also reported that:
Iranian journalists have reported the censorship of their Instagram accounts. Posts about Soleimani have disappeared from Instagram, which is currently the only operational international social media site within Iran.
According to the Facebook corporation, as quoted by CNN (1/10/20), removal of such posts is required by US sanctions; the Iranian Revolutionary Guard Corps, of which Soleimani was a commander, was designated as a terrorist organization by the US government in April:
As part of its compliance with US law, the Facebook spokesperson said the company removes accounts run by or on behalf of sanctioned people and organizations.
One might rightly ask: What constitutes a post supportive of the late military commander? According to the CNN report, merely posting a photo of the general could get the Facebook authorities to take a post down.
The International Federation of Journalists condemned the censorship:
The measures have gone even further, and some accounts of Iranian newspapers and news agencies have now been removed from the social media platform. This poses an immediate threat to freedom of information in Iran, as Instagram is the only international social media platform currently still operating in the country.
The Washington Times (1/11/20) reported:
Ali Rabiei, a spokesperson for the Iranian government, complained from his Twitter account on Monday this week about the disappearance of social media discussions about Soleimani, accusing Instagram of acting undemocratic and unashamed.
Much of the coverage has centered on the fact that Instagram is one of the few social media networks not widely restricted in Iranthus, the blackout serves as a way of censoring information going into Iran. In fact, the US government news agency Voice of America (1/7/20) reported that the Iranian government was clamping down on social media posts too critical of Soleimani, and NBC News (8/21/19) reported on how Iranians used networks like Instagram to skirt government regulation. (The irony here is thick.)
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But this news has also gotten journalists and press advocates worried about what this means for free speech and the First Amendment in the United States. On the one hand, as a private company, Facebook is free to make its own rules about acceptable content. Yet if the network is removing content because it believes it is required to do so by law, that is government censorshipand forbidden by the Constitutions guarantee of freedom of the press.
Shayana Kadidal, a senior managing attorney at the Center for Constitutional Rights, told FAIR that while it was possible for the US government to restrict media companies from coordinating with sanctioned entities and providing material support to the IRGC, the US government cannot restrict Americans from engaging in what he called independent advocacy.
Independent advocacy, as the law stands, cant be banned, he said. For [Instagram] to remove every single post would mean it was pulling posts that are protected.
The Washington Post (1/13/20) reported that free speech advocates were worried, with the director of the Electronic Frontier Foundation calling it legally wrong. Others concurred:
Eliza Campbell, associate director at the Cyber Program at the Middle East Institute in Washington, DC, [said] that the existing laws had failed to keep up with online speech, calling it a field of law that hasnt been written quite yet.
The terrorist designation system is an important tool, but its also a blunt instrument, she said. I think were walking down a dangerous path when we afford these platformswhich are private entities, have no oversight, and are not elected bodiesto essentially dictate policy, which is whats happening right now.
Emerson T. Brooking, a resident fellow at the Atlantic Councils Digital Forensic Research Lab, [said] that Facebook and Instagram are taking a very aggressive position and it may not be sustainable. He said it could result in Facebook removing any speech of any Iranian mourning Soleimanis death and could represent a harsh new precedent.
Regardless of whether the government directed Facebook to take this action, the fact that a media company felt the need to do so is proof of a chilling effect on speech. Who, specifically, is to decide what is so unabashedly pro-Soleimani material that it violates US sanctions? Is an article that merely acknowledges that many Iranians mourned Soleimani and denounced his killing a violation? Is an anti-war editorial that doesnt sufficiently assert Soleimani was no angel constitute such a crime? Could satirical material that facetiously supported the Tehran regime get censored? (The last item isnt so hypothetical: A Babson College professor was fired for jokingly encouraging Iran to follow Trumps lead by targeting US cultural sites.)
All of these questions, and all this ambiguity, should be enough evidence that this kind of censorship would be capricious and unfairly applied, and thus inappropriate in the face of free speech protections.
Free press advocates in the United States should think seriously in the coming days about how to respond. If sanctions can be invoked by a social media network to take down certain content, what is next? In order not to find out, well need a concerted pushback to Facebooks censorship from journalists and civil libertarians.
Posted: at 11:17 am
(Photo by NICHOLAS KAMM/AFP via Getty Images)
(CNSNews.com) President Donald Trump marked National Religious Freedom Day on Thursday by announcing steps his administration is taking to protect the First Amendment right to pray in schools.
This afternoon, we're proudly announcing historic steps to protect the First Amendment right to pray in public schools. So you have the right to pray, and thats a very important and powerful right. There's nothing more important than that, I would say, Trump said.
He was joined in the Oval Office by Education Secretary Betsy DeVos and Deputy Attorney General Jeffrey Rosen as well as students and prayer advocates from across the country.Trump said that government must never stand between the people and God.
Yet, in public schools around the country, authorities are stopping students and teachers from praying, sharing their faith, or following their religious beliefs. It is totally unacceptable. You see it on the football field. You see it so many times where they're stopped from praying, and we are doing something to stop that, he said.
Tragically, there is a growing totalitarian impulse on the far-left that seeks to punish, restrict, and even prohibit religious expression. Something that, if you go back 10 years or 15 years or 20 years, it was un-thought of that a thing like that could even happen -- that anybody would even think of something like that happening, the president said.That is why, today, my administration is issuing strong new guidance to protect religious liberty in our public schools. The right of students and teachers to freely exercise their faith will always be protected, including the right to pray, Trump said.
Nine federal agencies are also proposing new rules to roll back discriminatory regulations. So we have rules to roll back discriminatory regulations on religious service organizations, and earlier this afternoon, my White House released a new memo to make sure federal funding is never used to violate the First Amendment -- which is a very big deal, the president said.
Hannah Allen, a high school freshman from Texas who attended the event, explained how she was told by her school that she and her classmates had to hide to pray.
So, me and a group of students from our school wanted to pray for our former classmate's brother who had got hurt in an accident. After the prayer, our principal told us, Dont do that again. So the next day, parents had called and complained. He told us that we could pray, but he said we had to hide in the gym or behind a curtain, or somewhere away from everyone else, she said.And I know that if this can happen in a small town in Texas, it can happen anywhere across America, and thats not right. No one should feel ashamed of their faith, especially in school or anywhere, Allen said.
She explained that the students sought help from the First Liberty Institute, a legal group dedicated to helping protect religious liberty.
So we got with First Liberty. They've been amazing. They supported us the whole way, and they sent the school a letter, and the school complied with the letter, and now the students are allowed to pray in school, Allen said.
Also on hand was Marilyn Rhames, founder and president of Teachers Who Pray. She explained why she founded the group:
I founded Teachers Who Pray because I, as a teacher, believe in the beauty of every child and the unlimited potential that resides within. However, the students that I was getting weren't set up for success, because they were so significantly behind grade level, and I taught in Chicago Public Schools for 14 years.
And during that time, we were losing students every year to gun violence, and one year, it was like 30, 32 students getting killed, and I was overwhelmed with the heaviness of the work, so I thought about quitting, and I decided not to. I was going to fight, and I was going to pray and uplift my spirit so that I can do the job that I knew God had called me to do.So I began praying with other teachers in the building who were like-minded, and we really supported each other, built community, built more hope, built more joy in the work despite it being so difficult, and we grew. Like, right now, there's over 150 chapters of Teachers Who Pray because teachers need that spiritual support and guidance.And today, I believe it's super important, because there is a myth out there that what Teachers Who Pray does and other organizations do for teachers'spiritual wealth is not legal, and it absolutely is. And I'm here to tell teachers that we need to pray for your faith. We need to pray. We need to buckle and just do what we have to do for our kids, because they need us, and they're depending on us. And if we're not strong, we can't make them strong. So thats why I'm here.
Trump pledged that his administration will not to let anyone push God from the public square. He said they will uphold religious liberty for all.
DeVos thanked Trump for his leadership, courage and friendship to people of faith, especially our nation's children.
Too many misinterpret a separation of church and state as an invitation for government to separate people from their faith, the education secretary said. In reality, our Constitution doesn't exist to protect us from religion. It exists to protect religion from government. The First Amendment affirms our free exercise of religion, and we dont forfeit that first freedom to anyone or in any place, especially in public schools.
After all, it's been noted that as long as there are final exams in schools, there will be always be prayer in schools, DeVos joked.
Thanks to your leadership, Mr. President, today we remind schools of the law with respect to religious expression -- something that hasnt been done in more than 15 years - and where there are violations, we now make clear that the law requires states to establish a clear process for students who want to pray in school and face opposition, she said.
The law also directs states to notify the administration about all complaints as well, DeVos said. The administration will ensure that all believers have the freedom to learn, to pursue our passions, to use our talents, and to live in accordance with the unique purpose that God has called us each to do.
If we embrace that freedom, our faith will be a light no darkness can overcome, the education secretary added.
The DOJ is committed to enforcing Americans' constitutional rights, including this one. So thats part of why Im very honored and privileged to be a part of todays announcement on the new guidance document about prayer in school, Rosen said.I think sometimes people dont appreciate that there are many, many Americans who feel called to pray during the day, and our First Amendment to our Constitution protects that, and sometimes I think theres a confusion about this issue as to whether its trying to force people to pray who dont want to, but thats not what this is about, the deputy attorney general said.
This is about protecting the rights of those who do to have the liberty to do that on school grounds, and that is protected by the First Amendment. So todays guidance reaffirms and clarifies and spells out for Americans what that freedom is with regards to prayer and religious expression, he said.
And I really think that the courage of people of faith, such as the folks we have here today, is really a reminder of how important our constitutional liberties are and of the great action that your administration is taking to ensure that they remain legally protected, Rosen concluded.
Here is the original post:
Trump Takes Steps to Protect the Right to Pray in Schools - CNSNews.com
Breaking down the first amendment lawsuit against Florida State Representative Spencer Roach – Fox 4
Posted: at 11:17 am
CAPE CORAL, Fla. Tonight we are learning more about the lawsuit against State Representative Spencer Roach who is being sued by a civilian for blocking him on Facebook.
Anyone can sue anybody for anything. Question is, whether or not they will win, said Pamella Seay, FGCU criminal justice professor.
Randy Scott believes he will. Scott is suing State Representative Spencer Roach for blocking him on his public Facebook page. Saying he sees Roach not wanting to engage in public discourse.
That is representative Roach having a disdain for public discourse that is critical of him and his other people in Lee County who want to just have a free ride at public discourse, said Scott.
However, FGCU criminal justice professor Pamella Seay says this is not a public figure's account, but one for a candidate for public office so the limitations are different.
The key when you're looking at one of these social media accounts is whether or not it is a public forum, as he is using this particular account it is not a public forum. So yes he does have the right to block someone from that account, said Seay.
State Representative Spencer Roach emphasizes this is not an official government page.
That page is a campaign page, it is a promotional page, its an advertisement page that is paid for with funds in my campaign account. It is not an official government page, said Roach.
Roach says he welcomes criticism but claims Scott has personally threatened him and he will not tolerate it.
You know we welcome criticism and defense and especially policy debate on my campaign Facebook page ,but once you make a threat to kill me I think that kind of crosses the line and thats not something I am going to tolerate on that page."
Roach says the fight is not over.
I look forward to vigorously defending any lawsuit this or any others that attempts to harass me or my staff, said Roach.
Posted: at 11:17 am
Prevailing narratives portray the American people as sharply divided on nearly every issue. Political polarization seems to permeate every aspect of our lives. But the reality is much less black-and-white than we are led to believe. While Americans do hold issue-specific disagreements, there is a growing consensus across the political spectrum that politics as usual is not working and that our government is in need of fundamental reform.
The average American, regardless of political ideology, does not feel represented in our system, and for good reason they arent. Policy outcomes rarely reflect the wishes of the majority of Americans, while the preferences of economic elites greatly influence legislation. This system, where ultra-wealthy donors and special interests exert control over Washington, has been forming since the 1970s, but it was exacerbated by the 2010 Citizens United Supreme Court case, which upended former campaign finance limits by stating that unlimited political spending, by individuals or by corporations, is protected as free speech under the First Amendment.
In the 10 years since Citizens United, the biggest effect to the political system has been to engage and empower the very wealthiest Americans, across the political spectrum, according to an article in the Los Angeles Times. The Brennan Center for Justice says the ruling created a new political landscape that favors the super rich above all others.
In 2000, approximately $1.6 billion was spent on congressional elections. In 2018, the number had jumped to $5.7 billion. Total individual donors to Super PACs grew from $299 million to $1.1 billion in just the two years from 2014 to 2016. Total spending in the 2020 elections is projected to top $10 billion. The proliferation of campaign spending has turned into a political arms race that compels the two major political parties and candidates for elected office to seek donors who can cut the biggest checks and appease their ultra-wealthy donors by passing favorable legislation, regardless of how it affects their constituents or the American people at large.
There is a silver lining to the story, however. While the Citizens United ruling has proved disastrous for our democratic self-governance, its effects are unifying Americans of all political persuasions, who see the effects of a big money system that drowns out their voices in a cacophony of cash from wealthy mega-donors. The cross-partisan movement that is now fomenting embodies the same energy that has led to systemic change in our nations pastand its calling for the only solution that will address the Supreme Courts wrong decision in Citizen United: passing a constitutional amendment.
Powerful, moneyed forces are working diligently to keep the pay-to-play system intact, in part by politicizing critical democratic reforms. The movement for an amendment to address this issue has been deliberately mischaracterized as a liberal pursuit. This could not be further from the truth.
Opposition to unlimited political spending is neither a liberal nor a conservative issue. In recent surveys, Americans across the political spectrum say there should be limits on the amount of money individuals and corporations can spend on campaigns, that big donors have more influence than others, and that political corruption is the biggest crisis facing the nation. A constitutional amendment to overturn Citizens United is backed by 66 percent of Republican voters, and ending political corruption (i.e. draining the swamp) was a key factor in Donald TrumpDonald John TrumpNational Archives says it altered Trump signs, other messages in Women's March photo Dems plan marathon prep for Senate trial, wary of Trump trying to 'game' the process Democratic lawmaker dismisses GOP lawsuit threat: 'Take your letter and shove it' MOREs successful 2016 presidential bid.
Conservatives have plenty of reasons to support the amendment. As Republican former Sen. Jim Rubens put it, ending the dominance of big money in politics is tied to the fundamental conservative principles around which the Republican party is built. Unlimited political spending is undermining free-market capitalism and faith in the American constitutional republic. In a recent poll 61 percent of Americans aged 18-24 have a positive view of socialism, and only 17 percent of voters trust the federal government.
Meanwhile big government occupies and controls a larger share of the economy and increasingly picks economic winners and losers via tax subsidies, regulatory carve-outs, spending programs and contract awards. Businesses compete by buying influence in Washington, rather than by offering better products and services to consumers. Republican former Rep. Jim Leach of Iowa says Citizens United has genetically altered our democratic DNA, pushing American politics in an oligarchic, corporatist direction.
Another myth surrounding the amendment movement is that it is anti-capitalist. The amendment, in fact, would help re-establish the principles of competition and innovation that underpin American capitalism. Currently, a small number of huge global corporations are able to mobilize armies of lobbyists and pump money into Super PACs to influence elections and policies, quashing competition from small businesses that do not have the budget to compete.
Hundreds of business leaders from across the nation have expressed concerns about the implications of pay-to-play politics for our economy and our global competitiveness. The Committee for Economic Development (CED), a nonpartisan, business-led public policy organization has long advocated increased disclosure and transparency. In a 2013 CED report, 87 percent of surveyed business executives say the U.S. campaign finance system is in need of major reform. Rules that foster pay-to-play do not help business, but threaten innovation, healthy markets, and economic growth.
Americans of all backgrounds and political persuasions have the opportunity to affect real change and take political power back from an unaccountable elite by joining the growing movement for a constitutional amendment to get big money out of politics. Last year, New Hampshire became the 20th state to call on Congress to pass such an amendment, passing the halfway mark to the 38 states needed for ratification. More than 800 towns have passed resolutions in support of the amendment. Furthermore, 13 current and former 2020 presidential candidates signed a Candidate Pledge, committing to advance the amendment if theyre elected. It is time for every American to stand up and demand an end to the domination of wealthy elite special interests by ending the era of Citizens United with a constitutional amendment.
Leah Field is managing director of American Promise.
Posted: at 11:17 am
There is a movement underway to declare some cities or counties as Second Amendment sanctuaries. Using the very word sanctuary in connection with the Second Amendment is a cruel distortion of the meaning of the term.
The Second Amendment is not in need of a refuge or haven. Lets be clear: There is no political party, group, organization, cult, faction or any other synonym for a gathering of people that wants to take every gun from every individual in America. None.
This idea is born and raised in the mind of the NRA and the gun lobby to frighten gun owners into thinking otherwise. Can we have a reasonable discussion on the types of weapons suitable for our society? Yes.
Can we have a discussion on the appropriateness of certain individuals being allowed access to weapons in some circumstances? Yes.
These are not slippery slopes, as the gun lobbies would have you believe. These are legitimate and appropriate items for discussion. When reasonable gun laws are introduced the NRA counters with gun violence is a mental health issue.
Yet, when legislation is introduced to address that claim by suggesting that those closest to individuals who, at a time, due to mental or emotional problems, should be denied access to weapons until they can be evaluated as responsible again, the gun lobby and the NRA scream bloody murder.
The Second Amendment is low-hanging fruit for some politicians to grandstand. We have seen that at the last couple Board of Supervisors meetings.
If there ever was an amendment that needed sanctuary its the First Amendment, which has been under siege from the current occupant of the White House since before he took office.
Posted: at 11:17 am
NORTHWOODS - While discussing the second amendment Monday, people in St. Germain exercised their first amendment rights.
Steve Carlberg came to the meeting in support of the resolution.
"They gave us the guns to have a militia to defend against all enemies foreign and domestic," said Carlberg. "That includes our own government."
Eric Olsen spoke in opposition to the resolution.
In the end both sides agreed, for the most part, that the issue is too important for a rushed decision. The town board unanimously approved a motion to put a Second Amendment Sanctuary question on the spring ballot.
"They did the right thing in there," said Carlberg. "Let's hear what the town has to say first, the majority of the townfolk - that's the American way."
"We don't need protection for guns," said a Merrill citizen at a city council. "We need protection from guns."
All four people who spoke during the public comment period were against the resolution. Citizens echoed the concerns about attracting tourists; and risking further endangering people experiencing domestic violence.
"Being a sanctuary city or sanctuary county, [that] would deny those families the protections the court is granting if nobody is going to enforce it," said a Merrill citizen.
Steven Osness is the Merrill alderman who introduced the resolution. He said it is a step in the right direction to protect people's constitutional rights.
"We want to protect the constitutional rights of people," said Osness. "If it's a first amendment, a second amendment, any amendment. We just want to ban together and protect our rights and freedoms."
In 6 to 2 vote, the City Council declared Merrill a 2nd Amendment Sanctuary. Lincoln and Langlade Counties will consider the second amendment sanctuary resolution at a later date.
Posted: January 7, 2020 at 9:56 pm
Many people recoil at the notion that the First Amendment protects the speech that they most dislike or detest.
The late great Nat Hentoff captured this censorial impulse in his Free Speech for Me, But Not for Thee.
But the reality is that the First Amendment protects much speech that is obnoxious, offensive and repugnant.
Justice William Brennan captured this principle eloquently in his majority opinion in the flag-burning decision Texas v. Johnson (1989):
If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.
The case involved the protest activities of Gregory Lee Johnson, who burned an American flag in 1984 in Dallas, the site of the Republican National Convention. While Johnson doused the flag with kerosene, others chanted, America, red, white and blue, we spit on you.
Johnson and others protested the policies of the Reagan administration and a coming second term for the president.
Of all the protesters, authorities arrested only Johnson and charged him with violating a Texas flag desecration law.
The court decided the case by the narrowest of margins, 5-4. Brennan emphasized that the state of Texas essentially was punishing Johnson for his dissident political views more than tarnishing a venerated object.
The way to preserve the flags special role is not to punish those who feel differently about these matters, Brennan wrote. It is to persuade them they are wrong.
In dissent, Chief Justice William Rehnquist analogized Johnsons burning of the flag to fighting words. But, in this case, Brennans view prevailed.
A lasting legacy of Brennans opinion in Texas v. Johnson is his bedrock principle phrase, which has come to represent a cardinal principle of First Amendment law that the First Amendment protects much offensive expression.
David L. Hudson Jr. is a First Amendment Fellow at the Freedom Forum Institute and a law professor at Belmont University.
Executive Order on Anti-Semitism Could Suppress First-Amendment-Protected Criticism of Israel – Reason
Posted: at 9:56 pm
[1.] President Trump's Executive Order on Combating Anti-Semitism begins by noting that, though Title VI of the 1964 Civil Rights Act only bans "discrimination on the basis of race, color, and national origin"and not religion"in programs receiving Federal financial assistance,"
Discrimination against Jews may give rise to a Title VI violation when the discrimination is based on an individual's race, color, or national origin. It shall be the policy of the executive branch to enforce Title VI against prohibited forms of discrimination rooted in anti-Semitism as vigorously as against all other forms of discrimination prohibited by Title VI.
That strikes me as quite sensible. Much discrimination against Jews stems from hostility to Jews as an ethnic groupa group linked by ancestry and culture, quite apart from religion. In this respect, it's much like discrimination against, say, people of Hispanic or Arab ethnicity. Whether such ethnic discrimination against Jews qualifies as forbidden discrimination based on race or national origin turns out to be surprisingly unsettled, as I discussed in a September 2019 post (Is Rejecting Someone Because of His "Jewish Blood" Race Discrimination Under Title VII? National Origin Discrimination?). But there are ample precedents for the view that ethnic discrimination is race/national origin discrimination (again, see that post for more), and I think the Administration's position rightly endorses that view.
[2.] But the Order also goes on to say,
In enforcing Title VI, and identifying evidence of discrimination based on race, color, or national origin, all executive departments shall consider the following:
(i) the non-legally binding working definition of anti Semitism adopted on May 26, 2016, by the International Holocaust Remembrance Alliance (IHRA), which states, "Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities"; and
(ii) the "Contemporary Examples of Anti-Semitism" identified by the IHRA, to the extent that any examples might be useful as evidence of discriminatory intent.
(b) In considering the materials described in subsections (a)(i) and (a)(ii) of this section, agencies shall not diminish or infringe upon any right protected under Federal law or under the First Amendment. As with all other Title VI complaints, the inquiry into whether a particular act constitutes discrimination prohibited by Title VI will require a detailed analysis of the allegations.
The IHRA examples state that "Contemporary examples of antisemitism in public life, the media, schools, the workplace, and in the religious sphere could, taking into account the overall context, include, but are not limited to":
Calling for, aiding, or justifying the killing or harming of Jews in the name of a radical ideology or an extremist view of religion.
Making mendacious, dehumanizing, demonizing, or stereotypical allegations about Jews as such or the power of Jews as collectivesuch as, especially but not exclusively, the myth about a world Jewish conspiracy or of Jews controlling the media, economy, government or other societal institutions.
Accusing Jews as a people of being responsible for real or imagined wrongdoing committed by a single Jewish person or group, or even for acts committed by non-Jews.
Denying the fact, scope, mechanisms (e.g. gas chambers) or intentionality of the genocide of the Jewish people at the hands of National Socialist Germany and its supporters and accomplices during World War II (the Holocaust).
Accusing the Jews as a people, or Israel as a state, of inventing or exaggerating the Holocaust.
Accusing Jewish citizens of being more loyal to Israel, or to the alleged priorities of Jews worldwide, than to the interests of their own nations.
Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor.
Applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation.
Using the symbols and images associated with classic antisemitism (e.g., claims of Jews killing Jesus or blood libel) to characterize Israel or Israelis.
Drawing comparisons of contemporary Israeli policy to that of the Nazis.
Holding Jews collectively responsible for actions of the state of Israel.
This, I think, has the potential to unconstitutionally suppress speech. Let me explain why.
[A.] To begin with, imagine that President Bernie Sanders issues the following Executive Order:
In enforcing Title VI, and identifying evidence of discrimination based on race, color, or national origin against Palestinian-Americans, all executive departments shall consider the following examples to the extent that they might be useful as evidence of discriminatory intent:
Denying the Palestinian people their right to self-determination, e.g., by claiming that any Palestinian state would lead to terrorist attacks on Israel.
Applying double standards by requiring of Palestinians a behavior not expected or demanded of any other group that is waging an insurrection against an oppressive government.
Drawing comparisons of contemporary Palestinian policy and attitudes towards Jews to those of the Nazis.
Holding Palestinians collectively responsible for actions of Palestinian de facto governmental organizations.
Justifying the killing or harming of Palestinians in the name of protecting another nation's security, or on the theory that it is acceptable collateral damage in the other nation's defensive operations.
The premise in the first paragraph is legally accurate: Discrimination against Palestinian-Americans is likely already prohibited by Title VI as discrimination based on race or national origin, just as discrimination against Hispanics or Arab-Americans is already prohibited. But I take it that we'd be concerned that the following exampleseven if cast just as examples of what might be useful as evidence of discriminatory intentare likely to (and probably intended to) deter people from expressing their political views about the Israeli-Palestinian conflict.
To be sure, one can draw distinctions between the examples I give above and the examples in the IHRA Anti-Semitism statement. For instance, some people argue that it's illegitimate to deny to Jews a right to have a nation of Israel, because it already does exist, but legitimate to deny the Palestinians a right to have a nation of Palestine, because it has not been officially recognized. (I'm quite skeptical of the view that official international recognition should make a difference for which arguments are legitimate, and especially for which arguments are protected by the First Amendment.) Or some might say that, in their experience, the view that Jews don't have a right to national self-determination is highly correlated with anti-Semitism but the view that Palestinians lack such a right is not highly correlated with anti-Palestinian prejudice.
But do you think it's likely that courts will indeed reliably accept such distinctions? Or, if a court were to uphold President Trump's Executive Order, would that decision be a powerful precedent in favor of the constitutionality of the hypothetical order from President Sanders?
[B.] More specifically, one problem with the real Executive Order (as well as the hypothetical Order) is that speech has in recent years often been labeled discrimination, on the theory that certain statements create a "hostile environment" and therefore violate antidiscrimination rules. Under this theory, a rule that "Drawing comparisons of contemporary Israeli policy to that of the Nazis" is "evidence of discrimination" means that a university could be punished under Title VI for allowing speech drawing such comparisons. Likewise, drawing such comparisons would violate campus speech codes that ban "discrimination" and "harassment."
The Lawfare Project's Dec. 18, 2019 complaint against Columbia, which cites the Executive Order, relies on precisely this theory. Among other things, it lists sharply anti-Israel (and pro-Hamas) public statements by Prof. Joseph Massad and Prof. Hamid Dabashi as examples of "discrimination against" the complainant and "discrimination directed at" other Jews or Israelis. (I received a copy of the Complaint with authorization to quote portions but not post it; it's not a court filing, so it apparently isn't a fully public document.) Likewise, the complaint takes the view that Columbia's refusal to silence such criticisms, or to publicly condemn them, has helped "create a hostile environment" in "violation of Title VI."
(Columbia's decision not to condemn certain statements would itself be an exercise of its own First Amendment right not to speak. But the complaint argues that "Although Dabashi has a right to free speech, the university has an obligation to either sanction or condemn this speech when it conflicts with university policies and federal law," and seemingly takes the view that the speech does "conflict with federal law.")
As David Bernstein has pointed out, the problem here partly stems from the view that public comments by students, professors, and others can violate antidiscrimination law if they create a "hostile educational environment" based on race, religion, sex, sexual orientation, gender identity, national origin, and the like. Many courts have struck down campus speech codes framed in such terms, but the government and various universities has continued to assert that such speech restrictions are constitutional.
But the Executive Order, it seems to me, exacerbates the problem by sweeping in anti-Israel speech (and not just overtly anti-Jewish speech) as potentially punishable "discrimination." Both anti-Israel speech and anti-Jewish speech are protected by the First Amendment (unless they fall within one of the narrow exception to First Amendment protection, such as for true threats). But broadening the unconstitutional restrictions is surely not a step forward.
Nor do I think that the Order's statement that, "In considering the materials described in subsections (a)(i) and (a)(ii) of this section, agencies shall not diminish or infringe upon any right protected under Federal law or under the First Amendment," helps much. The problem is that government officials often tend not to recognize that various speech, especially speech that is viewed as bigoted or "discriminatory," is protected by the First Amendment; the Order, notwithstanding its "shall not diminish or infringe language," tends to reinforce this attitude.
[C.] But say that the Executive Order were limited to what one might think of as purely evidentiary uses of speeche.g., if someone has been attacked, or had his property vandalized, or has been excluded from some university program, or given a low grade, and the question is whether the action was motivated by his being Jewish. That may be what at least one adviser to the Administration may have intended, according to this article in Haaretz (Amir Tibon):
Avi Berkowitz, a close adviser to Kushner and heavily involved in working on the executive order, says the answer is no. "A complaint against a lecture as you describe would not trigger Title VI," he says. "In order for Title VI to apply, there has to be actionable conduct. Title VI requires a certain level of conduct, and the executive order does not change that requirement. The lecture remains protected speech."
Let's set aside the possibility that, as some have argued, the creation or tolerance of a "hostile environment" would itself be treated by some as "actionable conduct," even if the environment stems just from speech that doesn't fit within any of the narrow First Amendment exceptions; and let's focus on the purely evidentiary uses I just mentioned.
Even for such evidentiary uses, I think the Executive Order is dangerous and unconstitutional, as my hypothetical Sanders Executive Order helps illuminate. Say that you are a professor who rejected a student's application to a graduate program. He claims that the rejection stemmed from his or his parents' having been born in Gaza. (Assume he's an American citizen, so the claim is of discrimination based on national origin, and not based on current citizenship, which would raise more complicated problems.)
You argue that, no, you rejected him because you thought his past scholarly work wasn't strong enough. He responds that, (1) under the hypothetical Sanders Executive Order, "Denying the Palestinian people their right to self-determination" is an example that "shall [be] considere[ed] to the extent that [it] might be useful as evidence of discriminatory intent"; (2) you had publicly argued against a separate Palestinian state; and therefore (3) that is evidence that you were biased against him based on his national origin.
I think such an argument would be quite wrong, and dangerous to academic freedom. If the argument were accepted, it would sharply chill advocacy of various views on the Israeli-Palestinian conflict, and the government has no business doing that. And of course the same is true of the actual Trump Executive Order.
Now I acknowledge that speech can be used as evidence of motive; indeed, sometimes it's the only such evidence. (See this post for more, including a discussion of some key Supreme Court cases on the subject.) Even in the absence of any Executive Order, if a professor publicly says "All Jews are scum and I hate working with them" or "all Palestinians are scum and I hate working with them," that could be evidence that a particular action by a professor with respect to a student was deliberate discrimination based on ethnicity. The same would be true if a student is being accused of punching a classmate or vandalizing the classmate's property based on the classmate's being Jewish or Palestinian.
But when there is such concrete evidence of ethnic hostility, the Executive Order is unnecessary. The Order would make a difference only in cases where statements overtly expressing ethnic hostility are weak or even absent, and the evidence stemming from one's views on the Israeli-Palestinian conflict would then be brought in.
The closest analog in the Supreme Court precedents (not a perfect analog, but I think a helpful one) is the presumption struck down in Virginia v. Black (2003). There, the law banned cross-burning with the intent to intimidate; and some such cross-burning (e.g., burning a cross in front of a black family's house with the intent to make them fear that physical violence would be next) may indeed be punishable, when it falls within the First Amendment exception for true threats of violence. But the law also added,
Any such burning of a cross [including in any public place] shall be prima facie evidence of an intent to intimidate .
The Court held that this "prima facie evidence" provision violated the First Amendment, for reasons stated by Justice Souter (joined by Justices Kennedy and Ginsburg), and agreed with by Justice O'Connor (joined by Chief Justice Rehnquist and Justices Stevens and Breyer):
As I see the likely significance of the evidence provision, its primary effect is to skew jury deliberations toward conviction in cases where the evidence of intent to intimidate is relatively weak and arguably consistent with a solely ideological reason for burning. To understand how the provision may work, recall that the symbolic act of burning a cross, without more, is consistent with both intent to intimidate and intent to make an ideological statement free of any aim to threaten. One can tell the intimidating instance from the wholly ideological one only by reference to some further circumstance. In the real world, of course, and in real-world prosecutions, there will always be further circumstances, and the factfinder will always learn something more than the isolated fact of cross burning. Sometimes those circumstances will show an intent to intimidate, but sometimes they will be at least equivocal, as in cases where a white supremacist group burns a cross at an initiation ceremony or political rally visible to the public.
In such a case, the prima facie evidence provision will have the practical effect of tilting the jury's thinking in favor of the prosecution. [T]he provision will encourage a factfinder to err on the side of a finding of intent to intimidate when the evidence of circumstances fails to point with any clarity either to the criminal intent or to the permissible one. The provision will thus tend to draw nonthreatening ideological expression within the ambit of the prohibition of intimidating expression.
To the extent the prima facie evidence provision skews prosecutions, then, it skews the statute toward suppressing ideas. The question here is [whether] the statute's terms show that suppression of ideas may be afoot. And if we look at the provision for this purpose, it has a very obvious significance as a mechanism for bringing within the statute's prohibition some expression that is doubtfully threatening though certainly distasteful.
I think the same reasoning applies here. If a university responding to a student complaint, or the Department of Education Office for Civil Rights determining whether a university's response was inadequate, sees the usual sorts of evidence that would normally prove discriminatory motivation (e.g., "I hate Jews"), it can certainly rely on that evidence.
But the Executive Order, by listing specific political statements as potential evidence, "skew[s] [the decisionmaker's] deliberations toward [a finding of forbidden behavior] in cases where the evidence of [anti-Semitism] is relatively weak." It "tilt[s] the [decisionmaker's] thinking in favor of [a finding of guilt]" simply based on a professor's or student's expression of political views about Israel (or, in my hypothetical, about Palestinian organizations). If "[t]he question" is whether "the [Executive Order's] terms show that suppression of ideas may be afoot," those terms have "a very obvious significance as a mechanism for bringing within [Title VI's] prohibition some expression that is doubtfully [evidence of discrimination]."
[* * *]
On the merits of the Israeli-Palestinian controversies, I generally support Israel; and I don't always support arguments that various attempts to protect Israel or Israelis from discrimination violate the First Amendmentconsider, for instance, my amicus briefs (e.g., this one), filed on behalf of Prof. Michael Dorf, Prof. Andy Koppelman, and myself, arguing that various state anti-BDS statutes do not violate the First Amendment. (My position there is that actual refusal to deal with Israel and Israelis are not protected speech, even if they are politically motivated, just as refusal to deal with Muslims or Christians are not protected speech.)
But here it seems to me (as I've argued before as to similar proposals) that the Executive Order really does risk suppressing not just discriminatory conduct but speechspeech that I generally disagree with, but speech that is fully constitutionally protected.
Pro/Con: Can elected officials block you on social media? Yes, the Constitution can’t be applied to private tweets – Duluth News Tribune
Posted: at 9:56 pm
The part that is missed is the first five words of the First Amendment: Congress shall make no law. It was designed to limit what laws Congress could create. In doing so it also limits the Executive Branch, as its relevant authority is derived from the laws passed by Congress. The First Amendment thus stops executive officials in their official capacity from limiting speech they dont like but it doesnt stop individuals acting in their private capacity.
Upon creating official government accounts @WhiteHouse or @DepofDefense, as examples the government creates designated public forums where people can respond to official tweets. If the government were to block people from responding to these accounts because the government didnt like their opinions, it would be engaged in viewpoint discrimination, and that is prohibited by the First Amendment. However, if Twitter allowed accounts to turn off all responses, this would likely be allowed, as it wouldnt be discriminating based on viewpoint.
But most elected officials are legislators and not even a part of the Executive Branch. They almost always created their accounts long before they were in office as their personal account. Even a campaign account would still be private, not a government account. The First Amendment only limits the laws that Congress passes as a body; it does not limit individual members of the legislature. You have no right, for instance, to invade the home of a congressman to protest some issue; that is their property.
The story becomes a bit more complex for the accounts of the president and vice president. They are part of the Executive Branch and so are limited in their official acts by the First Amendment. The official accounts of the president, including @POTUS, are government accounts created and set up as designated public forums by the government. Thus, the government is limited by the First Amendment.
But what about @realDonaldTrump: Is that an official account? Trump acknowledged that he uses the account to, among other things, announce official decisions. The White House press secretary said the tweets are considered the official statements by the president of the United States. The president used the account to announce the nomination of the new FBI director and his new ban on transgender individuals in the military.
Given these facts, the Second Circuit Court of Appeals found that the president chose to transform his personal account into an official government account. This means he no longer is able constitutionally to block people from responding to his tweets based on viewpoint.
The problem for the Second Circuit is when this occurred. By what act did the president transform his previous private account into the public one of his office? Merely speaking about his official acts through the account isnt enough. The Second Circuit isnt exactly clear as to when this happened. The fact that the account was created before Trump was president and will likely continue as a private account after he leaves is a strong factor suggesting the Second Circuit may be wrong and that other courts may decide the same issue differently.
But, at least for Trump, it doesnt matter, as the Second Circuit has decided Trump has adopted his Twitter account as an official account of his office and therefore cannot block people.
While this limits the @realDonaldTrump account from being able to block people, the reasoning doesnt apply to almost any other elected official (most of whom are legislators).
It is possible the 2nd Circuit decision will apply to some state governors and other state executive-branch officials. It will turn on whether those officials used their Twitter account as the official account of their office, such as announcing official decisions.
But almost all elected officials are in the legislature, either federal or state; and as such their Twitter accounts cannot possibly be limited by the First Amendment. There was no law upon which such accounts base their authority, and so the First Amendment simply doesnt apply.
Devin Watkins is an attorney for the Competitive Enterprise Institute (cei.org), a nonprofit libertarian think tank based in Washington, D.C. He wrote this originally for InsideSources.com.