Category Archives: First Amendment

In news that will surprise no one, police officers decided they must do something about someone filming the police department building from across the street. That's where this Fifth Circuit Court of Appeals decision begins: with a completely avoidable and completely unnecessary assertion of government power.

Phillip Turner was filming the police department. He was accosted by two officers (Grinalds and Dyess). Both demanded he provide them with identification. He refused to do so. The officers arrested him for "failure to identify," took his camera, and tossed him in the back of a squad car. Given the circumstances of the initial interaction, it's surprising the words "contempt of cop" weren't used on the official police report. From the opinion [PDF]:

Grinalds asked Turner, Hows it going, man? Got your ID with you? Turner continued videotaping, and Grinalds repeatedly asked Turner if he had any identification. Turner asked the officers whether he was being detained, and Grinalds responded that Turner was being detained for investigation and that the officers were concerned about who was walking around with a video camera. Turner asked for which crime he was being detained, and Grinalds replied, I didnt say you committed a crime. Grinalds elaborated, We have the right and authority to know whos walking around our facilities.

Grinalds again asked for Turners identification, and Turner asked Grinalds, What happens if I dont ID myself? Grinalds replied, Well cross that bridge when we come to it. Grinalds continued to request Turners identification, which Turner refused to provide. Grinalds and Dyess then suddenly and without warning handcuffed Turner and took his video camera from him, and Grinalds said, This is what happens when you dont ID yourself.

Turner asked to speak to their supervisor. Given that this happened right across the street from the department, Turner didn't have to wait very long. A supervisor arrived and came to at least one correct conclusion:

Lieutenant Driver identified himself as the commander. Driver asked Turner what he was doing, and Turner explained that he was taking pictures from the sidewalk across the street. Driver asked Turner for his ID, and Turner told the lieutenant that he did not have to identify himself because he had not been lawfully arrested and that he chose not to provide his identification. Driver responded, Youre right.

Texas police officers love to misread the state's "failure to identify" statute. It doesn't say what they think it does or what they want to believe it does. A former cop-turned-law student has a full explanation here, but suffice to say, cops cannot arrest someone for refusing to ID themselves -- at least not in Texas. The charge can be added after an arrest (if the refusal continues), but it can't be the impetus for an arrest.

After some discussion between the officers, Turner was released and his camera was given back. Turner filed a civil rights lawsuit. The lower court granted immunity to the officers on all allegations. The Fifth Circuit, however, refuses to go as far. And in doing so, it actually takes it upon itself to address an issue it easily could have avoided: whether the First Amendment covers the filming of public servants, specifically law enforcement officers.

First, the court asks whether the right to film police was "clearly established" at the time the incident took place (September 2015). It can't find anything that says it is.

At the time in question, neither the Supreme Court nor this court had determined whether First Amendment protection extends to the recording or filming of police. Although Turner insists, as some district courts in this circuit have concluded, that First Amendment protection extends to the video recording of police activity in light of general First Amendment principles, the Supreme Court has repeatedly instructed courts not to define clearly established law at a high level of generality: The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established. Thus, Turners reliance on decisions that clarified that [First Amendment] protections . . . extend[] to gathering information does not demonstrate whether the specific act at issue herevideo recording the police or a police stationwas clearly established.

The court doesn't leave it there, although it could have. The court notes that there's a circuit split on the issue, but just because the issue's far from decided doesn't mean courts have not recognized the right exists. It points to conclusions reached by the First and Eleventh Circuit Appeals Courts as evidence the right to film police has been acknowledged. Even so, there's not enough clarity on the issue to remove the officers' immunity.

We cannot say, however, that existing precedent . . . placed the . . .constitutional question beyond debate when Turner recorded the police station. Neither does it seem that the law so clearly and unambiguously prohibited [the officers] conduct that every reasonable official would understand that what he is doing violates [the law]. In light of the absence of controlling authority and the dearth of even persuasive authority, there was no clearly established First Amendment right to record the police at the time of Turners activities.

This is where the opinion gets interesting. While many judges would leave a trickier, somewhat tangential issue open and unanswered, the Fifth Circuit Appeals Court decides it's time for it to set some precedent.

We conclude that First Amendment principles, controlling authority, and persuasive precedent demonstrate that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.

[...]

To be sure, [s]peech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. Filming the police contributes to the publics ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy. Filming the police also frequently helps officers; for example, a citizens recording might corroborate a probable cause finding or might even exonerate an officer charged with wrongdoing.

In the Fifth Circuit -- joining the First and Eleventh Circuits -- the First Amendment right to film police has been asserted. Unfortunately, the issue still remains mostly unsettled, and there's currently nothing in front of the Supreme Court that would set national precedent. Unfortunately, the decision doesn't help Turner with his First Amendment claim, but it will help others going forward.

The court also reverses immunity on one of Turner's Fourth Amendment claims. While it finds the officers were justified in questioning him, they went too far when they arrested him. First, as pointed out above, the "failure to identify" law can't be used to predicate an arrest. And, after questioning him, the officers still had nothing approaching the probable cause they needed to make a warrantless arrest. Even though Turner was detained in the back of the squad car for only a short period of time, the fact that he was obviously not free to go makes it an arrest under the Fourth Amendment.

Strangely, the dissent, written by Judge Edith Brown, claims the Appeals Court has no business setting precedent. In her opinion, the nation's second-highest courts should stand idly by and wait for the Supreme Court to do the work.

The majority asserts, unconnected to the particular facts and unnecessary to the disposition of this case, that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions. The majority derives this general right to film the police from First Amendment principles, controlling authority, and persuasive precedent. But the Supreme Court has repeatedly reversed attempts to define clearly established law at such a high level of generality. White, 137 S. Ct. at 552.

The judge narrowly defines Turner's filming to ensure it would never fall under this supposedly "broad" definition of the right. She says the Appeals Court defines the protection as covering "filming police." But Turner wasn't doing that.

To the extent there is any consensus of persuasive authority, those cases focus only on the narrow issue of whether there is a First Amendment right to film the police carrying out their duties in public. E.g., Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011). Turner did not allege that he filmed police officers conducting their public duties, but rather that he filmed a police station.

Somehow, filming police officers as they enter and exit a public building is not "filming police carrying out their duties in public." Remarkably, Judge Brown says there may be "reasonable" security concerns that could Constitutionally prevent Turner's actions.

The majority does not determine that the officers here violated Turners First Amendment rightsperhaps because it would be reasonable for security reasons to restrict individuals from filming police officers entering and leaving a police station.

If police officers are entering and exiting a building from doors clearly viewable by the public from a public area, the officers obviously aren't that concerned about their "security." If so, they would use an entrance/exit members of the public can't see or don't have access to. If the Fourth Amendment doesn't protect the privacy of citizens in public areas, the same public areas can't be given a heightened privacy protection that only covers public servants.

Unsurprisingly, Judge Brown thinks Turner's involuntary stay in the back of a squad car could reasonably be viewed as Turner just hanging out there waiting to speak to a supervisor:

Because Turner himself requested a supervisor, a reasonable police officer in that situation could believe that waiting for the supervisor to arrive at the scene did not transform Turners detention into a de facto arrest. At the very least, Officers Grinalds and Dyess did not act objectively unreasonably in waiting for the requested supervisorespecially because Lieutenant Driver had to come from the Fort Worth Police Station across the street.

Except that most people "waiting for a supervisor" don't do so while:

a.) handcuffed

b.) sitting in the back of a locked squad car

The length of the detention doesn't matter. And it was ultimately the supervisor's arrival that sprung Turner. If not for the arrival of the supervisor -- who immediately recognized Turner couldn't be arrested for refusing to ID himself -- Turner would undoubtedly have spent an even longer period being detained, if not taken into the PD and processed.

The good news for Turner is that his sole remaining Fourth Amendment claims -- the wrongful arrest -- lives on. But the bigger win -- the First Amendment protections confirmation -- helps everyone else but him.

Read more from the original source:
Appeals Court Says Filming The Police Is Protected By The First ... - Techdirt

A freedom of speech lawsuit against the city of Chiloquin has been settled out of court and a motion to dismiss the suit was approved Friday.

Plaintiff Richard Twamley confirmed Monday his lawsuit against the city was resolved through a settlement agreed upon by both parties. Twamley said he found the terms of the settlement agreeable, but said specific details were under seal and wont be made public.

Twamley said he would need to contact his attorney before offering further comment.

Story continues below video

He sued Chiloquin and former Mayor Joe Hobbs Oct. 27, 2016, for an incident Dec. 15, 2015, during which Hobbs allegedly denied Twamley an opportunity to speak during public comment at a city council meeting. Twamley sought $1.7 million for the denial of his First Amendment rights as well as emotional distress.

According to the lawsuit, Twamley intended to speak to the council that night regarding a 2014 legal settlement between the city and the Chiloquin Rodeo Association, which Richard Twamley said occurred without proper authority. Twamley said his comments were ruled out of order by Hobbs and the plaintiff was not allowed to continue speaking on the topic.

At the beginning of council meetings in Chiloquin, a disclaimer is read saying officials will rule out of order comments of a discrediting nature, as well as personal attacks on officials and city personnel.

A response to Twamleys allegations was not filed in court by Chiloquin. A representative of City Hall could not be reached Monday for comment due to the federal holiday.

Twamley has been an outspoken critic of Chiloquin along with his wife, former Mayor Patricia Twamley, and Dennis Jefcoat, who acted as Patricia Twamleys adviser. In addition to letters to the editor printed in the Herald and News, the three each filed lawsuits against Chiloquin, though Patricia Twamleys suit was settled in the citys favor in 2014 and Jefcoats suit was dismissed for lack of evidence in 2016.

When asked Monday if he will continue to voice criticisms of the city, Richard Twamley said he would need to consult his attorney before responding to the question.

See the article here:
Chiloquin settles First Amendment lawsuit | News | heraldandnews ... - Herald and News

Monday on his nationally syndicated radio show, conservative talker Rush Limbaugh said the reaction of the media to President Donald Trumps tweet labeling them an enemy of the American people was because some journalists believe the First Amendment gives them immunity from criticism.

I want to thank F. Chuck Todd of NBC for opening my eyes to this. For the longest time Ive been genuinely curious why it is that media people think that they cannot be criticized.

And they really do. They really think they can go out and research people and they can dig up dirt from anybody they want, their pasts, and they can broadcast it all over. And if somebodys life, somebodys marriage, somebodys relationship, somebodys kid gets destroyed or ruined, fine and dandy.

They can do all of that they want, but you turn it around and you start investigating your favorite journalist to find out how many illegitimate kids he or she might have had in college or how many DUIs they had, you know, or how many communist sympathizer meetings they went to, then all hell breaks loose and they start squealing like stuck pigs, You cant do that! Were journalists!

I said, Where does this come from? Its more than just hubris. I finally found out. You know what it is, Mr. Snerdley? These clowns actually believe that since they are recognized in the First Amendment that they have constitutional immunity.

Criticizing them is attacking the First Amendment. They really believe this. Criticizing them is akin to attacking the Constitution, and thats un-American, and thats why you hear these journalists say. Its un-American to criticize. Its un-American for Trump to be destabilizing. Its un-American for Trump to be going out there and trying to do damage to the media. Weve got First Amendment protection.

Well, so does the president, and the president happens to be mentioned in the Constitution before the media. The presidents mentioned in Article 2. The media doesnt make it til the First Amendment. But yet the media thinks theres nothing bad about running around and trying to attack political figures and destroying them.

This is what it is, folks. They are so far gone, they really think that they are the last line of defense between freedom and democracy and tyranny. And attacking them and challenging their reputation is no more and no less than attacking the Constitution and trying to destroy America and democracy. Thats what they think. That explains why you cant go after them.

Anyhow, lets take another brief break here.

BREAK TRANSCRIPT

Look, the only thing the First Amendment does for the press is the same thing it gives everybody else. They can say what they want to say. Thats essentially what the First Amendment says for the press like it says it for you and me. It singles them out and references them in terms of their importance, a free and unintimidated, whatever, unattached media. And nobody objects to that, but it does not grant them immunity from criticism. It does not grant them freedom to be disagreed with. It does not grant them freedom from opposition.

They seem to think that it does. And I think it all falls under the notion of how really poorly constitutional education, American history educations been for decades in this country. Not to mention the kind of poison thats injected into the young skulls full of mush populating journalism schools all over the United States. But really, folks, its the one thing that, as far as the medias concerned, justifies what theyre doing.

Now, as I say, you wont even get them to admit what theyre doing. You wont even get them to admit theyre trying to destroy Trump. They come up with some, No, no, no, no. It is the job of the media to hold powerful people accountable. Yeah. Right. Why doesnt that apply to powerful Democrats? And dont tell me that it does, because everybody knows you give em a pass. Each and every time something comes up with em, you cover for em. Its a joke.

(h/t Mediaite)

Follow Pam Key on Twitter @pamkeyNEN

See the rest here:
Limbaugh: The First Amendment Doesn't Give the Press 'Immunity ... - Breitbart News

Please enable Javascript to watch.

Rush Limbaugh said on his radio show today that the press reaction to President Trumps attacks on the media is giving him the impression that journalists believe they have immunity from criticism.

Limbaugh, who said on Fox News Sunday yesterday that the media wont be able to destroy Trump, picked up in particular on Chuck Todds reaction to Trumps media-bashing:

Limbaugh said that this gives the appearance of journalists thinking they can do whatever they want to public figures but also that since they are recognized in the First Amendment they have constitutional immunity.

The First Amendment, he argued, does not grant them immunity from criticism. It does not grant them freedom to be disagreed with. It does not grant them freedom from opposition.

And if this is all about holding powerful people accountable, Limbaugh added, how come there isnt this kind of brave declaration when it comes to powerful Democrats.

Listen above, via The Rush Limbaugh Show.

[image via screengrab]

Follow Josh Feldman on Twitter: @feldmaniac

Have a tip we should know? tips@mediaite.com

Here is the original post:
Limbaugh: The First Amendment Doesn't Give the Press 'Immunity from Criticism' - Mediaite

In many ways, free speech is the right that protects all others, reinforcing every freedom that we hold dear and that so many have fought and died for.

This Presidents' Day, we should reflect on the reasons our Founding Fathers enshrined this right in our First Amendment. And we must acknowledge that this fundamental right is under attackeven for those who have fought to protect it.

Brandon Coleman, a Marine Corps veteran, began working as a therapist at the VA hospital in Phoenix to provide care for his brothers and sisters in arms. When he found that veterans there were dying due to negligence, he spoke upand for that, he was punished. When he told management what was going on, they told him thats how people get fired. They even tried to use his own personal medical records against him, and issued a gag order to silence him.

Colemans VA experience reminds of President Abraham Lincoln, who famously said that we as a nation will never be destroyed from the outside. "If destruction be our lot, we must ourselves be its author and finisher, he said if the United States loses its freedoms, it will be because we destroyed ourselves.

Veterans like Brandon fought to defend us against external threats, but more and more are realizing that the biggest threat to our freedom is a government that is quick to limit our inalienable rights. The oath servicemen and women take to support and defend our Constitution doesnt end when we hang up our uniforms and return to civilian life.

Brandons case is one of many instances in which the very same government thats supposed to be protecting the right to free speech has tried to suppress it. Its not just happening at the VAlook at the way the government has intimidated religious groups by leaking donor lists, or the scandal at the Internal Revenue Service (IRS), in which the agency targeted certain groups because of their views on public policy.

Time and again, the government has silenced those it disagrees with by using citizens private information against them. Which makes it all the more concerning that a growing number of states are now trying to get more information about Americans who exercise their First Amendment rights.

In South Carolina, legislation was recently filed in the state Senate that would force essentially every nonprofit organization that educates citizens about public policy to disclose to the government the names, addresses, and employers of supporters who donate more than a certain dollar amount. Similar efforts have surfaced in both Nebraska and South Dakota. Touted under the banner of transparency, these so-called disclosure laws are nothing more than thinly-veiled attacks on free speech.

Throughout our history, the First Amendment has allowed citizens to challenge the government and powerful groups in all sectors, rooting out fraud and corruption. It has allowed marginalized groups to speak out against injustice, spurring progress toward equality. It has allowed millions of Americans to contribute to a marketplace of ideas, fostering a free society, a thriving culture and the largest economy in the world.

All too often today, our free speech right that was designed to hold the government accountable is being used by the government to harass, intimidate, and silence the very citizens the right is meant to protect.

With a new administration and a new Congress, there may now be a real opportunity to scale back and prevent further threats facing our First Amendment rights. But during these turbulent political times, we cant take that for granted.

Abolition, the womens movement, civil rights the inalienable right to free speech is what gave the foot soldiers in all of these movements the ability to speak up for themselves. Now that free speech is under attack, will we speak up for it?

Mark Lucas is the executive director of Concerned Veterans for America.

The views expressed by this author are their own and are not the views of The Hill.

See the original post here:
This Presidents' Day, defend the First Amendment - The Hill (blog)

The rights of Milo Yiannopoulos were violated. Angry about his politics and uncomfortable with his trolling, violent protestors kept him from delivering scheduled remarks in a public venue. His right to free speech was categorically infringed.

But that was more than three weeks ago at UC Berkley and it bears zero resemblance to the current controversy surrounding Milo's CPAC speech. In reality, there's little threat to his First Amendment rights.

For those unfamiliar with the obnoxious populist provocateur, Milo has made a career of exposing liberal double standards. The operating procedure of the Breitbart writer is pretty simple. He mocks the pieties held by many on the Left, trashing in particular the special treatment afforded to individual groups.

And Milo puts on a good show. Normally his antics are more entertaining than his arguments are incisive. But he's always aggravating on purpose. That's gotten him kicked off of Twitter and college campuses, all the while catapulting his career.

But his comments about pedophilia are beyond reprehensible. In a recently surfaced January 2016 video, Milo speaks fondly and even defends "relationships between younger boys and older men." Later he makes light of the sexual abuse that rocked the Catholic Church, quipping that he's "grateful for Father Michael" and adds that he "wouldn't give nearly such good head if it wasn't for him."

Is all of this terribly offensive? Absolutely. Is it protected speech under the First Amendment? Yes. Does that mean that CPAC will violate Milo's rights if they cancel his speech? Not at all.

As a private organization, CPAC can give a venue to whomever they please. Whether they cut or keep Milo in the speaking line-up for this week's conference in Washington, D.C., is completely up to them. Whether he speaks or is silenced, his rights won't be violated.

There's only one way the Berkley episode can be replayed this Friday. If a violent mob rips him from the stage or the government bars him from speaking. Clearly, there's little chance of that happening.

Philip Wegmann is a commentary writer for the Washington Examiner.

Also from the Washington Examiner

Yiannopoulos' book deal was worth a reported $250,000 and was expected to be released in June.

02/20/17 5:45 PM

Top Story

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See the rest here:
No, Milo Yiannopoulos' 1st Amendment rights aren't at risk - Washington Examiner

Despite calls for expulsion or suspension, Oklahoma State University cant legally punish the students who posted offensive words and images on social media at the beginning of the semester, according to OSU officials.

African-American students and others who are outraged by (the incident) have every right to be outraged by this, but if youve turned the focus on punishing the speech, you dont solve the problems of the racism, said Joey Senat, who specializes in media and First Amendment law.

When you say that person should be expelled because I didnt like that persons speech, they dont understand the larger issues and what the First Amendment actually is intended to mean, he said.

On Martin Luther King Jr. Day, a photo including four OSU students, two of whom were wearing a dark substance resembling blackface, wasposted on Instagram and caused uproar on social media.

About a week later another OSU studentposted a photo on Snapchat of herself wearing a mud mask with the caption, When he says he only likes black girls. The photo sparkedprotests on campus and led to a meeting between OSU President Burns Hargis and African-American Student Association members.

In both instances, Hargis issued a statementsupporting student protest anddiscouraging intolerance and discrimination at OSU.

But for some, the statements and apologies arent enough.In a recent Letter to the Editor, an individual called for the students involved to be expelled or, at least, suspended.

However, there is no justification for censoring the students speech because it did not present a true threat, Senat said. Its counterproductive, he said, to suggest students be disciplined by suspension or expulsion.

You cant stop these people from thinking what they think, he said. You can only drive them underground, but that doesnt get to the root problem of the racism. It doesnt get to the societal issues of racism. It doesnt allow for solutions and progress.

Students shouldnt rely on the university, a taxpayer-funded entity, to solve their problems, Senat said. Instead, he suggests offering counter speech to racism.

Students should be out there protesting, Senat said. Confront those ideas. Thats how you go about trying to change someones mind and show them the error of their ways. They should be out there making it known this is not acceptable in their community, but thats a far cry from government being involved.

Senat said students and others who want these individuals disciplined need to keep in mind that next time it could be their speech someone wants punished or censored because it was offensive.

We cant expect government to step in and punish everyone because were offended or we justifiably disagree with someone elses speech, Senat said.

Lee Bird, vice president for student affairs, said the university is working to provide educational opportunities for students and has started a dialogue with the students responsible for the social media posts.

Theres a legal, right way to approach (the incidents), Bird said. The institution just cant say, Well, you cant do a blackface again, or, You cant do this.

Bird, who co-wrote a handbook for universities regarding the First Amendment, said restricting what students can say on campus through speech codes violates the First Amendment. A speech code is a regulation that prohibits expression normally protected under the First Amendment, according to FIRE, a nonprofit organization concerned with free speech on university campuses.

People think, Lets just write a code and prohibit it, Bird said. Well, thats not how the First Amendment works.

Bird said she, along with other university officials, has spent several hours meeting with the students involved, encouraging them to educate themselves and looking ahead at how the institution can proceed.

The students involved were ignorant, she said, which is the bigger issue.

What we learned from this case is we have a lot of students that are completely uninformed, ignorant about many race issues, Bird said. I think we need to help encourage students to educate themselves and where the institution may have to realign diversity classes or those requirements to help make sure that our students really do understand more about diversity.

Laura Arata, an OSU professor who specializes in the history of race, said the recent incidents are reflective of what she sees in the classroom.

Each semester, Arata said she asks her Survey of American History students whether racism is still a problem today.

Responses always range from No, it's definitely not, to Yes, absolutely it is," Arata said in an email to the OColly. To me, this is the clearest indication possible that there are some very important, very complicated, very deep conversations most of us need to have, even if it makes us uncomfortable.

Arata advocates having conversations that go beyond defining right and wrong. She said this is an opportunity to talk about why the actions are hurtful.

We are a diverse country and, of course, we're going to experience different things in all kinds of different ways, but that doesn't mean we don't need to acknowledge them and consider different viewpoints, she said.

Bird said she acknowledges knowing the university cant legally take action might not be comforting for victims. She believes OSU students need to understand the effects their actions can have and should be more thoughtful of those in their community, she said.

People need to understand that all these behaviors have an impact on our community, affect institutional reputation, make it harder to recruit, and I think the Cowboy nation is better than that, she said. I would hope that students would not be bystanders to hate, but they would be personally involved. If it was (an) international student, a Muslim student, an African-American student, an LGBT student, it doesnt matter hate is hate.

When you see something, say something, deal with it, speak to it.

news@ocolly.com

Read more:
Racially insensitive posts protected under First Amendment - Daily O'Collegian

Just wow.

This exchange on live TV is really something.

On Fox News Sunday, host Chris Wallace went after Reince Priebus, who is Donald Trump's Chief of Staff in the White House, regarding Trump's comments about the news media being the "enemy of the people."

And you know how it is when you're The Donald and you've lost Fox News, well, you're probably losing everybody.

Related: John McCain Calls Trump A Dictator

Watch this particular exchange, where Wallace completely calls out Trump and Priebus over the anti-freedom of the press comments (below):

WOW!

Again, that's a Fox News host not afraid to call out The Donald's awful and destructive statements!!!

Video: Trump's Ridiculous Press Conference Goes To Late Night!

The entire interview is a thing of beauty, too and Priebus gets his ass handed to him repeatedly by Wallace, who doesn't back down for a second.

Watch the full thing (below):

Brutal for Priebus. Brutal for Trump. Sad!

But great for America and we need Fox News to keep calling out The Donald just like the rest of the media has been for the last two years!!!

Related: Trump Made Chris Christie Order Meatloaf While Dining In The White House!

What do U think about these clips, Perezcious readers??

Let us know in the comments (below)!!!

[Image via Fox News.]

Tags: celebrity feuds, chris wallace, controversy, crazzzzy, donald trump, fox news, fox news sunday, politik, reince priebus, scary!, tacky and true, tv news, viral: news, wacky, white house

Read more:
Holy Shit Even Fox News Is Calling Out Donald Trump's Anti-First Amendment Comments - PerezHilton.com

Last summer, a Florida federal court reachedsome unusual conclusionsin a lawsuit filed by SEO company e-ventures, which felt Google had overstepped its bounds in delisting a lot of its links. Google defended itself, citing both Section 230 and the First Amendment. The court disagreed with both arguments.

As to Section 230, the court found that Googles delisting efforts werent in good faith. The reason cited was e-ventures claim that the delisting was in bad faith. So much for this seldom-used aspect of Section 230: the Good Samaritan clause which states no third-party company can be found liable for actions it takes to remove content it finds questionable. And so much for viewed in the light most favorable to the non-moving party. Apparently, Googles long history of spam-fighting efforts is nothing compared to an SEO wranglers pained assertions.

The court also said Google had no First Amendment right to handle its search rankings however it saw fit, which is more than a little problematic. While it admitted Googles search rankings were protected speech, its statements about how it handled search engines werent. And, for some reason, the court felt that Googles ads undermined its First Amendment protections because its desire to turn a profit somehow nullified its editorial judgment.

It was a strange decision and one that suggested this court might be considering getting into the business of telling service providers how to run their businesses. It also suggested this court believed the more successful the business was, the fewer rights and protections it had. These dubious conclusions prevented Google from having the case dismissed.

Fortunately, this wasnt the final decision. As Eric Goldman points out, last years denial only delayed the inevitable. After a few more rounds of arguments and legal paperwork, Google has prevailed. But theres not much to celebrate in this decision as the court has (again) decided toroute around Googles Section 230 Good Samaritan defense.

Regarding 230(c)(2), the court says spam can qualify as harassing or objectionable content (cite toe360insightwith a but-see to theSong Ficase). Still, the court says e-ventures brought forward enough circumstantial evidence about Googles motivations to send the case to a trial. By making it so Google cant even win on summary judgment, rulings like this just reinforce how Section 230(c)(2) is a useless safe harbor.

Had it ended there, Google would be still be facing e-ventures claims. But it didnt. The court takes another look at Googles First Amendment claims and finds that the search engine provider does actually have the right to remove spammy links. Beyond that, it finds Google even has the First Amendment right to remove competitors content. From theorder[PDF]:

[T]he First Amendment protects as speech the results produced by an Internet search engine. Zhang v. Baidu.com, Inc., 10 F. Supp. 3d 433, 435 (S.D.N.Y. 2014). A search engine is akin to a publisher, whose judgments about what to publish and what not to publish are absolutely protected by the First Amendment. See Miami Herald Publg Co. v. Tornillo, 418 U.S. 241, 258 (1974) (The choice of material to go into a newspaper . . .whether fair or unfairconstitute[s] the exercise of editorial control and judgment that the First Amendment protects.) The presumption that editorial judgments, no matter the motive, are protected expression is too high a bar for e-ventures to overcome.

And the court walks back its earlier conclusion the one that seemed to find profit-motivated editorial judgment to be unworthy of First Amendment protections.

Googles actions in formulating rankings for its search engine and in determining whether certain websites are contrary to Googles guidelines and thereby subject to removal are the same as decisions by a newspaper editor regarding which content to publish, which article belongs on the front page, and which article is unworthy of publication. The First Amendment protects these decisions, whether they are fair or unfair, or motivated by profit or altruism.

The case is now dismissed with prejudice which bars e-ventures from complaining about Googles delisting efforts in federal court. e-ventures has gone this far already in hopes of seeing its terms-violating content reinstated, so it will likely attempt to appeal this decision. But it really shouldnt. Its unlikely another set of judges will help it clear the First Amendment hurdle. Not only that, but this area of law should be well-settled by now, as Goldman points out:

Of course Google can de-index sites it thinks are spam. Its hard to believe were still litigating that issue in 2017; these issues were explored in suits likeSearchKingandKinderStartfrom over a decade ago.

The plaintiff was given a long leash by the court, which should have tossed last year. Even with the extra time and the court doings its Section 230 circumvention work for it, e-ventures still couldnt prevail.

Court Says Google Has A First Amendment Right To Delist Competitors Spammy Content

Dangerous: Judge Says It Was Objectively Unreasonable For Cox To Claim DMCA Safe Harbors Trump Tops Obama, Hands Over Full Torture Report To Court Previous Administration Refused To Apple Wants To Stop You Fixing Your iPhone And iPad: Source Says It Will Testify Against Right To Repair Legislation

See the article here:
Court Says Google Has A First Amendment Right To Delist Competitor's 'Spammy' Content - Above the Law

Yesterday, the 11th Circuit issued its en banc opinions in Wollschlaeger v. Gov. of the State of Florida, AKAthe Docs v. Glocks case. As previously discussed here, here, and here, the case concerns whether Florida can prohibit doctors from asking their patients about their gun ownership or possession unless the question is directly relevant to a patients care. The issue is controversial because many doctors, especially pediatricians, often routinely ask patients (or their parents) questions about potential hazards in the home, be it swimming pools, poisons, or guns.

The primary legal issue before the 11th Circuit was whether the Florida law restricted speech based on its content and the speaker, and if so, what level of scrutiny should be applied to determine if the restriction is unconstitutional. Last year, PLF filed an amicus brief in the case arguing that all content-based speech restrictions should receive strict scrutiny, regardless of whether the speech is made in a professional setting. The second issue in the case (which PLF does not take a position on) concerned the anti-discrimination provision of the law. The Court upheld that provision narrowly: a move that even the doctors were amenable to,as indicated during oral argument.

In the first of its majority opinions*, the Court easily determined that the challenged law restricted speech based on its content and speaker. Next, the Court declined to apply deferential review under the professional speech doctrine. As discussed at length in PLFs brief, the professional speech doctrine is unprincipled and unsupported by a majority of the Supreme Court, so the 11th Circuits rejection of that standard in this case is most welcome. Finally, applying the U.S. Supreme Courts 2011 decision inSorrell v. IMS Health,the Court held that the law could not survive heightened scrutiny, so it declined to decide whether strict scrutiny was warranted. In short, the Court thoroughly dismantled the States justifications for the speech-restricting provisions, generally holding that the State offered insufficient actual evidence to justify restricting the speech of doctors.

There are also some additional things worth mentioning from the two concurring opinions. The first concurrence, written by Judge Wilson, would have applied strict scrutiny to strike down the speech-restricting portions of the law. This is particularly noteworthy because Judge Wilson was on the original panel that wrote three separate opinions before the case was taken en banc. Judge Wilson penned dissents to all three of those opinions, but with his concurrence yesterday he announced for the first time his conclusion that strict scrutiny is appropriate in light of the Supreme Courts 2015 decision in Reed v. Town of Gilbert.Second, the concurrence written by Judge William Pryor and joined by Judge Hull, reiterates that this case does not create a clash between the First and Second Amendments. While Docs v. Glocks is certainly catchy, it never accurately described the legal and constitutional issues presented in the case.

Even though the 11th Circuit did not go on to apply strict scrutiny to content- and speaker-based speech restrictions in a professional context, this case is certainly a strong win for the vindication of the right to free speech protected under the First Amendment. Doctors and speech advocates should certainly celebrate that.

*With an unusual move, the Court issued two majority opinions. I consider the opinion of Judge Jordan to be the primary opinion, though, and in any event Judge Jordans opinion is the one that announces the bulk of the Courts opinion on the First Amendment questions of interest to PLF.

Original post:
Major First Amendment victory in Docs v. Glocks case - Pacific Legal Foundation (PLF) (press release) (blog)