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Category Archives: First Amendment

Letter: Peculiar First Amendment interpretation – MetroWest Daily News

Posted: August 20, 2017 at 5:55 pm

According to Joseph Rizoli the First Amendment rights of free speech and assembly only extend to those with government-issued permits to exercise those rights (The real haters at Charlottesville, Aug. 15). Thus, the counter-protesters to the supposed non-haters had no right to assemble, no right to speak freely, only to stay home and shut up. Anything else is hate, according to Mr. Rizoli.

Of course, theres no excuse for either side throwing bricks or anything else at the other side, except perhaps insults, even without a permit. You, know, its the free speech thing. I notice, however, that Mr. Rizoli did not mention driving a car into the counter-protesting haters, apparently because having a permit to exercise ones First Amendment rights also allows attacking those without a permit with a 3,000-pound, deadly weapon.

The MetroWest News frequently publishes the First Amendment on the editorial page. Mr. Rizoli should read it, contemplate it, and try to understand it.

K. A. Boriskin

Bellingham

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Police must act fast to protect First Amendment rights: Robert Shibley – USA TODAY

Posted: August 18, 2017 at 4:55 am

Robert Shibley, Opinion contributor Published 10:22 a.m. ET Aug. 17, 2017 | Updated 10:24 a.m. ET Aug. 17, 2017

In Charlottesville, Va., on Aug. 13, 2017.(Photo: Tasos Katopodis, epa)

Americans were shocked by the naked political violence we saw this weekend in Charlottesville, Va. Commenters on the left and the right immediately blamed the usual suspects. The right blamed identity politics. The left blamed entrenched racism. But an obvious cause of injury and death is once again being overlooked: the fact that the violence was allowed to get underway at all.

State, local, and even college campus leadership appear to be telling police to stand by while some degree of unlawful violence takes place right before their eyes. Yet when that violence predictably spirals out of control, the authorities profess their inability to have done anything to stop it. Meanwhile, those inclined to violence are emboldened, secure in the knowledge that the publicity payoff is high and the odds of punishment low.

More: Three homeland security lessons from Charlottesville: Michael Chertoff

More: Trump Tower presser proved our president is far worse than a racist

This must stop. Freedom of expression is what gives us the ability to hash out societal issues through argument instead of physical conflict, but it is only meaningful when people are reasonably confident that they will be physically safe while they speak and listen. When the authorities simply stand by and let political violence occur, even in the hope of the conflict somehow de-escalating itself, they send the message that both sides have a free hand to violently attack their opponents. This makes a mockery of the First Amendment rights to free speech and assembly.

After the riot that successfully prevented Milo Yiannopoulos from speaking at the University of California, Berkeley, in February, many reported on the conspicuous lack of police involvement despite the injuriesand destruction. I personally spoke to a woman who had come to see the speech. Having been pepper-sprayed and nearly blinded by a violent protester, she told me she crawled over three layers of crowd barriers to reach a building with dozens of police inside. Yet when she reached the door, the police refused her entry.

Likewise, CNN reported that in Charlottesville, both sides agree that one group didn't do enough to prevent the violence as the crowds grew and tensions flared: the police. The organizer of the Unite the Right rally complained that police purposefully created the catastrophe that led to a melee in the streets of Charlottesville, while a Black Lives Matter leader attending the counter-protest remarked, It's almost as if they wanted us to fight each other.

More: Trump champion: Bury Confederate romanticism. It's indefensible and bad for GOP.

POLICING THE USA: A look atrace, justice, media

Its hard to think of a more thankless task than riot policing. But when authorities fail at the basic task of preventing mob violence, both political and policy questions need to be asked. When the Huffington Post reports that Several times, a group of assault-rifle-toting militia members from New York State played a more active role in breaking up fights than the police, law enforcements response needs serious rethinking.

There is one group of people who have so far consistently benefitted when political violence has been allowed to take place: the politicians who lead our localities and the de facto politicians who run our campuses. They avoid the political fallout from images of police confronting violent protesters (who may also be their supporters), they get to blame whichever side they like less for causing the violence, and get to pretend to fulfill their responsibility to keep people safe by making it harder for controversial viewpoints to be expressed.

Ann Coulter had to cancel a speech at Berkeley after the school insisted it would not be safe for her to speak on campus. Virginia Governor Terry McAuliffe blamed the ACLU of Virginia and a federal judge for blocking the citys attempt to revoke the rallys permit, saying We've got to look at these permits. This week, Texas A&M and the University of Florida announced that safety concerns prevented them from hosting speeches by Richard Spencer that are several weeks away. In contrast, in the 1960s American Nazi Party founder George Lincoln Rockwell was able to speak at UCLA, Michigan State, Brown, and other colleges, before audiences containing people who might have fought or lost loved ones to actual German Nazis. How can it be that hosting a similar speaker is impossible now?

Trading our free speech rights for the opportunity to be victimized by political violence is tremendously foolish, as is turning the blame for it on our civil liberties or those who defend them. Benjamin Franklin famously told a curious Philadelphian that Americas founders had given us a republic, if you can keep it. This is exactly what he was talking about.

Robert Shibley, an attorney, is executive director of the Foundation for Individual Rights in Education (FIRE).

You can read diverse opinions from ourBoard of Contributorsand other writers on theOpinion front page, on Twitter@USATOpinionand in our dailyOpinion newsletter. To respond to a column, submit a comment toletters@usatoday.com.

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Podcast: Trump, Twitter and the First Amendment – Constitution Daily (blog)

Posted: at 4:55 am

Can President Trump block citizens from following his own Twitter feed? Hear about the First Amendment aspects of this pending legal case.

The Knight First Amendment Institute at Columbia University has filed suit on behalf of several Twitter users who were denied the ability to follow the Presidents Twitter feed after they made comments critical of him. The Institute claims that the ban is a violation of a First Amendment right to free speech and free assembly, and that a public officials social media page is a designated public forum.

The Justice Department, defending President Trump, says the courts are powerless to tell President Trump how he can manage his private Twitter handle and the Institutes requests would send the First Amendment deep into uncharted waters.

Joining our We The People podcast to discuss these arguments are Alex Abdo, a senior staff attorney at the Knight First Amendment Institute and Eugene Volokh, the Gary T. Schwartz Professor of Law at UCLA School of Law.

CREDITS

Todays show was engineered by Jason Gregory and produced by Ugonna Ezeand Lana Ulrich. Research was provided by Lana and Tom Donnelly.

Continue todays conversation on Facebook and Twitter using @ConstitutionCtr.

Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly.

Please subscribe toWe the Peopleand our companion podcast,Live at Americas Town Hall, on iTunes, Stitcher, or your favorite podcast app.

We the Peopleis a member of SlatesPanoply network. Check out the full roster of podcasts at Panoply.fm.

And finally, despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visitconstitutioncenter.orgto learn more.

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Podcast: Trump, Twitter and the First Amendment - Constitution Daily (blog)

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How groups use ‘First Amendment’ permits for protests at National Parks – ABC10

Posted: at 4:55 am

Alexa Renee, KXTV 3:14 PM. PDT August 17, 2017

7. Sequoia and Kings Canyon National Park (Photo: TripAdvisor)

A right wing group has been granted legal permission through the National Parks Service to protest at Crissy Field in San Francisco.

The group, Patriot Prayer, obtained a "First Amendment" permit to be at the site Saturday, Aug. 26 from 2 p.m. to 5 p.m., according to KGO.

So what is a "First Amendment" permit?

Under federal law policy, the National Park Service (NPS) recognizes freedom of speech, press, religion, and public assembly, according to their website.

However, the agency also has an interest in protecting park resources and the public's use of parks, and is given the right to regulate events held on national parks. The NPS requires a permit establishing a date, time, location, number of participants and other details related to a First Amendment event.

The content of First Amendment activities doesn't need to reflect the NPS mission or views to be reviewed for a permit.

Each national park has its own set of details and rules for a permit but in general, a group of more than 25 people are required to apply for a permit to hold a First Amendment event.

Crissy Field is apark unit of the Golden Gate National Recreation Area. A First Amendment permit is required for use of the area if a group will have more than 25 people, is utilizing special equipment such as generators and tents, if the organizers would like priority use of the area and if the group is requesting an area not otherwise open to the public, according to the NPS.

While a First Amendment permit is free to apply for at Golden Gate Park, large groups require a Special Events permit application fee of $45 and a certificate of liability insurance for $1,000,000.

Permit costs are separate from application costs and can range from free to $40,000, according to the NPS.

Ten business days is the minimum amount of time required to review most permit applications but larger events may take more time.

Some sensitive areas could be restricted and at least one park ranger needs to be present during an event as well as when loading and unloading.

For more details about First Amendment permits at national parks go to http://www.nps.gov.

2017 KXTV-TV

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Last weekend’s violent protests prompt First Amendment conversation – WBKO

Posted: at 4:54 am

BOWLING GREEN, Ky. (WBKO) -- Free speech always poses many questions.

Last weekend's violent protests have prompted an important conversation on free speech and peaceful assembly. Several history professors and the community are weighing in on the First Amendment.

"Congress shall make no law...abridging freedom of speech," says the United States Constitution.

"There are several limitations on free speech," explains Dr. Patti Minter, History professor at Western Kentucky University.

Freedom of speech is not protected under certain circumstances.

"You can't shout fire in a theater. And so that kind of idea and incitement to violence is not protected," says Tony Harkins, Associate history professor at Western Kentucky University.

The United States Courts state that right does not include, "the right to incite actions that would harm others."

The First Amendment also reads, "(Congress shall make no law abridging)...the right of the people peaceably to assemble."

"A group of neo-nazis and white supremacists can get a permit to march... to march peacefully," explains Dr. Minter.

Peacefully being the keyword here. However, footage from last weekend in Charlottesville indicates the peace was lost.

"A group came to terrorize, got a permit claiming that they were going to have a peaceful assembly, and they did not," says Dr. Minter.

Some may think that the First Amendment is protected on social media platforms.

"Well social media is very much a double edge sword," says Harkins.

The truth is our rights are not applicable here. Private organizations like Twitter or Facebook have the right to ban anyone or any group from their platforms based on their discretion

"Social media accelerates the view with which those views get shared," says Harkins.

Facebook CEO, Mark Zuckerberg, recently made a statement behind the company's decision to remove certain groups and comments, stating, "There is no place for hate in our community. That's why we've always taken down any post that promotes or celebrates hate crimes or acts of terrorism."

At the end of the day, the Bowling Green community says we need a little more of love and respect.

"The need for civility, for conversation, for understanding," says Harkins.

"While also being respectful," says Western freshman, Ania Lander.

The professors intend to use the current events in Charlottesville as a teaching lesson on the first amendment and also as it relates to history.

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Equality, Justice and the First Amendment – ACLU (blog)

Posted: at 4:54 am

For all people of good will regardless of party affiliation, race, creed, or color the events that took place thisweekend in Charlottesville were sickening and deeply disturbing.

Several clear themes emerged for me this weekend. And while they are pretty obvious, I thought I would share them with the broader ACLU community, in an effort to give voice to what many of us are feeling and to spark a further discussion that will allow us to move together with greater hope and resolve through what are likely to be troubling days ahead.

While the events of this weekend withwhite supremacists holding lit torches frightened and outraged many Americans, we can never underestimate the impact of these images on African-Americans. Thatrally reflected this nations history of slavery, racial violence, and terrorism, which has left an indelible mark on our democracy to this day. As employees, members, or supporters of an organization dedicated to racial justice, we are all affected. Many of us are even more directly affected because we and our family members are the direct targets of the white supremacists. I know that speech alone has consequences, hurtful and deep, and thats why I believe its important to place the ACLUs representation of white supremacist demonstrators in Virginia in the broader context of the values and principles that have guided this organization for nearly a century.

First, the ACLU unequivocally rejects the ideology of white supremacists and we work actively with all our might to oppose that ideology in diverse communities across the country and to defend the right of all Americans to speak out against those views. By budget allocation, the national ACLUs top issue areas are ending mass incarceration, protecting LGBT rights, and safeguarding immigrants rights, demonstrating our commitment to advancing equality and justice with communities that are often the targets of white supremacists' bigotry and hate.

The ACLU has represented or publicly supported Black Lives Matter activists in First Amendment matters at least five times in recent months. Our work against police agencies surveillance of activists has been frequently in support of the Black Lives Matter movement and American-Muslim organizations and individuals. Weve represented and taken public positions in support of anti-Trump protesters more than five times since the election and represented one of the Standing Rock protesters in a free speech case. The ACLU has also defended the free speech rights of African-American environmental activists in Alabama against a defamation lawsuit brought by the toxic waste-generating corporation they opposed. This is all in the past yearalone.

We are not newcomers to this work. Weve defended individuals targeted for their socialist, anarchist, and communist affiliations, for anti-war speech, and for civil rights activism throughout our history. We have repeatedly defended the free speech rights of day laborers against city ordinances grounded in anti-Latino racism that would have prohibited their expressing their availability for work. The ACLU was founded in 1920 when the attorney general of the United States carried out his Palmer raids to round up immigrants based on their subversive views. And we stood shoulder-to-shoulder with the emerging labor movement of the early 20thcentury. The First Amendment freedom of speech, freedom of association, freedom of the press, and freedom of religionhas always been foundational for our organization.

Second,and more directly related to the events of this weekend, there are important reasons for our long history of defending freedom of speech including speech we abhor. We fundamentally believe that our democracy will be better and stronger for engaging and hearing divergent views. Racism and bigotry will not be eradicated if we merely force them underground. Equality and justice will only be achieved if society looks such bigotry squarely in the eyes and renounces it. Not all speech is morally equivalent, but the airing of hateful speech allows people of good will to confront the implications of such speech and reject bigotry, discrimination and hate. This contestation of values can only happen if the exchange of ideas is out in the open.

Thereis another practical reason that we have defended the free speech rights of Nazis and the Ku Klux Klan. Today, as much as ever, the forces of white supremacy and the forces for equality and justice are locked in fierce battles, not only in Washington but in state houses and city councils around the country. Some government decision-makers are deeply opposed to the speech we support. We simply never want government to be in a position to favor or disfavor particular viewpoints. And the fact is,government officialsfrom the local to the nationalare more apt to suppress the speech of individuals or groups who disagree with government positions. Many of the landmark First Amendment cases, such as NAACP v. Claiborne Hardware and New York Times v. Sullivan, have been fought by African-American civil rights activists. Preventing the government from controlling speech is absolutely necessary to the promotion of equality.

Third, the First Amendment cannot be used as sword or shield to justify or rationalize violence. Violenceeven when accompanied by speech does not garner the protection of the First Amendment. It is also true that the airing of ideasno matter how repugnant or loathsomedoes not necessarily lead to violence. The violence of this weekend was not caused by our defense of the First Amendment. The ACLU of Virginia went to court to insist that the First Amendment be appliedneutrally and equally to all protesters. Reasonable members of our community might differ on whether we ought to have brought that case. But I believe that having divergent views within an organization dedicated to freedom of speech is a sign of strength not weakness. I also believe the ACLU of Virginia made the right call here. Some have argued that we should not be putting resources toward anything that could benefit the voices of white supremacy. But we cannot stand by silently as the government repudiates the principles we have fought for and won in the courts when it violates clearly established First Amendment rights.

Invoking the threat of violence cannot serve as the governments carte blanche to shut down protests. If that were the case, governments would almost always be able to shut down protests, even when the protesters themselves are peaceful, because others could exercise a hecklers veto through violence or the threat of violence. We must not give government officials a free pass to cite public safety as a reason to stifle protest. They have a responsibility to ensure the safety and security of all protestersand may make their case in court for reasonable time, place, or manner restrictions. That is what we sought in our lawsuit in Virginia.

Thehard job for us now is to find concrete strategies for healing the divides that were laid bare this weekend. For the broader society, this would require that white supremacy, bigotry, and racism be confronted and rejected. Freedom of speech has to be valued and heralded as the cornerstone of our democratic society. Political leaders must shape the political discourse to underscore what binds us together as people, rather than exploit our differences. And government officials must neutrally apply the First Amendment and ensure the safety of all Americans when they take to the streets to exercise their constitutionally protected rights.

For our organization, we must remain focused and vigorous in our defense of civil liberties and civil rights in every community and in every context. Our 97-year history of defending the constitutional rights of all persons even those we disagree withis imbued with a belief that these rights are indeed indivisible, unalienable, and granted to each of us in our democracy. Our job is to turn those promises and aspirations into a reality for all people. And that work has never been more important than now.

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Between the lines: Cops caught in the First Amendment war zone – Police News

Posted: at 4:54 am

Earlier this week, far-right groups announced intentions to organize a March on Google in response to that companys firing of an employee over a memo he wrote about the companys diversity policies. The cities the groups were targeting were Atlanta, Austin, Boston, Los Angeles, Mountain View, New York, Pittsburgh, Seattle and Washington, D.C.

Days later, citing credible alt-left terrorist threats, those right-wing groups called off their planned demonstrations. It is presently unclear whether or not those demonstrations will take place, or have indeed been called off.

What is plainly evident is that police in those cities and across America must gird for the worst. The law enforcement officers who are charged with protecting peoples First Amendment rights to free speech will be forced to hold the ground in the middle, caught between the lines formed by the warring factions of left-wing and right-wing protesters and counter-protesters.

Those cops are on the front lines of what may turn into violent conflict, whether they like it or not.

There are conflicting reports floating around the internet about whether or not political leadership in Virginia told law enforcement to stand down and allow the violence in Charlottesville to escalate to the point of murder, attempted murder and domestic terrorism.

Whether or not a stand down order was given, we must take stock of the fact that violent conflict between these groups was as predictable as the sunset. Anyone who was paying even the slightest attention to the 18 months that preceded the election of Donald Trump to the presidency could have predicted an escalation of violence.

During the campaign, we saw people shouting down the group they oppose. On both the left and the right we saw people throwing punches at each other rather than sitting down and trying to talk.

We saw protesters on both sides of the political spectrum show up at gatherings held by their perceived opposition, armed not just with grievances, but with clubs and bats and improvised shields. They came in fatigues, or dressed in all black clothing. They wore masks and bandanas over their faces. Fists flew and blood was shed on multiple occasions.

In many of those cases, these groups were separated by an emasculated force of peace officers who had neither the commands nor the capabilities to actually keep the peace. In many cases, those cops were ordered to not carry riot shields. They could not wear protective helmets. They could not carry OC spray. They were basically told, You cannot have the tools and tactics to keep these two sides apart.

This cannot be the plan going forward.

Gordon Graham, a retired California Highway Patrol Captain and risk management expert, has famously said for many years that nearly every bad outcome is predictable and that predictable is preventable.

It must be remembered that the First Amendment allows for peaceable assembly and that violence is not free speech. Mayhem and lawlessness must be stopped before it can start. This can only happen if police across the country are empowered to show up to these demonstrations in full riot gear, with well-defined marching orders to stop protests from devolving into madness.

Whether or not the announced (and then, apparently, cancelled) white nationalist demonstrations take place this weekend, we know that such events will inevitably happen in the coming weeks and months. Events will be organized by the other side too.

The politics of hate and intolerance has been worsening for too long.

Last weekend in Charlottesville ended in tragedy, and some pundits have said that we as a nation are as divided as we were during the tumultuous 1960s.

The question becomes, will political leaders have the fortitude to give the cops the authority to quell the violence in a tactically appropriate fashion?

Can police forces in the United States prevent future bloodshed? I hope so. But hope is not a strategy, and luck is not a tactic. So as a police leader, you need to lobby your elected officials to give you the permission to do whatever is necessary when your day comes.

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Theres no hate speech exception to the First Amendment – The …

Posted: August 16, 2017 at 5:53 pm

The First Amendment protects the speech we hate to hear.

Hard as it is to accept, the right to express vile and repugnant thought is guarded by the Constitution. Of course, theres no right to smash a car into others who have gathered to express alternative opinions. But its the job of elected officials and law enforcement to protect both the purveyors of ugly language and those who gather to protest it.

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Thats reality for Governor Charlie Baker and Mayor Marty Walsh. Bracing for a free speech rally that might take place Saturday on Boston Common, on Monday they held a joint press conference to send the message that while Boston, the cradle of liberty, recognizes free speech, they really hope the haters choose another time and place to exercise their rights.

They are right to be disgusted by the weekend rally in Charlottesville, Va., which was organized by white supremacists and neo-Nazis. They are right to denounce their gospel of bigotry and hatred and the domestic terrorism it spawned. James Alex Fields Jr. of Ohio, 20 years old, allegedly smashed his car into people who were protesting the nationalist rally, killing Heather Heyer, 32, and injuring at least 19 others. Thats criminal, and theres no First Amendment protection for that.

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But trying to ban a Boston gathering undermines an underlying precept of our democracy. A corporation like Google can set the parameters of permitted speech in its workspace. Organizers of the St. Patricks Day parade can legally exclude a gay veterans group. But government cant restrict speech just because it sickens or offends others.

I dont want them here, we dont need them here, theres no reason to be here, said Walsh, about a rally planned by a mystery group whose organizers say they have nothing to do with the organizers behind the Charlottesville rally. Freedom of speech isnt about racist remarks and division, the mayor added.

Unfortunately, the mayor has it backwards. Constitutional protection is not needed so much for someone saying, I like you, said lawyer Harvey Silverglate, a staunch defender of First Amendment rights. But it assuredly is needed to protect someone who says, I hate you.

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Just last June, the Supreme Court unanimously reaffirmed what it called a bedrock principle: Speech may not be banned on the ground that it expresses ideas that offend. In a case which upheld the right of a band called The Slants to trademark its racially offensive name, Justice Samuel Alito wrote, Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought that we hate.

When it comes to neo-Nazis, the right to promote their twisted thinking goes back to the 1977 case Nationalist Socialist Party of America v. Village of Skokie. Organizers who described their group as a Nazi organization wanted to march through the streets of Skokie, Ill., which was at the time a village where over half the residents were Jewish, some survivors of Nazi concentration camps. The residents of Skokie argued the march would incite or promote hatred against persons of Jewish faith or ancestry. In the end, the Supreme Court upheld the Nazis right to march with swastikas, on the grounds that promoting religious hatred is not a reason for suppressing speech.

We can and should speak up against hate. As the Supreme Court makes clear, theres no hate speech exception to the First Amendment. With that freedom comes a heavy burden for government officials like Baker and Walsh, who must try to keep protected speech from turning into acts of violence.

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First Amendment banned from DC Metro literally! – Washington Post

Posted: at 5:53 pm

In November 2015, the Washington Metropolitan Area Transportation Authority (WMATA), operator of the Washington public transit (bus and Metro) system, amendedguidelines regarding commercial advertisements that it would accept for Metro cars and Metro stations. The guidelines contain 14 numbered restrictions, including these four:

Ostensibly applying these guidelines, WMATA made some rather peculiar decisions, refusing, for example, to accept advertisements from:

And, rather astonishingly, WMATA rejected an ACLU ad consisting of nothing but the text of the First Amendment (in English, Spanish and Arabic) alongside the ACLU logo (Guideline 9: intended to influence the public regarding an issue on which there are varying opinions (!!))

[The rejected ads can all be seen here.]

The ACLU recently filed suit on behalf of itself, Yiannopoulos, Carafem and PETA in D.C. federal district court arguing that the WMATA policy is a violation of the First Amendment both on its face and as applied to the plaintiffs. [The complaint is posted here.]*

Note * Apparently, the ACLU has taken some heat from its supporters for including Yiannopoulos as a co-plaintiff. That is unfortunate; the ACLUs habit of taking the position that speech even speech we might regard as offensive, from people we might regard as offensive is worthy of protection may be maddening at times, but it is a highly principled one, and is itself worthy of support and protection.

The plaintiffs, surely, have a strong case. On what possible grounds can WMATA defend rejecting an advertisement consisting of the text of the First Amendment? Who decides whether any particular issue is one on which there are varying opinions, and on what basis is that decision made? Why should PETAs non-commercial message (Dont eat meat) be prohibited while Burger Kings commercial message (Eat more meat)is allowed?

WMATA will undoubtedly rely heavily on Lehman v. City of Shaker Heights (1974), a case in which the Supreme Court upheld (5 to 4) a ban on all political advertising in the Shaker Heights transit system. The court there rejected the notion that the rail and bus cars constitute a public forum protected by the First Amendment with a guarantee of nondiscriminatory access to such publicly owned and controlled areas of communication.

The streetcar audience is a captive audience. It is there as a matter of necessity, not of choice. Here, we have no open spaces, no meeting hall, park, street corner, or other public thoroughfare. Instead, the city is engaged in commerce. It must provide rapid, convenient, pleasant, and inexpensive service to the commuters of Shaker Heights. The car [advertising] space, although incidental to the provision of public transportation, is a part of the commercial venture. In much the same way that a newspaper or periodical, or even a radio or television station, need not accept every proffer of advertising from the general public, a city transit system has discretion to develop and make reasonable choices concerning the type of advertising that may be displayed in its vehicles.

The level of scrutiny such governmental action would receive would be low: the choices must simply be reasonable, and the policies and practices governing access to the transit systems advertising space must not be arbitrary, capricious, or invidious.

The ACLUs complaint argues that the guidelines constitute viewpoint discrimination of a kind that was not present in Lehmanallowing messages that reflect the AMAs (or the governments) views on health-related matters, or those that reflectcommercialpositions on industry goals, while rejecting advertisements reflecting other viewpoints requires the court to engage in a more exacting First Amendment analysis.

They may well succeed in that argument. Even if they dont, though, its hard to see a a court upholding WMATAs decision here even under the relaxed reasonableness standard. To my eye, these certainly do look like the kind of arbitrary, capricious, or invidious decisions that, even under a generous reading of Lehman,WMATA, as a state actor, has to steer clear of.

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There’s No ‘Nazi’ Exception to the First Amendment – National Review

Posted: at 5:53 pm

Piers Morgan is at it again:

Morgan is echoing an idea that has been advanced repeatedly in the last couple of days: To wit, that there is something particular about Nazism that makes it ineligible for protection under the Bill of Rights. This is flat-out wrong. And, more than that, its dangerous. Abhorrent and ugly as they invariably are, there simply is no exception to the First Amendment that exempts Nazis, white supremacists, KKK members, Soviet apologists, or anyone else who harbors disgraceful or illiberal views. As the courts have made abundantly clear, the rules are the same for ghastly little plonkers such as Richard Spencer as they are for William Shakespeare. If that werent true, the First Amendment would be pointless.

This is not a controversial statement. It is not an interesting view. It is not a contrarian contribution to an intractable grey area. It is a fact. There are a handful of limits to free speech in the United States, and all of them are exceptions of form rather than of viewpoint. Heres Eugene Volokh to explain that further:

To be sure, there are some kinds of speech that are unprotected by the First Amendment. But those narrow exceptions have nothing to do with hate speech in any conventionally used sense of the term. For instance, there is an exception for fighting words face-to-face personal insults addressed to a specific person, of the sort that are likely to start an immediate fight.

. . .

The same is true of the other narrow exceptions, such as for true threats of illegal conduct or incitement intended to and likely to produce imminent illegal conduct (i.e., illegal conduct in the next few hours or maybe days, as opposed to some illegal conduct some time in the future). Indeed, threatening to kill someone because hes black (or white), or intentionally inciting someone to a likely and immediate attack on someone because hes Muslim (or Christian or Jewish), can be made a crime. But this isnt because its hate speech; its because its illegal to make true threats and incite imminent crimes against anyone and for any reason, for instance because they are police officers or capitalists or just someone who is sleeping with the speakers ex-girlfriend.

Under the doctrine laid out by a unanimous Supreme Court in the seminal Brandenburg v. Ohio decision, incitement to imminent lawless action may in some circumstances be prosecuted. But this rule is universal and narrow, and, crucially, is in no way akin to the sort of hate speech exceptions that obtain in every other country, and that so many Americans seem to believe exist here too. Under U.S. law it is legal for a speaker to say broadly that all the Jews should be killed or that it is time for a revolution, or that slavery is good, and it is not legal for a speaker to say to a crowd, lets all go and kill that guy wearing the yarmulke, or meet me in an hour at the armory and well start our insurrection at the Post Office, or look at that black guy over there in the blue t-shirt, lets chain him to my car.Who is saying these things, however, does not matter in the slightest. Whether one likes it or not, Brandenburg applies as much to neo-Nazis as to the Amish, as consistently to Old Testament preachers as to gay rights activists, and as broadly to my mother as to David Duke. It applies in exactly the same way to good people, to bad people, and to those in between.

It is, in other words, a principle a principle that cannot be obviated by cynical word games or by thinly disguised special pleading. I believe in free speech, but or I just dont think this is a free speech issue both popular lines at the moment simply will not cut it as arguments. On the contrary. In reality, all that the but and the I just dont think mean is that the speaker hopes to exempt certain people because he doesnt like them. But one can no more get away from ones inconsistencies by saying its not a speech issue to me than one can get away from the charge that one is unreliable on due process insisting in certain cases, well, thats not a due process issue to me. This is a free speech issue. Those who wish it werent just trying to have it both ways to argue bluntly for censorship, and then to pretend that they arent.

Leaving aside that the Supreme Court has been extremely clear on this matter, time and time again (inter alia, see: Brandenburg v. Ohio, R.A.V. v. City of St. Paul, Matal v. Tam),it seems obvious as a philosophical matter that any robust free speech protections will have to be assiduously neutral if they are to be useful at all. The purpose of the First Amendment is to deprive the government of the capacity to determine at the point of a bayonet what is true, and what is not; what is good, and what is not; what is acceptable to the ruling class, and what is not. To accept this arrangement is not to suggest that one thinks the Nazis might have a point, or to imply that one believes that we need the Bill of Rights in case Richard Spencers race science turns out to be true. And, however rhetorically effective it might be to pretend otherwise,it is in no way to defend those people. Rather, it is to propose that the only effective way of preventing governmental abuses is to take away its oversight of viewpoints in toto. Moreover, it isto submit that, having been born with ahost of unalienable rights, free human beings are not obliged to ask their employees in the government for permission to speak their minds.

In a country such as this one, that means that disgusting reprobates such as those who marched in Charlottesville will be beyond the reach of the state at least until they go beyond speech and into the realm of action (which does not include carrying a torch or a flag or wearing a t-shirt, but certainly does include driving a car into another human being). Is that distressing? Yes, it is. Had I been in Charlottesville at the weekend,Id no doubt have been even more appalled than I was watching it on television.But the salient question is not whether the status quo can be upsetting, but whether it is better than the alternative. Piers Morgan believes that If America doesnt wake up to the fact that what these Nazis did in Charlottesville is not free speech . . . it is in deep trouble. It seems obvious to me that the precise opposite is true. No free speech for fascists is an incoherent, almost Orwellian, position.Happily andon a routinelybipartisan basis the Supreme Court concurs.

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There's No 'Nazi' Exception to the First Amendment - National Review

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