Category Archives: First Amendment

On October 11, the Supreme Court will hear a challenge to racially gerrymandered congressional maps in South Carolina that could tell us a lot about where the Court stands on voting rights.

The lower court in this case, known as Alexander v. South Carolina State Conference of the NAACP, determined that the states Republican legislature excluded Black voters from the states First Congressional District in order to shore up Republican control of that district.

The stakes in any congressional gerrymandering case are high because these cases can potentially impact who will control the US House of Representatives in the future. And the Courts ultimate decision in Alexander may be unusually significant.

For years, the Supreme Courts Republican majority had been almost unrelentingly hostile toward voting rights plaintiffs, and especially toward the Voting Rights Act a federal law that bans race discrimination in elections. But in a surprising move last June, the Court struck down an Alabama gerrymander, affirming a lower court decision holding that the state violated the Voting Rights Act when it drew congressional maps that diluted Black voting power within that state.

Notably, the Courts 5-4 decision in that case, known as Allen v. Milligan (2023), was written by Chief Justice John Roberts, and it rested upon a provision of the Voting Rights Act that Roberts unsuccessfully pushed President Ronald Reagan to veto when he was a young political appointee in the Justice Department.

So Milligan is potentially the first sign that the Courts hostility toward voting rights plaintiffs is diminishing. Now, with Alexander, the first major voting rights case the Court has taken up since, we could see how committed to that pivot the justices actually are.

Technically, the legal issue in Alexander is distinct from the one in Milligan. Milligan held that Alabama violated the Voting Rights Act when it drew its congressional maps, while the lower court in Alexander held that South Carolina violated the Constitutions safeguards against race discrimination, which function quite differently in racial gerrymandering cases.

But this Court rarely troubles itself with legal formalisms when it decides voting rights cases. Its decision in Shelby County v. Holder (2013), for example, declared a key provision on the Voting Rights Act unconstitutional based on something called the fundamental principle of equal sovereignty among the States that cannot be found anywhere in the text of the Constitution. The Courts decision in Brnovich v. DNC (2021) simply made up a bunch of new limits on the Voting Rights Act, such as a presumption that voting restrictions that were commonplace in 1982 are valid, which also have no basis in any legal text.

This is why the Milligan decision, which hewed to a 37-year-old precedent governing vote dilution cases, was so surprising. The Court took an unexpected turn toward following existing law.

Thus, the biggest question in Alexander is whether Milligans turn toward the rule of law in voting rights cases is merely a fluke or whether it reflects a broader shift in the Courts posture toward democracy.

In 2018, former Rep. Joe Cunningham, a Democrat, won a narrow victory in South Carolinas First Congressional District, a district that had been held by Republicans for many years. Although he lost his seat to Republican Nancy Mace in 2020, Cunningham still received over 49 percent of the vote in that election a result which suggested that the First District would remain competitive unless it was altered.

And so the states Republican legislature decided to alter it. As the lower court opinion striking down this districts new configuration explained, when the South Carolina House and Senate began considering congressional reapportionment in 2021, the Republican majorities in both bodies sought to create a stronger Republican tilt in this district. And the newly drawn district does appear to be more solidly Republican. Mace won her most recent election, in 2022, with nearly 57 percent of the vote.

Yet, while the GOPs goal was to shore up Republican control of the First District, the lower court determined that it did so through an illegal racial gerrymander. Specifically, the lower court found that South Carolinas mapmakers chopped up Charleston County, including many white voters from that county in the First District, while excluding nearly 80 percent of Charlestons Black population.

Because South Carolinas voters are racially polarized in 2020, 90 percent of Black voters in South Carolina voted for President Joe Biden, according to CNN exit polls Republicans could use race to identify which voters are likely to prefer Democratic candidates. According to the lower court, they then excluded many Black voters from the First District in order to keep them from electing a Democrat in that district.

This violates the Supreme Courts decision in Cooper v. Harris (2017), which held that the sorting of voters on the grounds of their race remains suspect even if race is meant to function as a proxy for other (including political) characteristics.

South Carolina does spend some of its brief suggesting bold new limits on constitutional challenges to racial gerrymanders at one point, for example, it implies that courts should be forbidden from ruling that a map is unconstitutionally gerrymandered unless the plaintiffs can produce direct evidence such as a legislators admission that the map was designed to target voters of a particular race.

As a whole, however, the states brief focuses less on calls for a new legal regime, and mostly on calls for the Supreme Court to second-guess the lower courts factual determination that the state sorted voters into districts because of their race. The gerrymandered map, they claim, was race-neutral because voters were moved out of the First District based on their political composition and traditional criteria, not their racial composition.

This argument should not carry much, if any, weight in an appellate court. As the Supreme Court also held in Cooper, appeals courts including the highest Court typically should defer to a lower courts factual determinations. The lower courts findings of fact most notably, as to whether racial considerations predominated in drawing district lines are subject to review only for clear error.

So, if the Supreme Court is inclined to follow existing law in the Alexander case, it will affirm the lower courts decision to strike down the gerrymandered maps. Absent clear evidence that the lower court botched its factual determinations, those determinations may not be disturbed on appeal.

Significantly, no one questions that South Carolina Republicans gerrymandered the First District to prevent Democrats from winning it again. Indeed, South Carolina repeatedly admits in its brief to the justices that the Republican-controlled General Assemblys goal was to create a stronger Republican tilt in District 1.

Under the Courts First Amendment decisions, which protect against attempts to discriminate against voters because of their partisan affiliation, this admission should be fatal to South Carolinas case. But the Court has never ruled explicitly that those protections apply to gerrymanders. And then there is the Courts decision in Rucho v. Common Cause (2019), which held that federal courts typically are powerless to do anything about partisan gerrymandering. So the states admission that it drew a partisan gerrymander most likely will not kill South Carolinas hopes.

To be clear, cases like Cooper establish that federal courts may sometimes intervene when states draw racial gerrymanders, meaning that voters were sorted because of their race. But cases challenging partisan gerrymanders maps that sort voters based on whether they are Democrats or Republicans will typically be dismissed by federal courts thanks to Rucho.

In Alexander, the lower court determined that South Carolinas First District is both a racial gerrymander and a partisan gerrymander. And, under Cooper, federal courts should still strike down an illegal racial gerrymander even if the map wasnt motivated by outright white supremacy, but merely by a partisan desire to use race to determine which voters are Democrats and diminish the power of those voters.

Nevertheless, South Carolinas primary legal strategy in Alexander is simply to deny that race played any role in its map-drawing decisions, and to present the First District as the product of a purely partisan gerrymandering process.

Notably, however, the Supreme Court has never held not in Rucho or in any other case that partisan gerrymandering is constitutional. To the contrary, the Court has consistently held that the First Amendment protects against viewpoint discrimination, which occurs when the government discriminates based on someones political views.

Though the full Court has never struck down a partisan gerrymander for engaging in viewpoint discrimination, at least five justices have, at various times, endorsed the view that such gerrymanders violate the First Amendment. As Justice Elena Kagan wrote in her Rucho dissent, the First Amendment gives its greatest protection to political beliefs, speech, and association, but partisan gerrymanders subject certain voters to disfavored treatment again, counting their votes for less precisely because of their voting history [and] their expression of political views.

So, by admitting that it drew the First District to give an advantage to Republicans and a disadvantage to Democrats, South Carolina confessed in a brief to the Supreme Court that it violated the First Amendment.

Rather than holding that the First Amendment permits viewpoint discrimination in redistricting, Rucho held that federal courts should stay away from partisan gerrymandering cases because they are too hard. As the Court said in that case, the justices have struggled without success over the past several decades to discern judicially manageable standards for deciding partisan gerrymandering cases. That is, the majority in Rucho concluded that it is too difficult to come up with a unified theory of partisan gerrymandering that will allow judges to determine whether each map drawn by a state legislature violates the Constitution.

Whatever the wisdom of this decision in Rucho, however, it makes no sense to apply Rucho to cases where a state openly confesses, in a brief to a court of law, that they violated the First Amendment by drawing a partisan gerrymander for the same reason that it is not hard to figure out who robbed a bank after the bank robber shows up at the police station with a signed confession.

Is this Supreme Court likely to agree with this argument? No, it is not. Even before Rucho, states frequently defended themselves against racial gerrymandering suits by claiming that their gerrymandered maps were drawn for partisan and not racial reasons. And this Supreme Court has shown little interest in pushing back against this practice.

Though the Supreme Court is unlikely to order states to stop defending against racial gerrymandering allegations by confessing to partisan gerrymandering, that doesnt mean that South Carolina is likely to prevail in this case.

Again, under Cooper, it is already illegal for a state to use race as a proxy to identify Democratic voters. And the Supreme Court is supposed to defer to a trial courts factual determination that South Carolina did, in fact, use race as such a proxy in the Alexander case.

Prior to Milligan, voting rights advocates would still have very good reason to fear the outcome of the Alexander case. As cases like Shelby County and Brnovich suggest, this Supreme Court does not always concern itself with what the law actually says when it decides a voting rights case.

But, at the very least, Milligan reveals that at least five justices are still open to the argument that the Court should strike down racially gerrymandered maps if those maps violate existing law.

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An Iowa man published body camera footage of his arrest at the hands of two Newton, Iowa, police officers last year. Now, he's being sued for defamation.

In August 2022, 19-year-old Tayvin Galanakis was driving in Newton just after midnight when he was pulled over by police officers Nathan Winters and Christopher Wing.

"How much have you had to drink tonight?" Winters asks Galanakis in body camera footage from the incident.

"None," Galanakis responds. Winters incredulously asks, "What do you mean none?" Galanakis said, "Great, let's do a test then."

The footage then shows Galanakis undergoing a series of field sobriety tests. After Winters claims Galanakis failed them, he administered a Breathalyzer test, which showed that Galanakis had a blood-alcohol level of 0.00. Almost immediately after proving his sobriety, body camera footage shows Winters asking Galanakis about how much marijuana he had consumed.

"Despite previously claiming he could smell alcohol on Tayvin, Officer Winters now claimed he believed Tayvin was intoxicated due to his use of marijuana," reads a legal complaint later filed by Galanakis. "Tayvin continuously told the officers that he did not use marijuana and that his placement on the William Penn [University] football team renders him unable to use marijuana because of his weekly drug tests."

"I've had no weed tonight," body camera footage shows Galanakis telling officers. "Why do you think it's tonight? I blew a zero, so now you're trying to say I smoked weed. That's what's going on. You can't do that, man. You really can't do that."

"Absolutely I can," one of the officers responded.

According to Galanakis' suit, the officers arrested Galanakis and took him to the Newton Police Station, where he agreed to undergo drug tests, which came back negative. Eventually, he was released.

Less than a week after his arrest, Galanakis published body camera footage from his arrest to YouTube, where it eventually gained over 2 million views. According to the Newton Daily News, viewers flooded the Newton Police Department with hundreds of calls expressing outrage over the arrest.

Galanakis filed a lawsuit against Winters and Wing in February 2023, alleging that the officers violated his Fourth Amendment rights, wrongfully arrested him, and caused "humiliation, degradation, public ridicule, loss of personal reputation, and emotional distress."

Soon after Winters and Wing filed a counterclaim against Galanakis, arguing that he had defamed them by publishing the footage and making derogatory comments about the officers on social media. In several posts, Galanakis made statements such as "basically I got kidnapped then raped by the NPD all night," "they didn't show the clip of Nathan sexually harassing me," and stated falselythat Winters had been convicted of domestic abuse.

In May, a federal judge dismissed most of Winters and Wing's defamation claims. "Galanakis made extensive video footage from his encounter with Winters available on YouTube and TikTok," wrote Judge Stephen H. Lochner. "Viewers therefore had the opportunity to see for themselves what Winters said and did. With this context in mind, it would be even harder for a listener to interpret Galanakis's statements as anything other than his opinion or 'rhetorical hyperbole' about what happened during the encounter."

However, Lochner also ruled that several of Galanakis' statementsnamely, his claims that Winters was convicted of domestic abuse or had abused an ex-girlfriendwere possibly defamatory, and thus the defamation suit could move forward in part.

This isn't the first time Newton police have lashed out against a disgruntled citizen. Last year, they arrested Noah Petersen, then 22, and charged him with disorderly conduct after he claimed during a City Council meeting regarding Galanakis' arrest that the police department was employing a "domestic abuser," in reference to Winters.

Petersen was found not guilty, and the city ordinance allowing his arrest was overturned for violating the First Amendment.

"What's the First Amendment for if not criticizing the government?" Petersen told the local TV station KCCI last October. "I think government can handle three minutes of criticism."

The post An Iowa Man Published Body Camera Footage From His Arrest. The Cops Are Suing Him for Defamation. appeared first on Reason.com.

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An Iowa Man Published Body Camera Footage From His Arrest. The Cops Are Suing Him for Defamation. - Yahoo News

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Douglas County District Attorney Suzanne Valdez on Tuesday filed her answer to a pending disciplinary complaint and released a statement saying, in part, that her comments about a judge were deserving of heightened protections under the First Amendment.

Much of the complaint focuses on apublic conflictbetween Valdez and Douglas County District Court Chief Judge James McCabria just a couple of months into Valdezs term over how jury trials would be handled, though the investigation continued long after. The complaint alleged that Valdez continued to exhibit discourteous conduct and makes personal attacks toward McCabria even during the disciplinary process.

As of 6:30 p.m. Tuesday, we had not yet received a copy of Valdezs filed response from either the Office of the Disciplinary Administrator or the DAs office. We will update this post or publish a new article once we receive the filed answer. (Update, 5:16 p.m. Wednesday, Sept. 6: Heres the article about the filed answer.)

Valdez was elected in November 2020 and took office Jan. 11, 2021. Amid the COVID-19 pandemic, many long-pending criminal cases needed to go to trial.

Douglas County District Court employees and other county staff members had come up witha planto try cases at the Douglas County Fairgrounds, where jurors would be able to safely distance from each other.McCabria announced March 18, 2021 that jury trials would resume the following month, saying that the court had consulted with all stakeholders about the plan.

Valdez, however, hascontendedthat she was not consulted about the plan, but rather told what was going to happen in meetings that February and March. She stood by that assertion in her Tuesday statement.(Read more of the backstory on the March 2021 dispute in this article and on the complaint inthis Aug. 19 article.)

In her statement Tuesday, Valdez wrote that The district courts own failure to include me in discussions and decisions about how to conduct jury trials amid COVID-19 formed the basis for the complaint McCabria initiated roughly 2 1/2 years ago. She wrote that much was different at the time: much of the public was not yet vaccinated, and the transition from the 16-year administration of previous DA Charles Branson added further stress and confusion to an already unprecedented and tense situation, she wrote.

On March 23, 2021, Valdez reposted a news release that her office had sent out on her personal Facebook page, captioned Women of the world be prepared! If you are hardworking, outspoken, honest, AND in a position of authority, the INSECURE MAN will try to tear you down. Not me, says I!

While the Facebook post obviously offended Judge McCabria, it also empowered many women who themselves feel that as females in high level professional or political positions are not invited to the table to be part of discussion and decision-making meetings and whose voices and opinions are not heard, nor considered, Valdez wrote in her statement Tuesday.

Thus, the speech at issue in this Formal Complaint was extra-judicial and in my role as District Attorney. It is political speech deserving of heightened protections under the First Amendment, and it occurred during the discreet time period of March 18-23, 2021, she wrote.

Valdez said other allegations in the complaint reflect mere dissatisfaction with my unconventional, but much desired, approach to the role of prosecution.

Disagreement with my outspoken nature, the independence of my office, and the importance of checks and balances within the criminal justice system say less about my ethical barometer and more about the district courts reluctance to change and transparency, Valdez wrote in her statement. It appears that any challenge or questioning of the district court is an insult, even in a time of calls for heightened transparency and accountability in our public institutions.

The complaint alleges that Valdez had also sent McCabria a text back in March 2021, You should be ashamed of yourself. We were TOLD, not consulted. The only reason you commented is because I am a Hispanic female (in) a position of power. I will shine the light of truth on everything.

Throughout these proceedings, I have been accused of pulling the race card and pulling the woman card, Valdez wrote. These accusations are either nave oversimplifications or something far more sinister.

She wrote that she identifies as a Hispanic woman and takes a great deal of pride in her heritage. Growing up, and even into her adult years, she did not see people who looked like her in positions of power, she wrote.

I attain a position of power, only to be denied a seat at the table and downright silenced. This is the lens through which I view the world, and I make this clear to others when I am speaking, Valdez wrote. Our lived experience shapes our perspective, and I am simply letting people know where I am coming from. To the extent that anyone feels offended by my perspective or my tone, then this only underscores the need for open lines of communication and honest discourse without fear of repercussions.

The formal complaint also alleges that Valdezs behind-the-scenes response to the conflict essentially created a toxic work environment for employees and says many employees left the office in part or in whole, because of the Respondents unprofessional conduct, among other allegations.

Valdez wrote that she disagrees with that. The former employees were not amenable to the type of change the community commanded when I was elected, she wrote.

In the weeks that followed my swearing in, it became clear that these employees did not actually want to work for me. Rather, they wished to continue on as they had for so many years no longer an option after the community showed up on election day and mandated change, Valdez wrote. With new administrations come change, as we see across nearly every elected office. I prefer competent, willing employees who share the core values of my administration.

She wrote that she and Deputy DA Joshua Seiden had made multiple requests of the court to sit down and work through disagreements, suggesting a neutral third party, mediator or restorative justice facilitator, but the court has declined each time.

Stephen Angermayer, the Pittsburg, Kansas-based attorney representing Valdez for the disciplinary complaint, has been paid $11,183 through Friday, according to information from Cheryl Cadue, spokesperson for the DAs office.

If the disciplinary hearings proceed as scheduled, a panel will listen to evidence from both sides and issue a report that will include a recommendation regarding discipline.The panel will include Stacy L.Ortega, Gaye Tibbets and Sylvia B. Penner. All are attorneys with Wichita-based firms, according to the complaint.Read about the witnesses and exhibits the special prosecutor intends to use at this link.

The case is set for a prehearing conference at 9:30 a.m. Tuesday, Sept. 19, which will be held virtually by Zoom. The hearing will be open to the public. Requests to attend the Zoom hearing can be emailed to Krystal Vokins, counsel to the Kansas Board for Discipline of Attorneys, at vokinsk@kscourts.org or by calling her at 785-435-8200.

The formal hearing is set to begin at 9:30 a.m. Oct. 12 and 13. It will also be open to the public, but whether it will be held in person or virtually will be decided during the prehearing conference.

Mackenzie Clark (she/her), reporter/founder of The Lawrence Times, can be reached at mclark (at) lawrencekstimes (dot) com. Read more of her work for the Times here. Check out her staff bio here.

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The Douglas County DA has filed her answer to a disciplinary complaint, admitting some of the core allegations against her but adding context and placing some blame on ex-employees.

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In hopes of avoiding numerous drivers license suspensions, Douglas County judges have dismissed about 940 traffic cases. Circumstances of the batch dismissals are also mentioned in a pending disciplinary case against DA Suzanne Valdez.

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A pending complaint against Douglas County DA Suzanne Valdez will proceed to a disciplinary hearing in which several judges and former prosecutors may be called to testify.

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A Lawrence author aims to spark conversations about drugs and addiction with a new book for tweens and their adult caregivers.

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At an early age, Alexis Nikole Nelson formed a habit of eating items straight from the dirt outdoors. It wasnt as concerning as it seems.

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The Douglas County DA has filed her answer to a disciplinary complaint, admitting some of the core allegations against her but adding context and placing some blame on ex-employees.

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The Lawrence Community Shelter is moving into a shared governance model with the City of Lawrence and Douglas County, according to a Wednesday announcement.

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The Lawrence Arts Center will debut three new art galleries this Friday with themes covering race, culture, heritage and Hank Williams.

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Douglas County DA responds to disciplinary complaint, says her political speech should have First Amendment ... - The Lawrence Times

California community college professors are suing state officials, alleging that new diversity, equity, and inclusion (DEI) rules put in place violated their First Amendment rights, The Hill reported.Reedley College

The lawsuit from six professors argued that the DEI rules mandate viewpoint conformity and force professors to endorse the governments view on politically charged questions regarding diversity, equity, inclusion, and accessibility. They also threaten promotions and tenure pursuits by potentially punishing faculty for not following the states definitions of DEI, the suit alleges.

These regulations are a totalitarian triple-whammy, FIRE attorney Daniel Ortner said. The government is forcing professors to teach and preach a politicized viewpoint they do not share, imposing incomprehensible guidelines, and threatening to punish professors when they cross an arbitrary, indiscernible line.

The free speech group Foundation for Individual Rights and Expression (FIRE) which sued Florida last year over the Stop WOKE Act is assisting the plaintiffs.

Im a professor of chemistry. How am I supposed to incorporate DEI into my classroom instruction? Reedley College professor Bill Blanken said in a statement. Whats the anti-racist perspective on the atomic mass of boron?

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California Community College Professors Sue, Alleging New DEI ... - Diverse: Issues in Higher Education

State Supreme Court Justice Anita Earls First Amendment lawsuit against a state judicial standards group will proceed in front of a federal judge appointed by former President George W. Bush, not one appointed by former President Barack Obama.

Court records tied to Earls suit indicated Tuesday that the case had been reassigned from US District Judge Loretta Biggs to US District Judge William Osteen. The reassignment notice offered no reason for the change.

Osteen, 63, has served as a federal judge in the Middle District of North Carolina since Busha appointment in 2007. He served as chief judge from November 2012 to November 2017.

Biggs, 69, has served in the Middle District since Obamas appointment 2014. She was originally assigned Earls case.

Earls filed suit on Aug. 29 against North Carolinas Judicial Standards Commission. She alleges the group wants to chill her right to speak on matters of public concern.

The commission notified Earls on Aug. 15 that she is the subject of an investigation based on an interview published online in June.

The Commissions continuing efforts to investigate and potentially discipline me are a blatant attempt to chill my First Amendment rights to freedom of speech, Earls said in a court filing. The actions of the Commission discourage both me and other judges and candidates from making statements critical of the judicial system. In my view, the statements made by me in the Interview are core political speech protected by the First Amendment, appropriate for judges, consistent with prior statements made publicly by other North Carolina judges, and intended to contribute to the improvement of our legal system.

Earls is seeking an injunction, along with a declaration that the commissions investigation and possible punishment of her violates her constitutional right to free speech.

Justice Earls has been subjected to a series of months-long intrusive investigations, initiated by one or more anonymous informers, concerning her comments regarding operation of the North Carolina judicial system, according to the complaint filed Tuesday in US District Court. Those comments, including those concerning diversity in the North Carolina judicial system, are fully protected by the First Amendment of the United States Constitution as core political speech.

The North Carolina Code of Judicial Conduct (Code) which provides ethical guidance to judges in this State expressly permits judges to speak concerning the legal system and the administration of justice, Earls lawsuit argued. This case concerns an ongoing campaign on the part of the North Carolina Judicial Standards Commission (the Commission), which administers the Code, to stifle the First Amendment free-speech rights of Justice Earls and expose her to punishment that ranges from a letter of caution that becomes part of a permanent file available to any entity conducting a background check to removal from the bench.

Appeals Court Judge Chris Dillon chairs the Judicial Standards Commission. Judge Jeffery Carpenter co-chairs the group. Dillon and Carpenter are Republicans. Earls is a Democrat.

Earls suit names the commission and 14 individual members as defendants.

The lawsuit says the commission has initiated two investigations of Earls this year related to her public comments on the subject of the legal system and the administration of justice.

Earls cited a notice letter the commission sent her on Aug. 15. [T]he Commission indicated its intent to investigate and potentially punish Justice Earls for an interview in a legal news publication in which she discussed the North Carolina Supreme Courts recent record on issues relating to diversity, according to the complaint.

The publication Law360 published a June 20 interview titled North Carolina Justice Anita Earls Opens Up About Diversity. She was responding to a May 17 article in the North Carolina Bar Associations publication. That article focused on the race and sex of lawyers arguing cases as the states highest court.

The interview was prompted by a published study of the race and gender of advocates who argue before the Court, Earls lawyers wrote. In that interview, Justice Earls discussed matters such as the decision by the North Carolina Supreme Court to disband the Commission on Fairness and Equity, the Courts lack of judicial clerks from racial minority groups, the implicit bias associated with the interrupting of female advocates (and even herself as an African-American female justice) during oral argument, and the discontinuance of racial equity and implicit bias training in the North Carolina courts.

The Commission has indicated that it believes that Justice Earls comments on these issues of legitimate public concern potentially violate a provision of the Code which requires judges to conduct themselves in a manner that promotes public confidence in the integrity and impartiality of the judiciary, according to the complaint.

It is Justice Earls position that public confidence in the judiciary is compromised when the court system does not reflect the population it serves and is not promoted, as one court striking down a sanction levied against a judge who criticized the court system put it, by casting a cloak of secrecy around the operations of the courts, Earls complaint continued.

The First Amendment prohibits the Commission, as an arm of the State, from stifling or even chilling free speech, especially core political speech from an elected Justice of the North Carolina Supreme Court, the complaint added. The First Amendment allows Justice Earls to use her right to free speech to bring to light imperfections and unfairness in the judicial system. At the same time, the First Amendment prohibits the Commission from investigating and punishing her for doing so.

Earls argues that the investigation into her comments bespeaks a callous disregard for the principles of the First Amendment. She accuses the commission of threatening judges who speak out about what they view as imperfections or defects in the judicial system and who do so in a measured and nuanced manner. Nothing could be more inimical to the First Amendment.

The justice labels the August notice part of a continuing effort to thwart her free-speech rights. Her complaint cites an earlier investigation in March. It related to comments Earls made about rule changes and a proposed legislative change linked to the states courts.

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Earls' First Amendment lawsuit reassigned from Biggs to Osteen - Carolina Journal

Yesterday, state Attorney General Tish James, joined by the Legal Aid Society, New York Civil Liberties Union and private plaintiffs reached a settlement with the NYPD over its treatment of protected speech protest activity as a result of its heavy-handed response to the 2020 racial justice protests following the killing of George Floyd.

The new agreement sensibly sets out a tiered framework for police response to so-called First Amendment activity (FAA), including a minimal presence during peaceful protests and the deployment of additional resources and units like the troubled Strategic Response Group only if a newly-appointed FAA executive signs off on it. Under it, the level of response is intended to be directly proportional to the level of supposed criminal activity happening around a protest with the explicit goal of preventing the police from chilling speech. Good going for James and the other plaintiffs in safeguarding our speech rights.

That the NYPDs protest-response tactics and accountability practices needed a reevaluation is hardly arguable when just weeks ago the departments actions triggered $13 million in settlements to be paid by taxpayers, but precious few real consequences for the officers involved. Former Police Commissioner Keechant Sewell refused to impose the Civilian Complaint Review Boards often mild recommended discipline in more than half of cases where officers were even identified, not to mention the dozens where they werent.

Still, a settlement is just words on paper without real enforcement muscle behind it. The Nuez settlement, which has for about eight years directed the city to improve dangerous conditions and pervasive violence on Rikers Island, has clearly failed to in and of itself compel the sorts of changes that are necessary, even if it has allowed the continued failures to be extensively documented by the federal monitor. Remedial orders and other motions failed to meaningfully move the needle. The settlement may finally lead to actual improvement if and when Manhattan Federal Judge Laura Taylor Swain appoints a monitor, who would have real teeth to implement reforms.

The closer parallel of the Handschu settlement, reached more than three decades ago to curb the NYPDs habit of aggressively surveilling political movements and organizations that it disapproved of, clearly did not stop the department from, for example, unlawfully surveilling Muslim Americans in the aftermath of 9/11. These settlements then can best be understood as tools facilitating the type of active intervention that is often necessary, and not the intervention itself.

Fortunately, this settlement lays out a pretty robust and multi-phase oversight system, including a committee formed by the attorney generals office, the commissioner of the Department of Investigation, corporation counsel, the forces new protest chief and representatives from the plaintiffs, who will examine the NYPDs compliance in phase two. The court will retain jurisdiction for a year after this phase.

This is the most important part of the settlement, and the key to its success. The NYPD can and might well claim without backing that a peaceful protest has criminality risk requiring an elevated response, for example. Both the committee and the courts must be willing to seek and mandate real consequences for noncompliance, including aggressive disciplinary action. Officers and department leaders should understand that violating the Constitution is not something that will be tolerated.

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The new NYPD settlement on protests will protect the First Amendment - New York Daily News

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OPINION: We should try protecting all First Amendment rights - Lewiston Morning Tribune

Recent letters berating Carefree Vice Mayor Cheryl Kroyer for attempting to bring respectful behavior and discourse to Town Council meetings and characterizing her calls for civility as an affront to First Amendment rights are ill-founded.

Carefree is a quiet small town with a population that has always been largely friendly, considerate and civil. But that has been changing recently, and in my opinion we have reached the point that bad behavior has begun to crowd out reasoned discussion.

Shouting out at inappropriate times does not promote free expression; rather it is intimating to anyone who may have a contrary point of view. And unruly behavior not only discourages free speech, it also discourages some residents from attending meetings. Arizona public meetings are governed by statute and by rules, and there is no First Amendment right to disruption by speaking out of turn and out of order in a public meeting.People are entitled to their own opinions.

And while debate may become heated, there need be no room for a lack of decorum in the Carefree Council chambers. Even insincere decorum would be a welcome contrast to the disrespectful behavior witnessed at recent Council meetings and defended in letters on this editorial page.

Anton Wilke email

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Civility and the First Amendment Sonoran News - Sonoran News

In 2005, Jacob Mchangama was a newly minted human rights attorney in his native Copenhagen when the Danish newspaper Jyllands-Posten published a series of derogatory cartoons depicting the Prophet Muhammad. The move set off a global battle over the relationship between free speech and religion, with some newspapers across Europe and the Middle East reprinting the cartoons to reaffirm the right to publish offensive material, even as violent protests erupted across the globe.

Suddenly, forms of speech and expression that had been taken for granted in Denmark were called into question, both by extremists who were willing to use violence and terrorism to put pressure on cartoonists and others who for decades, centuries even, poked fun at authority and religion, but also within the Danish population, recalls Mchangama. There was this idea that free speech was important, but you have to use free speech in a responsible manner. So I became very interested in this principle. Why is it important? What does it mean? Where does it come from?

Those questions eventually led Mchangama to found the Copenhagen-based think tank Justitia, dedicated to promoting the rule of law and fundamental human rights and freedoms both in Denmark and abroad, and Justitias Future of Free Speech Project. Mchangama also penned the authoritative history of free speech: Free Speech: A History From Socrates to Social Media, published in 2022. And in April 2023, he opened the first U.S. office of Justitia at Vanderbilt University in Tennessee, where he works to promote a global culture of free speech through research and education.

Mchangama will be a plenary speaker at Learn Serve Lead 2023: The AAMC Annual Meeting on Nov. 4. He recently sat down with AAMCNews to share his thoughts on free speech and the First Amendment, the role of social media companies in spreading misinformation and divisive viewpoints, elite panic and what he sees as a global free speech recession, and what can be done to protect free speech both on campuses and more broadly.

This interview has been edited for length and clarity.

What, exactly, is free speech?

It might be good to start with the origins of free speech, which originated in the Athenian democracy 2500 years ago, where they had two overlapping concepts of free speech. One was equality of speech, which was the right of every male free born citizen to speak and vote directly in the Athenian democracy, in the assembly. So no matter whether you were uneducated or poor, you had, in principle, the same right as wealthier citizens to speak your mind.

But they also had a broader concept called parrhesia or uninhibited speech, which was a commitment to broadmindedness and tolerance of dissent.

Today, in most open, modern democracies, free speech has developed into a legal, constitutional, and internationally recognized protected right of the individual to be protected against the government [for speaking out]. In the United States, the First Amendment is probably the most speech-protected legal instrument in the history of humankind.

As a society, we rightfully disdain hate speech and yet, hate speech is protected under the First Amendment. Why is it important to protect speech that many people find offensive?

Im in favor of the U.S. approach, so I don't believe that the government should be able to punish hate speech unless it is intended to and likely to cause violence or serious harm. Every European democracy prohibits hate speech in fact, there is EU legislation that requires members of the European Union to prohibit hate speech. But the definitions of hate speech vary quite dramatically between states one of the many problems with hate speech bans is that its very subjective. Today, with social media, hate speech has become a big issue again, and those who do the most removal of hate speech are private social media companies according to their own terms of service. They remove billions and billions of [instances of] hate speech every year.

Is that a good thing? Should social media companies be able to censor information on their platforms?

If you want to take the perfectly legalistic view of it, these are private companies. They have a First Amendment right themselves to do what they want on their platforms. So removing content that they feel is not in line with whatever they want is not a problem. That was a reasonable assumption when you had a much more decentralized internet, but today you have platforms that have billions of users and that have become crucial for public debate around the world. Their content moderation practices have real, practical consequences for what kind of speech can be distributed around the world.

Thats why I think it makes sense to have more distributed, decentralized content moderation standards, where you take as many of these decisions away from centralized platforms that can be pressured by governments, and [put them] into the hands of users who can then make meaningful decisions about what kind of content they want to be confronted with.

In the meantime, we all are confronted with online information that threatens people and institutions. This isnt benign speech; its had real-world consequences, including the deaths of thousands of people who believed the misinformation about COVID-19 vaccines, for instance. How do you reconcile the need to protect peoples right to say what they want with the impact of their words on other people?

First of all, when you look at COVID misinformation, I think there are studies that show that it's actually a relatively small number of people who are responsible for the vast majority of that. What we also see is that those who are likely to consume and share this are people who already are skeptical and have a lack of trust in institutions. The temptation then becomes for institutions and governments to say, Oh, we have to limit that kind of speech because it will be catastrophic, but I think that is likely to cause people to be even more distrustful, especially when you're confronted with COVID, something completely new, that you're trying to understand in real time. The process of science, as impressive as it is, is that it's trial and error, and there was lots of confusing messaging from various health institutions. If one day you insist that, let's say, face masks don't work and you lean on social media companies to remove content to the contrary and then you come back and say, Oh, actually now we have the opposite opinion, you've undermined your own position. It would have been much better if the line of communication from authorities had been, Listen, were confronted with a new disease. We have put all our resources, our best researchers, into this. We're making incredible progress at a speed that was unimaginable for previous generations, but we're likely to make mistakes and what we think is the best available science today might change in two months. That shows humility. And it also acknowledges that you're likely to get things wrong rather than taking one position and then having to tie yourself in knots with your messaging further down the road.

Its interesting that the United States, which has more protections for freedom of speech than other democracies, actually did worse in terms of getting its people vaccinated and protected. So, is it just because Americans are distrustful of government in general or were the bad actors who were spreading misinformation more able to reach the American people?

Thats a very difficult question to give a convincing reply to. I think one of the problems is that there's been a collapse of trust in this country, in the United States, and also the fact that COVID very quickly became polarized and tribalized, according to culture war narratives, which probably played a significant role. Would it have helped if the federal government had been able to shut down misinformation through law? I don't have a perfect answer to that. I just think the likelihood of that creating further trust rather than distrust among people who are already deeply skeptical [is low]. The real issue here is, what are the underlying factors that make people more susceptible to disinformation, to engage in it, to share it. What can we do to make people more likely to think twice before accepting it? Free speech and access to information are part of the solution.

Earlier this year, a respected Mayo Clinic physician almost lost his job for questioning the National Institutes of Healths COVID-19 policy and for saying that testosterone boosts athletic performance. How important is it for academic institutions to foster (rather than squash) divergent viewpoints?

The Foundation for Individual Rights and Expression (FIRE), where I'm a senior fellow, has a Scholars Under Fire database where they show a huge uptick in the number of scholars who are sanctioned, or have had attempted sanction, since 2000. The data suggests that they are more worried about the consequences of speech than under the second Red Scare [the perceived threat of U.S. communists during the Cold War], which is pretty remarkable. That suggests to me that this is a real problem and that cancel culture is real. It's also a cultural war phenomenon. But it's not something that is invented out of thin air. It has a real basis. COVID is a hot topic, transgender [health] seems to be a huge issue and one of the most thorny ones to navigate. Its the responsibility of the medical establishment to have the best available knowledge and you can only arrive at that through debate and what you might call the process of open science where no one ever gets to establish the capital T truth or settle the debate once and for all.

In your book, you write about elite panic, about the temptation by elite individuals and institutions to censor divergent viewpoints. Were certainly seeing this in our own time and its leading to what you call a free speech recession.

Elite panic is this recurring phenomenon throughout the history of free speech, where whenever the public sphere is expanded, either through new communications technology, or to segments of the population that were previously marginalized, the traditional gatekeepers, the elites who control access to information, tend to fret about the dangers of allowing the unwashed mob who are too fickle, too unsophisticated, too unlearned unmediated access to information. They need information to be filtered through the responsible gatekeepers and it may be even more dangerous to allow them to speak without adult supervision. That's a phenomenon that we see again and again. And we're seeing it play out now on social media. [Elite panic is] one contributing factor to the free speech recession. Another is that democracies have shied away from protecting free speech and are much more likely now to view free speech as a danger rather than an unmitigated good. And so they don't put in the same effort at protecting free speech, whether at home or away as they did, say, in the 80s, early 90s, when free speech was crucial to defeating communism.

But I think there's some sense that unfettered free speech is threatening our democratic institutions.

Thats part of the elite panic. Were still trying to make sense of the digital world. Most institutions and cultures develop in the analog world. We have problems keeping up with the speed of information. We have trouble keeping up with the number of opinions you see out there that go against your basic values opinions that are more extreme, because those opinions would not have bubbled to the surface the way that they can now.

So it's likely to make people concerned, even though some of the research weve done shows that hate speech and disinformation in absolute numbers, its a lot, but the share of the total amount of posts on social media is actually not very large. We have a built-in negativity bias. Rather than focusing on all the wonderful opportunities that social media provides and the equal conversations that people have, we tend to focus on the dark side, and I think that AI is likely to increase that concern.

How do you see it being resolved?

First of all, tinkering with the model. So maybe we will have models that are less focused on engagement and outrage. That could be one way.

Another thing is for generations who have grown up with social media to develop a more detached attitude than those of us who have been thrust into it, without having experienced it before.

As I mentioned, more decentralized models might also be a way forward, and then learning to harness the good sides and amplify them, is also something that could contribute.

Are you an advocate for absolute free speech?

No, I dont think that any serious person is in favor of absolute free speech. Where I may be more absolutist is when it comes to viewpoints. I don't believe there's any viewpoint in and of itself that should be prohibited.

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Free speech: Why it's under attack and what can be done to promote ... - AAMC

At Harvard, 133 members of the faculty have joined the Council on Academic Freedom at Harvard, dedicated to upholding the free speech guidelines adopted by the university in 1990:

Free speech is uniquely important to the university because we are a community committed to reason and rational discourse. Free interchange of ideas is vital for our primary function of discovering and disseminating ideas through research, teaching and learning.

Steven Pinker, a psychology professor at the school and a founder of the group, wrote in an email that achieving this goal is much tougher than generally believed:

To understand the recent assaults on free speech, we need to flip the question: not why diverse opinions are being suppressed, but why they are tolerated. Freedom of speech is an exotic, counterintuitive concept. Whats intuitive is that the people who disagree with me are spreading dangerous falsehoods and must be stifled for the greater good. The realization that everyone feels this way, that all humans are fallible, that however confident I am in my beliefs, I may be wrong and that the only way we can collectively approach the truth is to allow opinions to be expressed and then evaluate them, requires feats of abstraction and self-control.

The example I cited at the beginning of this column the charge that the Biden administration colluded with big tech and disinformation partners to censor the claims of election deniers has proved to be a case study of a successful Republican tactic on several fronts.

Republicans claimed the moral high ground as the victims of censorship, throwing their adversaries on the defensive and quieting their opponents.

On June 6, The Washington Post reported, in These Academics Studied Falsehoods Spread by Trump. Now the G.O.P. Wants Answers, that

the pressure has forced some researchers to change their approach or step back, even as disinformation is rising ahead of the 2024 election. As artificial intelligence makes deception easier and platforms relax their rules on political hoaxes, industry veterans say they fear that young scholars will avoid studying disinformation.

One of the underlying issues in the free speech debate is the unequal distribution of power. Paul Frymer, a political scientist at Princeton, raised a question in reply to my email: I wonder if the century-long standard for why we defend free speech that we need a fairly absolute marketplace of ideas to allow all ideas to be heard (with a few exceptions), deliberated upon and that the truth will ultimately win out is a bit dated in this modern era of social media, algorithms and, most importantly, profound corporate power.

While there has always been a corporate skew to speech, Frymer argued,

in the modern era, technology enables such an overwhelming drowning out of different ideas. How long are we hanging on to the protection of a hypothetical that someone will find the truth on the 40th page of a Google search or a podcast with no corporate backing? How long do we defend a hypothetical when the reality is so strongly skewed toward the suppression of the meaningful exercise of free speech?

Frymer contended that

we do seem to need regulation of speech, in some form, more than ever. Im not convinced we cant find a way to do it that would enable our society to be more just and informed. The stakes the fragility of democracy, the increasing hatred and violence on the basis of demographic categories and the health of our planet are extremely high to defend a single idea with no compromise.

Frymer suggested that ultimately

we cant consider free speech without at least some understanding of power. We cant assume in all contexts that the truth will ever come out; unregulated speech does not mean free speech.

From a different vantage point, Robert C. Post, a law professor at Yale, argued in an email that the censorship/free speech debate has run amok:

It certainly has gone haywire. The way I understand it is that freedom of speech has not been a principled commitment but has been used instrumentally to attain other political ends. The very folks who were so active in demanding freedom of speech in universities have turned around and imposed unconscionable censorship on schools and libraries. The very folks who have demanded a freedom of speech for minority groups have sought to suppress offensive and racist speech.

The framing in the current debate over free speech and the First Amendment, Post contended, is dangerously off-kilter. He sent me an article he wrote that will be published shortly by the scholarly journal Daedalus, The Unfortunate Consequences of a Misguided Free Speech Principle. In it he notes that the issues are not just more complex than generally recognized but also are distorted by false assumptions.

Post makes the case that there is a widespread tendency to conceptualize the problem as one of free speech. We imagine that the crisis would be resolved if only we could speak more freely. In fact, he writes, the difficulty we face is not one of free speech, but of politics. Our capacity to speak has been disrupted because our politics has become diseased.

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Opinion | Behold the Free Speech Chutzpah of the Republican Party - The New York Times