Category Archives: First Amendment

How First Amendment Procedures Protect First Amendment Substance
While the substance of constitutional rights is always important, it is often the procedures surrounding the protection and enforcement of those rights that give them teeth or defang them....

By: The Federalist Society

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How First Amendment Procedures Protect First Amendment Substance - Video

Gotta love the First Amendment - handing out chemtrail fliers at a Green Festival
http://StopSprayingUs-SF.com - When I was handing out chemtrail awareness fliers outside a Green Festival in San Francisco #39;s Fort Mason, park officials and police claimed I was breaking the...

By: Patrick Roddie

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Gotta love the First Amendment - handing out chemtrail fliers at a Green Festival - Video

Beginning in the 1930s, shortly after the Supreme Court had incorporated the First Amendment into the due process clause (thereby making it an enforceable constraint not only on the federal government ["Congress shall make no law . . ."] but on State and municipal governments as well) the Jehovahs Witnesses went on a campaign to attack, in court, restrictions on their ability to proselytize door-to-door and to give voice to unpopular views. During one particular 8 year period (1938 to 1946) they brought no fewer than 23 separate First Amendment actions to the Supreme Court (prompting Justice Stone to quip that they ought to have an endowment in view of the aid they give in solving the legal problems of civil liberties). They won some spectacularly important victories West Virginia Board of Ed. v Barnette (1943) (children cannot be forced to recite the Pledge of Allegiance or salute the flag), Chaplinsky v New Hampshire (19420 (establishing the fighting words doctrine, and overturning conviction of a Jehovahs Witness who called a local official a damned racketeer and a fascist), Watchtower Society v. Village of Stratton (2002) (overturning municipal ordinance requiring government permits for all door-to-door advocacy).***

They were widely reviled especially during World War II and the Korean War, their position asconscientious objectors to military service and their refusal to salute the flag made them the object of great hostility but in retrospect, we all owe them a great debt of gratitude. It took (and it takes) real courage to stand up to the combined forces of public opinion and the state to voice opinions that others find highly objectionable and even inflammatory, and we all enjoy, in a much stronger First Amendment than we might otherwise have, the benefits of their having had the courage to have done so.

Yesterday the 9th Circuit issued its decision striking down Californias CASE (Californians Against Sexual Exploitation) Act as violative of the First Amendment. The Actrequired previously-convicted sex offenders to provide [a] list of any and all Internet identifiers established or used, a list of any and all Internet service providers used, and to sendwritten notice to law enforcement within 24 hours of adding or changing an Internet identifier or an account with an Internet service provider; it also provided for fairly severe criminal penalties for non-compliance.

This is the latest in what is becoming a large series of cases involving First Amendment challenges to state sex offender registration statutes. There have been cases like this one in Nebraska, Indiana, Louisiana, Pennsylvania, to name a few. Ive blogged about some of them before e.g.,hereand here and (full disclosure) Ive been involved in several of them (including this California case) as an expert testifying on behalf of the challengers.

The courts opinion here at least to someone on the side of the fence that Im on has a terrific analysis of the First Amendment issues at stake, and some strong First-Amendment-protective language that will, I promise you, come in very, very handy in future battles the ones that are coming that will not involve just convicted sex offenders. The court struck down the statute on the grounds that it unnecessarily chills protected speech in three ways: the Act does not make clear what it is that sex offenders are required to report, there are insufficient safeguards preventing the public release of the information sex offenders do report, and the 24-hour reporting requirement is onerous and overbroad. There is, in particular, some very forceful language about the right, under the First Amendment, to speak anonymously an issue that, as I keep harping on, is going to be a major First Amendment battleground duringthe the next decade or so. The court wrote:

Although this is not what some might call the classic anonymous-speech case, where speakers allege they are required to disclose their identities directly to their audience, we conclude that the Act nevertheless chills anonymous speech because it too freely allows law enforcement to disclose sex offenders Internet identifying information to the public. . . .We agree with the district court that the standards for releasing Internet identifying information to the public are inadequate to constrain the discretion of law enforcement agencies and that, as a result, registered sex offenders are unnecessarily deterred from engaging in anonymous online speech.

[S]ex offenders fear of disclosure in and of itself chills their speech. If their identity is exposed, their speech, even on topics of public importance, could subject them to harassment, retaliation, and intimidation. See McIntyre, 514 U.S. at 34142 (The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of ones privacy as possible.); Brown v. Socialist Workers 74 Campaign Comm. (Ohio), 459 U.S. 87, 100 (1982) (holding that disclosure requirements may subject unpopular minority groups to threats, harassment, and reprisals). Anonymity may also be important to sex offenders engaged in protected speech because it provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent.

Pretty strong stuff. It has made me think about the Jehovahs Witnesses. Convicted sex offenders are probably one of a very small number of groups that are even more despised than the Jehovahs Witnesses were in the Thirties and Forties, and they have consequently been singled out for very harsh treatment in the law. Fighting back, theyre helping to make some good First Amendment precedent, and when the government starts cracking down on other speech by other speakers, or attempting to restrict our ability to use anonymizing tools in our Internet communications as itwill well be grateful to them for having done so.

***Shawn Peters excellent Judging Jehovahs Witnessess tells this story in great detail, if youre interested.

David Post taught intellectual property and Internet law at Georgetown Law Center and Temple University Law School until his recent retirement. He is the author of "In Search of Jeffersons Moose: Notes on the State of Cyberspace" (Oxford, 2009), a Fellow at the Center for Democracy and Technology, and an Adjunct Scholar at the Cato Institute.

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Volokh Conspiracy: Convicted sex offenders, Jehovahs Witnesses, and the First Amendment

BLM No Show Pahrump 11/13/2014 First Amendment Area
Description Kenny Bent speaks to the people in front of the Bob Ruud Community Center, where the BLM failed to show and present their Resource Management Plans for Southern Nevada as ...

By: Les Moore

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BLM No Show Pahrump 11/13/2014 First Amendment Area - Video

The First Amendment...(Historically Speaking)
Frederick Douglass Dixon hosts this weekly segment on UPTV.

By: UPTV6

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The First Amendment...(Historically Speaking) - Video

Packard Pokes At: Jews For the First Amendment And Why It Matters
This podcast and video is dedicated to finding the truth of the news that we get bombarded with every week and having a little fun along the way. Story link ...

By: Packard Pokes At

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Packard Pokes At: Jews For the First Amendment And Why It Matters - Video

Europe and the US continue to drift further apart on Google. Even as European parliamentarians and regulators seek ways to restrain Googles discretion over search results, US courts continue to affirm Googles right to do whatever it wants with search results paid and organic.

A California state court in San Francisco recently granted Googles case-ending motion in lawsuit against the company (per GigaOm). The action, filed in June of this year in San Francisco Superior Court, was called S. Louis Martin vs. Google Inc.

Drafted and filed by the non-attorney publisher of San Francisco Bay Area Tourism website CoastNews.com, the complaint alleged unfair and deceptive business practices against Google.

The basic factual allegations included the claim that CoastNews ranked at the top of search results on Bing and Yahoo for San Francisco neighborhood keywords but didnt rank in a comparable position on Google. Plaintiff Martin asserted that Googles unfair and monopolistic business practices cause him lost revenue and future growth and harmed consumers as well.

Martin asked for a jury trial and sought roughly $5 million in compensatory and punitive damages. Google prevailed by framing plaintiffs claim as a SLAPP lawsuit. SLAPP stands for strategic lawsuit against public participation. SLAPP suits are usually filed by corporations or other powerful interests often to intimidate or silence less-powerful critics.

The irony here is that the corporation (Google) was claiming that this individual plaintiff (Martin) was trying to silence its First Amendment-protected speech. The Superior Court agreed.

In its motion, essentially to dismiss the case, Google cited various prior cases and precedents that establish Google has total discretion over the content of its search results as a protected expression of its First Amendment free speech rights.

The 2003 decision Search King, cited above, was the first case (to my knowledge) to hold that Googles editorial control of search results was protected by the free speech clause of the First Amendment. That was reaffirmed earlier this year in a US District Court case called Zhang et al.v.Baidu.com (also cited above).

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Another Court Affirms Googles First Amendment Control Of Search Results

Posted Nov. 17, 2014, 9:53 am Letter To The Editor

Dear Editor,

In the United States of America, and to an even stronger extent in the State of California, the First Amendment to our federal Constitution (and its state counterpart) guarantees freedom of speech.

To petition, protest, and advocate before governmental bodies and public marketplaces are constitutional rights and therefore protected speech. This lawsuit is an attempt to bully me and silence dissent in the City of Santa Monica, where the pony ride and petting zoo have been the subject of criticism and protests for years, long before my personal involvement.

In consultation with counsel, I intend to file an ANTI-SLAPP (strategic lawsuit against public participation) motion to protect my freedom of speech rights and those of others who might otherwise be deterred by coercive litigation from exercising their rights -- and to defend the rights of suffering animals, sentient beings with emotional lives worthy of dignity and compassion.

I have repeatedly made overtures to the pony ride operators, introducing Jason, Tawnis husband, to Phil Brock, the Parks Commissioner, to see if they might be willing to compromise and move their animal exhibits to a more spacious and tranquil environment, where the ponies could be taken off the metal bar and walked with a gentle lead at a city park.

The City Council resolution relating to the ponies directed City staff to explore alternatives elsewhere in the City for the pony ride to operate in a more congenial environment for the animals. To my knowledge, the pony operators have not been interested in compromise and have repeatedly refused to consider more humane alternatives.

While the operators repeatedly and publicly attack my character, I know that I have only told the truth, expressing my opinion, both in words and photographs, throughout this period of protest, in which 1,450 people signed my petition to shut down the animal exhibits. Additionally, records obtained under the California Public Records Act have surfaced past complaints about the animal exhibits.

Beyond that, I learned that a separate protest in 2005 resulted in approximately another thousand petition signatures from market visitors disturbed by the sight of ponies tethered to a metal bar, circling for hours on hard ground, unable to turn around or seek water on their own during a hot summer day.

Not only do local residents find these exhibits objectionable, some of my neighbors boycotting the Main Street farmers market, but Marc Bekoff, noted scientist and colleague of Jane Goodall, with whom I consulted months ago, calls the exhibits thoroughly inhumane -- adding, Tethering animals so they cannot have freedom of movement and the freedom to get away from harassment and noise is as inhumane as keeping the animals in tiny cages in petting zoos, where they suffer physically and emotionally.

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Letter To The Editor: First Amendment Guarantees Freedom Of Speech

A video that emerged over the weekend appears to show Darren Wilson, the cop who fatally shot teenager Michael Brown in a St. Louis suburb in August, telling a citizen he doesn't have the right to record video of a 2013 encounter.

The details of the entire exchangeare a little murky. But in almost all cases in the United Statesyou actually do have the right to record police and other public officials carrying out their duties.

There are some state wiretapping laws that make it illegal to record audio of people without their consent, but the courts have consistently held that the First Amendment protects citizens' right to record the police when they're on the job. The police can't stop you unless you're interfering with their work -- and they can't take away your smart phone or delete the recordings just because you took video. Police need a warrant to mess with the content of your cell phone.

The Department of Justice has even officially weighed in on citizen recordings of law enforcement officers. Here's what it said in a 2012 letter toattorneys for the Baltimore Police Department:

Policies should affirmatively set forth the contours of individuals First Amendment right to observe and record police officers engaged in the public discharge of their duties. Recording governmental officers engaged in public duties is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers.

Obviously, just because you have the right doesn't mean all law enforcement officials will respect it. But there's also a growing movement to make sure that police actions are almost always facing the scrutiny of video evidence by use of mandatory body cameras, or "bodycams," on officers.

The cameras could potentially provide an extra layer of digital oversight over law enforcement behavior -- as well as a way for officers to verify their side of the story if a situation gets messy.

In the wake of the Ferguson protests, makers of such deviceshave seen their business boom.

Even the American Civil Liberties Union is on board with thethe useof bodycams, albeit with a fewcaveats about data retention and privacy implications. "Although we generally take a dim view of the proliferation of surveillance cameras in American life, police on-body cameras are different because of their potential to serve as a check against the abuse of power by police officers," the group said in a 2013 policy paper.

Andrea Peterson covers technology policy for The Washington Post, with an emphasis on cybersecurity, consumer privacy, transparency, surveillance and open government.

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Yes, you have a right to record the police.

The First Amendment...(Historically Speaking) - Episode #7
Frederick Douglass Dixon hosts this weekly program on UPTV.

By: UPTV6

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The First Amendment...(Historically Speaking) - Episode #7 - Video