Category Archives: First Amendment

Wednesday, May 4, marked the final Student Association (SA) senate meeting of the semester. The meeting began with a historical Memorandum of Understanding (MOU) signing, by Chancellor Joe Gow, showing support of the Green Fund Grant to approve a new sustainability program manager. The signed document detailed the universitys commitment to funding this position partially for three years, along with the SAs commitment to also fund them for three years.

It is a wonderful collaboration that we are doing, and a model, I think, for some future things that we can do, said Gow, I know that many students have wanted this position for a long time.

The room was also packed with those waiting to hear from Gow about the chalk-writing statements done by the Hoeschler Tower last week regarding the School of Education (SOE) issues.

I am a very staunch advocate of the First Amendment and would hate to be perceived as an opponent against free speech, said Gow, but I have never really thought about chalking before because we dont really have a policy on it. I am hoping to form one here tonight with the Senate.

The Chancellor said he is mainly concerned with certain lines containing the f-bomb and other profanity but wanted to make clear that, the university has no interest in punishing anyone.

After Gow left for a prior engagement, outgoing senate Vice President, Jared Zwettler gave his opinion on the matter:

I worked with a number of people on this issue, and I dont think its right that the university is censoring profanity. There is case law that does support use of profanity and that it cannot be regulated in many situationsI think that Chancellor Gows arguments do not hold a lot of weight and I strongly disagree with his position and his stance, and I want to make that known here today.

The SA further discussed this issue by way of SA2122-054: Resolution in Support of Student Free Speech Rights, written up by Senator Carter Drost.

James Szymalak, Assistant Professor of Political Science & Public Administration, was called on multiple times during Wednesdays meeting. He teaches many courses of this nature, including legal studies and ethics in government. Before coming to UWL, Szymalak served as a senior Pentagon personnel policy legal advisor within the Department of the Army. The SA called on him to give legal advice about the free speech resolution, and asked for his opinion regarding the chalking:

I am an actual attorney and a First Amendment scholar, and the law is really clear that profanity is not obscenity. The decision to chalk out f-bombs is a policy decision; I am here to talk about legal decisions, and the legal decision is clear. It doesnt matter that it is chalk or a ballpoint pen, the First Amendment is the First Amendment. Using dirty language is not unsettled and its not a recent development. Just because eighth-graders are around it does not change the law.

Szymalak said the universitys decision to strike out offensive wording is a clear violation of the Constitution. He also said the SOE chalking is not vandalism because the campus created it as a designated public forum, on this and many other campus-related events, issues, etc. which overrides the vandalism rule.

Earlier, Chancellor Gow spoke about various faculty members issues with their names being a part of the chalking. Szymalak cleared this up saying, This is also not defamation; the individuals that were named, as far as I know, are public figures. Public employees are public figures, and this idea that they are delicate geniuses that cant be talked about is crazy.

Addressing the senate, he also stated to his fellow faculty, I am disappointed in the university, but I am even more disappointed in my colleagues. How many of your professors have talked about this with you in class? To which no one raised their hand.

He said that he is here to support the students of the SOE. To the university, when are you going to draw the line and say no? No one has stood up and done a thing. Why isnt anyone else standing up for this? Its school event stuff now, but whats next?

Read more from the original source:
Student Association meets to discuss First Amendment rights and chalking around Hoeschler Tower - The Racquet

from the protect-speech-too dept

Last week the recently formed California Privacy Protection Agency held pre-rulemaking stakeholder sessions to solicit input on the regulations it intends to promulgate. I provided the following testimony on behalf of the Copia Institute.

Thank you for the opportunity to speak at these hearings. My name is Cathy Gellis, and Im here representing myself and the Copia Institute, a think tank that regularly researches and comments on matters of tech policy, including as they relate to privacy and free speech.

Im here today to talk about how privacy regulation and free speech converge in order to urge this board to carefully address the collision of any proposed regulation and the First Amendment, particularly with respect to the protection of speech and innovation. To do so I want to make three interrelated points.

First, as a general matter, it is important that any proposed regulation be carefully analyzed from a First Amendment perspective to make sure it comports with both its letter and spirit. When the First Amendment says make no law that abridges freedom of speech, that admonition applies to California privacy regulation. The enabling California legislation involved here itself acknowledges that it is only intended to supplement federal and state law, where permissible, but shall not apply where such application is preempted by, or in conflict with, federal law, or the California Constitution, and violating the First Amendment would run afoul of this clause.

Its also important that any such regulation comport with the spirit of the First Amendment as well. The First Amendment exists to make sure we can communicate with each other, which is a necessary requirement of a healthy democracy and society. It would be an intolerable situation if these regulations were to chill our exchange of information and expression, or to unduly chill innovation. While wanting online services to be careful with how they handle the digital footprints the public leaves behind is admirable, the public would not be well served if new and better technologies couldnt be invented, or new businesses or competitors couldnt be established, because California privacy regulation was unduly burdensome or simply an obstacle to new and better ideas.

Along these lines a second point to make is that California is not Europe. Free speech concerns do not get balanced here and cannot be balanced without violating the First Amendment. The experience of the GDPR in Europe is instructive in warning what happens when regulators try to make such a balance, because inevitably free expression suffers.

For instance, privacy regulation in Europe has been used as a basis for powerful people to go after journalists and sue their critics, which makes criticizing them, even where necessary, and even where under the First Amendment perfectly legal, difficult if not impossible, and thus chills such important discourse.

The GDPR has also been used to force journalists to divulge their sources, which is also anathema to the First Amendment and California law, along with itself violating of the privacy values wrapped up in journalist source protection. It also chills the necessary journalism a democratic society depends on. (As an aside, the journalistic arm of the Copia Institute has had its own reporting suppressed via GDPR pressure on search engines, so this is hardly a hypothetical concern.)

And it was the GDPR that opened the door to the entire notion of right to be forgotten, which, despite platitudes to the contrary, has had a corrosive effect on discourse and the publics First Amendment-recognized right to learn about the world around them, while also giving bad actors the ability to whitewash history so they can have cover for more bad acts.

Meanwhile we have seen, in Europe and even the U.S., how regulatory demands that have the effect of causing services to take down content invariably lead to too much content being taken down. Because these regulatory schemes create too great a danger for a service if they do not do enough to avoid sanction, they rationally chose to do too much in order to be safe than sorry. But when content has been taken down, its the world who needs it whos sorry now.

As well as the person who created the content, whose own expression has now been effectively harmed by an extrajudicial sanction. The First Amendment forbids prior restraint, which means that its impermissible for speech to be punished before having been adjudicated to be wrongful. But we see time and time again such prior restraint happen thanks to regulatory pressure on the intermediary services online speakers need to use to speak, which force them to do the governments censorial dirty work for it by causing expressive content to be deleted, and without the necessary due process for the speaker.

Then there is this next example, which brings up my third point. Privacy regulation does not stay well-cabined so that it only affects large, commercial entities. It inevitably affects smaller ones, directly or indirectly. In the case of the GDPR, it affected the people who used Facebook to run fan pages, imposing upon these individuals, who simply wanted to have a place where they could talk with others about their favorite subject, cripplingly burdensome regulatory liability. But who will want to run these pages and foster such discourse when the cost can be so high? Care needs to be taken so that regulatory pressure does not lead to the loss of speech or community, as the GDPR has done.

And that means recognizing that there are a lot of online services and platforms that are not large companies. Which is good; we want there to be a lot of online services and platforms so that we have places for communities to form and converse with each other. But if people are deterred from setting up, say, their own fan sites, independent of Facebook even, then thats a huge problem. Because we wont get those communities, or that conversation.

Society wants that discourse. It needs that discourse. And if California privacy regulation does anything to smother it with its regulatory criteria, then it will have caused damage, which this agency, and the public that empowered it, should not suborn.

Thank you again for this opportunity to address you. A version of this testimony with hyperlinks to the aforementioned examples will be published on techdirt.com shortly.

Filed Under: california, cppa, free speech, privacy

Continued here:
Wherein The Copia Institute Reminds California's New Privacy Agency That Its Regulations Need To Comport With The First Amendment - Techdirt

Lawyers representing voters inArizona,GeorgiaandNorth Carolinahave filed lawsuits alleging that their elected congressional representatives are barred from running for future office based on a little-known provision of the14th Amendment.

Specifically,Section 3of the 14th Amendment reads:

No person shall be a Senator or Representative in Congress who, having previously taken an oath to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the United States, or given aid or comfort to the enemies thereof.

Proponents ofbarring these representativesfrom running for reelection argue thattheir active supportfor those who stormed the U.S. Capitolon Jan. 6, 2021, qualifies as involvement in insurrection or rebellion against the U.S. government.

As a constitutional scholar, I believe that the lawyers seeking disqualification have a steep hill to climb in all of these cases especially when their arguments based on the 14th Amendment collide with the First Amendment and its protection of free speech.

That is not stopping those who want to hold accountable the elected officials who were involved in the storming of the Capitol on Jan. 6.

The challenges filed against GOP Reps.Marjorie Taylor Greeneof Georgia,Madison Cawthornof North Carolina andPaul Gosar and Andy Biggsof Arizona as well as Arizona Rep. Mark Finchem are part of a larger national campaign run by the nonprofit advocacy groupsFree Speech for PeopleandOur Revolution.

So far,judgeshave dismissed those argumentsin Arizonaand North Carolina. Both are on appeal.

The caseagainstRep. Greene of Georgia provides a useful lens through which to analyze this unique constitutional claim.

Thechallenge to her candidacycame to an end on May 5 when a Georgia state Judge Charles Beaudrot Jr. ruled thatGreene should remainon the ballot because lawyers challenging Greenes runfailed to provethat she engaged in insurrection on Jan. 6, 2021

The evidence in this matter is insufficient to establish that Rep. Greene engaged in insurrection or rebellion under the 14th Amendment to the Constitution, Judge Charles Beaudrot wrote in his ruling.

The lawsuit against Greene claimed, for example, that she frequently referred to the protest effort againstthe 2020 presidential electionas our 1776 moment.

This reference, lawyers argued, is a clear allusion to indeed, code for a violent overthrow of the existing government.

They claimed Greene had, at a minimum, given aid or comfort to enemies of the United States or, at most, engaged in insurrection by deploying such rhetoric.

And, after hermost recent court hearingson April 22, 2022, text messagessurfacedin which she asked about the possibility of President Donald Trumps declaringmartial law.

In the text, which was uncovered by theHouse select committeeinvestigating the events of Jan. 6,Greene toldthen-White House Chief of StaffMark Meadowsthat some members of Congress were saying in a private chat group that the only way to save our Republic is for Trump to call for Marshall (sic) law. I dont know on those things. I just wanted you to tell him.

Greene argued thather statementsand social media posts encouraged lawful protest by those who believe that the 2020 election was stolen.

TheFirst Amendment, she argued, allows for a broad range of free and unfettered speech, particularly political speech.

Greene alsotestified under oaththat she had no knowledge that any protester intended to disrupt the joint session of Congress that had convened to count the electoral votes.

In response to many of the questions posed to her, she claimed more than 50 times during her hearing thatshe didnt recall.

Greenefurther testifiedthat while she did encourage people to come to Washington, D.C., for a peaceful march, she did not assist any protester in navigating through the Capitol complex, as some have alleged.

Section 3 of the 14th Amendment was passed shortly after the Civil War in 1866 to bar Confederates from federal government positions. But that ban didnt last long.

Ablanket amnestyfor former Confederate soldiers was passed in 1872, making the vast majority of the rebels again eligible for office. In 1898, the prohibition was removed forthe last few hundredformer Southern congressmen and senators.

awthorns attorney, James Bopp Jr.,argued that the Amnesty Act of 1872nullified Section 3 of the 14th Amendment and allows Cawthorn to seek election in the upcoming May 17, 2022, GOP primary.

U.S. District Judge Richard Myersagreed and dismissedthe case against Cawthorn. The district judge ruled that the Amnesty Act of 1872, which exempted Confederates from proscriptions of Section 3, is still in force and shields Cawthorn from being prevented to run for office.

Unlike the case in North Carolina, the case against Greene in Georgia was allowed to proceed by a federal judge there. On April 18, 2022, U.S. District Judge Amy Totenbergdenied Greenes motionto block the case against her and best summed up the constitutional morass the cases have raised.

This case, Totenbergwrote in her 73-page ruling, involves a whirlpool of colliding constitutional interests of public import. Greenehas appealedthat decision.

Political speech has and deserves special protection. To protest the government, even using strong, unpleasant or unpopular language, is central to the protections afforded by the First Amendment.

As such, courts tend to cast a wide net when defining speech covered by the First Amendment.

In addition to the First Amendment limitations, I think there is something anti-democratic about prohibiting a candidate from even running for office.

The notion that voters get to choose their elected representatives through free and fair elections represents a principle at the core of American democratic traditions.

To remove the voters ability to choose those whom they wish to elect to public office requires a weighty justification, and courts have long ruled this way. While aiding and abetting an insurrection is such a justification, it is an open question whether Greenes conduct fits within the definition of Section 3 of the 14th Amendment.

Clearly, had Greene charged the Capitol with a weapon demanding that Congress seat President Trump, her actions would be clear and her disqualification warranted. But instead of weapons and storming, Greene deployed words and electronic posts.

The distinction makes a difference.

In my view, given the First Amendments robust protection of speech, to bar a candidate from running for office requires evidence of intent toengage in insurrectionin far greater proportion than what has thus far been presented in the case against Greene.

Even Greenes call for martial law likely is not enough. Bizarre and wrongheaded statements are protected by the First Amendment just as cogent and thoughtful ones are.

Ronald Sullivan is a professor of law at Harvard University.

May 13 |Curtis Sliwa and Bob Capano

May 12 |The Guardian via AP

May 11 |Gabriel Pariente

May 9 |Emily Finchum-Mason, The Conversation

See the original post:
Forgotten insurrection clause of 14th Amendment used to force members of Congress to defend their actions on Jan. 6 - Brooklyn Daily Eagle

A review of Richard L. Hasen, Cheap Speech: How Disinformation Poisons Our Politicsand How to Cure It (Yale University Press, 2022).

***

In 1995, Eugene Volokh published a law review article in which he predicted that the rapidly growing internet would dramatically reduce the costs of distributing speech and that the new media order that these technologies will bring will be much more democratic and diverse than the environment we see now. The concept, which Volokh dubbed cheap speech, would mean that far more speakersrich and poor, popular and not, banal and avant gardewill be able to make their work available to all.

To say that Volokhs article was prophetic would be an understatement. More than a quarter-century later, the cheap speech that Volokh predicted has upended commerce, art, politics, news and community. Many volumes can and should be written about the effects of the rapid evolution of cheap speech on discrete areas of American life.

Fortunately, Rick Hasen has done just that. In Cheap Speech: How Disinformation Poisons Our Politicsand How to Cure It, Hasen takes on the lofty task of examining the impact of cheap speech on American elections, politics and democracy. Hasen has written an extraordinary, thorough and fair examination of the impact of misinformation on democracy. He examines the costs and benefits of cheap speech and presents carefully crafted proposals that attempt to address the harms without straying from core First Amendment values or from falling into a moral panic about misinformation.

Hasen expands on Volokhs concept of cheap speech, defining it as speech that is both inexpensive to produce and often of markedly low social value. Hasen devotes the first part of the book to an even-handed evaluation of the impact of cheap speech on American democracy. Hasen does not villainize the internet as the source of all that is evil about modern politics. There is no doubt that the rise of the Internet has had many free speech benefits, Hasen writes. We worry much less about media consolidation and scarcity of information than we did when there were just three main broadcast television networks and a handful of local newspapers in each area.

Of course, the discussion of the internets benefits to democracy is followed by a very long but. Hasen documents many information harms that have accompanied the digital revolution: contraction of local journalism, political operations disguised as news sources, reduction in public trust in institutional media and elections, deep fakes, Russian disinformation during the 2016 presidential campaign, and of course the lies that led to the storming of the Capitol on Jan. 6, 2021.

Hasen explores how the dissemination of cheap speech has shaped modern politics by weakening political parties, accelerating demagoguery of candidates and opening the door to more public corruption. The unique challenges posed by online platforms and the algorithms they use to amplify and target extremist content can further contribute to the spread of conspiracy theories and other misinformation. Hasen writes of the increased power that platforms wield in their decisions to take down or leave up political content.

Although he comprehensively outlines the potential harms of cheap speech on elections and democracy, Hasen readily admits that the magnitude of some of these harms is unclear, in part because of the opacity of the operations of many platforms and the lack of researcher access to their data. (Indeed, the extent of the harms of misinformation is the subject of much-needed and spirited debate.) Hasens candor about the unknown makes readers more likely to consider his ultimate assessmentthat from a voters perspective, the costs of cheap speech likely have outweighed the benefits.

More important than Hasens evaluation of the problem is the second half of the book, in which Hasen considers potential solutions to mitigate some harms of cheap speech. Too often, discussions about misinformation end in solutions that casually dismiss First Amendment principles. Other times, they simply conclude with despair and do not even try to address the problems. Hasenone of the nations most knowledgeable and respected election law scholarscould have gotten away with half-baked proposals to lop off large chunks of the First Amendment for the sake of saving democracy from cheap speech.

Nor would Hasen have been alone had he proposed sweeping limits to free speech. The First Amendment allows the government to limit some false speech, such as perjury, fraud, and defamation, but the Supreme Court has held that false speech is not categoricallyor even generallyexempt from constitutional protection. Nor can the courts easily carve out new exceptions just because they believe that the harms of certain speech outweigh the benefits. The First Amendments guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits, Chief Justice John Roberts wrote in 2010.

That hasnt prevented well-intentioned but impractical proposals to censor in the name of misinformation prevention. For instance, earlier this year, Washington Governor Jay Inslee supported a bill that would make it a jailable offense for politicians to tell certain lies about election administration. While such proposals are borne of legitimate concerns about misinformation, too often they do not fully account for fundamental First Amendment values that constrain the governments ability to regulate speech. After state lawmakers consulted legal scholars, they redrafted the bill to limit it to cases that meet the Supreme Courts standard for imminent incitement, a high bar that, if applied faithfully, would make it incredibly difficult for prosecutors to bring charges arising from many politicians election lies. Yet it still likely would have a chilling effect on many politicians who have well-founded concerns about election administration. Even if they likely would not be convicted under the law, why risk the prospect of prosecution and legal fees? (The bill died without receiving a vote in the state legislature.)

Of course, nine people have the power to redefine First Amendment protections for false speech. And two of those nineJustices Clarence Thomas and Neil Gorsuchhave argued that the Supreme Court should reconsider New York Times v. Sullivan, the vital 1964 ruling that requires public officials who are plaintiffs in defamation lawsuits to meet the high bar of actual malice. Among the cases that Thomas cited in support of the need to reconsider Sullivan was Pizzagate, the online conspiracy alleging that prominent Democrats ran a sex trafficking ring in a D.C. pizza shop, causing an armed man to enter the restaurant in December 2016 and fire three shots. Our reconsideration is all the more needed because of the doctrines real-world effects, Thomas wrote. Public figure or private, lies impose real harm.

But Hasen has not joined the calls for substantial abrogations to free speech. As Hasen recognizes, solving the problems created by cheap speech with sweeping new laws that limit speech would undermine some fundamental American values and a key part of our democracy: the benefits of robust and uninhibited political debate. Hasen also properly questions who, in a society animated by distrust, would do the regulating and how they would do it.

Rather than traveling down the censorial road that many others have traveled, Hasen relies on his deep knowledge of election and campaign finance law to suggest ways to mitigate some of the worst political misinformation harms.

Some of Hasens suggestionssuch as ensuring that state and local governments competently administer electionsdo not raise First Amendment problems. The proposals that do implicate potential free speech concerns valiantly attempt to stay within the strictures of the First Amendment. For instance, when Hasen suggests that Congress amend campaign finance disclosure laws to address online advertisements, he attempts to adhere to the Supreme Court precedent that has approved of some campaign finance disclosure requirements. Yet Hasen also recognizes that some justices who supported campaign finance disclosure laws no longer sit on the court, so how the current court would react to new requirements is uncertain.

Hasen also recognizes that it is hard to predict whether the Supreme Court would approve his proposal to require large online platforms to place labels on synthetically altered videos and images of politicians, addressing the concerns about deep fakes. Yet he presents a reasonable argument for such a proposal to survive even the most rigorous constitutional scrutiny and contrasts it with more constitutionally problematic bans on deep fakes.

Hasen argues that the government should have the power to ban false speech about the mechanics of voting, such as lying about when an election will occur or how people can vote. The Supreme Court has suggested that a states ban on speech that is intended to mislead voters about voting requirements and procedures would survive a First Amendment challenge. Hasen is appropriately careful to exclude from his proposed ban generalized claims that an election will be rigged or stolen, as well as postelection claims about stolen or rigged elections. The narrowness of this proposal means that it would not address much of the big lie that fueled the Jan. 6 storming of the Capitol, but it is far more likely to survive a First Amendment challenge than a more sweeping election misinformation proposal.

Hasen rightly resists the temptation to attempt to address misinformation through amendments to Section 230, the 1996 law that shields online platforms from many claims arising from third-party content. A wide swath of misinformation is constitutionally protected, and amending Section 230 could not eliminate that protection. He also correctly recognizes that repealing Section 230 would not address the claims that platforms are biased against conservatives, as the increased legal risk likely would cause platforms to take down more content. That is not to say that Hasen dismisses concerns about platform power; rather, he suggests addressing them via required disclosures about algorithmic tweaking of content, antitrust law and privacy laws.

Even if Congress were to adopt all of Hasens proposals and the courts did not strike them down, he recognizes that law is not a panacea. Law alone is not going to stop millions of people from believing the election was stolen when a president popular within his party repeatedly uses social media to advance the false claim that it was, Hasen acknowledges. He appropriately devotes the final chapter to extralegal solutions to problems caused by misinformation. Hasen recognizes the ability of social media platforms to more effectively address misinformation (as online platforms are not state actors that are bound by the First Amendment). To be sure, content moderation at scale is difficult, and many of the toughest decisions will inevitably attract some criticism. And while public pressure on platforms to moderate can be effective, pressure coming from the government could raise First Amendment concerns about jawboning. Hasen also correctly focuses on the need to invest more heavily in local journalism and improve digital literacy.

The book would benefit from a meaningful analysis of how other countries have confronted misinformation in recent years. Authoritarian governments oppressive use of fake news regulations would further bolster Hasens caution against broader restrictions on false speech. U.S. protections for false speech are not an accident. The First Amendment does apply to a wide range of false speech, but the experiences of these other countries illustrate why it should apply to this speech.

In the books conclusion, Hasen argues that the Supreme Court should recognize that First Amendment balancing must be recalibrated, though he recognizes that the risk of censorship and of stifling robust debate still must figure heavily in constitutional analysis. Recalibration of core First Amendment protections could lead to dangerous consequences. But such recalibration likely is unnecessary for many of the narrow and reasonable proposals that Hasen presents.

Misinformation has the potential to upend individuals, institutions and democracy. It is tempting to seek to address these harms via a radical rethinking of free speech protections. But balanced and narrowly tailored solutions, such as those that Hasen has proposed, are more valuable to this vital discussion.

The views expressed in this review are those of the author and do not represent the Naval Academy, Department of the Navy, or Department of Defense.

Read the original:
Confronting Misinformation in the Age of Cheap Speech - Lawfare

The News:Attorneys with the Wisconsin Institute for Law & Liberty (WILL) issued aletterto administrators at the Kiel Area School District urging the district to drop a Title IX complaint and investigation against three eighth grade boys who are being accused of sexual harassment for using incorrect pronouns when referencing a classmate. WILLs letter explains that the mere use of biologically correct pronouns not only does not constitute sexual harassment under Title IX or the Districts own policy, it is speech protected by the First Amendment.

The Quote:WILL Deputy Counsel, Luke Berg, said, School administrators cant force minor students to comply with their preferred mode of speaking. And they certainly shouldnt be slapping eighth graders with Title IX investigations for what amounts to protected speech. This is a terrible precedent to set, with enormous ramifications.

Background:Three eighth grade students in the Kiel Area School District were notified of a Title IX complaint and investigation for sexual harassment for using a biologically correct pronoun when referring to a classmate, instead of the students preferred pronoun of they/them. The Districts position appears to be that once a student informs others of alternate, preferred pronouns, any subsequent mispronouning automatically constitutes punishable sexual harassment under Title IX.

Sexual harassment, as defined in bothTitle IXand the Kiel Area School Districts policy, typically covers things like rape, sexual assault, dating violence, stalking, inappropriate touching, and quid pro quo sexual favors. None of thator anything even close to itis alleged in the complaint. While there is a catchall for unwelcome conduct that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to education, the mere use of a biologically correct pronoun, without significantly more, does not count, and if it did, it would violate the First Amendment. Schools of course can and should deal with teasing and bullying, but using so-called incorrect pronouns alone is not punishable, without more.

Further, the District has also failed to follow Title IX procedures and its own process. Both the Districts policy and Title IX regulations require notice of the allegations before beginning any investigation so that the accused has sufficient time to prepare a response before any initial interview. The District failed to provide a detailed notice of the allegations, instead providing only a generic letter, one day before the District sought to question the minor students, stating that the boys were accused of using incorrect pronouns. The District initiated its investigation and conducted interviews without first providing additional details or giving the boys and their families time to prepare.

What the District calls mispronouning does not amount to sexual harassment under Title IX as a matter of law. And the Districts conduct infringes on the First Amendment and Due Process rights of the students.

WILLsletterurges the District to immediately end its investigation, dismiss the complaints, and remove the complaints from the students records.

Read More:

See the rest here:
WILL Urges Kiel Schools to Drop Title IX Complaint, Investigation of Eighth Graders for Using Incorrect Pronouns - Wisconsin Institute for Law &...

In a letter to the FBI, Rep. Jim Jordan said that whistleblowers have come forward with allegations that the bureau is attempting to terminate employees that were involved in First Amendment activity on January 6, 2021.

"According to several whistleblowers, the FBI is suspending the security clearances of FBI employees for their participation in protected First Amendment activity on January 6, 2021," the letter from Jordan, ranking member of the House Judiciary Committee, states.

Among the justifications from the FBI for these suspicions is "Adjective Guideline A Allegiance to the United States."

Jordan said that this reasoning implies that "the FBI believes the employees who attended protests on January 6 are no longer loyal to the United States."

"Because a security clearance is required for FBI positions, the suspension of the security clearance means the FBI has suspended these employees from work indefinitely," wrote Jordan. "Such a suspension is likely to be the first step in terminating employment."

Citing an employee whose name was redacted, Jordan said that this person had been working for the FBI for more than a decade, and previously served 20 years in the military.

"According to whistleblowers, while on leave, these FBI employees attended public events in Washington DC with their spouses. We have been told that [redacted] and the other FBI employees did not enter the United States Capitol, have not been charged with any crime, and have not been contacted by law enforcement about their actions," the letter states.

Jordan wrote that it is "extremely concerning that the FBI would seek to suspend the security clearances of these employees and begin the process to potentially terminate their employment altogether."

He added that it is "insulting" that the FBI would "openly question the patriotism of long-0time FBI employees" because they "exercised their First Amendment rights on their personal time without breaking any laws."

"The totality of the FBI's actions as relayed to us present the appearance that the FBI may be retaliating against these employees for disfavored political speech," wrote Jordan.

Jordan added that this perception is "buttressed by documentation of examples of political bias ingrained the FBIs leadership culture," including one senior FBI official writing to a colleague that he "could SMELL the Trump support" at a southern Virginia Walmart.

"We are conducting oversight to ensure the FBI is not retaliating against FBI employees for exercising their First Amendment rights," wrote Jordan. "We ask for your personal assurance that the FBI will cooperate fully with the Inspector General's examination."

Jordan additionally requested that the FBI hold a staff-level briefing "concerning the FBI's personal actions against employees involved in First Amendment protected activity on January 6."

"Finally, we remind you that whistleblower disclosures to Congress are protected by law and that we will not tolerate any effort to retaliate against whistleblowers for their disclosures," Jordan concluded.

See more here:
Whistleblowers claim FBI is targeting employees that engaged in First Amendment activities on January 6 - The Post Millennial

The University of Utah is a champion of free speech and respects the opinions of its faculty, staff and students. However, as an institution of higher education, and a state-run entity, we must be careful about who is speaking for themselves, and who is speaking on behalf of the university.

Employees are welcome to weigh in on any issues of public concern and are free to lobby politically and support political candidates. They must do so though in a personal capacity, outside of work hours and using their own resources.

This means that employees should not use university email accounts, letterhead, office supplies and equipment or other university resources to engage in these activities. In addition, employees are expected to make it clear that they are speaking on their own behalf and not on behalf of the university.

Academic freedom is of the utmost importance for faculty at the university. It is recognized as a right of all members of the faculty, whether with or without tenure or continuing appointment, of all administrative officers, and of all students. However, faculty members must avoid exploiting the universitys name, brand or their own relationship with the university for personal reasons unrelated to their legitimate academic or professional activities. They must not intentionally create the impression, in public appearances or statements, that they are representing the university unless, in fact, they are.

The university has a wide-ranging policy regarding free speech on campus with guidelines on everything from organizing demonstrations on campus to hanging posters or signs to setting up student organizations. Most answers to questions about free speech on campusand by students, faculty, and staffcan be found in it.

Members of the campus community must remember that protection of free speech does not mean protection from the consequences of it. Speaking out means being willing to be criticized, to face blowback, and to deal with real world consequences. This is especially true when the speech in question violates university policies or puts members of the community at risk.

The First Amendment is one of the building blocks of freedom in the United States of America. Each individual on the University of Utah campus has a right to it. But we must also protect the universitys neutrality when it comes to issues being debated. Working together we can all make sure our voices are heard, and the university remains a place of reasoned discourse, honesty and respect for the rights of all individuals.

The rest is here:
Free speech and the campus community | @theU - @theU

President Ibrahim Mohamed Solih has ratified the first amendment to the Maldives Foreign Services Act (Law no. 20/2021).

The President ratified the amendment on Tuesday.

The People's Majlis of Maldives passed the bill of the first amendment to the Maldives Foreign Services Act at its 35th sitting of the first session on April 25, 2022.

The amendment repealed Section 44 (b) of the legislation, which stated that the National Pay Commission would determine the salaries and allowances of Foreign Service employees based on the recommendations of the Ministry of Foreign Affairs, and Ministry of Finance.

Additionally, amendments were made to Sections 47 (c) and 56 (c), while the bill also rescinded select clauses from Section 71.

The amendment also specified details of retirement benefits for Foreign Service employees.

The new amendment confers the authority to set remuneration and allowances on the National Pay Commission based on the existing pay structures stipulated in the National Pay Policy Act.

Upon ratification, the amendment has now been published in the Government Gazette.

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President ratifies the first amendment to the Maldives Foreign Service Act - Raajjemv

Former Indiana University Professor Mark McPhail faced retaliation for being outspoken on issues of race and diversity on campus, according to a new lawsuit. (Photo courtesy Indiana University)

by Josh Bleisch

Mark McPhail, a former communications professor at Indiana University Northwest in Gary, Indiana, has sued the university and administrators last month for retaliating against his exercise of First Amendment rights, among other things. The lawsuit alleges IU Northwest fired McPhail after he criticized the selection of the person appointed to lead a reorganized School of the Arts and spoke out about racism and diversity efforts. McPhail seeks reinstatement to his tenured position and damages to compensate for lost salary.

IU Northwest initially hired McPhail in 2015 as executive vice chancellor for academic affairs with an appointment as professor of communication with tenure. He resigned from his administrative position and assumed his tenured professorship a year later.

During his time on the faculty, McPhail has been outspoken on issues of race and diversity at his institution. He hosted a public forum in 2018 titled Diversity: An unfulfilled promise at IU Northwest that included members of the Indiana state legislatures Black Legislative Caucus and identified ways IU Northwest had failed to support black students. McPhail argued, overemphasis on institutional diversity initiatives can obscure or frustrate progress.

McPhails complaint alleges that the day after he appealed, IU terminated his employment by sending police to his home.

McPhail also spoke out on matters of university governance. When IU Northwest announced it would merge its Departments of Fine Arts and Performing Arts with the Department of Communication Studies to create a new School of the Arts, McPhail criticized the administrations process for selecting the new schools dean. He argued at the time that IU Northwest selected a dean without a search and without sufficient transparency under university policy. As a result, McPhail alleges, IU Northwest transferred him to IU Bloomington for two years.

Upon his return, McPhail alleges the dean refused to communicate with him about his course assignments and refused to assign him certain courses because McPhail had told IU the deans appointment violated university policy. When the time came for his first performance review after returning, the dean characterized McPhails teaching as inadequate, relying on unspecified reports about his reputation as a teacher and the number of students who failed his class.

Things came to a head when McPhail attempted to defend himself against the deans characterization of his performance. The dean said that, because McPhail had attempted to shift the blame, he would recommend that the university suspend McPhail from teaching and reduce his salary by 75%. IU Northwests executive vice chancellor agreed and did just that.

The situation got even stranger after McPhail attempted to appeal that decision. McPhails complaint alleges that the day after he appealed, IU terminated his employment by sending police to his home with a termination letter. The reason the university gave for its drastic action was that McPhail made a threat of physical violence by saying words to the effect that the only way to end racism is to kill all white people.

Rhetorical hyperbole, or even the endorsement of violence, does not exclude a particular statement from constitutional protection.

McPhail in his complaint disputes saying that or anything to the effect. But even if he had, that speech would be protected under the First Amendment. Despite what IU Northwest says, McPhails purported statement is not a true threat that would fall outside of First Amendment protection. A true threat is a statement by which the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. Rhetorical hyperbole, or even the endorsement of violence, does not exclude a particular statement from constitutional protection.

FIRE will be closely watching McPhails lawsuit as he fights to vindicate his First Amendment rights and get his job back.

FIRE defends the rights of students and faculty members no matter their views at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, submit your case to FIRE today. If youre faculty member at a public college or university, call the Faculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533).

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Fired for criticizing his administration and discussing racism, Indiana professor sues - Foundation for Individual Rights in Education

In yesterday's National Press Photographers Ass'n v. McCraw (W.D. Tex.), Judge Robert Pitman held that Texas statutes limiting drone photography were unconstitutional. A brief summary of the statutes:

Section 423.003 imposes criminal and civil penalties by declaring it unlawful to use "an unmanned aircraft to capture an image of an individual or privately owned real property with the intent to conduct surveillance on the individual or property captured in the image." Section 423.002 exempts certain uses of UAVs from liability under the Surveillance Provisions but does not exempt newsgathering. Exemptions include "professional or scholarly research and development or on behalf of an institution of higher education."

Texas Government Code Sections 423.0045 and 423.0046 (together "No-Fly Provisions") impose criminal penalties by making it unlawful to fly UAVs over a "Correctional Facility, Detention Facility, or Critical Infrastructure Facility" or "Sports Venue" at less than 400 feet. Critical infrastructure facilities are defined to include oil and gas pipelines, petroleum and alumina refineries, water treatment facilities, and natural gas fractionation and chemical manufacturing plants. In 2017, critical infrastructure was expanded though legislative amendments to include animal feeding operations, oil and gas drilling sites, and chemical production facilities, among others. The 2017 amendments also defined a "sports venue" to include any arena, stadium, automobile racetrack, coliseum, or any other facility that has seating capacity of more than 30,000 people and is "primarily used" for one or more professional or amateur sport or athletics events. Plaintiffs contend that when combined with Federal Aviation Administration ("FAA") regulations, which require UAVs to fly below 400 feet, the No-Fly Provisions effectively ban UAVs at the listed locations. The No-Fly Provisions exempt certain UAV users, including those with a "commercial purpose."

The court concluded that drone photography was covered by the First Amendment:

In the analogous context of filmmaking, the Fifth Circuit has noted that "the First Amendment protects the act of making film, as 'there is no fixed First Amendment line between the act of creating speech and the speech itself.'" Furthermore, courts have never recognized a "distinction between the process of creating a form of pure speech (such as writing or painting) and the product of these processes (the essay or the artwork) in terms of the First Amendment protection afforded.

Here, Plaintiffs have established that Chapter 423 restricts their use of drones to record the news, necessarily constraining their ability to disseminate the news. It is uncontested that budgetary and other constraints may make drones the only option for recording certain events. Defendants assert that other optionsnamely expensive helicopterscan fill the same role in facilitating news production. Yet they cannot dispute the extreme price and safety differences between these technologies. Furthermore, Pappalardo and the organizational plaintiffs' members have stated that drones are central to their journalistic pursuits, claims which Defendants do not refute.

The court concluded that the restrictions were content-based and thus subject to strict scrutiny:

The Surveillance and No-Fly Provisions are both content-based restrictions that regulate based on the subject of the expression. The Surveillance Provisions require the enforcing official to inquire into the contents of the image to determine whether it is prohibited. Specifically, the provisions apply to images of individuals and private real property only. Drone photography is permitted when the subject is public property, but when the subject is an individual or private property, the possession, disclosure, display, or distribution of the image is prohibited. In effect, the statute "identifies various categories" of images based on their content, "then subjects each category to different restrictions." An official must first ascertain the subject matter of the drone image to determine whether it is permissible under the statute. Therefore, it is the content of the image that determines its permissibilitythe definition of a content-based restriction.

The No-Fly Provisions are also subject to strict scrutiny by conditioning the legality of images based on their purpose. "Whether laws define regulated speech by particular subject matter or by its function or purpose, they are subject to strict scrutiny." Under the No-Fly Provisions, expression that would otherwise be prohibited is permissible if "used for a commercial purpose." Indeed, Calzada and Wade both note that, as journalists, they cannot take drone images of Nelson Wolff Stadium and Globe Life Park, respectively. But Wade was hired by the Rangers to take the very same images of Globe Life Park "for their own public relations purposes"that he was "not permitted to share with members of the news media." Here too, then, the purpose determines the legality of the speech. For both the Surveillance and No-Fly Provisions, the subject or purpose of the drone-captured image is the key to its applicability. Thus, both constitute content-based restrictions and trigger strict scrutiny under the First Amendment.

The Surveillance Provisions are separately subject to strict scrutiny as they discriminate based on the identity of the speaker. A regulation may also constitute a content-based restriction if it discriminates between speakers in a way that "disfavors" certain speakers in exercising their First Amendment rights. The Supreme Court has admonished that "[s]peech restrictions based on the identity of the speaker are all too often simply a means to control content." Section 423.003 provides an extensive list of individuals whose use of drones is not proscribed. Professors, students, employees of insurance companies, and real estate brokers all appear on this list; journalists do not. As Plaintiffs note, the same drone image taken legally by a professor would constitute a misdemeanor if captured by a journalist.

And the court concluded that the law failed strict scrutiny:

Here, Defendants cannot carry their burden to establish that Chapter 423 is "actually necessary" to protect any identified interests. In enacting the law, state legislators claimed the law would protect private property, individual privacy, and the safety of critical infrastructure facilities.

However, Defendants have failed to establish that alternative means are insufficient to sufficiently protect these interests. Plaintiffs note that "Defendants have a variety of tools to protect the privacy and private property of Texans from overly intrusive or dangerous drone use without Chapter 423." The Texas criminal trespass statute, recording and voyeurism statutes, and tort claims including intrusion upon seclusion all have been or could be used to protect the privacy of individuals from UAV recordings. As to safety of critical facilities, it is already a felony under Texas law to knowingly damage, impair, or interrupt a critical infrastructure facilities. Having failed to identify any interest that is unprotected absent Chapter 423, Defendants cannot establish that this provision is "actually necessary." Indeed, "[m]ere speculation of harm does not constitute a compelling state interest."

The Surveillance and No-Fly Provisions are [also] overinclusive and thus overbroad because they "unnecessarily circumscribe[s] protected expression." Plaintiffs have established that Chapter 423 effectively outlaws the use of UAVs for newsgathering on private propertyconstituting 95 percent of the state. As Plaintiffs note, the Surveillance Provisions "prevent[] journalists from using drones to record many scenes that could be recorded from a helicopter, or that anyone standing on public property could easily see and record." Wade explains that "even if I am physically over public property, I am violating the law by documenting private real property or a person on that property." Similarly, the No- Fly Provisions proscribe use of drones even when they "indisputably do[] not pose the risks that the State claims." In particular, restrictions on recording empty stadiums seem to belie explanation, and Defendants have done nothing to alter this impression.

The Surveillance and No-Fly Provisions are also underinclusive based on their carve-outs for uses of UAVs that pose the same risks as would drone journalism. If the interests in privacy and safety were indeed sufficient to uphold the law, the exceptions included in Chapter 423 would "leav[e] appreciable damage to [the government's] interest unprohibited." The Surveillance Provisions exclude 21 uses of drones, none of which obviate the purported privacy concerns of newsgathering. As such, the exceptions "raise[] serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint." As to the No-Fly Provisions, the exemption of drone photography for "commercial purposes" appears divorced from any asserted interest in safety or privacy.

The Court also held that the terms "surveillance" and "commercial purposes" were unconstitutionally vague:

Chapter 423 does not provide a definition of "surveillance," nor do Defendants put forth a single definition. ("Surveillance can involve 'close observation or listening of a person or place in the hope of gathering evidence.' Or it might be as broad as the 'act of observing or the condition of being observed.' Either might include journalism.").

Defendants further provide that surveillance may mean "the careful watching of a person or place, especially by the police or army, because of a crime that has happened or is expected"; "a watch kept over a person, group, etc., especially over a suspect, prisoner, or the like[;] continuous observation of a place, person, group, or ongoing activity in order to gather information"; or "the process of carefully watching a person or place that may be involved in a criminal activity." None of these definitions conclusively includes or excludes journalism, and none is found within the statute.

Defendants themselves double down on their refusal to define the term and its applicability to journalism, stating that "'journalism' may or may not constitute 'surveillance,' depend[ing] on factual determinations by a jury." Defendants claim that "surveillance" is distinct from "observation," because it "involves prolonged time periods and/or some degree of surreptitiousness or invasion of one's expectation that they are not being watched. But this contention only highlights the vagueness in the word's meaning, for it in no way clarifies whether journalism is covered.

The statute [also] does not define the term "commercial," and dictionary definitions do not provide conclusive guidance as to whether photojournalism is included in the definition. [Details omitted. -EV]

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Drone On: Court Recognizes First Amendment Right to Use Drones for Newsgathering, Voids Texas Restrictions - Reason