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Category Archives: First Amendment

First Amendment lawsuits pile up against governors who block … – WJLA

Posted: August 13, 2017 at 1:52 am

WASHINGTON (Sinclair Broadcast Group)

The American Civil Liberties Union (ACLU) is representing individuals in Kentucky, Maine and Maryland who argue that the governors in those states have violated the First Amendment by deleting comments and blocking users on the governors' Facebook and Twitter pages.

The plaintiffs in each case argue that they were shut out of a public political forum because they had been critical of the governors' policies or expressed views were at odds with their state's chief executive. By blocking comments and users, the plaintiffs say their governor has violated their right to free speech and their right to petition the government for redress of grievances.

One of the issues at stake is whether public figures can use their social media accounts to sanction other users based private preferences. More fundamentally the cases could determine whether political speech is protected in the social media age.

"In this new world of social media, government officials and constituents are using these platforms as a powerful tool to connect with each other," said Meagan Sway, Justice Fellow with the Maine ACLU chapter. "But when that happens, the First Amendment applies."

Maine Gov. Paul LePage (R) has been accused of using his Facebook account in an official government capacity to conduct official government business. He has also taken advantage of the platform's features to block certain constituents. According to the ACLU, "that's unconstitutional censorship."

The arguments are similar in Kentucky and Maryland, where numerous constituents have come forward to challenge the 21st century version of being banished from the public commons. In Utah, the ACLU has put the state's federal congressional delegation on notice after similar complaints from constituents.

Already, experts anticipate the cases in Kentucky, Maine and Maryland will shape the environment for the high-profile case involving President Donald Trump blocking Twitter users.

The Knight First Amendment Institute filed suit against the president in June arguing it is unconstitutional for an elected public official using a "designated public forum," like Twitter, to block speech just because it is critical or disagreeable.

"It's a new area of law," Sway said in an interview with WGME News. "We think courts will agree with us ... that this is an open platform, that the government cannot kick people off just because [they] dont agree with them."

Roy Gutterman, director of the Tully Center for Free Speech at Syracuse University, said the pending social media cases beg for a "firm declaration" from the courts that blocking political speech on social media a violation of the First Amendment.

"If you're a government official, your social media is an extension of your office and you cant block people for innocuous reasons, or for political reasons" he emphasized. "If you're a government official, especially a governor, I don't think you can bifurcate your personal speech from your official speech."

In Maine, LePage has worked to do just that and distance his official position from his official social media accounts.

A few weeks ago, the governor's "about" page on Facebook was updated. It now states that the page is "official-but not managed by gov't officials," was a fan page but is now home to LePage supporters. However, the page was verified on behalf of the governor and LePage even opted into Facebook's "Town Hall" feature, which helps connect constituents and their government representatives.

Shortly after taking office in 2015, Gov. Larry Hogan of Maryland set up Facebook and Twitter accounts and by January 2017, Hogan had reportedly blocked 450 people.

"He didnt like [the posts], but thats not enough," Legal Director for ACLU Maryland Deborah Jeon told WBFF earlier this month. "People have a First-Amendment right to their own opinions. And when the governor establishes a forum for speech between constituents and the government, then he has to listen to what they have to say, whether or not he likes it."

The governor never responded to the ACLU's letter asking him to reinstate the seven individuals banned.

Hogan reacted to the lawsuit saying it was "frivolous" and motivated by partisan politics.

"Its silly, its ridiculous," Hogan told reporters last week. "We have about a million people a week on our Facebook page. Four of them were blocked for violating our Facebook policy and now the Maryland Democratic party got them to file suit with the ACLU."

The governor has defended blocking constituents on the basis of his office's "social media policy," which ACLU claims violates the state's social media policy. Under Hogan's personal policy, comments and users can be blocked if they are deemed irrelevant to the governor's announcements or initiatives, and if the users engage in a "Coordinated Effort" to petition the office. The office claims the right to block users and comments "at any time without prior notice or without providing justification."

"I don't buy that argument," he noted, adding that such arguments get into "untested" legal areas. "This is public business. This is clearly a first amendment issue with political speech implications and the right to petition government."

In Kentucky, Gov. Matt Bevin has argued that the only comments or users being blocked are "abusive trolls" and others who are posting obscene or inappropriate content.

"Gov. Bevin is a strong advocate of constructive dialogue," his communications directed said responding to the ACLU suit. "Blocking individuals from engaging in ... inappropriate conduct on social media in no way violates their free speech right under the U.S. or Kentucky constitutions, nor does it prohibit them from expressing their opinion in an open forum."

According to the plaintiffs, there are "hundreds" of users who have been permanently blocked by Bevin, including "Kentuckians Against Matt Bevin," a public Facebook group with over 1,900 followers.

One of the plaintiffs in the case, Mary Hargis, noted that while she has been critical of the governor on certain issues she was "shocked" to discover he had blocked her. "I may not have voted for Governor Bevin, but I'm one of his constituents," she said. "He shouldn't be permanently dismissing my views and concerns with a click."

As these suits are litigated and President Trump squares off against his blocked Twitter followers, it is unclear how the courts will rule, though U.S. courts tend to rule firmly in favor of protecting political speech.

"If these cases keep getting litigated and appealed ... I can actually see the Supreme Court weighing in on this a year or two down the road," Gutterman suggested. "I think it would be a soft ball."

Just recently the Court handed down its first major decision on a social media case in June, ruling unanimously that the First Amendment protected an individual from being refused access to social media. The question before the court was whether a convicted sex offender could be blocked from Facebook , Twitter and other popular social media sites.

The Supreme Court ruling is likely to provide a strong argument for the plaintiffs as the Facebook blocking cases move forward.

"Political speech ... has always been the highest level of First Amendment activity," Gutterman stated. "There's clear First Amendment action here. You've got government activity, government action and citizen expression."

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DC’s transit agency rejected ads touting the First Amendment (really) – Ars Technica

Posted: August 11, 2017 at 5:53 pm

Enlarge / Issue ads like this one from 2012 used to be commonplace in the DC metro.

The American Civil Liberties Union on Wednesday sued the Washington Metropolitan Area Transit Authority, the government agency thatoperates the capital region's subway system and its primary bus network. The ACLU argues that the transit agency's policies for accepting advertisements on its subway stations, trains, and buses violate the First Amendment by discriminating against controversial and non-mainstream viewpoints.

The plaintiffs in the lawsuit are ideologically diverse: the ACLU itself, an abortion provider, People for the Ethical Treatment of Animals, and alt-right-Internet-troll-to-the-point-Twitter-actually-banned-him Milo Yiannopoulos.

The inclusion of an alt-right figure like Yiannopoulos helps to demonstrate the ACLU's point that WMATA's policy squelches free-speech rights across the political spectrum. But Yiannopoulos' inclusionhas also raised the hackles of some on the political left, who see associating with the controversial authoras beyond the pale. Chase Strangio, an ACLU attorney who has represented whistleblower Chelsea Manning, posted a statement calling Yiannopoulos "vile" and attacking the ACLU for defending his First Amendment rights.

But the ACLU has a long history of defending the First Amendment rights of groups far outside the mainstream, including Nazis and the Ku Klux Klan.As such, the organizationhasn't backed down from its defense of Yiannopoulos. "Protecting the First Amendment rights of all of these speakers is crucial to the ability of civil rights movements to make the change we need to make," the group argued in a Wednesday blog post.

The controversy began in 2015, when anti-Muslim activist Pam Geller tried to place ads depicting a cartoon of the prophet Muhammad on DC subways. That put WMATA in a difficult position, because some Muslim extremists have threatened violence against anyone who publishes Muhammad cartoons.

In an apparent effort to duck the controversy, WMATA announced that it was suspending "issue oriented" advertising across the board.

Of course, the big problem here is that it's not so clear what counts as an "issue oriented" ad. For example, military contractors have long taken out lavish ads touting their latest fighter planes. Arethey merely advertising commercial products or are they trying to influencepolicy decisions about what hardware to buy?

The ACLU believes that the "no issue ads" standard is unworkable and unconstitutional, and it assembled a group of plaintiffs to illustrate the point:

A couple of things are obvious from this list. First, while Yiannopoulos'participation in the lawsuit has gotten the most attention, the ACLU isn't only defending the rights of right-wing provocateurs like Yiannopoulos and Geller. Groups defending left-wing causes like animal rights and abortion rights have also been affected.

Second, while WMATA might have thought "issue ads" were a clear and value-neutral category, in practice it has turned out to be unworkably vague. Rules that allow companies to hawk fighter jets and hamburgers, but ban anti-war and animal rights groups from advertising, is the opposite of viewpoint-neutral. The WMATA's guidelines give the agency unfettered discretion to decide which positions are too controversial to appear in ads, and that seems hard to square with the First Amendment.

The ACLU is generally viewed as a liberal group, but itsabsolutist stance on the First Amendment doesn't fit well with everyone on the political left. A growing contingent of left-wing thinkers have come to see "hate speech" as a serious problem and free speech absolutism as an obstacle to addressing it.

Controversy has become more common over the last eightmonths as the ACLU has attracted a wave of new supporters alarmed by the Trump presidency. Many people donated to the ACLU in the expectation that the group would oppose Trump administration policiesand the group has done plenty of that. But not all of the ACLU's new donors understood the depths of the ACLU's commitment to free speech rights.

"Especially for many of our new members, they may be surprised by the ACLU's robust First Amendment positions," ACLU staff attorney Lee Rowland said in February. "But it's certainly not new."

Over time, defending the free speech rights of right-wing extremists has become something of a trademark for the group. For example, in 2012 the ACLU sued the state of Georgia defending the right of the KKK to "adopt a highway" in the state. In 2010, the group defended the free speech rights of Fred Phelps, the infamous pastor who pickets the funerals of LGBTsoldiers with anti-gay messages.

The ACLU has been doing this kind of thing for almost 100 years now, and it's not likely to stop any time soon. Individualswho don't want their donations supporting the rights of people who engage in "hate speech" mightbe wise toresearch organizations ahead of time.

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Symposium: A path through the thicket the First Amendment right of association – SCOTUSblog (blog)

Posted: at 5:53 pm

Daniel P. Tokaji is the Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law at The Ohio State University Moritz College of Law.

A constitutional standard for partisan gerrymandering is the holy grail of election law. For decades, scholars and jurists have struggled to find a manageable standard for claims of excessive partisanship in drawing district lines. Most of these efforts have focused on the equal protection clause. But as Justice Anthony Kennedy suggested in Vieth v. Jubelirer, the First Amendment provides a firmer doctrinal basis for challenging partisan gerrymandering. An established line of precedent understands voting as a form of expressive association protected by the First Amendment. These cases offer a nuanced standard that would avoid the undesirable result of rendering any consideration of partisan consequences unconstitutional.

The right of expressive association

There is an obvious difficulty in relying on the First Amendment in partisan-gerrymandering cases: The Supreme Court has never considered voting a form of protected speech. It has, however, long recognized that voting is a form of protected association, at least in certain contexts. Before getting to those cases, its helpful to examine the roots of the right of expressive association.

The original associational-rights cases involved groups like the NAACP and the Communist Party that were extremely unpopular one might even say persecuted in many parts of the country. In NAACP v. Alabama ex rel. Patterson, for example, the Supreme Court invalidated a requirement that the NAACP disclose its membership list. Justice John Marshall Harlan IIs opinion for the court remarked that the freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the liberty assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. In other words, expressive association is a necessary corollary of free speech.

The right of expressive association is closely linked to the First Amendments prohibition on content and viewpoint discrimination. As Justice Antonin Scalia put it in one of his last dissenting opinions, the First Amendment is a kind of Equal Protection Clause for ideas. It prohibits the government from abusing its authority to suppress disfavored points of view. Most importantly, it restricts the dominant political groups authority to diminish the voices of those who might challenge their grip on power.

Thus, in the first generation of association cases, disfavored groups like the NAACP and the Communist Party relied on the First Amendment to prohibit the government from taking adverse action against them and their members. These cases rest partly on the individual liberty interest identified in NAACP v. Alabama. But theyre also grounded in a larger vision of how democracy should function.

A leading example is the line of patronage cases that began with Elrod v. Burns, in which the Supreme Court struck down the practice of firing public employees who werent members of the Democratic Party, which controlled Cook County, Illinois. After describing the harm to individual employees, the plurality turned to systemic concerns arising from this practice: It is not only belief and association which are restricted where political patronage is the practice, wrote Justice William Brennan. The free functioning of the electoral process also suffers. Discrimination against non-party members tended to starve political opposition, thus tip[ping] the electoral process in favor of the incumbent party. In other words, party-based discrimination distorts the political process, entrenching the dominant party in power while subordinating its chief rival.

Voting as association

Partisan gerrymandering effects a comparable systemic harm, albeit through a different mechanism. By manipulating district lines, the dominant party can entrench itself in power even when the political winds shift. The increasingly sophisticated technology that line-drawers have at their disposal exacerbates the problem. It allows the dominant party to capture a large percentage of seats while ensuring that its majority will hold in both bad times and good.

Thats true not only in Wisconsin, from which Gill v. Whitford emerges, but in other states that would be competitive but for gerrymandering. Take my own state of Ohio. Although Ohio is a consummate purple state in presidential elections, Republican mapmakers drew lines there in 2011 that give their party a supermajority of districts three-quarters of the states congressional delegation and roughly two-thirds of its state legislative districts. These districts were drawn with the goal of creating a firewall that would ensure Republican control even in a strong Democratic year. And theyve been a spectacular success, ensuring Republican control of the Ohio state legislature throughout the current decade. Because they diminish the power of the non-dominant party in a manner thats both substantial and enduring, excessive partisan gerrymanders violate the right of expressive association.

Still, one might argue that compelled disclosure and patronage are very different from redistricting. In the original association cases, particular individuals were harmed discouraged from or punished for affiliating with disfavored groups. Moreover, those cases dont directly involve voting. Its a leap, one might argue, to hold that the right of association is implicated when voters, candidates and parties associate through the electoral process.

As it turns out, the Supreme Court made this leap long ago. For almost a half-century, the court has recognized that voting is a form of association protected by the First Amendment. The first voting-as-association case was Williams v. Rhodes, which challenged Ohios ballot-access requirements for new political parties like George Wallaces American Independent Party. Justice Hugo Blacks opinion for the court relied on both the First Amendment right of association and equal protection to strike down this requirement. Ohios onerous rules for adding new parties to the ballot gave the two old, established parties a decided advantage plac[ing] substantially unequal burdens on both the right to vote and the right to associate. In Williams, the Supreme Court thus stressed the risk of dominant parties using voting rules to entrench themselves in power, thereby harming non-dominant parties and their supporters.

Several years later, in Anderson v. Celebrezze, the Supreme Court again relied on the right of association to invalidate another ballot-access rule in Ohio, this time one that would have kept John Anderson from running as an independent presidential candidate in 1980. Justice John Paul Stevens opinion for the majority recognized that theres no litmus-paper test to separate valid and invalid restrictions on voting and association. Rather, the court should weigh the character and magnitude of the burden on voting and association against the states asserted interests. Although reasonable, nondiscriminatory restrictions can usually be justified by important regulatory interests, a stronger justification is required for more serious burdens, including ones that discriminate against outsider candidates and their supporters.

A subsequent case involving write-in voting in Hawaii, Burdick v. Takushi, reaffirmed Andersons flexible standard while clarifying that strict scrutiny applies only if the burden on voting and association is severe. Other cases like Tashjian v. Republican Party of Connecticut and Washington State Grange v. Washington Republican Party apply this standard to electoral rules that burden the associational rights of major parties and their adherents. The Anderson-Burdick balancing test is now used in constitutional challenges to a wide variety of election laws, including ballot access, blanket primaries and even voter ID. Whats not commonly recognized is that this legal standard originated in voting-as-association cases.

Applying the voting-as-association standard

Its true that the Supreme Court hasnt yet applied the Anderson-Burdick standard to partisan gerrymandering. In fact, the court has been maddeningly unclear about what legal standard should apply in these cases. But for several reasons, the standard emerging from the voting-as-association cases provides the best fit for evaluating partisan gerrymandering claims.

The first is that the First Amendment right of association best captures the type of injury alleged, specifically the lasting harm to non-dominant political parties and their adherents arising from the dominant partys self-entrenchment. Expressive-association cases have long focused on such harms, not only to the non-dominant party but to our political system. By contrast, equal protection law doesnt accord any special status to political party affiliation. Unlike race or sex, party affiliation isnt a protected class under the equal protection clause.

The second advantage of relying on the established voting-as-association standard is that it focuses on effects rather than intent. Recall that the Anderson-Burdick standard requires courts to weigh the character and magnitude of the burden on voting and association against the states asserted interests. An intent to harm the non-dominant party may be relevant, but it isnt required. Thats a good thing, because intent is notoriously hard to prove or disprove, especially in redistricting cases. The Shaw v. Reno line of racial-gerrymandering cases exemplifies this difficulty. Under those cases, the pivotal question is whether race was the predominant factor in drawing a particular district. Twenty-four years after Shaw, the Supreme Court is still struggling to explain what this means. An effect-based test is preferable. Though Anderson-Burdick is hardly a bright-line rule, its balancing standard has proven manageable in other voting contexts and can be adapted to partisan-gerrymandering claims.

This brings me to a third advantage of relying on the voting-as-association cases to assess partisan gerrymandering claims: It provides a nuanced legal standard. The Anderson-Burdick balancing approach would allow lower courts to sort through the evidence, striking down the most egregious and unjustified partisan gerrymanders without categorically prohibiting any consideration of party affiliation when drawing districts. Of course, partisan-gerrymandering claims demand hard judgments. There are no bright lines here. But the legal standard that the Supreme Court has long used in voting-as-association cases provides the best fit for partisan-gerrymandering cases like Gill v. Whitford.

Posted in Gill v. Whitford, Summer symposium on Gill v. Whitford, Featured, Merits Cases

Recommended Citation: Daniel Tokaji, Symposium: A path through the thicket the First Amendment right of association, SCOTUSblog (Aug. 10, 2017, 2:12 PM),

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ACLU Sues DC Metro After It Rejects Ad With Text Of 1st Amendment – NPR

Posted: at 5:53 pm

The ACLU and three other plaintiffs have filed a lawsuit against the Washington Metropolitan Area Transit Authority, alleging its advertising guidelines are unconstitutional. Pablo Martinez Monsivais/AP hide caption

The ACLU and three other plaintiffs have filed a lawsuit against the Washington Metropolitan Area Transit Authority, alleging its advertising guidelines are unconstitutional.

The four plaintiffs in a lawsuit against the Washington Metropolitan Area Transit Authority are from across the political spectrum: the American Civil Liberties Union, a health care group called Carafem that provides abortions, People for the Ethical Treatment of Animals and conservative provocateur Milo Yiannopoulos.

What they have in common is that the transit agency known as WMATA has rejected their advertisements, saying the ads ran counter to its guidelines. They have now banded together, saying the guidelines introduced in 2015 violate their First Amendment right to free speech.

In fact, the ACLU's rejected advertisement displays the text of the First Amendment in English, Arabic and Spanish, with the ACLU's logo and the slogan "We the People."

The ACLU says WMATA has violated its right to free speech by rejecting an advertisement showing the text of the First Amendment in three languages. ACLU hide caption

WMATA did not explain in writing why it rejected the ACLU's ad, according to the complaint. Outfront Media, which manages the system's advertising, initially told the ACLU that it was rejected because it "does not take any issue oriented advertising." Outfront later stated that "you'll need to dramatically change your creative in order to resubmit," the complaint says.

"In its zeal to avoid hosting offensive and hateful speech, the government has eliminated speech that makes us think, including the text of the First Amendment itself," said ACLU senior staff attorney Lee Rowland. "The ACLU could not more strongly disagree with the values that Milo Yiannopoulos espouses, but we can't allow the government to pick and choose which viewpoints are acceptable."

The D.C. metro system changed its advertising policy in 2015. According to the ACLU, it happened "following controversy surrounding a set of anti-Muslim advertisement." The ACLU, Carafem and PETA had previously advertised with Metro.

The guidelines on commercial advertising, which are published on WMATA's website, say medical messages are allowed "only from government health organizations, or if the substance of the message is currently accepted by the American Medical Associated and/or the Food and Drug Administration."

It also blocks ads "intended to influence members of the public regarding an issue on which there are varying opinions," those "that support or oppose an industry position or industry goal without any commercial benefit to the advertiser" and those "that are intended to influence public policy."

In a statement about the lawsuit to NPR, WMATA pointed to its change in policy and said it "intends to vigorously defend its commercial advertising guidelines, which are reasonable and viewpoint neutral."

The lawsuit says WMATA rejected advertisements from PETA (counterclockwise from top), Carafem, Milo Yiannoloulos and the ACLU. ACLU hide caption

The Carafem advertisement says it sells the FDA-approved mifeprex/misoprostol regimen used to end pregnancy at up to 10 weeks. The "10-week-after pill," it reads, "for abortion up to 10 weeks."

WMATA rejected multiple PETA ads, including one saying "I'm ME, not MEAT. See the Individual. Go Vegan," next to a photo of a pig. The plaintiffs argue that "WMATA has accepted and displayed many advertisements that are intended to influence riders to buy, do and believe things that are at odds with PETA's viewpoint on humans' proper relationship with animals."

WMATA initially accepted advertisements for a book by conservative commentator Milo Yiannopoulos but took them down after receiving complaints, saying they violate the guidelines, according to the complaint.

The lawsuit claims that WMATA's rejection of the ads from the ACLU, Carafem and Milo Yiannopoulos was not because the ads themselves violated the guidelines. Instead, it says the ads were rejected for reasons outside of their content "such as the identity of the advertiser, the advertiser's known or presumed viewpoints, or the advertiser's line of business."

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Jeffrey Lord Speaks Out on Firing: ‘CNN Caved on the First Amendment’ – Mediaite

Posted: at 5:53 pm

Hours after he tweeted out Sieg Heil! during a Twitter fight with Media Matters president Angelo Carusone, political commentator Jeffrey Lord found himself fired by CNN. Commenting on the network severing ties with the pro-Trump pundit, a CNN spokesperson stated that Nazi salutes are indefensible.

Following CNNs announcement of his termination, Lord spoke with the Associated Press. While he expressed his affection and love for CNN, noting that theyre terrific people and serious people, he said he felt the outlet was doing a disservice to free speech.

He called himself a First Amendment fundamentalist and called CNNs decision disappointing. From my perspective CNN caved on the First Amendment of all things. I disagree. I respectfully disagree.

Those remarks somewhat echo what he said to CNN senior media correspondent Brian Stelter shortly after he was canned, as he claimed in that conversation that CNN was caving to bullies.

Lord further told the AP that he had received a tidal wave of support from conservatives following his firing. One of those conservatives is White House chief strategist Steve Bannon, who called the American Spectator columnist last night to encourage him to keep fighting.

[image via screengrab]

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Newseum provides first amendment perspective –

Posted: at 5:53 pm

Now, more than ever, D.C.s Newseum serves as a hub for the history and importance of journalism.

The mission of the Newseum is to champion the five freedoms of the first amendment, and we do that through exhibits, through programs, and through education, said Scott Williams, Newseums chief operating officer.

Annually, the museum receives over 800,000 visitors, half of them students.

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Its a museum that really celebrates all of our freedoms more than anything, it surprises people by just how much we have in the Newseum, and how long it actually takes to tour, Williams told Whats Working in Washington.

The Newseum is different from Smithsonian museums. [Visitors] cannot imagine that another museum thats not a Smithsonian could compete on such a level we have a lot of stuff as well, so were not Americas attic, were Americas soul, he said.

When it comes to first amendments protections, Williams said the Newseum was important because one thing thats happening now, to our society, is that people are thinking about these things more.

Take fake news for example. That only entered our lexicon recently. Now, when people think about news, they understand that it not being fake is super important we just have a tiny role in making that known, he said.

To illustate the value of the first amendment and its protections, the Newseum takes advantage of all the best practices that museums have so we have storytelling, we rely on to some degree entertainment, said Williams.

Defense restoration fund might be a bargaining chip in budget talks

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The First Amendment (Literally) Banned in DC – ACLU (blog)

Posted: August 10, 2017 at 5:50 am

Can the government ban the text of the First Amendment itself on municipal transit ads because free speech is too political for public display?

If this sounds like some ridiculous brain teaser, it should. But unfortunately its not. Its a core claim in a lawsuit we filed today challenging the Washington Metropolitan Area Transit Authoritys (WMATA) restrictions on controversial advertising.

The ACLU, ACLU of D.C., and ACLU of Virginia are teaming up to represent a diverse group of plaintiffs whose ads were all branded as too hot for transit: the ACLU itself; Carafem, a health care network that specializes in getting women access to birth control and medication abortion; People for the Ethical Treatment of Animals (PETA); and Milo Worldwide LLC the corporate entity of provocateur Milo Yiannopoulos.

To put it mildly, these plaintiffs have nothing in common politically. But together, they powerfully illustrate the indivisibility of the First Amendment. Our free speech rights rise and fall together whether left, right, pro-choice, anti-choice, vegan, carnivore, or none of the above.

Lets start with the ACLU. Earlier this year, following President Trumps repeated commentary denigrating journalists and Muslims, the ACLU decided to remind everyone about that very first promise in the Bill of Rights: that Congress shall make no law interfering with our freedoms of speech and religion. As part of a broad advertising campaign, the ACLU erected ads in numerous places, featuring the text of the First Amendment. Not only in English, but in Spanish and Arabic, too to remind people that the Constitution is for everyone.

The ACLU inquired about placing our ads with WMATA, envisioning an inspirational reminder of our founding texts, with a trilingual twist, in the transit system of the nations capital. But it was not to be: Our ad was rejected because WMATAs advertising policies forbid, among many other things, advertisements intended to influence members of the public regarding an issue on which there are varying opinions or intended to influence public policy.

You dont have to be a First Amendment scholar to know that something about that stinks.

Our free speech rights rise and falltogether whether left, right, pro-choice, anti-choice, vegan, carnivore, or none of the above.

Lets start with the philosophical argument. WMATAs view is apparently that the litany of commercial advertisements it routinely displays involve no issues on which there are varying opinions. Beyond the obvious Coke-or-Pepsi jokes, theres a dark assumption in that rule: that we all buy commercial products thoughtlessly. Buy beer! (Dont think about alcoholism.) Buy a mink coat! (Dont think about the mink.) That is, WMATA sees varying opinions only when they relate to something it recognizes as controversial. And as the Supreme Court recently reminded us, the government violates the First Amendment when it allows only happy-talk.

And now to the practical. This is a policy so broad and vague that it permits WMATA to justify the ad hoc exclusion of just about anyone. And the broad set of plaintiffs in this case confirms that.

Despite the fact that Carafem provides only FDA-approved medications, its ad was deemed too controversial because it touched the third rail of abortion. Carafems proposed ad read simply: 10-week-after pill. For abortion up to 10 weeks. $450. Fast. Private. As we at the ACLU know all too well, as states continue to erect draconian barriers to the right to choose, information about and access to abortion care is more critical than ever. Yet Carafems ad was apparently rejected simply because some people think otherwise.

One of PETAs intended advertisements depicted a pig with accompanying text reading, Im ME, Not MEAT. See the Individual. Go Vegan. Despite the fact that WMATA routinely displays advertisements that encourage riders to eat animal-based foods, wear clothing made from animals, and attend circus performances, PETAs side of this public debate was the only one silenced by the government.

WMATAs advertising agency suggested that with some changes, ACLU and PETA might be able to get their advertisements accepted. Perhaps PETA could remove the Go Vegan slogan from its advertisement? But for the ACLU, Youll have to dramatically change your creative. In other words, as long as we dont try to make anyone think, we might get the right to speak.

That brings us to our final client: Milo Worldwide LLC. Its founder, Milo Yiannopoulos, trades on outrage: He brands feminism a cancer, he believes that transgender individuals have psychological problems, and he has compared Black Lives Matter activists to the KKK. The ACLU condemns many of the values he espouses (and he, of course, condemns many of the values the ACLU espouses).

Milo Worldwide submitted ads that displayed only Mr. Yiannopouloss face, an invitation to pre-order his new book, Dangerous, and one of four short quotations from different publications: The most hated man on the Internet from The Nation; The ultimate troll from Fusion; The Kanye West of Journalism from Red Alert Politics; and Internet Supervillain from Out Magazine. Unlike Mr. Yiannopoulos stock-in-trade, the ads themselves were innocuous, and self-evidently not an attempt to influence any opinion other than which book to buy.

WMATA appeared to be okay with that. It accepted the ads and displayed them in Metro stations and subway cars until riders began to complain about Mr. Yiannopoulos being allowed to advertise his book. Just 10 days after the ads went up, WMATA directed its agents to take them all down and issue a refund suddenly claiming that the ads violated the same policies it relied on to reject the ads from the ACLU, Carafem, and PETA.

The ideas espoused by each of these four plaintiffs are anathema to someone as is pretty much every human idea. By rejecting these ads and accepting ads from gambling casinos, military contractors, and internet sex apps, WMATA showed just how subjective its ban is. Even more frightening, however, WMATAs policy is an attempt to silence anyone who triestomakeyou think. Any one of these advertisements, had it passed WMATAs censor, would have been the subject of someones outraged call to WMATA.

So, to anyone whod be outraged to see Mr. Yiannopoulos advertisement please recognize that if he comes down, so do we all. The First Amendment doesnt, and shouldnt, tolerate that kind of impoverishment of our public conversation. Not even in the subway.

At the end of the day, its a real shame that WMATA didnt accept the ACLUs advertisement the agency could really have used that refresher on the First Amendment.

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The First Amendment (Literally) Banned in DC - ACLU (blog)

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Inside the First Amendment: When leaks dry up, we turn to FOIA … – Meridian Star

Posted: at 5:50 am

When we talk about the importance of a free press, what we're really talking about is how important it is for the press to serve as a watchdog on the government. The highest responsibility of journalism is to supply the people with information about what their government is doing, so that the people can hold the government accountable, and make the best possible decisions when they vote.

But if you're not a journalist (full disclosure: I am not), you may not give a lot of thought to how journalists get that information in the first place. Official government press releases and briefings aren't really the place to find information about government misconduct. Obviously, leaks are a much better source when it comes to getting the real dirt. But the recent emphasis on prosecuting leakers is likely to have a major chilling effect on that source of information.

But there is a way that journalists can get their hands on FBI records, secret military policy memos, and NSA email exchanges without having to worry about their sources getting arrested or fired.

They can ask the government for them.

The Freedom of Information Act is a law that requires the government to hand over its records if someone asks for them. The act applies to federal government agencies, but every state has laws that allow the public to access its government records. Anyone can request information, whether they're a U.S. citizen or foreign national. And anything can be requested.

A government agency can, of course, deny your request if it decides that the information you're seeking falls into an exemption category, like information that would threaten national security, or invade someone's privacy. But if you think your FOIA request was unfairly denied, you can appeal, and if that doesn't work, you can sue.

Nabiha Syed, assistant general counsel for BuzzFeed, is intimately familiar with this process. A large part of her job involves getting government agencies to give up information that they would rather not share information that often ends up being crucial to BuzzFeed's reporting. She sees the right of the public to access government information as an exciting First Amendment frontier. "For the most part, the First Amendment says, 'This is hands off, the government's not going to be involved, you guys figure out speech,'" Syed says. "And then you have the First Amendment right of access, which says, 'Yes, but also, we are going to allow you to use the law as a sword to get access to judicial proceedings, to official administrative proceedings.'"

Requesting or fighting for government records is an instrumental part of BuzzFeed's reporting strategy. Such records have allowed the BuzzFeed News team to report on misconduct in death penalty executions, for-profit foster care scandals, and the widespread abuse of seasonal migrant workers. Just last month, BuzzFeed News obtained a secret Department of Defense report that stated that Chelsea Manning's disclosure of Iraq-related documents would be unlikely to have any impact on U.S. operations in Iraq (directly contradicting the government's position at Manning's trial).

To be sure, the system is far from perfect, as many information-seekers can attest. As Jason Fagone wrote in his article "The Secret to Getting Top-Secret Secrets," "The Freedom of Information Act, passed in 1966 to increase trust in government by encouraging transparency, has always been a pain in the ass. You write to an uncaring bureaucracy, you wait for months or years only to be denied or redacted into oblivion, and even if you do get lucky and extract some useful information, the world has already moved on to other topics."

But when it does work, the payoffs can be enormous. As Nabiha Syed says, "How do we at least inject the information we need into the commons, into the public square, to try and heighten the conversations we're having? At least getting the underlying facts out there, in ways that are hopefully more authoritative than anecdotal, I think would be really helpful."

Lata Nott is executive director of the First Amendment Center of the Newseum Institute. Contact her via email at, or follow her on Twitter at @LataNott.

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The Fired Google Engineer, the First Amendment, and the Alt-Right – Xconomy

Posted: at 5:50 am

Xconomy San Francisco

Google software engineer James Damore confirmed to Bloomberg on Monday that Google fired him for circulating a lengthy memo on his views that women are biologically less suited to tech work than men.

His manifesto was spread through Googles internal communication channels over the weekend, and obtained by Gizmodo and other tech publications. Damore expressed his opinion that women are underrepresented in tech companies such as Google, not because of discrimination, but because, on average, women are naturally more inclined to concentrate on feelings rather than on ideas. Damore also professed his belief that women are more neurotic or prone to anxiety than men, as well as less competitive and more inclined to be collaborative.

Google acted quickly, firing Damore on grounds that his memo violated the companys code of conduct by propagating harmful gender stereotypes, according to the New York Times. Damore had criticized Google for its initiatives to promote diversity.

Damores ideas were roundly denounced by both women and men in the tech industry, including former Googler Yonatan Zunger, who is now at machine learning startup Humu. Zunger, an experienced engineer, said in a Medium post Saturday that traits Damore defines as female, such as empathy and the ability to collaborate, are the core traits which make someone successful at engineering.

But in the memo, Damore claims his views are shared by many fellow Googlers who have told him privately that theyre grateful to him for raising opinions they agree with but would never have the courage to say or defend because of our shaming culture and the possibility of being fired.

Its Damores claim that Google stifles dissent, in the memo he called Googles Ideological Echo Chamber, that may keep his ideas in the forefront of public debate. Signs are that he may sue Google, claiming a violation of his First Amendment rights, or of his rights under federal labor law.

If Damore challenges his firing on grounds that Google suppressed his free speech rights, hes unlikely to win, legal scholars say. But Damore may already have achieved part of his aims, in spades. His opinionsthough offensive to manyare now part of a public discussion in arenas much broader than Google internal memos.

Damores case has dragged Google into the ongoing political and cultural battle between right and left in the U.S.between conservative groups that resist diversity efforts, and employers such as universities that try to counter discrimination. This could turn out to be a bigger headache for Google (and potentially other companies) than an employment rights suit it may be likely to win.

David French, writing for the conservative magazine National Review, blasted Google for Damores firing. Of course Google did this, French wrote. Of course an increasingly radical progressive enclave cant handle thoughtful critiques of its ideological monoculture.

Google is a private company and has wide legal latitude to discipline its employees for their speech, but make no mistakethis is a direct assault on the American culture of free speech, French added.

Another writer forNational Review, Jim Geraghty, eagerly anticipates legal action by Damore. When does one employee holding an opinion contrary to another employees become harassment? My guess is that a lawsuit at Google is going to explore that question under the harsh glare of public scrutiny, Geraghty wrote.

Other conservative outlets, includingThe American Conservative and Breitbart,also jumped into the fray. Breitbart published a flurry of at least nine stories supporting Damores views.

On the other end of the political spectrum, The Guardians Owen Jones wrote under the headline, Googles sexist memo has provided the alt-right with a new martyr.

Jones wrote, Youre going to hear a lot about [Damore] in the coming weeks: hell probably be a star guest on alt-right shows and the rightwing lecture circuit, splashed on the front covers of conservative magazines, no doubt before a lucrative book deal about his martyrdom and what it says about the Liberal Big Brother Anti-White Man Thought Police.

The portrayals of Google as a standard-bearer for anti-discrimination policies, or a radical progressive enclave, can be dizzying, because Google has actually been trying to counter the impressionbased on its own workplace statisticsthat its hiring and promotion policies significantly disadvantage women and minority members.

If Damore files a lawsuit against Google for suppressing his views against equal opportunity measures, it might be heard even while the U.S. Department of Labor continues its investigation of a significant gender wage gap at Google.

Prior to his firing, Damore had already sought recourse by filing a complaint to the National Labor Relations Board, arguing that Google was trying to silence him, according to the New York Times.

Stanford University law professor Richard Thompson Ford, who specializes in anti-discrimination law and workplace rights, says Damore has a slight, though not non-existent, chance at winning a lawsuit against Google over his firing.

The First Amendment claim is not strong, Ford says.

Many people think the amendment gives them the right to free speech on the job, but thats a misreading Next Page

Bernadette Tansey is Xconomy's San Francisco Editor. You can reach her at

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The First Amendment won’t protect you from saying something your company doesn’t like –

Posted: August 9, 2017 at 4:52 am

ByDavid Brancaccio

August 08, 2017 | 8:58 AM

Google has fired the engineer who circulated an internal memo criticizing the company's diversity initiatives. The former employee, James Damore, argued that biological differences between men and women are responsible for tech's gender gap.

Google said he violated company policy about promoting gender stereotypes. The company did not publicly name him, but Damore later revealed his identity to the Wall Street Journal and Bloomberg. Damore claims he has a legal right to express his views and that he's going to fight the dismissal.

Lee Rowland, senior staff attorney at the ACLU's Speech, Privacy, and Technology Project, joined us to talk about the role the First Amendment has in cases like these and when companies can fire you.

David Brancaccio:I know you tend to focus on public employee free speech rights. But if someone works for the private sector, help us understand what the law says about our ability to say what we want in the workplace.

Lee Rowland:Well, the law doesn't say a lot about it. The First Amendment really only acts as a restraint on government. In fact, the first few words of the First Amendment are: Congress shall make no law restricting freedom of speech or of the press or religion. So when you work for the private sector and your employer is not the government, the Constitution gives you zero protection in terms of keeping your job based on what you say. So while it is possible that states and localities could pass laws protecting speech and a very, very tiny number of cities and localities have done so 99.9 percent of the time, there is no legal barrier to a private employer firing an employee because of their speech at or outside of the workplace.

Brancaccio: Soif you're signing up at a private employer and they hand you the code of conduct or the employee handbook with rules, you ought to take those seriously.

Rowland:That's exactly right, because they have every right to fire you should you run afoul of them. Now there is an important asterisk on this, which is employers may not use firing you because of your speech as a pretext to violate other laws that prevent discrimination. So, for example, federal laws that prevent employers from firing employees because of their religion or because of their pregnancy or their sex or their race. But, if it is solely because of their speech, there are no federal laws and no laws at the state level that I know of that give employees that kind of protection based on their speech rather than who they are.

Brancaccio:Now there is some talk in this case of the Google employee that somehow National Labor Relations Board rules might somehow apply. It's not a unionized position as far as I'm aware. Does that inform this discussion at all?

Rowland: Ishould be the first to admit I'm not a labor lawyer, so there may be some obscure contractual provision that he can take refuge in, but it certainly doesn't come from the Constitution.

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