Category Archives: First Amendment

It's no secret that government officials don't like the messy business of free speech, especially when it involves criticism leveled at them. Increasingly, they aggregate their grievances, lumping hateful material, vigorous debate, and stuff they just don't like into a catch-all category of "online harms" that they insist must be suppressed by the state. While the First Amendment protects Americans against this latest wave of censorship, authoritarian legislation in Britain and Canada warns of what could be in store if that protection fails and politicians get their way.

The recent assassination of British MP Sir David Amess added impetus to an already strong push for restrictions on speech. Of the resulting uproar from other lawmakers, the BBC noted that "one common thread has emerged the amount of abuse politicians face online."

"Home Secretary Priti Patel said the government's Online Safety Bill would offer an opportunity for all MPs to come together to close 'the corrosive space online where we see just dreadful behaviour'," added the report.

But the bill was in the works well before the brutal stabbing of Amess, based on a December 2020 white paper complaining that "In the wrong hands the internet can be used to spread terrorist and other illegal or harmful content, undermine civil discourse, and abuse or bully other people." Even earlier, a 2017 U.K. government report fretted that "the intimidation experienced by Parliamentary candidates, and others in public life, has become a threat to the diversity, integrity, and vibrancy of representative democracy in the UK."

While politicians don't like being on the receiving end of harsh words, the draft Online Safety Bill doesn't confine itself to shielding them from vitriol. It also addresses "disinformation and misinformation," "child exploitation and sexual abuse," "terrorism content," and other forbidden material that private services would be required to remove or block. Some issues in the bill are real concerns, but many are debatable at best. The ill-defined terms are unified by little more than that they upset officialdom. Overseeing enforcement would be the Office of Communications (Ofcom) which would be empowered to determine what speech is permitted and what is forbidden.

"The bill does not define what is and is not 'harmful'," objects a coalition including the Index on Censorship, which adds that the law "could lead to the over-censorship of free speech by the Silicon Valley giants as they attempt to avoid huge fines." The coalition warns that "the bill will create two tiers of free speech online: free speech for journalists and politicians, and censorship for ordinary citizens" since it affords privileged status to government-recognized media.

The unfinished bill is also likely to ban online anonymity, so that anything that upsets censors can be easily traced to its source.

Britain's government isn't alone in moving to curb free-wheeling online discussions. Canada too is moving to muzzle speakers and publishers who offend the powers-that-be.

"Individuals and groups use social media platforms to spread hateful messaging," objects a government discussion guide regarding proposed legislation. "Social media platforms can be used to spread hate or terrorist propaganda, counsel offline violence, recruit new adherents to extremist groups, and threaten national security, the rule of law and democratic institutions."

Like the draft U.K. legislation, the proposed law in Canada targets a grab bag of concerns: "terrorist content; content that incites violence; hate speech; non-consensual sharing of intimate images; and child sexual exploitation content." It also conscripts private entities into "a statutory requirement to make the content inaccessible from their service in Canada within 24 hours of being flagged."

"The proposed approach does not strike an appropriate balance between addressing online harms and safeguarding freedom of expression," objects Michael Geist, a law professor at the University of Ottawa.

"Rather than adopting a 'made in Canada' approach consistent with Canadian values, the plan relies heavily on policy developments elsewhere," he continues. "Yet the reality is that those models from countries such as France, Germany, and Australia have met with strong opposition and raised serious concerns of unintended consequences."

"The Canadian proposal seeks to import the worst aspects of Germany's Network Enforcement Act, ('NetzDG'), which deputizes private companies to police the internet, following a rushed timeline that precludes any hope of a balanced legal analysis, leading to takedowns of innocuous posts and satirical content," points out the Electronic Frontier Foundation.

Germany's legislation, which offloads enforcement of vague rules to private entities under threat of stiff penalties, has served as a terrible inspiration for authoritarian copycats around the world.

"Whereas Germany's initial goal was to curb hate online, the NetzDG has provided a blueprint for Internet censorship that is being used to target dissent and pluralism," observed Jacob Mchangama, executive director of Justitia, a Danish judicial think tank, in 2019.

To use NetzDG as a model for legislation at this late date is to openly spurn civil liberties concerns and embrace the illiberal suppression of speech with little room for appeal.

Neither the British nor the Canadian legislative proposals are compatible with America's First Amendment, which already protects speech regarding race and "terrorism" that will get you arrested in the U.K. and other nominally free countries. The U.S. will be even more of an outlier if its close allies go further down the path of banning content and censoring edgy jokes and arguments.

That is, we'll be an outlier if we retain our commitment to liberty. Polling finds support for free speech in this country remains strong relative to other nations. But researchers say that tolerance for dissenting ideas is eroding, primarily over progressive concerns about equality. As a result, "The range of opinions most Americans feel at liberty to express in school, at work and in conversation with friends and family has narrowed," according to political scientists at Berkeley and the University of Southern California. If that continues, the U.S. may join Canada, the U.K., and other once-free countries as graveyards of free expression.

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The U.S. May Stand Alone as a Haven for Free Speech - Reason

Jurors heard opening statements Thursday in a civil lawsuit that accuses white nationalists of conspiring to commit violence at the Unite the Right rally in Charlottesville in 2017.

Karen Dunn, a lead attorney for nine people who are suing over physical and emotional injuries they received, told the jury that the white nationalists planned the violence for months ahead of the rally.

But a lawyer for Jason Kessler, a white nationalist who was the lead organizer of the rally, said the online communications relied on by the plaintiffs' lawyers are protected by the First Amendment.

Hundreds of white nationalists descended on Charlottesville on Aug. 11 and Aug. 12, 2017, ostensibly to protest city plans to remove a statue of Confederate Gen. Robert E. Lee.

The federal lawsuit accuses some of the countrys most well-known white nationalists of orchestrating a conspiracy to commit violence against Blacks, Jewish people and others.

The lawsuit seeks monetary damages against two dozen white nationalists and organizations and a judgment that the defendants violated the constitutional rights of the plaintiffs.

James Alex Fields Jr., a self-avowed Hitler admirer, rammed his car into a crowd of counterprotesters, killing one woman and injuring dozens. Fields is serving life in prison on murder and hate crimes charges. He is also named as a defendant in the lawsuit.

The trial is expected to last about a month.

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Jury Hears Opening Statements in Unite the Right' Trial - NBC4 Washington

Amy Kristin Sanders| Opinion contributor

Supreme court sides with Pennsylvania cheerleader over Snapchat post

The Supreme Court ruled that a Pennsylvania public school wrongly suspended a cheerleader over her profane Snapchat post.

Fox - LA, Fox - LA

For a country that purports to value our First Amendment right to freedom of speech, it has become clear that some of our elected officials dont understand it.

State legislatures across the country have passed bill after bill that violate the First Amendments free expression protections protections that limit the governments ability to infringe on individuals speech.

Yet a recent survey by the Freedom Forumof more than 3,000 Americans found that 94% value the First Amendment as vital, and more than half say it should never be altered.

Now more than ever, we need a renewed focus on civic education to ensure Americans understand their constitutional rights. In addition, one study from the Freedom Forumsuggests nearlyone in fiveAmericans cannot name a singleFirst Amendment freedom.

Still, elected officials are regularly quoted in the media, espousing plans to require social media platforms to carry certain speech or barring them from shutting down certain accounts. Ask honest constitutional scholars, and theyll assure you these plans are unconstitutional.

This summer, a federal judge in Florida temporarily barred the state from enforcing a new law that targeted social media platforms that shut down accounts of political candidates or journalistic enterprises, allowing up to $250,000 in fines per day.

Texas Gov. Greg Abbott has signed several similarly unconstitutional bills. One,House Bill 20, purports to restrictsocial media platforms when it comes tocontent moderation. Another,Senate Bill 4, aims to require Texas sports teams to play the national anthem.

The Arizona State Legislature hasconsidered a law that would require parents to opt-in toany curriculum that addresses gender identity orgender expression of sexuality effectively limiting schools ability to teach about historical events including the Stonewall riots. It also restricted the teaching of HIV and AIDS awareness.Doing so represents a clear violation of the First Amendment. Gov. Doug Ducey a Republican vetoed Senate Bill 1456, yet lawmakers persisted andreintroducedthe measure.

So why are all these lawmakers, many of whom graduated from elite law schools, proposing laws that contravene the First Amendment? Perhaps its political theater. Or perhaps they simply need a bit of civics education.

Like our elected officials, it seems even we voters need a refresher course on these issues. Only 36% of Americans know that companies like Twitter and Facebook are not liable for the content users post on their platforms, while just over half of respondents in the Freedom Forum survey knew the First Amendment protected flag burning as a form of free speech.

In numerous opinions during the past century, the Supreme Court has made clear that there are stringent limits placed upon the government when it comes to regulating speech.

As recently as June, the Court ruled 8-1 in favor of a high school student who was sanctioned by her school for a social media post that contained a well-known, four-letter expletive. Although the court stopped short of saying public school officials could never sanction students for off-campus speech, it made clear that some speech is protected by the First Amendment.

In November, the Supreme Court will hear a case asserting that the city of Austin, Texasexceeded its authority to regulate speech when it enacted an ordinance that treats on-premises signage differently from off-premises signage.

The courts decision could give federal, state and local governments much greater latitude to regulate speech if the justices decide to narrow the types of restrictions to which their highest level of scrutiny applies. In the Austin case, this would allow the city to regulate on-premise and off-premise signs differently including banning digital billboards while permitting on-site digital signage.

Without a greater emphasis on civic education, and First Amendment rights in particular, many of us will continue to lack the knowledge and tools we need to fully participate in our governance, and taxpayers will continue to foot the bill for legal challenges to state laws that are plainly unconstitutional laws that should never have been proposed or passed in the first place.

Our nations first president, George Washington, famously saidthat without free speech"dumb and silent we may be led, like sheep to the slaughter."Free Speech Week offers a great reminder that many of us need to reeducate ourselves about the collective rights and obligations that we have as citizens living under a republican form of government.

Amy Kristin Sanders is an associate professor of journalism andlaw at The University of Texas at Austin, where she studies global free expression rights.

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We need to do a better job teaching citizens about the First Amendment - USA TODAY

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Webster couple to receive 2021 First Amendment Award - The Union Leader

BRUNSWICK, Ga., Oct. 22, 2021 /PRNewswire/ -- On October 22, family members of Ahmaud Arbery, will join the Transformative Justice Coalition at a press conference to address recent attacks raised in court proceedings against the Transformative Justice Coalition (TJC). The press conference will precede a March sponsored by TJC and the family of Ahmaud Arbery at approximately 2:00 PM EDT. Following the press conference, the march demanding justice for Ahmaud Arbery will commence and go through the community in which Ahmaud was raised.

The Transformative Justice Coalition (TJC) sponsored 100 activists from around the nation to attend the first week of the trial of Ahmaud Arbery's accused killers. Kicking off the march with a press conference, TJC will also discuss its impressions from the first week of the murder trial and its response to the scurrilous and unfounded attacks on TJC and the First Amendment.

What:

Justice at the First Amendment

Who:

Diane Arbery, Matriarch of Ahmaud Arbery Family

Marcus Arbery, Father of Ahmaud Arbery

Barbara Arnwine, Esquire Founder/President/Co-Leader, Transformative Justice Coalition

Daryl D. Jones, Esquire, Board Chair/Co-Leader, Transformative Justice Coalition

When:

October 22, 2021 at 2:00 pm

Where:

Brunswick, GA

Founded in 2015 by Barbara Arnwine, president emeritus of the Lawyer's Committee for Civil Rights, the Transformative Justice Coalition seeks to be a catalyst for transformative institutional changes that bring about justice and equality in the United States and abroad. Learnmoreattjcoalition.org.

Formoreinformation,contact: Lynn Whitfield, Esq. [emailprotected] (561) 856-6757

Ricky Parker Cell: (347) 524-2530 Email: [emailprotected]

SOURCE Transformative Justice Coalition

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Transformative Justice Coalition (TJC) Press Conference and March: "Justice And the First Amendment " - PRNewswire

Vice President Kamala Harris delivers virtual remarks to the National Bar Association from the White House in Washington, D.C., July 27, 2021.(Elizabeth Frantz/Pool via Reuters)

What happened to the free exercise of religion?

Editors Note: This article is adapted from Sean Spicers new book Radical Nation: Joe Biden and Kamala Harriss Dangerous Plan for America, published this month.

On January 16, 1993, President George H. W. Bush proclaimed the first Religious Freedom Day, commemorating the anniversary of the 1786 passage of the Virginia Statute for Religious Freedom. That statute was authored by Thomas Jefferson, and it served as a model for the opening lines of the First Amendment. President Bush noted in his Religious Freedom Day proclamation that freedom of religion is the first of all freedoms enumerated in our Bill of Rights.

Every president since Bush has issued a Religious Freedom Day Proclamation on January 16. In 1999, President Bill Clinton called religious freedom a fundamental human right . . . without which a democracy cannot survive. In 2009, President George W. Bush proclaimed religious freedom one of this lands greatest blessings.

In 2013, President Barack Obama opened his proclamation with the statement Foremost among the rights Americans hold sacred is the freedom to worship as we choose. Since then, many Democrats and progressives have adopted the phrase freedom of worship while avoiding the phrase free exercise of religion. The free exercise wording comes from the opening line of the First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

It may seem trivial, but theres a big difference between freedom of worship and the free exercise of religion. Those on the left understand the difference, and thats why they speak of freedom of worship and avoid the words of the First Amendment.

Words matter. When politicians speak of freedom of worship, they are saying that you are free to worship any way you choose in your home or in your house of worship. But they dont want your religion to affect the way you live your life in public or the way you conduct your business. Democrats and progressives say that you are perfectly free to pray and worship in any way you choose as long as you do so behind closed doors.

But if you are a Christian businessperson, you must set aside your convictions and pay for your employees abortions. If you are a Christian baker, you must set aside your conscience and create a cake that celebrates a same-sex wedding. You may practice your faith in your house of worship one day a week. The rest of the week, your conscience belongs to the State, not your Creator.

But the First Amendment guarantees much more than freedom of worship. It guarantees the free exercise of religion. This means that you are free to practice your religion wherever you are, 24 hours a day, seven days a week, in every aspect of your life.

The Biden-Harris administration wants to deprive you of the right to live out your conscience and obey your God.

In 2012, Hobby Lobby Stores, Inc., a chain of arts-and-crafts stores owned by the David Green family, filed a lawsuit against the U.S. government over a mandate in the Patient Protection and Affordable Care Act (Obamacare) requiring companies to provide abortifacients. Hobby Lobby argued that the mandate was a violation of the Christian owners First Amendment right to free exercise of religion.

Kamala Harris, in her role as attorney general of California, joined an amicus brief from the attorney general of Massachusetts arguing that Hobby Lobby should be required to provide abortifacient coverage for its employees. Harris reasoned that for-profit corporations are not permitted to hold personal religious beliefs, even when those corporations are wholly owned by a Christian individual or family. She wrote:

Certain rights by their nature are purely personal guarantees that cannot be held by a business corporation (or, in some cases, by any corporation or collective entity). . . . Rights to the free exercise of religious beliefs, whether created by statute or by the Constitution, likewise protect the development and expression of an inner sanctum of personal religious faith. Free-exercise rights have thus also been understood as personal, relating only to individual believers and to a limited class of associations comprising or representing them. . . . Unsurprisingly, there is no tradition of recognizing or accommodating the exercise of such inherently personal rights by ordinary, for-profit business corporations.

According to Kamala Harris, if you run a for-profit business, whether its a little Colorado bakeshop or a multibillion-dollar chain of hobby stores, the First Amendment doesnt apply to you. You are free to practice your religious faith in any way you choose, as long as you keep it within your private inner sanctum. You are not allowed to apply the precepts of your faith to the way you conduct your business. In the public square, you must obey the almighty State, not almighty God.

With the center-left Justice Anthony Kennedy as the swing vote, the U.S. Supreme Court ruled five to four in favor of Hobby Lobby.

But Kamala Harris wasnt finished. Elected to the U.S. Senate in 2017, she introduced the Do No Harm Act. It would amend the Religious Freedom Restoration Act of 1993, stripping religious business owners of their First Amendment rights and forcing them to obey government health-care edicts that violate their religious convictions and moral conscience.

In a press conference promoting the Do No Harm Act, Harris said, The freedom to worship is one of our nations most fundamental rights. She didnt dare quote the actual wording of the First Amendment, which guarantees not merely freedom to worship but thefree exercise of religionin every aspect of our lives.

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Democrats Assault on Religious Liberty Began with an Innocuous-Sounding Phrase - National Review

On Sept. 30, A federal judge dismissed a lawsuit against the University of Georgia and the Board of Regents of the University System of Georgia brought by former Bulldogs baseball player Adam Sasser.

The suit came in response to Sassers permanent release from the UGA bBaseball team and suspension from campus following an incident that took place at the Georgia-Tennessee football game in Sanford Stadium on Sept. 29, 2018. Spectators filmed and saw Sasser, who is white, in the UGA student section using a racial slur directed at then backup quarterback for Georgia, Justin Fields, who is Black.

The defendants in the lawsuit are listed as the Board of Regents of the University System of Georgia, the University of Georgia, Jere Morehead, both individually and as president of UGA, the UGA Equal Opportunity Office, Eryn Janyce Dawkins, both individually and as director of defendant UGA EOO, the UGA Athletic Association, Edward McMillian Tate, both individually and as Chancellor of Legal Affairs for UGA, and C. Dean Alford, both individually and as a member of Board of Regents of the University System of Georgia.

The ruling states that Counts I, II, III, IV, V and VII, of Sassers second amended complaint, as well Sasser's breach of contract claims against the individual defendants, are dismissed with prejudice, meaning Sasser can not re-file these claims again in court. The ruling for count VI does allow Sasser to re-file this claim but only at the state level and not in federal court, where the original lawsuit was filed.

Count I, which was brought against all defendants, concerned Sassers right to freedom of speech under the First Amendment which guarantees freedom of expression and the 14th Amendment which guarantees all citizens equal protection of the laws as well as due process of law.

Count II regarded Sassers procedural and substantive due process granted by the 14th Amendment and was brought against all defendants.

Count III was brought against the individual defendants in a personal capacity and regarded individual liability Free Speech clause violation. Ultimately, it stated that Sassers removal from the UGA baseball team and other sanctions that were imposed on him had no rational basis because at the time of the incident he didnt pose a threat to himself or others.

Count IV was also brought against all defendants in a personal capacity and regarded procedural and substantive due process. Additionally, it alleged denial of interest in his education by defendants, as well as denial of right to be heard by defendants.

Count V regarded deprivation of equal protection granted in the 14th Amendment and re-alleged and incorporated all previous allegations while challenging the UGA Non-Discrimination and Anti-Harrassment Policy.

Count VI, the only count Sasser can further pursue at the state level, regards breach of contract and alleges that the UGA student handbook and student athletic handbook establish a binding agreement between the Defendants and each UGA student, and alleges that the defendants failed to follow these binding procedures.

Count VII was brought against all defendants and regarded Declaratory Relief and Injunction, realleging all previous counts. Additionally, it alleged that all defendants have committed multiple violations of federal and state law and caused irreversible damage to the plaintiffs future career and employment prospects.

On Sept. 29, 2020, Sasser, who was originally listed in the lawsuit under the name John Doe until he was ordered to file an amended complaint identifying himself by name, filed the federal suit in Georgias Northeast District Court.

He alleged suffering due to extensive damages as the Defendants and UGA Athletic Association caused severe damages, including but not limited to employment damage and thus monetary damages, states the lawsuit.

Additionally, the lawsuit alleged that the defendants and its agents are responsible for depriving Sasser of his constitutional rights under the First Amendment and the Fourteenth Amendment.

The lawsuit states that on Oct. 4, 2018, Dawkins issued findings and sanctions, including suspending Sasser for the remainder of the Fall 2018 semester.

According to the lawsuit, on Oct. 9, 2018, Dawkins revised the sanctions, permitting Sasser to attend classes remotely, but prohibiting him from participating in UGA athletics, attending any UGA home games until Jan. of 2020 and from entering UGA campus, unless given permission by the EOO.

Additionally, the suit states that Sasser was unable to attend all of his classes remotely because he needed his professors permission to do so and it was not possible for all of the classes he was enrolled in.

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Judge dismisses former baseball player's lawsuit against UGA - Red and Black

Americans deeply value their First Amendment rights to freely worship and to freely voice their views, but we are deeply divided on how to apply and regulate those freedoms, anewly released survey discloses.

Therein is the 21st century challenge: Balancing long-protected freedoms against shortcuts through the First Amendment in the name of combatting societys ills or protecting individual beliefs.

The First Amendment: Where America Standsis a survey commissioned by the nonpartisan Freedom Forum. The survey sampled a representative group of more than 3,000 Americans on their attitudes and values about the freedoms of religion, speech, press, assembly and petition.

For those who see these five freedoms as essential to democracy, there are welcome results in the survey: 94% of respondents see the First Amendment as vital and 63% would keep the 45 words of the amendment as adopted in 1791.

But no surprise in our polarized society 23% of all those polled would make some changes. A smaller group, 15% of respondents, said our core freedoms go too far.

The results reflect a time when Americans are much more active in testing both the protections of and limits on our freedoms.

For example, 36% percent of us would add new limits on free speech to battle hate speech raising the deep challenge that what some see as hateful speech may be seen by others as simply the expression of a deeply held view or belief.

Some results may forecast a lessening of support for the five freedoms: 45% of people say they have not expressed an opinion for fear of negative reaction, with younger Americans more likely to say they have self-censored. The survey found 49% never have shared a political opinion on social media.Just three percent say the right of petition to publicly seek change in government policies or laws is the First Amendment freedom they value most; 69% of us never have participated in a rally, protest or march.

In an echo ofFreedom Forum surveys since 1997, the new Where America Stands found many of us lack fundamental understanding of the First Amendment. About one in five (18%) couldnt name one freedom in the amendment. Of those who could name at least one: 78% could identify free speech, followed by 49% naming religion, 39% assembly, 34% free press and 14% the right of petition. Just nine percent correctly identified all five.

Some findings are more in the vein of wishful thinking than practical suggestions which doesnt mean we should ignore the sentiments. The survey found that 72% would outlaw political ads that misrepresent the truth. In an era of constant battles with misinformation, particularly online, thats certainly a worthy goal. But the sentiment raises a multitude of conflicting questions: What is truth? How can we apply such laws without raising the specter of partisan censorship?

Then there is public opinion regarding a free press. A majority 58% see the news media as an essential watchdog on government, one of the core reasons the nations founders provided such strong protection for independent journalism even the highly partisan newspapers and journals of their time.

But only 14% of respondents expressed strong trust in the news media of today, with public broadcasting rated highest. The survey also confirmed widespread polling in recent years that shows a majority of us live in so-called news bubbles just 38% of respondents look to news outlets with different perspectives than their own.

More than two-thirds of those responding to the survey (69%) said social media companies should be responsible for whats posted on their sites. But that desire raises the likelihood that in holding Twitter, Facebook and others accountable we will prompt much tighter restrictions by those companies on what we are able to post with some predicting the death of social media as we know it and the installation of cumbersome government regulations and processes.

More than any other, that social media quandary typifies the survey findings. New technologies and deep political and social divides challenge our traditional shared notions of freedoms. We have heavy debate and momentous decisions ahead.

But the survey shows far too many of us lack basic knowledge about the First Amendment to debate and decide in an informed way.

When it comes to our core freedoms, ignorance is not bliss, particularly when combined with fear and lack of engagement that can drive hasty actions and prompt political opportunists.

Ignorance about our rights is dangerous for democracy.

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We like our first amendment rights whatever they are - Burnett County Sentinel

From Doe v. Google LLC, decided today by Judge Beth Labson Freeman:

Plaintiffs assert that Defendants have deprived them of their First Amendment rights by suspending their YouTube accounts. Plaintiffs argue that they have pled sufficient facts to plausibly allege state action under [the theory of government] compulsion .

{[From an earlier decision in the same case, the background facts: -EV] Plaintiffs created eighteen channels on the YouTube platform. Plaintiffs describe their channels as "extremely controversial" "conservative news" channels that feature content about "Hunter Biden and the Ukraine scandal," "the ongoing corruption probe," "social media censorship," "race relations or protests in America," and "anonymous posts on political issues by someone identifying themselves as 'Q.'" Plaintiffs allege that as of October 15, 2020, their channels attracted over 4.5 million subscribers and over 800 million views.}

Plaintiffs' First Amended Complaint cites statements by U.S. Rep. Adam Schiff and Speaker of the House Nancy Pelosi and an October 2020 House Resolution, which "have pressed Big Tech" into censoring political speech with threats of limiting Section 230 of the Communications Decency Act ("CDA") and other penalties.

For a private party's conduct to constitute state action under a compulsion theory, it must involve "such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." Blum v. Yaretsky (1982). To plead such a claim, a party must allege that the government "commanded a particular result in, or otherwise participated in, his specific case." Plaintiffs must point to a "state regulation or custom having the force of law that compelled, coerced, or encouraged" the alleged private conduct. Further, a compulsion claim against a private party requires pleading "some additional nexus that [makes] it fair to deem the private entity a governmental actor in the circumstances."

The Court finds that the statements by federal lawmakers Plaintiffs point to are insufficient to plead that the government "commanded a particular result in, or otherwise participated in, [Plaintiffs'] specific case." Plaintiffs point to generalized statements from lawmakers pertaining to "coronavirus-related misinformation," "disinformation proliferating online," "QAnon-related speech," and "conspiracy theories."

None of the statements mention Plaintiffs' names, their YouTube or Google accounts, their channels, or their videos. Plaintiffs argue that state actors "commanded a particular result" in their case because "Plaintiffs have alleged that Congress demanded that the unpopular speech dubbed 'misinformation,' and QAnon-related speech be limited and erased, which is precisely what Plaintiffs allege Defendants did." The Court disagrees that broad lawmaker proclamations regarding "misinformation" or "QAnon-related speech," for example, are sufficient to show that the government "commanded" the suspension of Plaintiffs' accounts. Even if Defendants had complied with these lawmaker statements to the letter, they would still have had the ultimate discretion on what videos or accounts fit into buckets like "misinformation" or "QAnon-related speech."

The Court also disagrees with Plaintiffs that they have alleged sufficient facts about the content of their videos to link their removal to the broad categories of online content mentioned in the lawmakers' statements. For example, Plaintiffs plead no facts to indicate that their videos pertained to COVID-19, so none of the statements from members of Congress relating to COVID-19 misinformation have any relevance to Defendants' alleged conduct. Further, Plaintiffs plead only vague facts about other subjects that leave open the question as to whether all Plaintiffs posted about these subjects, or only some of them. And none of the lawmaker statements Plaintiffs cite contain clear action items relevant to Plaintiffs' allegations. Id. 32 (encouraging YouTube to "display messages to any users who have engaged with harmful coronavirus-related misinformation"); id. 34 (generally discussing "misconduct" related to "the division and the disinformation proliferating online"); id., Ex. F at 81 (encouraging action on the part of the FBI, intelligence community, and "all Americans").

Plaintiffs claim that Defendants' conduct is state action because it was in response to the threat of various government penaltiesthe repeal of CDA Section 230 protections, "show trials" in front of the U.S. Senate, and a DOJ antitrust suit against Googleallegedly linked to whether Defendants appropriately moderated certain types of content. The threats of penalties Plaintiffs point to are insufficient to convert private conduct into state action here. The Ninth Circuit has found that pleading "a private actor's conduct is subject to penalties is insufficient to convert private action into that of the state." Moreover, Plaintiffs fail to point to any penalties that necessarily or even likely would have followed if Defendants did not suspend their accounts. See, e.g., FAC 10 (citing a DOJ antitrust case against Google with no alleged relationship to content moderation decisions); id. 34 (discussing generally that "social media executives will be held accountable for [their] misconduct"); id. 33 (discussing removal of CDA Section 230 protections without any clear action item or ultimatum); Opp. at 12-13 (citing cases related to congressional subpoena and investigation powers). These speculative "threats" to Defendants do not plausibly constitute "state regulation or custom having the force of law."

Plaintiffs can point to no authority to support a compulsion theory of state action based on penalties, particularly "threats" as speculative as the ones they point to here. See, e.g., Abu-Jamal v. NPR (D.D.C. 1997) (pressure from individual members of Congress did not bring about state action because "not one of these people has any legal control over [defendant's] actions."); Daniels v. Alphabet Inc. (N.D. Cal. 2021) ("[S]peculative assertions about the possibility defendants will be subpoenaed to testify before Congress or exposed to some other peril if they ignore letters from Congressional representatives do not support a theory of government action."). Courts have declined to find state action even where government penalties are far less speculative than what Plaintiffs allege, like where a law or regulation tied to state funding applies. Blum ("[P]enalties imposed for violating the regulations add nothing to respondents' claim of state action."); Heineke v. Santa Clara Univ. (9th Cir. 2020); Jackson v. Metro. Edison Co., 419 U.S. 345, 350 (1974) ("The mere fact that a business is subject to state regulation does not by itself convert its action into that of the State[.]"); see also Manhattan Comm. Access Corp. v. Halleck (2019) ("Put simply, being regulated by the State does not make one a state actor.") Here, no law or regulation appliesin fact, the main "threat" Plaintiffs allege is the repeal of a law (Section 230 of the CDA).

The Court also finds that Plaintiffs have not pled facts sufficient to plausibly allege the "something more" element required for a compulsion claim against a private defendant under Plaintiffs claim that they have pled facts that Defendants and the government "were jointly pursuing an unconstitutional end." But Plaintiffs rely primarily on a Twitter exchange between Rep. Schiff and YouTube CEO Susan Wojnicki that has no alleged relevance to Plaintiffs' content, since it pertains to COVID-19 misinformation. Moreover, as discussed below, Plaintiffs have failed to allege facts sufficient to plead that Defendants were engaged in joint action with the government.

Plaintiffs [also] assert that there is state action under a joint action theory, pointing to a Twitter exchange between Rep. Schiff and YouTube CEO Susan Wojnicki in which Ms. Wojnicki states, "We appreciate your partnership and will continue to consult with Members of Congress as we address the evolving issues around #COVID19."

Joint action is present where the government has "so far insinuated itself into a position of interdependence with [a private entity] that it must be recognized as a joint participant in the challenged activity." Further, a private defendant must be a "willful participant in joint action with the state or its agents." Joint action requires a "substantial degree of cooperative action" between private and public actors.

As a threshold matter, the Schiff-Wojnicki Twitter exchange Plaintiffs point to in support of their joint action claim clearly pertains to misinformation regarding COVID-19. As the Court discussed above, Plaintiffs have failed to allege any facts indicating that their posts pertained to COVID-19. Accordingly, it is unclear how this Twitter exchange supports a joint action theory pertaining to the suspension of Plaintiffs' channels. Since the Twitter exchange appears to be the fact Plaintiffs primarily rely on to allege joint action, Plaintiffs' failure to plead the relevance of this fact renders their joint action claim essentially unsupported. Further, it is simply implausible to read a casual Twitter exchange between one member of Congress and YouTube's CEO as joint action. Plaintiffs' theory would effectively cause companies to cease communicating with their elected representatives for fear of liability .

Further, Plaintiffs' allegations fail to plausibly plead a "substantial degree of cooperative action" between Defendants and the government. Based on Plaintiffs' allegations, their content was removed through the following series of events: federal lawmakers publicly flagged general categories of content for Defendants to consider moderating and issued threats to compel Defendants to comply, Defendants independently chose what content fit into the lawmakers' general categories, and Plaintiffs' channels happened to be some of the content Defendants decided to remove. Courts have dismissed cases for lack of state action despite significantly more alleged cooperation between public and private actors compared to what Plaintiffs allege here. Pinhas v. Summit Health, Ltd., (9th Cir. 1989) (affirming dismissal for lack of state action in decision by private hospital pursuant to review process approved by state); Heineke (affirming dismissal for lack of state action where private actor "receives federal and state funds conditioned on compliance with federal and state anti-discrimination laws and regulations"); Abu-Jamal (no plausible joint action at pleading stage where defendant is alleged to have a "close relationship" with the government); Jackson v. Metropolitan Edison Co. (1974) (affirming dismissal for lack of state action where defendant "was a heavily regulated, privately owned utility"); Blum (no state action with "state subsidization of the operating and capital costs of the [private] facilities, payment of the medical expenses of more than 90% of the patients in the facilities, and the licensing of the facilities by the State").

The cases Plaintiffs cite also indicate that far more is necessary to plead joint action than what they have alleged here. Plaintiffs cite U.S. v. Price (1966), which involved a scheme between state officers and private citizens where "[s]tate officers participated in every phase of the alleged venture: the release from jail, the interception, assault and murder. It was a joint activity, from start to finish." Plaintiffs have failed to plead anything close to the Price scheme. Ms. Wojnicki's tweet about "partnership" and "continu[ing] to consult with Members of Congress" does not suggest that government officials were involved at every step of Plaintiffs' suspension. At most, Plaintiffs appear to allege that government officials identified categories of information Defendants should consider removingthere is no allegation that government officials were in the room or somehow directly involved in the decision to suspend Plaintiffs.

Further, Plaintiffs cite Lugar v. Edmondson Oil Co. (1982). In that case, the Supreme Court found joint action where a private party "invok[ed] the aid of state officials to take advantage of state-created attachment procedures." In the present case, there are no allegations that Defendants invoked state or federal procedure to bring about the suspension of Plaintiffs' accounts. Defendants merely suspended Plaintiffs from Defendants own private platform.

Read this article:
No Government Action (and Thus No First Amendment Violation) in Suspension of Plaintiffs' YouTube Accounts - Reason

The U.S. Supreme Court has agreed to hear a case this term that pits the two religious liberty clauses of the First Amendment against each other on a flagpole.

At issue is a request by a Christian civic group, Camp Constitution, for the City of Boston to allow a Christian flag to fly on one of two City Hall flagpoles commonly used by civic groups and movements. The city offers groups the opportunity to fly their flags briefly on the two poles to encourage civic engagement.

To date, the city has allowed at least 284 private organizations to raise their flags and never had turned down a request until Camp Constitution asked to fly what is commonly known as the Christian flag a white background with a blue square at the upper-left corner containing a red cross. The group wanted to fly the flag for about an hour on Constitution Day 2017, to commemorate Constitution Day and the civic and cultural contributions of the Christian community to the city of Boston, the Commonwealth of Massachusetts, religious tolerance, the rule of law and the U.S. Constitution.

Flags previously flown on the poles include the flags of various countries, a Juneteenth flag,the LGBTQ rainbow pride flag and the transgender rights flag.

Camp Constitutions request was denied because the group wanted to fly the flag of a single religion, which city leaders feared would place them in violation of the First Amendments Establishment Clause, which says government may not give preferential treatment to one religion over other religions.

On the other hand, Camp Constitution claims the city denied its First Amendment rights to free exercise of religion the other half of the First Amendments religious liberty statement.

There is no evidence the city had been asked previously to fly the flag of any other single religion, although Camp Constitutions attorneys point out that they had flown the Turkish flag, which depicts the Islamic star and crescent, and the Portuguese flag, which uses religious imagery.

In January, the First U.S. Circuit Court of Appeals sided with the city, which argued that the flagpole is not a public forum, the citys raising of a third-party flag is government speech, and the city can choose the views it wants to express. The appeals court supported the original ruling of a federal judge who first heard the case.

Camp Constitution appealed that January ruling to the Supreme Court, which chose the case from among hundreds of other cases denied hearing.

Americans United for Separation of Church and State was among the first religious liberty watchdog groups to urge the Supreme Court to reject Camp Constitutions claim, noting the case, Shurtleff v. Boston, could significantly endanger religious freedom and church-state separation.

Americans United President Rachel Laser said: The separation of church and state is the constitutional principle that guarantees everyones right to religious freedom and to be treated equally under the law. To protect this core American principle and to respect the religious diversity that defines our country, the Supreme Court should not force the City of Boston to fly a Christian flag at city hall.

Forcing the city government to fly a Christian flag on its property would not only undermine the foundational principle of church-state separation, it would play right into the hands of Christian nationalists who want the government to force everyone to live by their beliefs threatening everyones religious freedom and widening inequality in our communities and country, she added.

Camp Constitution is being represented by Liberty Counsel, an evangelical Christian ministry active in pursing religious liberty cases, especially those focused on free exercise claims.

We look forward to the U.S. Supreme Court hearing Bostons unconstitutional discrimination against Camp Constitutions Christian viewpoint, said Liberty Counsel Founder and Chairman Mat Staver. The city cannot deny the Christian flag because it is Christian and allow every other flag to fly on its flagpoles. There is a crucial difference between government endorsement of religion and private speech, which government is bound to respect. Censoring religious viewpoints in a public forum where secular viewpoints are permitted is unconstitutional and this case will set national precedent.

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Religious liberty is being hijacked: expressing our faith responsibly within the civic realm | Opinion by Molly Marshall

BJC offers timely answers to questions about religious liberty

Excerpt from:
Supreme Court will hear Boston flag case that pits First Amendment religious liberty clauses against each other - Baptist News Global