Category Archives: Free Speech

When is a libertarian not a libertarian? When, apparently, it is the wrong kind of people whose liberties are being curtailed. The past week has seen so-called libertarian Tory MPs rebel against the governments Covid plan B the necessity for vaccine certificates or negative tests to attend large venues, mandatory vaccinations for NHS staff, and the compulsory wearing of masks in certain spaces. Were not a papers please society, Tory MP Marcus Fysh claimed. This is not Nazi Germany.

Forget the gratuitous Nazi analogy, for which Fysh apologised; such a stance is now endemic in much discussion of Covid restrictions. The fact is, for many people, Britain is very much a papers please society. Papers please is what the hostile environment for immigrants is built on the demand that people who might be immigrants must show their papers before they can receive hospital treatment, rent a flat or find a job. Its what lies at the heart of the Windrush scandal the insistence that those who did not have the right papers could not be British, even if they had been born here, and had lived and worked here all their lives.

The failure to recognise this is not an unfortunate oversight. Rightwing libertarians often have a selective view of who should be able to avail themselves of liberty. In the run-up to the debate over Covid restrictions, two other laws deserving of their attention passed through parliament. The libertarians response to both revealed their authoritarian core.

The governments police, crime, sentencing and courts bill is currently in its committee stage in the Lords, having travelled through the Commons. At its heart is an assault on the ability of people to protest. The law would allow police to prevent demonstrations they deem too noisy or causing serious disruption. What serious disruption means is left to the home secretary to define.

An array of amendments the government has quietly added to the bill include measures to proscribe protesters from attaching themselves to another person or to an object, and the use of serious disruption prevention orders to ban individuals from protesting. These can be imposed on anyone who has previously been convicted of a protest-related offence, or who simply has been to two protests in which they carried out activities that could have caused serious disruption. Breaking such bans could lead to 51 weeks imprisonment. Police are also to be given new powers to stop and search people without suspicion.

It is one of the most ferociously illiberal laws of recent times. So, how many of our libertarian Tories voted against the bill at its third reading in July? Not one. Fysh objects to a papers please society but is happy to assent to a you cannot protest unless the home secretary allows you to state.

And then there is the nationality and borders bill, which had its third reading in the Commons earlier this month. The bill proposes differential treatment of refugees depending on how they arrived here. Those who come through regular means with papers or permission to enter the UK will be eligible to claim asylum. But any asylum seeker who knowingly arrives without leave to enter could be jailed for up to four years. This is to criminalise the very act of seeking asylum. It is also to enlarge the papers please approach of the hostile environment. Not just asylum seekers, but anyone helping them will also be criminalised even if providing humanitarian assistance and could face life imprisonment.

One of the many amendments the government has added to the bill gives the home secretary unprecedented powers to deprive an individual of citizenship without even informing them. Tory MP and former Brexit minister David Davis described the bill as deeply flawed and suggested that plans to establish offshore asylum detention centres could create a British Guantnamo Bay.

Presumably, then, Davis voted against the bill? No. He supported it. As did 290 other Tory MPs. A further 66 abstained or did not vote. Again, not a single Tory opposed the bill.

Tory libertarians are not libertarian in any meaningful sense. They accept, indeed welcome, the most grotesque denial by the state of individual liberty so long as it is directed against people they deem unworthy of such freedoms, whether protesters or immigrants.

Some commentators, such as the Spectator editor and Daily Telegraph columnist Fraser Nelson, have bemoaned the rise of illiberal conservatism. Such illiberalism is, however, neither new nor strange. Belief in small government and free markets has long coexisted with an insistence on the strict policing of those deemed undesirable.

Nelson cites the 19th-century liberal Walter Bagehot as an exemplar of the kind of liberal conservatism he would like to re-establish. In 1852, writing from Paris, Bagehot welcomed Louis Napoleons bloody coup detat the previous year to suppress the 1848 revolution. The first duty of society, Bagehot insisted, is the preservation of society: to keep up this system we must sacrifice everything. Parliaments, liberty, leading articles, essays, eloquence all are good, but they are secondary. He warned against being misled by any high-flown speculations about liberty or equality and to recognise the need to protect society from the dangerous classes. Its a sentiment as alive today as it was then.

Liberty has always been a contested issue, both in its meaning and in its scope. Those in power have constantly attempted to exclude certain groups from benefiting from the largesse of liberty. How is it that we hear the loudest yelps for liberty among the drivers of negroes? asked Samuel Johnson (no friend of liberty himself) of the American revolutionaries of 1776.

It was historically the left that waved the banner of liberty, seeking to expand its meaning and to include debarred groups, from the working class to women to colonial subjects. These struggles gave shape to the modern meaning of liberty. More recently, though, many sections of the left have retreated from issues that once helped define it, from free speech to civil liberties. This has given a free pass to the libertarian right both to don the mantle of freedom and to distort its meaning; libertarians who are happy to deny basic freedoms to those who need it most. Liberty is too important to leave to those who dont really believe in it.

Kenan Malik is an Observer columnist

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Strange beasts, these libertarians who love to curb the freedom of others - The Guardian

Rejected license plates offer a humorous glimpse into automotive culture and today we celebrate the genius who came up with P00BARU.

The ideal vanity plate for aging brown Subarus, P00BARU deserves a spot in Merriam-Websters dictionary. Unfortunately, the Debbie Downers at the Idaho Transportation Department thought otherwise. As a result, they rejected it as well as a host of other crude license plates.

As Boises KTVB pointed out, the state prohibits plates from having a sexual term that is vulgar, obscene, or in poor taste as well as terms that could be considered obscenity, contempt, prejudice, hostility, insult, racial degradation, ethnic degradation, profanity, or vulgarity.

Also Read:California Judge Says Ban On Offensive Vanity Plates Violates Free Speech

What falls into these categories is open to interpretation, but the station received a list of over 250 vanity plates that were rejected this year. While many of them involved abbreviated swear words, there were some puzzling rejections including FAKEAWD, which seemingly means Fake All-Wheel Drive.

The relatively tame PB4WEG0 was also rejected as was STAYNCA, which targets newcomers to the state by telling them to Stay in California. Sticking with that theme, CASUKS was also rejected.

Since 63.8 percent of Idaho voterscast their ballot for President Trump in the last election, it comes as little surprise many of the plates targeted the new administration. FKBDEN, FBIDEN, and FKBIDEN were all rejected as was FKHARIS, which is a (insulting) nod to Vice President Kamala Harris. Of course, not everyone is a Trump fan and at least one person attempted to get a FCKTRMP plate.

There was also an application for IEATASS, which is interesting given the drama that phrase stirred up in Florida a few years ago. That case involved a decal and a mans arrest, which has now turned into a lengthy legal battle over free speech.

Of course, those are just a handful of the rejected plates and you can see the full list here.Needless to say, the list includes a number that are definitely NSFW.

See original here:
Idaho Rejected Over 250 Vanity Plates This Year, Including P00BARU - CarScoops

Academics seeking promotion at one of the countrys leading universities have been told they should overhaul courses to limit the number of dead white men.

Researchers applying for any teaching roles at University College London (UCL) should engage with the institutions Liberating the Curriculum initiative and be prepared to "demonstrate the impact" of this.

According to an internal university guidance document, titled UCL Academic Careers Framework, this is listed as a core requirement for those applying for lecturer roles.

It says that all academic, research and teaching staff are expected to demonstrate at least some core activities when applying for a promotion.

The document explains that an "indicator of impact" could be either introducing new or making substantial revisions to old modules in response to student feedback.

UCL describes its Liberating the Curriculum initiative as a policy aimed at challenging traditional Eurocentric, male-dominated curricula and ensuring the work of marginalised scholars on race, sexuality, gender and disability are fairly represented in curricula.

The initiative also encourages academics to be the change and acknowledge the prejudices baked into a field as well as check their privilege.

It claims that many academic disciplines are deeply exclusive and unfair in their current form as they are overly represented by dead white (able-bodied European) men.

One academic told The Telegraph they are deeply troubled about this initiative. I think this whole woke avalanche is really concerning because it is like a religious fervour," he said. "Instead of looking at the evidence, it says some answers have got to be accepted and others cannot be accepted. That is poisonous - it is the wrong direction for a university to go in.

The Free Speech Union (FSU) has written to UCLs vice-chancellor, Dr Michael Spence, urging him to remove this stipulation immediately from its guidance.

Toby Young, general secretary of the FSU, said: "Insisting that anyone in a grade 8 job at UCL, or applying for one, has to remove 'dead white able-bodied European men' from reading lists, 'check their privilege' and 'acknowledge the prejudice baked into their field' is an infringement of their right to free speech and almost certainly unlawful.

The Telegraph last week revealed how Oxford dons are furious that a candidates woke score could be part of the criteria for hiring academics, under new proposals aimed at boosting staff diversity.

The universitys race equality task force has published a series of recommendations aimed at increasing the number of people it hires from ethnic minority backgrounds.

In a consultation document, the task force said it was important to embed EDI - which stands for equality, diversity and inclusion - into all recruitment.

One Oxford academic questioned whether this would mean academics need to have a minimum woke score to get a job at the university.

A UCL spokesperson said that their Academic Careers Framework document gives illustrative examples of activity undertaken by some people at a specific job grade and these are categorically not a checklist for promotion".

They added: The descriptions are not exhaustive and no individual would be expected to meet all of the criteria highlighted. They offer broad and varied indicators of different types of activity and Liberating the Curriculum is just one example of how staff can demonstrate their work on the curriculum.

Irrespective of the activity, the evidenced impact and reach of a persons work is the vital aspect for promotion and contribution will be considered in the round.

We have a long tradition of safeguarding freedom of speech and are strongly committed to upholding academic freedom of enquiry in our teaching and research."

Read this article:
Academics seeking promotion at UCL told to overhaul courses to limit the number of 'dead white men' - Telegraph.co.uk

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Faculty at Alabamas flagship university are urging leaders to take a public stand against state legislation aimed at limiting academic speech.

In a resolution published Thursday, the University of Alabama Faculty Senate urged UA President Stuart Bell and the Board of Trustees to join in opposition of proposed and future legislation that undermines academic freedom and, therefore, the historic purpose of higher education.

Read more Ed Lab: After CRT complaint, Huntsville teacher training investigated.

The Faculty Senate is a legislative body at the University of Alabama that consists of faculty representatives across colleges. The resolution comes after an impassioned meeting earlier this fall, when members debated how to handle legislative efforts that could impact discussions of race, equity and critical race theory.

Critical race theory is not taught at the K-12 level in Alabama, but several professors in an October meeting said they must debate and research the concept in university courses. A University of Alabama School of Law professor is an expert in the field.

Read more Ed Lab: What is critical race theory? Is it in schools? We asked an expert.

This is an existential threat to everyone in the room, said John Petrovic, an education professor, of bills prefiled in the Alabama legislature. To wait until legislation passes to make a statement, he said earlier this fall, would be cowardice bullshit.

This fundamentally attacks what we are supposed to be about; not only are we supposed to be providing leadership on issues of social justice, and at least some of us are in the work of anti-racism, but this is now attacking all of us in terms of academic freedom, he said in the October meeting.

The resolution, which was voted on Wednesday in the Senates second in-person meeting since the pandemic began, follows a similar motion from the Board of Trustees, which recognized its commitment to free speech and expression and stated that it is not the proper role of an institution to shield or attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable or even deeply offensive.

A bill prefiled for the 2022 legislative session would prohibit public K-12 schools and public institutions of higher education and their employees from using or introducing courses of instruction or units of study directing or compelling students to adhere to or affirm certain concepts regarding race or sex, such as critical race theory. It threatens firing of teachers and professors who teach those concepts.

The Faculty Senate asked university administration to continue to affirm free speech even in the event that a bill is passed.

It also cited a prior resolution from 2004, which stated that the purpose of academic freedom is to allow college and university professors to develop knowledge and to challenge existing truths by speaking and writing about their findings.

Our students opportunity to maximize their intellectual potential depends in large part on the ability of faculty to employ academic freedom and freedom of expression in their pedagogy, the group wrote. ... Any pending legislation in the Alabama legislature that infringes on academic freedom and expression is anathema to this ideal and contradicts existing law and precedents.

Read the rest here:
University of Alabama faculty defend free speech, right to teach critical race theory - AL.com

Voting rights are important but are you willing to put your life on the line for the right to vote? After Republicans gutted voting rights across the country, Civil and Human rights activists, Joe Madison decided to do something drastic...

Madison is on day 38 of his hunger strike. He will post weekly "waste up" photos as he continues to shed weight. Joe Madison, The Black Eagle, is on a hunger strike until President Joe Biden signs the bills and voting rights are passed in the Senate. Joe Madison says the right to vote sustains democracy.

He joins Thom Hartmann to give an update on his efforts.

--

The Thom Hartmann Program covers diverse topics including immigration reform, government intrusion, privacy, foreign policy, and domestic issues. More people listen to or watch the TH program than any other progressive talk show in the world! Join them. #MorefromThom

The Thom Hartmann Program is on Free Speech TV every weekday from 12-3 pm EST.

Missed an episode? Check out Thom Hartmann Playlist on our Youtube channel or visit the show page for the latest clips.

#FreeSpeechTV is one of the last standing national, independent news networks committed to advancing progressive social change.

#FSTV is available on Dish, DirectTV, AppleTV, Roku, Sling and online at freespeech.org

The rest is here:
What Will it Take To Restore and Protect The Right to Vote? - Free Speech TV

Dominic Raab has been accused of a blatant and unashamed power grab as he prepares to outline significant reforms of human rights laws that he said will counter wokery and political correctness.

The justice secretary said the overhaul of existing legislation will protect the quintessentially British right to freedom of expression, giving existing protections extra weight amid concerns they are being undermined by the rise of cancel culture.

Writing inThe Telegraph, Attorney General Suella Braverman said the proposed changes to the Human Rights Act would strengthen the right to freedom of expression and preserve space for wide and vigorous democratic debate.

She added: We propose that the Bill should make clear the utmost importance attached to this right and that in balancing competing rights the courts should only interfere with it where there are exceptional reasons to do so.

Politicos London Playbook said that the announcement from the Ministry of Justice is a big one, adding that in practice it means the UK remains a party to the ECHR [European Court of Human Rights]but the Supreme Court has the final say.

The proposals for a new bill of rights aim to make clear that free speech is pre-eminent, the Daily Mail said, and stress that parliament is the ultimate decision maker on legislation not judges.

The government is concerned that parliaments role as the authoritative voice on British law has been blurred by judges, the paper continued. Ministers have voiced concerns that the influence of the European Convention on Human Rights, agreed in 1951, has been expanded far beyond what was originally intended.

The paper cited a legal case between the Duchess of Sussex and the Mail on Sunday, in which the Court of Appeal upheld a High Court decision that the Duchesshad a reasonable expectation of privacy over a letter written to her estranged father, Thomas Markle.

Lawyers and media experts said the ruling set a dangerous precedent by extending the right of privacy to benefit the rich and powerful.

Supporters of the governments plans have pointed to the recent row at Durham University, where Professor Tim Luckhurst, a journalist and academic, was barred from public duties for five weeks and is being investigated after he criticised students who walked out during a speech by journalist Rod Liddle.

But The Guardian said the highly controversial reforms amount to a sweeping overhaul of human rights law that will serve to change the balance between freedom of expression and privacy.

Amnesty International led the protests, saying human rights were not sweets ministers can pick and choose from and that the aggressive attempt to roll-back the laws must be stopped.

Amnesty chief executive Sacha Deshmukh told Sky News that ministers risk aligning themselves with authoritarian regimes around the world if the legislation is passed.

Martha Spurrier, director at Liberty, told the broadcaster that the plans are a blatant, unashamed power grab from a government that wants to put themselves above the law, adding that although the legislation is being cast as an attempt at strengthening our rights, they will be fatally weakened.

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The new free speech law aiming to end wokery and cancel culture - The Week UK

With the holiday season upon us, its the perfect time to reflect on the many things for which we can and should be grateful. And yes, 2021, like the year before it, was a challenging year for most of us. But free speech actually had quite a good year.

Given the state of civil discourse and the human impulse to silence or punish others because of their speech, this may come as a surprise to many. Surely, our free speech culture is a cause for concern. However, if you look more closely, there are also plenty of reasons to be thankful. For example, although America seems more divided today than it has been for the past 50 years, the truth is that Americans are less polarized than we think.

But even if we grant that our free speech culture has seen better days, our First Amendment rights have never been better protected than they are now, at the end of 2021. While our culture continues to try to remind itself that free speech really is a good idea, the judiciary continues to do its job of protecting those freedoms.

So this year, Im thankful for four Supreme Court decisions upholding every Americans First Amendment rights.

Future law students may not appreciate needing to remember the names in the first one, Uzuegbunam v. Preczewski, but the Supreme Courts 8-1 decision will make it easier to vindicate First Amendment rights in court. Georgia Gwinnett College violated the free speech rights of a student by restricting his speech to a small speech zone and then imposing a speech code to censor him because his religious speech disturbed the tranquility of another student. The violation didnt cost Chike Uzuegbunam anything except many months of not exercising his First Amendment rights. Like many government defendants, the college later tried to avoid adjudication and responsibility for its violation of Uzuegbunams free speech rights by changing its policies, arguing that his $1 nominal damages claim wasnt sufficient to keep the case in court if the colleges free speech violations didnt cost him out of pocket. The Supreme Court held that Uzuegbunams free speech rights were priceless, not worthless, and his case could go forward. This resolves an important question and makes it much more likely that campus and other free speech claimants will get their day in court.

Second is Mahanoy Area School District v. B. L., which will forever be known as the cursing cheerleader case. The 8-1decision in this case affirms that in all but the rarest circumstances, a public schools jurisdiction over student speech ends at the schoolhouse gate. Parents, not principals, should be the ones policing a students social media posts during nonschool hours. While not a home run, the decision was a solid double for free speech. And importantly, it avoided the strikeout scenario, in which the court could have opened the door wide to public schools policing their students speech during nonschool hours.

Third is our own case: Americans for Prosperity Foundation v. Bonta. This 6-3 decision protects and reaffirms the freedom to support causes and charities anonymously. In reaffirming its decision in NAACPv.Alabama, the court held that the California attorney general could not collect data on charitable contributions for tens of thousands of charities all over the country. A former executive director of the NAACP described the case as one of the most significant wins for civil rights in decades. Underscoring this point is the most diverse set of organizations ever on one side of a constitutional case in the Supreme Court.

Finally, I am grateful for Fulton v. City of Philadelphia. Philadelphia had disqualified a Catholic foster parent placement service because of the stated views of Catholic clergy about foster parent placements with same-sex couples. As we argued to the court, free and voluntary association to address social ills is crucial to maintaining our system of government. Throughout our nations history, fights for civil rights have relied on the simultaneous exercise of civil liberties, including this ability to associate freely. Excluding some volunteers from working to address a problem on the basis of their views would imperil ... the very building blocks of civil society. As in Mahanoy, the court failed to go as far as it could have, but it did side unanimously with the Catholic foster placement agency, protecting its freedom to continue to serve children and foster parents in Philadelphia. This was a win for pluralism and First Amendment rights.

As we enjoy the holidays and close in on the end of 2021, when youre tempted to be despondent about the state of our politics and culture, remember that there are bright spots to be appreciated. You get to watch Alabama in the College Football Playoff (maybe thats just something Im happy about), and your First Amendment rights are on firmer footing now than theyve ever been as we leave 2021 behind. Heres to using those freedoms more in 2022.

Casey Mattox is the vice president for legal and judicial strategy atAmericans for Prosperity.

Excerpt from:
First Amendment rights are reason for cheer this holiday season - Washington Examiner

Published: 12/15/2021 3:41:20 PM

Modified: 12/15/2021 3:40:46 PM

AMHERST Residents at an Amherst condominium complex are amending the sites master deed to ensure that no one living there will be prevented from displaying signs supporting political candidates or promoting their religious or moral beliefs.

In an exercise of free speech, in part the result of a successful ACLU case earlier this year that allowed a Belchertown resident to keep her Black Lives Matter sign up, Hampshire Village Condominium residents voted to file a revised master deed with the Hampshire County Registry of Deeds.

The right to express political opinions, particularly from ones own home, has been a cornerstone of our democracy, Bill Newman, an attorney with the ACLU of Massachusetts Western Massachusetts office, said in a statement. We deeply appreciate the Hampshire Village trustees and residents recognizing the importance of the fundamental right to speech.

A Hampshire Superior Court judge ruled in January that a woman must be allowed to display a Black Lives Matter sign outside her Summer Hill Estates home in Belchertown, citing the free speech provision of the Massachusetts Constitution in ruling against the condominium development. The ruling came after the woman had been ordered to remove the sign by trustees at the complex.

And in 2019, a federal district court permanently blocked Holyoke from enforcing an ordinance prohibiting temporary lawn signs on private property in the city during three months of the year, and prohibiting bumper stickers all year. Plymouth recently agreed to stop enforcing similar ordinances following ACLU action.

The new Hampshire Village rule, prompted by legal analysis provided by the ACLU, states that All Unit Owners have a right to display a non-commercial posting (e.g., a sign, flag, banner, or other decoration), including a posting of a political, religious, moral, cultural, or scientific nature, or one that otherwise contributes to the free marketplace of ideas.

The new language does limit the size of signs to 20 inches by 30 inches, and limits where signs can be placed, such as the garden bed adjacent to a unit owners building, or on a unit owners front door or its frame, or in a unit owners window.

Read more here:
Amherst condo association bans banning signs - GazetteNET

from the not-this-again dept

Canada, despite being our friendly neighbor to the north, has been known to have some not great laws regarding speech. Over the years, we've covered a few too many distressing lawsuits that attack speech, including by going after intermediaries rather than the speakers themselves. While sometimes (but not always), Canadian courts eventually get to the right decision, it's often many years later, and after a whole lot of censorial nonsense.

It's happening yet again. A Canadian businessman, Frank Giustra, is mad at Twitter. He's really mad at some idiots on Twitter who claimed he was somehow tied into Pizzagate because he's done some philanthropic work with the Clinton Foundation, but it's turned into a lawsuit against Twitter itself -- because silly people continually want to go after the intermediary, rather than the speaker. Obviously, in the US, any such case would be dead in the water, because common sense, the 1st Amendment, and Section 230 would all protect Twitter. Unfortunately, Canadian courts have none of those three to rely on. So, back in 2019, Giustra sued Twitter in Canada, and not the silly people who may have actually defamed him. Because why go after the actual speakers, when you can go after the tools they use?

Twitter had argued that Canada has no jurisdiction over the case, and it should be filed in California (where it would be tossed out immediately). Unfortunately, earlier this year, a court sided with Giustra over Twitter and now the appeals court has now ruled that Giustra's lawsuit against Twitter can move forward, upholding the original decision. The full ruling is difficult to read without repeatedly wanting to scream about how dumb it is, but that's what happens when you have no real intermediary liability protections, and people want to go after websites instead of actual speakers.

What happened in this case was that a bunch of stupid, ignorant people said ridiculously stupid stuff about Giustra online as part of the Pizzagate nonsense, a precursor to today's metastasized Q-anon conspiracy theory. Giustra was (understandably!) upset about this and alerted Twitter about how people were spewing nonsense about him. Twitter then actually took down the vast majority of the tweets in question, and made most of the rest unviewable in Canada. But then Giustra, who lives in both California and Canada decided to engage in some libel tourism, seeking out the friendliest jurisdiction to go after Twitter: and that's Canada. As the ruling itself notes:

In this case, Twitter submits, a careful examination demonstrates that the presumptive factor here does not point to any real relationship between the subject matter of the litigation and British Columbia as the forum. Whatever connection there may be between British Columbia and the subject matter of the complaint, Twitter asserts, it is anything but substantial.

In this regard, it points out that Mr. Giustra has a residence not only in West Vancouver, BC, but also one in Beverly Hills, California, and the tweets of which he complains were overwhelmingly posted by Americans about United States topics, particularly in reference to the 2016 US election and the connections between Mr. Giustra and the Clintons. Twitter says that Mr. Giustras pleadings did not single out British Columbia as a place of harm, and he filed no evidence that located any particular harm in British Columbia. In Twitters submission, the Sikhs for Justice case establishes that a plaintiff is obliged to lead evidence of harm to reputation in his chosen forum if he wishes to meet the case of a defendant who is seeking to rebut the presumption, and the judge erred in distinguishing that case as he did.

Twitter further asserts that, unlike the defendants in Haaretz (where jurisdiction was found not to have been rebutted), it did not choose to create content about the plaintiff. Twitter merely provided the platform and cannot reasonably be expected to be aware of the reputation and location of any given person mentioned on its platform. Moreover, contrary to the judges finding, Twitter maintains, the correspondence directed to Twitter on his behalf did not alert Twitter to concern about reputational harm in BC.

Giustra's response to this seems incredibly silly. He argues that because Twitter made the content available in Canada, that's enough to say it proactively was subjecting itself to Canadian libel laws. That's a completely nonsensical argument on a (mostly) borderless internet:

As to Twitters submission that it could not reasonably have been expected to be aware of the reputation or location of any particular person mentioned in tweets because it did not create the content, Mr. Giustra points out that Twitter chose to make the content of its platform available worldwideincluding Canadaand must be taken to have understood that defamation law may expose it to jeopardy in jurisdictions other than California. Moreover, Twitter continued to publish defamatory tweets after Mr. Giustra and his lawyers brought them to its attention. From that point on, Twitter had actual knowledge of Mr. Giustras connection to British Columbia and Canada.

The court, playing to the home crowd, accepts Giustra's argument.

Here, Twitter submits, although the correspondence brought the existence of allegedly defamatory tweets to its attention, nothing in the communications suggested a connection with British Columbia. Consequently, in Twitters submission, it would not have known of Mr. Giustras connection to British Columbia, and would have no reason to expect to be sued in that jurisdiction.

In my view, there is no merit to this proposition. The correspondence in question comprised two letters from Mr. Giustras Toronto solicitors concerning abusive Twitter posts, and one letter with attachments directly from Mr. Giustra on the letterhead of Fiore Financial Corporation in Vancouver.

So, apparently the letterhead is key to putting you on notice that you might be dragged into a Canadian court.

Twitter further argued that California is clearly the more appropriate forum, but again, the Canadian court says Canada wins, basically just saying that the lower court did enough under the law to say that Canada was the right jurisdiction.

Then there's the important jurisdiction shopping point that Twitter raised. It highlighted to the court that such a case would clearly fail in the US, and thus it was only being brought in Canada to avoid that fate. The court here basically said that Twitter's free speech protections in the US... are even more of a reason that Canada is the proper venue. That's... eye-opening, but certainly fits with earlier rulings in which Canada has demanded US companies block content globally, with no concern to free speech considerations as applied to other countries.

A question arises as to whether the circumstance of Twitters immunity under US law is properly analysed as a question of applicable law, or of juridical advantage. The judge approached it primarily as a question of juridical advantage, and the parties argued it on that basis. But the judge also dealt with the effect of Twitters immunity in California as relevant to the factor of applicable law.

The court then says that because Canada has a much weaker and different intermediary liability protection law, it's as if Canada has its own Section 230.

As Twitter was at pains to point out, should it be obliged to proceed to trial in British Columbia, it will raise the defence that, in law, it cannot properly be considered a publisher of tweets read in British Columbia (or anywhere else) that it did not author or create, and accordingly will need to bring a number of witnesses to British Columbia to assist it in that regard.

This is the same defence that is afforded to it in California by the Communications Decency Act of 1996. The difference is that in California, Twitter will be in a position to have Mr. Giustras claim summarily dismissed on the basis of that defence, while in British Columbia, it will have only the opportunity to persuade a court that the defence is available to it on the merits. Consequently, as a substantive matter, the defence is notionally available in both jurisdictions. Procedurally, however, it is a defence that is arguable in British Columbia, but is bound to succeed in California. In this sense, it can be properly considered under the factor of juridical advantage.

As I understand Twitters argument, it does not really matter under which circumstance the matter of Twitters immunity is analysed. Either way, the effect of US law should be given little weight in the forum non conveniens comparative analysis and the judges approach offended the underlying principle of comity. I agree with Twitter to this extent: whether the matter of its immunity under US law should be considered as a circumstance of applicable law or juridical advantage need not be resolved on this appeal. It is a relevant circumstance, and one that must be considered in the context of comity.

Except, the fact that under 230 such cases are "summarily dismissed" is the key point of Section 230, procedurally ending silly mis-targeted cases before they get ridiculously expensive for the defendant. So, the Canadian's court's dismissal of this point as if it's only slightly different ignores the entire rationale for Section 230.

The court then flat out admits that under US law, courts would never enforce a ruling in Canada, but basically shrugs, and says that's no reason not to try:

While courts in the United States are prohibited from respecting and enforcing any order made against Twitter in Canada, that is not so of Canadian courts in relation to any order pronounced in the United States. As the Equustek Solutions Inc v Google Inc litigation demonstrated, the courts in the United States are legislatively prohibited from respecting the different constitutional and legal approach in Canada, notwithstanding our shared values.

But that does not make proceeding in British Columbia a pointless exercise, for Mr. Giustra would at least have the opportunity to obtain a judgment vindicating his reputation (see Banro at para 45)an opportunity denied from the outset in California.

The advantage-disadvantage balance that Twitter relies on is accordingly unequal between the jurisdictions and tilts in favour of British Columbia. In BC, Mr. Giustra would have the opportunity to establish his claim and vindicate his reputation; in California he would not. But Twitter would be in a position to raise the defence of lack of publication in either jurisdiction. In British Columbia, it would be a matter of argument; in California, its success would be a foregone conclusion.

And thus, this silly case moves forward. It's possible that Twitter will still win in the end, but once again this ruling highlights just how important Section 230 is. It gets rid of these mistargeted, silly lawsuits upfront. Giustra remains free to sue the actual people who he claims defamed him. He has chosen not to do so, and instead focused on Twitter. That, alone, is silly, and it makes a mockery of common sense for Canadian courts to allow it to move forward.

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Filed Under: canada, defamation, frank giustra, free speech, intermediary liability, jurisdiction, pizzagate, section 230, speech actCompanies: twitter

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Canada Strikes Again: Allows Lawsuit Against Twitter To Proceed Over Speech Of Twitter Users - Techdirt

(The Conversation is an independent and nonprofit source of news, analysis and commentary from academic experts.)

(THE CONVERSATION) University of Florida officials in November blocked three professors from offering expert testimony in a lawsuit that challenged recently enacted state voting restrictions. But the university soon reversed course amid a public outcry.

The criticism leveled at the university included charges that the scholars academic freedom had been violated, along with their First Amendment rights to free speech. The professors themselves filed a lawsuit against the university after the reversal, saying that the university had violated foundational principles of academic freedom and free speech.

From my perspective as a constitutional law scholar and lawyer, untangling how these two claims are both related and distinct can help us understand how these kinds of disputes ultimately pit robust protections for free inquiry and debate against public institutions desire to manage their operations as they choose. It turns out that courts reach very mixed results when deciding these disputes.

Protecting speech

Public universities like the University of Florida are government employers. They sometimes restrict the speech of faculty members, who are their employees. For example, the University of Florida asserted that professors testimony in a lawsuit against the state was adverse to the universitys interests as a state of Florida institution when it first sought to block that testimony. Such restrictions can trigger both First Amendment and academic freedom concerns.

First Amendment law is the body of constitutional law that protects speech from the governments unjustified interference. For example, it prohibits the government from punishing critics for speaking out.

Academic freedom describes an academic communitys customs and practices that allow free intellectual inquiry and debate. These customs and practices help advance universities mission of creating and disseminating knowledge.

Under these customs and practices, for instance, scholars have the freedom to choose which topics to explore and which conclusions to draw.

Academic freedom protections are enforced by academic communities, like universities. First Amendment protections are enforced by courts.

Government often limits its employees speech

First Amendment law generally prohibits the government from restricting individuals right to speak freely. But the First Amendment rules that apply to the government when it limits the speech of its own employees are much more government-friendly, allowing greater restrictions of those workers speech.

Under these rules, the First Amendment protects a public employees speech as an individual citizen on a matter of public concern, so long as that speech does not unduly interfere with her government employers operations.

So, for example, the First Amendment would protect a public school teachers letter to the editor or social media posting that criticizes the mayor. The lawsuit filed by the University of Florida professors who were originally told they couldnt give testimony similarly argues that, through that testimony, the professors sought to offer their views as individual citizens on the important matter of voting rights.

In contrast, according to the Supreme Court, public employees speech pursuant to to their official duties is entirely unprotected by the First Amendment.

According to one landmark ruling, thats because government employers must, as a practical matter, have power over their employees job-related speech, to control what the Supreme Court called what the employer itself has commissioned or created. In other words, what a person says as part of her official duties as a government employee is not protected by the First Amendment. This is so, according to the court, even when the employees job-related speech is on a matter of great concern to the public.

What about whistleblowers?

The Supreme Court first announced this rule in a 2006 decision called Garcetti v. Ceballos. In that case, the justices rejected a prosecutors claim that he was exercising his First Amendment rights to free speech and should not have been punished by his governmental employer for his internal memo that questioned a warrants legitimacy.

Lower courts now frequently apply the Garcetti ruling to dismiss the First Amendment claims of government workers punished for truthfully reporting government misconduct when it was their job to report it.

For example, courts found that the First Amendment did not protect public health care workers who were disciplined after conveying their concerns about patient care. Likewise, it didnt protect police officers who were fired after reporting public corruption.

The Garcetti ruling sometimes makes it hard to figure out when public employees speech occurs pursuant to their official duties and thus loses any First Amendment protection.

One court even applied Garcetti to conclude that the First Amendment permits the government to punish a public employee for truthfully testifying that a state legislator on a state agency payroll had not been reporting to work when the employees testimony involved information that he acquired on the job.

Fortunately, the Supreme Court reversed that decision in Lane v. Franks, holding that the First Amendment protects a public employee who provided truthful sworn testimony when his job duties did not ordinarily involve such testimony.

Crowded intersection

Another important question that remains unanswered is whether the Garcetti ruling strips public university faculty members of First Amendment protection for their research, teaching and other job-related speech. Its a First Amendment question complicated by its intersection with academic freedom protections.

The Supreme Court has emphasized that academic freedom is key to universities mission of creating and disseminating knowledge. This mission, the justices said, advances First Amendment values by contributing to the marketplace of ideas and a vibrant democracy.

The court relied on this observation in two mid-20th-century decisions to say that the First Amendment protected universities from legislatures that sought to squelch unorthodox beliefs or unpopular expression. Lawmakers had tried to do that by requiring loyalty oaths of faculty members or by investigating faculty members allegedly subversive activities.

If the First Amendment protects universities from that sort of legislative interference with their academic mission, does it also protect public university faculty members from employer interference with their job-related speech?

Decades later in the Garcetti case, the Supreme Court punted on this question. Its still not clear whether the First Amendment protects public university faculty members research, teaching or other on-the-job speech from their employers restrictions.

Regardless of how the Supreme Court ultimately rules on this First Amendment question, academic freedom principles which rely on academic communities themselves for their enforcement rather than on courts can still provide an independent source of protection for faculty members job-related speech.

In other words, universities themselves can choose to respect those principles in their treatment of their faculty members.

For these reasons, those who objected to the University of Floridas efforts to silence its professors testimony argued not only that the university was violating the First Amendment, but also that it was violating its own institutional commitment to academic freedom.

Editors note: The University of Florida is a supporting member of The Conversation.

This article is republished from The Conversation under a Creative Commons license. Read the original article here: https://theconversation.com/professors-free-speech-rights-can-clash-with-public-universities-interest-in-managing-their-employees-as-they-choose-171446.

Continued here:
Professors free speech rights can clash with public universities interest in managing their employees as they choose - The Edwardsville Intelligencer