Category Archives: Freedom of Speech

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During the 2016 presidential primaries, then presidential candidates Donald Trump and Senator Marco Rubio exchanged insults, with Trump calling Rubio Little Marco and Rubio commenting on the size of Trumps hands. Recently, this exchange was the basis for a Federal Circuit decision reversing a refusal to register the trademark TRUMP TOO SMALL as an unconstitutional restriction of speech under the First Amendment.

In 2018, Steve Elster applied to register the mark for use on T-shirts and related apparel. As the Federal Circuit recounts, According to Elsters registration request, the phrase he sought to trademark invokes a memorable exchange between President Trump and Senator Marco Rubio . . . and aims to convey[] that some features of President Trump and his policies are diminutive. The Examining Attorney at the United States Patent and Trademark Office denied Mr. Elsters application under Sections 2(a) and 2(c) of the Lanham Act. On appeal to the Trademark Trial and Appeal Board (TTAB), the TTAB affirmed the refusal of the application, relying solely on Section 2(c) of the Lanham Act.

Section 2(c) of the Lanham Act prohibits registration of a trademark that: Consists of or comprises a name, portrait or signature identifying a particular living individual except by his written consent. 15 U.S.C. 1052(c). Section 2(c) does not prohibit all uses of an individuals name in a trademark. Rather, it applies only when: (1) the public would reasonably assume that the goods associated with the mark are connected with the particular individual due to the individuals fame or recognition; or (2) the individual is publicly connected with the business in which the mark is, or will be, used.

There was no dispute that President Trump is sufficiently famous to fall within the protection of Section 2(c) not only because of his political office but also because of his prior celebrity. Elster argued that refusing to register the TRUMP TOO SMALL trademark violated his right to free speech under the First Amendment. The TTAB noted that as an administrative tribunal, it does not have the authority to strike down any statute as unconstitutional, but noted that a constitutional challenge may involve many threshold questions . . . to which the [agency] can apply its expertise, and went on to find that the refusal to register TRUMP TOO SMALL was not unconstitutional.

The TTAB first opined that Section 2(c), like all of Section 2 of the Lanham Act, merely sets forth criteria for obtaining a federal trademark registration. It does not control the use of the trademark. Indeed, one can use a trademark in commerce without obtaining a registration and Elster could do so here even if the registration is denied. Second, the TTAB found that Section 2(c) does not restrict any particular type of speech, but applies in an objective, straightforward way to any proposed mark that consists of or comprises the name of a particular living individual, regardless of the viewpoint conveyed by the proposed mark. Accordingly, the TTAB affirmed the Examiners refusal to register TRUMP TOO SMALL.

On appeal, the Federal Circuit reversed the TTAB, finding that Section 2(c) is unconstitutional as applied to the TRUMP TOO SMALL trademark, while deferring any decision on whether it is unconstitutional in all cases. The Court noted that trademarks can be protected speech and that denying registration, while not prohibiting use of the trademark, chills speech by stripping the mark of the many advantages associated with federal registration. Accordingly, there must be a substantial government interest to justify restricting speech by denying a registration.

The purpose of the Section 2(c) is to protect state law rights of privacy and publicity that individuals have in their names, appearance, and likeness. The Court quickly found that a right of privacy cannot shield a public official from comment or criticism. The Court also questioned whether a political figure maintains a right of publicity at all. At the very least, the political figures right of publicity would not permit a prohibition on the distribution of posters, buttons, apparel, or other materials that express support for or disagreement with the political figure. In short, [a]s a result of the Presidents status as a public official and because Elsters mark communicates his disagreement with and criticism of the then-Presidents approach to governance, the government has no interest in disadvantaging Elsters speech.

As we reported previously, the Supreme Court has found that portions of Section 2(a) of the Lanham Act, which prohibit the registration of immoral, deceptive, or scandalous trademarks and trademarks which may disparage . . . any persons, living or dead are unconstitutional. While this opinion expands the Supreme Courts reasoning to Section 2(c), whether its reasoning applies to trademarks that do not involve political figures or that do not criticize famous individuals remains to be seen. The Federal Circuit noted that it was only asked to analyze Section 2(c) as applied to Elsters mark. But it did go on to note that Section 2(c) may be impermissibly overbroad because it does not leave the USPTO discretion to permit registration for marks that advance First Amendment interests.

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Rights of Privacy and Publicity TOO SMALL to Overcome First Amendment Freedom of Speech - JD Supra

After a speaker this month expressed views that many felt were racist, officials at a small private college have cracked down: From now on, all college sponsored speakers must be approved by the president and other senior administrators.

Saint Vincent College, a Benedictine institution in Latrobe, Pa., announced the new policy this week in a letter from its president, the Rev. Paul Taylor. The goal, according to the announcement, is to make sure that the message to be delivered is not in conflict with the spirit and mission of the college.

The decision comes after David Azerrad, an assistant professor and research fellow at Hillsdale Colleges government school, in Washington, D.C., gave a talk at Saint Vincent titled Black Privilege and Racial Hysteria in Contemporary America. It was part of a program sponsored by the colleges Center for Political and Economic Thought.

Within the first five minutes, Azerrad asserted that Kamala Harris would not be vice president if it were not for her fathers being Jamaican, and that the real color of visible privilege in America today is Black. Hillsdale officials didnt respond to a voicemail seeking comment from Azerrad on Thursday.

Over the past few years, colleges across the country have grappled with what to do when provocative speakers come to campuses often by invitation from faculty members or students. Some officials have disinvited speakers in response to criticism from the campus community.

Other campus leaders have denounced the views of speakers but allowed the events to go ahead citing a commitment to academic freedom and, at public universities, an obligation to comply with the First Amendment. In one recent case, the State University of New York College at Brockport allowed a controversial invited speaker to proceed but moved the event online, citing safety concerns.

But two free-speech experts said Saint Vincent stands out for giving the colleges administration the authority to approve or deny speakers outright. That is extreme, said Alex Morey, director of the individual-rights defense program at the Foundation for Individual Rights in Education, known as FIRE.

Father Taylor sees the new policy as a way to protect the colleges mission.

What this policy does is, it puts first and foremost our mission, first as a liberal-arts university and as a Catholic and Benedictine college, that we respect academic freedom and freedom of speech. But this platform of our college and our mission will not be used for something that is contrary to what we believe, the president said in an interview.

Legally, Saint Vincent is within its right to impose stricter rules for speakers. Many private colleges have their own guidelines for campus visitors and events, and religious colleges like Saint Vincent often go a step further. For example, Brigham Young University, which is affiliated with the Church of Jesus Christ of Latter-day Saints, requires speakers to use clean language.

Saint Vincent, through its status and other policies, has been long been committed to freedom of speech, Morey said.

But Reverend Taylor denied that the new speaker policy violated anyones free speech or academic freedom. Inside the classroom and on campus, students and faculty members are encouraged to engage in discussions, debates, and arguments about any topic, he said.

Every organization has a mission that they abide by, and every one of them does not allow or want someone or something to use that platform for something that is contrary to what they believe in, he said. Thats where the critical divide is.

Jeremy C. Young, senior manager of the free expression and education team for PEN America, a nonprofit working to defend free expression in the United States, believes Saint Vincents leaders are missing the mark.

Its totally understandable where theyre coming from, Young said, given the content of Azerrads speech. But the solution is not to get rid of free expression for every speaker and every group on campus.

The policys application, Young added, seems too broad. Whats a university sponsored speech? he asked.

Father Taylor said he and his cabinet will now be approving speaking events that are open to the public and outward facing in any way. Officials wont be getting involved when, say, guest lecturers visit classes, he said. The new policy concerns public presentations sponsored by the college.

Campus officials have organized virtual listening sessions for students to share thoughts on the policy, the president said, and will hold a campus forum on Friday.

Originally posted here:
At This College, the President Will Now Approve Speakers - The Chronicle of Higher Education

IntroductionFreedom of speech is part of human rights that allows people to express their views without fearing punishment or censorship (Barak-Erez, & Scharia 2011). This right allows people to voice their opinions, in either written or unwritten format. Freedom of speech is necessary to prompt changes or development in society. However, this right also extends to protecting the view, beliefs, or opinions of the minority groups. All governments have taken measures to limit this right to prevent individuals from uttering offensive views that may promote terrorism, fascism, or racism. The government also limits this freedom to prevent obscenities, words that may prompt anarchy, and child pornography, among others.

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Benefits of freedom of speechThe concept of freedom of speech is beneficial as it allows individuals to voice their opinions with fearing sanctions, punishments, or condemnation by law. Through this protection, citizens of a country have the power to question or fight injustices and prompt economic, social, or political development.

Importance of freedom of speechThe freedom of speech concept is regarded as an essential right that an individual can have. Because of its importance, almost all countries have preserved it in its constitution. In the United States, this right is protected under the First Amendment. The principal purpose of this right is to foster democracy. The concept of democracy is founded on going with the majority opinion. This right is protected to enable individuals make free choices when voting to form a government. The second importance of this right is that it prevents corruption and dictatorship. As a matter of fact, countries that do not protect this right turn into dictatorships. For instance, North Korea became a dictatorial regime after the Korean War after the government denied its citizens this freedom. The Kim family chose to control all aspects of North Korean lives, controlling religion, recreation, and media (Yoon 2003). The government runs the press, thus controlling all contents and stories reaching the public. No North Korean is permitted to question the government in any aspect. People who go ahead to question the regime and its actions are either executed or sent to hard labor camps.

Drawbacks of freedom of speechWithout limitations, the concept of freedom of speech may be misused by people to cause harm to others (Barak-Erez, & Scharia 2011). For example, this right can be misused by individuals to voice comments that promote terrorism, anarchy, and racism. This freedom should not be used to make comments that suggest that one race is superior to the other or one gender is superior to the other. In instances of war, this concept may be misused by individuals for selfish gains. For instance, a person may use this right to sell his countrys secrets to another country or make comments that harm national unity. To prevent these acts, countries have legislation that restrict the enjoyment of this right. For example, the United Kingdom passed the Racial and Religious Hatred Act and the Terrorism Act in 2006 after the 2005 London bombings to prevent its citizens from making comments that may be seen to promote terrorism, racial, or religious animosity, either directly or indirectly (Barendt 2009).

Changes benefited from freedom of speechIndividuals have benefited from this right while at the same time seeking changes. It has enabled them to voice their concerns about how the government is run. With this right, individuals can now stand against oppression and injustice without fearing the law.

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Freedom Of Speech Argumentative Essay - Free Paper Sample

Bill Maher is angry -- really, really angry -- because people seem to care more these days about hurting someone's sensibilities way more than free speech, so he has developed a lecture to drive home his point -- Explaining Jokes to Idiots!

The "Real Time" host used a blackboard and a pointer to demonstrate how free speech is not just on the chopping block -- it's already been chopped, as evidenced by the reaction and debate over Chris Rock's joke that triggered the slap.

Bill has made his position clear ... the joke at its core was about Jada Pinkett Smith looking like another beautiful woman -- Demi Moore, and NOT about alopecia. As BM put it, "It wasn't an alopecia joke any more than the chicken crossing the road is about bird flu."

He points out Will Smith's initial, genuine reaction to the joke -- laughter, but then he realized he had to "conform" to what someone else was feeling, and he did a 180 to blind rage.

Now the broader point ... "Comedians have been under attack for some time. So I must defend my tribe. This war on jokes must end."

As Bill explained to the humor-challenged community -- which is ever larger -- many jokes -- arguably the funniest -- have an offensive element. We used to laugh at that, but now the comedians who dare to tell these jokes are derailed and canceled.

He points to a Vice study that certain colleges now screen prospective comedians they might bring on campus to make sure they aren't telling offensive jokes. As Bill put it, colleges used to be a place to lose your virginity. Now it's a place to lose your sense of humor.

Bill is making a bigger point ... the walls are closing in on free speech, the essence of which requires you to allow people to make comments that you find offensive or even abhorrent.

It's sad ... we are watching Ukrainians fight and die for freedom including freedom of speech, and Americans are squandering that precious, cornerstone of democracy.

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Bill Maher Uses Will Smith Slap to Bemoan the Death of Free Speech - TMZ

PRESS STATEMENTANTONY J. BLINKEN, SECRETARY OF STATEAPRIL 10, 2022

The United States government is concerned about violence in El Salvador and the passage and implementation of the April 5 Criminal Code amendment by the Legislative Assembly criminalizing reporting on certain gang activities. The law lends itself to attempts to censor the media, prevent reporting on corruption and other matters of public interest, and silence critics of the Salvadoran government.

Journalists must have the freedom to do their jobs without fear of violence, threats, or unjust detention.

We continue to support El Salvador in its efforts to reduce the proliferation of gangs. Since 2008, we have invested $411 million to improve citizen security and help the Salvadoran government combat gang violence. Examples include the construction of a state-of-the-art forensics lab in Nuevo Cuscatlan, and assistance to reclaim and renovate public spaces such as Parque Cuscatlan.

We are deeply concerned by the spike in violence and homicides committed by the MS-13 and the Barrio 18 gangs in El Salvador on March 25, 26, and 27.

Gangs pose a threat to the national security of El Salvador and the United States. We urge El Salvador to address this threat while also protecting vital civil liberties, including freedom of the press, due process, and freedom of speech.

Now more than ever it is essential to extradite gang leaders to face justice in the United States.

By U.S. Embassy San Salvador | 10 April, 2022 | Topics: News

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Violence and Threats to Free Speech in El Salvador - USEmbassy.gov

Dr. Stanley Fish addressed topics such as free speech, hate speech and academic freedom on April 3 at NDSU. By examining the first amendment he shared his thoughts on how hate speech and free speech are up for interpretation. According to NDSU, Fish argues that free speech is a double-edged concept it frees us from constraints, but it also frees us to say and do terrible things.

Dr. Stanley Fish is an author and a professor. He has formerly worked and taught at the University of California, Berkeley; John Hopkins University; Duke University and the University of Illinois at Chicago. He worked as the dean of the College of Liberal Arts and Sciences during his time at the University of Illinois, according to NDSU. He has authored several books such as, Sinning Argument, How Milton Works and Theres No Such Thing as Free Speech: And Its a Good Thing.

Fish presented his finding of free speech at NDSU and answered audience questions. He largely talked about hate speech and its ambiguity. Hate speech can not be defined because in order to define it, you would have to be able to distinguish in a neutral and non-political way utterances that are hateful from utterances that are not hateful, he said. According to Fish, this is impossible to distinguish because no values or utterances are universal to everyone in the world.

He explains how people do not believe that certain speech is hateful because it is their perspective on the world. He stated that people view it as their truth, rather than a hateful action. He explains that people do not view some hate speech as hateful, but rather their freedom to share their own beliefs.

Fish explained that all hate speech will be political. Hate speech legislation is irremediable political. It will always be slanted and biased because of its political nature and the personal perspective on the issue.

Fish later explained his definition of hate speech by saying, Hate speech is what your enemy says loudly and effectively. He stated that people want free speech for themselves and not for the opposing group.

Fish stated how the operations of the first amendment are rhetorical. Its a collection and ensemble of Talismanic phrases and slogans, ritually invoke examples, fabricated entities like the marketplace of ideas, shaky distinctions and then ad hoc exceptions to those distinctions. This is all made up first amendment rhetoric, said Fish.

He explained that free speech justifies hate speech in many cases because of its ambiguity. Many court cases try to present free speech as a reason for their actions. The rhetoric of the first amendments helps lawyers justify their defendants actions.

Fish also explained free speech in higher education. Students have no free speech rights, it is entirely a matter of the instructors discretion, said Fish. He also stated that the instructors are also limited in their freedoms of speech. University and college teachers have the freedom only to do that job, he said.

The university is in the business of education, where the advancement of knowledge, not the advancement of free speech interests is the goal and the obligation, said Fish.

He explains that Freedom of Speech does not have a specific shape or set of rules which makes it so hard to determine. We dont know what Freedom of Speech is. Freedom of speech is, if its anything, kind of a chameleon.

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Dr. Stanley Fish discusses the first amendment - NDSU The Spectrum

Muslim worshipers gather on May 9, 2021 at Al-Aqsa Mosque in the Old City of Jerusalem, where tensions between Israeli police and Palestinians escalated that night into open conflict. (Mohammad Arar / Shutterstock.com)

by Greg Gonzalez

Last month, the American Association of University Professors issued a statement condemning legislative attempts to restrict instruction about Israel and about racism in the United States. While the AAUP consistently opposes legislation restricting how race and sex can be taught on college campuses, its opposition to legislation that defines antisemitism to include any criticism of Israel is a new and welcome development.

Like FIRE and other civil liberties organizations, the AAUP specifically criticizes legislative efforts to adopt the International Holocaust Remembrance Alliances definition of antisemitism. The IHRA definition states:

Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.

Scholars of antisemitism, Jewish history, and the Israel-Palestine conflict have called the IHRA definition highly problematic and controversial

In 2019, Florida passed legislation that utilizes language nearly identical to the IHRA definition to address antisemitism on college campuses. Several more states, as well as Congress, considered adopting the IHRA definition which is also the definition used by the U.S. Department of State for data collection purposes to combat discrimination on college campuses. Further, then-President Trumps 2019 Executive Order 13899 directed agencies charged with enforcing Title VI to consider the IHRA definition.

As the AAUP explains, Fifty-six scholars of antisemitism, Jewish history, and the Israel-Palestine conflict have called the IHRA definition highly problematic and controversial, noting that it privileges the political interests of the state of Israel and suppresses discussion and activism on behalf of Palestinian rights.

In fact, the definitions primary author, Kenneth S. Stern, has opposed legislation requiring its use because of the likelihood that it would chill campus speech.

As the AAUP further notes:

[The IHRA definition] has provided a pretext to bring coercive legal actions against supporters of the boycott, divestment, and sanctions movement, denying proponents of this peaceful form of economic and cultural protest their freedom of expression. And it has led to cancellation of university courses and conferences on the rights of Palestinians and to targeting faculty members in Middle East studies for dismissal and other severe sanctions.

The AAUP states that the expansive definition is an assault on academic freedom and undermin[es] the public mission of higher education to serve the common good through open, searching, and critical pedagogy; research; and extramural speech. Further, the AAUP believes that existing civil rights laws that prohibit religious or race discrimination can be used to combat the purported increase in antisemitism.

FIRE has repeatedly warned about the threat to free speech rights posed by legislative and regulatory efforts to employ the IHRA definition in identifying alleged discriminatory harassment. What constitutes a certain perception of Jews is open to many interpretations, and, thus, is hopelessly vague. Illustrating this vagueness is the list of examples of antisemitism that accompanies the IHRA definition, including [d]rawing comparisons of contemporary Israeli policy to that of the Nazis.

The First Amendment clearly protects the speech in this example. After all, because a person is allowed to compare the policies of countries other than Israel to that of the Nazis, it is an impermissible viewpoint-based restriction to forbid such comparisons to contemporary policies supported by the Israeli government.

As such, the IHRA definition is too vague and overbroad to be used as a basis for antidiscrimination efforts in institutions of higher learning. Notwithstanding these criticisms, policymakers continue to push for its usage.

Just in February, members of Congress urged the Department of Educations Office for Civil Rights to prioritize a proposed rulemaking in response to Executive Order 13899 on Combating Anti-Semitism, which directs federal agencies to consider the IHRAs definition and its accompanying examples of antisemitism when regulating how schools protect Jewish students from discrimination. Of course, OCR can play an important role in helping higher education institutions adequately address discriminatory antisemitic conduct, but utilizing or adopting the IHRA definition in the rulemaking process risks chilling or punishing protected speech.

FIRE applauds the AAUPs opposition to legislation that uses the IHRA definition of antisemitism.

Our concern is not hypothetical. As we recently wrote, Elected officials and private actors have indeed sought to pressure universities to suppress speech critical of Israel, or to enlist the Department of Education to do so.

Combating discrimination based on race, religion, or national origin is a laudable goal, but must be done in a manner consistent with the First Amendment and principles of academic freedom. FIRE applauds the AAUPs opposition to legislation that uses the IHRA definition of antisemitism, and we look forward to working together on this important issue in the coming months and years.

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AAUP sides with FIRE, opposes legislation which adopts overly broad antisemitism definition as threat to academic freedom and freedom of speech -...

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Last week, the Supreme Court handed down two nearly unanimous decisions in cases involving the First Amendment. One was an 8-1 decision written by Chief Justice John Roberts inRamirezv. Collier, in which the Court sided with a death row inmate who claimed he had the right to have the religious leader of his choice touch him and pray audibly for him in the execution chamber. The other opinion was 9-0 inHouston Community Collegev.Wilson, where the Court held that a legislative censure issued by a community college board did not violate the free speech rights of the respondent, another trustee on the board, in an opinion written by Justice Neil Gorsuch.

First Amendment expertsMichael McConnellof Stanford Law School andEugene Volokhof UCLA Law join hostJeffrey Rosento discuss the opinions' impact on how we interpret and understand and religious freedom and freedom of speech in America.

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Prof. Michael McConnell, Jeff Rosen, and I on the Court's Recent Free Speech and Religious Freedom Cases - Reason

This article was featured in One Story to Read Today, a newsletter in which our editors recommend a single must-read from The Atlantic, Monday through Friday. Sign up for it here.

Americas first newspaper, Publick Occurrences Both Forreign and Domestick, was also one of its shortest-lived. Motivated by the creed That Memorable Occurrents of Divine Providence may not be neglected or forgotten, the inaugural issue, published in 1690, aired rumors of an affair between the French king and his daughter-in-law, along with other scandalous reportsand was promptly censored and confiscated by British authorities in Boston. But the American appetite for such salacious fare was irrepressible. By the time of the Civil War, journals such as The Illustrated Police News were devoted to graphic depictions of real-life criminal cases: Readers were served up vivid woodcuts of brothel raids, hangings, suicides, and child deathsthe more violent and gruesome, the better.

Check out more from this issue and find your next story to read.

The invasiveness of contemporary gossip sites, social media, and search engines, it turns out, has a long pedigree. Although the technologies of dissemination have changed, the impulse to portrayand profit fromintimate material has thrived for centuries.

The lineage of the counter-impulselegal efforts to restrain intrusions into Americans private lives and affairsis shorter and its legacy more elusive. Public calls for a right to privacy emerged only at the turn of the 20th century, triggered by a more aggressive press as well as technical innovations like instantaneous photography, new communication platforms like the telegraph and the telephone, and, later, novel uses of personal information by private companies and government agencies. In response, state legislatures, the Supreme Court, and eventually Congress stepped in to patrol the boundary between the properly public and the deservedly private.

The battles were at times spirited. But many commentators now claim that the war is over, and that privacy has lost. Public and private organizations alike mine the minutiae of our lives, and citizensenmeshed in a culture of confession and data-driven consumerismare unable, or unwilling, to resist. Older modes of discretion have given way to an ethos of self-disclosure, an urge to be known. In this view, the sidelining of privacy as a social and cultural valueas well as a legal rightwas only a matter of time.

Read: Welcome to the age of privacy nihilism

The rise of powerful technologies (facial recognition) and businesses (Facebook) that hinge on access to our personal information understandably inspires such fatalism. Yet over the past two decades, ever-expanding surveillance has been accompanied by a wide-ranging public debate about protecting aspects of our lives from scrutinyevidence that privacy, endangered though it may be, is not yet extinct as a cultural concern. Indeed, that debate has sparked a welter of new proposals for protecting private life, such as the right to be forgotten and the right to move through public spaces undetected.

In Seek and Hide: The Tangled History of the Right to Privacy, the legal scholar Amy Gajda links our present struggle to an underappreciated tradition in American law and thought. She argues that although the right to privacy may have been a 19th-century innovation, privacy sensibilities have since the nations beginnings served as a durable counterweight to the hallowed principles of free speech, free expression, and the right to know. Ranging across several centuries, her account of the determined fight to protect privacy sounds like just the sort of road map we could use right now. But legal victories won in the name of privacy have often been sorely inadequate. Whats more, they have historically favored the privileged over the vulnerable. A realistic defense of privacy in the digital age isnt a lost cause, but it will require grappling with new social as well as technological challenges. It will also entail reckoning with privacys past uses and abuses.

Seek and Hide focuses on a specific kind of privacy conflict: the propriety of publicizing true but intimate or embarrassing facts about a person. That sort of shame-inducing exposure may sound almost pass in the era of Twitter and TMZ. Were by now used to personal missteps forever preserved online, innuendo circulating on the web, doxing as a weapon of rhetorical war. We take for granted the constant prying that seems to come with a life hooked up to the internet. But the history of disputes over press invasions serves as a kind of barometer, revealing the cyclical nature of privacys fortunes. It also highlights the persistent disparities in whose privacy has mattered to lawmakers and courts.

From the September 2020 issue: The AI panopticon is already here

Gajda traces the championing of privacy (and skepticism of an overly free press) back to the nations founding. Thomas Jefferson and Alexander Hamiltonwho otherwise agreed on littleboth spoke to the damage that truthful-but-embarrassing disclosures could cause. To let such details loose in the world, Hamilton charged, was a two-edged sword, by which to wound the public character and stab the private felicity of the person. (Both men, it should be noted, were considerably less bothered when those details concerned a political rival.)

Not incidentally, these men each had a personal investment in keeping certain matters quiet: Jeffersons sexual relationship with the enslaved Sally Hemings and Hamiltons affair with a married woman, made still more scandalous by his payoffs to her husband. Courts, following the lines of status in American society, were generally happy to oblige, punishing journalistic invasions chiefly when they threatened the reputations of elite white men.

The cohort of Americans who could count on their privacy being respected grew over the course of the 19th century. The middle class, with its newly genteel sensibilities and domestic sanctuaries, was now included, although womens and childrens privacy continued to matter mostly as an extension of that of male heads of household. At a time when immigrants, nonwhite people, the poor, criminals, and other unworthies were neither allotted much privacy nor thought to deserve it, the well-heeled and respectable won libel suits against reporters for printing potentially damaging stories. In the mid-19th century, for example, the New Hampshire Supreme Court ruled that a local newspaper was unquestionably out of line in tarnishing the name of a good, pious, virtuous and honest woman by recounting that, during the course of a party she had attended, kisses were bestowed on ripe lips and cheeks generally innocent of such sweet tokens.

Long before a right to privacy was codified, American law thus drew a line between issues of public import that needed to see the light of day and intimate affairs that individuals had every right to cloak. Certain matters were considered especially intimate. Personal correspondence, sexual liaisons, indecorous divorce proceedings, medical diagnoses, and images of the naked body were all deemed worthy of protection. By the 1880s, the U.S. Supreme Court seemed to recognize this boundary in a search-and-seizure case, describing the privacies of life as an essential component of liberty and a sacred right.

It was in the next decade that privacy became a major public concern. This was prompted by the growing audacity of the scandal press, but also by the impact of new technologies, such as the telegraph and the telephone (and with it, the potential for wiretapping). Instantaneous photography in particular let loose a whole new species of virtual invasion in the form of Kodak fiends, proto-paparazzi who were now able to captureand disseminateindividuals images without their knowledge or consent.

In 1890, in what went on to be hailed as a landmark Harvard Law Review essay, Samuel Warren and Louis Brandeis, Boston lawyers, decried the press for transgressing the obvious bounds of propriety and of decency and trafficking in gossip as a trade. They also fretted over the novel forces allowing the unauthorized circulation of portraits of private persons. What they demanded in response was an actionable right to privacy. Their article helped give shape to a new legal claim for damages: the publication of private facts. (Ironically, Warren was heir to the paper company whose product made the printing of illustrations and photographs financially feasible for the scandal presseven as it also supplied paper to more reputable organs like The Atlantic.)

Although their call for a new right was inspired by modern privacy invasions, Brandeis and Warren traded in older gender- and class-bound ideas about who suffered most, both materially and psychologically, from the slings and arrows of publicity. Delicacy around embarrassing revelations was still often imagined as the privilege of elites. As their contemporary, the editor E. L. Godkin, put it, privacy was one thing to a man who has always lived in his own house, and another to a man who has always lived in a boardinghouse. Yet the ability to at least stake a claim against unwelcome public scrutiny was becoming available to a wider array of Americans.

One flash point was a 1900 suit filed by a 17-year-old named Abigail Roberson, charging that she was made sick by the unauthorized use of her image (shown in profile, revealing a bit of collarbone, and accompanied by the tagline Flour of the family) in advertisements for the Franklin Mills flour company25,000 posters displayed in grocery stores, saloons, and other public venues. As Gajda recounts, a lower court sided with Roberson, stating that every woman has a right to keep her face concealed from the observation of the public. A higher court pointedly disagreed, however, that anyone had a right to move through the world free of unwanted publicity. Indeed, others would have appreciated the compliment, Judge Alton Parker pronounced. Popular outcry led the New York legislature to pass the nations first privacy statute the following year. Tellingly, Parker changed his tune just a couple of years later, when he ran for president and became desperate to escape camera fiends and what he described as the sleepless surveillance of surreptitious snapshotters. His own private life and affairs, unlike a pretty young girls, seemed obviously worthy of shielding.

Read: Child data-privacy laws arent protecting kids

The Roberson case pointed to the way commercial interests and evolving cultural values would recast privacy debates in the 20th century. Even as privacy rights gained a firmer footing, the notion that one could not realistically live outside the public gaze was taking hold. It was a position that scandalmongers as well as respectable papers endorsed as part of the First Amendment guarantee of press freedom. Defined relatively narrowly in Hamilton and Jeffersons day, the peoples right to know was becoming a more expansive concept, promoted by publishers and reporters and backed by courts. The ebbing of Victorian norms of propriety, which had sought to keep unseemly matters out of public places, helped loosen rules on what was publishable, too.

The impulse to tell all was temperedfor a timeby the professionalization of journalism in the 1920s. The American Society of Newspaper Editors drafted national standards of behavior for its members, more of whom now came out of journalism schools. The dean of the University of Missouris journalism school, the first such program in the country, wrote in 1914 that no one should write as a journalist what he would not say as a gentleman. (The choice of language suggests the lasting association between privacy rights and social status.) In turn, jurists began to trust reporters to make their own calls as to what was in the public interest to exposeto adjudicate what was newsworthy and what was not.

For a moment, the United States enjoyed a rare alignment of privacy sensibilities, journalistic practice, and the law. It didnt last long. As the legal historian Samantha Barbas has explained, the courts deference to the press led, by mid-century, to a transformation in the very meaning of the term newsworthy. It came to refer not to what the public needed to know but to what it wanted to know. And what the public demanded was still the stuff of The Illustrated Police News: voyeuristic accounts of sex and violence.

The courts ratified this shift. In 1966, the Supreme Court heard Time, Inc. v. Hill, which concerned Life magazines misrepresentations of a familys experience being taken hostage during an armed robbery. The Court ruled in favor of the publisher. In an echo of the Roberson case, the majority indicated that exposure of the self to others was simply part and parcel of life in a modern society that placed a primary value on freedom of speech and of press.

In subsequent decades, courts tilted further still, offering constitutional protection to parties who had exposed a private citizens sexual orientation against his wishes, published a rape victims name because it was discoverable in public documents, and televised a horrific accident scene in the name of public interest. Under American law, a private person could become a public one, his or her life stripped bare, simply by virtue of bad luck. Well before the advent of the internet age, American jurisprudence was coming around to the view that everyone was a public figure, and without the restrictions, cultural or legal, on the flow of personal information that Hamilton and Jefferson had counted on.

The vicissitudes of the right to privacy over the past two centuries suggest that we may be overdue for a reckoning akin to Brandeis and Warrens. Even in a no-holds-barred social-media landscape, we are not without resourceswhether in the form of legal precedents or changing social values.

Californias privacy regulations now permit minors to erase their past social-media posts, a version of Europes right to be forgotten. New statutes criminalize the humiliating nonconsensual sharing of explicit photos and videos known as revenge porn. Whistleblowers have begun to reveal the calculated damage to both private and public life caused by unregulated social media. Cities have banned facial-recognition technologies. Courts have ruled that Americans are entitled to some privacy in even the most public of places. Details that were never before treated as privatesuch as home addresses and geolocation datahave earned legal protections.

Pitched battles over claims of privacy and publicity underscore the urgency, and unsettled boundary lines, of our own historical moment. So far, these efforts have been scattershot. But they make clear that privacy is not over. As in the past, new privacy claims are emerging in tandem with novel violations.

Crazy/Genius: Derek Thompson on why we should care about privacy

History of course provides no tidy formula for the present. Gajdas chronicle reveals an enduring tension between principles of free speech and respect for individuals private lives. But it also throws into sharp relief how much the context for that debate has changed in the past several decades. Highly visible privacy invasions have by no means abated: Take Jeff Bezoss recent fight with the National Enquirer over its threat to print embarrassing photos of him and his girlfriend, or Hulk Hogans lawsuit against Gawker over the publishing of a sex tape featuring the former wrestler. (The success of the latter was, depending on your point of view, a victory for privacy or proof that it remains a prerogative of powerful men.) But such episodes in the tabloid press are now swamped by a much more extensive and complex ecosystem of incursions.

Our models and tools for safeguarding privacy need to catch up. We live in a world where daily, continuousand often unfelt and unseenintrusions are the rule, the work not just of traditional media but of tech companies, data-analytics firms, entertainment systems, financial industries, and state agencies seeking unfettered access to our information. Each of us now navigates competing claims of transparency and privacy every time we swipe a credit card, download an app, or pass through a smart home. Focusing on individual violations and litigation in the courts, a strategy that once served to protect (some) Americans privacy, is insufficient in the present. For a shot at privacy in the digital ageto say nothing of the coming metaversewe will need to envision privacy as a collective social good in need of collective solutions: strong public regulation that systematically reins in the parties who trample it.

There is another lesson to be drawn from Gajdas history. From the earliest days of the republic, privacy law has best served the most privileged in American society: those with considerable clout and resources at their disposal. To enact meaningful protections today, advocates will need to challenge the uneven allotment of privacy in the United States, taking careful account of who has and hasnt been served by past victories. If they do, Americans may yet summon defenses of privacy responsive to the needs and desires of ordinary citizens.

This article appears in the May 2022 print edition with the headline Privacy Isnt Dead.

See original here:
How Privacy Prevails in the Age of Big Tech - The Atlantic

A federal court yesterday ruled that a Florida voter suppression law enacted last year infringes on the right to free speech by forcing voter registration groups to make false claims to potential voters when trying to register them.

The case HTFF v. Laurel Lee was brought by Harriet Tubman Freedom Fighters (HTFF), a group represented by the Southern Poverty Law Center, Fair Elections Centerand Baker McKenzie.

Ruling in three cases consolidated with HTFF v. Lee, U.S. District Judge Mark E. Walker mandated that for the next 10 years Florida must seek preclearance from the court before changing voting laws that would restrict voting drop boxes, voting by mail, third-party voter registration organizations or assistance to voters.

We applaud the decision of the court to strike down forced speech provisions, enshrine voting rights and to establish protections for voting rights in Florida under preclearance, said Caren Short, senior supervising attorney for the SPLCs Voting Rights Practice Group. We have been proud to work alongside allies like the League of Women Voters, the Florida State Conference of the NAACP and Florida Rising in challenging barriers to voting, and we will continue standing with them and Florida communities against barriers to voting.

Harriet Tubman Freedom Fighters Corp. is a nonprofit, nonpartisan organization that focuses voter registration efforts on new voters, particularly youth, communities of color and people released from prison after completing their sentences.

The Florida law, SB 90, compelled HTFF and similar organizations to communicate a false, state-sponsored message to potential voters that the organizations might not submit their applications on time.

Fair Elections Center and the SPLC filed suit on behalf of HTFF on June 14, 2021, alleging that the new law is void for vagueness under the due process clause of the 14th Amendment, that it compelled speech in violation of the First Amendment and that it prevents organizations from exercising their First Amendment rights of expression and association.

We founded HTFF to defend the voice of our community, so we are proud that our right to make our voices heard through organizing and free speech has been affirmed by todays ruling, said HTTF President and Co-founder Rosemary McCoy. However, organizations like HTFF are still needed to defend our communities right to vote, and we plan to redouble our efforts to empower our community to vote.

SB 90, enacted by politicians weaponizing misinformation about the 2020 presidential election, created a series of barriers to voting. In addition to the restriction on voter registration organizations, it required voters to provide a state ID number or the last four digits of their Social Security number to obtain a mail ballot, providing no alternative if a voter has neither identification number.

It also shortened the period during which a voter can remain on the states vote-by-mail list, which entitles them to receive a mail ballot automatically. It modified rules for observers in ways that could disrupt election administration, and it restricted private individuals and entities from providing rides, chairs, umbrellas, food and water to voters waiting in line to cast a ballot.

The court has delivered a victory for voting rights organizations over new barriers to community voter registration drives created last year by Governor Ron DeSantis and Florida state legislators, said Michelle Kanter Cohen, policy director and senior counsel with Fair Elections Center. This decision vindicates the critical role of building community trust in voting and political participation that our client and other organizations fill. The ruling has established SB 90 violates our clients freedom of speech, and we call on Floridas Legislature and governor to stop enacting barriers to Floridians making their voices heard in our democracy.

Added Debra Dandeneau, partner at Baker McKenzie, We were proud to lend our pro bono time, energy and talent to this victory for voting rights organizations and their freedom of speech.

The case was consolidated for trial with these others:

League of Women Voters of Florida, Inc. et al. v. Lee et al.The plaintiffs argue that SB 90s drop box restrictions, mail-in ballot repeat request requirement, volunteer assistance ban, deceptive registration warning and food and water ban violate the First and 14th Amendments.

Florida State Conference of Branches and Youth Units of NAACP et al. v. Lee et al.The plaintiffs argue that SB 90 creates unnecessary barriers and burdens that disproportionately impact Black and Latinx voters and voters with disabilities, violating Section 2 of the Voting Rights Act, the First, 14th and 15th Amendments, and Title II of the Americans with Disabilities Act.

Florida Rising Together et al. v. Lee et al.The plaintiffs challenge SB 90s limitations of the availability of drop boxes, the addition of identification requirements to request a vote-by-mail ballot, the prohibition of assistance to voters waiting in long lines and the imposition of new restrictions on third-party voter registration organizations.

Photo at top: The Florida State Capitol in Tallahassee. (Credit: iStock)

Excerpt from:
'Victory for Voting Rights': Federal judge overturns Florida requirement that voter registration groups give misleading information - Southern Poverty...