Category Archives: Freedom of Speech

In 2017, a high school student (referred to as B.L.) expressed her frustration with having not made the varsity cheerleading team through a private Snapchat post. The image showed her making an obscene gesture and was captioned, f- school f- softball f- cheer f- everything.

A friend saved the snap and showed it to school authorities, resulting in B.L.s expulsion from the junior varsity team. She was reinstated to the team a few months later as litigation ensued.

Ultimately, the case reached a federal appeals court, which ruled in the students favor on the grounds that the school districts punishment violated the First Amendment; however obscene it may have been, the snap was between friends, off campus and outside of school grounds.

But this was not the end of the story. Mahanoy Area School District appealed the decision to the Supreme Court, which heard arguments in January.

The justices should affirm the lower courts decision in favor of free speech for high school and college students, especially off-campus. Moreover, there is a need to clarify those protections in the modern social media landscape.

First of all, there is a judicial precedent to take into consideration: that of the case of Tinker v. Des Moines in 1969. The ruling of that case was that unless it threatened to disrupt the academic environment, freedom of expression could not be infringed upon on school grounds. If schools have less power over expression on-campus, what, then, gives them power to punish students for things they said off-campus?

B.L.s speech did not fit the criteria established by Tinker v. Des Moines, as there was no call to disrupt academic activity. Rather, she was momentarily expressing her frustration in a temporary post.

Moreover, B.L. expressed herself in private, which ought to be considered outside of the school districts jurisdiction. Not only did the district infringe on her First Amendment rights to freedom of speech and expression, but also her Fourth Amendment right to privacy.

Now, a right to privacy is not explicitly written in the Constitution, but it is implied: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated Because her speech was non-disruptive, it was not reasonable for B.L. to be punished for a statement she made in a private circle.

Although ruling in favor of rights to privacy and free speech and expression is the higher road for the Supreme Court to take, Mahanoy Area School Districts concerns must be taken into account. Officials there worry that if they have no jurisdiction over what is said by students off-campus, they will be unable to intervene in cases of cyberbullying and other such behavior outside of school.

Even taking that concern into account, the Supreme Court should rule in favor of First Amendment rights for students off-campus and their privacy. They should also uphold Tinker v. Des Moines with an additional provision for social media that being that it lies outside of school district authority with the exceptions of the use of school-owned handles and speech that disrupts academics or threatens or intimidates faculty, staff, or other students. Only in such exceptional cases should schools have jurisdiction over speech.

First Amendment rights are crucial to a students ability to communicate their thoughts and ideas with their peers and superiors. To quote the majority opinion in Tinker v. Des Moines, students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate and certainly not outside of it.

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The precedent of free speech on campus | The Record - The Record

There is an emerging consensus that the new Intermediary Guidelines and Digital Media Ethics Code rules are against the idea of free speech. Even the normally reticent Editors Guild has issued a statement, airing its concerns about how these new rules will undermine media freedom in the country.

Equally important though is how the IL guidelines follow a 50 year trend of nation states trying to limit access to cryptography and encryption technology for the general public. The United States tried to limit access to cryptography in the late 90s when the cypherpunks stopped this attempt by fighting for free speech in software. When restrictions were put to not allow cryptographic code to be exported abroad, the cypherpunks printed code on t-shirts to bypass and export crypto to the rest of the world.

The end-to-end encryption protocol that we depend on today is an outcome of a 50 year resistance movement, started by the cypherpunks, to protect the sanctity of whispers from prying ears. One way to think about the Narendra Modi governments IL guidelines is that it is trying to ban whispers completely in the realm of conversations by effectively logging every whisper forever in the form of a permanent record.

The issue hence is not just about free speech in the media, but also about free speech in software. At a fundamental level, there is no difference between writing code and publishing it and writing opinions and publishing books. The new intermediary guidelines mandating traceability should be seen as an attempt to dictate how messaging apps use cryptography. It is a form of free speech restriction applicable on a technical domain.

Also read: Explainer: How the New IT Rules Take Away Our Digital Rights

At the heart of this particular issue is the Signal protocol, which through the expression of opinionated code in the cyber domain, has allowed free speech to flourish in the physical domain, and was developed by a non profit company named Open Whisper Systems with the deep belief that whispers must not be snooped upon.

Fingerprinting at Madras HC

The end-to-end encryption debate first flared up in India because of a public interest litigation (PIL) filed in the Madras High Court by an animal rights activist, Anthony Clement Rubin, who faced persistent cyber bullying.

The debate in the court soon shifted towards whether WhatsApp could track the originator of a viral message an incredibly hot issue at the time without breaking encryption.

Even then, anonymous government officials proposed fingerprinting every message as a solution. Tamil Nadus advocate general even argued that end-to-end encryption is not essential when WhatsApp shot down the fingerprinting proposal as impossible to implement.

With the guidelines now being notified, there is now an executive push to implement the fingerprinting solution, with the false claim that it will not break end-to-end encryption.

To understand why the fingerprinting solution breaks end-to-end encryption, we need to understand the concept of forward secrecy.

The Signal Protocol uses Double Ratchet algorithm, a cryptographic scheme which ensures that encryption keys change frequently for every chat session. The key rotation process thus ensures that all messages are never encrypted with the same cryptographic key. This allows forward secrecy, where even if your current encryption key is stolen by an attacker, your previous messages are still secure, as they dont use the same encryption key.

Also read: Backstory: From Partly Unfree to Fully Unfree? The New IT Rules Could Hasten the Slide

Forward secrecy is quite useful against nation state adversaries like China, who can intercept all your messages by breaking into the telecom infrastructure and can afford to store them for a very long time till it can crack the encryption keys or obtain it forcefully from your phone, by use of physical force. Weakening encryption affects everyone and especially when your adversaries have more advanced cyber operations.

Photo: Athul Cyriac Ajay/Unsplash

Forward secrecy becomes more achievable, when past messages are automatically deleted after some time, so that no one can access them even when your phone is lost or forcefully taken. Disappearing messages hence have become a standard feature in both the Signal messenger and in WhatsApp, just like how secrets whispered in another persons ear, die out in the wind. This applies even when you send messages in a group, and message copies are deleted from every other device, thus enhancing your privacy and also allow you to speak your mind freely without any inhibitions and within a group of your own choosing.

Unlike Twitter and Facebook, which create a public sphere for sharing viewpoints and for influencing people, messaging platforms are primarily used by individuals and groups for personal communication. It is a given that some of these groups and conversations will be criminal in nature and this segment of users would be no different than a set of like-minded people who would talk about crime after congregating inside a closed room. Law enforcement handled such activities by either infiltrating such groups or by accumulating evidence and prosecuting them for crimes committed, but did not demand all property owners of closed rooms to record everything told within its confines, so that they can identify the speaker of every word.

By ordering the messaging applications to change their encryption methodology to find the first originator of a particular message, the government is forcing them to store hash values of every message and its user. This hashing of every message would effectively mean seeing the content of the messages once requested by law enforcement

For end-to-end encryption to provide privacy by default, platforms are required to store as minimal data as possible. Signal does not store any metadata about users, except their data of joining and last date of accessing the platform and encrypts everything else, which only users can decrypt. WhatsApp however stores metadata, which it hands over to law enforcement when demanded, along with IP addresses and other device identifiers. How useful can this metadata be for law enforcement? Well, it was enough to help prosecute an ISIS recruiter in the US.

Also read: What Regulatory Changes Are on the Anvil for Social Media Platforms, Digital Media?

The specific feature that converts whispers uttered in a closed room into a broadcasting mechanism that can fuel a misinformation and fake news binge which is what the government should really be worried about is the forward message functionality. In the past, WhatsApp has tried to add friction to this, by specifically slowing the spread of messages through the introduction of forwarding limits, while still not going the full hog by allowing people to choose whether a message should be private within the group by default. It did so because there exist many unauthorised spinoffs of its client app, that simply use copy-paste of the message text and deploy the download-store-post sequence that work around these limits.

In the recent arrest of Disha Ravi, the Delhi court observed that freedom of speech and expression includes the right to seek a global audience. There are no geographical barriers to communication. Rather than enacting rules that attempt to ban whispers forever, an attempt that is doomed to fail, there should be more discussion and debate on how messaging forwarding can be tamed.

Srinivas Kodali is an independent researcher working on data, internet and governance.

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Intermediary Liability and Why Free Speech in Software Matters - The Wire

Journalist and novelist Carl Hiaasen. (Photo: Joe Rimkus Jr. via carlhiaasen.com)

After 45 years at the Miami Herald, 35 of those as a columnist, renowned journalist and author Carl Hiaasen retired from the paper after publishing his last opinion piece on Sunday.

Hiaasen was on Intersection a few weeks before the presidential election in 2016. He was joined by fellow columnist and humorist Dave Barry, as well as Barbara Petersen, who served as the president of the First Amendment Foundation from 1994-2019. They discussed free speech, politics and responding to critics.

Barry said as a humorist, he runs into first amendment issues.

If you write humor, you offend people, he said. And if you offend people, they almost always some of them, anyway conclude that the solution is to make you stop being able to write those things, various ways.

Barry said the most fundamental thing about the First Amendment is that even if you are offended by someone, you dont have the right to silence them.

Hiaasen said his columns stick to public figures like governors, senators and presidential candidates, who have other things to worry about than what he writes about them.

Youre allowed in this country, and always have been, commentary on a public figure doing his job, as long as you dont allege them to have a loathsome disease or commit a hideous crime, the libel laws are pretty clear, he said.

Hiaasen said in our democracy, we dont gag people or silence our critics. He said he always tells people that they dont have to buy the Miami Herald or his books if theyre upset by his writing.

Nobodys putting a gun to your head and making you read this and get all upset the way you are, Hiaasen said. I go on a little bit in these responses and tell them that theyre making themselves miserable for no reason, but the fact is, its all about freedom of speech.

Petersen said we have the right to criticize public officials because were their employers. She said she was seeing more local governments, cities and county commissions trying to shut down public comments especially criticism.

And thats really disturbing, she said. I mean, this is a participatory democracy, but they only want participation when it suits them and its to their benefit.

Although Hiaasen has retired from the Miami Herald, he plans to continue his book projects.

This interview first aired on WMFE in November 2016

Link:
A look back at a conversation with Carl Hiaasen on free speech - WMFE

Justice Oliver Wendell Holmes invention in 1919, in Schenck v. United States, of the Clear and Present Danger Test, provided little protection for dissenters who opposed Americas role in World War I.

Charles Schenck went to prison for encouraging draft resisters. A newspaper publisher was sentenced to prison for publishing anti-draft articles. Eugene Debs, the famous labor organizer, was sent to prison for 10 years for a speech in which he praised those who resisted the draft. As one prominent constitutional scholar, Harry Kalven, observed, It is somewhat as though George McGovern had been sent to prison for his criticism of the Vietnam War.

The grim reality of the courts use of the Clear and Present Danger Test for the next 30 years was that it ignored the value of dissenting speech. Critiques and criticisms of governmental programs, policies and actions lead often to improvement. Further, in the context of war, criticism is particularly useful. Dissenting speech can expose and illuminate poor policies and strategies that undermine the nations goal of winning the war, as quickly as possible.

To his credit, Justice Holmes, smarting from stinging criticism from friends, colleagues and admirers, reevaluated his construction of the Clear and Present Danger Test, and made a significant change. Rather than punishing dissenters for the intent of their speech, Holmes, in a dissenting opinion in Abrams v. United States, just nine months after Schenck, shifted his emphasis to the effect of the speech. The question, now, asks whether the speaker is effective in persuading people to resist the draft.

In Abrams v. United States, the majority, following Holmes reasoning in Schenck, upheld the conviction of Abrams, who had mailed flyers opposing military conscription. Holmes, joined by Justice Louis D. Brandeis, filed one of the greatest dissents in American history.

Having changed his mind about the standard that should govern the protection accorded speech, from the intent of the speech to the effect of the speech, Holmes declared Abrams a puny anonymity. Like Schenck before him, Abrams failed to persuade people to resist the draft. Consequently, his speech did not pose a present danger to the nation and was within the umbrella of First Amendment protection.

Justice Holmes dissent is justly remembered for its final paragraph, in which he eloquently described the classic rationale for freedom of speech in Americas democracy.

Holmes wrote that awareness of the fact that time has upset many fighting faiths should give pause to those who would persecute opinions at odds with their own. The real test is the ability of an idea to win acceptance in the marketplace of ideas, where the only standard is the truth of the proposition. The truth of an idea is determined through competition, that is, rigorous analysis grounded on discussion and debate.

Holmes emphasis on the truth of an idea owes its inspiration to the powerful argument of John Milton who, in 1644, penned a beautiful essay, Areopagitica, attacking censorship and defending a full airing of ideas to determine which views deserve respect. In a free and open encounter between the doctrines of truth and winds of falsehood, Milton wrote, whoever knew the truth put to the worse.

The competition of ideas in the marketplace, then, should not be prematurely undercut by governmental intervention. I think we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. Only such an emergency permits an exception to the sweeping command of the First Amendment, Congress shall make no law abridging free speech.

Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality.

Send questions about the Constitution to Dr. Adler at NDWTPColumn@gmail.com and he will attempt to answer them in subsequent columns.

This column is provided by the North Dakota Newspaper Association and Humanities North Dakota.

Abrams, like most dissenters from a war, which President Woodrow Wilson declared, a war to make the world safe for democracy, exercised little influence. As a result, governmental suppression, indeed punishment, of such speech was wholly unnecessary and destructive of democratic processes and democratic ends.

In a democracy, dissenting speech must be tolerated, Holmes believed, until there is evidence that speech will bring about a grave, immediate danger that government may prevent. Yet, we may ask, does this standard vest too much discretion in a judge to predict what may happen, as opposed to determining the facts of what has occurred? We turn next week, to a better test.

Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality.

Send questions about the Constitution to Dr. Adler at NDWTPColumn@gmail.com and he will attempt to answer them in subsequent columns.

This column is provided by the North Dakota Newspaper Association and Humanities North Dakota.

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Holmes' defense of Freedom of Speech | Columnists | willistonherald.com - Williston Daily Herald

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (First Amendment to the Constitution)

Thou shalt not bear false witness against thy neighbor. (Exodus 20:16, KJV)

The first quote is the law of the land, the second is not. Further, the first quote makes it clear that it is up to the individual to decide whether to adhere to the second quote.

To some extent, and in the spirit of free speech, the U.S. Constitution permits the bearing of false witness or lying as a constitutional right. The framers of the Constitution were more concerned about the suppression of speech than the corruption of it. They reasoned that men [and women] of good conscience would outweigh those with no conscience.

But the framers of the Constitution could not possibly envision the power and ability of the internet and mass media outlets to spread and amplify lies to millions of Americans. Worse, that in the two-party system that emerged after the First Amendment was adopted, one party would use mass media and the internet to develop alternative versions of reality; one steeped in populist beliefs augmented by an unscrupulous orator.

Lies and misinformation threaten to destroy our free speech. We have all witnessed that firsthand. In the past three months, we have seen how Donald Trumps lies about a stolen election led to an insurrection against the government and a loss of faith in our election process, the very heart of our democracy.

In the backlash of these lies, several entities, most notably Dominion and Smartmatic, the makers of election software, are suing Trumps lawyer as well as several news sources in multi-billion-dollar lawsuits on charges of defamation. Now the courts will decide how much free speech will be permitted to destroy the reputation of a company, an individual or a states election process.

This appears to be the future direction of free speech in America. An individual, a company or a political party can openly tell lies or spread misinformation and then magnify it in public media and leave it to the courts to decide whether their right to free speech can ruin a persons life or destroy another company or even democracy itself.

Further, since litigation of this magnitude often requires large financial resources, the litigation of slander will often come down to a question of wealth and monetary backing. Free speech in America will exist only for those who can afford to back it up in court.

Even if the Constitution permitted the restriction of free speech against slanderous lies, we would not be able to regulate our way out of bearing false witness. The dividing line between what speech is permissible and what is illegal would be more dynamic than it is now. I believe the framers of the First Amendment understood that.

The United States has grown from a rebellious group of idealistic colonies to the most powerful nation ever to have existed. We are so powerful that the temptation of that power will cause many to trade their integrity to obtain it.

In the end, our democracy depends upon our integrity. Our freedom of speech is our most important heritage. To preserve it, we must speak truth and stand up to those who would pervert it.

(James Fieseher lives in Dover.)

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My Turn: Our biggest threats to free speech - Concord Monitor

Social justice movements and conspiracy theories have become a hallmark of our time, but how do we know which inflammatory statements are legally protected and which are not?

Sociology Professor Nella Van Dyke sheds light on the legal and social ramifications of free speech in this Q&A. Van Dyke is an expert on social movements in relation to hate crimes, with recent studies of the movement against sexual assault, college student protest, LGBTQ+ college student experiences and racist hate crimes on campus. Her work has been published in leading journals including Social Forces, Social Problems and the American Sociological Review. She has co-edited two books: Strategic Alliances: Coalition Building and Social Movements and Understanding the Tea Party Movement.

Van Dyke joined UC Merceds sociology department in 2008 and is a founder of the departments undergraduate and graduate programs. She teaches courses in sociological theory, hate crimes, sexuality and statistics.

The Constitution itself does not define free speech, but the First Amendment of the Constitution says Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Because of this, every person in the United States has freedom of speech.

Because of the First Amendment, most speech is protected in the U.S., but not all types.

Speech that threatens another individual, defames their character in a manner that causes damage, is considered obscene, incites violence or creates a hostile environment is illegal.

The goal of hate speech is to silence and exclude. Hate speech is technically legal, unless it occurs in a repeated way in a location which the individual cannot avoid, thus creating a hostile environment, or, if it is directly threatening to the individual who hears it. Note that hate speech can be used as evidence in a hate-crime case. If hate speech occurs during the commission of a crime, it can be used as evidence that the crime was a hate crime, though the speech itself is not illegal.

There is no question that racist and other bigoted speech is harmful to marginalized students and harmful to the university as a whole. The problem, however, is that hate speech is difficult to define. Some colleges have enacted anti-hate speech policies, but ironically, these have almost always ended up being used against the students they were intended to protect.

If we allow authorities to enact laws against hate speech, they may use these laws against those seeking social justice. For example, during the 1800s, many Southern states in the U.S. made it illegal to speak out against slavery because they said it would incite violence. While it is understandable that many members of our community would like to see hate speech banned either on campus or by state or federal governments, these policies are unlikely to hold up in court, and we have to be careful about how much power we give authorities over us.

The courts are very consistent in their rulings on free speech. Decisions and definitions of what speech is allowed do change over time, but not very quickly, and challenges that go against established precedent are not very likely to succeed.

UC Merceds principles of community call for all of us to treat one another with dignity and respect, and to be civil when engaged in dialogue. Therefore, we should all try to avoid speech that dehumanizes, disparages or hurts another person. In terms of what is legal, we have more freedom. Legally, we should avoid threatening a specific individual with harm, trying to get others to commit crimes or acts of violence, or repeatedly using hate speech around an individual or particular group of individuals. However, we can all do better than that by following UC Merceds principles of community and encouraging others to do so.

Only government entities are required to follow the direct limits imposed by the Constitution. Private actors must follow the law, but not the directives described in the Constitution. Public universities must therefore allow free speech, including hate speech. Private institutions, including businesses and private colleges and universities, can enact policies limiting speech, including anti-hate policies. Private citizens can do what theyd like in private (e.g., at home), as long as they obey the law. When they are acting within an institutional space, they must follow the rules of the space. Thus, an individual at a public university has the right to free speech and cannot get penalized for hate speech (unless it includes a direct threat or otherwise breaks the law), while someone on a private college campus could face disciplinary action for hate speech if it violates the campus speech policies.

As a private company, Twitter has the right to decide what content or users it wants to allow. Therefore, legally it had the right to suspend Trumps account. Twitter states that it banned his account because it determined that his tweets violated its policy against the glorification of violence. Twitter decided that his tweets could inspire others to replicate violent acts and determined that they were highly likely to encourage and inspire people to replicate the criminal acts that took place at the U.S. Capitol on January 6, 2021. Its also possible that Twitter was concerned about liability because it is illegal to provide resources to those aiming to overthrow the U.S. government and it is illegal to participate in inciting violence.

Social media users can do research on the platforms terms of service and posting policies. Users should be aware that even if they have the right to post almost any content, the platforms have algorithms that decide what content to promote. Facebooks algorithm, for example, promotes content that evokes strong emotions, and therefore has been found to amplify conspiracy theories and fake news. Twitter, Facebook and Tiktok have all recently released information about their algorithms in an effort to increase public trust, and users can find these online. Ultimately, Im not sure anyone can be 100 percent certain that their right to free speech is being fully respected, because these are private companies that are not bound by the First Amendment.

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Q&A: Sociologist with Specialty in Right-Wing Movements on Free Speech and the First Amendment | Newsroom - UC Merced University News

Gavin Williamson issetto reveal a free speech champion with the power to fine universities thatdo notstand up for freedom of speech.

The appointee, which is expected to be announced by the Education Secretary on Tuesday, will also be able to order redressif an individual is dismissed or demoted for their views.

i's education newsletter: news and analysis as schools try to return to normal

The role will sit withinEnglands higher education watchdog, the Office for Students,The Sunday Telegraphreported.

The Conservative Partys 2019 general election manifesto included a commitment to strengthen academic freedom and free speech in universities.

In a letter sent to theOfSearlier this month,MrWilliamson accused the watchdog of not doing enough to protect free speech on campuses. He said there had been little regulatory action by theOfSto potential breaches relating to freedom of speech, despite a significant number of concerning incidents.

He also said he wanted the watchdog to take more active and visible action to challenge concerning incidents that are reported to it or which it becomes aware of.

Concerns about freedom of speech in higher education have grown in recent years, although some commentatorshave saidthe problem is exaggerated.

Dr Jo Grady, general secretary of the University and College Union, said the free speech champion role was job creation in pursuit of a culture war.

Separately, the Culture Secretary Oliver Dowden is due to hold a summit next week with 25 of the UKs biggest heritageorganisations, in which he is expected to tell the bodies to defend our culture and history from the noisy minority of activists constantly trying to do Britain down.

Sir John Hayes, the chairman of theCommon SenseGroup of Tory MPs, saidMrDowden was correct to remindorganisationsthat have strayed from their purpose that protecting and promoting our heritage is about making people proud, not making them feel guilty about being British.

Dr Robert Saunders, a historian at Queen Mary University of London, tweeted that there was a grim ironyin the Government telling heritage groups not to airbrush history while warning themtostop researching slavery and empire.

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Gavin Williamson set to appoint free speech champion with power to fine universities - iNews

There is a fundamental belief among Americans that we have the right to do and say whatever we want because we are protected by the First Amendment. Although freedom of speech exists in America, all speech is not free. There is a cost.

On Monday, the U.S. Senate began debating whether to hold Donald Trump accountable for inciting the Capitol insurrection that resulted in the deaths of five individuals including a Capitol police officer. At issue is a single article of impeachment that accuses the former president of reiterating false claims that he had won this election and that he willfully made statements that, in context, encouraged and foreseeably resulted in lawless action at the Capitol.

In response, Trumps legal team has asserted that the statements he made at the rally were protected by his First Amendment right to free speech. Thus, Trump should not be held accountable for any subsequent actions of the protesters.

In the landmark case of Brandenburg v. Ohio (1969), the Supreme Court, while acknowledging the sacredness of free speech, established that the government can punish what has been defined to be inflammatory speech if that speech is "directed to inciting or producing imminent lawless action producing and is likely to incite or produce such action."

However, the impeachment and trial process as set forth in the Constitution may be viewed as a political process rather than a judicial process. There is a difference. In the judicial process, attorneys dispute the existence of necessary facts to establish that the defendant did, in fact, commit the crime. In this political impeachment process, the law will be argued as opposed to the facts. Because this process is taking place in a partisan Senate, it is not likely that Trump will be found guilty, especially given the retributive nature of party politics.

As Americans, we have become comfortable with the concept of freedom, the ability to determine our own destiny. We have freedom of speech, religion, press and freedom. We are free to peacefully assemble, and we have free elections. It was the idea that all men were created equal that inspired one of the greatest civil rights movements in history where oppressed African Americans demonstrated their humanity in refusing to meet violence with violence.

The Capitol insurrection is much bigger than just a few people getting drunk on Trumpism. We the People must defend our nation against the domestic terroristic ideas that threaten our democracy from within such as partisan politics, classism, elitism and racism. As true citizens of America, we must do our part in protecting democracy. If nothing more comes of this impeachment trial, America should be reminded that ideas, not weapons, are the most powerful tools of revolution.

BLAIR D. CONDOLL, J.D.

political science professor, Dillard University

New Orleans

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Letters: The limits of free speech and the dangers of violence and insurrection - The Advocate

As we approach the Senate trial on the impeachment of former President Donald Trump for incitement of insurrection against the Republic he swore to protect on Feb. 9, his lawyers and other defenders have made the astonishing claim that convicting him would somehow violate freedom of speech. Judicial Watchs Tom Fitton even asserted that convicting Trump would be devastating to the First Amendment because it would be a green light to remove others that engage in core political speech that would be criminalized if the Left doesnt like it.

As a constitutional lawyer who has defended the First Amendment for almost forty years, I agree with lawyer Chris Truax that these free speech claims are absurd. First, the First Amendment protects members of the public from having their speech suppressed or punished by the government, and does not shield government officials for accountability for their actions, even if they involve speech. A private citizen would have the First Amendment right to proclaim loyalty to Russia or China or to advocate the secession of Texas from the union. Does anyone seriously contend that free speech allows a U.S. president to violate his oath of office and do the same, and also escape accountability through impeachment for such treasonous acts? Apparently, Trump and his supporters do.

As the House impeachment managers have pointed out, moreover, even if Trumps actions were treated like those of a private citizen, and even if the First Amendment applied to Congressional efforts to hold a president accountable as it does to a criminal prosecution, the free speech defense would still fail. The Supreme Court ruled more than 50 years ago that the First Amendment does not protect speech when it is directed to inciting or producing imminent lawless action and is likely to do so. Trumps incendiary remarks just before the Jan. 6 violent insurrection at the Capitol, when he exhorted his followers to go to the Capitol and fight like hell, particularly when combined with evidence of his intent like reports that he was delighted as the riots were happening, could well be enough to warrant even a criminal conviction of Trump by a court. They are clearly enough to justify a conviction on impeachment in the Senate.

I have always believed that the First Amendment is first in our Constitution because, in important ways, free speech and the other rights it safeguards are crucial to protect our democracy. The attempt of a disgraced ex-president and his seditionist collaborators to try to hide behind free speech, as well as similar recent far right efforts to use freedom of speech to justify the violent actions at the Capitol on Jan. 6, truly dishonors our First Amendment.

Link:
Free Speech Arguments Against Trump's Impeachment Dishonor The First Amendment - People For the American Way

When private tech companies moderate speech online, is the government ultimately responsible for their choices? This appears to be the latest argument advanced by those criticizing Section 230 of the Telecommunications Act of 1996sometimes known as Section 230 of the Communications Decency Act. But upon closer scrutiny, this argument breaks down completely.

In a new Wall Street Journal op-ed, Philip Hamburger argues that the government, in working through private companies, is abridging the freedom of speech. Weve long respected Hamburger, a professor at Columbia Law School, as the staunchest critic of overreach by administrative agencies. Just last year, his organization (the New Civil Liberties Alliance) and ours (TechFreedom) filed a joint amicus brief to challenge such abuse. But the path proposed in Hamburgers op-ed would lead to a regime for coercing private companies to carry speech that is hateful or even downright dangerous. The storming of the U.S. Capitol should make clear once and for all why all major tech services ban hate speech, misinformation and talk of violence: Words can have serious consequencesin this case, five deaths, in addition to two subsequent suicides by Capitol police officers.

Hamburger claims that there is little if any federal appellate precedent upholding censorship by the big tech companies. But multiple courts have applied the First Amendment and Section 230 to protect content moderation, including against claims of unfairness or political bias. Hamburgers fundamental error is claiming that Section 230 gives websites a license to censor with impunity. Contrary to this popular misunderstanding, it is the First Amendmentnot Section 230which enables content moderation. Since 1998, the Supreme Court has repeatedly held that digital media enjoy the First Amendment rights as newspapers. When a state tried to impose fairness mandates on newspapers in 1974, forcing them to carry third-party speech, no degree of alleged consolidation of the power to inform the American people and shape public opinion in the newspaper business could persuade the Supreme Court to uphold such mandates. The court has upheld fairness mandates only for one mediumbroadcasting, in 1969and only because the government licenses use of publicly owned airwaves, a form of state action.

Websites have the same constitutional right as newspapers to choose whether or not to carry, publish or withdraw the expression of others. Section 230 did not create or modify that right. The law merely ensures that courts will quickly dismiss lawsuits that would have been dismissed anyway on First Amendment groundsbut with far less hassle, stress and expense. At the scale of the billions of pieces of content posted by users every day, that liability shield is essential to ensure that website owners arent forced to abandon their right to moderate content by a tsunami of meritless but costly litigation.

Hamburger focuses on Section 230(c)(2)(A), which states: No provider or user of an interactive computer service shall be held liable on account of ... any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected. But nearly all lawsuits based on content moderation are resolved under Section 230(c)(1), which protects websites and users from being held liable as the publisher of information provided by others. In the 1997 Zeran decision, the U.S. Court of Appeals for the Fourth Circuit concluded that this provision barred lawsuits seeking to hold a service provider liable for its exercise of a publishers traditional editorial functionssuch as deciding whether to publish, withdraw, postpone or alter content (emphasis added).

The Trump administration argued that these courts all misread the statute because their interpretation of 230(c)(1) has rendered 230(c)(2)(A) superfluous. But the courts have explained exactly how these two provisions operate differently and complement each other: 230(c)(1) protects websites only if they are not responsible, even in part, for the development of the content at issue. If, for example, they edit that content in ways that contribute to its illegality (say, deleting not in John is not a murderer), they lose their 230(c)(1) protection from suit. Because Congress aimed to remove all potential disincentives to moderate content, it included 230(c)(2)(A) as a belt-and-suspenders protection that would apply even in this situation. Hamburger neglects all of this and never grapples with what it means for 230(c)(1) to protect websites from being treated as the publisher of information created by others.

Hamburger makes another crucial error: He claims Section 230 has privatized censorship because 230(c)(2)(A) makes explicit that it is immunizing companies from liability for speech restrictions that would be unconstitutional if lawmakers themselves imposed them. But in February 2020, the U.S. Court of Appeals for the Ninth Circuit ruled that YouTube was not a state actor and therefore could not possibly have violated the First Amendment rights of the conservative YouTube channel Prager University by flagging some of its videos for restricted mode, which parents, schools and libraries can turn on to limit childrens access to sensitive topics.

Hamburger insists otherwise, alluding to the Supreme Courts 1946 decision in Marsh v. Alabama: The First Amendment protects Americans even in privately owned public forums, such as company towns. But in 2019, Justice Brett Kavanaugh, writing for all five conservative justices, noted that in order to be transformed into a state actor, a private entity must be performing a function that is traditionally and exclusively performed by the government: [M]erely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints. In fact, Marsh has been read very narrowly by the Supreme Court, which has declined to extend its holding on multiple occasions and certainly has never applied it to any media company.

Hamburger also claims that Big Tech companies are akin to common carriers. Hes right that the law ordinarily obliges common carriers to serve all customers on terms that are fair, reasonable and nondiscriminatory. But simply being wildly popular does not transform something into a common carrier service. Common carriage regulation protects consumers by ensuring that services that hold themselves out as serving all comers equally dont turn around and charge higher prices to certain users. Conservatives may claim thats akin to social media services saying theyre politically neutral when pressed by lawmakers at hearings, but the analogy doesnt work. Every social media service makes clear up front that access to the service is contingent on complying with community standards, and the website reserves the discretion to decide how to enforce those standardsas the U.S. Court of Appeals for the Eleventh Circuit noted recently in upholding the dismissal of a lawsuit by far-right personality Laura Loomer over her Twitter ban. In other words, social media are inherently edited services.

Consider the Federal Communications Commissions 2015 Open Internet Order, which classified broadband service as a common carrier service insofar as an internet service provider (ISP) promised connectivity to substantially all Internet endpoints. Kavanaugh, then an appellate judge, objected that this infringed the First Amendment rights of ISPs. Upholding the FCCs net neutrality rules, the U.S. Court of Appeals for the D.C. Circuit explained that the FCCs rules would not apply to an ISP holding itself out as providing something other than a neutral, indiscriminate pathwayi.e., an ISP making sufficiently clear to potential customers that it provides a filtered service involving the ISPs exercise of editorial intervention. Social media services make that abundantly clear. And while consumers reasonably expect that their broadband service will connect them to all lawful content, they also know that social media sites wont let you post everything you want.

Hamburger is on surer footing when commenting on federalism and constitutional originalism: [W]hen a statute regulating speech rests on the power to regulate commerce, there are constitutional dangers, and ambiguities in the statute should be read narrowly. But by now, his mistake should be obvious: Section 230 doesnt regulat[e] speech. In fact, it does the opposite: It says the government wont get involved in online speech and wont provide a means to sue websites for their refusal to host content.

Hamburger doubles down by claiming that Section 230 allows the government to set the censorship agenda. But neither immunity provision imposes any agenda at all; both leave it entirely to websites to decide what content to remove. Section 230(c)(1) does this by protecting all decisions made in the capacity of a publisher. Section 230(c)(2)(A) does this by providing an illustrative list of categories (obscene, lewd, lascivious, filthy, excessively violent, harassing) and then adding the intentionally broad catchall: or otherwise objectionable. Both are coextensive with the First Amendments protection of editorial discretion.

Hamburger argues for a narrow reading of 230(c)(2)(A), which would exclude moderating content for any reason that does not fall into one of those categories or because of its viewpoint. He claims that this will allow state legislatures to adopt civil-rights statutes protecting freedom of speech from the tech companies. And he reminds readers about the dangers of the government co-opting private actors to suppress free speech: Some Southern sheriffs, long ago, used to assure Klansmen that they would face no repercussions for suppressing the speech of civil-rights marchers. This analogy fails for many reasons, especially that those sheriffs flouted laws requiring them to prosecute those Klansmen. That is markedly and obviously different from content moderation, which is protected by the First Amendment.

Ironically, Hamburgers proposal would require the government take the side of those spreading hate and falsehoods online. Under his narrow interpretation of Section 230, the law would not protect the removal of Holocaust denial, use of racial epithets or the vast expanse of speech thatwhile constitutionally protectedisnt anything Hamburger, or any decent person, would allow in his own living room. Nor, for example, would it protect removal of hate speech about Christians or any other religious group. Websites would bear the expense and hassle of fighting lawsuits over moderating content that did not fit squarely into the categories mentioned in 230(c)(2)(A).

Perversely, the law would favor certain kinds of content moderation decisions over others, protecting websites from lawsuits over removing pornography or profanity, but not from litigation over moderating false claims about election results or vaccines or conspiracy theories about, say, Jewish space lasers or Satanist pedophile cannibal cults. But if Hamburgers argument is that Section 230 unconstitutionally encourages private actors to do what the government could not, how does favoring moderation of some types of constitutionally protected speech over others address this complaint? This solution makes sense only if the real criticism isnt of the idea of content moderation, or its constitutionality, but rather that social media platforms arent moderating content according to the critics preferences.

Hamburger is a constitutional originalist, and he invokes the Framers understandings of the First Amendment: Originally, the Constitutions broadest protection for free expression lay in Congresss limited power. But theres nothing remotely originalist about his conclusion. His reading of Section 230 would turn Congress shall make no law... into a way for the government to pressure private media to carry the most odious speech imaginable.

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The Wall Street Journal Misreads Section 230 and the First Amendment - Lawfare