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Free Speech Tag

Posted by Kemberlee Kaye on October 07, 2014 3 Comments
Turns out Twitter is also fed up with this administration's war on transparency. Last month, Twitter released a report detailing how they'd been banned from reporting the extent of government surveillance on the platform. In that report Twitter explained:
"...if the government will not allow us to publish the actual number of requests, we want the freedom to provide that information in much smaller ranges that will be more meaningful to Twitter’s users, and more in line with the relatively small number of non-national security information requests we receive. We also pressed for the ability to be specific about different kinds of national security requests and to be able to indicate “zero requests” if that applies to any particular category of request. Unfortunately, we were not able to make any progress at this meeting, and we were not satisfied with the restrictions set forth by the DOJ.
Today Twitter announced they're taking the transparency fight to court:
Our ability to speak has been restricted by laws that prohibit and even criminalize a service provider like us from disclosing the exact number of national security letters (“NSLs”) and Foreign Intelligence Surveillance Act (“FISA”) court orders received — even if that number is zero. It’s our belief that we are entitled under the First Amendment to respond to our users’ concerns and to the statements of U.S. government officials by providing information about the scope of U.S. government surveillance – including what types of legal process have not been received. We should be free to do this in a meaningful way, rather than in broad, inexact ranges. So, today, we have filed a lawsuit in federal court seeking to publish our full Transparency Report, and asking the court to declare these restrictions on our ability to speak about government surveillance as unconstitutional under the First Amendment. The Ninth Circuit Court of Appeals is already considering the constitutionality of the non-disclosure provisions of the NSL law later this week.
You can read the filing in its entirety beneath:

Posted by Amy Miller on September 11, 2014 18 Comments
Senate Republicans have crushed Majority Leader Harry Reid's efforts to advance a Constitutional amendment that would greatly restrict free speech and association in America. Reid needed 60 votes to end the measure, but the votes fell 54-42 across the party line. Via the Hill:
Earlier this week, more than 20 Republicans voted with Democrats in a 79-18 vote to advance the amendment in order to force Democrats to spend the week debating the merits of the measure. ... The amendment was certain to fail at some point. It would have needed to win two-thirds support to pass the Senate, and then would still have needed to move through the House and be ratified by two-thirds of the states.
Preceeding the vote, Minority Leader Mitch McConnell (R-KY) took Democrats to task for wasting the chamber's time, and prioritizing Democrats' own destructive agenda over the needs of the American people:

Posted by Amy Miller on September 10, 2014 22 Comments
Yesterday was another heated day on the floor of the Senate, as Republicans took to the podium to lambaste SJR 19, Democrats' latest effort to control the content and flow of political speech in America. As we discussed Monday, SJR 19 proposes a Constitutional amendment that would give Congress the right to set limits on how much money can be raised for and spent in federal political campaigns, and would drastically limit the First Amendment rights to both free speech and free association. Senate Majority Leader Harry Reid (D-NV), and Senate Majority Whip Dick Durbin (D-IL), have spent the past two days defending the resolution as our last chance to preserve the integrity of the vote---and proposing some dangerous policy in the process. Tuesday brought both junior and senior Senators to the floor in opposition to the proposed amendment, putting Democrats on defense and causing waves on social media. One of the main concerns raised in Tuesday's floor speeches was the potential for government control over political speech to spiral, and cut off the flow of information entirely. Senator Ted Cruz (R-TX) got creative with his presentation, targeting Senator Al Franken (D-MN) and others who embrace parody and humor as part of their political commentary:

Posted by Amy Miller on September 08, 2014 28 Comments
Congress is back in Washington, and Senate Democrats have wasted no time in bringing forward their proposal for a constitutional amendment that would give Congress the right to set limits on how much money can be raised for and spent in federal political campaigns. Senate Joint Resolution 19 is sponsored by Tom Udall (D-NM) and has gained the vocal support of powerful Democrats like Elizabeth Warren, Patrick Leahy, Majority Whip Dick Durbin, and Majority Leader Harry Reid. Its three sections would drastically affect both freedom of speech and freedom of association in America:
Section 1. To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections. Section 2. Congress and the States shall have power to implement and enforce this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections. Section 3. Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.
In his first floor speech following the August recess, Majority Leader Reid made it clear that he's willing to once again prevent Republicans from having a voice in the Senate---ironic considering he's advocating the muzzling of voters via Congressional fiat:

Posted by Amy Miller on August 30, 2014 3 Comments
As Hot Air's Ed Morrissey once put it, "there is no jackass exception to the First Amendment." Many bloggers toe the line between defamation and free expression, and enjoy their constitutional protections to the fullest; every once in a while, though, what started as an internet flame war ends up in the courts. On Friday, the Texas Supreme Court ruled that Google does not have to release the identity of the anonymous blogger "Trooper" who used the internet to criticize Reynolds & Reynolds. The Ohio-based software company is attempting to discover Trooper's identity "in anticipation of a suit." Via the ABA Journal:
The petition was brought by Reynolds & Reynolds, the Austin American-Statesman reports. The company argued that a disgruntled employee, writing under the pseudonym “Trooper,” posted confidential and defamatory statements about it on a blog site hosted by Google. “Trooper” submitted a sworn affidavit to the court that stated he did not live in Texas. The decision overturns a trial court order that held Google must disclose the author’s identity. Reynolds & Reynolds ["Reynolds"] is seeking the information so it can sue the author for defamation and business disparagement, according to the article.
The problem with Reynolds & Reynolds' petition was that they could not provide evidence to show that a court in Texas could exercise jurisdiction over "Trooper." Rule 202 of the Texas Rules of Civil Procedure allows a "proper court" to authorize a deposition to investigate a potential claim before a suit is filed. Reynolds, which has offices in Texas, is attempting to execute a Rule 202 petition under the jurisdiction of a district court in Harris County, Texas; their goal is to force Google during a deposition to disclose the true identity of Trooper so that they can prove that a Texas court can exercise personal jurisdiction. Trooper, however, asserted though counsel during a special appearance that his only contact with Texas occurs when people in Texas read his blog. He argued that he does not have the minimum contacts required with Texas sufficient for a Texas court to exercise personal jurisdiction over him.

Posted by William A. Jacobson on August 22, 2014 11 Comments
Prior to a few minutes ago, the University of Illinois at Urbana-Champaign had not commented publicly about the reasoning behind the decision not to complete the hiring process for Professor Steven Salaita. There was a lot of protest, including a petition and academic boycotts, meant to pressure the university into changing its mind.  That does not appear to be happening, from the latest news report. That, of course, does not preclude some sort of financial settlement, which might take into account that Salaita resigned his prior tenured position at Virginia Tech before learning his contingent offer from UI-UC would not be approved. The Urbana-Champaign News-Gazette now reports that Chancellor Phyllis Wise has sent a campus-wide email:
In her first public statement about Professor Steven Salaita, University of Illinois Chancellor Phyllis Wise said her decision to not forward his appointment to trustees for formal approval was not influenced by his criticism of Israel. The university, she said, cannot tolerate “personal and disrespectful words or actions that demean and abuse either viewpoints themselves or those who express them.” “We have a particular duty to our students to ensure that they live in a community of scholarship that challenges their assumptions about the world but that also respects their rights as individuals. A Jewish student, a Palestinian student, or any student of any faith or background must feel confident that personal views can be expressed and that philosophical disagreements with a faculty member can be debated in a civil, thoughtful and mutually respectful manner. Most important, every student must know that every instructor recognizes and values that student as a human being. If we have lost that, we have lost much more than our standing as a world-class institution of higher education,” Wise sent in a mass e-mail to the campus community Friday afternoon.
(Update) In addition, later in the afternoon, the Board of Trustees, the Chancellors of the Chicago and Springfield campuses, numerous university senior officials, and the President of the Faculty Senates, issues a statement supporting the decision. The full Chancellor email, as reprinted by the News-Gazette, is as follows (added -- original email here):

Posted by Amy Miller on July 30, 2014 47 Comments
A long legal battle ended Tuesday as federal jury awarded former Minnesota Governor Jesse Ventura over a million dollars in damages in his defamation lawsuit against the widow of "American Sniper" Chris Kyle. Ventura sued widow Tara Kyle over her husband Chris Kyle's depiction of Ventura's participation in a 2006 bar fight. From the AP:
A federal jury sided with Ventura in his lawsuit against "American Sniper" author Chris Kyle, who was killed last year in Texas. Though Ventura honed a tough-guy reputation as a pro wrestler and action movie actor, he maintained the legal battle was about clearing his name among his beloved fellow Navy SEALs, not about losing a supposed fight. Kyle — reputed to be the deadliest sniper in U.S. military history — said in his memoir that he punched Ventura in California in 2006 after Ventura said the SEALs "deserved to lose a few" in Iraq. Ventura disputed that the confrontation, including the punch, ever happened.
An 8-2 jury awarded Ventura $500,000 for defamation and $1.3 million under the theory of unjust enrichment, saying that a portion of Kyle's profits from his book were gained at the expense of Ventura's reputation. After threats of a hung jury plagued the courtroom, lawyers on both sides agreed to accept a verdict if 8 of the jurors agreed as to the result. Although it's likely that the unjust enrichment portion of the damages will be paid by publisher HarperCollins' insurance policy, Ventura's attorneys are expected to go one step further by demanding HarperCollins remove the disputed section from Kyle's book.

Posted by Andrew Branca on July 16, 2014 48 Comments
It is axiomatic that the freedom of speech provisions of the 1st Amendment of the US Constitution are specifically intended to protect unpopular and/or offensive speech. After all, speech that is neither unpopular nor offensive is, obviously, not in need of any particular protections.  It is equally indisputable that of all the various forms of speech possible, it is political and religious speech that lies at the heart of 1st Amendment protections.

Meet Todd Kincannon, that &$(#*&%! Lawyer from South Carolina

In the context of the Conservative polito-sphere one of the greatest founts of offensive conservative political and religious speech is South Carolina lawyer (and former head of the SC Republican Party) Todd Kincannon, particularly through the vehicle of his Twitter account, @Todd__Kincannon (note that there are two underscores). Despite Todd’s in-your-face, abrasive political and religious speech—or, as seems more likely, precisely because of it—the @Todd__Kincannon Twitter account has acquired in excess of 50,000 followers. To put this figure in some context, this very highly successful and well-respected legal blog on which I am writing this post has just over 14,000 followers of its @LegInsurrection Twitter account. My own @LawSelfDefense Twitter account has only about 4,000 followers.

Kincannon Reports SC Officials Are Threatening His Law License Over Speech

Todd is now reporting that the South Carolina governmental authorities responsible for governing the professional conduct and ethics of attorneys have decided that Todd’s conservative political and religious advocacy on Twitter, and elsewhere, is too offensive to be permitted, and needs to be gagged. Specifically, Todd has written that the South Carolina Commission on Lawyer Conduct and the South Carolina Office of Disciplinary Counsel have informed him that his political and religious commentary is “unethical” to a degree sufficient to warrant legal sanction to the point of disbarment. (The South Carolina Judicial Department definitions of lawyer misconduct can be found here: Rule 8.4: Misconduct.) More specifically, Todd writes that these governmental agencies have threatened him with disbarment should he proceed with his planned publication of a book advocating conservative political and religious beliefs. This past June they also informed Todd that following a two-year investigation based on a small number of complaints—none alleging anything other than offensive political and religious speech—they were electing to continue rather than cease the investigation because of comments Todd had made on his @Todd__Kincannon Twitter account regarding a left-wing political activist. As a result, Todd felt compelled to cease his Twitter communications effective June 22, and he has been silent in that forum since then. In short, these South Carolina government officials are purportedly seeking to strip Todd of his professional license to practice law based solely upon his Constitutionally protected exercise of his right to freedom of political and religious speech.

Kincannon Breaks Silence With Email to Purchasers of His Book

Todd revealed this current state of affairs in an email released to persons who had pre-ordered copies of his book, in explanation for why they would not be receiving their ordered books in as timely a manner as they had expected.

Posted by Jack Park on June 17, 2014 8 Comments
On its face, Monday’s unanimous decision by the U.S. Supreme Court in SBA List v. Driehaus is about when a claim of future injury is sufficiently well-grounded to allow someone to file a lawsuit to stop it. But, the decision is really about the regulation of political speech. In their incisive and hilarious friend of the court brief, the Cato Institute and P. J. O’Rourke noted, “The campaign promise (and its subsequent violation), as well as disparaging statements about one’s opponent (whether true, mostly true, mostly not true, or entirely fantastic) are cornerstones of American democracy.” Ohio (and others, including some in Congress) thinks that’s a problem. In the 2010 congressional cycle, the Susan B. Anthony List (SBA List) wanted to put up a billboard stating, “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.” That billboard didn’t go up because its target, then-U.S. Representative Steve Driehaus threatened legal action. Driehaus also filed a complaint with the Ohio Elections Commission asserting that SBA List’s billboard violated Ohio law because it was “false.” The Commission found probable cause to think Driehaus was right and scheduled a hearing. That probable cause determination turned Driehaus loose to pursue discovery, which he did intrusively, noticing depositions of SBA List employees and others and asking for not just evidence supporting SBA List’s interpretation of the Affordable Care act but also for its “communications with allied organizations, political party committees, and Members of Congress and their staffs.” SBA List filed suit to challenge the constitutionality of Ohio’s false statement laws. The election intervened, however, and Driehaus dismissed his complaint after he was defeated. The district court then dismissed SBA List’s lawsuit because it was no longer ripe, and the Sixth Circuit affirmed that ruling. The Supreme Court unanimously reversed the Sixth Circuit, allowing SBA List and others to challenge the restrictions on their political speech.

Posted by William A. Jacobson on May 26, 2014 30 Comments
The attacks on a University of Virginia law professor for expressing legal views not in keeping with the views of some LGBT activists and much of the political establishment has created a stir in legal academia. In Jamaica, a somewhat analogous case is developing regarding a recently retired professor who was fired from his continuing HIV/AIDS research position after filing an accurate, but politically incorrect, expert report in a highly contentious case in Belize (h/t Blazing Cat Fur). The case has received almost no attention outside the Caribbean press, and none in the U.S. as far as I can tell. The background is that the Belize Supreme Court is considering a court case seeking to overturn Section 53 of the criminal code, which bans some forms of homosexual behavior, specifically male-on-male sodomy. Argument was held in May 2013 but there has been no decision as of this writing. The highly charged nature of the case pits a coalition of international gay rights activists against some Christian churches and groups. Enter Dr. Brendan Bain, who retired as a Professor in 2013 from the University of West Indies.  While still a professor, in 2012 Dr. Bain submitted testimony in the form of an Expert Report in the case (embedded in full at the bottom of this post). Dr. Bain is one of the pioneers in the fight against the spread of HIV/AIDS in the Caribbean, as detailed in the introduction to his Expert Report, and in the numerous news reports referenced later in this post. [caption id="attachment_87310" align="alignnone" width="454"]Dr. Brendan Bain by Steve Shapiro for the 2011 Caribbean HIV Conference (Dr. Brendan Bain,by Steve Shapiro for the 2011 Caribbean HIV Conference, used under an Attribution-NoDerivs 2.0 Generic Creative Commons license.)[/caption] Among other things, even after his retirement as a professor Dr. Bain was director of the U.S.-funded Regional Coordinating Unit of the Caribbean HIV/AIDS Regional Training (CHART), which he helped create.  Here is his bio from 2013 from the CHART website:

Posted by William A. Jacobson on March 20, 2014 23 Comments
University of North Carolina at Wilmington professor Michael Adams has won his discrimination lawsuit, in a jury verdict rendered today. The judge now will rule on damages. The Jury Verdict form and Judgment are embedded at the bottom of this post. Adams was the professor who wrote the viral response to another professor who called Adams an "embarrassment" to higher education. The case involved claims that Adams was subjected to discriminatory retaliation for expressing his Christian religious and politically conservative views. We have uploaded the Amended Complaint and Answer to the Amended Complaint. Alliance Defending Freedom, which represented Adams, described the case as follows:
Dr. Mike Adams, a criminology professor at the University of North Carolina–Wilmington, frequently received accolades from his colleagues after the university hired him as an assistant professor in 1993 and promoted him to associate professor in 1998. At the time he was an atheist, but his conversion to Christianity in 2000 impacted his views on political and social issues. After this, he was subjected to intrusive investigations, baseless accusations, and the denial of promotion to full professor even though his scholarly output surpassed that of almost all of his colleagues. In a lawsuit filed against the university on Adams’ behalf, Alliance Defending Freedom attorneys contended that the university denied Adams a promotion because his nationally syndicated opinion columns espoused religious and political views that ran contrary to the opinions held by university officials.
The jury found that Adams' "speech activity [was] a substantial or motivating factor in the defendants' decision to not promote" Adams, and that the defendants' would not have reached the same decision "in the absence of the plaintiff's speech activity". Adams v UNC - Wilmington - Jury Verdict Form Answers The Judge now will resolve the damages, as set forth in the Judgment:

Posted by William A. Jacobson on March 13, 2014 4 Comments
We previously wrote about the lawfare against Ezra Levant, We Stand With Ezra. The case now is in trial, and Ezra has an update: You can donate to Ezra's defense fund here. After you donate, sit back and enjoy Ezra’s Opening Statement in the 2008 Human Rights Commission case brought against him over the publication of the Mohammed cartoon:
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