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Free Speech Tag

Posted by William A. Jacobson on December 02, 2014 6 Comments
Common Core is generating a lot of concerns around the country, and teacher input without fear of retaliation is essential. The reality is, however, that teachers critical of Common Core may be intimidated by school district and state officials into silence. That is what a teacher is alleging in a lawsuit (full Complaint here) filed in Maricopa County Superior Court against the Arizona Superintendent of Education, as described by The Goldwater Institute press release:
Today the Goldwater Institute filed a lawsuit on behalf of Tucson, Ariz. teacher Brad McQueen, who was retaliated against by employees of the Arizona Department of Education for speaking out against the Common Core State Standards. For years, Mr. McQueen was paid to serve on several committees of teachers who advised the state department of education on issues related to standardized testing. When he spoke out against the Common Core and its accompanying standardized test earlier this year in a newspaper article, he was removed from the committees (even those that had nothing to do with the Common Core), notes were made in his file at the department that could impact future employment opportunities, and he was disparaged in official department emails. “The First Amendment guarantees that all Americans have the right to speak out on important issues of the day without fear of being persecuted,” said Kurt Altman, a senior attorney at the Goldwater Institute. “When you exercise your rights and find your livelihood and reputation are threatened, especially by the government, that sends a message to everyone around you to keep their mouths shut.”

Posted by Amy Miller on December 02, 2014 7 Comments
The relationship between the media and Connecticut courts is about to get very, very ugly. The Connecticut Law Tribune has come forward with information showing that New Britain Superior Court Judge Steven Frazzini has enjoined the newspaper from publishing a story based on court documents entered into the public record and published on the Judicial Branch's website. Tribune lawyer Daniel Klau has already filed an appeal, but even Klau himself has been slapped with a court order demanding his silence on the subject. From the Connecticut Law Tribune:
The action before Frazzini was in juvenile court session, where judges have the discretion to limit proceedings to those participants deemed necessary. A writer representing the Law Tribune was not permitted to remain in the courtroom to witness the proceedings, after his presence was objected to by a lawyer for one of the parents in an underlying custody case and by a guardian ad litem. Klau said he was not sure he could talk specifically about who the lawyers were in the case, or even the judge. The lawyer for the mother in the custody case is Stephen Dembo, of West Hartford, who took the unusual step of requesting the injunction to prevent the newspaper's publication of a story about the court filing. The guardian ad litem is Susan Cousineau, a prominent voice in the ranks of guardians ad litem, who also cochaired a legislative task force on GAL reform in the last legislative session. The Department of Children and Families legal director, Barbara J. Claire, wanted to make it clear that her agency was not behind the request for the publication ban, and said in a statement: "The department did not request that a court grant a motion to prevent media coverage in a confidential child protection case." The motion to bar publication was filed on Friday, Nov. 17. The Law Tribune immediately filed an objection to the motion, arguing that any prior restraint on publication is unconstitutional. "Prior restraints on speech and publication are the most serious and the least tolerable infringements on First Amendment rights," the brief states, quoting the 1976 U.S. Supreme Court case of Nebraska Press Association v. Stuart.

Posted by Amy Miller on December 02, 2014 5 Comments
Both parties in the high-profile Elonis vs. United States had their day before the Supreme Court yesterday, and lawyers and analysts alike aren't sure what to make of the Court's reaction to oral arguments. Elonis (described in detail here) is shaping up to be a real barn burner because it tackles a question almost all of us have asked ourselves at some point: can you SAY that on Facebook? "That" being, of course, profanity- and violence-saturated rants directed at a particular person or group of people. We don't have a cohesive standard for what constitutes a "true threat" against another person, and the murky waters of social media have added an extra layer into an already complicated case. Platforms like Facebook and Twitter provide a kind of semi-anonymous catharsis for users; you can post a picture, or a song lyric, or random thought, and (barring any run-ins with the platform's TOS) no one can find cause to complain because it's your space on the internet to use as you wish. Enter Elonis' pointed, violent rants. Is it enough to claim catharsis and artistic expression when your content is clearly aimed at another person, and that person feels threatened? Elonis' attorneys are banking on the Nine to accept this argument:
John Elwood, a lawyer for Mr. Elonis, said prosecutors should have to show that someone accused of making threats intended to put the listener in fear. Merely being reckless with comments on Facebook or elsewhere shouldn’t be enough to make someone guilty, he said. “Many of the people who are being prosecuted now are teenagers who are essentially shooting off their mouths or making sort of ill-timed, sarcastic comments which wind up getting them thrown in jail,” Mr. Elwood said. He cited a Texas prosecution of a teenager who made remarks in a videogame chat room about attacking a school. And he suggested the government’s preferred legal approach would allow the prosecution of someone from Ferguson who tweeted a violent message along with a picture of police officers during the riots.
Justices Alito and Ginsburg balked at this argument, with Alito citing concerns that condoning Elonis' conduct could lead to a situation where estranged spouses could post threatening content against their partner and get away with it, and Ginsburg asking how a prosecutor could somehow tease out what was in the perpetrator's mind when he posted the threatening content.

Posted by Amy Miller on November 24, 2014 38 Comments
In the 2003 barnburner Virginia v. Black, the Supreme Court held unconstitutional a statute that in part stated that the act of burning a cross constituted prima facie evidence of an intent to intimidate a person or group. Writing for the majority, Justice O'Connor said that "just as a State may regulate only that obscenity which is the most obscene due to its prurient content, so too may a State choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm." Next week, the Supreme Court will be asked to apply this standard to speech in a new and controversial venue: a man's Facebook timeline. Anthony D. Elonis was sentenced to four years in federal prison after a court determined that violent rants posted to his personal Facebook page constituted a "true threat" to his estranged wife, former coworkers, and even a federal agent. The Washington Post has the background:
About a week after Tara Elonis convinced a judge to issue a protective order against her estranged husband, Anthony, her soon-to-be ex had this to say:
“Fold up your PFA [protection-from-abuse order] and put it in your pocket Is it thick enough to stop a bullet?”
... He was fired after co-workers interpreted one of his Facebook postings as a threat to them. He responded: ““Someone once told me that I was a firecracker. Nah, I’m a nuclear bomb and Dorney Park just f----- with the timer.” ... In other postings, Elonis suggested that his son dress as “Matricide” for Halloween, with his wife’s “head on a stick” as a prop. He pondered making a name for himself by shooting up an elementary school and noted that there were so many nearby to choose from — “hell hath no fury like a crazy man in a kindergarten class.”

Posted by Mike LaChance on November 01, 2014 10 Comments
Last Sunday, we told you about the Democratic Party's attempt to use the Federal Elections Commission to regulate free speech on the internet. Bill Whittle has put perspective on the issue in a new video from Truth Revolt. Here's an excerpt:
This smiling, normal-looking woman is Ann Ravel. She heads the FEC — the Federal Elections Commission. She’s a Democrat in a Democratic administration pursuing the Democratic party’s goal of intimidating, jailing and otherwise harassing their political opponents, who are mean because they don’t like being told what to do, or to think — the way nice people do. So she has been ordered to weaponize the government against unregulated speech — we don’t call it “free speech” any more because that term is archaic and also probably racist. It’s not like she doesn’t want to! As a typical progressive Democrat, Ann Ravel has two overriding psychological needs: First, regulate everything. How on earth with people like Ann Ravel and, for that matter, the President of the United States, ever be able to feel secure when the American people are just running around starting businesses willy-nilly, or irresponsibly making internet videos that don’t conform to the Official Truth, or reading news stories — “news stories!” — on places like Fox or the Drudge Report.
Watch the video: This actually dovetails perfectly with Professor Jacobson's new column at Townhall.com:

Posted by Amy Miller on October 30, 2014 16 Comments
We wrote previously about UC Berkeley students' attempt to block comedian Bill Maher from speaking at the university's commencement ceremonies. Students circulated a petition citing "hateful" statements like the one contained in the tweet below as reasons why Maher should not be allowed to speak at the ceremony. Unfortunately for Berkeley's future community organizers, Berkeley Chancellor Nicholas B. Dirks disagrees with the premise of their petition, and has overturned a student vote blocking Maher from speaking at graduation. Via Inside Higher Ed:
"The UC Berkeley administration cannot and will not accept this decision, which appears to have been based solely on Mr. Maher’s opinions and beliefs, which he conveyed through constitutionally protected speech," said a statement from the university. "For that reason Chancellor Dirks has decided that the invitation will stand, and he looks forward to welcoming Mr. Maher to the Berkeley campus. It should be noted that this decision does not constitute an endorsement of any of Mr. Maher’s prior statements: indeed, the administration’s position on Mr. Maher’s opinions and perspectives is irrelevant in this context, since we fully respect and support his right to express them. More broadly, this university has not in the past and will not in the future shy away from hosting speakers who some deem provocative."

Posted by Mike LaChance on October 28, 2014 24 Comments
Back in September, Prof. Jacobson asked How long before Bill Maher is banned on campus? It turns out the answer is... about a month. Greg Piper of the College Fix reported yesterday:
UC-Berkeley students try to derail Bill Maher from speaking at graduation Comedian, pundit and HBO host Bill Maher is scheduled to speak at the University of California-Berkeley’s December graduation, and students are already lining up to get him disinvited, citing his controversial remarks on Islam, the Daily Californian reports:
The Change.org petition was authored by ASUC Senator Marium Navid, who is backed by the Middle Eastern, Muslim and South Asian Coalition, or MEMSA, and Khwaja Ahmed, an active MEMSA member. The petition, which urges students to boycott the decision and asks the campus to stop him from speaking, has already gathered more than 1,400 signatures as of Sunday. … “It’s not an issue of freedom of speech, it’s a matter of campus climate,” Navid said. “The First Amendment gives him the right to speak his mind, but it doesn’t give him the right to speak at such an elevated platform as the commencement. That’s a privilege his racist and bigoted remarks don’t give him.” … “(Jon) Stewart and (Stephen) Colbert are critical of religion, too, but Bill Maher has, on several occasions, said to rise up against religious people and religious institutions and take action,” Ahmed said.
Here's an example of what's gotten Maher into trouble with Berkeley students. (language warning – NSFW) If you watched the video, you may have noticed that Maher mentioned Ayaan Hirsi Ali.

Posted by Mike LaChance on October 26, 2014 20 Comments
This is just another case of Democrats doing something they would be outraged about if Republicans tried it. In this instance, they want to use the power of government to silence opposition. Paul Bedard of the Washington Examiner reports:
Dems on FEC move to regulate Internet campaigns, blogs, Drudge In a surprise move late Friday, a key Democrat on the Federal Election Commission called for burdensome new rules on Internet-based campaigning, prompting the Republican chairman to warn that Democrats want to regulate online political sites and even news media like the Drudge Report. Democratic FEC Vice Chair Ann M. Ravel announced plans to begin the process to win regulations on Internet-based campaigns and videos, currently free from most of the FEC’s rules. “A reexamination of the commission’s approach to the internet and other emerging technologies is long over due,” she said. The power play followed a deadlocked 3-3 vote on whether an Ohio anti-President Obama Internet campaign featuring two videos violated FEC rules when it did not report its finances or offer a disclosure on the ads. The ads were placed for free on YouTube and were not paid advertising.
This is all about the accumulation and retention of power. As John Hinderaker of Powerline recently noted, that's just how the left rolls:

Posted by Kemberlee Kaye on October 16, 2014 46 Comments
Houston's summer was marred by a battle over religious liberties and overreaching government. Sparring over a city ordinance that would force businesses, among other things, to allow transgendered clientele the use of opposite sex restrooms or risk discrimination suits, Bayou City area clergy and the government aren't exactly on the best of terms. Rather than placing the measure on the ballot, City Council enacted the reform via city ordinance. Rallying together, clergy and concerned citizens submitted over more than twice as many required to repeal the ordinance. Then the validity of the signatures was called to question by the city attorney. And that's where this story picks up. The Houston City government made a bad situation worse when it subpoenaed five local area pastors. The subpoena requests any and all communication, electronic and otherwise that remotely mentions the above mentioned city ordinance battle. But it doesn't stop there:
All speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession.
Churches qualify for 501(c)(3) tax exempt status and can lose that status by engaging in electioneering or elicit candidate endorsement, just the same as any other 501(c)(3) organization; but none of the subpoenaed material falls within that category.

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.
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