- New federal bill seeks middle ground on LGBT discrimination law and religious accommodation [Kelsey Dallas/Deseret News, “Fairness For All” coalition, sponsor Rep. Chris Stewart (R-UT) on bill] Early criticism from left and right [Daniel Silliman, Christianity Today; Katelyn Burns, Vox] The impulse to get past Culture War enmities is to be praised, even if, alas, some of the bill’s provisions would extend the coercive reach of federal law in ways libertarians would oppose;
- Third Circuit panel, Judge Thomas Hardiman writing, rules in favor of atheist group challenging Pennsylvania county’s rejection of bus ads. Creates split with D.C. Circuit [Charles Gallmeyer, Jurist; Hemant Mehta; Northeastern Pennsylvania Freethought Society v. County of Lackawanna Transit System]
- “Eighth Circuit holds that videographers have First Amendment free speech right to refuse to provide services at same-sex weddings” [Joseph Singer, KNSI (Minnesota); Telescope Media Group v. Lucero] Update on Sweet Cakes by Melissa case in Oregon [Adam Gustafson, Federalist Society; earlier] Federalist Society teleforum on Brush & Nib case [Phoenix wedding calligraphy] with Eric M. Fraser, Jennifer Perkins, and Jonathan Scruggs, and earlier;
- And speaking of which: SCOTUS should resolve “expressive wedding vendor” issue once and for all [Ilya Shapiro and Michael Collins on Cato certiorari brief in (latest stage of) Arlene’s Flowers v. Washington, noting that “Cato is the only organization in the country to have filed briefs in support of both Jim Obergefell (lead plaintiff in the Supreme Court’s same-sex marriage case) and Jack Phillips (owner of Masterpiece Cakeshop)”; earlier]
- Article takes issue with currently popular idea that claims of harm to third parties should routinely defeat claims to religious accommodation [Mark Storslee, University of Chicago Law Review/SSRN]
- “Top Scholars, Diverse Religious Groups Ask SCOTUS to Reconsider Employment Division v. Smith — Again” [Joseph Davis, Becket/Federalist Society on certiorari petition in Ricks v. Idaho Board of Contractors]
- Massachusetts state lawmaker who introduced much-derided bill to criminalize the word “bitch” when directed at another person says he “filed the bill after being asked to do so by a constituent.” [Alex Griswold, Free Beacon]
- Presidents have long used their power to retaliate against the press. When does the constitution direct or permit the courts to do anything about that? [First Amendment lawyer Robert Corn-Revere for FIRE, part one and part two]
- After two students shout racial slur loud enough for others to hear, University of Connecticut arrests and charges them “under a rarely-used, unconstitutional state law prohibiting ‘ridicule.'” [Adam Steinbaugh, FIRE]
- “May a company get an injunction to block a defendant from invoking the Streisand Effect?” [Paul Alan Levy]
- How courts draw the line on when menacing language triggers the “true threat” exception to First Amendment protection [Federalist Society teleforum with Eugene Volokh, John Elwood, and Michael Dreeben]
- “Should Congress Pass A ‘Deep Fakes’ Law? A few tentative thoughts.” [Orin Kerr, Volokh Conspiracy]
Watch out when Establishment figures “declare that they’ve changed their mind on free speech and now think there should be less of it,” I write in my new piece at Cato:
This new Washington Post opinion piece (“Why America needs a hate speech law”) is by Richard Stengel, a former editor of Time magazine and the State Department’s undersecretary for public diplomacy and public affairs from 2013 to 2016. In that post, he was charged with representing America’s values to the world.
Honestly, could Stengel’s argument be any weaker? “Even the most sophisticated Arab diplomats that I dealt with did not understand why the First Amendment allows someone to burn a Koran. … it should not protect hateful speech that can cause violence by one group against another.”
If the prospect of violence by offended groups is what causes us to censor, we are well on the way toward closing down speech at the whim of whichever mobs, here or abroad, decide to be violent….
Whole thing here.
“A libertarian attorney filed a lawsuit on Thursday taking aim at the Louisiana State Bar Association’s monopoly on the legal profession, joining a wave of similar litigation in other states. New Orleans insurance defense lawyer Randy Boudreaux alleges in the federal court suit that his rights of free speech and free association are being violated because the bar association collects his mandatory dues while taking positions on controversial issues like the death penalty and LGBT rights…. Boudreaux, a married gay man, said he agrees with the bar association’s position in favor of LGBT rights. But he’s opposed to the idea of compelling his fellow lawyers to pay for a group with which they disagree.” [Matt Sledge, NOLA.com, earlier] But note: Eighth Circuit rejects argument that North Dakota bar fees are open to challenge under Janus [Fleck v. Wetch]
I’m in today’s Wall Street Journal [paywalled for some readers] with a piece on last week’s vote by the San Francisco Board of Supervisors to brand the National Rifle Association a “domestic terrorist organization.” The resolution repeatedly takes the view that “advocacy,” “propaganda” and “promotion” of certain political viewpoints, or of gun ownership, constitutes terrorism or, as the case may be, “material support” for it.
First Amendment aside, there’s more than just symbolism in the board’s divisive attempt to change the meaning of words by main force. The resolution also declares a crackdown on city contractors who do business with the gun-advocacy group, and under current law that is very likely to be struck down in itself as inconsistent with the First Amendment under a 1996 Supreme Court precedent.
Some related links: the resolution; the 1996 Board of County Commissioners v. Umbehr case, in which the Supreme Court ruled 7-2 that the First Amendment restrains localities’ discretion to shun contractors because of their politics; Jonathan Adler in 2015 on the Chick-Fil-A controversies; and reporting on the San Francisco supervisors’ resolution to use nicer, not-so-dehumanizing terminology about criminals (Jim Geraghty at National Review noticed this before me).
“If you’ve read op-eds about free speech in America, or listened to talking heads on the news, you’ve almost certainly encountered empty, misleading, or simply false tropes about the First Amendment,” argues Los Angeles litigator Ken White in an Atlantic essay. “Those tired tropes are barriers to serious discussions about free speech.” Among verbal gestures that help very little or not at all when you’re trying to establish whether particular speech is protected under current First Amendment law:
* “Not all speech is protected; there are exceptions to the First Amendment.” [true but usually not helpful]
* “This speech isn’t protected, because you can’t shout ‘Fire!’ in a crowded theater.” [see above; also, an empty rhetorical device deployed in a case that’s no longer good law]
* “Incitement and threats are not free speech.” [true, but regularly misapplied to speech that does not meet the law’s narrow definitions of these terms]
* “Fighting words are not free speech.” [same, even assuming that Chaplinsky v. New Hampshire (1942) is still good law]
* “Hate speech is not free speech.” [no, it mostly is]
* “Stochastic terrorism is not free speech.” [same]
* “We must balance free speech with [social good].” / “There is a line between free speech and [social evil].”
* “They do it in Europe!”
* “We talked to a professor and a litigator who said this is not protected speech.”
* “This speech may be protected right now, but the law is always changing.”
Watch and (if you’re like me) cheer as Ken dispatches them all.
[cross-posted from Cato at Liberty]
- Second Circuit decision restricting public officials from blocking foes on Twitter is likely to discourage local electeds from sharing on social media, among its other problems [Gabriel Malor thread, John Samples/Cato, earlier]
- State of Washington defines lawyers’ pro bono work as “campaign expenditure,” even when it goes toward ballot access effort for a measure that never reached the ballot to be campaigned over. Review and clarification by high court sorely needed [Ilya Shapiro, Trevor Burrus and Patrick Moran on Cato amicus brief in Evergreen Freedom Foundation v. State of Washington]
- Freedom of press not just for those who own one: “Minnesota Supreme Court Holds That Nonmedia Speakers Are Fully Protected by First Amendment” [Eugene Volokh, defamation law]
- “Publishing Court Records Containing Home Address Not Actionable Invasion of Privacy” [Volokh on a pattern that sometimes gives rise to claims of “doxxing”]
- FOSTA, the law hailed as creating a pioneering exception to Section 230 for speech promoting “sex trafficking,” isn’t just your ordinary incursion on Internet freedom. It comes with a body count [Mike Masnick, Techdirt; related, Violet Blue, Engadget]
- If they’re farming, don’t you be filming: John Stossel on ag-gag laws [Reason video and story, earlier]
- Following similar rulings in Charleston, S.C., and Washington, D.C., federal judge rules Savannah violated First Amendment when it passed law forbidding unlicensed tour guides [Andrew Wimer, Institute for Justice]
- Pursuing a leak, San Francisco cops raid home of freelance journalist Bryan Carmody, hold him captive, seize his equipment [Yashar Ali, CNN] “SF police got warrant to tap journalist’s phone months before controversial raid” [Evan Sernoffsky, San Francisco Chronicle] Update: judge revokes warrant and says cops didn’t tell her target of wiretap was a journalist [Billy Binion, Reason]
- Breadth of the Julian Assange indictment and implications for the First Amendment [Eugene Volokh]
- Three concepts of “hate speech” related to religion, and their different legal treatment: “speech that denigrates religion as such; speech that threatens imminent violence against believers; and speech that insults or denigrates believers on the basis of religion” [Mark Movsesian and Marc DeGirolami podcast, Center for Law and Religion, St. John’s]
- New York disciplines a civil servant over political opinions he expressed on Facebook. Can it do that? [Center for Individual Rights]
- “Goldsmith … was charged with simple misdemeanor harassment for a Facebook post he made expressing his criticism of the policing methods he witnessed by an Adams County sheriff’s deputy at a local town festival.” [ACLU] Speaking of that organization: “ACLU (N.H.) Challenging Criminal Libel Statute” [Eugene Volokh last winter]
“The cop actually hauling him to the station [for warning motorists that there were cops ahead] was more to the point, telling the man he was arresting him for ‘interfering with our livelihood,'” according to the complaint in the subsequent lawsuit. [Tim Cushing, TechDirt; Stamford, Ct.] We covered a similar ruling in Florida in 2012.
“We’re not interested in charging children or putting them in jail or fining them,” says a campaigner for Maryland’s “cyber-bullying” law, “Grace’s Law 2.0,” which is drafted to do exactly those things. “What we want to do is change the behavior so the internet is more kind,” says the same campaigner regarding the new law, which would encourage online users to turn each other in for potential 10-year prison terms over single instances of certain kinds of malicious, abusive speech, and is being billed as going farther than any other law in the country, as well as farther than the earlier Maryland law passed in 2013.
Bruce DePuyt at Maryland Matters reports that Senate Judiciary Chair Bobby Zirkin (D-Baltimore County):
said the 2013 law required that abusive comments be sent to the individual and be part of a pattern of conduct. With the rise of social media, that proved to be too high a hurdle, he said.
Under the new law, “a single significant act can land you in trouble,” he told reporters.
Due credit to the ACLU of Maryland, which called out this dangerous venture in speech regulation:
Toni Holness, the group’s public policy director, said in February that the bill fails to adequately define what constitutes a “true threat.”
Holness also was concerned about other words in the bill that had not been defined: encourage, provoke, sexual information, intimidating, tormenting.
“There’s way too much prosecutorial discretion in these terms that are not defined,” she said.
I criticized the bill in February and noted language from Zirkin suggesting that the Court of Appeals, as distinct from the legislature, would sort out its constitutionality. Before that, I criticized the 2015 law as itself going too far (more). DePuyt reports that Zirkin may approach U.S. Rep. Jamie Raskin (D-Md.) about introducing a similar bill on the federal level. Let’s hope Raskin says no to that bad idea. [cross-posted from Free State Notes; see also earlier]
Related: an Ohio student has been arrested and faces expulsion over a Twitter account on which he made vicious comments about female classmates; whatever view the law takes of the prospective expulsion of 18-year-old Mehros Nassersharifi by Perrysburg High School, his arrest, on charges of telecommunications harassment, may overstep the First Amendment [NBC24, Hans Bader, Eugene Volokh (reworded to reflect fuller accounts which make clear that the student’s offensive speech went further than simply “rating” of classmates)]