Posts Tagged ‘free speech’

Free speech roundup, campaign and political speech edition

  • “New legislation aimed at curbing foreign influence in U.S. elections also appears to be aimed at curbing Americans’ influence in U.S. elections.” [Cato Daily Podcast with Caleb Brown and Scott Blackburn of the Institute for Free Speech on SHIELD Act]
  • “Everyone always talks about how much money there is in politics. This is the wrong framing. The right framing is… why is there so little money in politics?” [Scott Alexander]
  • Free speech advances other freedoms: “Frederick Douglass’s “Plea for Freedom of Speech in Boston”” [Law and Liberty, Kurt Lash introduction] The very idea of a gay rights organization once seemed unthinkable in America, and might have remained so “in the absence of a strong and particularly libertarian First Amendment.” [Dale Carpenter, SSRN and Volokh Conspiracy summary]
  • “That unlimited right to lobby the lawmakers who make decisions that affect your life, your family, and your fortune is one that Sen. Elizabeth Warren (D–Mass.) thinks American businesses should not have.” [Peter Suderman; Bradley Smith and Luke Wachob, NRO] A federal appeals court says an independent Missouri activist doesn’t have to register as a lobbyist to talk to lawmakers [Cato Daily Podcast with Caleb Brown and Zac Morgan of the Institute for Free Speech]
  • “Every Democrat in the Senate Supports a Constitutional Amendment That Would Radically Curtail Freedom of Speech” [Jacob Sullum] Same bunch “Still Fundraising Off Citizens United, Still Wrong About What It Means” [Elizabeth Nolan Brown]
  • “Essentially, L.A. has passed a law saying people with one interest in a decision by the council can support candidates, but the other side can’t.” [Christian Britschgi, Reason on city’s ban on contributions by developer but not anti-development interests]

Free speech roundup

  • A new law making it a federal crime to threaten journalists? No thanks [Robby Soave, Reason]
  • “In 2012, there was just one journalist in jail on fake-news charges. By 2014, there were eight…. The number rose to 27 in jail by the end of last year.” And the charge can depend simply on what news the ruling authority deems true or false [Miriam Berger, Washington Post discussing new Committee to Protect Journalists report on imprisoned journalists]
  • Thread on the damaging impacts of COPPA, the children’s online privacy law [TechFreedom]
  • When are refusals to deal protected by the First Amendment? See whether your intuitions are consistent across 1) boycotts of Israel, 2) wedding cake refusals, and 3) SCOTUS’s 1982 decision in NAACP v. Claiborne Hardware [Eugene Volokh first and second posts on Arkansas challenge, David Bernstein first and second posts] My own views on anti-Israel-boycott and anti-BDS laws here, and related;
  • Officials in Lafayette County, Wisconsin quickly back off “completely bananas” suggestion of prosecuting news outlets that report “selectively” on water quality test results [Bruce Vielmetti, Milwaukee Journal-Sentinel, Patrick Marley update]
  • Some IP claims are real killers: heirs of photographer known for famed Che Guevara image send takedown demand to maker of parody t-shirt [Paul Alan Levy]

German court: search engines must deindex reports of 1981 double murder

In case you were wondering exactly where the supposed “right to be forgotten” leads in Internet regulation:

A convicted murderer in Germany has the right to get all mention of his crime deleted from internet search results under the EU’s “right to be forgotten” provision, Germany’s highest court has ruled.

Let’s hope the United States never decides to follow Europe’s path by restricting speech rights in the name of personal data erasure. [Bill Bostock, Business Insider]

Free speech roundup

  • 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]

“The First Amendment does not depend on whether everyone is in on the joke.”

“…when it comes to parody, the law requires a reasonable reader standard, not a ‘most gullible person on Facebook’ standard. The First Amendment does not depend on whether everyone is in on the joke.” — Judge Amul Thapar, Sixth Circuit, writing on behalf of a unanimous panel that “an Ohio man who was acquitted of a felony after creating a parody Facebook page that mocked a suburban Cleveland police department can sue the city and two police officers over his arrest.” [Jonathan Stempel, Reuters]

Related: everyone has the right to call politicians idiots, and that goes for gun store owners too [Eugene Volokh; North Carolina gun store owner’s billboard likened by sitting member of Congress to “inciting violence”]

How the tax code protects controversial opinion

Eugene Volokh thanks a House panel for “inviting me to testify about ‘How the Tax Code Subsidizes Hate.’ The Tax Code indeed subsidizes hate, just as it subsidizes Socialism, Satanism, and a wide variety of dangerous and offensive ideas.”

In particular, a long line of court opinions has made clear that 1) “tax exemptions can’t be denied based on the viewpoint that a group communicates,” 2) “excluding speech that manifests or promotes ‘hate’ is forbidden viewpoint discrimination”, 3) the law “may treat groups differently based on their actions, but not based on the views they express” (emphasis added) and that 4) while groups may be denied tax exemptions “for deliberately engaging in speech that falls within one of the few narrow exceptions to the First Amendment, such as true threats of criminal attack, or incitement intended to and likely to cause imminent criminal conduct,… ‘hate speech’ writ large doesn’t fall within any such exceptions.” In addition, the D.C. Circuit has found that a former IRS attempt to hinge exemption on a group’s presentation of “a sufficiently full and fair exposition of the pertinent facts as to permit an individual or the public to form an independent opinion or conclusion” was unacceptably vague in scope and application.

Moreover, if the IRS were to begin revoking groups’ tax exemptions based on their exercise of speech that is not protected, such as libel or incitement of immediate criminal conduct, it would be obliged to apply such a policy neutrally as to content — which means a lot of groups quite different from the one targeted in the test-case controversy will find their ox gored. The legal precedents have developed in cases involving a wide range of both progressive and conservative litigants, and understandably so, because if principles in this area are to be principles they must protect speakers of many different points of view, not just the popular or emollient. Either that, or they will in effect protect none. [expanded and cross-posted at Cato at Liberty]

“If it’s speech, you can’t force it.”

The Arizona Supreme Court made the right call, in my view, in ruling that it is forced expression for the city of Phoenix to require a wedding-calligraphy studio to inscribe invitations for weddings that go against its owner-artists’ religious scruples: “If it’s speech, you can’t force it.” The ruling is based on both the state constitution and on Arizona’s version of RFRA (religious freedom restoration act). [Lindsay Walker, Cronkite News/Arizona PBS; Eugene Volokh and Dale Carpenter (filed with Cato in the case on behalf of the studio); earlier here, etc., and related]

The latter part of the ruling does seem to result in a broader than usual reading of a state RFRA, because most state courts have declined to interpret the laws to provide very much protection for religious objectors in public-accommodation cases; their logic has been that reducing discrimination is a compelling state interest that cannot be enforced in a less restrictive way.

Ken White on faulty speech tropes

“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]

“They’ve cut off our newsprint,” says opposition paper’s publisher

It’s a longstanding hazard of state-controlled economies, especially when newsprint or other essential supplies have to be brought in from abroad and are thus subject to foreign exchange or import regulations. This time the target is Nicaragua’s historic and now embattled newspaper La Prensa, published by the Chamorro family. “The government customs office has held up La Prensa’s imports of newsprint and ink since October, according to its editors. Nicaragua’s leading daily is now a skeletal eight pages – down from 36.” [Mary Beth Sheridan, Washington Post/Laredo Morning Times]

Higher education roundup