Posts Tagged ‘free speech’

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

Free speech roundup

  • 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]

International free speech roundup

  • Singapore law restricting so-called fake news “could force companies to tell the government what websites users have viewed” [Jennifer Daskal, New York Times] Ruling People’s Action Party “is notorious for its practice of bringing lawsuits against opposition members,” sometimes “for defamation upon criticizing the PAP,” while blog authors are “often pressured to register as members of political bodies if their posts touch upon national issues.” [Sally Andrews, The Diplomat]
  • Australian federal police raid national broadcaster, seize files over story exposing alleged killings of unarmed civilians by special forces [Matthew Lesh, Spiked]
  • U.K.: “Man investigated by police for retweeting transgender limerick” [Camilla Tominey and Joani Walsh, Daily Telegraph; Jack Beresford, Irish Post; Ophelia Benson followup on “Harry the Owl” case; earlier here, here, etc.]
  • From President John Adams’s time to our own, rulers around the world have used alarms over fake news as excuse for measures against political opponents [J.D. Tuccille, Reason]
  • “In a world first, Facebook to give data on hate speech suspects to French courts” [Mathieu Rosemain, Reuters, Jacob Mchangama on Twitter]
  • Michael Jackson fan clubs sue sex-abuse complainants “under a French law against the public denunciation of a dead person,” good example of why laws like that are a bad idea [AP/GlobalNews]
  • Turkish “Academics for Peace” initiative of 2016: “Of the petition’s more than 2,000 signatories, nearly 700 were put on trial and over 450 were removed from their posts by government decree or direct action from their own university.” [Brennan Cusack, New York Times]

U.K. bans gender stereotypes in ads

The United Kingdom’s Advertising Standards Authority (ASA) has “instituted a ban on gender stereotypes ‘that are likely to cause harm, or serious or widespread offence.'”

According to the ASA’s overview, setups that will likely be in violation of the law include but are not limited to:

* An ad that depicts a man with his feet up and family members creating mess around a home while a woman is solely responsible for cleaning up the mess.

* An ad that depicts a man or a woman failing to achieve a task specifically because of their gender e.g. a man’s inability to change nappies [diapers]; a woman’s inability to park a car.

* Where an ad features a person with a physique that does not match an ideal stereotypically associated with their gender, the ad should not imply that their physique is a significant reason for them not being successful, for example in their romantic or social lives.

* An ad that seeks to emphasise the contrast between a boy’s stereotypical personality (e.g. daring) with a girl’s stereotypical personality (e.g. caring) needs to be handled with care.

* An ad aimed at new mums which suggests that looking attractive or keeping a home pristine is a priority over other factors such as their emotional wellbeing.

It will not be a defense of a stereotype that it is by and large true — that, for example, persons whose physique departs significantly from social expectations might genuinely face worse average outcomes in their romantic lives.

The rules do allow a few exceptions; for example, it will still be fine for advertisers in Britain to invoke gender stereotypes for purposes of challenging them. [Billy Binion, Reason]

Happy Independence Day!

Battles continue over lawyer speech codes, in both U.S. and Canada

As I noted last year, the American Bar Association in 2016 adopted as a recommendation its Model Rule 8.4 (g),

which makes it “professional misconduct” for an attorney to engage in “conduct,” including verbal “conduct,” that “the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” …

UCLA law professor Eugene Volokh has argued that the ABA rule’s scope “is broad and vague enough to potentially apply to a wide range of political speech, and thus violate the First Amendment.”

The rule would invite charges of professional misconduct against lawyers who express or circulate opinions, jokes, or graphics that they should have known would make a listener uncomfortable based on one or another protected class membership. It would apply in an extremely wide range of contexts “related to the practice of law”, as listed in these April comments:

Activities that seem to fall within the extremely broad scope of proposed Rule of Professional Conduct 8.4(g) include:

* presenting CLE courses;
* participating in panel discussions that touch on controversial political, religious, and social viewpoints;
* teaching law school classes as faculty, adjunct faculty, or guest lecturers;
* writing law review articles, op-eds, blogposts, or tweets;
* giving media interviews;
* serving on the board of one’s religious congregation, K-12 school, or college;
* providing pro bono legal advice to nonprofits;
* serving at legal aid clinics;
* lobbying on various legal issues;
* testifying before a legislative body;
* writing comment letters to government agencies;
* sitting on the board of a fraternity or sorority;
* volunteering for political parties; and
* advocating through social justice organizations.

While some state codes of lawyer conduct already ban bias and harassment, these have generally been drafted much more narrowly. In Maine, for example, up to now the missteps have to have been committed “knowingly,” in the course of representing a client, and in a manner “prejudicial to the administration of justice” — all three important safeguards against overbreadth.

Model Rule 8.4 (g) has faced rough sledding around the states since it was proposed. According to these comments in October, “seven states have rejected the rule: Arizona, Illinois, Minnesota, Montana, Nevada, South Carolina, and Tennessee have rejected the proposal. The Attorneys General of four states have concluded that adopting the rule would violate the First Amendment: Louisiana, South Carolina, Tennessee, and Texas. Only Vermont has adopted the model rule in its entirety.”

As Vermont goes, so goes Maine: the Pine Tree State’s highest court has now adopted a version of the rule, although narrowed in several respects. In particular, the Maine version defines “the practice of law” in a less broad (though still quite broad) way that covers fewer purely social activities; it removes socioeconomic status and marital status from the list of protected classes; and it tries at least to define what sorts of speech it will deem to be bias or harassment. Its definition is still quite unclear in its contours, however, and far broader than the standard approved by the U.S. Supreme Court as to harassment law and speech liability in workplace and university settings.

Let’s hope other states don’t follow Maine’s example: even as narrowed, the rules curtail important rights.

In the mean time, however, there is heartening news from Ontario, Canada, where (as I reported last year) the Law Society had gone all in on rules that go much further than the ABA’s, requiring all lawyers on eventual pain of discipline to draft a personal Statement of Principles (SOP) avowing a dedication to principles of diversity, equality, and inclusion. The Society rejected a proposal “to create an exemption to the new mandatory Statement of Principles for persons who believe the requirement violates their freedom of conscience.”

But its membership revolted. Attorney Lisa Bildy and other SOP objectors led a campaign that, in a seeming miracle, elected 22 of its supporters to the 40 lawyer seats among the benchers (governors) at the Law Society. While the newly elected are not a majority because of the other seats on the body reserved for lay benchers and paralegals, the message was unmistakable (more on the campaign from Bruce PardyMurray KlippensteinTeng Rong, and Dylan McGuinty). Now, in the face of a determined campaign of abuse directed at the incoming benchers (sidelight), the Law Society of Ontario’s governing Convocation will meet June 27 to begin considering whether to repeal, render optional, otherwise change, or retain the Statement of Principles requirements.

The June 27 Law Society meeting, and what follows, deserve a close watch by all of us concerned about the rise of speech codes and forced expression in the professions.

[cross-posted from Cato at Liberty; earlier]

Social media law roundup

  • “The Moral Panic Behind Internet Regulation” [Matthew Lesh, Quillette] New Congressional Research Service report on free speech and the regulation of social media content [Valerie C. Brannon, Congressional Research Service]
  • “A social media campaign from the French government has been blocked by Twitter – because of the government’s own anti-fake-news law” [BBC via Elizabeth Nolan Brown]
  • European authorities misidentify many pages on Internet Archive as “terrorist,” demand takedown [Mike Masnick, Techdirt]
  • Armslist case is one in which Section 230 protected Second Amendment rights (that’s not a misprint for First) [John Samples, Cato; Eugene Volokh]
  • Sen. Josh Hawley (R-MO)’s bill to require the largest social media firms to obtain certification of their political balance from the FTC, on pain of making them liable for all content posted by users, met with hail of dead cats from knowledgeable observers [Elliot Harmon/EFF, John Samples/Cato and more, Cathy Gellis, Joshua Wright thread, Eric Goldman, Raffi Malkonian on retroactivity and more, Elizabeth Nolan Brown/Reason] Related: Daphne Keller (“Build Your Own Intermediary Liability Law: A Kit for Policy Wonks of All Ages”);
  • “We sympathize with Plaintiffs — they suffered through one of the worst terrorist attacks in American history. ‘But not everything is redressable in a court.'” [Sixth Circuit, Crosby v. Twitter, affirming dismissal of lawsuits seeking to hold Twitter, Facebook, and Google liable under Anti-Terrorism Act for abetting self-radicalization of perpetrator of Orlando Pulse attack]