Daily Media Links 1/3

January 3, 2020   •  By Tiffany Donnelly   •  
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Supreme Court

Bloomberg: The Supreme Court’s Past Decade Could Be Liberals’ Last Gasp

By Noah Feldman

Increasingly, conservative majorities of the court held that First Amendment freedoms trumped legislation that liberals considered to be aimed at equality.

The best-known free speech decision of the decade, Citizens United v. FEC, started the ball rolling in 2010. Famously, the court held that corporations possess free speech rights – enabling them to evade campaign finance limitations intended to prevent money from tilting the political playing field. There followed a series of increasingly absolutist free speech decisions, leading Justice Elena Kagan, herself long committed to free expression, to warn of a “weaponized First Amendment” that could be used by conservative justices to strike down various progressive laws. Remarkably, the trend is turning free speech, once a liberal objective, into a conservative cause – a development fueled by left-of-center advocacy for speech codes on college campuses.

The Courts

Wall Street Journal: Campus Bias Blowback

By The Editorial Board

The infection of speech restrictions on campus has spread nationwide, but some are fighting back. The latest defense of the First Amendment is a lawsuit filed Thursday against Iowa State University.

The Ames, Iowa, school has “created a series of rules and regulations designed to restrain, deter, suppress, and punish speech concerning political and social issues of public concern,” says the suit filed in federal court on behalf of Iowa State students by the nonprofit Speech First.

The suit cites several examples of the school’s bias, such as a policy prohibiting students from “broadcasting email from a university account to solicit support for a candidate or ballot measure.” Another policy limits who can use chalk on pavement. The practice is popular with students on both sides of the abortion debate, and Iowa State recently intervened to say that only registered student organizations could use chalk on pavement and only to promote an event.

The university may be most legally vulnerable for its Campus Climate Reporting System, which is as Orwellian as it sounds…

Speech First sued the University of Michigan last year over similar policies, and the school dissolved its bias response team after the Sixth Circuit Court of Appeals scored its “implicit threat of punishment and intimidation to quell speech.” Iowa State would be wise to settle now to avoid further embarrassment.

New York Times: Judge to Rule on Merrill’s Blocking of Twitter Users

By Associated Press

The lawsuit filed by blocked Twitter users contends that [Alabama Secretary of State John]Merrill is putting a “viewpoint-based restriction” to information about, and interaction with, his public office. The three plaintiffs said Merrill had blocked them from his Twitter account “because of opinions they expressed or questions they asked.”

“Allowing public officials such as Merrill to block individuals from their public social media accounts if they post replies which the public officials find ‘annoying’or ‘harassing’ would run afoul of the very liberties protected by the First Amendment,” lawyers for the plaintiffs wrote in a December court filing.

In a separate filing last month, lawyers for Merrill argued that the account is personal, not an official account of the state office. They said people have other means of contacting him, including his office phone and cellphone and the office Twitter account. He asked the judge for a summary judgment in his favor. Merrill has said he lists his cellphone number on his office business card that he hands out to the public.

The Hill: California law unjustly and unconstitutionally restricts freelance journalists

By Caleb Trotter and Jim Manley

Freelancing is a centuries-old practice. But with a controversial state law set to take effect Jan. 1, 2020, freelance journalism soon may become a thing of the past in California.

Assembly Bill No. 5 (AB5) was enacted in 2019 to create a new three-part test under California law for determining whether someone is an independent contractor or employee…

Fundamentally, it is an inherent injustice when lawmakers enact a terrible law that exempts the law’s loudest critics from its full effects while subjecting the politically powerless, unpopular or unlucky to the full force of the law. Yet that is precisely what AB5 does…

The First Amendment does not allow these types of special burdens on the press. 

It is unconstitutional to subject some freelancers to more extensive regulation than others, based on the content of their speech…

These sorts of arbitrary distinctions are unconstitutional under the First Amendment, as well as the Fourteenth Amendment’s Equal Protection Clause

That’s why the American Society of Journalists and Authors and the National Press Photographers Association, represented free of charge by Pacific Legal Foundation, have teamed up to file a federal lawsuit on behalf of their members challenging AB5’s assault on freelance journalists and photojournalists in California. 

First Amendment

The Atlantic: America’s Most Under-Appreciated Right

By John Inazu

The right of assembly allows people to form and gather in groups of their choosing, and to publicly express their values and beliefs even when they conflict with the views of the majority. In the United States, this right finds an uneven reception: Groups of citizens regularly exercise it, but too often American political and cultural leaders ignore it. In recent years, state and local law officials illegally shut down protests in Ferguson, Missouri; the American Civil Liberties Union failed to support a protester outside a Massachusetts abortion clinic; and the New York Police Department sent undercover agents to infiltrate Muslim student groups. Public universities have deregistered Christian groups that wanted their members to share their beliefs, Republicans have threatened to strip Planned Parenthood of its tax-exempt status, and Democrats have pledged to do the same to conservative religious organizations. And President Donald Trump has attempted to limit political protests against him. Americans across the political spectrum confront restrictions and limitations on their right to assembly.

What went wrong with the protections for America’s public expressions and private groups, and why does it matter? Put simply, American law and practice have lost sight of the importance of protecting difference and dissent. 

Reason (The Volokh Conspiracy): Executive Order on Anti-Semitism May Suppress First-Amendment-Protected Criticism of Israel

By Eugene Volokh

To begin with, imagine that President Bernie Sanders issues the following Executive Order:

In enforcing Title VI, and identifying evidence of discrimination based on race, color, or national origin against Palestinian-Americans, all executive departments shall consider the following examples to the extent that they might be useful as evidence of discriminatory intent:

Denying the Palestinian people their right to self-determination, e.g., by claiming that any Palestinian state would lead to terrorist attacks on Israel.

Applying double standards by requiring of Palestinians a behavior not expected or demanded of any other group that is waging an insurrection against an oppressive government.

Drawing comparisons of contemporary Palestinian policy and attitudes towards Jews to those of the Nazis.

Holding Palestinians collectively responsible for actions of Palestinian de facto governmental organizations.

Justifying the killing or harming of Palestinians in the name of protecting another nation’s security, or on the theory that it is acceptable collateral damage in the other nation’s defensive operations…

To be sure, one can draw distinctions between the examples I give above and the examples in the IHRA Anti-Semitism statement…

But do you think it’s likely that courts will indeed reliably accept such distinctions? Or, if a court were to uphold President Trump’s Executive Order, would that decision be a powerful precedent in favor of the constitutionality of the hypothetical order from President Sanders?

Reason (The Volokh Conspiracy): Washington Court Strikes Down Ban on “Intimidating a Public Servant,”

By Eugene Volokh

From Monday’s Washington Court of Appeals opinion in State v. Dawley:

Although RCW 9A.04.110(28)(j) prohibits true threats because it includes threats to substantially harm a person’s health or safety, the statute also implicates protected speech because it includes threats to a person’s business, financial condition, or personal relationships…. [This] sweeps up a substantial amount of protected speech, including criticism, commentary, and even political hyperbole towards and about public servants … {[including] “an attorney who threatens to run for office against a mayor if she persists with homeless encampment sweeps …. [o]r, a bar investigator who threatens to bring a disciplinary action against an attorney general if she does not cease revealing privileged client communications[]”) … and [“threatening to sue or bring charges against an officer if they do not cease an arrest where the arrestee believes the officer is violating their civil rights[]”)}. Such political speech is at the core of First Amendment protection “no matter how vehement, caustic and sometimes unpleasantly sharp.”…

We disagree with the Stephenson court’s conclusions that the intimidating a public servant statute involves only incidental restrictions and that the statute is narrowly tailored. As discussed above, the statutory definition of “threat” in section RCW 9A.04.110(28)(j) goes beyond true threats and sweeps up a substantial amount of protected speech, including political speech at the core of First Amendment protection. The statute impacts a substantial amount of protected speech and is not narrowly tailored. Thus, the intimidating a public servant statute, when based on RCW 9A.04.110(28)(j), is unconstitutionally overbroad.

Online Speech Platforms

New York Times: Is This Frog a Hate Symbol or Not?

By Brittan Heller

The idea that platforms like Twitter, Facebook and Instagram should remove hate speech is relatively uncontroversial. But doing this isn’t easy. Hate speech is fluid, dependent on cultural context and social meaning…

Few examples illustrate this need better than the long, strange journey of Pepe the Frog, the crudely drawn comic-book amphibian that originated as a mascot for slackers; was repeatedly altered by white supremacists for racist, homophobic and anti-Semitic memes; was classified by the Anti-Defamation League as a hate symbol in 2016; and was repurposed this summer and fall by protesters in Hong Kong to promote a pro-democracy message that had nothing to do with white supremacy or terrorism…

It provides a real-time demonstration of how hate speech can be defanged, based on shifting circumstances, expanded frames of reference and varied common usage…

So what can platforms do? First, they can fill the public information vacuum around hate speech policy…

Second, platforms should consider attaching a periodic expiration date to exclusionary actions…

Third, companies should be responsive to shifting memes, especially in volatile contexts…

If common usage can change a comic strip into a hate symbol, then authentic engagement can similarly transform its meaning. If platforms want to protect their users from hatefulcontent while ensuring that vital political expression isn’t affected, they should make hate speech policies that are informed by this reality.

The Intelligencer: PRO/CON: Can elected officials block individuals from social media? No

By Daniel Ortner, for InsideSources.com

In the social media age, numerous politicians have come under fire for blocking critics from following them on Twitter. The latest is Rep. Alexandria Ocasio-Cortez of New York, who recently settled a lawsuit brought by Dov Hikind, a former elected assemblyman from Brooklyn. Following the settlement, Ocasio-Cortez offered a forthright apology…

You won’t hear me saying this very often, but Ocasio-Cortez is exactly right.

Before she was elected, her account was private, and she could choose to block whomever she wanted. But the standard for elected officials is different.

While an elected official could choose to keep a private social media account genuinely private, only using it to share cute cat pics or family photos, that is not the route that Ocasio-Cortez and most other elected officials have taken. Instead, she uses her “private” Twitter account (@aoc) to communicate with constituents, debate matters of public policy and engage with other elected officials. These tweets are often highly newsworthy…

Once a private citizen takes the step to become a public official, their existing social media accounts become places for public discussion and debate where they can engage with these millions of followers. These social media accounts accordingly function as a type of public forum and are covered by the First Amendment.

The Intelligencer: PRO/CON: Can elected officials block individuals on social media? Yes

By Devin Watkins, for InsideSources.com

Some who have heard that President Trump cannot block people from his Twitter account think other elected officials cannot block people. This is wrong. Almost all elected officials can block people from their Twitter accounts and not violate the First Amendment.

The part that is missed is the first five words of the First Amendment – “Congress shall make no law.” It was designed to limit what laws Congress could create. In doing so it also limits the executive branch as its relevant authority is derived from the laws passed by Congress. The First Amendment thus stops executive officials in their official capacity from limiting speech they don’t like, but doesn’t stop individuals acting in their private capacity.

For official government accounts, for instance @WhiteHouse or @DepofDefense, upon creating that account the government creates a designated public forum in which people are allowed to response to the tweets issued by these official accounts. If the government were to block people from responding to these accounts because the government didn’t like their opinions, it would be engaged in viewpoint discrimination that is prohibited by the First Amendment. However, if Twitter allowed accounts to turn off all responses, this would likely be allowed, as it wouldn’t be discriminating based on viewpoint…

The First Amendment only limits the laws that Congress passes as a body, it does not limit individual members of the legislature. You have no right, for instance, to invade the home of a congressman to protest some issue – that is their property.

The States

WDRB.com: Kentucky proposal targets lawsuits used as ‘weapon’ to silence people

By Jason Riley

After being ordered to turn over public documents to a local blogger in 2017, city officials in Taylorsville did not relent.

Instead they went on the offensive and sued the blogger, Lawrence Trageser, arguing not just that the records should remain secret but that Trageser himself should pay monetary damages for publishing leaked documents about city officials.

Trageser’s attorney, Jeremy Rogers, asked a judge to dismiss the lawsuit, claiming it was part of Taylorsville officials’ pattern of trying to silence Trageser and his blog through frivolous lawsuits they hope he can’t afford to fight.

“The city is trying to intimidate Mr. Trageser into not making so many open records requests and not publishing the records he obtains on his website,” Rogers said in an interview last week.

A judge agreed…

Rogers said Taylorsville’s action is a classic example of a “strategic lawsuit against public participator.” Known in legal circles as “SLAPP,” these lawsuits generally have little legal merit but are filed in hopes of shutting up critics through expensive litigation, First Amendment advocates say.

Kentucky is one of only 20 states without laws that let defendants get these kinds of lawsuits thrown out quickly, saving time and money.

But last month, state Rep. Nima Kulkarni of Louisville pre-filed a bill to change that.

Hartford Courant: Hartford police officer sues blogger Kevin Brookman seeking to unmask anonymous commenters

By David Owens

Hartford police Lt. Vincent Benvenuto has filed a lawsuit in state court against Kevin Brookman, a Hartford resident who runs the popular 

We The People Hartford blog, seeking the identities of people who post comments.

The lawsuit does not seek money damages, but does seek to know who is posting anonymously on Brookman’s blog, said Benvenuto’s lawyer, Patrick Tomasiewicz.

“It’s a pre-suit discovery petition to try to determine what the source is or who the sources are of disparaging and defamatory comments made against Lt. Benvenuto,” Tomasiewicz said.

If Benvenuto is successful in obtaining the identities of commenters, lawsuits against some commenters could follow, he said…

Benvenuto contends in his lawsuit that many of those commenting are Hartford police officers and that department rules and regulations prohibit them from doing so.





Tiffany Donnelly

Tiffany Donnelly


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