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free speech

“…will inevitably be used to protect police and others in power, not…the weak.” [Ken White/Popehat on case of Thomas G. Smith, whose conviction, later overturned, for "disorderly conduct" and "unlawful use of a computerized communication system" was based on an obscenity-filled rant against cops on the Facebook page of the Village of Arena, Wisc. police department]

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Ken at Popehat has the story on a court’s ruling for fees and costs in Ergun Caner v. Jonathan Autry, filed by a religious leader who had come under criticism for less-than-forthright descriptions of his own past. “The court ruled that Caner (1) pursued the case after Autry took the videos down, (2) demanded, as a condition of settlement, that Autry’s young children sign a non-disparagement agreement, (3) delayed the case, (4) failed to seek discovery, opposed the motion to dismiss on the grounds that he needed to take discovery, but could not articulate what discovery he needed, (5) contradicted himself, (6) made unreasonable legal arguments without any support (like the ‘you must be qualified to criticize’ argument), and most importantly (7) filed the case to silence criticism.” Under the prevailing “American Rule” on fees it’s extremely hard for the victim of a meritless suit to recover attorney’s costs, but this one was extreme enough to be an exception.

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Free speech roundup

by Walter Olson on July 7, 2014

  • Why are PEN and Index on Censorship luminaries supporting Hacked Off press control campaign in UK? [Brendan O'Neill]
  • Religious offense, hate speech and blasphemy: meet India’s self-appointed “Ban Man” [WaPo]
  • “Like a free press? Thank corporate personhood.” [Dylan Matthews, Vox]
  • Participant’s memoir: “spontaneous” mob violence against Danish cartoons was anything but [Lars Hvidberg, Freedom House]
  • Floyd Abrams testifies at Senate hearing on proposed constitutional amendments to curtail First Amendment for purposes of limiting campaign speech [Volokh]
  • Ruling: Pennsylvania high court judge can proceed with libel suit against Philadelphia newspapers [Philadelphia mag, Inquirer]
  • Missouri gun activist ordered to remove material from internet about police encounter wins settlement [Volokh, earlier]

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Too close to the regulation of speech content, too chancy in its impact on the rule of law [Jonathan Turley, Washington Post]:

Many of us recoil at the reference to skin color as a team identity. The problem is that the Redskins case is just the latest example of a federal agency going beyond its brief to inappropriately insert itself in social or political debates. …

The Supreme Court affirmed in 1983 that the IRS could yank tax exemption whenever it decided that an organization is behaving “contrary to established public policy” — whatever that public policy may be. … There is an obvious problem when the sanctioning of free exercise of religion or speech becomes a matter of discretionary agency action. And it goes beyond trademarks and taxes.

Earlier here and here.

Less than a mile before a police DUI checkpoint in Parma, Ohio, resident Doug Odolecki held a sign reading “Check point ahead turn now.” Police gave him a ticket and confiscated the sign: “Odolecki was issued a ticket and forced to hand over his sign. “Parma Police tell us they can’t get into the details of the pending case but a Sergeant told me that Odolecki was obstructing officers ability to do their job. They also said that the issue was with the part of the sign that said ‘turn now.’” [WOIO via AOL]

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The Supreme Court unanimously ruled this morning in Susan B. Anthony List v. Driehaus that a lower court challenge can proceed against Ohio’s law purporting to ban untruthful campaign speech. [decision, SCOTUSBlog, earlier Overlawyered coverage] The ruling was widely expected: “not a single amicus brief was filed on behalf of the state of Ohio, and even liberal groups conceded that allowing the state to arbitrate truth or falsity in political campaigns was troubling. During oral argument, the Justices seemed profoundly skeptical of the law’s underlying constitutionality.” [MSNBC]

The Court did not decide the First Amendment merits. Its ruling instead turns on the cluster of issues relating to standing: was there injury in fact from the law sufficient to support a challenge even though the original complaint had been dropped? While the two wings of the Court often divide on standing, they united in taking an expansive view this time. Here and there Justice Thomas’s opinion for the 9-0 Court does brush up against the underlying First Amendment problem of the chilling of speech, which will now move front and center as the lower court again takes up the case. A passage of particular interest from pp. 15-16 (footnotes omitted):

As the Ohio Attorney General himself notes, the “practical effect” of the Ohio false statement scheme is “to permit a private complainant . . . to gain a campaign advantage without ever having to prove the falsity of a statement.” “[C]omplainants may time their submissions to achieve maximum disruption of their political opponents while calculating that an ultimate decision on the merits will be deferred until after the relevant election.” Moreover, the target of a false statement complaint may be forced to divert significant time and resources to hire legal counsel and respond to discovery requests in the crucial days leading up to an election.

Here’s the entertaining and hilarious amicus brief (what a concept) filed by my Cato colleagues Trevor Burrus, Ilya Shapiro, and Gabriel Latner on behalf of humorist and Cato fellow P.J. O’Rourke (who explains his involvement; more from Ilya and Trevor). And Ilya has a reaction to the opinion at Cato at Liberty (“Chilling speech is no laughing matter… today was a banner morning for free speech and judicial engagement.”)

Free speech roundup

by Walter Olson on June 6, 2014

  • “Tenured Wisconsin Prof Sues Former Student Over Online Comments on Her Teaching” [Caron/TaxProf]
  • Recent Paul Alan Levy profile: “The web bully’s worst enemy” [Washingtonian] HHS signals it won’t pursue case against blogger [Levy, earlier] Arizona Yelp case angle [Scott Greenfield]
  • Get your ideas out of town: threats against hotel “have escalated to include death threats, physical violence against our staff and other guests” [Deadline Detroit; "men's rights movement" conference]
  • UK police investigate Baptist church after “burn in Hell” sign reported as “hate incident” [Secular Right]
  • Please don’t give him ideas: “Should it be against the law to criticize Harry Reid?” [Trevor Burrus, Boston Herald]
  • “MAP: The places where blasphemy could get you punished” [Washington Post]
  • Only three states – Wisconsin, Michigan, and Kansas — have laws inviting vengeful secret John Doe probes [Ilya Shapiro, earlier]

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ReportSpeechPoster The Kansas Board of Regents has adopted a broad new policy barring employees, including faculty, from “improper use of social media,” which include content that “impairs … harmony among co-workers” or is “contrary to the best interests of the university,” with some narrow exceptions such as “academic instruction within the instructor’s area of expertise (emphasis added)” The Foundation for Individual Rights in Education, among other groups, have argued that the new policy “authorizes punishment for constitutionally protected speech, and … leaves professors unsure of what speech a university might sanction them for,” the result being a chilling effect on both free speech and academic freedom [FIRE, NPR]. The policy was adopted at the behest of critics of one professor’s controversial anti-gun tweet, and Charles C.W. Cooke at NRO says conservative regents should have been among the first to realize that professor-muzzling is not the way to respond.

KSU’s Dan Warner did a series of posters (Creative Commons permissions) skewering the new policy, including the one above; more on that here.

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The syndicated columnist praises Judge Rudolph Randa’s

remarkably emphatic ruling against an especially egregious example of Democrats using government power to suppress conservatives’ political speech.

Wisconsin’s sordid episode began, appropriately, with a sound of tyranny — fists pounding on the doors of private citizens in pre-dawn raids. While sheriff’s deputies used floodlights to illuminate the citizens’ homes, armed raiders seized documents, computers, cellphones and other devices.

Earlier here, here, etc.

And two Republican Wisconsin lawmakers are calling for a thorough review into the activities of the state Government Accountability Board, which “oversees Wisconsin campaign and election laws,” and whose contracted investigator, Dean Nickel, is reported to have played a role in setting in motion the process which resulted in the investigation of dozens of conservative organizations. [M.D. Kittle, Wisconsin Reporter/Watchdog.org] More: Milwaukee Federalist Society chapter roundup of coverage.

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A federal judge has quashed the stunningly abusive “John Doe” proceedings that had resulted in midnight raids on the homes of leading conservative activists across the state. I’ve got more in a new Cato post; fuller coverage at the Milwaukee Journal Sentinel, Watchdog.org (and series), and the decision itself is here. Earlier coverage here, here, and here. I conclude:

The citizens of Wisconsin must now demand a full accounting of how these raids could have happened. They should also insist on changes in state law, in particular the “John Doe” law, aimed at ensuring that nothing like them ever happens again.

Update: Seventh Circuit panel stays ruling pending appeal.

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Free speech roundup

by Walter Olson on May 7, 2014

  • How the Progressive movement changed thinking on free speech [David Bernstein]
  • More “bullying” legislation: “A crime for teenagers to excoriate their unfaithful or abusive lovers on Facebook?” [Eugene Volokh on pending Colorado bill] “Crime to spread rumors about under-25-year-olds, to send ‘hurtful, rude and mean messages’ about them, or to make fun of them online?” [same; pending ordinance in Carson, Calif.]
  • “First Amendment protects Internet search results: N.Y. judge” [Alison Frankel, Reuters]
  • Wisconsin + other states too: “Last week, the enlightened citizens of Shorewood, Whitefish Bay and several other communities voted to repeal the freedom of the press and of the free speech rights of organizations ranging from the NAACP to the National Rifle Association.” [Rick Esenberg, Shark and Shepherd]
  • NYC comptroller Scott Stringer, posing in investor hat, demands that Texas firm Clayton Williams Energy Inc. explain its political giving [AP]
  • Look before you leap: some proposals billed as criminalizing revenge porn appear to criminalize far more than that [Scott Greenfield]
  • Consumer secretly videotapes allegedly unneeded repairs at Missouri Chevrolet dealership, litigation ensues [Popehat]

It’s one of those procedural yawns that makes a huge difference in practice, notes Ken at Popehat, focusing on Michael Mann’s defamation suit against Mark Steyn, National Review and others. Earlier here, here, here, etc.

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“Not long after learning about the parody Twitter account @Peoriamayor, the city’s real mayor, Jim Ardis, told police he wanted to find out who was publishing sometimes vulgar messages there, according to a search warrant filed Thursday. … Two judges signed off on warrants to get information from Twitter and Comcast. Another judge approved a Tuesday afternoon raid.” [Peoria Journal-Star via Scott Shackford/Reason; Justin Glawe, Vice]

P.S. Related from Starkville, Mississippi last year.

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It’s being led by our perennial-favorite state-AG mentionee (D-Miss.)

Meanwhile: Houston judge reported to have issued what law professor Josh Blackman calls “blatantly unconstitutional” gag order requiring Google not only to remove all records of certain allegations against an individual, but also to refrain from discussing the gag order itself [Houston Chronicle]

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“United Nations agencies are not constrained by the First Amendment,” which means the impending change is not happy news for the cause of free speech, notes Patrick at Popehat. More: The Economist.

The bill originated in a desire to control men’s accosting of women on the street, but according to Eugene Volokh it sweeps much more broadly than that: it exposes speakers to imprisonment even for written communication, not necessarily individually targeted, that is “evidently intended to express contempt for a person because of his gender, or that regards them as inferior, or reduces them to their sexual dimension, and which has the effect of violating someone’s dignity.” [Rik Torfs and Jogchum Vrielink via Volokh] Torfs and Vrielink point out a perhaps unexpected corollary, which could also restrict speech:

A logical side effect of making sexism illegal is that the simple act of accusing someone of being sexist, may amount to criminal defamation. Under Belgian law, as in many other legal systems, it is an offense to accuse someone of having committed crimes that they were not actually convicted for. Law is often a double-edged sword.

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Eighteen-year-old guys have been known to say stupid things online, especially when engaged in displays of flaming and one-upmanship. Criminal-sentence kind of stupid? “I guess what you post on Facebook matters,” says Justin Carter of San Antonio, jailed after an all-caps flourish about how he was ready to “shoot up a kindergarten.” [Dallas Observer]

P.S. A related Missouri story from last year.

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Once again, a law professor has stepped up to inform us that we need to join much of Europe in attaching legal penalties to hurtful speech. This time one patient refutation comes from Michael Moynihan [Daily Beast] The idea is about as fresh and new as sleeve garters, notes Jonathan Rauch [Volokh/WaPo] Further rebuttal from Ken at Popehat and Scott Greenfield.

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