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free speech

His new column for Bloomberg concludes:

One danger is that speech that should be allowed will effectively be banned by the federal government. Another is that even when allegations concern things that should be banned, the process will be unfair to accused students and professors who are innocent of them.

No one doubts that some victims of genuine harassment — and worse — get treated badly by university administrators. And sometimes “he said, she said” conflicts just don’t generate enough evidence to determine who’s in the right, and real misconduct can therefore go unpunished. But there are also false accusations, misinterpretations, ambiguities. Whatever the solution to the problem is, the system that President Barack Obama’s administration is creating isn’t it.

Recommended. (Earlier here, etc.)

“Attention, liberals: The ACLU wouldn’t be able to sue the NSA if it weren’t for Citizens United.” [Wendy Kaminer, The Atlantic]

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Friends of liberty? Not exactly:

Sen. Lindsey Graham would propose censoring Americans’ “snail” mail if he thought it would help protect national security, the South Carolina Republican said Tuesday. But for now, he says he doesn’t think it’s necessary.

“For now.” Nice. And Rep. Peter King (R-N.Y.) wants to prosecute reporters who publish leaked material. Meanwhile, say what you will about Glenn Greenwald, he’s willing to call out by name some “principle-free, hackish, and opportunistic” media lefties whose views on surveillance and civil liberties have proved malleable.

P.S., a reminder: Rep. Peter King made his name as an apologist for unspeakable IRA terrorism [Riggs]

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Following a widespread outcry, the Education Department’s Office of Civil Rights appears to be backtracking a bit in its very ambitious “blueprint” which colleges and universities must follow in the name of combating sexual assault. In particular, it now says it does not intend to require universities to punish speech and other conduct that is not objectively offensive, or that is too trivial or transitory to create a “hostile environment” as defined by court precedent. However, it does continue to insist that such behavior is “harassment” and that schools must make it “reportable,” that is, be willing to open grievance and complaint processes to document it. This is really no more acceptable than its first position, for reasons outlined by the Foundation for Individual Rights in Education (FIRE), which has been following the issue. [FIRE, more, Robby Soave]

I’ve got an article on the controversy due to appear in a forthcoming issue of Commentary. Earlier here, here, and here.

More: Rob Jenkins in Chronicle of Higher Education on “Purging My Syllabus.”

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Life without a First Amendment: “Eleven people across UK arrested for making ‘racist or anti-religious’ comments on Facebook and Twitter about British soldier’s death” [Daily Mail (with notice: "Sorry, we are unable to accept comments for legal reasons"), more, The Lincolnite; Eugene Volokh (quoting British police: "People should stop and think about what they say on social media before making statements as the consequences could be serious")]

On a happier note, with regard to countering objectionable speech, the BBC reports that when members of the nativist English Defence League organized a gathering outside a mosque in the city of York, worshipers brought out tea and cookies and invited them inside for a chat.

Data point 2 about free speech in Britain: 11 lawyers have signed a letter in the Guardian “threatening supermarkets with immediate legal action” unless they remove from sale “lad’s mags,” men’s magazines that are anathema to feminist campaigners. “Displaying these publications in workplaces, and/or requiring staff to handle them in the course of their jobs, may amount to sex discrimination and sexual harassment contrary to the Equality Act 2010,” it says. “Similarly, exposing customers to these publications in the process of displaying them is capable of giving rise to breaches of the Equality Act.” [Guardian; Toby Young, Telegraph; ITV] Young points out that reported incidents of domestic violence have fallen quite sharply since lad’s mags became popular in the 1990s, making nonsense of claims that the publications somehow promote male aggression. For the campaigners, writes Toby Young, “this is simply about preventing men – predominantly working-class men – from buying magazines that they consider vulgar and in poor taste.”

More in comments from Bill Poser: “Here’s another: police in Wales ordered a shop-keeper to remove T-shirts saying ‘Obey our laws, respect our beliefs, or go back to your own country.’”

And from the “It Can’t Happen Here” department: “Justice Department to Hold Seminar Warning Against the Legal ‘Consequences’ of Anti-Muslim Speech.” Let’s hope there’s some reporting error here.

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George Will:

When the Education Department was created in 1980 (Jimmy Carter’s payment to the National Education Association, the largest teachers union, for its first presidential endorsement), conservatives warned that it would be used for ideological aggression to break state and local schools to the federal saddle. … Most of academia’s leadership is too invertebrate and too soggy with political correctness to fight the OCR-DOJ mischief. But someone will. And it is so patently unconstitutional that it will be swiftly swatted down by the courts.

Hans Bader in the Chronicle of Higher Education:

In a guide to help colleges comply with Title IX, the Education Department has stated that “conduct of a sexual nature” includes many kinds of speech, such as “circulating or showing e-mails or Web sites of a sexual nature,” “displaying or distributing sexually explicit drawings, pictures, or written materials,” and “telling sexual or dirty jokes.” …

The government says the narrower definition of harassment laid down by the courts [i.e., liability only for failing to act against conduct that is "severe" and objectively offensive] applies only in sexual-harassment lawsuits, not in its Title IX investigations or the standard colleges must apply to their students or faculty. Colleges must declare “any unwelcome conduct” to be a reportable offense.

William Creeley, FIRE:

Unlike the 2001 Guidance [from OCR], the “blueprint” requires the broad definition to be adopted verbatim as university policy. …

Here’s why mandating this new distinction [between "hostile environment" and sexual harassment more generally] is important — and why it harms student and faculty rights. By separating “sexual harassment” from “hostile environment” harassment, OCR has also separated “sexual harassment” from the set of evaluative factors it uses to determine whether a hostile environment has been created. These factors include whether the conduct affected a student’s education, whether the conduct was part of a pattern of behavior, the identity of and relationship between the individuals involved, the context of the conduct, and more. By reviewing these and other factors to determine whether conduct created a hostile environment—and was thus sexual harassment—schools were able to separate truly harassing conduct from merely offensive or unwanted speech.

Earlier here and here.

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His latest. The Reason editor-in-chief has consistently focused on the Benghazi angle that should most concern libertarians, namely the Administration’s scapegoating of speech (I think I’ll go ahead and coin the term “speech-goating.”) Here he focuses on a David Brooks column seemingly intended as a defense of the process that led to the famed Benghazi talking points, but which winds up putting them in a bad light indeed:

…in the absence of a clear narrative, the talking points gravitated toward the least politically problematic story, blaming the anti-Muslim video and the Cairo demonstrations.

Why was it deemed “the least politically problematic” course to spread an untruth, already widely known to be such by many senior officials, that sought to focus public and world anger on private speech, and by implication on our First Amendment protection of free speech about religion?

One should note carefully Ken White’s powerful argument at Popehat that the arrest of filmmaker Nakoula Basseley Nakoula wasn’t in fact legally irregular because Nakoula had clearly violated the terms of his supervised release and revocation of his release was par for the course under the circumstances.

Even so, the questions remain. The Administration sent Susan Rice out to five talk shows on the weekend of the attacks, where she pressed the line that outrage about the video fueled the attack. Brooks makes the case that interagency rivalries and secrecy got in the way of telling a fuller story. Maybe so. But why should American free speech be left as the “least politically problematic” thing to blame after a terrorist attack?

Free speech roundup

by Walter Olson on May 1, 2013

  • More on Mayor Michael Nutter’s investigation of Philadelphia magazine for sin of committing unwelcome journalism [Mark Hemingway, Weekly Standard, earlier]
  • Standing on principle: liberal speech scholars defend right to use “gruesome images” in abortion protests [Volokh]
  • GreenTech Automotive files libel suit against Franklin Center’s Watchdog.org [Jim Geraghty]
  • “Dear Mr. Sahota… Your pompous yet feckless bluster distinguishes you.” [Ken at Popehat, Lesley Kemp case]
  • “Plaintiff Who Keeps Suing Search Engines Still Not Clear on Streisand Effect” [Lowering the Bar, earlier here, etc.]
  • “Government Can’t Condition Federal Contracts on Giving Up Constitutional Rights” [Ilya Shapiro on Agency for International Development v. Alliance for Open Society International; SCOTUSBlog] Speaking of compulsory sex positions, the problems with an Ohio legislative proposal on sex-ed are many, among them that government isn’t constitutionally free to bar hiring teachers of whose views it disapproves [Chris Geidner, BuzzFeed]
  • Partial fee award to attorneys Paul Alan Levy and Cathy Gellis in case where attorney Charles Carreon menaced blogger [Michael Masnick/TechDirt, Paul Alan Levy, Popehat, earlier here and here]

They “propose giving Congress unchecked new power over spending on political speech” [John Samples, Cato Policy Analysis] More on Citizens United here, here, here (Democrats’ platform), here, here (Michael Kinsley: case was “correctly decided”), here, here, here (Wendy Kaminer), here, here, here, here (unions as beneficiaries), even more, and on the “corporations aren’t people” sound bite and related rights-abolishing proposals, here, here, here, and here.

P.S. Self-recommending: forthcoming Michael McConnell in YLJ on Citizens United.

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Free speech roundup

by Walter Olson on March 27, 2013

  • Alarms re: proposed new UK code to regulate press, both print and electronic [John O'Sullivan, Andrew Stuttaford] “Why we won’t sign the press-regulation Charter” [The Spectator: Nick Cohen]
  • Also from the UK: “Police investigate Conservative MP Tim Loughton for calling man ‘unkempt’” [Telegraph]
  • “Teenager arrested for tweeting rap lyric containing the word ‘homicide.’” [Ann Althouse]
  • “CNN Argues that Requiring Captioning of Web Videos Would Violate Free Speech” [Disability Law, Courthouse News; more on new web accessibility push]
  • Administrator at Yeshiva U. hires lawyer to get posts removed from prominent law blogs, Streisand Effect ensues [Scott Greenfield]
  • Philly Mayor Michael Nutter sends letter to city human relations commission demanding investigation of Philadelphia Magazine for publishing article he dislikes [Ken at Popehat, Hans Bader]

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Because the important thing is to show that lawmakers have their hearts in the right place, which means not lingering over doubts about the constitutionality of the restrictions on speech or the implied rebuke to double-jeopardy norms or the nature of the delegation of federal power to tribal courts. Who cares about that stuff anyway when there’s a message to be sent about being tough on domestic violence?

P.S. In case you wondered, the U.N. is in favor.

“Wayne County, Mich. Judge Kathleen MacDonald slapped a Dearborn man with an injunction ordering him to take down his Facebook comments critical of a class-action settlement of a case against McDonald’s for selling non-halal meat.” [Daniel Fisher, Forbes; Paul Alan Levy, Public Citizen; Ted Frank, PoL] More: Blue Dog Thoughts.

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Free speech roundup

by Walter Olson on February 19, 2013

  • Setting up as a freelance investigative writer? Getting insurance even for your office rental can be tricky [Romenesko]
  • Among many curious Virginia blue laws: “‘any citizen … may institute’ judicial review of any book.” [Barton Hinkle]
  • Whether Rupert Murdoch can buy the L.A. Times shouldn’t depend on which party holds power in Washington [Stoll, Future of Capitalism]
  • “Publisher launches $3,000,000 suit against academic librarian who criticized its books” [BoingBoing, Edwin Mellen Press] “Alternative” cancer treatment entrepreneur threatens to sue dissatisfied patient [Jardin, BB]
  • EU: Let’s regulate journalists [Morrissey] Russia law against pro-gay “propaganda” is part of wider speech crackdown [AP]
  • Twitter’s relatively laissez-faire speech policy has advanced its success [Greg Beato]
  • “Free Speech on Campus Today” [Cato podcast with FIRE's Greg Lukianoff]
  • Forbids writing about him ever again: “Judge says US-based reporter defamed Haiti’s PM” [AP/Gainesville Sun]

Free speech roundup

by Walter Olson on January 18, 2013

  • Spirit Airlines v. DOT: “Government Can’t Silence Speech Criticizing Its Actions, Even If That Speech Is ‘Commercial’” [Ilya Shapiro/Sophie Cole, Cato]
  • Virginia Supreme Court speedily rejects prior restraint against Yelp review [Paul Alan Levy, Volokh, earlier]
  • Why schools crack down on speech [Hans Bader]
  • “Mann v. Steyn — CEI SLAPPs Back” [Adler, earlier]
  • Hellhole jurisdictions? “The seven countries where the state can execute you for being atheist” [Max Fisher, WaPo] “Egyptian court sentences Christian family to 15 years for converting from Islam” [FoxNews] Pakistan mob burns man accused of desecrating Koran alive [Reuters] And see, via Volokh, blasphemy penalties from Tunisia (seven years for posting Mohammed cartoons) and Egypt.
  • “Congressman-Elect Kerry Bentivolio Sued Me For Calling Him a ‘Deadbeat Santa’” [Mike Betzold, Deadline Detroit]
  • UK government agrees to rollback of law criminalizing insults [Telegraph, Independent]

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With a new law, Vernon County, Wisconsin has put itself at the forefront of attempts to regulate disparaging email, online chat, blogs, Facebook posts (specifically cited by one advocate at a hearing), and Twitter. The law seems to be a product of the media hype over “cyberbullying.” [Popehat, Volokh]

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Free speech roundup

by Walter Olson on December 20, 2012

  • Did U.K. high official use pending Leveson press inquiry to browbeat newspaper? [Telegraph via Volokh]
  • Canadian blogger sued over speech by Richard Warman has a legal defense fund [Blazing Cat Fur via Instapundit, 2010 Mark Steyn]
  • “Introduction To Irony: Or, How To Take A Joke 10″ [Wendy Kaminer, WBUR]
  • Meat industry ex-employee sues blogger who led “pink slime” campaign [Popehat, Lunch Tray/Bettina Siegel]
  • 1958 ordinance still on books in Ormond Beach, Fla. prohibits distribution of publications “belittling the traditional American institutions or folkways” [Volokh]
  • “We have to concede” a rhesus monkey could not beat Mme. Taitz in court battle [Lowering the Bar]
  • Common Cause vs. First-Amendment-protected political speech, part umpteen [Hans Bader, CEI]
  • UK: Jack Shafer on the trouble with the Leveson press inquiry [Reuters] Journos already cowed by hostile press laws: “Even foreign dictatorships know how to frighten Fleet Street.” [Spectator] “Even people who RT’d libelous allusions to [him] on Twitter could be sued. … surreal” [BoingBoing, Popehat]
  • Calling people names in Hanna, Alberta, or cheering on those who do, can now expose you to penalties under anti-bullying ordinance [Sun News]
  • “Britain’s High-Tech Thought Police” [Brendan O'Neill] Related, Rowan Atkinson [Telegraph]
  • Language muscle in Quebec: “After series of fire-bombings, Second Cup coffee shops added the words ‘les cafes’ to signs” [Yahoo Canada]
  • Blasphemy law around the world: Vexed with their speech, Egyptian court sentences to death in absentia various persons living in US and Canada [Volokh] “Turkish TV channel fined for ‘The Simpsons’ blasphemy episode” [Telegraph] After using Facebook to criticize politico’s funeral, women in India arrested for “hurting religious sentiments” [AFP] Indonesian man jailed, attacked by mob for writing “God does not exist” on Facebook group [Andrew Stuttaford, Secular Right] “A year of blasphemy” [Popehat]
  • Protesters block student access to “men’s-rights” speech at U. Toronto [Joshua Kennon via @amyalkon]

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Taking the heat off?

by Walter Olson on December 6, 2012

A vaguely worded injunction could chill criticism of the owner of the Miami Heat [Popehat]