Stories of the week
VICTORY: New Jersey drops complaint against school board member targeted for asking constituents about taxes (FIRE)
“New Jersey did the right thing this time, and we are grateful Gail’s case brought more attention to the First Amendment rights of school board members,” said FIRE Senior Attorney Greg Greubel. “But this attack on Gail’s free speech rights never should’ve happened in the first place. FIRE will be paying close attention to what New Jersey does next. If we get wind of another ethics complaint being used as censorship, we are not afraid to sue again.”
Douglass’ opposition to the heckler’s veto did not demand reverential silence from the audience. In 1862, Douglass gave a speech that viciously attacked both President Lincoln’s and General McClellan’s war efforts. A member of the audience got so vocally upset at Douglass’ remarks that he was about to be expelled and “handled roughly,” yet Douglass intervened and insisted that his critic be “heard patiently by the audience.” In “Self-Made Men,” Douglass observed that speakers could be as indebted “to the men who hiss, as to those who applaud.” Hostility could sharpen arguments and amplify a speaker’s message. Read alongside his denunciations of suppression, this suggests a distinction between opposition that leaves room for an answer and disruption that prevents a hearing altogether. Once again, Douglass resisted Milton’s Curse — free speech for me, but not for thee — while retaining the moral high ground and conceding nothing of his powerful argument.
Flock Safety sells surveillance cameras that track the public’s movements. But apparently, the company doesn’t want you to know how extensive its surveillance apparatus is or to hear criticism about it — and the company will engage in intimidation to keep it that way.
This week in Expression
Restoring Title IX kangaroo courts is no solution to the ‘Cornell 7’ sexual assault controversy by Robert Shibley
The need for basic due process protections should be as nonpartisan an issue as one can imagine, given that nobody, Democrat, Republican, or otherwise, would choose to be subjected to a kangaroo court should they be the ones accused.
After a congressman challenged a student reporter’s right to record, here’s what journalists should know by Marie McMullan
A UK teen mocked a local politician. Then the police showed up by Sarah McLaughlin
FIRE in the press!
In an age where Americans increasingly get their news from social media, it may be that public radio escaped lawmakers’ notice when enacting a statute that puts words in the mouths of government employees. But whether intended or not, the consequence is that an institution historically — and constitutionally — relied upon to hold the government to account will have a harder time retaining the public’s trust that it will be up to the task if forced to follow the State’s marching orders.
London Calling: Ronnie’s First Amendment Roundup
D.C. federal court preliminarily enjoins revocation of White House press passes as likely violative of the First and Fifth Amendments
[with thanks to guest author FIRE Chief Supervising Attorney Conor Fitzpatrick]
The U.S. District Court for the District of Columbia has converted a temporary restraining order it issued recently against revocation of White House press passes into a preliminary injunction, holding CNN, MS Now, and Politico are likely to succeed on the merits of their claims that the revocations violated their First and Fifth Amendment rights.
Relying on decisions by the U.S. Court of Appeals for D.C. in Sherrill v. Knight and Karem v. Trump from 1977 and 2020, respectively, as binding on the point that “White House reporters have protectable due process rights in their hard passes,” the court held the government did not give the media companies fair pre-deprivation notice of what conduct could subject them to having the passes revoked. Putting a finer point on it, the court stated: “social media posts and statements expressing … that Plaintiffs’ reporting is inaccurate or biased … hardly amount to ‘formally articulated and published’ ‘explicit and meaningful standards’ that would satisfy due process” under D.C. Circuit precedent.
Though the court’s TRO had solely addressed plaintiffs’ due process claim, its preliminary injunction order additionally held they were likely to succeed on their First Amendment claims. The court held the revocations amounted to unlawful viewpoint discrimination and retaliation, citing social media efforts to justify them as warranted for assertedly unfavorable media coverage by the plaintiff media organizations. (This expansion of the ruling may well reflect the request by plaintiffs’ counsel at the preliminary injunction hearing for the court to rule on all claims, so the D.C. Circuit can address all potential bases for relief in the event of an appeal—which, in the few days between the decision and this post, has already been lodged.)
The court rejected government attempts to justify the revocations based on “national security,” holding that the statements explicitly tying the revocations to a belief that the organizations engaged in unfair coverage “suggest[] that ‘national security’ was merely a post-hoc justification for the decision” issued by government attorneys in court. As such, the court held the media organizations satisfied the remaining preliminary injunction factors insofar as deprivation of First Amendment liberties constitutes irreparable harm, the public at large has an interest in assuring individual newsmen are not arbitrarily excluded from sources of information, and there was no countervailing government interest given “there is practically nothing national security-related in the record.”
International free speech stories of the week
Sally Rooney says she can no longer sell books in UK due to Palestine Action support (The Guardian) by Haroon Siddique & George Francis Lee
The decree establishes that digital platforms must, by design, restrict exposure to content involving violence, harassment or sexual abuse, as well as immediately remove any risky material from the profiles of minors.
Sheinbaum said on Wednesday that the government would back legislation to penalise companies that fail to implement the decree.
“If no progress is made, it would become a law,” she told a news conference on Tuesday.
“The goal is for digital platforms to take on some of the responsibility and refrain from disseminating, promoting, or spreading content related to this type of information — including criminal acts or violent behaviour,” Sheinbaum had said earlier when she indicated she would introduce the decree.
Sneak peak of the week
Next week ERI will begin publishing The Academic Filibuster, a new series on higher ed reform which I was inspired to write after reading the Yale Report earlier this year. It’s taken me on a long and winding road, and preoccupied me on what should have been a vacation this past summer, but it contains ideas for higher ed reform which I’ve been thinking about for a long time.
We’ll most likely be paywalling all or parts of it, at least initially, and I hope you won’t mind. There are a couple of reasons for this. First, I see it as an opportunity to raise money for FIRE, since all subscription revenue goes directly to supporting FIRE’s work. Second, rather than having to buy a new book, you’ll be able to read the whole thing online as it’s published, and, importantly, offer your feedback while it’s still in draft form. I’m genuinely interested in hearing what readers think, including what they think I’ve gotten wrong!
So if this sounds like something you might be interested in and you’re not already a paid subscriber, now is the time to sign up! I hope many more of you will join us, help shape this project, and support the work of the best little free speech group in the business.