Tag: 1st amendment

‘It Feels Like the New McCarthyism’: How the Israel-Hamas War Is Redefining the Limits of Free Speech

War between Israel and Hamas has sparked extensive (mostly) online activism about the conflict — and led to a rash of firings or other workplace discipline from employers concerned about their employees’ views of the conflict.

Artforum’s top editor David Velasco was fired by his publisher, Penske Media, after posting an open letter on the site calling for a cease-fire and suggesting Israel is responsible for the beginning of a genocide; Michael Eisen was removed as editor-in-chief of the science journal eLife after retweeting a satirical article critical of Israel; and Maha Dakhil, a top executive at the Hollywood talent firm Creative Artists Agency, stepped back from leadership roles after reposting an Instagram story that implied Israel was committing genocide. That’s in addition to multiple law students who had job offers revoked after publicly criticizing Israeli actions. The statements range from expressions of sympathy for Palestinians to strident anti-Israel criticisms that seem to minimize Israeli loss of life.

The situation is making Genevieve Lakier, a professor of law at the University of Chicago whose work is focused on the changing meaning of freedom of speech in the United States, very nervous.

“It feels like the new McCarthyism,” said Lakier, who’s one of the leading legal scholars on matters of free speech.

So far, most of the firings appear to have been for expressing pro-Palestinian views — the U.S.-based advocacy organization Palestine Legal reports that they’ve responded to over 260 cases of people’s “livelihoods or careers” being targeted. But the fact that these firings have been due in large part to social media posts and the widespread broadcasting of personal political beliefs means that the trend may not stay on one issue or one side of a dispute for long; Lakier says that we are watching the relationship between free expression and employment shift in real time.

Currently, regulations concerning speech and private employment oscillate wildly from state to state — about half of states have no protections for private employees who express political beliefs, while others have laws that vary in terms of scope. Many of the employment laws that do exist find their roots in the 19th century and are little use in navigating the 21st century workplace. Meanwhile, ideas about protected speech are constantly shifting in the culture: After 9/11, for example, the war on terror brought with it new examinations into what kind of speech promulgates terrorism. More recently, debates over “cancel culture” on campuses and in the workplace have brought up similar questions of what speech is permissible — and when consequences are justified.

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Tennessee to Pay $125,000 to Settle Lawsuit by Man Arrested for Posting Meme Mocking Dead Cop

The state of Tennessee will pay $125,000 to settle a First Amendment lawsuit filed by a man who was arrested and jailed for nearly two weeks for posting a meme mocking a dead police officer.

Joshua Garton, 29, was arrested in January of 2021 and charged with harassment following a Tennessee Bureau of Investigation (TBI) probe into a pseudonymous Facebook post that appeared to show two men urinating on the tombstone of an officer who was shot and killed in 2018. A judge dismissed the charges a month later, and Garton filed a federal civil rights lawsuit alleging malicious prosecution, false arrest, and First Amendment retaliation.

In a settlement agreement filed earlier this month, two TBI agents and 23rd District Attorney General Ray Crouch did not admit any guilt, but they agreed to pay Garton to avoid further litigation costs.

“First Amendment retaliation is illegal, and law enforcement officials who arrest people for offending them will pay heavy consequences,” Daniel Horwitz, Garton’s lead attorney, said in a press release issued Monday. “Misbehaving government officials apologize with money, and Mr. Garton considers more than $10,000 per day that he was illegally incarcerated to be an acceptable apology.”

The TBI, Tennessee’s lead investigative law enforcement agency, launched an investigation into the offending Facebook post at the request of 23rd District Attorney Ray Crouch. Agents visited the officer’s gravesite and quickly surmised that the picture Garton posted was fake. It was in fact a doctored photo of the cover of “Pissing on Your Grave,” a single by The Rites, which originally depicted two men urinating on the tombstone of punk legend GG Allin.

Despite knowing that no one had physically desecrated the grave, the TBI continued its investigation, soliciting tips on Twitter about Garton’s identity. When it finally nabbed Garton, TBI put out a press release, complete with mugshot, announcing his arrest for “manufacturing and disseminating a harassing photograph on social media.”

As Reason wrote when Garton was first arrested, it was unclear how a dead person could be criminally harassed under Tennessee law, which requires that the subject be “frightened, intimidated or emotionally distressed.”

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ACLU: Trump’s gag order in federal case is unconstitutional

For four years during former President Donald Trump’s presidency, the American Civil Liberties Union was one of his biggest courtroom adversaries. Now, the group is taking his side in a high-profile fight over what Trump can say as a criminal defendant.

The ACLU on Wednesday stepped into the battle over Trump’s federal gag order, arguing that U.S. District Judge Tanya Chutkan violated Trump’s First Amendment rights as well as the public’s right to hear him when she issued the order earlier this month. Chutkan is presiding over the criminal case special counsel Jack Smith is pursuing against Trump for trying to overturn the 2020 presidential election results.

“The obvious and unprecedented public interest in this prosecution, as well as the widespread political speech that it has generated and will continue to generate, only underscores the need to apply the most stringent First Amendment standard to a restraint on Defendant’s speech rights,” ACLU attorneys wrote in a friend-of-the-court brief.

The group urged Chutkan to reevaluate her order, calling it both vague and overbroad, with aspects of its meaning “unknown and perhaps unknowable.” One particular uncertainty the ACLU seized on was the meaning of Chutkan’s prohibition on statements that “target” Smith, his prosecutors, court personnel, defense attorneys or witnesses.

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How To Yell ‘Fire’ in a Crowded Theater

At a July hearing of the House Select Subcommittee on the Weaponization of the Federal Government, Republican members focused on social media companies’ moderation of largely conservative viewpoints and accused the Biden administration of working hand-in-hand with tech companies to censor critics.

The First Amendment generally restricts the actions of the government and not purely private decisions of companies. A spirited, and unsettled, debate is emerging nationwide as to the extent of government pressure on platforms that should render a moderation decision a First Amendment violation.

But some members of the Weaponization Subcommittee sought to minimize the concerns about moderation without engaging in a nuanced discussion about government pressure, or “jawboning.”

“I’m an attorney by training, and one of the things I learned very early on in constitutional law is that no right given to the people of the United States is absolute,” Rep. Linda Sánchez (D–Calif.) said when asking a witness about the harms of health misinformation. “And that includes the right to free speech because you do not have the right to shout fire in a crowded theater, because it could produce harm and death of people by being false.”

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US Government & NewsGuard Sued by Consortium News

The United States government and internet “watchdog” NewsGuard Technologies, Inc. were sued today in federal court in Manhattan for First Amendment violations and defamation by news organization Consortium for Independent Journalism, a nonprofit that publishes Consortium News.

Consortium News‘s court filing charges the Pentagon’s Cyber Command, an element of the Intelligence Community, with contracting with NewsGuard to identify, report and abridge the speech of American media organizations that dissent from U.S. official positions on foreign policy. 

In the course of its contract with the Pentagon, NewsGuard is “acting jointly or in concert with the United States to coerce news organizations to alter viewpoints” as to Ukraine, Russia, and Syria, imposing a form of “censorship and repression of views” that differ or dissent from policies of the United States and its allies, the complaint says.  

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Destroying Liberty Through State Protection: The First Amendment

For a state to continue existing in any meaningful way, it must constantly seek to centralize power. Regardless of the original intentions of a state’s founders or the heritage that a state claims, if those running the state simply maintain their existing powers rather than growing them, they will find themselves circumvented. Subdivisions and organic local communities nominally under the state will develop independently from the state’s center of power, and the state’s power will, over a period lacking in centralization, be rendered negligible at best. This necessitates that the state centralize in response to any diverging localities to continue existing.

To sustain its centralization, the state relies on narratives and justifications propagated by its apologists. One of the most popular justifications for the increasing scope of power since the early modern era has been the safeguarding of rights and liberties of the people subjected to the state. Contrary to the promise, the safeguarding of rights and liberties only serves to expand the power of the state, further centralizing its domains and in time inevitably regulating the rights and liberties, eroding the cause itself. This is demonstrated no clearer than in the history of the United States, specifically in the First Amendment.

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California Quietly Repeals Restrictions on Doctors’ COVID-19 Advice

California legislators last month quietly repealed a 2022 law that authorized disciplinary action against doctors, including loss of their medical licenses, when they share COVID-19 “misinformation” with their patients. The law, A.B. 2098, defined that ambiguous and highly contested category of speech as “false information that is contradicted by contemporary scientific consensus contrary to the standard of care.”

Not sure what that means? Neither were the California physicians who challenged the law on First Amendment grounds in two separate lawsuits. They argued that the state’s amorphous definition of prohibited medical advice was bound to have a chilling impact on constitutionally protected speech.

In McDonald v. Lawson, which the Liberty Justice Center (LJC) filed in the U.S. District Court for the Central District of California on October 4, 2022, Judge Fred Slaughter declined to issue a preliminary injunction, concluding in a December 28 order that A.B. 2098 was probably constitutional. Four weeks later in Høeg v. Newsom, which the New Civil Liberties Alliance (NCLA) filed in the U.S. District Court for the Eastern District of California on November 2, Judge William B. Shubb reached the opposite conclusion.

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An Iowa Man Published Body Camera Footage From His Arrest. The Cops Are Suing Him for Defamation.

An Iowa man published body camera footage of his arrest at the hands of two Newton, Iowa, police officers last year. Now, he’s being sued for defamation. 

In August 2022, 19-year-old Tayvin Galanakis was driving in Newton just after midnight when he was pulled over by police officers Nathan Winters and Christopher Wing. 

“How much have you had to drink tonight?” Winters asks Galanakis in body camera footage from the incident.

“None,” Galanakis responds. Winters incredulously asks, “What do you mean none?” Galanakis said, “Great, let’s do a test then.”

The footage then shows Galanakis undergoing a series of field sobriety tests. After Winters claims Galanakis failed them, he administered a Breathalyzer test, which showed that Galanakis had a blood-alcohol level of 0.00. Almost immediately after proving his sobriety, body camera footage shows Winters asking Galanakis about how much marijuana he had consumed.

“Despite previously claiming he could smell alcohol on Tayvin, Officer Winters now claimed he believed Tayvin was intoxicated due to his use of marijuana,” reads a legal complaint later filed by Galanakis. “Tayvin continuously told the officers that he did not use marijuana and that his placement on the William Penn [University] football team renders him unable to use marijuana because of his weekly drug tests.”

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Pennsylvania Police Charge Metaphysical Shop Owner With Practicing Witchcraft and No, We Aren’t Kidding

We have become accustomed in modern times to the term “witch-hunt” being metaphorical but a practicing witch with a retail shop has become an actual target of the police for “suspicions of witchcraft” charges, despite the fact that this is the year 2023. Her crime? Fortune-telling, in the form of tarot readings. The state has a history of persecuting witches though, back to the very founder William Penn who participated in hearings against two women accused of bewitching livestock to not produce and appearing in spectral form. Basically, in the years between 1683 and right now nobody has bothered to ask if this law is useful, so it remains there to be enforced whenever the police feel like some good ol’ fashioned religious persecution.

The shop owner, @thestitchingwitch, received an email from the Borough Manager alerting her that a recent article about her business had alerted the Chief of Police himself to her allegedly illegal activities. Social media became instantly outraged on her behalf because Americans expect to have religious freedom to practice whatever they choose. It’s also very specifically targeted from the perspective of those at all familiar with the Keystone State, famous for having a groundhog predict the future weather every February 2nd. 

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