Reminder: There is no hate speech exception to the First Amendment

Short important article from 2017, before the Washington Post fell off the rails on speech issues: "There is no ‘hate speech’ exception to the First Amendment."

An Excerpt:

From today’s opinion by Justice Samuel Alito (for four justices) in Matal v. Tam, the “Slants” case:

[The idea that the government may restrict] speech expressing ideas that offend … strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” Justice Anthony Kennedy wrote separately, also for four justices, but on this point the opinions agreed:

A law found to discriminate based on viewpoint is an “egregious form of content discrimination,” which is “presumptively unconstitutional.” … A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.

And the justices made clear that speech that some view as racially offensive is protected not just against outright prohibition but also against lesser restrictions. In Matal, the government refused to register “The Slants” as a band’s trademark, on the ground that the name might be seen as demeaning to Asian Americans.

This article was written by UCLA law professor Eugene Volokh, who I had the chance to meet at a recent FIRE conference. Volokh is a gifted speaker with an interesting history, which you can read on Wikipedia. Here's a tidbit: He graduated from UCLA at the age of 15.

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Kafkaesque Example of a College Title IX Prosecution Under the Obama Rules

I did not vote for Trump and I find him generally deplorable. However, the new Title IX college sexual harassment rules implemented by Trump and Betsy DeVos are well supported by the case law and are an enormous improvement over the version of the rules implemented by Obama.

What could possibly go wrong under the Obama version of the rules? Listen to this horrific miscarriage of justice described by attorney Lara Bazelon, speaking with Glenn Loury.

The proposed new Title IX rules by Joe Biden will be a catastrophically bad miscarriage of justice. FIRE (The Foundation for Individual Rights and Expression) points out the many problems with Biden's proposed rules:

Rejecting the definition of student-on-student harassment set by the Supreme Court in Davis v. Monroe County Board of Education.

Requiring institutions to police speech and sexuality worldwide, not just in programs and activities on and around campus.

Requiring institutions to issue gag orders on the parties and their advocates that prevent them from disclosing “information and evidence obtained solely through the sex-based harassment grievance procedures,” meaning institutions of higher education are now required to enforce prior restraint and content-based restrictions on students’ speech or the speech of those advocating on their behalf.

Revoking the current requirement that accused students must be offered an opportunity to have a live hearing to contest the allegations against them.

Eliminating the right to a live hearing to contest claims, and thus also eliminating the right to cross-examination.

Allowing a single investigator to both investigate and adjudicate complaints, dramatically increasing the odds that one person’s bias, subconscious or otherwise, permeates the process. Such a system increases the likelihood of error, thus increasing the likelihood that accused students will be unfairly deprived of their access to educational opportunities or benefits.

If finalized, these and many other proposed provisions will mark a new, and unfortunately familiar, era of Title IX hearings in which institutions of higher education fail to protect the First Amendment and due process rights of students and faculty, likely resulting in costly litigation for institutions to ensure these basic protections are met.

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Statement by FIRE on Attempts by Venmo and PayPal to Deny Financial Services based on the Speech and Viewpoints of Users

FIRE Statement on Free Speech and Online Payment Processors Foundation for Individual Rights and Expression by FIRE (September 30, 2022):

The issue: Online payment processors like Venmo and PayPal often deny Americans access to these vital services based on their speech or viewpoints.

The concern: When these companies appoint themselves the arbiters of what speech and views are acceptable, shutting people and organizations out of the online financial ecosystem for wrongthink, they seriously undermine our culture of free expression.

Imagine you could no longer use PayPal, Venmo, or another online payment processor because you run an organization that defends free speech for controversial speakers, operate an independent media outlet that challenges mainstream narratives, sell erotic fiction or “occult” materials, or . . . tried to submit an article about Syrian refugees into a newspaper awards competition.

These are not hypotheticals. They’re real, and they illustrate why online payment service providers should stay out of the business of policing their users’ speech and views.

Follow the link for the entire article by FIRE. The article includes numerous examples of abuses by these financial services companies.

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Ag-Gag Law Struck Down

An Ag-Gag Law has been struck down by an Iowa Federal Court. Trespass is already prohibited and those who trespass can be punished for trespassing. Ag-gag laws go further and impose additional penalties on those who seek to engage in free speech regarding the things they notice while trespassing. Here is an excerpt from the Des Moines Register:

A federal judge has struck down the third attempt by the Iowa Legislature to stop animal-welfare groups from secretly filming livestock abuse, finding once again that the law passed last year violates free-speech rights in the U.S. Constitution.

The decision Sept. 26 rejected the law approved by Iowa lawmakers in April 2021 that makes it a crime to trespass on a property to place a camera to record or transmit images. The law, which had support from Republicans and some Democrats, made the first offense punishable by up to two years in prison and subsequent offenses a felony.

The case is one of many so-called ag-gag laws that have surfaced in the U.S. in recent years that pit the right of farmers to protect their property from trespassers against animal-welfare advocates. Farmers argue intruders could track in disease and want to unfairly portray their livestock practices, while animal-welfare groups say producers don't want the public to see how farm animals are treated.

Here is the conclusion of the court:

[T]he Act provides protection with respect to the exercise of a First Amendment right. The United States Constitution does not allow such a singling out of the exercise of a constitutional right. The decision to single out this conduct is most plainly shown by Defendants' description of the Act as “enhancing the penalty for conduct that is already prohibited by law.” That is the issue with the law—it is enhancing a criminal penalty based on the exercise of speech (or a predicate component of speech). The law does not limit its reach to specific instances of using a camera, such as a peeping tom situation. Rather, the Act only punishes a trespasser exercising a constitutional right. Section 727.8A burdens the exercise of speech and Defendants have not proffered a sufficient justification for such a burden.

The case is ANIMAL LEGAL DEFENSE FUND, PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC., BAILING OUT BENJI, FOOD & WATER WATCH, and IOWA CITIZENS FOR COMMUNITY IMPROVEMENT, Plaintiffs, v. KIMBERLY REYNOLDS, in her official capacity as Governor of Iowa, TOM MILLER, in his official capacity as Attorney General of Iowa, Case No. 4:21-cv-00231-SMR-HCA, United States District Court, S.D. Iowa, Central Division.

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Today’s 5th Circuit Decision–Netchoice v Ken Paxton–Stuns Big Tech

Today's Netchoice opinion out of the 5th Circuit stuns Big Tech, which claimed that it had a First Amendment right to muzzle viewpoints of users. No you don't, said the Court. An excerpt:

A Texas statute named House Bill 20 generally prohibits large social media platforms from censoring speech based on the viewpoint of its speaker. The platforms urge us to hold that the statute is facially unconstitutional and hence cannot be applied to anyone at any time and under any circumstances.

In urging such sweeping relief, the platforms offer a rather odd inversion of the First Amendment. That Amendment, of course, protects every person’s right to “the freedom of speech.” But the platforms argue that buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech.

The implications of the platforms’ argument are staggering. On the platforms’ view, email providers, mobile phone companies, and banks could cancel the accounts of anyone who sends an email, makes a phone call, or spends money in support of a disfavored political party, candidate, or business. What’s worse, the platforms argue that a business can acquire a dominant market position by holding itself out as open to everyone—as Twitter did in championing itself as “the free speech wing of the free speech party.” Blue Br. at 6 & n.4. Then, having cemented itself as the monopolist of “the modern public square,” Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017), Twitter unapologetically argues that it could turn around and ban all pro-LGBT speech for no other reason than its employees want to pick on members of that community, Oral Arg. at 22:39–22:52.

Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say. Because the district court held otherwise, we reverse its injunction and remand for further proceedings.

In the meantime, during Congressional testimony, Facebook admits that it has been coordinating with the Whitehouse & CDC to censor FB users' constitutionally protected speech.

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