Mediaboss Marketing

Jack Greiner| Columnist, Simply Legal

Ive written on several occasions about the fact that the First Amendment doesnt apply to private parties even tech giants.

The First Amendment is a check on the government only. This means that if a private entity interferes with someones right to speak, thats too bad, but it doesnt give rise to a viable case.

Unfortunately, Marshall Daniels either doesnt read my column or doesnt pay much attention to it. He recently brought a suit against Alphabet, Inc., Google and YouTube alleging that they deprived him of his First Amendment rights. Daniels alleged that the three defendants violated 42 USC 1983, which allows people to sue state actors for depriving them of their constitutional rights. The court threw out the case, but that was arguably the least of Daniels problems, as the court also decided that Daniels would need to pay YouTubes legal fees.

Daniels has uploaded videos and live commentary concerning social, political and educational issues to YouTube since July 2015. On April 21, 2020, Daniels live-streamed a video entitled, Fauci Silenced Dr. Judy Mikovits from Warning the American Public. And on May 28, 2020, Daniels live-streamed a video entitled, George Floyd, Riots & Anonymous Exposed as Deep State Psyop for NOW. Both videos were removed in the weeks following their upload by Google and YouTube for purportedly violating YouTubes Community Guidelines or its policies on harassment and cyberbullying.

Daniels attempted to avoid the dismissal of his suit by arguing that two members of Congress Adam Schiff and Nancy Pelosi coerced YouTube and Google into removing the content. According to Daniels, this constituted sufficient state action to haul the private actors into court.

There were two problems with this approach. First, as the court noted, Section 1983 claims may be asserted against state actors, not federal officials. Reps. Schiff and Pelosi, as anyone with a rudimentary knowledge of Civics knows, are part of the United States Congress.

But perhaps more importantly, the court found that statements by Schiff and Pelosi generally cautioning social media providers to avoid spreading misinformation do not transform those providers into state actors. There was simply no state action here on which to base a 1983 case.

So Daniels lost the case. But that didnt end the matter. YouTube submitted a claim for $38,576 representing the attorney fees it incurred in fending off the claim. In the courts view, YouTube was entitled to a fee award because Daniels' case was frivolous.

Daniels argued that his claims were novel but not frivolous. For example, he argued that Reps. Schiff and Pelosi were state actors because they represented the state of California. The court was unimpressed, noting this argument lacks merit and is not supported by either of the cases on which Mr. Daniels relies, neither of which concerns a member of Congress being treated as a state actor by virtue of representing a state in Congress. . . . None of his arguments are persuasive, as he articulated no plausible legal theorynovel or otherwisefor holding private entities liable as government actors in the circumstances presented.

Daniels is no doubt a creative litigant. But as he learned the hard way, there is a fine line between novel and frivolous. He crossed it and it cost him.

Jack Greiner is a partner at Faruki PLL law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues.

Read this article:
Strictly Legal: Does First Amendment apply to YouTube, Google - The Cincinnati Enquirer

If a television network could cry crocodile tears, that would be Fox News wailing that the $1.6 billion defamation lawsuit it faces for spreading lies about the 2020 presidential election is an attempt to trample on free speech and freedom of the press. Fox is being sued by Dominion Voting Systems for airing false allegations that the companys machines were linked to widespread election fraud; another suit, by the electronic voting company Smartmatic, is close on its heels. So you can see why network honchos would be clinging to First Amendment protections. A generous interpretation of the nations laws regarding libel the written or broadcast form of defamation is the only thing that can save Fox news from itself now.

A trial in the Dominion case is slated for next month in Delaware, and I hope the parties resist the temptation to settle out of court. Fox should be brought to justice, not just because the networks outrageous behavior is a blot on all responsible journalism but because a finding against the media giant would, paradoxically, vindicate Times v. Sullivan, the bedrock First Amendment case that has protected the press from frivolous libel claims for nearly 60 years.

To review: The 1964 Times v. Sullivan case establishes the circumstances under which the media can be held responsible for libel of a public figure (or in this case, a public company). These include deliberately and knowingly reporting damaging falsehoods with a reckless disregard for the truth.

Antagonists of a robust free press have had Times v. Sullivan in their crosshairs for years, saying the protections it offers are too sweeping. In 2019 Supreme Court Justice Clarence Thomas issued a broadside against the decision, saying it sets an impossible standard for aggrieved plaintiffs to meet. Justice Neil Gorsuch also has opined that it has evolved into an ironclad subsidy for the publication of falsehoods.

But recently unsealed court filings suggest Fox News practiced reckless disregard with abandon in the weeks after the 2020 election. The trove of documents show that Fox officials, from chairman Rupert Murdoch on down, knew that the election fraud claims pushed by allies of former president Donald Trump were false but broadcast them anyway. On-air celebrities privately derided the claims and their sources Rudy Giuliani, Sidney Powell, and other conspiracy mongers as nonsense and mind-blowingly nuts while giving them ample airtime. The programming continued even as the theories were debunked by fact-checkers. Fox reporters in the news division who held on to a shred of ethics were scolded for casting doubt on the Big Lie.

Fox defends its broadcasts as merely relaying what newsworthy individuals were saying about the election, even if the statements were outlandish. And some Fox hosts did express skepticism about the fraud claims on the air. But the documents show that Fox executives were reeling from the backlash among their viewers for having called Arizona (correctly) for Joe Biden on election night. The actions Fox News took to placate Trump allies and stop the hemorrhaging of viewers to competing networks are just the sorts of behaviors Times v. Sullivan identifies as not defensible.

The argument has been that New York Times v. Sullivan has gone too far and the liberal press has no limits, Harvards constitutional law professor Laurence Tribe said in an interview. If Fox loses the defamation case, he said, it would demonstrate the utter falsity of the narrative that Times v. Sullivan is an unfettered license to spread libelous lies. A finding against Fox, in other words, would prove the system works and Times v. Sullivan need not be weakened or overturned.

It may be too much to hope for, but a loss for Fox also could be a warning to other media outlets about the risks of circulating disinformation, possibly tamping down the contagion of lies and conspiracy theories that have so poisoned the public discourse in this country.

In a 2016 campaign speech in Texas, then-candidate Donald Trump pledged to gut constitutional protections for the news media.

Were going to open up the libel laws, he said to cheers, so when they write purposefully negative and horrible and false articles, we can sue them and win lots of money. The irony is rich because in this case it is Trump and his allies at Fox News who are charged with saying negative and horrible and false things about Dominion. And recovering lots of money may not require changing the libel laws at all.

Rene Loths column appears regularly in the Globe.

See the original post:
A loss for Fox would be a win for the First Amendment - The Boston Globe

A traveling Christian street preachers civil rights case against the University of Alabama, in which the evangelist alleges college officials abridged his First Amendment right by telling him to leave a sidewalk near the campus while evangelizing without a permit, was refused by the U.S. Supreme Court on Monday.

The appeal from Rodney Keister, a Pennsylvania-based preacher and founder of Evangelism Mission, was turned away by justices yesterday, reaffirming the 11th U.S. Circuit Court of Appeals decision last year in rejecting his claim that the university violated his First Amendment rights by telling him and others to leave a sidewalk near the universitys Quad, where he was passing out evangelical literature and preaching through an amplifier.

Whether officials with a public university, like the University of Alabama, could control speakers unaffiliated with the university on their campus by use of a permit system was the legal question at the heart of the case.

Alabamas grounds use policy requires individuals to seek a permit before such activities, which Keister did not obtain prior to the day in question. Officials from the university at the time said to Keister that he needed the permits, eventually telling him to move to the corner of University Boulevard and Hackberry Lane and later off the campus.

In 2017, Keister filed his first civil rights lawsuit against the university, indicating that the sidewalk he preached from was considered a traditional public forum and therefore enjoyed significant protections under the First Amendment. That original suit was rejected by the U.S. Supreme Court in 2018, with Keister filing a second and amended lawsuit in 2019.

After a federal judge the following year ruled in favor of the university, the 11th U.S. Circuit Court of Appeals agreed with the lower courts decision in determining that the sidewalk in question was considered a limited public forum which did not have the same constitutional protections for speech as a traditional public forum.

Read more:
SCOTUS rejects street preacher's First Amendment case against the University of Alabama - Alabama Political Reporter

The co-hosts of ABCs "The View" took up the topic of Fox News coverage during a recent show specifically its coverage of former President Donald Trumps false assertions that the 2020 election was fraudulent and its reports about the Jan. 6, 2021, attack on the U.S. Capitol.

Co-host Whoopi Goldberg asked why Foxs coverage isnt considered tantamount to "recruiting" and "radicalizing."

Another co-host, off-camera, responded, "It's the First Amendment."

Goldberg countered, "The First Amendment doesnt allow you to willingly lie."

A reader asked us to look into whether Goldberg was right on the constitutional question. Legal scholars told us that she is mostly off base.

The current page does not support this embedded media. To view this story with fully functioning media, please visit this page on our full site.

"Lies, including knowing ones, do not lose First Amendment protection simply for their untruth," said Howard M. Wasserman, a law professor at Florida International University.

A spokesperson for "The View" did not respond to PolitiFacts inquiry.

Some carve-outs from constitutional protections for lying

Experts said that for some types of speech, lying is not constitutionally protected, but these are relatively narrow exceptions. Examples include:

For the most part, lying is protected speech

Beyond these categories, though, everyday lying has generally been found to be protected by the Constitution.

"Five of the justices agreed that lies about philosophy, religion, history, the social sciences, the arts, and the like are generally protected," said Eugene Volokh, a UCLA law professor.

Volokh said that a separate holding of the Sullivan case was that "even deliberate lies, said with actual malice, about the government are constitutionally protected."

State-level laws targeting false political speech have also run into turbulence in the courts.

In 2016, an appeals court ruled unconstitutional an Ohio law that prohibited the dissemination of false information about a political candidate in campaign materials during the campaign season. The decision said that the law amounted to "content-based restrictions targeting core political speech that are not narrowly tailored to serve the states admittedly compelling interest in conducting fair elections."

A major reason for protecting lies, experts said, is that the government will not necessarily be an honest judge of what is truth and what is a lie. Volokh said there is continuing concern among jurists about following in the path of the Sedition Act of 1798, a law that banned malicious lies about the government.

Wasserman agreed. "We do not want to empower the government to decide what is truth," he said. "It would be too easy to label certain political opinions or framings as untrue and subject to government silencing."

A broadcaster like Goldberg benefits significantly from protections for lying, Ligon said.

"Talk show hosts are often given leeway, consistent with the First Amendment, when it comes to their speech, in part because they are understood to be entertainers," Ligon said.

Ligon said that both Tucker Carlson on the right and Rachel Maddow on the left "have successfully defended defamation claims."

The court ruled that the statement was "obvious exaggeration, cushioned within an undisputed news story." The ruling went on to say that Maddows statement was "well within the bounds of what qualifies as protected speech under the First Amendment. No reasonable viewer could conclude that Maddow implied an assertion of objective fact."

PolitiFact ruling

Goldberg said, "The First Amendment doesnt allow you to willingly lie."

For the vast majority of speech, the First Amendment considers lies to be protected speech.

There are exceptions to this general rule, but they are limited. In libel and incitement cases, for instance, the judicial bar for proving harm is high, meaning that most types of political speech cannot be challenged successfully in court.

We rate the statement Mostly False.

Read more here:
Fact check: Goldberg says the First Amendment 'doesn't allow you to willingly lie' - WRAL News

Members of an organization whose members have doxxed a University of Maryland, Baltimore County student and her father are suing university staff members.

The group alleged in a Friday filing that its First Amendment rights were violated after a federal court barred it from protesting in several areas around the country earlier this year, which prompted UMBC to prohibit the group from reserving campus spaces for demonstrations.

Doxxing occurs when someones personal information is published without permission, often with the intent of causing harm.

The group has held demonstrations at UMBC since late last year, handing out flyers featuring the UMBC student and her father while displaying signs and U.S. and New Federal State of China flags. The group also made many online posts about the student, her father and their family, sometimes taking pictures and videos of their residences.

The New Federal State of China, which says it opposes the Chinese Communist Party, is an organization created by exiled Chinese businessman Guo Wengui and conservative strategist Steve Bannon, who advised former President Donald Trump. The group believes the students father is a member of the Chinese Communist Party.

A U.S. Bankruptcy judge in Connecticut barred the group in January from engaging in protesting, picketing, parading or distributing harassing material at any time in the vicinity of several locations, including in Baltimore.

Jian Wyatt, Hao Li, Yudong Zhang and Li Chen, the plaintiffs in Fridays filing, are suing University of Maryland President Darryll Pines, UMBC Campus Life Operations Director Joel Dewyer, UMBC Chief of Police Bruce Perry, the UMBC student and her father in the U.S. District Court for Maryland. Theyre asking for a jury trial, as well as punitive and compensatory damages.

The lawsuit says Pines is being sued in an official capacity as president of the University of Maryland. Pines does not oversee UMBC.

The plaintiffs claim they have demonstrated at UMBC since early December and that Dewyer knew a UMBC student and her father were the subject of the peaceful protests. They paid to reserve the UMBC Commons area by Dewyers recommendation, according to the lawsuit. The plaintiffs argue it is their duty to share their distaste toward the UMBC student, her father and the Chinese Communist Party.

The plaintiffs also argue that the January injunction does not pertain to them. The injunction related to Wenguis finances but states that anyone in active concert or participation with him is affected, including the New Federal State of China.

The University of Maryland, Baltimore County (Algerina Perna / Baltimore Sun)

The plaintiffs said they applied for another permit to protest in January but were told they could no longer hold signs, distribute flyers or stream their events online. They said they were asked to conduct their activities at a distance from the UMBC Commons.

The lawsuit states that on Feb. 3, police officers arrived at one of the protests and told the plaintiffs to cease all demonstrations and leave the Commons. The plaintiffs were then told they could exercise their First Amendment rights in a different, more secluded campus area. Meanwhile, the plaintiffs argue, Dewyer granted the plaintiffs their requested permit, which cost $950, and they were told they could resume protesting Feb. 6 at the Commons.

The Evening Sun

Daily

Get your evening news in your e-mail inbox. Get all the top news and sports from the baltimoresun.com.

The plaintiffs allege the UMBC student they doxxed made demand to the administration of the university to stop the plaintiffs and the other protestors, according to the lawsuit.

The plaintiffs said that two U.S. marshals appeared Feb. 7 and delivered the January federal injunction during another protest at the Commons. Afterward, the plaintiffs said Perry and other officers ordered the protesters to leave immediately.

Protesters resumed later that afternoon, when UMBC police officers again told plaintiffs to cease their protests, threatening arrest if they did not comply. The plaintiffs argue that the officers were not federal enforcement agents. The plaintiffs permit to protest was revoked that evening.

Plaintiffs said they returned to the UMBC Commons Feb. 8 and were asked to leave by UMBC police officers, who were present prior to their arrival.

UMBC did not respond to multiple requests for comment.

Baltimore Sun reporter Lee O. Sanderlin contributed to this article.

See the original post:
Doxxers sue University of Maryland, Baltimore County staff, say First Amendment rights were violated - Baltimore Sun