Mediaboss Marketing

July 11 through Aug. 23, the North Carolina Utilities Commission (NCUC) conducted several public comment hearings regarding the states plan to reduce carbon emissions. At these meetings, members of the public could (or should have been able to) freely speak out and address the commission on their implementation of the carbon plan, which the General Assembly mandated they do in H. B. 951.

However, members of the public who spoke at these public comment hearings were faced with being sworn in like in a courtroom and were subjected to cross-examination by NCUC attorneys, even if they did not have legal representation.

What average citizen shows up with a lawyer to what should have been, effectively, a town hall meeting? This does not seem like a typical public comment hearing we should appreciate as citizens of the United States in North Carolina where we should have the right to reasonably petition the government without infringement.

The NCUC does, in its ordinary proceedings, operate much like a court. Their website states, Commissioners have a job similar to that of a judge. They are required to make decisions based on the law and upon the facts of a case. While this may be a suitable procedure for their usual meetings, subjecting citizens to cross-examination by a government lawyer is not an appropriate method to conduct public comment hearings.

Imagine for a minute that during the redistricting public comment hearings, the Republican majority General Assembly forced every member of the public to swear an oath and be subjected to questioning by legislative attorneys.

People would be enraged, rightfully so, at such an infringement of their right to petition the government. Likewise, people should be equally concerned about the restrictions on free speech which occurred to those who wished to speak out about the NCUCs proceedings and perhaps to those who showed up to speak but decided not to when they saw the conditions.

Of course, the current jurisprudence on free speech demonstrates that it can and should be limited sometimes. You cannot shout fire in a movie theatre that is not actually on fire, for example, or incite imminent violence against another person. Restrictions on speech are constitutional in some cases.

However, when we, the citizenry, are encouraged to offer public comments to an entity of government, we should be allowed to do so freely and reasonably articulate our concerns without significant restrictions. Committee hearings at the General Assembly, where public comments are heard, are an excellent example of an open and fair process. It is left to the discretion of the committee chairman on who speaks and for how long, which is a reasonable example of ordered liberty, but no one is sworn in, and no person from the public is subjected to deposition by government lawyers.

Currently, the NCUC is holding expert witness testimonies at their Dobbs Building location in Raleigh. Here is the appropriate time (which they are doing, of course) to have sworn testimony from expert witnesses and those who are officially intervening in the carbon plan docket, where cross-examination from attorneys can take place. This is distinct and categorically different from public comments.

Suppose an agency of the state solicits public comments. In that case, the public should not be forced to overcome excessive burdens further imposed on them by the state, which negatively impacts their ability to petition the government. The General Assembly should consider and reevaluate the procedures of the NCUC moving forward to ensure the fairness and transparency of public comments.

Andr Bliveau is the Strategic Projects and Government Affairs Manager at the John Locke Foundation. He is an M.A. in Government Candidate at The Johns Hopkins University and previously served as a policy advisor in the North Carolina Senate.

Continued here:
OPINION: Utilities Commission public comment hearings produced First Amendment concerns - The Richmond Observer

Last year, I wrote about a case in which media outlets were forbidden from identifying a recently released drug cartel ex-boss as plaintiff in a privacy lawsuit. There is now an appeal in the case, but the Ninth Circuit (acting through its Appellate Commissioner) has provisionally sealed the appellant's opening brief until the merits panel can decide a motion to seal, which will likely be many months from now.

I'm therefore planning to file this motion to intervene and reconsider, on my own behalf (it's due tomorrow, though I'd like to file it late tonight or early tomorrow morning); would love to hear people's comments on it before I do file it. Here's the substantive part:

Motion to Intervene and Reconsider Order of Sept. 1, 2022

Eugene Volokh seeks to intervene in this case, solely in order to ask this Court to reconsider the Order of Sept. 1, 2022, which provides that Appellant's Opening Brief should be "maintain[ed] under provisional seal" until the sealing questions are resolved by "the panel assigned to decide the merits of this appeal." Volokh would like to exercise his right to promptly access a redacted version of the Opening Brief, even if Doe's name and identifying information need to be deleted from the brief for now.

II. Appellate briefs may not be fully sealed, even temporarily, without a showing that redaction would not be possible

"[T]he public's First Amendment and common law rights of access" extend to "appellate filings" as well as trial court filings, because "the public should be given an opportunity to engage in and follow the dialogue" within those filings. United States v. Index Newspapers LLC, 766 F.3d 1072, 1097 (9th Cir. 2014). Circuit Rule 27-13(a), which recognizes that "This Court has a strong presumption in favor of public access to documents," reflects this principle. And "the public interest in obtaining news is an interest in obtaining contemporaneous news," Courthouse News Serv. v. Planet, 947 F.3d 581, 594 (9th Cir. 2020) (emphasis added), not long-delayed news. Indeed, even a delay of from a few days to "up to two weeks" in making filed documents accessible may violate the right of access. Id. at 597-98.

This right of contemporaneous access can be overcome "only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Phoenix Newspapers, Inc. v. District Court, 156 F.3d 940, 946 (9th Cir. 1998) (cleaned up). In particular, even when some information in a document must be kept confidential, it should generally just be redacted, rather than having the whole document sealed. See 9th Cir. R. 27-13(e) (requiring that a motion to seal "shall request the least restrictive scope of sealing and be limited in scope to only the specific documents or portion of documents that merit sealing, for example, propose redaction of a single paragraph or limit the request to a portion of a contract"). "When redaction is required to protect privacy interests, it must be narrowly tailored to allow as much disclosure as is feasible." Certain Interested Individuals v. Pulitzer Pub. Co., 895 F.2d 460, 467 (8th Cir. 1990) (quoting Matter of Search Warrants Issued on June 11, 1988, for the Premises of Three Buildings at Unisys, Inc., 710 F. Supp. 701, 705 (D. Minn. 1989)).

Volokh does not object to having Doe's name and identifying information being kept confidential while the appeal is pending, so as to preserve the merits panel's ability to decide the substantive issues in this appeal. But, as Rule 27-3(e) suggests, "Where redaction of a document is feasible, the moving party shall highlight in the unredacted document all portions of the document that party is seeking to file under seal," and the redacted version should then be publicly released.

To be sure, Volokh appreciates that it is often most convenient to defer various motions to the merits panel. But that cannot authorize provisional sealing of briefs for many months, given the public's common-law and First Amendment rights of access to court filings. The "substantial interest in the orderly administration" of the judicial process, Courthouse News Serv., 947 F.3d at 596, may sometimes authorize brief sealing while a decision is being madebut not sealing that causes unnecessary "lengthy delays" between the time a document is filed and the time it is made publicly available, id. at 597.

Instead, either the Appellate Commissioner or a motions panel can make express "findings" whether "closure is essential to preserve higher values and is narrowly tailored to serve that interest," Phoenix Newspapers, 156 F.3d at 946 (9th Cir. 1998)and in particular can decide whether redaction rather than outright sealing is a feasible way of preserving the merits panel's role in deciding the ultimate issues while still protecting the public right of access. Simply deferring the decision to the merits panel, without such "findings" that "closure is essential," would likely "cause[] far greater delays than [are] necessary to adequately protect [this Court's] administrative interests given the reasonable alternatives available." Id.

Conclusion

Volokh therefore asks that he be allowed to intervene, and that this Court reconsider (under 9th Cir. R. 27-10(b)) the September 1 decision that provisionally sealed the briefs until the merits panel is assigned.

And here's the part about intervention:

I. Volokh is entitled to intervene for the purpose of getting access to court records

Eugene Volokh is the Gary T. Schwartz Professor of Law at UCLA School of Law, where he writes often about First Amendment law. He has written about this case at Eugene Volokh, The Law of Pseudonymous Litigation, 73 Hastings L.J. 1353, 1375-76 (2022), http://www.law.ucla.edu/volokh/pseudonym.pdf, and at Eugene Volokh, Media Outlets Forbidden from Identifying Recently Released Drug Cartel Ex-Boss as Plaintiff in Privacy Lawsuit, Volokh Conspiracy (Reason) (Oct. 12, 2021, 2:59 pm), https://reason.com/volokh/2021/10/12/media-outlets-forbidden-from-identifying-recently-released-drug-cartel-ex-boss-as-plaintiff-in-privacy-lawsuit/. He would like to write further about the appellate briefing in the case, but cannot do so because the opening brief is sealed until the case comes before the merits panel, which will likely be many months from now.

"Nonparties seeking access to a judicial record in a civil case may do so by seeking permissive intervention under Rule 24(b)(2)." San Jose Mercury News v. U.S. Dist. Ct., 187 F.3d 1096, 1100 (9th Cir. 1999). This extends to intervening on appeal as well. Trump v. Deutsche Bank AG, 940 F.3d 146, 150 (2d Cir. 2019). Generally, "a court may grant permissive intervention where the applicant for intervention shows (1) independent grounds for jurisdiction; (2) the motion is timely; and (3) the applicant's claim or defense, and the main action, have a question of law or a question of fact in common," San Jose Mercury News, 187 F.3d at 1100. But in cases involving requests to access court records, the "independent jurisdictional basis and strong nexus of fact or law are not required where intervenor merely seeks to challenge a protective order" (such as a sealing order). Id. And this request is timely, because it is filed within two weeks of the order stating that the Appellant's Opening Brief shall remain sealed until the merits panel considers the matter.

Original post:
Draft Motion to Get Access to an Interesting (but Sealed) Appellant's Brief in a First Amendment Case - Reason

FIRE argued the U.S. Court of Appeals for the Second Circuit should join other circuits that have recognized college faculty dont lose their free speech rights when they are public employees. (Shutterstock.com)

by Josh Bleisch

Faculty at public institutions of higher education are typically charged with three main duties: teaching students, conducting research, and serving the university. But what happens when a faculty members teaching and research involves controversial public issues?

Depending on where faculty teach, the First Amendment may not protect them when they engage in scholarship and teaching on matters of public concern as part of their official job duties.

This is due to a 2006 Supreme Court case, Garcetti v. Ceballos, which held a public employees on-the-job speech was not protected because it occurred pursuant to their job duties. However, consistent with its acknowledgment of academic freedom as a special concern of the First Amendment, the Court in Garcetti singled out public university faculty as one type of public employee that may not be covered by its decision. Despite this, since Garcetti, public university faculty, to whom the right of academic freedom most clearly applies, have had to reassert that right in the federal courts.

Academic freedom is an important part of the First Amendment because our nations universities are unique centers of free inquiry and knowledge creation.

One of those faculty members is Professor John Heim, who teaches macroeconomics as an adjunct professor at the State University of New York at Albany. Notably, his brand of macroeconomics is Keynesianism, in contrast to the preferred philosophy of the UAlbany economics department, Dynamic Stochastic General Equilibrium. Despite Heim applying several times, the economics department refused to promote Heim to a tenure-track position because of his adherence to Keynesian economics.

Heim sued, alleging that UAlbany violated his First Amendment rights. But the district court found for the university, holding that regardless of whether Garcetti applied, Heims scholarship and teaching was not protected by the First Amendment because they were not on a matter of public concern. So Heim appealed to the U.S. Court of Appeals for the Second Circuit.

Yesterday, FIRE filed an amicus brief in Heim v. Daniel in support of Professor Heim. FIRE argued the Second Circuit should join its sister courts in the Fourth, Fifth, Sixth, and Ninth Circuits by recognizing that Garcettis effect of removing on-the-job public employee speech from First Amendment protection does not apply to public college and university faculty.

Why should the free speech rights of college faculty be exempt from Garcetti?

Academic freedom is an important part of the First Amendment because our nations universities are unique centers of free inquiry and knowledge creation. As argued in our brief, Rigidly applying Garcettis framework would strip Heim of First Amendment protection merely because his job, as a university professor, is to teach and produce research. This offends the essence of academic freedom by punishing professors who pursue heterodox ideology.

By over-emphasizing the role of audience size, courts risk turning the public concern analysis into a popularity contest for speech.

FIRE also argued that Heims scholarship and teaching on Keynesian economics constitutes speech on a matter of public concern. Debate and disagreement among scholars is how knowledge flourishes. Even though disputes among academics may be opaque, they can have significant impacts on the broader public. (Think professors of literature deciding collectively and over time what makes up the cannon leading to students today reading works like Homers Odyssey and Herman Melvilles Moby Dick.) The trial court in Heims case recognized as much when it noted Heims primary audiences were government officials and economic policy wonks.

But despite that recognition, the trial court held that Heims speech wasnt a matter of public concern, giving too much weight to the niche subject matter and relatively small size of Heims audience. As FIRE wrote in its brief, By over-emphasizing the role of audience size, courts risk turning the public concern analysis into a popularity contest for speech. Indeed, much of the Supreme Courts First Amendment jurisprudence concerns speech that is or was quite unpopular or simply not of interest to the broader public.

As the brief notes, the fact [t]hat Heims audience consists of public servants charged with making important economic decisions is all the court should need to understand that his scholarship and teaching is on matters of public concern.

You can read FIREs full brief here.

FIRE defends the rights of students and faculty members no matter their views at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, submit your case to FIRE today. If youre faculty member at a public college or university, call the Faculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533).

See the original post here:
In Heim v. Daniel, FIRE pursues opportunity to bolster academic freedom in the Northeast - Foundation for Individual Rights in Education

During the COVID pandemic, scientists seemed to be in rare agreement about the source of the virus; its lethality; the need for universal lockdowns, masks, and social distancing; the inefficacy of certain treatment options; and the near-miraculous efficacy of the vaccine.

A few dissenting voices came through. Remember John Ioannidis, the Stanford scientist who warned in March 2020 that we didnt have enough data to know whether NPI measures were doing more harm than good? Remember Dan Erickson and Artin Massihi, the two doctors from Bakersfield, California, who argued in an hour-long video, released in April 2020, that COVIDs fatality rate was similar to that of the flu? Five million people watched them before YouTube yanked the video. Remember Michael Yeadon, erstwhile VP at Pfizer, who claimed the PCR test overestimated the incidence of COVID by a factor of ten? Remember the Great Barrington Declaration, which rejected general lockdowns and argued for focused protection for the elderly and immuno-compromised who are especially vulnerable to COVID? Remember Gov. DeSantiss roundtable discussion with the three principal Great Barrington scientists? Remember Scott Atlas? Joe Rogan hosted Robert Malone and Peter McCullough, and the redoubtable Freddie Sayers of UnHerd released a steady stream of patient, challenging, informative interviews with the likes of Carl Heneghan, Swedens Anders Tegnell, and Bret Weinstein.

You could find all these eccentric sources during the pandemic, and, as the surfeit of hyperlinks in the previous paragraph indicates, theyre still available somewhere or other. But establishment scientific journals and scientists, including American public health officials at NIH, the CDC, and other agencies, ignored the contrarians or dismissed them as kooks, cranks, and conspiracy theorists (e.g., here and here), even though some of the kooks are specialists in immunology and epidemiology employed by Stanford, Oxford, and Harvard. You could find seams of dissent if you dug deep enough, but why bother? Science knew what it was doing and would tell us what to do. Problem is, Science earned its commanding capital letter only by demonizing dissenting scientists (lower-case).

Eager to do their public service, eager to suppress disinformation, eager not to kill grandma and not to help Trump, social media companies largely reinforced the manufactured scientific consensus by removing nonconforming videos, tweets, and podcasts. On Twitter, the most offensive offender was Alex Berenson, a former New York Times reporter who amassed hundreds of thousands of followers with derisive tweets mocking the official COVID narrative and public health officials. Twitter permanently banned Berenson in August 2021 after he tweeted that the COVID shot isnt a vaccine: Think of itat bestas a therapeutic with a limited window of efficacy and terrible side effect profile that must be dosed IN ADVANCE OF ILLNESS.

Berenson sued Twitter and was restored to the platform in August 2022, the first time a social media company has lost such a suit. The rationale has always been: As private companies, Twitter, Facebook, and YouTube can make whatever rules they want and are solely responsible for determining when the rules have been violated. Berensons victory doesnt undermine that argument. According to The Atlantic, the judge threw out Berensons First Amendment claim, and Twitter settled because one of its executives violated Twitter policy by communicating directly with Berenson about his account.

But the ball game is changing, bigly. The president and other officials have publicly remonstrated with media companies to do more to suppress misinformationmost dramatically in Bidens theyre killing people comment about Facebook in July 2021. Bidens statement was hastily withdrawn, but it was part of a pattern. Kate Bedingfield, White House communications director, hinted that social media companies should be held legally liable for distributing misinformation, and Jen Psaki, former White House press secretary, called on platforms to collaborate to silence harmful voices.

Since the beginning of the Biden administration, there have been rumblings that the White House and federal agencies have also privately pressured social media companies to squelch dissent. Now several lawsuits have begun to pull back the curtain. Berenson is suing Biden, alleging that members of the administration pressed Twitter to deplatform him. Lawyers representing plaintiffs in Missouri v. Biden recently filed an amended complaint showing that eighty officials from nearly a dozen federal agencies were in contact with social media executives concerning climate change, Hunter Bidens laptop, election fraud, and COVID. If it turns out that government officials leaned on media companies to remove individual users, plaintiffs have a highly plausible First Amendment case. Censorship mediated through media is still censorship.

On COVID, there appear to be smoking guns, a small arsenal of them. We now know Mark Zuckerberg gave Anthony Fauci his personal phone number. In July 2021, a Meta executive reported to Surgeon General Vivek Murthy on the companys effort to address the disinfo dozen problem, a reference to the dozen figures considered the most dangerous sources of disinformation (quoted here). On his Substack, Berenson posted a screenshot of an internal Twitter Slack chat from April 2021, in which an employee refers to a really tough question from the White House about why Alex Berenson hasnt been kicked off the platform. In another message, a Twitter employee refers to Biden COVID adviser Andy Slavitts claim that Berenson was the epicenter of disinfo. More disclosures are coming. On September 6, a judge ordered Fauci to turn over any communications between his office and social media companies.

Jenin Younes of the New Civil Liberties Alliance, whose clients have joined the Missouri suit, points out that, whatever the outcome, the case will establish legal guidelines for social media companies. These cases will determine whether or not Twitter, Facebook, and YouTube morph into state media (or, more precisely, Democratic Party media). The suits will decide whether or not federal bureaucrats control the dissemination of scientific information, and so will affect the integrity of science and public confidence in scientific expertise. No matter how you look at it, the stakes are extremely high.

Peter J. Leithart is President ofTheopolis Institute.

First Thingsdepends on its subscribers and supporters. Join the conversation and make a contribution today.

Clickhereto make a donation.

Clickhereto subscribe toFirst Things.

Image by Anthony Quintano licensed via Creative Commons. Image cropped.

Go here to see the original:
Consensus by Censorship | Peter J. Leithart - First Things

On Sept. 12, FIRE submitted its comment to the Department of Education in response to the departments proposed Title IX regulations. Our message is simple: You cant require colleges and universities to violate the constitutional rights of students or faculty.

FIRE opposes these proposed regulations because the new language, and the removal of critical language from the current Title IX regulations, constitute a severe rollback of First Amendment and due process protections for students in grievance procedures conducted on campus.

The proposed regulations most egregious provisions include:

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.

When facts are in dispute in such high-stakes proceedings, live hearings that allow for live cross-examination are essential for permitting parties to meaningfully present and challenge evidence. As we argue in our comment to the department, failure to provide those protections violates the constitutional right to due process. Our position is backed by a growing number of court decisions. In Doe v. Baum, for example, the Sixth Circuit held:

Due process requires cross-examination in circumstances like these because it is the greatest legal engine ever invented for uncovering the truth. Not only does cross-examination allow the accused to identify inconsistencies in the other sides story, but it also gives the fact-finder an opportunity to assess a witnesss demeanor and determine who can be trusted. So if a university is faced with competing narratives about potential misconduct, the administration must facilitate some form of cross-examination in order to satisfy due process.

Although FIRE believes that these proposed regulations pose serious risks for students and faculty engaged in Title IX grievance procedures, we are encouraged that the department left in place some protections afforded under the 2020 regulations, including an express presumption of innocence and a requirement that institutions provide parties with non-punitive supportive measures, as appropriate, to help students continue their education during the grievance process.

FIRE will continue to engage with the department at every opportunity and monitor the state of due process and First Amendment protections on campus.

In particular, the departments requirement that institutions expressly provide the accused with the presumption of innocence has shown to make a difference. In FIREs most recent Spotlight on Due Process report, we analyzed the policies of Americas top 53 universities. More than 90% of institutions we rated have Title IX policies that include a presumption of innocence. Troublingly, in disciplinary hearings not governed by the Title IX regulations, nearly two-thirds (62.2%) of those institutions did not explicitly guarantee students that they will be presumed innocent until proven guilty. FIRE believes the department could do more by also requiring institutions to include a statement that a persons silence shall not be held against them.

Next month, FIRE will release its latest annual Spotlight on Due Process report, which will demonstrate the severe lack of due process rights that students are afforded at top institutions, as well as the massive disparity between procedural safeguards provided in Title IX disciplinary procedures many of which will be lost if the proposed regulations are adopted compared to non-Title IX disciplinary procedures those institutions also maintain.

To create new binding regulations or amend existing binding regulations, a federal agency must go through the rulemaking process required by the Administrative Procedure Act. Before these proposed regulations are finalized, the APA requires federal agencies to announce and explain regulatory language to the public. It also requires a comment period for public input. The 60-day comment period for the proposed Title IX regulation ended on Sept. 12.

A date has not yet been announced for a final rule of these proposed regulations, which is likely months away. Nonetheless, FIRE will continue to engage with the department at every opportunity and monitor the state of due process and First Amendment protections on campus.

Given that the Department of Education is required by the APA to meaningfully consider public input, including FIREs comment, we hope they will heed our warnings and amend the proposed language to conform to the well-established constitutional protections that students must be afforded.

Not doing so will have grave consequences for civil liberties on campus.

Go here to see the original:
FIRE's comment to Department of Education: Your proposed Title IX regulations are unconstitutional - Foundation for Individual Rights in Education