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The fictional character Bill Lumbergh of Office Space is pictured alongside New York Gov. Kathy Hochul

If New York Governor Kathy Hochul (D) could go ahead and read up on the First Amendment, that would be great.

During interviews with reporters in the days following Saturdays horrific mass shooting in Buffalo, New York, Hochul summarized free speech jurisprudence with a disastrous inaccuracy seriously unbecoming a sitting government official.

In the video below, Hochul can be seen in an interview with ABCs George Stephanopoulos in which she remarked that depraved ideologies of white supremacy are fermenting on social media and spreading like a virus. Hochul called on tech companies to do more to monitor and shut down dangerous individuals on social media platforms. Without distinguishing between private action (such as the kind of user-monitoring Hochul was suggesting be undertaken by private companies) and government action, Hochul ended the interview by summarizing her take on government power to regulate speech.

Ill protect the First Amendment any day of the week, Hochul pledged. But you dont protect hate speech. You dont protect incendiary speech. Youre not allowed to scream fire in a crowded theater. There are limitations on speech

Theres a lot to unpack in Hochuls statements a bit of which is correct, but most of which is dead wrong.

Lets start with some First Amendment basics. Under the First Amendment, freedom of speech is a protected right. Like other rights, however, free speech is not absolute. Certainly, government regulation of speech is to be viewed with suspicion, because there are stringent limitations within which the government is authorized to intrude on free speech.

Over the decades, an enormous amount of jurisprudence has developed that carves out specific rules for how the government (both local and national) may legally regulate speech. Some categories of speech have been deemed unprotected by the First Amendment, such as defamation and perjury. Of course, to ascertain whether a particular statement amounts to defamation or perjury (and thus loses First Amendment protection), one must engage in an independent analysis. The same is true for speech that is unprotected because it constitutes obscenity or fighting words.

When Hochul referenced the ever-misunderstood fire-in-a-theater example, she likely did so as a shorthand way of making the point that there are plenty of circumstances in which it is absolutely legal for the government to regulate and even prohibit speech. The point was accurate (though Hochuls example is woefully bad at making it).

As an aside, my Law&Crime colleague Aaron Keller discussed the theater-fire example at length in 2021 when President Joe Biden clumsily tried to make the same point in the same way that Hochul did. Keller explained:

Biden said, in essence, that the Constitution doesnt protect the right to yell fire in a crowded movie theater. Hes wrong. People can constitutionally yell fire in crowded gatherings if there is an actual fire. The often-misquoted phrase usually fails to acknowledge that key distinction.

Because Biden and Hochul left out the key falseness aspect of the quote, the meaning isnt quite correct. Some speech is protected and therefore essentially untouchable by government regulation. Other speech is fair game for government regulation. The distinction has zero to do with theaters and everything to do with danger.

Besides, as Keller pointed out, there have been broader jurisprudential shifts that have long ago rendered as obsolete the well-worn and tired fire in a crowded theater trope. The theater/fire analogy is rooted in an Oliver Wendell Holmes, Jr. line in Schenck v. U.S., a 1919 case that was mostly overturnedbyBrandenburg v. Ohio in 1969. The quote somehow stuck around long after the law attached to it did not.

What about incendiary or hate speech?

Hochul listed incendiary and hate speech as two more categories that you dont protect. Once again, she has listed two more categories, neither of which are categorically unprotected under First Amendment law.

Brandenburg v. Ohio sets out the basic analytical framework courts use to evaluate free speech claims. Under Brandenburg,speech can be prohibited if it is both (1) directed at inciting or producing imminent lawless action and (2) likely to incite or produce such action. In other words, what matters is the risk of danger. When speech is likely to create immediate lawbreaking or immediate danger, the government may indeed step in and prohibit that speech. This is why prohibitions against falsely alarming people in a crowded place in which a dangerous stampede may result would likely withstand constitutional scrutiny.

That said, however, proving that government action targeted only the kind of speech that would satisfy the Brandenburgrequirements is not a simple matter. Rarely does speech rise to the level of being likely to incite or produce imminent lawless action such that restriction of that speech can withstand a First Amendment challenge. Even when it does, the regulation in question cannot be overbroad, and must instead prohibit the unprotected speech without infringing on protected speech.

Indeed, the test is very, very strict: Brandenburg held that a speech at a Ku Klux Klan rally could not result in criminal punishment because the law which criminalized the speech didnt afford leeway for rhetoric however unpopular that didnt incite or produce imminent lawless action.

[T]he mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, the Court wrote of the KKK speech, is not the same as preparing a group for violent action and steeling it to such action. (Most of the quote actually came from an earlier case.)

Hochul used the word incendiary, perhaps meant to be a synonym for incitement. At best, the usage leads to an incomplete statement. At worst, its just wrong.

Merriam-Webster defines incendiary as tending to excite or inflame. While it is certainly possible that some incendiary speech might rise to the level of risk set out by Brandenburg, the two concepts are surely different. One could easily imagine speech that tends to excite or inflame that does not necessarily threaten immediate lawlessness. Thus, Hochuls misspeak on this point creates its own standard by throwing in a legally irrelevant term and mischaracterizing one of the very narrow circumstances in which speech is unprotected.

Hochuls use of hate speech, though, is a far worse legal sin.

Hate speech is not a legal designation with a specific definition. Rather, it is a conversational term usually meant to characterize speech that is overtly offensive, and usually refers to racist, sexist, homophobic, or anti-Semitic slurs. Many use the term hate speech as a kind of corollary to the term hate crimes (the history of which I detail at length here) a lack of precision that often leads to a misunderstanding about the legal status of hate speech.

The U.S. Supreme Court has never ruled that hate speech constitutes a new category of unprotected speech. Some hate speech may be obscene, while some may incite violence; on those bases, such speech could be denied First Amendment protection. However, deeming speech as hateful or hate speech does not independently make that speech a proper target for government action.

Take the KKK speech that was the crux of the Brandenburg test: if a piece of so-called hate speech does not produce or incite imminent lawless action, but rather stands on its own as a vile and loathsome thought in the marketplace of ideas, then it cant be prosecuted.

Often, when the First Amendment is discussed in legal circles, hate speech is used as a primary example of the kind of speech that is loathed but still legally protected. Against that backdrop, Hochuls declaration that she will protect the First Amendment any day of the week, but that you dont protect hate speech, is a truly pitiful statement on the governors understanding of her own responsibility as an executive official.

On Wednesday, Gov. Hochul held a press conference announcing an executive order to establish a unit to combat domestic terror. Hochul slammed the mainstreaming of hate speech, particularly online.

Hochul, announcing a threat assessment management program, said the dedicated domestic terror unit would develop best practices to address the homegrown rise in extremism.

Hate just breeds more hate, Hochul said. Think of all the people who saw the livestream of the Buffalo shooting.

They witnessed this in real time, she added. The suspect wanted people to see this.

That is a direct threat to New Yorkers, Hochul continued. The governor said she also made a referral to the New York Attorney Generals Office to investigate the social media platforms (see: Twitch) that broadcasted the horrific attack in Buffalo and legitimized replacement theory.

Were watching you now. We know what youre up to, Hochul said, addressing would-be domestic terrorists.

New York Attorney General Letitia James (D) issued a statement of her own Wednesday afternoon, announcing the very investigation of social media platforms that Hochul requested. Jamess office specifically mentioned Twitch, 4chan, 8chan, and Discord.

The terror attack in Buffalo has once again revealed the depths and danger of the online forums that spread and promote hate, Jamess statement said. The fact that an individual can post detailed plans to commit such an act of hate without consequence, and then stream it for the world to see is bone-chilling and unfathomable. As we continue to mourn and honor the lives that were stolen, we are taking serious action to investigate these companies for their roles in this attack. Time and time again, we have seen the real-world devastation that is borne of these dangerous and hateful platforms, and we are doing everything in our power to shine a spotlight on this alarming behavior and take action to ensure it never happens again.

[Images via YouTube/screengrab, ABC News screengrab]

This is an opinion piece. The views expressed in this article are those of just the author.

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If Our Government Officials Understood the First Amendment That Would Be Great - Law & Crime

Sen. Ted Cruz, R-Texas, on Monday won a significant First Amendment victory from the U.S. Supreme Court inFederal Election Commission v. Ted Cruz for Senate.

Its not the first time Cruz has been successful at the court, but it was his first time as an actual plaintiff in a case, rather than as solicitor general of Texas. The latter is a position he held prior to becoming a senator, one in which it was his job to represent Texas before the Supreme Court.

Mondays ruling was a 6-3 decisionthe typical conservatives vs. liberals splitwith Chief Justice John Roberts and his colleagues throwing out a particularly troublesome provision of federal campaign finance law as a violation of the First Amendment.

The liberals on the court almost never uphold the First Amendment when it comes to restrictions on political speech and activity.

When Cruz ran for reelection in 2018, he loaned his campaign $260,000. All federal candidates can loan money to their campaigns under federal law, and campaigns can also borrow from third-party lenders.

As Roberts wrote in the decision, this loan provision is important because it allows candidates to jumpstart a fledgling campaign or finish strong in a tight race.

Cruz had just such a tight race in 2018, when hedefeatedBeto ORourke by only 2.6 percentage points, the closest Senate race in Texas in 40 years and, according to the court, the most expensive Senate race in history at that time.

Keep in mind that individual contributions to a campaign are limited to $2,900 for the primary and the same amount for the general election.

To repay such loans and other campaign debt, candidates can continue to raise money in contributions from donors after the election.However, Section 304 of the Bipartisan Campaign Reform Act of 2002 (codified at52 U.S.C. 30116(j))the federal law I helped enforce when I was a commissioner at the Federal Election Commissionprovides that a candidate who loans money to his campaign cannot be repaid more than $250,000 from contributions made to the campaign after the election. (Pre-election contributions can be used to pay off a loan no matter how much it is.)

The FEC issued a regulation enforcing this provision, including a rule saying that to the extent the loan is more than $250,000, a campaign can only use pre-election contributions to repay the portion of the loan above that amount if the repayment occurs within 20 days of the election. Cruz was repaid $250,000 by his campaign after the 20-day deadline but was still out $10,000.

The FEC went to great lengths to try to argue that the candidate and senator who had actually lost money because of this statutory provision and the FEC regulation did not have standing to sue, in part because his injury was self-inflicted.

But the court quickly dismissed that claim, saying that it has never recognized a rule of this kind and instead has made it clear that an injury resulting from the application or threatened application of an unlawful enactment remains fairly traceable to such application, even if the injury could be described in some sense as willingly incurred.

But the substantive question, according to the court, was whether a law that increases the risk that candidate loans over $250,000 will not be repaid in full, inhibiting candidates from making such loans in the first place violates the First Amendment by limiting political speech and activity.

As the court said, the First Amendment has its fullest and most urgent application precisely to the conduct of campaigns for political office.

It safeguards the ability of a candidate to use personal funds to finance campaign speech, protecting his freedom to speak without legislative limit on behalf of his own candidacy. Furthermore, this broad protection reflects our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.

Although this isnt discussed in the courts opinion, thecensorship,wokeism,cancelculture,speech codes, and persecution of conservativespeakersoccurring everywhere across America show that the left doesnt agree that public debate should be uninhibited, robust, and wide-open.

According to the court, the burden on First Amendment expression by this limitation is evident and inherent. Even though the statutory provision does not limit the amount of personal funds a candidate can use for his campaign, it imposes an unprecedented penalty on any candidate who robustly exercises that First Amendment right.

What is that penalty? The court says it is the significant risk that a candidate will not be repaid if he chooses to loan his campaign more than $250,000.

And that risk in turn may deter some candidates from loaning money to their campaigns when they otherwise would, reducing the amount of political speech.This ability to loan money to a campaign is especially important for new candidates and challengers, and early spendingand thus early expressionis critical to a newcomers success.

As the court has said on numerous occasions, the only justification for campaign restrictions that burden the First Amendment are those that prevent quid pro quo corruption or its appearance, i.e., candidates promising to take certain actions in exchange for contributions.

The court has rejected other justifications frequently used by so-called reformers, such as reducing the amount of money in politics, leveling electoral opportunities by equalizing candidate resources, or limiting the general influence a contributor may have over an elected official.

Here, the Biden administration tried to argue that the contributions at issue raise a heightened risk of corruption because of the use to which they are put: repaying a candidates personal loans and that postelection contributions are particularly troubling because the contributor will knownot merely hopethat the recipient, having prevailed, will be in a position to do him some good.

The court met those arguments with skepticism.

It pointed out that the government was unable to produce a single case of quid pro quo corruption in this contexteven though most States do not impose a limit on the use of postelection contributions to repay candidate loans.

Moreover, contribution limits even postelection are still capped at $2,900 under federal law, the amount considered to not risk the problem of possible corruption.

Furthermore, if that was really a risk, why does the $250,000 restriction apply to losing candidates, too?Obviously, they are in no position to grant official favors, and the government did not provide any anti-corruption rationale to explain why postelection contributions to those candidates should be restricted.

The only evidence the Biden administration produced to justify this statute was a scholarly article, a poll, and statements by members of Congress claiming that these contributions carry a heightened risk of at least the appearance of corruption.

The court pointed out major defects in both the article and the poll and said that a few stray floor statements [by members of Congress] are not the same as legislative findings that might suggest a special problem to be addressed.

All of this was pretty meager in the courts opinion, given that we are considering restrictions on the most fundamental First Amendment activitiesthe right of candidates for political office to make their case to the American people.

The dissentauthored by Justice Elena Kagan and joined by Justice Sonia Sotomayor and outgoing Justice Stephen Breyermakes the nonsensical claim that this loan repayment limit is acceptable because postelection contributions are a gift that enrich the candidate personally, allowing him to buy a car or make tuition payments or join a country club.

That last claim is especially humorous since in the minds of many liberals, being a member of a country club seems to be theultimate sinand a sign of corruption.

However, as the chief justice wrote, This forgets that we are talking about repayment of a loan, not a gift. If the candidate did not have the money to buy a car before he made a loan to his campaign, repayment of the loan would not change that in any way.Such contributions simply restore the candidate to the status quo ante he had before the election.

The Supreme Court, Roberts wrote, has the role to decide whether a particular legislative choice is constitutional. Here, the Government has not shown that Section 304 furthers a permissible anti-corruption goal, rather than the impermissible objective of simply limiting the amount of money in politics.

So, Cruz won a First Amendment victory not just for himself, but also for other candidates (and their supporters) who want to run for office so they can make a difference in the political life of our country.

This piece originally appeared in The Daily Signal

Continued here:
Sen. Ted Cruz, First Amendment Win at Supreme Court in Campaign Finance Case - Heritage.org

A federal judge ruled Monday that North Carolina's beer bureaucrats violated the Constitution when they tried to ban a beer because they disliked the art on the label.

The offending label was wrapped around bottles of Maryland-based Flying Dog Brewery's Freezin' Season Winter Ale, and appears to show a tiny appendage between the legs of a Ralph Steadman cartoon character. Last year, the North Carolina Alcoholic Beverage Control (ABC) Commission told Flying Dog that the beer could not be sold in the state due to the "inappropriate" and "in bad taste" label design.

But there's no accounting for taste in the First Amendmentindeed, the most fundamental aspect of the constitutional protections afforded to free speech is that government officials can't prohibit expression or art simply because they dislike it.

On Monday, Judge Terrence Boyle confirmed as much, writing that prior court rulings regarding commercial speech "should have placed any reasonable state liquor commissioner on notice that banning a beer label based on its content would violate the First Amendment."

"The challenged regulation is facially unconstitutional because it is overbroad and otherwise not narrowly tailored to achieve North Carolina's proffered substantial interest," Boyle concluded.

Jim Caruso, CEO of Flying Dog, calls the ruling "a resounding victory for the First Amendment."

"With the First Amendment seemingly under attack from all sides, it is heartening to see court decisions like this that protect the freedoms that it embodies," says Caruso, who is a financial supporter of Reason Foundation, the nonprofit that publishes this website. "The First Amendment is the last defense against authoritarian and arbitrary government and it must be protected against any and all threats."

The North Carolina ABC argued in court documents that its beer label regulations are meant to protect shoppers' eyes from vulgar and sexual content. If Flying Dog wants to sell its beer in North Carolina, the ABC argued, then "it can do so in ways other than showing a naked cartoon figure with a naked cartoon penis."

A surprising amount of the legal back-and-forth in the case revolved around the question of whether the cartoon figure on the label is, in fact, sporting a tiny member between its legs. While the label "shows a small protrusion that is where one would expect to find a penis on most male humans," it is "otherwise not at all identifiable as one. There are no constituent parts of a penis, no testicles, and it is not engorged. It is a small nub that merely suggests a penis. It is certainly not sexually explicit," the brewery's lawyers wrote in court documents.

At one point, Flying Dog's lawyers entered a "super-zoom of the 'penis'" into the court record.

"It may not have all the bells and whistles, but it's a penis," attorneys for the North Carolina ABC wroteyes, reallyin response.

But Boyle noted that the state's rules are, in fact, far more expansive than merely policing sexual or pseudo-sexual content. And the judge sided with Flying Dog's contention that those rules are not only vast but also inconsistently applied.

AsReasonhas previously covered, the North Carolina ABC has blacklisted about 230 beer and wine brands since 2002 for having labels or names that offended the board's sensibilities. Ironically, the North Carolina ABC reportedly told Utah-based Wasatch Brewery that its "Polygamy Porter" could not be sold in the state because "polygamy is illegal." But the board also banned a beer named "Kissing Cousins" despite the factthat it isliterally legal to marry your first cousinin North Carolina.

Boyle concluded that the North Carolina ABC's rules prohibiting speech that regulators deem "undignified, immodest, or in bad taste" could give the state "vast" power over the type of advertising allowed.

"Indeed, the Supreme Court has recently reaffirmed 'the bedrock First Amendmentprinciple [that] Speech may not be banned on the ground that it expresses ideas that offend,'" wrote Boyle, citing the landmark 2017 Supreme Court ruling Matal v. Tam.In that case, the court found that that the federal Patent and Trademark Office (PTO)could not prevent all-Asian dance-rock band The Slants from trademarking its name, even if the name violated PTO rules against disparaging "persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." Restrictions on commercial speech must serve a "substantial" government interest and must be "narrowly drawn," the court held inMatal.

It's obviously silly for alcohol regulators to be concerned with what images appear on beer labels, but Monday's ruling leaves no doubt that it's unconstitutional too.

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The First Amendment Protects the Right To Put a Tiny Penis on a Beer Label - Reason

The question came before the Court in Bd. of Ed. v. Pico, and four Justices (led by Justice Brennan) took the view that "local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books." Four other Justices (led by Chief Justice Burger) expressly rejected this view (except in the narrow situation where the disagreement was based on pure partisanship, for instance if a Democrat-run board removed books because they were written by Republicans or because they praised Republicans). And the swing vote, Justice White, expressly refused to opine on this issue:

The plurality issue[s] a dissertation on the extent to which the First Amendment limits the discretion of the school board to remove books from the school library. I see no necessity for doing so at this point.

[This case] poses difficult First Amendment issues in a largely uncharted field. We should not decide constitutional questions until it is necessary to do so, or at least until there is better reason to address them than are evident here.

Justice White concurred with Justice Brennan's opinion solely as to the propriety of remanding for a trial on whether the school board removed the books based on viewpoint or instead based on their being "in essence, vulgar" (which even the challengers "implicitly conceded" would be a permissible basis for removing the books, at least if they "were pervasively vulgar"). But he disagreed with Justice Brennan on the consequence of any such finding:

What about lower courts? Two federal appellate courts have characterized the Brennan opinion as expressing the view of the Court, see Monteiro v. Tempe Union High School Dist. (9th Cir. 1998) and Turkish Coalition of Am., Inc. v. Bruininks (10th Cir. 2012).

But three other federal appellate courts have disagreed, and have recognizedI think correctlythat Pico didn't resolve the issue; e.g., Griswold v. Driscoll (1st Cir. 2010):

Pico's rule of decision, however, remains unclear; three members of the plurality recognized and emphasized a student's right to free enquiry in the library, but Justice Blackmun disclaimed any reliance on location and resorted to a more basic principle that a state may not discriminate among ideas for partisan or political reasons, and Justice White concurred in the judgment without announcing any position on the substantive First Amendment claim.

Likewise with Muir v. Alabama Ed. Television Comm'n (5th Cir. 1982), which concluded that in Pico "the Supreme Court decided neither the extent nor, indeed, the existence [or nonexistence], of First Amendment implications in a school book removal case," because "[t]he Fifth Member of the Court [Justice White] voting for the judgment expresses no opinion on the First Amendment issues." And likewise with ACLU of Florida v. Miami-Dade County School Bd. (11th Cir. 2009), which noted that the view that "school officials may not remove books from library shelves 'simply because they dislike the ideas contained in those books and seek by their removal to prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion'" was "the standard that failed to attract a majority in the Pico case."

The matter, then, is not clear. Lower courts may indeed themselves decide that viewpoint-based removals of books from school libraries violate the First Amendment, and they may find Justice Brennan's opinion to be persuasive. And schools may reasonably worry that this might happen, and might conclude that it's better to avoid that litigation. (Prof. Justin Driver so suggests, in Tony Mauro's recent Freedom Forum column.) But courts and schools may instead conclude otherwise, and be more persuaded by Chief Justice Burger's dissent.

Note, by the way, that this is all just about public school library books. Decisions to remove books or topics from public school curricula wouldn't be precluded even under Justice Brennan's opinion; that opinion noted that "Respondents do not seek in this Court to impose limitations upon their school Board's discretion to prescribe the curricula of the Island Trees schools," and added (in a part that got three votes),

We are in full agreement with [the school board] that local school boards must be permitted "to establish and apply their curriculum in such a way as to transmit community values," and that "there is a legitimate and substantial community interest in promoting respect for authority and traditional values be they social, moral, or political."

Petitioners might well defend their claim of absolute discretion in matters ofcurriculumby reliance upon their duty to inculcate community values.

And the dissenting four Justices were even more firm on this point about school board control over the curriculum. (The question whether the Establishment Clause limits school authority over including religious topics or excluding topics that are perceived as antireligious is a separate matter; I'm speaking here of non-religion-related curriculum choices.)

Read more from the original source:
Does the First Amendment Bar Public Schools from Removing Library Books Based on Their Viewpoints? - Reason

NBC political director and host of Meet The Press Chuck Todd said Tuesday that leading Republicans are using First Amendment protections to appease white supremacists in America.

Look at the way the right try to weaponize the idea that DHS was going to essentially try to attempt to monitor hateful rhetoric. They want to make it seem likes its some sort of big brother, Todd said speaking to NBC reporter Garrett Haake during his daytime show Meet the Press Daily.

This is always what the right does to appease the white supremacist movement by saying, hey, free speech. Dont touch speech.

Todds comments come after a mass shooting in Buffalo, N.Y., over the weekend carried out against shoppers in a predominantly Black neighborhood. The suspect is a white teenager who had allegedly espoused white supremacist ideology in a manifesto posted online before the attack.

Leading Democrats have blamed Republicans language on immigration and race relations for bringing the fringe replacement theory into mainstream discourse.

Other critics have called on social media companies to do more to monitor and curb hateful content online.

Republicans on the House Judiciary Committee earlier this month raised concerns about Nina Jankowicz, head of the new Disinformation Governance Board within the Department of Homeland Security, blasting her as overseeing what they have described as a an Orwellian ministry of truth.

Fox Newss Tucker Carlson, one of the most influential voices in conservative media, warned on his show Monday that Democrats and President Biden would use the attack in Buffalo as a pretext to censor speech.

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Chuck Todd: GOP using First Amendment to appease the white supremacist movement - The Hill