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Two major news events over the past week perfectly capture the essence of the First Amendment to the United States Constitution, and the slippery slopes that could lead to chaos due to its theoretical protections.

The first news event was last week'sNewYorkTimesreport that American intelligence units helped Ukraine targetand killRussian generals, this despite the fact that from a policy standpoint, the United States prohibits providing intelligence about the most senior Russian leaders.That same week, theWashington Postreported that U.S. intelligence had "helped Ukraine target and sink the Russian warship the Moskva."

The Russian ship Moskva before sinking

The second news event was the leaked draft order reversingRoe vs. Wade, one widely published last week that signaled that safe abortions, legal since it was decided in 1973, soon will be no more in states that choose to ban or restrict the practice.

The sub-topic under the Roe leak includes reports yesterday that protesters had chosen to picket the private residences of Supreme Court Justices Samuel Alito, the author of the Roe reversal, Brett Kavanaugh, a conservative who voted to reverse, and Chief Justice John Roberts, a conservative who voted with the Court's liberals to leave Roe intact.

The common issue between both major news events is whether freedom of the pressand the public's right to be informedshould ever be curtailed for international or national security purposes? Further, the issue under the second news event is whether the rights of protesters who peacefully assemble at the private homes of sitting justices trumps those jurists and their family members rights to feel safe in their homes?

To begin todays analysis, the First Amendment provides in pertinent part:Congress shall make no law...abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

So, as to news reports about America's shadow involvement in the Russia-Ukraine War, it is clear from the First Amendment's text that the press have every right to publish leaked information from confidential sources within the federal government or military. But as I often say, just because something is legal or right doesn't necessarily make itright, and one can certainly argue that published reports about American intervention in the Russia-Ukraine Warcouldbe used as a pretext for Russian Dictator Vladimir Putin to directly attack American interests or American military personnel in Western Europe.

Whether Putin would make such a move with conventional forces is highly unlikely due to the fact that his military is struggling mightily against an undermanned Ukraine Army and does not have the power to engage with the U.S. and her NATO allies in a protracted manner. But Putincouldauthorize engagements ranging from crippling cyber-attacks (most likely), to nuclear deployments (unlikely but possible), depending on whether he goes all fatalistic like Al Pacino at the end of Brian De Palma's classic filmScarface.

The above facts lead me to ask whether the American press removing all deniability about America's proxy involvement against Russia (per its First Amendment freedom to print) was wise? My gut level response is a strong "no!"

As to the leaked Roe reversal order, one week later, and I am still totally blown away by this breach of court decorum and security. Again, I wrote last week that I've seen traffic and child support hearing judges with far more internal security than what was shown at the highest court in the land!

While the Roe leak was surprising, unlike my stance on the Russia-Ukraine leaks, I have no problem with the media reporting the contents of the order; as I often say, "what must be done eventually might as well be done immediately,"as such, there's no discernable differences between learning that Roe will be a nullity on May 2nd than it would be to learn its fate on, say, June 25th.

Separately, while I fully understand the First Amendment's rights to peaceful assembly and to petition for redress of grievances from an intellectual standpoint, my emotional side simply does not like seeing crowds of people surrounding the homes of any government officials. And while the protesters at Justices Alito, Roberts, and Kavanaugh's homes were peaceful, the slippery slope is, what happens if one or more not so peaceful sorts show up and show out in a violent manner?

Lest we forget that nut-jobs come in both conservative and liberal varieties, and all that it takes is one committed zealot who believes they are defending women and abortion rights to turn a peaceful protest into a bloody mess. Lest we also forget that federal judges and their families have been targeted by murderers in the recentpast!

Last, lest we forget that in our copycat society, that protests at conservative justices homes today could lead to the same occurring at liberal justices homes tomorrow! I believe that many of the same folks that insouciantly shrug their shoulders at seeing Justice Kavanaugh's home surrounded due to their disdain for the man and his judicial philosophy, would be appalled if Justice Ketanji Brown Jackson or Justice Sonia Sotomayor's homes were surrounded by MAGA hat wearing protesters following a ruling. Such is but one more reason for my belief that righteous protests against this deplorable ruling are better suitedat the Supreme Court building, where there is ample security for all of our sitting justices. (Nota Bene: Yesterday, the U.S. Senate voted to extend personal security to each of the Supreme Court justices in the wake of recent protests).

To conclude, neither of the major news events have led to any broken laws by the media or individual protesters, but I remind that the rights listed within the First Amendment are wonderful when they work to form a better informed citizenry, while the same can be wonderfully problematic when said information leads to protracted war abroador wanton violence at home.

Thank you and please subscribe to the Hobbservation Pointhave a wonderful Tuesday!

Chuck Hobbs is a freelance journalist who won the 2010 Florida Bar Media Award and has been twice nominated for the Pulitzer Prize for Commentary.

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The benefits and burdens of the First Amendment - Insight News

As the fight for free speech grows more critical than ever, FIRE continues to seek the guidance of leading experts on free expression and the First Amendment to help advance our mission of protecting individual rights.

To these ends, FIRE is pleased to welcome two new members to our Board of Directors and three new members to our Advisory Council. We look forward to benefiting from their thoughtful leadership.

Meet the newest members of our Board of Directors:

Samuel J. Abrams is a visiting scholar at the American Enterprise Institute, where he focuses on questions related to civic and political culture and American ideologies. He is also a professor of politics and social science at Sarah Lawrence College, as well as a faculty fellow with New York Universitys Center for Advanced Social Science Research.

Kmele Foster is a partner at Freethink, a digital media company focused on the people and ideas changing our world. He is also a regular contributor to various national media programs and co-hosts a syndicated media commentary podcast, The Fifth Column.

Meet the newest members of our Advisory Council:

Robert Corn-Revere is a partner in the Washington, D.C., office of Davis Wright Tremaine LLP, specializing in freedom of expression and communications law. A leading First Amendment lawyer, Corn-Revere has written widely on First Amendment and communications law issues. His latest book, The Mind of the Censor and the Eye of the Beholder, shows how freedom of expression is essential to American identity.

Erica Goldberg is a professor at the University of Dayton School of Law whose scholarship focuses on tort law remedies and First Amendment rights. She began her scholarly career at FIRE, where she served as a Justice Robert H. Jackson Legal Fellow. Goldbergs work has been published in various law reviews and links to her website, In A Crowded Theater, have been featured in The Washington Post and on CNN.

Timur Kuran is a professor of economics and political science at Duke University, where he serves as the Gorter Family Professor of Islamic Studies. Kuran directs the Association for Analytic Learning about Islam and Muslim Societies and co-edits the Journal of Comparative Economics. His forthcoming book, Freedoms Delayed: The Political Legacy of Islamic Law in the Middle East, explores the historical reasons why the Middle East is the worlds most repressive region.

Each of our new members unique personal and professional experience spanning from academia to law to media has led them to a deep appreciation for free speech and academic freedom, equipping them for success in their important roles at FIRE.

And what better place to become involved with issues of free expression than FIRE, where Advisory Council member Erica Goldbergs academic journey began. FIRE is how I started publishing, which allowed me to enter academia, said the law professor and former Jackson Legal Fellow. FIRE has also shaped the lens through which I see many of the issues plaguing academia.

Erika has dedicated her career to advancing the principles FIRE holds dear and is a role model for our countrys future lawyers, said FIRE President and CEO Greg Lukianoff.

Politics and social science professor Sam Abrams also strongly identifies with FIRE, saying, [B]eing part of FIRE is part of who I am. He credits his Jewish upbringing for instilling in him a belief in the value of knowledge-seeking and open debate, informing his decision to become a professor and advocate for free expression:

[W]e read everything, argued about everything, and questioned everything. There were days we were hurt, there were days we were angry, there were days we were confused, and from all of this we became stronger and learned so much about the world and ourselves.

Abrams belief in the illuminating potential of discourse makes him a natural fit for his role on FIREs Board of Directors. Sams research into political culture on campus is documenting and quantifying the challenges to free expression there, creating opportunities for FIRE to address those challenges on a larger scale, said Lukianoff.

Lukianoff speaks highly of all the new members of FIREs Advisory Council and Board of Directors, saying I am thrilled to have each of these talented and committed people join the FIRE team.

I am thrilled to have each of these talented and committed people join the FIRE team.

He notes the important contributions of each new member, including Board of Directors member Kmele Foster, whose creative projects challenge his audiences to react to social conflict with individual courage instead of the collective fear that motivates censorship, and Advisory Council member Timur Kuran, whose research into preference falsification foreshadowed the current social dynamics on campus that make self-censorship so widespread.

Of Advisory Council member Robert-Corn Revere, Lukianoff says, Bob is not only one of the nations preeminent First Amendment litigators, but also a kind of First Amendment conscience, whether thats working with Ron Collins to secure New Yorks posthumous pardon of Lenny Bruce or reminding us all of Americas flirtation with Anthony Comstocks Victorian obsessions.

Corn-Revere has appeared frequently in FIRE media, from our So to Speak podcast to First Amendment News. Regarding his aspirations as a new member of FIREs Advisory Council, Corn-Revere said, I hope to be able to contribute in some small way to FIREs principled and nonpartisan support for a culture of free expression.

While FIREs new Advisory Council and Board members share an enthusiasm for First Amendment rights, they also recognize the grave challenges these rights face on campuses today challenges that must be surmounted.

It is a great danger to our nation that colleges and universities are not fulfilling their supposed role as spaces for free discourse, said Abrams.

Kuran agrees. In reference to the current campus climate, the professor of economics and political science says, Faculty and students live in fear of offending someones sensibilities.

Despite contemporary academias less-than-stellar track-record on issues of free expression, FIREs nonpartisan defense of its mission and tireless work to protect student and faculty rights is a reason for optimism. In Kurans words:

FIRE seeks to reinstate expressive and intellectual freedoms that academia has lost. Its work gives hope that academia will rediscover and start reasserting the core values enshrined in the mission statement of almost every American university and college.

Indeed, FIRE will defend student and faculty rights as long as rights violations continue to occur. We are grateful to our new Board of Directors and Advisory Council members for helping equip us to face threats to free expression and academic freedom, and for helping us work toward a society in which these freedoms are widely understood, valued, and protected.

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New members join FIRE's Board of Directors, Advisory Council - Foundation for Individual Rights in Education

The closely watched privacy and First Amendment battle between Clearview AI (Clearview) and the American Civil Liberties Union (ACLU) came to a close on May 9, 2022 as the parties announced a settlement and proposed consent decree that would resolve all outstanding issues. ACLU v. Clearview AI, Inc., 2020 CH 04353 (Cir. Ct. Cook City., Ill.) (motion for settlement approval filed May 9, 2022). Clearview has gained prominence and market share in recent years by amassing over three billion facial images from public sources and building a business model premised on digitizing these images and making them available to a range of customer interests and industry sectors. Market demand for this database (the Clearview App) spans law enforcement agencies at the federal and state level, U.S. national security interests, artificial intelligence companies in need of data to develop and enhance facial recognition software and a wide array of other commercial, educational and other uses. Controversy has arisen as to potential surveillance implications and potential abuses of such a database, in the U.S. and around the world.

Concerned about individual privacy interests, as exemplified by the protections afforded biometric information by the Illinois Biometric Privacy Act (BIPA), the ACLU sued Clearview in the Circuit Court of Cook County in 2020, alleging widespread BIPA violations and arguing there is no First Amendment justification for the Clearview business model that would overtake BIPA or exempt the company from BIPAs requirements.

The case has been closely watched and was hard fought from 2020 to 2022. The settlement, which is sure to draw the attention of legislators, regulators, and other courts, provides the following key compromises:

1. A Private Entity Ban, in which Clearview has agreed to a nationwide injunction barring access to the Clearview App by: (i) any private entity or private individuals unless such access is compliant with BIPA; or (ii) any governmental employee not acting in his or her official capacity.

2. An Illinois State Ban, in which Clearview has agreed to a five-year injunction against access to the Clearview App: (i) by Illinois state and local agencies and their contractors; (ii) by any private entity located in Illinois even if permissible under BIPA; and (iii) by employees of Illinois state and local agencies and their contractors, whether in their individual or official capacities.

3. A Savings Clause, in which the parties agreed there will be no restrictions on Clearviews ability to work with or contract with: (i) third-parties outside Illinois; (ii) federal agencies whether in Illinois or outside Illinois; and (iii) state or local government agencies outside Illinois.

4. An Opt-Out Program for Illinois residents, by which an Illinois resident will be allowed to submit a photo to Clearview and compel Clearview, on a best-efforts basis, to block search results and prevent any future collection of facial recognition data or images of such person.

5. Illinois Photo Screening, in which Clearview has agreed, on a best-efforts basis, not to access or use any of its existing Illinois-based facial recognition data.

This continues to be a case to watch, as the parties move forward to seek court approval. Key takeaways include the following:

1. No Compensatory Relief Almost no money will change hands. Clearview will pay an agreed $50,000 to advertise the Opt-Out program and $250,000 in attorneys fees. The large number of BIPA class actions against Clearview, currently assigned to the Northern District of Illinois by the Judicial Panel on Multidistrict Litigation, are not part of the settlement and will proceed, as will the large number of class actions and other cases in state court in Illinois.

2. Policy by Consent Decree The Clearview-ACLU settlement, if approved by the court, will govern large areas of facial recognition and privacy policy in Illinois and across the U.S., both because of the dominant market position occupied by Clearview and the types of compromises hammered out by the parties in the proposed consent decree. While ongoing regulatory and legislative efforts will continue, in Illinois and around the country, the implementation of this consent decree is sure to be closely watched by federal and state policy makers as well as litigators in state attorney general offices who may wish to seek comparable relief in their states.

3. BIPA Compliance There is still no substitute for robust BIPA compliance efforts as the most cost-effective strategy to reduce or eliminate BIPA exposure in Illinois or other courts, on either an individual or class-wide basis. It bears emphasis that the largest public BIPA settlement to date was reached in the In re Facebook Biometric Information Privacy Litigation case in California in 2020 (for a class-wide settlement of $650,000,000). BIPA is still a significant litigation exposure for many companies, and the recent Clearview-ACLU settlement will not necessarily reduce or extinguish that exposure.

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Facial Recognition: Clearview-ACLU Settlement Charts a New Path for BIPA and the First Amendment - JD Supra

The horror and hatred surrounding last weekend's massacre in a Buffalo supermarket has shocked the nation, sending yet another chilling reminder about the toxic combination of racism, access to guns and mental health that afflicts some young white men in this country. It also renewed the conversation about hate crimes, the right to free speech and the complicity of white supremacist groups in these tragedies. Daniel Medwed, GBH News legal analyst and Northeastern University law professor, joined host Paris Alston on GBHs Morning Edition to talk about the intersection of these issues. This transcript has been edited for clarity and length.

Paris Alston: So Daniel, there's been a lot of evidence coming out around this murder, this mass murder, that it was motivated by racial bias, particularly because the murderer had a white supremacist manifesto. He was influenced by white supremacist vitriol online. And there's talk about it being charged as a hate crime as a result of all that. Do you think that'll happen?

Daniel Medwed: Absolutely. All signs are pointing in that direction, Paris. Under New York law, a murder will be elevated to a hate crime and subject to an enhanced penalty if the perpetrator, quote, intentionally selects the victim or commits the act based on race, national origin, gender or some other protected status. And given the manifesto that you mentioned and all of the other facts surrounding this tragedy, it appears as though prosecutors would have a very strong basis for charging this as a hate crime.

Alston: And how does that compare to how it works here in Massachusetts?

Medwed: It's very similar here in Massachusetts. A crime becomes a hate crime when it's committed with the, quote, intent to intimidate the individual because they belong to a protected group and that the person was chosen because of their protected status. So the semantics are a little bit different, but the gist is largely the same here in the Commonwealth.

Alston: How hard is it for prosecutors to prove that? I mean, does there have to be proof that the bias was the entire reason for the crime, or much of the reason, or just part of the reason?

Medwed: Those are critically important questions. And I think the answer depends on the precise jurisdiction and the statutory language in place. Does it have to be the entire reason, as you point out, a substantial motivating factor or just part of the equation? Fortunately, here in Massachusetts, we have a 2015 SJC decision, Commonwealth v. Kelly, that supplies an answer. In that case, the court said that prosecutors do not have to prove that bias was the predominant factor or even a substantial motivating factor in a hate crime. They just have to show that the bias was part of the narrative. It's a rather benign or lenient standard for the government, which at least in theory may seem to make it a little easier to charge something as a hate crime here than in some other places.

Alston: So, Daniel, thinking about that evidence that we mentioned that we have of the shooter's motive, do defendants in these hate crime cases ever raise a First Amendment defense? You know, maybe they say that elevating an offense to a hate crime would be punishing them for viewpoints that they're entitled to have, even if they may be bigoted and offensive.

Medwed: People often make those types of arguments. It comes up a lot. A defendant will say they're being penalized for their First Amendment views and that that's unconstitutional. But those efforts have largely failed so far. And here's why. First, I think it's important to note that the First Amendment doesn't provide blanket protection for all speech. The government may impose reasonable time, place and manner restrictions on even protected speech. And not all speech is subject to robust constitutional safeguards.

Second, and I think more notably, the Supreme Court has already explicitly addressed the nexus between the First Amendment and hate crimes. In a 1993 case called Wisconsin v. Mitchell, the defendant got an enhanced sentence. If I recall, he got seven years instead of two because Wisconsin prosecutors believed that he had intentionally selected the victim based on race. It's a statute that's very similar in Wisconsin to the one in New York that we just mentioned. Mitchell, the defendant, then claimed, hey, this is a First Amendment violation. I'm being punished. I'm being given an extra sentence because of my bigoted views, because of my unpopular viewpoints. And he challenged it all the way through the Wisconsin courts. And the Wisconsin Supreme Court agreed with him and said that this was unconstitutional. He was being punished in violation of his First Amendment rights. But get this the U.S. Supreme Court then took the case and in a unanimous decision the court said no, Mitchell was not being punished for his speech. He was being punished for conduct that was animated by racial bias.

Alston: So sort of acting on those bigoted views.

Medwed: Exactly. And so motive is always an appropriate factor in sentencing. It's not the speech that's being punished. But as you point out, Paris, it's acting on those racially charged and horrific views. So that case, the Mitchell case, provides to some extent a really good safeguard for prosecutors when facing a First Amendment challenge in this context.

On a moral level, certainly they [white supremacist groups] bear a lot of responsibility for creating this vile environment in which racial hatred could flourish on a legal level, though, Paris, it's much more challenging.

Alston: I see. So, Daniel, in the couple minutes we have left with you, I want to talk to you about this growing white supremacist conspiracy known as replacement theory that's been being floated around because of what we believe to be the shooter's motive. And so this theory claims that the powers that be are pushing a population shift to replace native-born Americans with immigrants and other nonwhite people. And this has been said to be spread by everyone from fringe groups and individuals to people like Tucker Carlson on Fox News. So given that, is there any onus for what happened and maybe could happen later down the road on people or groups who may be pushing this in the media?

Medwed: Well, on a moral level, certainly they bear a lot of responsibility for creating this vile environment in which racial hatred could flourish. And it's foreseeable that some people are going to act on these horrific views. On a legal level, though, Paris, it's much more challenging. So on the one hand, the legal theory here is often complicity or accomplice liability, that these white supremacist groups aid or abet "abet" is just a fancy legal word for encourage they encourage racial hatred and therefore they have acted as accomplices in these racially charged crimes. So you can argue that they've acted, that they've aided or abetted in these crimes.

On the other hand, you're an accomplice if you both act and you have a culpable mental state, you have to act with the purpose for that particular crime to occur. And that's where it becomes difficult for prosecutors to argue that these groups are accomplices because they can always say, hey, our views are very general, they weren't particular to this defendant, to this act. It wasn't our purpose to foment this particular act of violence.

Alston: Well, Daniel, per usual, you have made something very complicated, a lot easier to understand, and we thank you for that.

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Hate crimes and free speech: Where do we draw the legal line? - GBH News

Newsbusters' Nicholas Fondacaro highlighted this moment where the ladies of ABC's 'The View' tell House Republican Conference leader Rep. Elise Stefanik to resign: "We're warning you because it's only going to get worse! Quit now!"

"Being black this long, Im aware! I know it's code! I know. We recognize it," Whoopi Goldberg said.

Whoopi Goldberg said: "It's been around for quite some time. It's now upfront. It's no longer me saying, 'hey, does that rub anybody else the wrong way?' It's real. White people see it, black people see it. You gotta fix it. We gotta go."

SUNNY HOSTIN: Yeah. You know, I think to Ana's point, we need to point fingers, and we had Elise Stefanik whose spokesperson also said -- it was a senior adviser for Elise Stefanik -- I have a legal note. A senior adviser for Representative Elise Stefanik said in a statement that, despite sickening and false reporting, the Congresswoman has never advocated for any racist positions.

WHOOPI GOLDBERG: Ohh, not true!

BEHAR: Oh, please!

ANA NAVARRO: Its in writing! We have the receipts! You paid for them!

HOSTIN: Fox News as said that Tucker Carlson wasn't endorsing the white replacement theory, but instead making an argument about voting rights. That's my legal notes. But let me say this very quickly, what he did was he politicized race theory. He politicized it. So, he's saying that Democrats are replacing native-born Americans with immigrant voters.

GOLDBERG: A lot of the Democrats are American voters. What are you talking about, Tucker?

HOSTIN: Its replacement theory. It's code, and we hear him and we know it.

GOLDBERG: Being black this long, Im aware! I know it's code! I know. We recognize it!

HOSTIN: So, they should be allowed to hide behind that!

GOLDBERG: But they are. Because they're allowed to hide behind the First Amendment.

HOSTIN: But they shouldn't be allowed to hide their hateful, racist rhetoric, and to Ana's point, we need to be able to point it out.

SARA HAINES: But Sunny, theyre not hiding.

BEHAR: Lets not forget where this started. It started with birtherism. I mean, it's been in the country --

GOLDBERG: It's been here for many years.

BEHAR: But it got exacerbated with Trump starting with birtherism, and then that Charlottesville March. Jews will not replace us. You remember that? It all sort of came from then, and it's gotten worse and worse and worse.

GOLDBERG: It's been around for quite some time. It's now upfront. It's no longer me saying, hey, does that rub anybody else the wrong way? It's real.

HOSTIN: But you have people like Elise saying, but I'm not racist. I'm not pushing it.

BEHAR: She's a liar! She's a liar!

Originally posted here:
Whoopi Goldberg: Racists Like Elise Stefanik And Tucker Carlson Are Allowed To Hide Behind The First Amendment But "We Recognize The Code" -...