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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.

See more here:
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.

Read more here:
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.

Read more here:
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" -...

My Fellow Morganites,

As we prepare for this weeks Commencement Exercises, I greet you with a heavy heart. It is difficult for many of us to accept the harsh reality that five mass shootings occurred this past weekend within our nation. And, like many of you, I felt the fatal incident in Buffalo, New York, strike at the heart of our historically Black institution, because the 10 lives lost were African-American.

Approximately two years ago, our great nation erupted in protest in the aftermath of the murder of George Floyd. However, despite the overwhelming groundswell that ensued, it shockingly, and dishearteningly, appears that the normalization of social injustice and racial violence in this country continues. In the face of this trend, it is imperative that we all are assured, and make it clear to others, that violence has no place in a civilized society. We cannot allow hatred to feel welcomed in our communities no matter the race, color, ethnicity or religion. We cannot sit idly by during what may be one of the most challenging and pivotal moments in U.S. history since the Civil War.

In the days preceding our Commencement Exercises this week, I remind the entire Morgan family that here at Morgan, we Grow the Future to Lead the World. We intentionally and unapologetically equip our students with the education and training necessary to make this world a better place. We all have a role in creating a better world. When heinous attacks against humanity occur, we need to stop and check ourselves to make sure we are doing our part to stop its unwelcomed progression from taking residence in our communities, our workplaces and our nation.

I remind all of us of Morgans indisputable legacy of battling racism and racial hatred, which dates as far back as 1910, when our first graduate, George W.F. McMechen, and his law partner, W. Ashbie Hawkins, a graduate of Morgans predecessor, Centenary Biblical Institute boldly challenged the residential color line in western Baltimore City. At the turn of the century, our first graduate was one of Marylands earliest freedom fighters. And, he provided an excellent model for us. As Morganites, we do not stand down in the face of adversity; we stand tall in its face. We are no strangers to injustice or racial hatred. And, even with the best laboratory testing available, fear simply cant be found in our Morgan DNA. We will engage this challenging season the same way we have met foes in the past: head on.

I encourage each of you to take a moment sometime today and write to your elected officials. Express your outrage about the state of current affairs, particularly as they relate to gun control, and advocate for tougher legislation. Push your representatives, at all levels local, state and federal to capably address hate crimes and domestic terrorism with ironclad legislation that prosecutes perpetrators to the fullest extent of the law. We all value the First Amendment, as a seminal tenet of our democratic republic. But, the First Amendment was intended to be exercised with great responsibility. We must be both responsible and accountable to one another as Americans, and above all, as a human race.

Let our faith in one another be renewed as we come together in celebration of the majestic milestone of Morgan matriculation and degree conferment. Let us be reminded that what happens in one community can happen in any community, and that one act of racial violence is a threat to peace everywhere. As Morganites, we will continue to stand in solidarity with those who stand for peace. Our thoughts and prayers go out to all of those who tragically lost their lives this weekend, and to their surviving families, friends and communities.

Respectfully,

David K. WilsonPresident

More:
Morgan State University President David K. Wilson Reflects on Mass Shooting and Hate Crimes - Morgan State University