Mediaboss Marketing

Kevin Frazier is an Assistant Professor at the Crump College of Law at St. Thomas University. He previously clerked for the Montana Supreme Court.

The First Amendment protects a marketplace of ideasideally, speakers can freely offer information and the public audience can evaluate that information in light of other ideas, arguments, and proposals. This exchange has a clear goal: the maintenance of a deliberative democracy.

Content generated by AI will soon cause a catastrophic market failure, unless we act now to protect our ability to converse with and learn from one another. Two facts make that impending failure clear: first, in just three years, 90 percent of online content may be generated by AI; and, second, humans struggle--and will increasingly struggle as AI improves--to identify AI-generated speech.

The upshot is that our marketplace of ideas will soon be a marketplace of illusion and confusion. Its time to establish a Right to Reality. Our main marketplaces from Facebook to The New York Times--should have a legal obligation to label the extent to which content is altered by AI or organic--i.e., created by humans.

Though this Right to Reality may seem far fetched, its grounded in the core principles of the First Amendment. By way of example, the U.S. Supreme Court has held that theres a right to receive information. Justice Brennan, writing for the plurality in Board of Education v. Pico, argued that "[t]he right of freedom of speech and press embraces the right to distribute literature, and necessarily protects the right to receive it. The dissemination of ideas can accomplish nothing if otherwise willing addresses are not free to receive and consider them."

Sign up for The Fulcrum newsletter

In an information ecosystem polluted by altered content willing addresses lack that freedom. For one, its nearly impossible to receive organic information if it requires sorting through mountains of AI-generated mis- and disinformation. Second, even if one stumbled across organic information in that setting, they may not know it because of the increasing capacity of AI tools to mirror organic content.

Astute readers may contest the Right to Reality on the basis that the First Amendment under the Federal Constitution only protects against government interference. That argument has some weight--though, as an aside, the U.S. Supreme Court has recognized First Amendment rights in some settings involving private actors. Nonetheless, to the extent the federal First Amendment is bounded, theres another legal home for the Right to Reality--state constitutions.

Many state constitutions have distinct freedom of speech provisions that have been interpreted to afford greater protections. Case in point, the New Jersey Supreme Court held that freedom of speech and assembly provisions under the state's constitution protected students distributing political leaflets at Princeton, a private university. The court explained that a limited private right of action may exist based on the typical use of the space, whether the public had been invited to use that space, and the purpose of the expressive activity in question. Courts in California, Pennsylvania, and beyond have reached similar conclusions.

Theres little denying that our modern public spheres, including social media platforms, fit the profile of a space that ought to be subject to regulation under such state constitutional speech provisions. Social media platforms are commonly and increasingly used to exchange political views and news, are designed to facilitate such exchange, and are generally open to the public.

The legal viability of the Right to Reality is also bolstered by its minimal impact on expressive activity. Unlike other provisions that have run afoul of freedom of speech protections, the Right to Reality would not remove any content from public forums but merely assist in the evaluation of that content. Its also worth pointing out that the ability to evaluate the accuracy and origin of information serves several societal goals.

Our democracy cannot function if voters cannot confirm whether a candidate or a computer generated a message. Our children will struggle to mature into well-rounded citizens if they solely interact with altered content. Our collective capacity to challenge the status quo will collapse if we outsource our critical thinking to AI tools.

In short, its now or never for a right to reality.

Read the rest here:
AI and a marketplace of illusion and confusion - The Fulcrum

COLUMBUS, Ohio Theres an increased effort in Ohio to require more candidates to declare a party affiliation before putting their name on the ballot.

A recently passed law requires certain judicial candidates to make that information known, and the latest proposal out of the Statehouse wants local school board members to be added to the list.

Most voters do not pay close attention to politics, said Justin Buchler, a political science professor at Case Western Reserve University. Whether we are talking about the national level, the state or the local level. And that means they tend to look for cues in the simplest cue that voters tend to have is a party label.

Meanwhile, not everyone sees this as a benefit. Ohio Supreme Court Justice Jennifer Brunner filed a lawsuit over party labels being used in certain races. The lawsuit is centered on the new rule that requires certain judicial candidates to declare their party affiliation on the ballot. Brunner experienced the impact of party labels on the ballot first hand in 2022 when she ran against Republican Sharon Kennedy in the race for Ohio Supreme Court chief justice.

Ohio judicial code limits what candidates for elected judicial officers can say, and that puts judicial candidates in a different more restrictive place than other candidates who are running with party labels, said Jonathan Entin, Professor of Law at Case Western Reserve University.

The lawsuit claims party labels for these judicial candidates violate the First Amendment. But, political experts say its not that simple.

The concern becomes one of the First Amendment, said Atiba Ellis, a Professor of Law at Case Western Reserve University. One could, on the one hand, see that that information might be helpful to understand what a judge thinks and where they might be coming from. On the other hand, some might see this as a form of compelled speech in the sense of the government in issuing the ballot. Is labeling a candidate in a way that the candidate might not be labeled.

While constitutional law experts say a similar case could be made for local school board races. They also say the recent push to make more races partisan could be politically motivated.

Its tended to come from conservatives and republicans who have been making a big issue out of some of the things that or maybe being taught or they claim is being taught in schools or the kinds of materials that are available in school libraries, Entin said.

Read the original post:
Increased efforts to require party labels in Ohio races - Spectrum News 1

This article is part of TPM Cafe, TPMs home for opinion and news analysis. It was originally published at The Conversation.

When Louisiana passed a law in August 2023 requiring public schools to post In God We Trust in every classroom from elementary school to college the author of the bill claimed to be following a long-held tradition of displaying the national motto, most notably on U.S. currency.

But even under recent Supreme Court precedents, the Louisiana law may violate the establishment clause of the First Amendment, which prohibits the government from promoting religion. I make this observation as one who has researched and written extensively on issues of religion in the public schools.

The Louisiana law specifies that the motto shall be displayed on a poster or framed document that is at least 11 inches by 14 inches. The motto shall be the central focus and shall be printed in a large, easily readable font. The law also states that teachers should instruct students about the phrase as a way of teaching patriotic customs.

Similar bills are being promoted by groups like the Congressional Prayer Caucus Foundation, a nonprofit that supports members of Congress who meet regularly to defend the role of prayer in government. To date, 26 states have considered bills requiring public schools to display the national motto. Seven states, including Louisiana, have passed laws in this regard.

The Supreme Court has long treated public schools as an area where government-promoted religious messaging is unconstitutional under the First Amendments establishment clause. For example, the Supreme Court held in 1962, 1963, 1992 and 2000 that prayer in public schools is unconstitutional either because it favored or endorsed religion or because it created coercive pressure to religiously conform. In 1980, the court also struck down a Kentucky law requiring the Ten Commandments to be posted in classrooms.

At the same time, the court has protected private religious expression for individual students and teachers in public schools.

The Louisiana law comes at a time of rising concerns about Christian nationalism and on the heels of a pivotal court case. In the 2022 case Kennedy v. Bremerton School District, the court overturned more than 60 years of precedent when it ruled that a public school football coachs on-field, postgame prayer did not violate the establishment clause. In doing so, the court rejected long-standing legal tests, holding instead that courts should look to history and tradition.

The problem with using history and tradition as a broad test is that it can change from one context to the next. People including lawmakers are apt to ignore the negative and troubling lessons of U.S. religious history. Prior to the Kennedy decision, history and tradition were used by a majority of the court to decide establishment clause cases only in specific contexts, such as legislative prayer and war memorials.

Now, states like Louisiana are trying to use history and tradition to bring religion into public school classrooms.

Contrary to what people often assume, the phrase In God We Trust has not always been the national motto. It first appeared on coins in 1864, during the Civil War, and in the following decades it sparked controversy. In 1907, President Theodore Roosevelt urged Congress to drop the phrase from new coins, saying it does positive harm, and is in effect irreverence, which comes dangerously close to sacrilege.

In 1956, amid the Cold War, In God we Trust became the national motto. The phrase first appeared on paper money the next year. It was a time of significant fear about communism and the Soviet Union, and atheism was viewed as part of the communist threat. Atheists were subject to persecution during the Red Scare and afterward.

Since then, the motto has stuck. Over the years, legal challenges attempting to remove the phrase from money have failed. Courts have generally understood the term as a form of ceremonial deism or civic religion, meaning religious practices or expressions that are viewed as being merely customary cultural practices.

Even after the Kennedy ruling, the Louisiana law may still be unconstitutional because students are a captive audience in the classroom. Therefore, the mandate to hang the national motto in classrooms could be interpreted as a form of religious coercion.

But because the law requires a display rather than a religious exercise like school prayer, it may not violate what has come to be known as the indirect coercion test. This test prevents the government from conducting a formal religious exercise that places strong social or peer pressure on students to participate.

The outcome of any constitutional challenge to the Louisiana law is far from clear. Prior cases involving the Pledge of Allegiance offer one example. Though the Supreme Court dismissed on standing grounds the only establishment clause challenge to the pledge it has considered, lower courts have held that reciting the pledge in schools is constitutional for a variety of reasons.

These reasons include the idea that it is a form of ceremonial deism and the fact that since 1943 students have been exempt from having to say the pledge if it violates their faith to do so.

The Louisiana law, however, requires instruction about the national motto.

If the law is challenged in court and upheld, teachers could teach that the motto was adopted when the nation was emerging from McCarthyism and fear of communism was widespread. Moreover, they could teach that many people of faith throughout U.S. history would have viewed this sort of display as against U.S. ideals.

More than two centuries before Roosevelt argued that it was sacrilegious to put In God We Trust on coins, the Puritan minister and Colonist Roger Williams famously proclaimed that forced worship stinks in Gods nostrils. Williams founded the colony of Rhode Island, at least in part, to promote religious freedom.

Additionally, there is no prohibition on alternative designs for the national motto posters as long as the motto is the central focus of the poster. In Texas, a parent donated rainbow-colored In God We Trust signs and others written in Arabic, which were subsequently rejected by a local school board. This situation, which gained significant media attention, brought the exclusionary impact of these laws into public view.

It could be argued that accepting wall hangings that favor Christocentric viewpoints and rejecting those that reflect other religions or add symbols such as the rainbow is religious discrimination by government. If so, schools might be required to post alternative motto designs that meet the letter of the new law in order to uphold free speech rights and prevent religious discrimination.

The Louisiana law would have been brazenly unconstitutional just two years ago. But after the Kennedy decision, the law may survive a potential legal challenge. Even if it does, one thing is for certain: It will be divisive.

This article is republished from The Conversation under a Creative Commons license. Read the original article.

More here:
Louisiana's 'In God We Trust' Law May Violate Establishment Clause Of The First Amendment - TPM

Will McRaneys legal case against the Southern Baptist North American Mission Board will take a dramatic turn this week as a group of state Baptist convention leaders, former NAMB employees and former denominational officials submit an amicus brief alleging NAMB is dangerously misrepresenting Baptist polity.

Randy Adams, executive director of the Northwest Baptist Convention, is gathering signatures for the friend of the court brief that will be filed this week in the Fifth Circuit U.S. Court of Appeals in support of McRaneys claim and against NAMBs defense that it cannot be held liable for McRaneys firing as president of the Baptist Convention of Maryland and Delaware.

Randy Adams

Although the text of the brief is not yet public, Adams said it quotes Baylor University church historian Barry Hankins saying if NAMBs interpretation of the First Amendment prevails, every Baptist entity that cooperates in any way with the SBC will be put at risk.

NAMB and its attorneys have said the exact opposite, claiming secular courts cannot intervene in ecclesial matters, meaning the inner working of religious bodies.

McRaney contends the so-called Ecclesial Exemption Doctrine does not apply in his case because he was not an employee of NAMB and therefore this is not about NAMBs internal personnel policies. He contends NAMB and its president, Kevin Ezell, defamed him by demanding leaders of the two-state convention fire McRaney or lose $1 million in funding and by threatening conference leaders in other states not to hire McRaney.

Throughout his seven-year ordeal, McRaney has portrayed Ezell as a vindictive micro-manager who bullies other Baptist leaders and gets his way because he controls tens of millions of dollars in offering money for missions. Ezell denies any wrongdoing, and thus far, his trustees have backed him.

Adams said Sunday, Nov. 5, that many Baptist pastors, associational leaders and convention leaders have already said they want their name on the brief that will be filed on Tuesday, Nov. 7. He put out a call for anyone who wants to join the brief to contact him by 4 p.m. Eastern time Monday, Nov. 6.

He said Hankins, the Baylor scholar, wrote in the brief: It is my opinion as a scholar of church-state relations in the U.S. that NAMBs First Amendment defense in this case, if accepted by the courts, would actually undermine religious liberty rather than safeguard it.

On Saturday, Nov. 4, Adams participated in a brief video chat with Bobby Gilstrap, a former state convention leader and missionary who also has been the target of criticism by Ezell. The video was posted on social media with a call to enlist additional signers to the brief.

Adams recalled an earlier faux pas in the McRaney case when the SBC Ethics and Religious Liberty Commission filed an amicus brief with the U.S. Supreme Court saying the SBC worked in a hierarchy like Roman Catholics or United Methodists. In reality, the SBC prides itself on its non-connectional governance, with every church and convention claiming autonomy.

An earlier judge in the case really got our polity wrong, Adams told Gilstrap. But one reason he got the polity wrong, we believe, is because of the method in which NAMB has argued.

Adams said he was compelled to organize the amicus brief because so far the amicus briefs that have been filed have been on behalf of NAMB and they have argued incorrectly Baptist polity. So we feel the record needs to be challenged and the record needs to be set clean and clear as to who Baptists are.

He added: Were going to challenge and set clear the record that Baptist churches, associations and conventions are autonomous and independent, and we have no ruling authority from any outside group, whether it be the North American Mission Board or a seminary or another church across town that happens to affiliate or cooperate with the SBC.

Related articles:

McRaney to file appeal and keep his case against NAMB alive

U.S. district judge dismisses McRaneys case against NAMB

Seven years later, Will McRaney might get his day in court against NAMB maybe

Key witness offers damning testimony against Ezell as NAMB gets McRaney trial delayed two months

McRaney warns dismissal of his case against NAMB raises urgent threat to Baptist autonomy

NAMBs lies are worse than McLaurins, Will McRaney charges

Original post:
Coalition of Baptist leaders will file amicus brief challenging NAMB's view of First Amendment - Baptist News Global

NICK EICHER, HOST:Its Monday morning November 6th and a brand new work week for The World and Everything in It. Good morning! Im Nick Eicher.

JENNY ROUGH, HOST:And Im Jenny Rough. Its time now for Legal Docket.

AUDIO:And we have a big, breaking story today. Many of you probably heard that Port,little Port Huron, the city of Port Huron, is going to the Supreme Court.

EICHER:Audio from a TV show produced in Port Huron, Michigan. A town with a population less than 30-thousand generating a case thats going to the Supreme Court.

ROUGH:And it stems from an action taken by the city manager of Port Huron a local official who got fed up with a persistent citizen activist posting negative comments on Facebook. The City Manager had heard enough, so he blocked the complaining citizen.

EICHER: But in so doing, did he violate the First Amendment? Its a little surprising were only now testing the question at the Supreme Court, because as long as weve had social media, it seems, weve had political brawls. But now the issue is ripe, and its not just Michigan. Theres also a case from California, and theyll both be considered.

Together they will answer the question: When can a public official block someone on social media?

ROUGH:Last week the Supreme Court heard oral arguments in both cases. And WORLD Associate Correspondent Jeff Palomino has our report.

JEFF PALOMINO, REPORTER:Lets say you are a concerned citizen.Youve become aware of something you think is a problem in your community.You want to make your opinion known, but how best to communicate with public officials?You turn to social media.You find your public official on Facebook or X, as Twitter is now known and express your views there.

But what happens if the government official youre talking to doesnt like what you say? What if he deletes your comments? What if he blocks you from their page?

This is exactly what happened to Kevin Lindke of Port Huron.

He claims that City Manager James Freed violated his right to say what he had to say about what was going on.

But to prove he violated the First Amendment, the public official has to be shown to have engaged instateaction.

Meaning Freeds actions must be fairly attributable to the State. Not something he did in hispersonalcapacity.

By the time this case got through the appellate stage one federal appeals courtthe Sixthhad created one test to define state action. But a different appeals courtthe Ninthhad created a different one.

JUSTICE NEIL GORSUCH:In both cases, we have a profusion of possible tests to choose among.

Thats Justice Neil Gorsuch he and his colleagues on the Supreme Court have to choose which test will prevail.

Now, a quick review of the facts in both cases. The Sixth Circuit case isLindke v.Freed. City Manager Freed used his Facebook page to talk about his passions and interests, including his daughter, his wife, his dog, his work, and his favorite Bible passages. But he also posted some administrative directives he issued as city manager. And when the pandemic hit in 2020, he shared policies issued for Port Huron. Thats the case weve been talking about.

TheNinthCircuit case isOConnor-Ratcliff v. Garnier. School board members created public Facebook and Twitter pages to promote their campaigns. After they won the election, they continued to use the platforms. They posted little of a personal nature. Instead, most of the information was about school-district business and news.

Christopher and Kimberly Garnier were parents in the district and they frequently left critical comments on these pages. So, the school board members blocked them.

At oral argument, attorney Allon Kedem argued for Lindke in the Port Huron case. He proposed the first test for state action.

That test Ill call the Channel of Communication test. Heres how he explained it.

ALLON KEDEM:Under our test for state action, a public official who creates a channel for communicating with constituents about in-office conduct and then blocks a user from that channel must abide by the Constitution. This test, which focuses on how the public official is using and purporting to use that account, is consistent with this Court's precedent under which a public official who purports to act in that capacity is a state actor.

The problem with this test is that most of the city managers posts were personal. Justice Alito wanted to know when a personal page transforms to a public one.

JUSTICE SAMUEL ALITO:what if 95 percent of the posts are personal and 5 percent of the posts involve discussion of his work?

KEDEM: So it would obviously be a more difficult argument for us to make, butif there's only one place to go to interact with the city manager about directives that he himself had issued,that doesn't change the fact that if you get blocked off from that page, you're suddenly losing access to a lot of information.

But Justice Alito wasnt sure about that line. How low did it go?

ALITO: but if it's like 1 percent, one-half of 1 percent, it's not? Is that what you're saying?

KEDEM: So it's not a quantitative test. It's qualitative.

Justice Gorsuch asked Kedem what if the citizen harassed the public official about the personal posts. What if he harrasses him about his cat pictures? Is that state action?

KEDEM: So I think it could be in the exact same way that it could be if, for instance, you were on an official page of the town and you were being harassing. At some point -

JUSTICE GORSUCH: No, no, all the harassing in my hypothetical has to do with cats.

KEDEM: No, I understand.

JUSTICE GORSUCH: The commenter hates cats.

KEDEM: Sure.

JUSTICE GORSUCH: --cats.

MR. KEDEM: Sure. And -

JUSTICE GORSUCH: And maybe he hates your children too, I don't know.

(Laughter.)

JUSTICE GORSUCH: But --butif I block that person for that, at some point, you know, even though it's all my personal stuff, that's state action?

Kedem said itwouldbe state action but gave reasons why a lawsuit like that might fail.

Lawyer Pamela Karlan proposed the second test for state action. She represented the parents in the California case, the ones who sued the school board members.

Ill call her test the doing their jobs test. She explains it to Justice Alito.

ALITO:Your test is whether government officials are doing their jobs, right?

PAMALA KARLAN: That's the starting point, and it creates what I would say is a kind of rebuttable assumption that when a government official is doing her job, she is a state actor.

Justice Alito pressed with a hypothetical. A city mayor is in the grocery store where hes repeatedly approached by constituents. He really doesnt want to be bothered, but he listens to comments by supporters and people sympathetic to his policies.

ALITO: But when somebody who is a known opponent approaches the mayor, the mayor says, look, please call my office. Is the mayor doing his job when he's doing that?

KARLAN:When they're clearly off duty, that is, you know, pushing the shopping cart down the aisle, arguably, they're not doing their job.But, when they create an ongoing site like the site here, they maintain a forum, if you will...

For Karlan, people are also doing their jobs when they do things the job legally requires. As evidence, she cited various laws, including the California school districts own by-laws, that said receiving feedback from constituents was an important part of school board members duties. She explains, this is what these board members did on Facebook and Twitter.

KARLAN: And here what you have is both of the Petitioners using "we" and "our" when they talked about what the Board is doing and anybody who looks at that is going to think: This is an official website. It looks like an official website. It performs all the functions of an official website.

Those are the tests proposed by the people who were blocked. But what about the government officials who did the blocking? The officials in both cases agreed on their tests.

This third test Ill call the duty and authority test. To see if an official engaged in state action the Court must look at those two things. Heres Hashim Mooppan for the school board members.

HASHIM MOOPPAN:if there is neither the exercise of duty nor authority, that's not state action...Now that raises the further question of: Well, how do you know whether there are duties and authorities? At that point, we're not talking about a test. We're talking about how to implement the test. And I think the things that the Court should be looking at are objective indicia that are capable of disentangling the two capacities.

Objective indicia like use of government resources to maintain the page, whether a person's boss could tell him what to do on the page, or whether the official was exercising exclusive duties. Sounds easy, but the Court spent a lot of time trying to define both terms.

Heres Justice Amy Coney Barrett.

JUSTICE AMY CONEY BARRETT:I think it's very difficult when you have an official who can in some sense define his own authority. So I think, for a governor or, you know, President Trump, it's a harder call than someone like a police officer, who's a subordinate. Or I could --you know, my law clerk could just start posting things and say this is the official business of the Barrett chambers, right? (laughter.)And --and that wouldn't be okay. But if, you know, the --that wouldn't be okay. (laughter.)

Defining duty was also a problem. Should it be broadly or narrowly defined? Justice Sonia Sotomayor explained her position.

JUSTICE SONYA SOTOMAYOR:Every elected official tells me that they're on duty 24 hours a day. And so, if they are during that 24 hours creating, themselves, and posting the Facebook and doing all of the communications they're doing, why isn't that state action?

The U.S. Solicitor General filed friend of the court briefs and argued on behalf of the city officials in both cases.

She agreed duty and authority was the correct test, but added one element. In close cases, the Court should look to the nature of the property involved. Only if its government property would there be state action.

Justice Elena Kagan expressed doubt about that. Social media has changed the way we communicate. And continues to.

JUSTICE ELENA KAGAN:Andpart of that change is that more and more of our government operates on social media. More and more of our democracy operates on social media.And I worry that the rules thatyou're suggestingis really not taking into account the big picture of how much is going to be happening in this forum and how much citizens will be foreclosed from participating in our democracy if the kind of rule you're advocating goes into effect.

And therein lies the tension.

One one side, a broad test that finds almost anything to be state action risks trampling the rights of millions of government employees. It would also risk waves of litigation and an outcome that instantly makes most speech subject to government control.

On the other side, social media is one of the most powerful mechanisms for private citizens to say what they need to say, as the musician John Mayer might put it.

So, a test thats too narrow risks cutting people off from their government.

In these cases, I predict the court will - to use the words of Justice Gorsuch from oral argument - coalesce around the duty and authority test with debate among the Justices over how wide that test is.

The eventual ruling will likely mean the California school board members engaged in state action but leave room for no state action by City Manager Freed. After all, even public servants need to say what they need to say, too.

And thats this weeks Legal Docket!

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.

Read the original post:
Legal Docket: Facebook and the First Amendment - WORLD News Group