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In July 2016, protests unfolded in Baton Rouge, Louisiana, after local police shot and killed Alton Sterling, a 37-year-old black man. It was the first of two high-profile police shootings of black men within several days, capturing the nations attention and fueling large demonstrations. One such protest was organized by DeRay Mckesson, a civil-rights activist.

Americans have a right to protest government abuses. But according to a recentdecision from the U.S. Court of Appeals for the Fifth Circuit, Mckesson may be held liable for damage caused byother protestors. A police officer alleged Mckesson negligently organized the protest, and the court held the First Amendment does not protect Mckesson from liability. This is a dangerous rule that exposes protest leaders to liability for the rogue act of a fellow demonstrator and thereby threatens to chill First Amendment-protected protest.

Thats why FIRE is filing anamicus curiae friend of the court brief inMckesson v. Doe, asking the Supreme Court to accept the case and reverse the Fifth Circuits ruling. A rule that exposes non-violent protest leaders to liability for the acts of otherswhether it be a rogue protestor, an unruly counter-protestor, or even a police officer using force at the sceneis a threat to our American tradition of protecting the power of speech and assembly to bring about change.

But to the extent the lower courts had any doubts about what rule to apply, they were resolved this summer inCounterman v. Colorado, where the Supreme Court confirmed that negligence is an insufficient basis for imposing liability on speech.

During the protest, Mckesson and other demonstrators occupied a stretch of highway near a police station. As officers began arresting demonstrators to clear the highway, someone threw a rock that struck and injured a police officer. Unable to identify the rock-hurler, the officer instead sued Mckesson for damages. The officer alleged that, even though Mckesson didnt throw the rock, as the organizer, he was nevertheless responsible for the officers injuries.

This isnt the first time the issue has come before the high court. InNAACP v. Claiborne Hardware, decided in 1982, the Supreme Court held that the First Amendment shielded civil rights leaders from liability for their nonviolent boycott to bring about political, social, and economic change. Observing that First Amendment activity and violence often exist at mass protests, the Supreme Court concluded that civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence. Only if a demonstrator (1) authorizes or directs unlawful activity, (2) incites imminent and likely lawless action, (3) or gives specific instructions to carry out violence could they be liable for the resulting consequences, the Supreme Court reasoned.

This case should have been decided underClaiborne Hardware. But to the extent the lower courts had any doubts about what rule to apply, they were resolved this summer inCounterman v. Colorado, where the Supreme Court confirmed that negligence is an insufficient basis for imposing liability on speech. Under the First Amendment, the Court said, only intentional speech can give rise to any sort of liability. This crucially important requirement gives speech breathing room against both criminal and civil liability.

FIREs brief points out that the Fifth Circuits decision is inconsistent with the Supreme Courts decision inCounterman. The Supreme Court should therefore summarily accept the case and reverse, ordering the Fifth Circuit to re-evaluate the case under this recent precedent. Whatever reasons the Court of Appeals had for misapplying the First Amendment before, the Supreme Court has clarified that Americans can not be held liable for negligent speech.

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Civil rights leaders cannot be held liable for acts of rogue protestors - Foundation for Individual Rights in Education

The Justice Department announced today that it has opened a civil pattern or practice investigation into the City of Lexington, Mississippi, and the Lexington Police Department (LPD). Lexington is a town of approximately 1,600 people, located about an hour outside of the states capitol in Jackson, Mississippi.

The investigation will seek to determine whether there are systemic violations of the Constitution and federal law. The investigation will focus on the police departments use of force and its stops, searches and arrests. It will assess whether those activities are reasonable, non-discriminatory and respect the right to engage in speech and conduct protected by the First Amendment. The investigation will include a comprehensive review of LPD policies, training and supervision, practices for the collection of fines and fees and systems of accountability.

No city, no town and no law enforcement agency is too large or too small to evade our enforcement of the constitutional rights every American enjoys, said Assistant Attorney General Kristen Clarke of the Justice Departments Civil Rights Division. We are opening this investigation to determine whether the Lexington Police Department engages in a pattern or practice of discriminatory policing, excessive force or First Amendment violations. This investigation should send a clear message to small and mid-size police departments that they are not exempt from the obligation to provide fair, effective and non-discriminatory policing. We will leave no community behind, including underserved regions in the Deep South, in our quest to ensure lawful and constitutional policing in America.

Police officers are trusted with the important duty to keep our communities safe. When police officers fail to respect constitutional rights, they violate that trust, said U.S. Attorney Todd W. Gee for the Southern District of Mississippi. Our office is committed to ensuring that everyone in Mississippi is treated fairly and lawfully by the police. Todays announcement reflects that commitment. We will conduct a thorough and impartial investigation of LPD, and we will take decisive action to address any unlawful conduct.

Before this announcement, officials from the Justice Department notified Lexington officials, who have pledged to cooperate with the investigation. As part of this investigation, the Justice Department will conduct outreach to community groups and members of the public to learn about their experiences with LPD.

The Special Litigation Section of the Justice Departments Civil Rights Division and the U.S Attorneys Office for the Southern District of Mississippi will jointly conduct this investigation pursuant to the Violent Crime Control and Law Enforcement Act of 1994, which prohibits state and local governments from engaging in a pattern or practice of conduct by law enforcement officers that deprives people of rights protected by the Constitution or federal law. If the Justice Department has reasonable cause to believe that the law enforcement officers of a state or local government have engaged in a prohibited pattern or practice, the department is authorized to bring a lawsuit seeking court-ordered changes to remedy the violations. In this investigation, the department will assess the law enforcement practices under the First, Fourth and 14th Amendments to the U.S. Constitution, Title VI of the Civil Rights Act of 1964 and the non-discrimination provisions of the Safe Streets Act.

Individuals with relevant information are encouraged to contact the Justice Department via email at Community.LexingtonMS@usdoj.gov or by phone at (833) 610-1232. Individuals can also report civil rights violations regarding this or other matters using the reporting portal of the Justice Departments Civil Rights Division, available at http://www.civilrights.justice.gov. Individuals can also report civil rights violations to the U.S. Attorneys Office at USAMSS.civilrights@usdoj.gov or (601) 973-2825.

Todays announcement marks the 11th pattern or practice investigation into law enforcement misconduct opened by the Justice Department during this Administration. The department has ongoing investigations into the Phoenix Police Department; the Mount Vernon (NY) Police Department; the Louisiana State Police; the New York City Police Departments Special Victims Division; the Worcester (MA) Police Department; the Oklahoma City Police Department; the Memphis (TN) Police Department; and the Trenton (NJ) Police Department. The department recently completed investigations in Louisville, Kentucky, and Minneapolis, and secured agreements in principle with both jurisdictions to negotiate consent decrees to address the violations found.

Additional information about the Justice Departments Civil Rights Division is available on its website at http://www.justice.gov/crt. Additional information about the U.S. Attorneys Office for the Southern District of Mississippi is available at http://www.justice.gov/usao-sdms. Information specific to the Civil Rights Divisions Police Reform Work can be found here: http://www.justice.gov/crt/file/922421/download.

The Justice Department will hold a public community meeting on Nov. 8 at 5:00 p.m. CT at St. Paul COGIC Fellowship Hall, located at 17214 Highway 17 South, Lexington, Mississippi. Members of the public are encouraged to attend to learn more about the investigation.

See the article here:
Justice Department Announces Investigation of the City of Lexington ... - Department of Justice

The freedoms offered by the First Amendment include the freedom to exercise personal restraint.

Picture this nightmare scenario: The year is 2024, and voting has just started in Hawaiis primary election. Two well-known candidates are running for office and are neck and neck in the polls, as they have been since the beginning of their campaigns.

Who will win is anyones guess, but both candidates have their own factions of special interests and big money behind them who are desperate for a win to shift the balance of power in Hawaii.

And then, just as mail-in ballots arrive, a cellphone video recording emerges on social media, showing one of the candidates speaking at a private fundraiser, making alarming promises of what political capture will mean for them and their friends.

In under an hour, the video goes viral and is re-shared, re-posted and highlighted on tens of thousands of social media accounts, and local media decides to do stories about a video thats circulating online.

The candidate denies ever making the statements, and claims the video is fake. Worse yet, it turns out the video was covertly made by malicious individuals through the use of new, hyper-realistic artificial intelligence tools.

By the time local media fact-checks and corrects the narrative, public opinion has already changed against that candidate, and enough mail-in ballots have already been cast against them to disrupt the election. And even more worrying, there are many people who still believe the video is real, and continue to share it, claiming that the media is attempting to suppress the truth about who that candidate really is.

Of course, neither the opposing candidate, their surrogates or their community supporters had anything to do with that fake video, but, in the end, the damage was done, and they all benefited from it.

This is exactly the direction that democracy is headed as both artificial intelligence and technology make leaps and bounds in the span of not even years, but months. The emerging ability to shift mass public opinion with fake or edited content that looks and sounds real over social media is something that can undermine our democracy and cause chaos on a statewide, even national scale.

Unfortunately for us, malicious people with an eye for disruption understand psychology and social media better than most of the good guys providing election security or even gatekeeping private media. Legal regulations and even technological countermeasures against deceptive content are no match for an inflamed public, and as is often the case, people arguing for and against the veracity of something online usually serve the goal of promoting lies further rather than actually advancing truth.

Let me give you a personal example.

A good friend of mine, who lives in one of thePersian Gulf states, sent me a video last week by private message, showing an incident that purportedly occurred during the current Israel/Gaza conflict. The video was emotionally upsetting, to say the least, and it was so awful that my first inclination was to denounce it.

But after watching it carefully, I realized it was completely fake, and I let the matter come to a halt right there. I didnt reply to my friend. I didnt repost it with a personal reaction to the content, and I didnt privately send it to other people, editorializing or voicing disgust about how much I hated that fake video. I recognized it was visual plutonium, morally contaminating anyone who might see it, and I employed what National Security Agency analysts callmokusatsu to kill by a wise and informed silence and just let it go into a memory black hole.

The problem with this type of fake content, if youll excuse my language, is that its specifically meant to piss you off and get you talking about it, for, or, against. In you doing that, it has the same effect on everyone else who sees it, and does the same. Its meant to play to your base instincts and hidden biases. In this regard, malicious content spread on social media is a kind of weapon of mass destruction, and it can cause everything from riots, to electoral manipulation, to even national upheaval.

So how do we as a community prepare against and fight this kind of thing?

Well, the problem of misinformed democracies is a problem that goes back even as far as Plato talking abouthis allegory of the cavewhere a philosopher has immense difficulty convincing his peers that what they think is real is actually fake. (If youve never taken a political science or humanities course, watch TED-Eds great,short explainer video on Plato here.)

The first thing we need to do is recognize that our social institutions and elections are vulnerable. Conformity, peer pressure, outrage and how malicious social engineering can affect those things need to be at the forefront of our minds. We need to do something we havent done before as a community and we need to train ourselves how to process observations (what we see/hear/feel) into correct decisions.

I know they dont teach this in school, but they should. Being able to have the patience to set aside biases and say wait, lets think about this for a moment and lets consider the source is going to be crucial to saving the American experiment of democracy in the years to come.

Second, the for-profit news media, which currently is rewarded for being the first to report on things and then correct the story later, needs to consider their role as it pertains to behavioral and social impact. There are too many evil people who have mastered the art of weaponizing the media, and there are too many people in positions of news prominence who want attention and popularity, no matter the long-term consequences.

The First Amendment was indeed created to protect what might be considered the most heinous and unpopular forms of expression to protect an oppressed or unpopular minority. But it leaves to us as individuals and communities the more important moral choice of asking ourselves whether we should choose to express something or not.

This freedom is not meant as a freedom to do evil, but rather, a freedom to exercise personal restraint and to engage in enlightened choices towards ones community, state, and nation.

Personally, Im worried about the future of our government and democracy. But I also have hope that if we know whats at stake, what our weaknesses are, and what threats are out there, we can be more than just reactionary voters and be good citizens.

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Danny De Gracia: Don't Fall For Fake Election News This Year ... - Honolulu Civil Beat

Mike Johnson, R-Louisiana, the new Mr. Speaker proposed by the Freedom Caucus and anointed by the GOP, is a curiosity to science. Hes composed of anti-matter.

Heres what hes against; he is anti-: the LGBTQIA+ community (he says homosexuality should be criminalized; approves of dont say gay; thinks gay people brought down the Roman Empire (even though historians say it was barbarian invaders)), critical race theory, diversity programs, same-sex marriage, transgender care, freedom of reproductive choice, requiring military personnel to take COVID vaccines, hunger mitigation and nutrition programs, unions, investigating threats against school boards, Head Start, cannabis, fighting health and election disinformation, climate change mitigation, and a lot of science. He denies Joe Biden won the 2020 election; hes xenophobic, misogynistic and a hawk on China and immigration.

But its what he stands for the that keeps me awake at night. Mr. Speaker is an evangelical, white Christian nationalist.

Americas version Christian nationalism holds that our nation is defined by Christianity and was founded as a Christian nation. There should be no separation of church and state. Christianity should inform and guide law-making and governing. Our country should not be defined as a democracy, but, rather, a republicruled by the virtuous, not the majority. God intended America to be a new promised land for European Christians.

White Christian nationalism is bogus.

First, Christian nationalism has nothing to do with Christianity. Rather, it is a political deception, a trick, to obtain and retain power by the virtuous few over the unwashed masses. It is antithetical to democracy; it is authoritarian. (It is, for example, the religion of Hungarys dictator Viktor Orbna darling of the right-wing GOPand of Vladmir Putin).

Christian nationalism is absolutely antithetical to Jesus teaching in his Sermon on the Mount and in the parable of the Good Samaritan.

Second, Americas framers did not believe in nor did they form a Christian or any one-religion nation. The First Amendment to the federal Constitution has two religion clauses: The Establishment Clause and the Free Exercise Clausethe government shall make no law establishing religion or prohibiting the free exercise thereof. Additionally, Article VI Section 3 of the Constitution prohibits any religious test as a qualification for holding any office or public trust.

James Madison, a key framer of the Constitution, incorporated Section 16 of the Virginia Declaration of Rights (grounded in the free exercise of religion based on ones own conscience) into the drafting of the First Amendmentbecause the Colonies had established state religions and were persecuting and prosecuting those who held different religious beliefs. Madison held that without freedom of religion, there could be no representative government, because establishing one religion over others attacked the fundamental human right of freedom of conscience.

Indeed, in his first term as President, Thomas Jefferson referred to the First Amendment religion clauses as a wall of separation between Church & State.

Among the 56 framers, there was only one member of the clergy. Washington, Jefferson, Franklin and Madison were Deists, who, among other things, believed that the supreme being created the universe to operate solely by natural laws, and that after creation he absented himself from the world.

In a peace treaty between the United States and Tripoli, George Washington explicitly stated: The government of the United States is not in any sense founded on the Christian religion. . .

Certainly, they had no problem with a diversity of religions (nor do I), but if the framers intended to create a Christian nationas evangelical white Christian nationalists proclaimthey would have explicitly done so. Indeed, the framers intent and purpose was to do precisely the oppositeas expressed in the First Amendment and in Article VI, Section 3.

White Christian nationalism has no grounding in the history of American democracy. It is a false narrative; a toxic ideology. It is wrong.

So, Mr. Speaker is starting off on a whole list of negatives, denials and falsehoods.

But, why should we be surprised?

See the article here:
Mike Johnson: The Christian Nationalist Speaker Daily Montanan - Daily Montanan

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."

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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