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When we think of freedom of speech, the spoken word is usually what comes to mind. But the First Amendment of the federal Constitution (and, hence, Article II, section 7 of Montanas Constitution) also protect symbolic speech.

Symbolic speech is non-verbal action that clearly conveys a specific message to anyone who sees and reads it. It can take the form of public protests, such as sit-ins and marches, demonstrations, wearing buttons, armbands or clothing items such as t-shirts, nudity, flag-waving, flag-burning, burning draft cards and bras, braille, sign language and even non-criminal actions that others might find offensive (the universal one finger salute), to name a few.

My friend, Alan Nicholson, and I were exchanging emails, and he raised an interesting question:

Could the right to vote be an exercise of free speech? I believe that Alan is correct, voting is the exercise of free speech. I suggest that it is a form of symbolic speech.

One commentator put it this way: Voting is an act of pure expression. It is one of the most consequential expressive acts in a persons life, when a voice becomes an action, and those actions dictate how we are governed.

Another author states: It seems like an obvious proposition that a citizen registering to vote or casting a ballot is engaging in free speech, a fundamental right entitled to full protection under the First Amendment to the United States Constitution.

This commentator notes, however, that the US Supreme Court rarely interprets the regulation of voting as it does other regulation of speech that is, with the most stringent form of review, strict scrutiny, applying robust First Amendment law.

Ironically, this from the Court that determined in Citizens United that money equals speech. However, keep in mind a fundamental principle of constitutional law: under its own constitution, a state can provide more protection of a right protected under the federal constitution; but a state cannot provide less protection.

With that principle in mind, assume that registering to vote, filling out a ballot (either mailed or at a polling place) and casting that ballot are actions that are, at the very least, forms of symbolic free speech an expressive non-verbal action that clearly conveys a specific message to anyone who sees and reads it.

Then, add to that the mandates and prohibitions of Montanas Article II, section 13, which states: All elections shall be free and open, and no power, civil or military shall at any time interfere to prevent the free exercise of the right of suffrage. One could hardly craft a stronger protection of the right to vote a constitutional guarantee that all elections must be free and open and prohibiting any civil power (including the legislature, of course) from interfering to prevent the exercise of this right.

Thus, reading together the rights in Articles II, section 7 (free speech and expression) and section 13 (right of suffrage) it is clear (as Alan also observed) that under Montana constitutional law, the right to vote must be protected with no less rigor than is the right of free speech and expression. That is, that both rights, being fundamental rights, any restrictions on the right to vote must be subjected to free speech strict scrutiny analysis.

To that point, Montanas right of free speech proclaims, in pertinent part that: No law shall be passed

impairing the freedom of speech or expression.

Voting being a form of speech and expression means that no law shall be passed impairing the right to vote. And the mandates and prohibitions of Article II, section 13 double-down on that point!

There is simply no constitutional basis by which the legislature, the governor or any public official or branch of government can impair or interfere with Montanans right of suffrage. No law shall be passed .

This article was originally published as: Voting is Free Speech.

Courtesy: Counterpunch.org

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Right to vote - The News International

An Illinois federal district court recently rejected dismissal of Illinois Biometric Information Privacy Act (BIPA) claims in In re Clearview AI, Inc., Consumer Privacy Litigation, No. 21-cv-135 (N.D. Ill.). The Clearview plaintiffs alleged that Clearview violated their privacy rights without their knowledge and consent by scraping more than three billion photographs of facial images from the internet and using artificial intelligence algorithms on the images to harvest individuals unique facial biometric identifiers and corresponding biometric information. Clearview sought dismissal of the BIPA claims under the First Amendment, extraterritoriality doctrine, dormant commerce clause, and BIPAs express exemption for photographs. The court rejected these grounds, and declined to dismiss the BIPA claims.

Clearview first argued that BIPA violates the First Amendment by inhibiting its ability to collect and analyze publicly available photographs and information. The district court rejected this argument, and highlighted that plaintiffs allegations went beyond the mere collection of photographs from the internetand also included alleged harvesting of non-public, personal biometric data. The court accordingly found that Clearviews process of creating a database included both speech and non-speech elements, and applied intermediate scrutiny in its analysis. Analyzing the statute under this framework, the court concluded that BIPA did not violate the First Amendment.

The district court also rejected, at least at the pleadings stage, Clearviews application of the extraterritorial doctrine and dormant commerce clause. Clearview had argued that the scraping of images and creation of the searchable database took place in New York and that Illinois residents make up only a small percentage of the database. The court, pointing to allegations in the complaint that Clearviews conduct affected Illinois residents and that Clearview separately contracted with hundreds of public and nonpublic Illinois entities, concluded that Clearview AIs arguments were too fact intensive to resolve at the motion to dismiss stage.

Lastly, the court rejected Clearviews argument that the photography exemption under BIPA barred plaintiffs claims, citing other Illinois cases that have distinguished between the underlying medium, the photograph, which is not protected by BIPA, and the biometric data inherent in facial geometry of individuals, which BIPA protects. The court therefore declined to hold that BIPA exempts biometric data extracted from photographs.

Continued here:
Court Rejects Dismissal of Illinois Biometric Information Privacy Act Against Clearview AI in Pending Multidistrict Litigation - Lexology

Urged by some for at least a year to adopt an anti-hate resolution, the Thousand Oaks City Councilfinally did Tuesday night in the wake of a recent white supremacist demonstration in Newbury Park.

"It is of deep concern to me that they choseour town … perhaps thinking that their views might be welcomehere," Mayor Bob Engler said. "These reprehensible views are not welcome anywhere, much less in the city we all love."

"The resolution has been attacked as not strong enough or too strong or unnecessary," hesaid. But "to not pass this resolution tonight sends a message, and I'm afraid it will be the wrong message."

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The resolution, introduced by council memberClaudiaBill-de la Pea, was passed on a 4-0 vote with council member Kevin McNamee abstaining on free speech grounds.

Voting for it wereBill-de la Pea, Engler, and councilmen Al Adamand Ed Jones.

The resolution states that while the city "supports the First Amendment rights of all people, and will protect the rights of all to peaceably speak and assemble, the city will also vigorously protect the rights, equality, and safety of all.

Thus, the resolution authorizes the City Council to take "an official position againstbigotry, white supremacy, anti-Semitism and hate speech in the city."

It states that in doing so, the City Council continues to be guidedby its No. 1 goal of creating a "more equitable, accessible, safe, welcoming, and inclusive government and community regardless of race, color, ethnicity, religion, sex, physical or mental ability, sexual orientation, gender identity and expression, age, language, education, and/or socio-economic status."

Speak out:White supremacists rally in Thousand Oaks; some wonder why city leaders lag in response

The council adopted the resolution atthe conclusion of a lengthy hearing in which several dozen public speakers addressed it, many in favor,many against.

Thousand Oaks resident Cindy Goldberg supportedthe resolution, noting that the councilrefusedto adopt one last year.

"I support the city's public affirmation denouncing racismand bigotry in our community," she said. "There'san old saying that ends, 'if not now, when?'" shesaid.

"I understand that there was anti-racism resolutionpresented to the council last year for review, and it never materialized on the agenda," Goldberg said."I hope this time, the city takes action. It should not be difficultto publicly state that there is no room forhate in Thousand Oaks."

Bill-de la Pea agreed, saying, "I'm glad to have an opportunitythis eveningto do something that should have been done a year ago."

La Shaun Aaron told the councilshe is continually surprised that "you all are so surprised about racism and acts of racism" in Thousand Oaks. "We have spoken time and time again at council meetings … (and)I see complicity and I see silence.

"Some council members and unfortunately some community members as wellkeep coming to these meetings saying, 'Well, I don't see racism.'" said Aaron, co-founder of anti-hate racismgroup 805 Resistance, which unsuccessfully pushedthe councillast year to adopt an anti-hate resolutionand to create an equity commission.

Tim Totonis one of them, saying, there is"a non-existent, manufactured racistsociety narrative.

"The good people of Ventura Countyare sick and tired of race-baiting," he said.

In deciding to abstain, McNamee said that while he does not tolerate any kind of hate, "the challenge here is that it's under freedom of speech and as much as I deploreit, they have the freedom of speech to say so."

"Thereare some racists within our community," he said. "There are some white supremacists within our community. But in total, I don'tsee Thousand Oaks asbeing aracist community."

Hate not welcome:Ventura City Council reaffirms condemnation of racism, white supremacy

Bill-de la Pea introduced the resolutionin response to the white supremacist demonstration Feb 12.

About a dozen masked white supremacistsbriefly unfurled banners from the Highway 101 Borchard Road overpass, including two that said, "White Lives Matter," and "Honk If White Lives Matter."

Another banner said, "We must secure the existence of our people and a future for white children."

According to the Anti-Defamation League'swebsite, that sentence is the so-called "14 words," "the most popular white supremacist slogan in the world."

Using a drone, the demonstrators made a video of the so-called "banner drop," and posted it online on a messaging app calledTelegram.

Officials say the demonstration action was meant to be a recruitment tool.

Newbury Park resident DanielMoody, who monitors hate groups online, said he's certain the white supremacists who conducted the Newbury Park action were members of the Southern California chapterof a white supremacist/neo-Nazi group called White Lives Matter.

Dan Meisel, the ADL's regional director for Ventura, Santa BarbaraandSan Luis Obispocounties, also said the demonstrators appear to be partof the White Lives Matter network. The nonprofit ADL fights anti-Semitism and hate.

Thousand Oaks Police Chief JeremyParis said at Tuesday night's council meeting that the demonstrators don't appear to be local.

"All indications are that … these people came from out of the area," hesaid. "And that this was part of a nationwide planned activity."

Mike Harris covers the East County cities of Moorpark, Simi Valley and Thousand Oaks, as well as transportation countywide. You can contact him at mike.harris@vcstar.com or 805-437-0323.

SUPPORT LOCAL JOURNALISMand get all the latest Moorpark, Simi Valley, Thousand Oaks, and transportation news from Star reporter MikeHarris. Get a digital subscription

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Thousand Oaks adopts anti-hate resolution in wake of white supremacist demonstration - VC Star

These are scary times for teachers and academics, and the situation is only getting worse. The pace and scope of educational gag orders, laws regulating what can and cannot be taught about divisive topics, such as race in America, is increasing.

Texas, where I live and teach at a public university, saw the passage of new legislation last year regulating K-12 curricula around issues of race. This caught my eye, because it will affect what my children learn in school. But truth be told, the anticritical race theory agenda driving this legislation has been on my radar for some time now, since it makes me worried for my academic career. I teach and publish on topics such as racial disparities in the criminal justice system.

At the moment, my state is not on the growing list of those with pending or enacted legislation targeting institutions of higher education. But it seems only a matter of time. Just this past week, Lieutenant Governor Dan Patrick announced his desire to see legislation dismantling tenure protections for Texas public university faculty who teach critical race theory. The optimistic take is that this is mere posturing for the coming election cycle. Im not so sanguine.

Why am I so worried? Because of what the past and present portend.

Teachers all over the country are even more under the microscope than just a year ago. The Texas legislation includes provisions that effectively deputize parents to police those working hard, for little pay, to educate their children. Making matters worse, the language in these bills is often vague. With their livelihoods on the line, who could fault teachers for playing it safe and shying away from presenting students with unpopular truths?

And its not just those explicitly targeted by these bills who should be alarmed. Even though it doesnt (yet) apply to higher education, the legislative attack on the free discussion of ideas here in Texas is already having a chilling effect on college campuses. A colleague recently wondered aloud how much longer shed be able to teach Black history; in the next breath, she worried about the risks of doing so. I dont blame her. Indeed, I share her concern.

Its tempting to think this is just another outrage cycle that will soon pass and that, in the meantime, we can rely on the protections afforded us by institutional commitments to academic freedom and our individual right to free speech. But we should resist the temptation. When push comes to shove, theres no guarantee our universities will have our backs. And even if these laws are found unconstitutional, which I hope they will be, it will come too late. To generate the kind of test case typically required for the courts to decide the issue, someone will need to be prosecuted for something. In the time it takes to get answers, harm will be done.

How do I know? Because of what my family endured more than a half century ago.

My grandfather Ed Yellin was summoned to appear before the House Un-American Activities Committee in the winter of 1958. Citing the First Amendment, he refused to answer questions about his ties to the Communist Party. The saga dragged on for five years, until his conviction for contempt of Congress was reversed on a technicality by the U.S. Supreme Court in the summer of 1963.

Together with my grandmother Jean Fagan Yellin, he wrote a memoir about this ordeal. In Contempt: Defending Free Speech, Defeating HUAC (University of Michigan Press, 2022) contains some important lessons for those of us concerned with combating similar forces in the current moment.

As my grandparents put it, with a nod to Henry David Thoreau, it isnt much fun to be the friction that slows the machine. Its hard to know what effect their ordeal had on their careers. At one point, my grandfathers National Science Foundation fellowship was revoked, and his plans to pursue his doctoral research as a special student at Johns Hopkins University were scuttled. They had to move their young family across the country, from Baltimore to Urbana, Ill., on short notice and a shoestring budget.

Despite all this, they were both able to complete their degrees at the University of Illinois and had very successful academic careers. Ed retired as professor emeritus in the Department of Physiology and Biophysics at Albert Einstein College of Medicine, and Jean retired as Distinguished Professor Emerita of English at Pace University, both in New York. But the toll on their young children was clear. They endured social ostracization when neighbors got word of their fathers conviction. Too young to understand he was only leaving for a Supreme Court hearing in D.C., they worried this was the last time theyd kiss their father goodbye. The whole family lived for some time haunted by the specter of his yearlong jail sentence. These heartbreaking details show the collateral damage wrought by government persecution for ideas, even when the one being persecuted doesnt serve time and is eventually acquitted.

Their story also illustrates the important truth that systemic injustice can outlast those who set it in motion. My grandfather appeared before HUAC years after Senator Joseph McCarthy was censured, and even after his death. Cries of a new McCarthyism are useful to contextualize whats going on, but its important not to fetishize particular figures. Fixing the current problem isnt simply a matter of ensuring the Dan Patricks and Donald Trumps of the world dont occupy positions of power.

At the same time, the solution isnt just about replacing bad laws with good ones. True, these are mechanisms by which injustice gets institutionalized, but attending to them alone can serve as an evasive maneuver.

The U.S. Supreme Court granted certiorari because my grandfathers case presented constitutional questions of continuing importance. And yet they did not take up the constitutional questions, instead reversing his conviction for refusing to testify on the grounds that HUAC violated one of its own rules. Disappointingly, there was no discussion of the First Amendment issues. Focusing just on rules and policies is one way the ideology underlying the system escapes scrutiny. And its the ideology that really powers the machine.

Surely, political participation is key to resisting current efforts to prohibit the discussion of controversial ideas. Knocking on doors and getting out the vote are key, but they arent enough on their own. This is a struggle over who gets to shape the collective memory. How things turn out will depend, in crucial part, on shaping the hearts and minds of our fellow citizens of all ages. Those flexing their political muscle to regulate what gets taught in classrooms across the country understand this. Those of us doing the teaching need to as well.

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Lessons from the past show dangers of attacks on ideas (opinion) - Inside Higher Ed

A "one-of-a-kind case." Judge Amit Mehta's description of the litigation against four principal speakers at the Jan. 6 Trump rally may have been as much a prayer as a portrayal. As famed Supreme Court justice Oliver Wendell Holmes once said, "Hard cases make bad law and the litigation against President TrumpDonald TrumpJudge strikes down part of Biden surprise billing rules in win for doctors Overnight Defense & National Security More Westernpressure as Russia moves in Jan. 6 defendant who said 'this is war' on social media sentenced to 45 days in jail MORE and his associates is a hard case that just proved Holmes right.

In consolidated cases brought by Democratic members of Congress and Capitol Police officers, Judge Mehta ruled on motions to dismiss by the former president, his son Donald Jr., former Trump counsel Rudy GiulianiRudy GiulianiJudge in Trump conspiracy case links Jan. 6 to history of racist violence 'What-aboutism' Ruling against Trump leaves more questions than answers on free speech Judge rules Trump must face civil suits over Jan. 6 MORE and Rep. Mo BrooksMorris (Mo) Jackson BrooksAll eyes on Trump as Timken gains momentum in Ohio 'What-aboutism' Ruling against Trump leaves more questions than answers on free speech Britt in new ad tells 'boys in Washington' to 'man up' MORE (R-Ala.), as well as several extremist groups like the Oath Keepers. The judge dismissed the claims of a violent conspiracy against Trump Jr. and Giuliani, and he invited Brooks to file a motion to dismiss on the same grounds. He rejected arguments that their speeches at the rallycaused the subsequent rioting in the Capitol. Yet, while admitting that the case raised difficult constitutional questions, he declined to dismiss the claim against Trump.

The ruling will now allow a long-awaited appeal on core constitutional questions, including the protections for inflammatory speech.

Most analysts expected that groups like the Oath Keepers would likely remain in the lawsuit, given their active role in the rioting and therecent chargesof seditious conspiracy filed against them. The most controversial parties were the speakers at the rally near the White House before the riot.

The judge's112-page opinionmakes easy work of dismissing the claims against the other speakers. These speeches were reckless but constitutionally protected. Giuliani's declaration Let's have trial by combat" has been cited by some critics as a clear incitement to an insurrection, but the judge found such arguments were implausible and that Giuliani's words "were not likely" to cause a riot. He also found that Trump Jr.'s comments on the election were "protected speech, and he rejected claims that Brooks urging Trumps supporters to "start taking names and kicking ass" could be the basis for liability.

Ipreviously wrotethat the claims against these four Jan. 6 speakers might find "a sympathetic trial judge" but that "they will likely fail on appeal, even if they survive the trial level litigation." All but one of those claims are now dismissed on the trial level. Moreover, Judge Mehta's opinion seems to reinforce the view that Trump's speech was protected, too.

The judge could well be reversed on the threshold question of immunity, raised by Trump, that presidents cannot be sued for speaking on matters of public interest. Mehta was honest in saying that "this is not an easy issue" and that "the alleged facts of this case are without precedent." Yet, he offered a detailed explanation of why he believes such immunity should not extend to a speech contesting election results the strongest portion of his decision. In so holding, Mehta is making new law and some jurists on appeal, particularly on the Supreme Court, are likely to be concerned over the implications of such liability for a sitting president.

However, it is thefree speech issuethat is most concerning. My concern is not based on any agreement with Trump's view of the election or Congresss certification of it; Icriticized his speechas he gave it and later called forCongress to censure him; nevertheless, his remarks fall well short of the high standard set for criminal or civil liability for speech.

The Supreme Court has repeatedly rejected such liability despite the use of inflammatory or even violent words.

In1969, inBrandenburgv. Ohio, the Supreme Court ruled that even a Ku Klux Klan leader calling for violence is protected under the First Amendment unless there is a threat of imminent lawless actionandis likely to incite or produce such action. InHess v. Indiana, the court rejected the prosecution of a protester declaring an intention to take over the streets because at worst, (the words) amounted to nothing more than advocacy of illegal action at some indefinite future time. In a third case,NAACP v. Claiborne Hardware Co., the court overturned a judgment against the National Association for the Advancement of Colored People after one of its officials promised to break the necks of opponents.

Although Trump pumped up his Jan. 6 supporters with allegations of election fraud and calls to "fight like hell," Judge Mehta acknowledged that Trump also told the crowd that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard. His comments were consistent with a protest in saying that we are going to cheer on our brave senators and congressmen and women.

In fairness to the court, it is merely saying that the cases plaintiffs could possibly prove a conspiracy between Trump and some Jan. 6 groups. But he cites little support for such a conspiracy beyond facts like Trumps earliercontroversial statement in a debatethat the Proud Boys should stand back and stand by.Thecourt's careful, meticulous analysis on the earlier claims seems to break down over Trumps status; it struggles to ignore the clear weight of prior case law and countervailing interpretations of Trumps words.

Despite a lengthy, detailed discussion of issues like presidential immunity, Mehta becomes more curt and cursory over Trump's constitutional claims. When Trump's lawyers said his language was largely indistinguishable from that of many Democrats like Rep. Maxine WatersMaxine Moore Waters'What-aboutism' Ruling against Trump leaves more questions than answers on free speech On The Money House panel mulls future of 'stablecoin' rules Lawmakers clash over how to regulate 'stablecoins' MORE (D-Calif.), Mehta chided them for playing "a game of what-aboutism."

That "what-aboutism," however, is precisely the point. The selective imposition of liability for speech is the very thing that the First Amendment is designed to prevent.

Asrioting raged in Brooklyn Center, Minn. and nationwide in 2020, Congresswoman Waters went to Minnesota and told protesters there that they gotta stay on the street and get more confrontational.Others have used language very similar to Trumps in declaring elections to be invalid (includingHillary Clinton calling Trump an "illegitimate president") or urging supporters to "fight" or "battle" against Republicans; Rep. Ayanna PressleyAyanna PressleyTlaib to deliver progressive response to Biden State of the Union address 'What-aboutism' Ruling against Trump leaves more questions than answers on free speech Green groups press for progressive upset in Texas House race MORE (D-Mass.) once said, "There needs to be unrest in the streets for as long as there's unrest in our lives.

All of those statements arguably were reckless but clearly protected speech.

Free speech demands bright lines. While this is a "one-of-a-kind case," Trump's comments were hardly unique. And Judge Mehta does not clearly establish why Giulianis "trial by combat" remark or Brooks taking names and kicking ass" exhortation are not calls for imminent violence or lawlessness but Trumps fight like hell would be.

With three of the four speakers now dismissed from the case, only Trump remains. Along with him remains the most looming question: whether the Jan. 6 speech, which was central to his impeachment, was protected under the Constitution. If Trump prevails on appeal, he may claim a degree of vindication thanks to some of his fiercest opponents.

What the court dismisses as "a game of what-aboutism" is all about free speech.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter@JonathanTurley.

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'What-aboutism' Ruling against Trump leaves more questions than answers on free speech | TheHill - The Hill