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The United States has an historic opportunity to work with democracies around the world to address dangerous online content, including white supremacist terrorism. In 2019, a lone wolf live-streamed via Facebook his massacre of 51 people at two mosques in Christchurch, New Zealand. In direct response, dozens of the worlds leading democracies joined with major social media companies to issue a call to action. The Trump administration, however, did not join them, vaguely referring to First Amendment concerns to explain its absence.

With the coming anniversary of the Christchurch Call to Action (May 15) and the Summit of Democracy, its high time to reconsider the U.S. posture. Whatever the merits or demerits of any multilateral effort to address dangerous online content, one purported basis for the U.S. failure to join such initiatives cannot withstand scrutiny. Thats the claim that the United States has a policy of refraining from supporting international agreements that would call on other countries to act inconsistently with the First Amendment.

One of us served as the State Departments most senior human rights official and the other has served on the State Departments advisory committee on international law during Democratic and Republican administrations. Based on our experience and assessment of U.S. practices, we question any assertion of such a general or consistent U.S. approach toward international agreements.

Indeed, some of the main cases cited to show such a policy, on further scrutiny, demonstrate the opposite: The United States takes a pragmatic approach often issuing statements that stress that its own commitment to an agreement do not run afoul of the First Amendment (and asserting carve outs for U.S. domestic purposes). At the same time, it supports the adoption of international agreements by other countries who apply these treaties in accord with international human rights standards. In bilateral human rights dialogues with countries like China, Vietnam, Myanmar and Uzbekistan, U.S diplomats have routinely urged ratification of international human rights treaties without referring to its own reservation relating to free speech. In these and other diplomatic exchanges, U.S diplomats constantly rely on this international framework, rather than the U.S. Constitution and laws. It makes good practical sense to do so.

Were it otherwise, the United States efforts to advance human rights around the world would be stymied and seen as simply trying to impose its own constitutional standards on other governments including in political contexts where an absolutist First Amendment approach could wreak havoc or far worse.

Consider how the United States approached the main human rights treatythe International Covenant on Civil and Political Rights. That treaty requires any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. In submitting the treaty to the Senate for ratification, the George Herbert Walker Bush administration acknowledged that this provision directly conflicts with the First Amendment by requiring the prohibition of certain forms of speech and expression. The solution was simple. The United States ratified the agreement but entered a reservation opting out of that provision for itself, that is, to the extent the obligations were inconsistent with the First Amendment. (The reservation read: Article 20 does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States.)

What about the treaty as it applied to other States? That would be up to them to decide. The United States would go on to promote the treaty as a global agreement, including urging other States to ratify the Covenant, and proceed to support the treatys supervisory body. The latter is a committee of 18 independent experts, including a member nominated by the United States from 1995 until 2018 and again in 2020. The Human Rights Committee monitors the application of the Covenant (including Article 20) for States that have committed to comply with it.

The same pattern holds true for other treaties. The Convention on the Elimination of Racial Discrimination, for example, requires States to criminalize all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin (Article 4). In proposing ratification of the treaty, the Clinton administration acknowledged to the Senate, The requirements of Article 4 of the Convention are thus inconsistent with the First Amendment. During the drafting of Article 4, the U.S. delegation expressly recognized that it posed First Amendment difficulties. The solution, once again, was to join the agreement but enter a simultaneous reservation to ensure that parts of that provision did not apply to the U.S. governments own actions. As with the Covenant on Civil and Political Rights, the United States went on to support the treaty on racial discrimination, including joining multilateral calls for other States to ratify the instrument. The treaty also has a supervisory committee, which long included a U.S. member, and it too monitors all States compliance with their own obligations under the agreement including Article 4.

This sort of pragmatic approach by U.S. delegations toward multilateral efforts dates back to the Universal Declaration of Human Rights itself. Consider the incitement provision of the Universal Declaration. Article 7 states that all people are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. During the drafting process, the head of the U.S. delegation, Eleanor Roosevelt, opposed this text. The diplomatic record states: Speaking as United States representative, she supported deletion of the words against any incitement to discrimination, The United States opposed the provision against incitement to discrimination because it feared that such a provision might be used to justify the enactment of repressive measures, laws that would curtail freedom of speech and the press. However, the United States ultimately acceded to the provision in its final form, and has ever since been a leading backer of the Universal Declaration as a whole.

Finally, we should note the United States has also supported international efforts to counter online support for Islamic terrorism, despite turning away from the Christchurch Call to Action following the terrorist attack on Muslims in 2019. In 2015, the Security Council Counterterrorism Committee, in which the United States serves as a leading member, adopted the Madrid Guiding Principles. In addressing foreign terrorist fighters, Principle 26 states:

Member States should build and strengthen public-private partnerships, in particular with social media service providers, while respecting international obligations and commitments regarding human rights, including freedom of expression, and recalling that any restrictions thereon shall only be such as are provided by law and are necessary on the grounds set out in paragraph 3 of article 19 of the International Covenant on Civil and Political Rights. In this regard, Member States should encourage the ICT industry to voluntarily develop terms of service that target content aimed at recruitment for terrorism and recruiting or inciting others to commit terrorist acts, while respecting international obligations and commitments regarding human rights.

In 2018, the Security Council Committee adopted an Addendum to the Madrid Guiding Principles for foreign terrorist fighters, in which principle 39 provides:

In undertaking efforts to effectively counter the ways that ISIL, Al-Qaida and associated individuals, groups, undertakings and entities use their narratives to incite and recruit others to commit terrorist acts, Member States should:(g) Consider continuing, building on or fostering new strategic and voluntary partnerships with many different actors, such as private sector actors, in particular social media and other communications service providers, including for the purposes of blocking, filtering or removing terrorist content, and civil society actors who can play an important role in developing and implementing more effective means to counter the use of the Internet for terrorist purposes, to counter terrorist narratives and to develop innovative technological solutions;

(h) Encourage information and communications technology service providers to voluntarily develop and enforce terms of service that target content aimed at recruitment for terrorism and recruiting or inciting others to commit terrorist acts, while respecting international human rights law, and publish regular transparency report.

There are other cases in which the United States has invoked the freedom of speech as a basis for its withdrawal from or non-participation in multilateral meetings (e.g., the 2009 Durban review conference against racism) or to advance a negotiated diplomatic outcome (e.g., 2011 Human Rights Council Resolution 16/18 on combating religious intolerance). These assertions need to be understood in their political contexts. The Durban Review Conference became embroiled in a larger political debate about Israel, and several other countries also withdrew based on concerns that the review conference would repeat the anti-Semitic attacks that took place at the 2001 Durban Conference. The United Nations Human Rights Council debate about combatting religious intolerance focused an overbroad proposal from Pakistan and others aimed at declaring any negative commentary on Islam examples of religious intolerancesuch as through national blasphemy laws . That said, there are other examples that may support the claim that First Amendment concerns have more directly precluded U.S. participation in an international initiative (e.g., 2020 UN General Assembly Resolution on Combating Glorification of Nazism). Yet thats also consistent with our general point. There is no settled, uniform, or required U.S. approach to these multilateral initiatives. The United States has adopted a pragmatic approach rather than asserted its First Amendment is a necessary model for the world.

When the Biden administration convenes its Summit of Democracy, many of the participating States will be the same ones that supported the Christchurch Call to Action. It is these venues in which the United States can work with fellow democratic countries and tech companies to address the most dangerous online content. Our First Amendment is no cause for completely holding back.

Editors Note: Readers may also be interested in Christchurch Calls and Washington Isnt Answering by Eric Rosand and Why the Christchurch Call to Remove Online Terror Content Triggers Free Speech Concerns by Evelyn Aswad.

Originally posted here:
Terrorism and Other Dangerous Online Content: Exporting the First Amendment? - Just Security

For government social media managers, the ability to navigate the online world and the trolls that dwell within it has become a necessary skill set. While the wide variety of platforms offer unprecedented access to constituents, they also offer an avenue for all types of feedback some much less productive than the rest.

What to do about an onslaught of negative feedback was a topic of discussion during the 2021 Government Social Media Conference earlier this week. Experts from agencies large and small discussed the pitfalls and rules that must be considered before going to battle with the worst of parts of the Internet.

For example, does deleting a negative comment run afoul of the First Amendment? The consensus among experts is that the creation of rock-solid policy can make all the difference when answering this question.

Shawna B. Washington, marketing and communications manager for the city of Columbia, S.C., Police Department, noted in a session that her agencys profile has a stipulation stating what may be deleted, including comments with curse words and the like.

Washington said sometimes negative feedback is just that and isnt being directed at starting a larger, productive conversation.

Kaitlin Keeler, digital editorial manager for Oakland County, Mich., explained in another session focused on policymaking that extra care should be taken in assessing whether or not negative feedback crosses a line.

She argued that government should generally not remove comments because of an inherent responsibility to protect First Amendment rights. When deleting comments becomes necessary, she said, it should be clear why the comment was removed and which policies it violated.

We need to be transparent, Keeler stated. A disclaimer policy is a great first place to start, and youre going to want to specifically disclaim what you can and cannot delete.

She added that if comments are deleted, they must be archived to protect the agency in case the Freedom of Information Act is invoked.

These sentiments were echoed by ArchiveSocial CEO Ray Carey, who has seen agencies struggle with blocking users and deleting comments. He emphasized the importance of an agency ensuring that these instances are archived and well documented.

Carey said that trolls arent looking to start a dialogue and in many cases are just spamming official accounts for one reason or another. He points to the case of someone commenting that all taxation is theft 15 times a day.

How do you have free and open dialogue with people that are trying to ruin the free and open dialogue and make a mess of your site? Carey asked. How do you balance those two things?

At the end of the day, however, the overall goal of government social media accounts is to engage with the public, said Matt Turner, social media specialist for the National Park Service, during a keynote address. As he sees it, responding to comments from the public on social media posts is a tool to increase visibility.

Engagement is critical to really moving that cycle forward, Turner said. You really want to generate the interest and followers. You want that feedback no matter what it is that overall growth.

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Drawing a Line Between Internet Trolls and the First Amendment - Government Technology

from the delicious dept

Parler -- the social media cesspool that claimed the only things that mattered to it were the First Amendment and, um FCC standards -- has reopened with new web hosting after Amazon decided it no longer wished to host the sort of content Parler has become infamous for.

Parler has held itself up to be the last bastion of the First Amendment and a protector of those unfairly persecuted by left-wing tech companies. The users who flocked to the service also considered themselves free speech absolutists. But like far too many self-ordained free speech "absolutists," they think the only speech that should be limited is moderation efforts by companies like Twitter and Facebook.

And, like a lot of people who mistakenly believe the First Amendment guarantees them access to an active social media account, a lot of Parler users don't seem to understand the limits of First Amendment protections. Parler, like every other social media service, has had to engage in moderation efforts that removed content undeniably protected by the First Amendment but that it did not want to host on its platform. It has also had to remove illegal content and that's where its most recent troubles began.

Over the weekend, the resurrected Parler crossed over into meta territory, resulting in an unintentionally hilarious announcement to its aggrieved users upset about the platform's decision to forward Capitol riot related posts to law enforcement. It really doesn't get any better than this in terms of schadenfreude and whatever the German word is for an ad hoc group of self-proclaimed First Amendment "experts" having their second favorite right explained to them.

Here's Matt Binder for Mashable:

The reaction to the news that Parler "colluded" with the FBI in order to report violent content was so strong on the right wing platform, the company was compelled to release a statement addressing those outraged users.

In doing so, Parler found itself unironically explaining the First Amendment to its user base filled with members who declare themselves to be "Constitutionalists" and "Free Speech" advocates.

Parler's statement spells it out: the First Amendment does not protect the speech shared with law enforcement by the social media platform.

In reaction to yesterday's news stories, some users have raised questions about the practice of referring violent or inciting content to law enforcement. The First Amendment does not protect violence inciting speech, nor the planning of violent acts. Such content violates Parlers TOS. Any violent content shared with law enforcement was posted publicly and brought to our attention primarily via user reporting. And, as it is posted publicly, it can properly be referred to law enforcement by anyone. Parler remains steadfast in protecting your right to free speech.

That's a very concise and accurate reading of the First Amendment and how it applies to the content Parler forwarded to the FBI. It's not covered. But that hasn't stopped a few vocal complainants from telling Parler to try reading the Constitution again and, apparently, decide it means not only hosting violent content, but refusing to pass these threats on to law enforcement.

The core user base being unable to understand the limits of the right it believes allows it to say anything anywhere is partially a byproduct of Parler's promise to erect a Wild West internet playground for bigots and chauvinists who had nowhere else to go. Once it had some users, Parler realized it too needed to engage in moderation, even if only to rid itself of porn and outsiders who showed up solely to troll its stable of alt-right "influencers."

The January 6th insurrection appears to have forced the platform to grow up a little. Of course, some of that growth was forced on it by the leak of thousands of users' posts, which were examined by journalists and forwarded to law enforcement to assist in identifying Parler users who attended the deadly riot in DC earlier this year. Illegal content is still illegal, and being beholden only to the First Amendment doesn't change that.

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Filed Under: 1st amendment, content moderation, fbi, insurrection, public infoCompanies: parler

Original post:
Parler Forced To Explain The First Amendment To Its Users After They Complain About Parler Turning Over Info To The FBI - Techdirt

They dont send out the DEA to bust people for eating deadly poisonous toadstools. That behavior is, ahem, self-limiting. But the federal government does forbid the sale of mushrooms that make people feel like theyre at a rainbow jamboree with the Care Bears, because lawmakers know lots of people would gobble them up.

We have little trouble understanding why we have and enforce laws: The forbidden conduct would otherwise be too attractive. We punish people for everything from toxic waste dumping to breaking the speed limit precisely because lawmakers think too many people otherwise would engage in conduct thats harmful to society as a whole.

While we understand why we have prohibitions against certain conduct by citizens, we tend to forget that our system forbids certain conduct by the government for precisely the same reason: The harmful misconduct is too attractive to otherwise resist.

Many Americans claim to revere the First Amendment and its hard line against government limitations on the beliefs of our citizens and the expression of those beliefs. Yet very often the same souls who rhapsodize over free speech are eager to limit it.

Heres a powerful, influential progressive senator who wants to make sure a company cant heckle her in a snotty way. Or how about a new member of the executive branch who wonders whether the First Amendment is obsolete and thinks the federal government should try to engineer a news media marketplace to its liking? Try an esteemed conservative federal judge who wants to make it easier for powerful people to sue reporters and news outlets because he doesnt like the bias he perceives against his viewpoints.

At the state and federal level, were witnessing a full-spectrum attack on free expression (not to mention property rights). Progressives and nationalists arent mounting this assault at risk to their own careers. Indeed, many are finding lots of political advantage in trying to suppress speech they and their constituents do not like.

Though Thomas Jefferson is most assuredly out of favor with the modern progressives who are his heirs, in 1787 he identified the same problem with American politics many in todays Democratic Party now decry. Jefferson blamed what today is called fake news for the Constitutions version of the presidency that he believed was inclined toward monarchy.

The British ministry have so long hired their gazetteers to repeat and model into every form lies about our being in anarchy, that the world has at length believed them, Jefferson wrote to John Adams son-in-law from Paris. The English nation has believed them, the ministers themselves have come to believe them, and what is more wonderful, we have believed them ourselves.

He was calling Adams and the other Federalists a bunch of dupes who created an undemocratic presidency because of the impudent and persevering lying of pro-British journalists. We could say the same thing today about American outlets and politicians who echo Chinese talking points about the prevalence of racism in our country or Russian propaganda about the legitimacy of the 2020 elections.

Unlike many in his party today, though, Jefferson didnt suggest controlling the information Americans could receive. In fact, he said misinformation was an inevitable consequence of life in a free society. The people can not be all, and always, well informed, he wrote. The part which is wrong will be discontented in proportion to the importance of the facts they misconceive.

Aint that the truth

Racism is tolerated less now than it has been at any point in American history, but if you misconceive that important fact, you are likely to be quite discontented. The same goes for election fraud. If you are ignorant of the truth that American elections now are far more secure than in even the fairly recent past you might believe Boss Tweed and Big Bill Thompson were still stuffing ballot boxes. You might even storm the Capitol.

Jeffersons remedy, however, would please few Americans today. He brushed off Shays Rebellion, a tax revolt in Western Massachusetts the year before that left nine dead, as no big deal. Let them take arms, he wrote. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The alternative, he said, was worse. If they remain quiet under such misconceptions it is a lethargy, the forerunner of death to the public liberty.

The anti-police riots of last year and the pro-Trump attack on the Capitol would have been to circa-1787 Jefferson what we now callforgive meteachable moments. The perpetrators were misinformed, but according to their misshapen views of the world, their violent actions were justified. When the river of misinformation overruns its banks, Jeffersons advice was not to build the levees higher but to address its source.

Adams did not agree. As president in 1798, he signed the Alien and Sedition Acts partly to crack down on Bonapartist propaganda from France during a period of high tensions between the former allies. It just so happened that what the federal government deemed false statements against it were very often claims and criticisms from newspapers supportive of his old rival, Jefferson, who was preparing to take on his foe in the election of 1800. Limiting speech, he argued, was necessary for preserving domestic tranquility. Fortunately, the rules were far less popular in practice than in concept and were allowed to expire by 1801.

After defeating Adams, Jefferson learned to love the powers of the presidency he had as a younger man disdainedand the awful failures and excesses of the French revolution had also taught him about the practical considerations of armed revolts and foreign propaganda. That tree of liberty must be refreshed from time to time with the blood of patriots and tyrants jazz didnt sound as great when he was worried about Aaron Burr cooking up an insurrection with the help of the Spanish.

We dont have a First Amendment to protect free speech because people love the freedom, but because limiting free expression will always be attractive to those in powerand often to their political advantage.

Go here to read the rest:
The First Amendment: Rarely Popular, Always Necessary - The Dispatch

The case is today's Sixth Circuit decision in Meriwether v. Hartop, written by Judge Amul Thapar and joined by Judges David McKeague and Joan Larsen. There are a lot of moving parts here, so let me go through them one by one.

[A.] First, the facts: Shawnee State University had a policy requiring that students "refer to students by their 'preferred pronoun[s].'" Prof. Nicholas Meriwether disagreed, and "proposed a compromise: He would keep using pronouns to address most students in class but would refer to Doe [a transgender student in his class] using only Doe's last name." The University at first agreed, but then changed its mind.

The University also refused another proposed compromise that Meriwether offered: "allow him to use students' preferred pronouns but place a disclaimer in his syllabus 'noting that he was doing so under compulsion and setting forth his personal and religious beliefs about gender identity." The Dean "insisted that putting a disclaimer in the syllabus would itself violate the university's gender identity policy."

Meriwether sued, and the Sixth Circuit allowed his case to go forward; but because of the particular facts, the court didnotdecide whether a professor could insist on actually using a pronoun that didn't match the student's preferred pronoun. Rather, the court only considered whether a professor coulddecline to use the student's preferred pronoun.

[B.] Now, the background legal rule: Generally speaking the government may discipline (including firing) an employee based on the employee's speech if

This is quite different from the rules for criminal or civil liability for speech. Speech doesn't usually lose First Amendment protection, for instance, just because it's on a matter of purely private concern. Likewise, courts generally don't do case-by-case balancing of the value of speech against the harm that the speech causes. But when the government is acting as employer, it has a great deal of extra authority, especially over how its employees treat the government's clients and more generally over how they do their jobs.

[C.] But there have also been lots of cases that say that academic employment is different from other forms of employment, and this is what happened here.

[1.] The court followed earlier decisions by the Fourth and Ninth Circuit (and an implicit decision of the Fifth Circuit) in holding that theGarcettino-protection-for-speech-within-job-duties doctrine doesn't apply to public university teaching:

[Garcetti] expressly declined to address whether its analysis would apply "to a case involving speech related to scholarship or teaching." See also Adams v. Trs. of the Univ. of N.C.-Wilmington (4th Cir. 2011) ("The plain language of Garcetti thus explicitly left open the question of whether its principles apply in the academic genre where issues of 'scholarship or teaching' are in play."). [And the Court's earlier decisions] have "long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition."

If professors lacked free-speech protections when teaching, a university would wield alarming power to compel ideological conformity. A university president could require a pacifist to declare that war is just, a civil rights icon to condemn the Freedom Riders, a believer to deny the existence of God, or a Soviet migr to address his students as "comrades." That cannot be. "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe" such orthodoxy.

Remember, too, that the university's position on titles and pronouns goes both ways. By defendants' logic, a university could likewise prohibit professors from addressing university students by their preferred gender pronounsno matter the professors' own views. And it could even impose such a restriction while denying professors the ability to explain to students why they were doing so. But that's simply not the case. Without sufficient justification, the state cannot wield its authority to categorically silence dissenting viewpoints.

[T]he academic-freedom exception to Garcetti covers all classroom speech related to matters of public concern, whether that speech is germane to the contents of the lecture or not. The need for the free exchange of ideas in the college classroom is unlike that in other public workplace settings. And a professor's in-class speech to his students is anything but speech by an ordinary government employee.

Indeed, in the college classroom there are three critical interests at stake (all supporting robust speech protection): (1) the students' interest in receiving informed opinion, (2) the professor's right to disseminate his own opinion, and (3) the public's interest in exposing our future leaders to different viewpoints. Because the First Amendment "must always be applied 'in light of the special characteristics of the environment' in the particular case," public universities do not have a license to act as classroom thought police. They cannot force professors to avoid controversial viewpoints altogether in deference to a state-mandated orthodoxy. Otherwise, our public universities could transform the next generation of leaders into "closed-circuit recipients of only that which the State chooses to communicate." Thus, "what constitutes a matter of public concern and what raises academic freedom concerns is of essentially the same character."

Of course, some classroom speech falls outside the exception: A university might, for example, require teachers to call roll at the start of class, and that type of non-ideological ministerial task would not be protected by the First Amendment. Shawnee State says that the rule at issue is similarly ministerial.

But as we discuss below, titles and pronouns carry a message. The university recognizes that and wants its professors to use pronouns to communicate a message: People can have a gender identity inconsistent with their sex at birth. But Meriwether does not agree with that message, and he does not want to communicate it to his students. That's not a matter of classroom management; that's a matter of academic speech.

[2.] The court then held that the speech here was on a matter of "public concern":

When speech relates "to any matter of political, social, or other concern to the community," it addresses a matter of public concern. Thus, a teacher's in-class speech about "race, gender, and power conflicts" addresses matters of public concern. A basketball coach using racial epithets to motivate his players does not. "The linchpin of the inquiry is, thus, for both public concern and academic freedom, the extent to which the speech advances an idea transcending personal interest or opinion which impacts our social and/or political lives."

Meriwether did just that in refusing to use gender-identity-based pronouns. And the "point of his speech" (or his refusal to speak in a particular manner) was to convey a message. Taken in context, his speech "concerns a struggle over the social control of language in a crucial debate about the nature and foundation, or indeed real existence, of the sexes. That is, his mode of address was the message. It reflected his conviction that one's sex cannot be changed, a topic which has been in the news on many occasions and "has become an issue of contentious political debate."

Never before have titles and pronouns been scrutinized as closely as they are today for their power to validateor invalidatesomeone's perceived sex or gender identity. Meriwether took a side in that debate. Through his continued refusal to address Doe as a woman, he advanced a viewpoint on gender identity. Meriwether's speech manifested his belief that "sex is fixed in each person from the moment of conception, and that it cannot be changed, regardless of an individual's feelings or desires." The "focus," "point," "intent," and "communicative purpose" of the speech in question was a matter of public concern.

And even the university appears to think this pronoun debate is a hot issue. Otherwise, why would it forbid Meriwether from explaining his "personal and religious beliefs about gender identity" in his syllabus? No one contests that what Meriwether proposed to put in his syllabus involved a matter of public concern.

[3.] Finally, the court held that thePickeringbalance tipped in favor of protection for Meriwether's speech, again because of the academic freedom context:

Start with Meriwether's interests. We begin with "the robust tradition of academic freedom in our nation's post-secondary schools." That tradition alone offers a strong reason to protect Professor Meriwether's speech. After all, academic freedom is "a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom." And the First Amendment interests are especially strong here because Meriwether's speech also relates to his core religious and philosophical beliefs. Finally, this case implicates an additional element: potentially compelled speech on a matter of public concern. And "[w]hen speech is compelled additional damage is done."

Those interests are powerful. Here, the university refused even to permit Meriwether to comply with its pronoun mandate while expressing his personal convictions in a syllabus disclaimer. That ban is anathema to the principles underlying the First Amendment, as the "proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate.'" Indeed, the premise that gender identity is an idea "embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different view."

And this is particularly true in the context of the college classroom, where students' interest in hearing even contrarian views is also at stake. "Teachers and students must always remain free to inquire, to study and to evaluate, [and] to gain new maturity and understanding."

On the other side of the ledger, Shawnee State argues that it has a compelling interest in stopping discrimination against transgender students. It relies on EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. (6th Cir. 2018) in support of this proposition. But Harris does not resolve this case. There, a panel of our court held that an employer violates Title VII when it takes an adverse employment action based on an employee's transgender status.

The panel did not holdand indeed, consistent with the First Amendment, could not have heldthat the government always has a compelling interest in regulating employees' speech on matters of public concern. Doing so would reduce Pickering to a shell. And it would allow universities to discipline professors, students, and staff any time their speech might cause offense. That is not the law. See Street v. New York (1969) ("[T]he public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers."). Purportedly neutral non-discrimination policies cannot be used to transform institutions of higher learning into "enclaves of totalitarianism."

Turning to the facts, the university's interest in punishing Meriwether's speech is comparatively weak. When the university demanded that Meriwether refer to Doe using female pronouns, Meriwether proposed a compromise: He would call on Doe using Doe's last name alone. That seemed like a win-win. Meriwether would not have to violate his religious beliefs, and Doe would not be referred to using pronouns Doe finds offensive. Thus, on the allegations in this complaint, it is hard to see how this would have "create[d] a hostile learning environment that ultimately thwarts the academic process."

It is telling that Dean Milliken at first approved this proposal. And when Meriwether employed this accommodation throughout the semester, Doe was an active participant in class and ultimately received a high grade.

As we stated in Hardy, "a school's interest in limiting a teacher's speech is not great when those public statements 'are neither shown nor can be presumed to have in any way either impeded the teacher's proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally.'" The mere "fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." At this stage of the litigation, there is no suggestion that Meriwether's speech inhibited his duties in the classroom, hampered the operation of the school, or denied Doe any educational benefits. Without such a showing, the school's actions "mandate[] orthodoxy, not anti-discrimination," and ignore the fact that "[t]olerance is a two-way street." Thus, the Pickering balance strongly favors Meriwether.

Finally, Shawnee State and the intervenors argue that Title IX compels a contrary result. We disagree. Title IX prohibits "discrimination under any education program or activity" based on sex. The requirement "that the discrimination occur 'under any education program or activity' suggests that the behavior [must] be serious enough to have the systemic effect of denying the victim equal access to an educational program or activity."

But Meriwether's decision not to refer to Doe using feminine pronouns did not have any such effect. As we have already explained, there is no indication at this stage of the litigation that Meriwether's speech inhibited Doe's education or ability to succeed in the classroom. Bauer even admitted that Meriwether's conduct "was not so severe and pervasive that it created a hostile educational environment." Thus, Shawnee State's purported interest in complying with Title IX is not implicated by Meriwether's decision to refer to Doe by name rather than Doe's preferred pronouns.

[D.] The panel also allowed Meriwether's Free Exercise Clause to go forward, based on the allegations that "officials at Shawnee State exhibited hostility to his religious beliefs" and that "irregularities in the university's adjudication and investigation processes permit a plausible inference of non-neutrality." That part of the opinion also discussed an interesting factual twist:

[T]he university argues that Meriwether simply could have complied with the alternative it offered him: Don't use any pronouns or sex-based terms at all. This offer, the university says, would not violate Meriwether's religious beliefs. But such an offer has two problems. First, it would prohibit Meriwether from speaking in accordance with his belief that sex and gender are conclusively linked. And second, such a system would be impossible to comply with, especially in a class heavy on discussion and debate. No "Mr." or "Ms." No "yes sir" or "no ma'am." No "he said" or "she said." And when Meriwether slipped up, which he inevitably would (especially after using these titles for twenty-five years), he could face discipline. Our rights do not hinge on such a precarious balance.

The effect of this Hobson's Choice is that Meriwether must adhere to the university's orthodoxy (or face punishment). This is coercion, at the very least of the indirect sort. And we know the Free Exercise Clause protects against both direct and indirect coercion.

[E.] So there are several important conclusions and implications here, it seems to me:

Go here to read the rest:
Pronouns in the University Classroom & the First Amendment - Reason