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Over the past year or so, ANC 6B10 commissioner Denise Krepp has tweeted updates on ANC business, as well as personal communications. She has also blocked constituents on the platform, as well as other DC residents and fellow ANC commissioners with whom she did not see eye to eye.

One of the residents she blocked, Mark Hecker, felt that it was inappropriate for an elected official to prevent her constituents from reaching her in an official capacity on social media. On Monday, his attorneys filed a complaint, which you can read here. Hecker announced the complaint via the following tweet, which links to a blog post by attorney Jason Harrow:

The complaint chronicles, in meticulous detail, not just the interactions between Hecker, a Kingman Park resident, and commissioner Krepp, but also explains the dynamics of Twitter and its role as a public forum.

Denise Krepp tells me that, as of Wednesday, she has not been served and has no comment. She added, Im going to continue to ask questions and Im going to continue being an ANC commissioner. Hecker said, My understanding is that it was filed Monday, but because of COVID some procedures seem to be happening very slowly. I reached out to Charlie Gerstein with this same question. He said, The court did not issue a summonsthe formal document acknowledging that the case has been properly fileduntil today. It usually takes two to three days for that to happen. We served the district this afternoon by email, and will serve Krepp tomorrow or the day after personally.

As of Wednesday afternoon, it appears that many of the people Krepp had originally blocked have now been unblocked. I asked Hecker if this changed anything in regards to the lawsuit and this is what he had to say: We plan to continue. Im not interested in making money, but I do think its important that the courts determine whether this behavior is a violation of the first amendment. We believe it is, and we look forward to the judges decision, even if Commissioner Krepp seems to now realize she was in the wrong.

Although only Hecker decided to engage a lawyer and sue Krepp for her alleged First Amendment violations, other people to whom I spoke for this post mentioned that they were also unhappy with Krepps behavior something that was shared widely on Twitter itself. One of the people to whom I spoke shared this sentiment anonymously: Hopefully this will garner attention that the focus should be on the harm that [Ms. Krepp] causes to Black and Brown residents in her ANC, not solely on whom she blocks on social media.

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Is blocking a constituent on Twitter against the First Amendment? This DC resident thinks so | The Hill is Home - The Hillishome

Well folks, it just doesnt get any more important than this.

The first ever appellate decision analyzing whether a discriminatory statute impacting speech can be applied in a discriminatory manner following an equal treatment First Amendment determination is set to be handed down in Lindenbaum

As ACLU attorney David Carey explained to Unprecedented today if the statutes like the TCPA can be applied in a discriminatory manner than free speech can be blocked as favored speakers are free to violate a restriction and disfavored speakers are unconstitutionally silenced.

This has HUGE implications for society at large and really threatens to make a nullity of the First Amendment protections we all hold so dear.

And, of course, the TCPA is right at the center of this existential battle over the fate of the First Amendment.

Why?

Because courts have shown time and again they are willing to throw out First Amendment protections when it comes to battling the robocall epidemic.

With these considerations in mind the ACLU has joined the critical fight to protect the First Amendment from robocall-induced erosion and submitted a BRILLIANT amicus brief in the critical Lindenbaum appeal, that you can read here.

We break down all of this with David, and hear from University of Michigan, 3L Jonah Rosenbaum about his impressive and critical assistance on the brief that helps highlight why the battle over Creasy is really a battle to protect our civil rights more broadly.

You will not want to miss this HUGE interview, which will drop next week right here.

To get you ready for the big interview, feel free to peruse my commentary on the First Amendment dimensions of the TCPA over the years, and my extremely-well read article on the dire impact of AAPC on the First Amendment landscape.

Chat soon.

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BREAKING: ACLU Representatives Join Unprecedented Podcast to Discuss HUGE Ramifications of Creasy/Lindenbaum/TCPA on First Amendment Rights - Lexology

In January, Texas Attorney General Ken Paxton issuedcivil investigative demands(CIDs) to Twitter and other internet platforms requesting information about their content moderation practices pursuant to the offices authority under the state Deceptive Trade Practices-Consumer Protection Act. Twitter has since sued the attorney general to block enforcement of the CID issued to it. The Reporters Committee authored afriend-of-the-court briefin support of Twitter last week, joined by the Center for Democracy and Technology, the Electronic Frontier Foundation, the Media Law Resource Center, and PEN America.

Paxton has been vocal about Twitters suspension of former President Trumps account. A day after Twitter did so, Paxtontweetedhe would fight the company with all Ive got. In apress releaseabout the CIDs, Paxton explicitly linked the demands to the discriminatory and unprecedented step of removing and blocking President Donald Trump from online media platforms.

The CID issued to Twitter requests copies of terms of service, content moderation policies, all public statements made about content moderation and internal communications with or about the site Parler.

Twitter argues that the attorney generals actions are retaliatory and chill its content moderation practices, which are First Amendment-protected speech. The friend-of-the-court brief submitted by the Reporters Committee notes that government efforts to use regulatory schemes to investigate perceived bias in moderation practices would contravene the U.S. Supreme Courts rule inMiami Herald Publishing Company v. Tornillo that governmental regulation of editorial control and judgment cannot be exercised consistent with First Amendment guarantees of a free press[.]

Tornillodealt with print media, but the Supreme Court has extended such protections to the internet as a communications medium. Much of public discourse today happens online, and public discourse needs breathing space for free debate to survive. Government interventions even in the name of viewpoint neutrality threaten to shape this debate in ways that suppress disfavored speech, the brief argues. Consequently, investigations like the attorney generals may undermine the protections established by the Supreme Court inTornillo.

The brief notes that even non-retaliatory regulatory actions can burden the free flow of information to the public, such as taxes on paper and ink used to produce newspapers. When such regulatory schemes are used to make government actors arbiters of bias, that risk becomes even more pronounced. Paraphrasing the Supreme Courts words inTornillo, responsible moderation may be a desirable goal, but it cannot be achieved through government mandate.

Like what youve read?Sign up to get the full This Week in Technology + Press Freedom newsletter delivered straight to your inbox!

The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy combining the law, policy analysis, and public education to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Mailyn Fidler.

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RCFP urges court to order Texas AG to stop investigating Twitter - Reporters Committee for Freedom of the Press

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Timothy Wu wonders if the First Amendment is 'obsolete,' and believes in 'returning the country to the kind of media environment that prevailed in the 1950s'

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When Columbia law professor Timothy Wu was appointed by Joe Biden to the National Economic Council a few weeks back, the press hailed it as great news for progressives. The author ofThe Curse of Bigness: Antitrust in the New Gilded Ageis known as a staunch advocate of antitrust enforcement, and Bidens choice of him, along with the appointment of Lina Khan to the Federal Trade Commission, was widely seen as a signal that the new administration was assembling whatWiredcalled an antitrust all-star team.

Big Tech critic Tim Wu joins Biden administration to work on competition policy, boomed CNBC, whileMarketwatchadded, Anti-Big Tech crusader reportedly poised to join Biden White House. Chicago law professor Eric Posners piece forProject Syndicatewas titled Antitrust is Back in America.Posner noted Wus appointment comes as Senator Amy Klobuchar has introduced regulatorylegislationthat ostensibly targets companies like Facebook and Google, which a House committee last year concluded haveaccrued monopoly power.

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Wus appointment may presage tougher enforcement of tech firms. However, he has other passions that got less ink. Specifically, Wu who introduced the concept of net neutrality and onceexplained it to Stephen Colbert on a roller coaster is among the intellectual leaders of a growing movement in Democratic circles to scale back the First Amendment. He wrote an influential September, 2017 article called Is the First Amendment Obsolete? that argues traditional speech freedoms need to be rethought in the Internet/Trump era. He outlined the same ideas in a 2018 Aspen Ideas Festival speech:

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Listening to Wu, who has not responded to requests for an interview, is confusing. He calls himself a devotee of the great Louis Brandeis, speaking with reverence about his ideas and those of other famed judicial speech champions like Learned Hand and Oliver Wendell Holmes. In the Aspen speech above, he went so far as to say about First Amendment protections that these old opinions are so great, its like watchingThe Godfather,you cant imagine anything could be better.

If you hear a but coming in his rhetoric, you guessed right. He does imagine something better. The Cliffs Notes version of Wus thesis:

The framers wrote the Bill of Rights in an atmosphere where speech was expensive and rare. The Internet made speech cheap, and human attentionrare. Speech-hostile societies like Russia and China have already shown how to capitalize on this cheap speech era, eschewing censorship and bans in favor of flooding the Internet with pro-government propaganda.

As a result, those who place faith in the First Amendment to solve speech dilemmas should admit defeat and imagine new solutions for repelling foreign propaganda, fake news, and other problems. In some cases, Wu writes, this could mean that the First Amendment must broaden its own reach to encompass new techniques of speech control. What might that look like? He writes, without irony: I think the elected branches should be allowed, within reasonable limits, to try returning the country to the kind of media environment that prevailed in the 1950s.

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More ominously, Wu suggests that in modern times, the government may be more of a bystander to a problem in which private platforms play the largest roles. Therefore, a potential solution (emphasis mine) boils down to asking whether these platforms should adopt (orbe forced to adopt) norms and policies traditionally associated with twentieth-century journalism.

That last line is what should make speech advocates worry.

Wus appointment may not matter a lot to those concerned about constitutional freedoms because, as Stanford professor Nate Persily puts it, the current Supreme Court would be very hostile to any attempt to water down the First Amendment. If theres one thing thats consistent about the Roberts court, says Persily, its very strong speech protections.

However, theres a paradox embedded in this new Democratic mainstream thinking about speech in the Internet era. As one activist put it to me last week, the new breed of Democratic-leaning thinkers like Wu wants to be anti-corporate and authoritarian at the same time. Their problem, however, is that in order to effect change through authoritative action, they need to enlist the aid and cooperation of corporate power.

This paradox casts even the antitrust all-star team narrative about people like Wu and Khan in a different light. What may begin as a sincere desire by the Biden administration (or, at least, by figures like Wu, who by all accounts is a real antitrust advocate) to break up tech monopolies, may end in negotiation and partnership.

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While the liberal tradition of the party tilts toward antitrust action, the new, more authoritarian form of progressivism currently gaining traction is tempted by the power these companies wield, and instead of breaking these firms up, may be more likely to seek to appropriate their influence.

You can see this mentality in the repeated exchanges between Congress and Silicon Valley executives. An example is the celebrated October 23, 2019 questioning of Mark Zuckerberg by Alexandria Ocasio-Cortez in aHouse Financial Services Committee hearing. The congresswoman, as staunch a believer in the new approach to speech as there is in modern Democratic Party politics, repeatedly asks Zuckerberg questions like, So, you wont take down lies or you will take down lies? and Why you label theDaily Caller, a publication well-documented with ties to white supremacists, as an official fact-checker for Facebook?

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Grasping that everyone whos ever thought about speech issues throughout our history has been concerned with the publication of falsehoods, incitement to violence, libel, hate speech, and other problems, the issue here isnt thewhat, but thewho.The question isnt whether or not you think theDaily Callershould be fact-checking, but whether you think its appropriate to leave Mark Zuckerberg in charge of naming anyone at all a fact-checker. AOC doesnt seem to be upset that Zuckerberg has so much authority, but rather that hes not using it to her liking.

A minority of activists within Democratic Party circles believes that the fundamental reason platforms like Facebook end up being what journalist Matt Stoller describes as speech dumpster fires has to do with the financial model of these companies.

These are advertising monopolies who have centralized control over the discourse, is how Stoller puts it. Hepublished a piecefor the American Economic Liberties Project recently that suggests, A possible reform path would be to remove protections for firmsthatuse algorithms to monetize data. His point is that firms like Facebook are incentivized to push users of all political persuasions toward the most angering, conspiratorial, sensational content, while also discouraging exposure to alternative or debunking points of view a primary driver of our fact-starved political dilemma.

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In another piece the AELP published after January 6th, How To Prevent the Next Social Media-Driven Attack On Democracyand Avoid a Big Tech Censorship Regime,the Project noted that banning Donald Trump from Twitter is ineffective even as a draconian solution, because it doesnt alter the platforms basic incentive structure. Targeting the clickbait ad sales model for regulatory reform isnt a panacea, either, but from the standpoint of traditional liberalism, breaking up surveillance advertising monopolies has to be better than partnering with said monopolies to switch out one elitist concept of speech control for another.

This is where the paradox comes in. Every time a Democratic Party-aligned politician or activist says he or she wants the tech companies to take action to prevent, say, the dissemination of fake news, one has to realize that it makes little sense for those same actors to then turn around and advocate for breakups of those same firms. Anyone genuinely interested in clamping down on harmful speech would consciously or unconsciously want the landscape as concentrated as possible, because an information bottleneck makes controlling unwanted speech easier.

This idea of needing a more activist conception of speech control is clear in Wus writing. He speaks about the First Amendment operating as a negative right against coercive government action, while in the modern environment, the government not only needs to secure the freedomtospeak, but freedomfromabuses. He posits a First Amendment that acts as a right that obliges the government to ensure a pristine speech environment. Because that would be difficult to accomplish in the First Amendments current form, he suggests expanding the category of state action itself to encompass the conduct of major speech platforms like Facebook or Twitter.

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This is the subtext of those constant congressional demands that tech platforms fix the problems of unfettered speech. We have another round of such hearings coming this week. The House Energy and Commerce Committee will be having Zuckerberg, Googles Sundar Pichai, and Twitter CEO Jack Dorsey in to discuss, Disinformation Nation: Social Medias Role in Promoting Extremism and Misinformation.

The Committees ranking members and subcommittee chairs, Frank Pallone, Jr. of New Jersey, Mike Doyle of Pennsylvania, and Jan Schakowsky of Illinois, are adopting the now-familiar line of pushing to hold the tech firms accountable for their speech environments,sayingcongress must begin the work of changing incentives driving social media companies to allow and even promote misinformation and disinformation.

Do these members of congress, or thinkers like Wu, want to break up these monopolies, or harness them? To date, the answer has run decidedly in one direction. Previous congressional hearings involving tech CEOs Im thinking particularly of anOctober, 2017 hearing of the Senate Judiciary Committeein which Hawaiis Mazie Hirono demanded that the platforms come up with plans to keep bad actors who sow discord from manipulating social media already resulted in an overt partnership between Washington and Silicon Valley over content moderation decisions. The only question is, will that partnership become more expansive, as politicians become increasingly tempted by the power of these companies?

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As Stoller puts it, the Democrats have turned the tech battle into something like aLord of the Ringscontest, where the fight ends up being over the one ring of speech control. Others point out that the situation for new government appointees in the Biden administraiton will be complicated by the input of the intelligence services, whose point of view on this issue is clear and absolute: they love the bottleneck power of the tech monopolies and would oppose any effort to dilute it.

Still others wonder about the wisdom of creating powerful new partnerships with Silicon Valley, given that political realities may change and another set of actors may soon be driving the content moderation machine. Its not like all this ends with the Biden White House, is how Persily puts it.

Wus comment about returning to the kind of media environment that prevailed in the 1950s is telling. This was a disastrous period in American media that not only resulted in a historically repressive atmosphere of conformity, but saw all sorts of glaring social problems covered up or de-emphasized with relative ease, from Jim Crow laws to fraudulent propaganda about communist infiltration to overthrows and assassinations in foreign countries.

The wink-wink arrangement that big media companies had with the government persisted through the early sixties, and enabled horribly destructive lies about everything from the Bay of Pigs catastrophe to the Missile Gap to go mostly unchallenged, for a simple reason: if you give someone formal or informal power to choke off lies, theythemselvesmay now lie with impunity. Its Whac-a-Mole: in an effort to solve one problem, you create a much bigger one elsewhere, incentivizing official deceptions.

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That 1950s period is attractive to modern politicians because it was a top-down system. This was the era in which worship of rule by technocratic experts became common, when the wisdom of the Best and the Brightest was unchallenged. A yearning to return to those times runs through these new theories about speech, and is prevalent throughout todays Washington, a city that seems to think everything should be run by people with graduate degrees.

Going back to a system of stewardship of the information landscape by such types isnt a 21st-century idea. Its a proven 20th-century failure, and signing up Silicon Valley for a journey backward in time wont make it work any better.

This post first appeared at taibbi.substack.com and is republished here with permission.

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Matt Taibbi: A Biden appointee's troubling views on the First Amendment - National Post

In a victory for free speech, the rule of law, and common sense, a three-judge panel of the U.S. Court of Appeals for the 6th Circuitrecently ruledthat a philosophy professor at Shawnee State University in Portsmouth, Ohio, could not be forced to use a transgender students preferred pronouns, and that his suit against the university for violation of his First and 14th Amendment rights could proceed.

The courts decision is the first of its kind, and establishes a needed boundary against American cultures new, brutish sexual orthodoxy.

At least within academia, one can no longer be compelled to say things one doesnt believe.

The incident that precipitated this suit occurred in January 2018, when Shawnee State philosophy professor Nicolas Meriwether responded to a male students question during a Socratic dialogue in his political philosophy class by saying, Yes, sir. After class, the student approached Meriwether, stated that he was transgender, and demanded that the professor refer to him as a woman, with feminine titles and pronouns.

Instead, Meriwether offered to use the students last name, or any other name of the students choosing, but politely declined to use the transgender students pronouns. The student became belligerent and promised to get Meriwether fired.

The student then filed a complaint with the university, which launched a formal investigation through the universitys Title IX office. Meriwether again offered various compromises in an attempt to protect his rights of conscience while being respectful to the transgender student, but the university rejected any arrangement other than the use of preferred pronouns, or the elimination of sex-based pronouns altogether (a virtual impossibility in a scholastic setting).

When Meriwether refused, the university formally charged him with a violation of Title IX, claiming he [had] effectively created a hostile environment for the student. The university placed a written warning in Meriwethers personnel file and threatened further corrective actions unless he articulated the universitys groupthink.

Two years prior, in 2016, Meriwether had received a faculty-wide email from Shawnee State leadership, directing all faculty to refer to students by their preferred pronouns. At that time, Meriwether, a devout Christian, had approached his department chair, Jennifer Pauley, with concerns about the policy. Pauley was not only dismissive of Meriwethers concerns,she was patently hostile.

Knowing Meriwether had successfully taught courses on Christian thought for decades, Pauley claimed Christians are primarily motivated out of fear, and should be banned from teaching courses regarding that religion. In her view, even the presence of religion in higher education is counterproductive.

Meriwether was told that even if a professor had moral or religious objections to the use of preferred pronouns, the policy would still apply.

Two years later, Meriwethers spotless record was marred by a disciplinary note, and he was teaching under the threat of further discipline, including suspension without pay or termination, unless he agreed to fall in line with Shawnees pronoun policy.

In November 2018, Meriwether sued the university in Ohio federal court for violation of his rights of free speech and religious liberty under the First Amendment, and violation of his due process and equal protection rights under the 14th Amendment. U.S. District Judge Susan Dlottthrew out Meriwethers lawsuiton Feb. 12, 2020, and among other things, held that a professors speech in the classroom is never protected by First Amendment. Meriwether appealed to the 6th Circuit.

InMeriwether v. Hartop et al., an impatient panel for the 6th Circuit wasted no time with perfunctory legalese or institutional pandering. It cut right to the chase in its frustration with Shawnee States stamping out of debate and open dialogue vis-a-vis its malignant speech policy.

Theopinion, which was written by Judge Amul Thapar and joined by Judge Joan Larsen and Senior Judge David McKeague, begins:

Traditionally, American universities have been beacons of intellectual diversity and academic freedom. They have prided themselves on being forums where controversial ideas are discussed and debated. And they have tried not to stifle debate by picking sides. But Shawnee State chose a different route: It punished a professor for his speech on a hotly contested issue. And it did so despite the constitutional protections afforded by the First Amendment.

The district court dismissed the professors free-speech and free-exercise claims. We see things differently and reverse.

The court went on to clarify that theSupreme Court has recognizedthat the government may not compel a speaker to affirm a belief with which the speaker disagrees. It added that courts haverecognizedthat the free speech clause of the Constitution applies at public universities, and that professors do not shed their constitutional rights to freedom of speech or expression at the [university] gate.

Thapar, the first South Asian federal judge in American history, and the son of self-made immigrants from India, seemed hard-pressed in containing his displeasure at the universitys looseness with long-standing judicial principles. Its clear he doesnt take kindly to Shawnee States loutish attempts at conformity.

In relaying a dizzying body of precedent, Thapar stressed that the court has rejected as totally unpersuasive the argument that teachers have no First Amendment rights when teaching, or that the government can censor teacher speech without restriction.

Simply put, the judge wrote, professors at public universities retain First Amendment protections at least when engaged in core academic functions, such as teaching and scholarship because the need for free exchange of ideas in the college classroom is unlike that of other workplace settings.

In a critical discussion on the use of pronouns themselves, Thapar wrote:

[T]itles 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.

Thats not a matter of classroom management; thats a matter of academic speech Never before have titles and pronouns been scrutinized as closely as they are today for their power to validateor invalidatesomeones 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

Shawnee State allegedly flouted [a] core principle of the First Amendment. Taking the allegations as true, we hold that the university violated Meriwethers free-speech rights.

The courts opinion in Meriwether v. Hartop is long overdue comfort to those who refuse to bend the knee on leftist groupthinkthe kind that forces a subjective and manipulable view of one persons self to become a defining reality for everyone else. It is a stake in the ground on behalf of religious dissenters and academic freedom.

Andwith poetic suitability to a Socratic dialoguethe decision reminds us that there are no personal truths, but only truths immemorial: realities that exists independent of our wishes to the contrary.

This piece originally appeared in The Daily Signal.

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The 6th Circuit Reached the Right Conclusion on Preferred Pronouns. Other Courts Should Follow Suit. - Heritage.org