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Confusion continues amongst federal district courts in the wake ofBarr v. American Association of Political Consultants, Inc.(AAPC), 140 S. Ct. 2335 (2020), the Supreme Court decision that held the TCPAs government-debt exceptioninstituted via a 2015 amendment to the statuteviolated the First Amendment. Courts recently have dealt with the issue of whether plaintiffs can bring TCPA claims for conduct occurring between 2015 and July 2020, the date the unconstitutional amendment was passed and the date the Supreme Court declared the amendment unconstitutional and ordered it severed from the TCPA. The Eastern District of Louisiana said the answer to this question is no.Creasy v. Charter Communications, Inc., 2020 WL 5761117 (E.D. La. Sept. 28, 2020). The district courts for the Southern District of California and the Northern District of Ohio disagree, as we discuss below. Our prior posts on this issue, which we have been following closely, can be foundhere.

InMcCurley et al. v. Royal Sea Cruises, Inc., 2021 WL 288164 (S.D. Cal. Jan. 28, 2021), andLess v. Quest Diagnostics Incorporated, 2021 WL 266548 (N.D. Ohio Jan. 26, 2021), defendants argued that TCPA claims arising during the above-mentioned time period were barred because the TCPA wasentirelyunconstitutional during that period. Both theMcCurleyand theLesscourts disagreed, though the two courts differed in their rationales.

The two courts noted that a majority inAAPChad concluded that the government-debt exception provision was severable from the rest of the statute. TheLesscourt framed the issue as whether severability of the unconstitutional provision should be retroactive to conduct occurring between 2015 and 2020.Less, 2021 WL 266548, at *1. It noted that an unconstitutional statutory amendment is a nullity and void when enacted, and for that reason has no effect on the original statute.Less, 2021 WL 266548, at *1 (quotingAAPC, 140 S. Ct. at 2353 (internal quotation marks omitted)). TheLesscourt concluded that since the 2015 amendment was void at its inception, it had no effect on the pre-2015 text of the statute, and thus because there are not constitutional defects to the pre-2015 text, the statutes enforceability is unaffected by the amendment.Less, 2021 WL 266548, at *1. Accordingly, the court concluded that there was no constitutional defect in Plaintiffs claim even though the claim arose during the 2015-2020 time period.Id.

TheMcCurleycourt reached the same conclusion, but offered slightly different reasoning. It explained that [s]ix members of the [Supreme Court] . . . conclude[d] that Congress ha[d] impermissibly favored debt-collection speech over political and other speech in violation of the First Amendment and [s]even Members of the Court conclude[d] that the entire 1991 robocall restriction should not be invalidated, but rather that the 2015 government-debt exception must be invalidated and severed from the remainder of the statute.McCurley, 2021 WL 288164, at *2 (quotingAAPC, 140 S. Ct. at 2343). TheMcCurleycourt noted that Justice Kavanaughwho had voted that the amendment violated the First Amendment and should be severed from the rest of the TCPAexplicitly stated that the Courts decision does not negate the liability of parties who made robocalls covered by the robocall restriction.Id.(quotingAAPC, 140 S. Ct. at 2355 n.12). TheMcCurleycourt reasoned that because plaintiffs case did not involve the collection of government debt, Justice Kavanaughs words were directly applicable such that the TCPA applied to the alleged conduct even though it occurred between 2015 and 2020.Id.at *2, *4.

TheMcCurleycourt rejected defendants contention that Justice Kavanaughs opinion should be ignored as dicta. The court noted the rule that where there is a plurality opinion of the Supreme Court, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds, and that when an opinion issues for the [Supreme] Court, it is not only the result but also those portions of the opinion necessary to that result by which [courts] are bound.Id.(quotingMarks v. United States, 430 U.S. 188, 193 (1977) andSeminole Tribe of Florida v. Florida, 517 U.S. 44, 67 (1996)). TheMcCurleycourt stated that one single rationale explain[ed] the result joined by seven of the Justices, namely that [a]ll seven agree that the 2015 amendment should be severed and the liability of the parties making robocalls who were not collecting a government debt is not negated.Id.TheMcCurleycourt thus seemingly reasoned that because those justices joined Kavanaugh regarding severability, they joined him in his brief allusions to retroactivity.

Accordingly, theMcCurleycourt reasoned that Justice Kavanaughs statement applied.Id.at *3. In concluding, the court stated that even if Justice Kavanaughs statement was dicta, the statement signals the intent of the Supreme Court and what it would hold in future cases and, as such, may not be cavalierly dismissed by a district court.Id.

Thus, whether framed through the lens of retroactivity or by using the rule regarding lower courts interpretational duties in parsing Supreme Court plurality opinions, some district courts appear to be hesitant to hold that the TCPA was void from 2015 until the Supreme Courts ruling inAAPC.

2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume XI, Number 36

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S.D. Calif & N.D. Ohio Disagree with Creasy Ruling - The National Law Review

WASHINGTON, Feb. 1, 2021 /PRNewswire/ --As an organization dedicated to defending civil rights, the Women's Liberation Front (WoLF) commends The University of Wisconsin Law School (UW Law) in its decision to uphold the First Amendment by refusing to discriminate against organizations with diverse viewpoints.

WoLF chose to participate in the school's Public Interest Interview Program because of UW Law's long tradition of public service and the "Law-in-Action" approach to legal education, which teaches future attorneys how to navigate the real-world complexities of the law. This tradition aligns with WoLF's mission to advance and restore the rights of women and girls, combat the global epidemic of male violence, and resist the harms of an expanding sex industry.

In response to a statement by the student organization QLaw, the UW Law statement of support reflects our shared value of defending civil liberties, even when disagreements arise. While publicly funded institutions are legally required to uphold the First Amendment, UW Law's statement demonstrates courage in the face of a toxic intolerance pervasive within University and college campuses.

WoLF's defense of hard-fought single-sex spaces, sports, and services serves the public interest of the women and girls of Wisconsin. As 2020 national polling showed, the majority of Americans in states as different as Idaho and California agree that single-sex spaces for women and girls should be protected. Just last month, a Wisconsin court ordered the Department of Corrections to transfer a man convicted of repeatedly raping his ten-year-old daughter to the women's prison, since he now identifies as a woman. The vulnerable women in state custody, who are disproportionately women of color, will soon be housed in close confinement with a dangerous sex offender.

While organizations like QLaw may find this acceptable, WoLF stands with UW Law in the recognition that public interest organizations have the freedom to speak out against such policies and must not be discriminated against for doing so.

UW Law's commitment to protecting civil liberties affirms why WoLF chose to partner through its Public Interest Interview Program. We look forward to interviewing a diverse range of qualified candidates as well as working with UW Law to build up the next generation of lawyers with a steadfast dedication to freedom for allincluding women.

Natasha ChartWoLF Executive Director

Learn more about WoLF's work:https://www.womensliberationfront.org/our-work

For media inquiries please contact:[emailprotected]

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Women's Liberation Front Commends The University of Wisconsin Law School for Upholding First Amendment Protections - PRNewswire

When private tech companies moderate speech online, is the government ultimately responsible for their choices? This appears to be the latest argument advanced by those criticizing Section 230 of the Telecommunications Act of 1996sometimes known as Section 230 of the Communications Decency Act. But upon closer scrutiny, this argument breaks down completely.

In a new Wall Street Journal op-ed, Philip Hamburger argues that the government, in working through private companies, is abridging the freedom of speech. Weve long respected Hamburger, a professor at Columbia Law School, as the staunchest critic of overreach by administrative agencies. Just last year, his organization (the New Civil Liberties Alliance) and ours (TechFreedom) filed a joint amicus brief to challenge such abuse. But the path proposed in Hamburgers op-ed would lead to a regime for coercing private companies to carry speech that is hateful or even downright dangerous. The storming of the U.S. Capitol should make clear once and for all why all major tech services ban hate speech, misinformation and talk of violence: Words can have serious consequencesin this case, five deaths, in addition to two subsequent suicides by Capitol police officers.

Hamburger claims that there is little if any federal appellate precedent upholding censorship by the big tech companies. But multiple courts have applied the First Amendment and Section 230 to protect content moderation, including against claims of unfairness or political bias. Hamburgers fundamental error is claiming that Section 230 gives websites a license to censor with impunity. Contrary to this popular misunderstanding, it is the First Amendmentnot Section 230which enables content moderation. Since 1998, the Supreme Court has repeatedly held that digital media enjoy the First Amendment rights as newspapers. When a state tried to impose fairness mandates on newspapers in 1974, forcing them to carry third-party speech, no degree of alleged consolidation of the power to inform the American people and shape public opinion in the newspaper business could persuade the Supreme Court to uphold such mandates. The court has upheld fairness mandates only for one mediumbroadcasting, in 1969and only because the government licenses use of publicly owned airwaves, a form of state action.

Websites have the same constitutional right as newspapers to choose whether or not to carry, publish or withdraw the expression of others. Section 230 did not create or modify that right. The law merely ensures that courts will quickly dismiss lawsuits that would have been dismissed anyway on First Amendment groundsbut with far less hassle, stress and expense. At the scale of the billions of pieces of content posted by users every day, that liability shield is essential to ensure that website owners arent forced to abandon their right to moderate content by a tsunami of meritless but costly litigation.

Hamburger focuses on Section 230(c)(2)(A), which states: No provider or user of an interactive computer service shall be held liable on account of ... any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected. But nearly all lawsuits based on content moderation are resolved under Section 230(c)(1), which protects websites and users from being held liable as the publisher of information provided by others. In the 1997 Zeran decision, the U.S. Court of Appeals for the Fourth Circuit concluded that this provision barred lawsuits seeking to hold a service provider liable for its exercise of a publishers traditional editorial functionssuch as deciding whether to publish, withdraw, postpone or alter content (emphasis added).

The Trump administration argued that these courts all misread the statute because their interpretation of 230(c)(1) has rendered 230(c)(2)(A) superfluous. But the courts have explained exactly how these two provisions operate differently and complement each other: 230(c)(1) protects websites only if they are not responsible, even in part, for the development of the content at issue. If, for example, they edit that content in ways that contribute to its illegality (say, deleting not in John is not a murderer), they lose their 230(c)(1) protection from suit. Because Congress aimed to remove all potential disincentives to moderate content, it included 230(c)(2)(A) as a belt-and-suspenders protection that would apply even in this situation. Hamburger neglects all of this and never grapples with what it means for 230(c)(1) to protect websites from being treated as the publisher of information created by others.

Hamburger makes another crucial error: He claims Section 230 has privatized censorship because 230(c)(2)(A) makes explicit that it is immunizing companies from liability for speech restrictions that would be unconstitutional if lawmakers themselves imposed them. But in February 2020, the U.S. Court of Appeals for the Ninth Circuit ruled that YouTube was not a state actor and therefore could not possibly have violated the First Amendment rights of the conservative YouTube channel Prager University by flagging some of its videos for restricted mode, which parents, schools and libraries can turn on to limit childrens access to sensitive topics.

Hamburger insists otherwise, alluding to the Supreme Courts 1946 decision in Marsh v. Alabama: The First Amendment protects Americans even in privately owned public forums, such as company towns. But in 2019, Justice Brett Kavanaugh, writing for all five conservative justices, noted that in order to be transformed into a state actor, a private entity must be performing a function that is traditionally and exclusively performed by the government: [M]erely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints. In fact, Marsh has been read very narrowly by the Supreme Court, which has declined to extend its holding on multiple occasions and certainly has never applied it to any media company.

Hamburger also claims that Big Tech companies are akin to common carriers. Hes right that the law ordinarily obliges common carriers to serve all customers on terms that are fair, reasonable and nondiscriminatory. But simply being wildly popular does not transform something into a common carrier service. Common carriage regulation protects consumers by ensuring that services that hold themselves out as serving all comers equally dont turn around and charge higher prices to certain users. Conservatives may claim thats akin to social media services saying theyre politically neutral when pressed by lawmakers at hearings, but the analogy doesnt work. Every social media service makes clear up front that access to the service is contingent on complying with community standards, and the website reserves the discretion to decide how to enforce those standardsas the U.S. Court of Appeals for the Eleventh Circuit noted recently in upholding the dismissal of a lawsuit by far-right personality Laura Loomer over her Twitter ban. In other words, social media are inherently edited services.

Consider the Federal Communications Commissions 2015 Open Internet Order, which classified broadband service as a common carrier service insofar as an internet service provider (ISP) promised connectivity to substantially all Internet endpoints. Kavanaugh, then an appellate judge, objected that this infringed the First Amendment rights of ISPs. Upholding the FCCs net neutrality rules, the U.S. Court of Appeals for the D.C. Circuit explained that the FCCs rules would not apply to an ISP holding itself out as providing something other than a neutral, indiscriminate pathwayi.e., an ISP making sufficiently clear to potential customers that it provides a filtered service involving the ISPs exercise of editorial intervention. Social media services make that abundantly clear. And while consumers reasonably expect that their broadband service will connect them to all lawful content, they also know that social media sites wont let you post everything you want.

Hamburger is on surer footing when commenting on federalism and constitutional originalism: [W]hen a statute regulating speech rests on the power to regulate commerce, there are constitutional dangers, and ambiguities in the statute should be read narrowly. But by now, his mistake should be obvious: Section 230 doesnt regulat[e] speech. In fact, it does the opposite: It says the government wont get involved in online speech and wont provide a means to sue websites for their refusal to host content.

Hamburger doubles down by claiming that Section 230 allows the government to set the censorship agenda. But neither immunity provision imposes any agenda at all; both leave it entirely to websites to decide what content to remove. Section 230(c)(1) does this by protecting all decisions made in the capacity of a publisher. Section 230(c)(2)(A) does this by providing an illustrative list of categories (obscene, lewd, lascivious, filthy, excessively violent, harassing) and then adding the intentionally broad catchall: or otherwise objectionable. Both are coextensive with the First Amendments protection of editorial discretion.

Hamburger argues for a narrow reading of 230(c)(2)(A), which would exclude moderating content for any reason that does not fall into one of those categories or because of its viewpoint. He claims that this will allow state legislatures to adopt civil-rights statutes protecting freedom of speech from the tech companies. And he reminds readers about the dangers of the government co-opting private actors to suppress free speech: Some Southern sheriffs, long ago, used to assure Klansmen that they would face no repercussions for suppressing the speech of civil-rights marchers. This analogy fails for many reasons, especially that those sheriffs flouted laws requiring them to prosecute those Klansmen. That is markedly and obviously different from content moderation, which is protected by the First Amendment.

Ironically, Hamburgers proposal would require the government take the side of those spreading hate and falsehoods online. Under his narrow interpretation of Section 230, the law would not protect the removal of Holocaust denial, use of racial epithets or the vast expanse of speech thatwhile constitutionally protectedisnt anything Hamburger, or any decent person, would allow in his own living room. Nor, for example, would it protect removal of hate speech about Christians or any other religious group. Websites would bear the expense and hassle of fighting lawsuits over moderating content that did not fit squarely into the categories mentioned in 230(c)(2)(A).

Perversely, the law would favor certain kinds of content moderation decisions over others, protecting websites from lawsuits over removing pornography or profanity, but not from litigation over moderating false claims about election results or vaccines or conspiracy theories about, say, Jewish space lasers or Satanist pedophile cannibal cults. But if Hamburgers argument is that Section 230 unconstitutionally encourages private actors to do what the government could not, how does favoring moderation of some types of constitutionally protected speech over others address this complaint? This solution makes sense only if the real criticism isnt of the idea of content moderation, or its constitutionality, but rather that social media platforms arent moderating content according to the critics preferences.

Hamburger is a constitutional originalist, and he invokes the Framers understandings of the First Amendment: Originally, the Constitutions broadest protection for free expression lay in Congresss limited power. But theres nothing remotely originalist about his conclusion. His reading of Section 230 would turn Congress shall make no law... into a way for the government to pressure private media to carry the most odious speech imaginable.

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The Wall Street Journal Misreads Section 230 and the First Amendment - Lawfare

In a famous dissent written 102 years ago, Supreme Court Justice Oliver Wendell Holmesissued his clarion callfor a vigorous First Amendment based on the free marketplace of ideas. But his epic fighting faiths passage ended with this caveat: I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

An imminent threat of immediate interference with the law thats a good description of the Trump-infused insurrection at the Capitol in January. We all have a First Amendment right to speak and to assemble and to protest for the causes that animate us. We all have a right to take to the streets to express ourselves so long as we are peaceful and follow the law. The government cannot prosecute or otherwise punish us for these actions. Everyone from Black Lives Matter protesters to white supremacists has this right. Police officers do, too.

But none of the individual freedoms enshrined in the Bill of Rights come to us without limitations. We cannot use our words to defraud our neighbors or extort our rivals. We cannot use our words to plot a murder or conspire to rob a bank or to incite violence.

And in the case of police officers and the First Amendment, the limitations go even further when it comes to whether they can both express certain views and be cops. The Supreme Court has long held that public employees (like police officers) have narrower free speech rights than the rest of us in certain circumstances. In other words, as Holmeswrote in 1892when he was on the Massachusetts Supreme Court, a cop has a constitutional right to talk politics but no constitutional right to be a cop.

Off-duty officers had the right to go to Washington to take part in the Trump rally on January 6 designed to stoke insurrection and pressure lawmakers to overturn the results of the free and fair presidential election. But the rest of us have the right, indeed the obligation, to evaluate what the exercise of that right by those cops says about their professional judgment, their temperament to be peace officers, and their commitment to upholding the law in the future based on the objective realities of the world. Some of these cops will lose their jobs because they took part in a Trump rallyquariot fueled by worthless evidence of election fraud and big lies.

We dont yet know how many police officers attended the Trump rally that turned into a deadly riot. TheWashington Posttwo weeks agoreported the countwas at least 13, but the number is surely much higher. We know that line officers went to the Capitol to, at a minimum, protest the results of the election and we know thatsheriffs did, too. We know that some already have beensuspended or charged. And we know that their first line of defense after being caught has been to wrap themselves in the First Amendment and say they were merely exercising their rights as private citizens.

Its also possible that some of the police officers who participated in the Trump rally-turned-riot are fired for their roles in the insurrection (whether they are prosecuted or not). Some already have been. And its possible that some will then turn around and sue their departments for retaliation by arguing that they were unconstitutionally dismissed for exercising free speech rights. Those lawsuits will likely turn on how judges apply alegal balancing testthat weighs the officers right to speak versus their employers right to have a police department that doesnt include in its ranks conspiracy theorists who embrace baseless allegations that are used to foment insurrection.

That narrative has spread across the nation, even as we learn more about the extent to whichcops were involvedon January 6. We are making clear that they have First Amendment rights like all Americans, Houston Police Chief Art Acevedosaid last weekwhen he accepted the resignation of an 18-year veteran of the department who was involved in the Capitol riot. However, engaging in activity that crosses the line into criminal conduct will not be tolerated. The problem is that Acevedos first sentence is simply not true. Even when they are off-duty, case law tells us that police officers dont have the same First Amendment rights as civilians.

The original rule (sometimes called the Pickering/Connick test to identify the cases which spawned it) comes from two Supreme Court rulings issued nearly a generation apart, in 1968 and 1983, that define First Amendment protections for public employees i.e., those working for the government. Judges mustbalancethe interests that police officers have in expressing themselves on political issues against the interests that police departments (and frankly the rest of us) have in being confident that cops can do their jobs effectively and fairly.

In a2006case, the Supreme Court explained some of its rationale for limiting a public employees free speech protections. In that case, about a prosecutor in Los Angeles who blew the whistle on poor police work and was fired for it, Justice Anthony Kennedy wrote, Without a significant degree of control over its employees words and actions, a government employer would have little chance to provide public services efficiently. Thus, a government entity has broader discretion to restrict speech when it acts in its employer role, but the restrictions it imposes must be directed at speech that has some potential to affect its operations. (citations omitted)

The courts have long recognized that public employees have a First Amendment right to participate in public debates on important matters. However, government employers may punish employees whose speech, even outside of work, compromises their ability to do their job, Ben Wizner, director of the ACLUs Speech, Privacy, and Technology Project, told me via email. Although each case has to be decided on its own facts, courts have upheld discipline or termination of police officers, who are armed agents of the state, for making statements in their personal capacity that undermine their ability to maintain the trust of the community they serve.

Let me offer a hypothetical that I think fairly illustrates the issue in the context of the Capitol riot. Pretend for a moment that you are a police chief. A body is found in your town. An investigation ensues. Half the town believes the death is a natural one. Half the town thinks its murder. The evidence is collected. It becomes clear beyond all reasonable doubt that the death was a natural one. Scores of judges, of all ideological stripes, say so. So do the witnesses with direct knowledge of what happened to the victim. With no axe to grind, with no agenda other than to tell the truth, one by one they testify that there was no murder.

In spite of all of this, a local cop refuses to believe the evidence before him. Refuses to respect the rulings of all those judges or the testimony of all those witnesses. So skeptical of objective truths, so unwilling to appreciate the evidence he can see with his own eyes, hes remarkably not skeptical of the conspiracy theories that tell him the victim was murdered. The judges are in on the scam, this cop believes, and so are the witnesses. The murder was part of a crime so elaborate it involves countless co-conspirators and a level of coordination that beggars belief. No matter, the cop says, he knows what he knows. It was murder.

The cop doesnt just indulge in this fantasy in his own mind or in his private life. He doesnt just spread his views at his local bar or a neighbors barbeque. He actively participates in the fantasy, he broadens and strengthens it, by joining with countless other like-minded conspiracy theorists who travel to Washington to take part in a rally centered around the idea that the victim was murdered. And not just a demonstration in support of that lie but also the dangerous proposition that the people who are saying otherwise that is, the people whose view of the world is rooted in objective evidence should be torn from office or killed.

The cop returns home and finds himself criticized for taking part in the event. So he says he was merely participating in protected speech as a private citizen. He says he had no idea a political rally would turn violent. What is his boss supposed to do about that? Heres a cop who has shown a propensity for ignoring evidence, who has disrespected judicial rulings, and embraced conspiracy theories with alarming gullibility. Heres a cop who makes common cause with an angry mob. What do these things say about his ability to separate fact from fiction on his job? What do they say about his ability to synthesize facts and evidence in a routine criminal investigation? Should a jury trust this cops credibility on the witness stand?

These are precisely the sorts of considerations the Supreme Court says judges must weigh in evaluating the First Amendment claims of police officers who are fired for off-duty behavior. Assuming the police officers who attended the rally were engaging in lawful speech and not illegal conduct, does that political speech affect public perceptions of the law enforcement agency? Does it undermine the relationship between the speaker and his fellow officers? Does it impede the ability of the department to recruit officers, or generate hostile media coverage? The cops who traveled to Washington to support baseless election fraud claims wont be able to avoid these questions if they want to prevail with their lawsuits.

For me, the answers to these questions are self-evident. There should be a presumption of disqualification for any law enforcement officer who went to the Trump rally, whether they participated in the subsequent storming of the Capitol or not. A cop who believedtwo months after the electionthat it had been stolen by Joe Biden should be required to explain under oath why he or she deserves to continue to be a peace officer. A cop who believed that countless state elections officials, and federal and state judges, were part of a vast conspiracy to defeat Trump must explain why he ever should be able to investigate a crime or testify under oath as a credible witness for the state.

These journeys to Washington for Trumps rally were not spur-of-the-moment decisions. They were planned. At every step along the way the participants could have opted out, could have said to themselves that as peace officers they would not march for a cause based so obviously on a series of partisan lies. You can bet that federal prosecutors will be making a form of this argument if and when the criminal trials against the alleged Capitol rioters proceed. You can also bet that attorneys representing police departments will be making the argument too to defend against retaliation lawsuits by fired cops.

These employment retaliation cases are so fact-specific its hard to discern patterns. But there is lower court precedent, too. The U.S. Court of Appeals for the Fifth Circuit in 2015 ruled in favor of city officials who fired a police officer for posting comments on Facebook that were critical of her bosses. Susan Graziosi was speaking as a public employee, the judges concluded, but was not speaking on a matter of public concern because her complaints focused on internal police matters. But the court then concluded that even if Grazioisi were speaking out on a public matter (as our seditionist cops surely were) she still would have lost her employment lawsuit because police officials have a strong interest in preventing insubordination.

And its unclear how the current Supreme Court will look at these issues. It is much more conservative than it was in 2006 when Justice Kennedy helped narrow the free speech rights of public employees. And it is certainly more conservative than it was in 1968 when the it first articulated the legal test that lower court judges must apply in these cases. Its also unclear, at least now, how hard police union officials will fight for the rights of these cops who are charged with federal crimes for their roles in an event that led to the death of one Capitol Police officer and injuries to scores more.

David Hudson, an expert on free speech at the First Amendment Center, disagrees with me. He told me, echoing Wizner, that punishing officers for merely attending the Trump rally, regardless of the conspiratorial theories that led them there, would be an impermissible infringement on those officers constitutional rights. Police officers should not be dismissed generally because of their political beliefs or association with particular viewpoints or such, Hudson told me. That said, any police officers who engage in unlawful conduct or rioting should be subject to discipline. Police officers are held to a higher standard and must be positive examples. They are there to protect and service, not disrupt and riot.

But the cases involving insurrectionist copswho participated in the Capitol riotwill be easy to resolve. Cops who broke the law should and will be fired and they will lose their retaliation claims if they bring them. The closer question is the one I am posing: where the officer merely attended the January 6 rally to promote unfounded election fraud theories in the hope of overturning the election. When police officers exercise their First Amendment rights by revealing themselves to be persistently hostile to verifiable facts, they are telling the rest of us a great deal about the judgment they bring to their work. They are saying they no longer deserve to be taken seriously as credible officers of the court.

Hudson, the free speech advocate, says that the law does and should allow a cop to believe in and act on conspiracy theories and still carry a badge so long as his conduct is lawful and appropriate. That the law recognizes that the same mind could sustain the fantasy that Donald Trump won the 2020 presidential election and also maintain the capacity for the reasoned judgment necessary to carry out the duties of a law enforcement official and that the former doesnt infect the latter. Tell that to the victim who wants her crime solved quickly and correctly or to the defendant in the dock waiting for that conspiratorialist, insurrectionist cop to testify against him.

The views expressed are the authors own and not necessarily those of the Brennan Center.

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Police Officers, Insurrection Day, and the First Amendment - brennancenter.org

Letters

If I read one more letter to the editor claiming that social medias squelching of the former presidents (in my opinion) lies, fraud, bogus conspiracy theories and downright dangerous posts are somehow signaling the death knell of the First Amendment, I am going to scream. The First Amendment applies, by its face and by relevant case decisions, to governmental agencies. The Supreme Court has also held that the First Amendment does not allow speech that incites imminent lawless action.

More to the point, anyone who would take the time to actually read the First Amendment can see it begins, Congress shall make no law Facebook is not a government agency. Nor are Instagram, Twitter, nor most of the other seemingly billions of social media sites. They can, and do, set their policies for what may be posted. As long as those policies do not run afoul of some important civil rights (say, banning people because of their race or some other class protected by law), they have fairly wide latitude in how to set those rules. They could, for example, ban off-color language, nudity, etc. Conservative viewpoints are not protected discrimination classes, just as liberal views, false claims and nutjob conspiracy theories are not.

So, before we begin mourning the death of the First Amendment, you might want to read it. Its medical charts would show its not only not dying, its not even sick.

Tom Pacher

Whidbey Island

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First Amendment is alive and well | HeraldNet.com - The Daily Herald