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President Uhuru Kenyatta's speech delivered during the 57th Jamhuri Day celebrations on December 12 was the clearest indication that the Building Bridges Initiative train had already left the station and that it was on the right track.

Before this, BBI critics had dismissed it as a ploy by former Prime Minister Raila Odinga to reinvent himself politically and ascend to the presidency using "unorthodox" means.

As a firm believer in reconciliation, President Kenyatta extended the 'handshake' to Mr Odinga as a journey towards our nationhood, with the BBI being a roadmap to a long-term solution, which would not be an end in itself but a continuous work-in-progress.

The BBI, a culmination of the March 2018 'handshake', has key proposals aimed at ensuring inclusivity as well as end the divisive politics that have continued to dog the country every election.

Constitutional moment

Judging from the violence that permeates our nation every election cycle, change was inevitable. And history tells us that a country frequently in turmoil calls for a constitutional moment.

Ever since the advent of multiparty politics in 1991, all but one presidential election in Kenya has resulted in violence. In the run-up to the 1992 election, ethnic clashes saw the killing and displacement of non-Kalenjin communities from the Rift Valley region. The same scenario was replicated in 1997.

Then in the 2007-08 post-election violence, more than 1,500 Kenyans were murdered and 600,000 were forced from their homes. Bloodshed was also witnessed in 2017, when the Supreme Court, in an unprecedented ruling, nullified President Kenyattas election and ordered a repeat of the presidential poll.

Earlier, IEBC IT manager Chris Msando was brutally murdered only three days before the vote. Needless to say, this cycle of electoral violence is affecting both local and foreign investment in the country. Kenyans struggling to make a living also dread every election year as violence either disrupts their businesses or results in loss of property.

It is against this background that the BBI proposes amendments to our Constitution to give Kenyans hope for a better nation. The BBI is the driver to the first amendment to the 2010 Constitution.

Whereas it will not solve all the thorny constitutional grievances through a singular amendment, it starts a continuous process of refining our nascent nation's Constitution. Further amendments are likely to take place as the country continues to grow.

Fostering inclusion

It is noteworthy that the BBI incorporates the spirit of inclusion, co-creation, and justice. Regarding inclusion, the Executive has been expanded from two to five top positions, with the creation of the post of a prime minister and two deputy prime ministers.

The current dispensation, with only the President and Deputy President at the top, has resulted in exclusion in our ethnically diverse nation and become a source of discord. The Kofi Annan-led National Accord of 2008 provided for five positions at the top, and this worked very well.

Taking cognisance of the fact that five positions at the apex of the Executive are no panacea to inclusion, BBI proposes to reintroduce the position of leader of the official opposition that made significant contribution under the previous constitutional dispensation.

With a shadow cabinet to boot, s/he will keep the government of the day in check and ensure the development agenda stays on course. An expanded Executive and constitutional recognition of the opposition will go a long way in reducing tensions that escalate into violence every election year.

The BBI Report also urges Kenyans, and particularly the leadership in the public sector, to build systems that embrace merit while broadening inclusivity. It is especially crucial that political parties actively seek out and promote aspirants to elective office who, in addition to their political skills, are competent individuals. This will also be replicated in the public service where all state appointments will be based on merit and show the face of Kenya.

The BBI also proposes legal and political systems that carefully balance between equity and equality. There is no doubt that Kenya has a continuing legacy of marginalisation of some groups and areas, and that this is combined with existing pervasive under-servicing in many parts of the country. Through the BBI, the needs of the marginalised and under-served will be met, as much as is possible.

On the economic front, the BBI focuses on the equalisation of opportunity for all Kenyans, no matter their age, ethnicity, religion, or gender, as the primary aim of economic policy. We can only succeed in building wealth as a nation if we minimise the barriers to opportunity caused by discrimination, undermining of merit, poor education, and unequal service provision.

Co-creation

On co-creation, the spirit of the first amendment is a continuation and strengthening of the devolved system of governance as enshrined in the 2010 Constitution, whose framers envisaged a system where the national government co-creates solutions with county governments.

Nothing has demonstrated this partnership better than the Covid-19 pandemic, whose mitigation has witnessed tremendous success, thanks to the collaboration between the two levels of government.

Accordingly, the first amendment proposes to strengthen devolution by increasing fund allocated to counties by the national government from 15 per cent to 35 per cent.

And in order to take development closer to the people, the amendment proposes the creation of a Ward Development Fund. It also proposes a 50:50 representation in the Senate by both men and women in order to place women at the heart of devolution.

Evidently, the BBI train has already left the station; and it is on the right track.

The writer is Co-chair of the BBI Secretariat and former Dagoretti South MP

Go here to read the rest:
BBI: The case for the first amendment to the 2010 Constitution - The Star, Kenya

President Trumps recent threat to unequivocally VETO the National Defense Authorization Act (NDAA) if it doesnt include a repeal of Section 230 may represent the final attack on online free speech of his presidency, but its certainly not the first. The NDAA is one of the must-pass bills that Congress passes every year, and its absurd that Trump is using it as his at-the-buzzer shot to try to kill the most important law protecting free speech online. Congress must reject Trumps march against Section 230 once and for all.

Under Section 230, the only party responsible for unlawful speech online is the person who said it, not the website where they posted it, the app they used to share it, or any other third party. It has some limitationsmost notably, it does nothing to shield intermediaries from liability under federal criminal lawbut at its core, its just common-sense policy: if a new Internet startup needed to be prepared to defend against countless lawsuits on account of its users speech, startups would never get the investment necessary to grow and compete with large tech companies. 230 isn't just about Internet companies, either. Anyintermediarythat hosts user-generated material receives this shield, including nonprofit and educational organizations like Wikipedia and the Internet Archive.

Section 230 is not, as Trump and other politicians have suggested, a handout to todays dominant Internet companies. It protects all of us. If youve ever forwarded an email, Section 230 protected you: if a court found that email defamatory, Section 230 would guarantee that you cant be held liable for it; only the author can.

If youve ever forwarded an email, Section 230 protected you.

Two myths about Section 230 have developed in recent years and clouded todays debates about the law. One says that Section 230 somehow requires online services to be neutral public forums: that if they show bias in their decisions about what material to show or hide from users, they lose their liability shield under Section 230 (this myth drives todays deeply misguided platform vs. publisher rhetoric). The other myth is that if Section 230 were repealed, online platforms would suddenly turn into neutral forums, doing nothing to remove or promote certain users speech. Both myths ignore that Section 230 isnt what protects platforms right to reflect any editorial viewpoint in how it moderates users speechthe First Amendment to the Constitution is. The First Amendment protects platforms right to moderate and curate users speech to reflect their views, and Section 230 additionally protects them from certain types of liability for their users speech. Its not one or the other; its both.

Weve written numerous times about proposals in Congress to force platforms to be neutral in their moderation decisions. Besides being unworkable, such proposals are clearly unconstitutional: under the First Amendment, the government cannot force sites to display or promote speech they dont want to display or remove speech they dont want to remove.

Its not hard to ascertain the motivations for Trumps escalating war on Section 230. Even before he was elected, Trump was deeply focused on using the courts to punish companies for insults directed at him. He infamously promised in early 2016 to open up our libel laws to make it easier for him to legally bully journalists.

No matter your opinion of Section 230, we should all be alarmed that Trump considers a goofy nickname a security threat.

Trumps attacks on Section 230 follow a familiar pattern: they always seem to follow a perceived slight by social media companies. The White House issued an executive order earlier this year that would draft the FCC to write regulations narrowing Section 230s liability shield, though the FCC has no statutory authority to interpret Section 230. (Today, Congress is set to confirm Trumps pick for a new FCC commissionerone of the legal architects of the executive order.) That executive order came when Twitter and Facebook began to add fact checks to his dubious claims about mail-in voting.

But before, Trump never took the step of claiming that national security requires him to be able to use the courts to censor critics. That claim came on Thanksgiving, which also happened to be the day that Twitter users starting calling him #DiaperDon after he snapped at a reporter. Since then, he has frequently tied Section 230 to national security. The right to criticize people in power is one of the foundational rights on which our country is based. No matter your opinion of Section 230, we should all be alarmed that Trump considers a goofy nickname a security threat. Besides, repealing Section 230 would do nothing about the #DiaperDon tweets or any of the claims of mistreatment of conservatives on social media. Even if platforms have a clear political bias, Congress can't enact a law that overrides those platforms right to moderate user speech in accordance with that bias.

What would happen if Section 230 were repealed, as the president claims to want? Online platforms would become more restrictive overnight. Before allowing you to post online, a platform would need to gauge the level of legal risk that you and your speech bring on themsome voices would disappear from the Internet entirely. Its shocking that politicians pushing for a more exclusionary Internet are doing so under the banner of free speech; its even more galling that the president has dubbed it a matter of national security.

Our free speech online is too important to be held as collateral in a routine authorization bill. Congress must reject President Trumps misguided campaign against Section 230.

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It's Not Section 230 President Trump Hates, It's the First Amendment - EFF

Scholars recommend limited government restrictions on false political speech.

When President Donald Trump tweetedthat Dems want to shut your churches down, permanently, he committed political fraud.

At least, that is the lesson drawn from a recent article on false political speech that undermines the electoral process by intentionally misleading voters. In this article, Martin H. Redish and Julio Pereyra argue that, in limited circumstances, political fraud ought to be one of the exceptions to the First Amendmentsguarantee of the right to share information and opinions without government interference.

Their analysis depends on a basic assumption about the purpose of the First Amendment. Redish and Pereyra adopt the view of the U.S. Supreme Court that one goal of the First Amendment is to ensure a functional democracy by keeping voters informed. Protecting false speech, Redish and Pereyra argue, is often vital to a functioning democracy. Individuals might not share contentious or even accurate information if the government can later deem it false. According to Redish and Pereyra, false speech should be protected in many, but not all, circumstances.

The dominant view among scholars and practitioners is that the First Amendment protection of the democratic process requires absolute protection of political speech. Alexander Meiklejohn argued in 1948 that the government should not play a role in political discourse. He feared that government interference would prevent the spread of accurate information and would result in a less informed electorate.

An absolute protection of all false political speech, however, also threatens democracy, Redish and Pereyra insist. They argue that political fraud is distinguishable from other false political statements because it undermines the legitimacy of the electoral process by manipulating voters.

Redish and Pereyra acknowledge that any attempt to regulate political speech calls for a delicate balancing act. Statutes that prohibit too much political speech might lead to a less informed electorate by reducing discourse. On the other hand, protecting too much free speech might lead to a misguided or misinformed electorate.

In United States v. Alvarez, the Supreme Court ruled that the government can only limit false speech when it results in defamation, fraud, or some other legally cognizable harm. Although the Court has not clarified this standard, some scholars argue that a legally cognizable harm means that the falsehood interferes with a legally enforceable right created by statute or court precedent. Under this view, the government can only restrict political fraud that violates the legal rights of another person.

Redish and Pereyra argue, however, that the legally cognizable harm requirement should be interpreted more broadly. In Alvarez, the Court upheld three statutes that restricted false speech. The plurality wrote that the legitimately regulated speech posed a serious risk of harm to the governments ability to function. Redish and Pereyra note that the surviving statutes did not target speech that harmed any legally enforceable rights.

Redish and Pereyra claim that an accurate interpretation of the Courts decision in Alvarez allows the government to limit false speech when it causes harm to a compelling government interest. They argue that the government interest in protecting the electoral process by preventing the manipulation of voters is compelling enough to justify intrusion on political fraud.

Redish and Pereyra caution, however, that any such government intrusion should be limited in scope. They recommend four substantive limitations on any laws that would exclude political fraud from First Amendment protection. They claim that, with these limitations, regulation of political fraud would appropriately balance the competing First Amendment concerns of free expression and electoral integrity.

First, Redish and Pereyra emphasize that any regulations of political fraud should be limited to statements about reality that are objectively incorrect. For example, President Trumps claim that Vice President-Elect Kamala Harris might be ineligible for the vice presidency is demonstrably false. Redish and Pereyra note that, under the First Amendment, ideas can never be regulated, but they say that facts can be.

Second, Redish and Pereyra arguethat the inaccuracy in any targeted political fraud must be unambiguous. This requirement of certainty would protect false statements on complex matters, such as the efficacy of a drug, where facts might be disputed and the science still evolving.

Third, any political fraud excluded from First Amendment protection must be the result of actual malice, Redish and Pereyra argue. They explain that the Supreme Court has defined actual malice as making statements one knows, or in effect knows, to be false. This requirement would protect speakers who make or share false statements they believe to be true. For example, it would ensure that public health officials could not be punished for claiming that masks are ineffective at preventing the spread the coronavirus based on information that was available to them at the time.

Finally, Redish and Pereyra argue that any regulation of political fraud should be restricted to lies that could potentially change the outcome of an election. They reason that political fraud poses a significant risk when it is widely shared and believed by enough voters to impact the results of an election. They claim that, in most cases, this requirement would protect false statements made by individuals who are not political actors because most people do not reach enough voters to swing an election. Instead, regulations would target public figures and individuals who coordinate widespread misinformation campaigns.

Although Redish and Pereyra recognize the risk of regulating political speech, they fear that unchecked political fraud poses an even greater threat to the democratic process. They conclude that the First Amendment not only allows lawmakers to limit certain political speech, but also that the democratic guarantees of the Amendment demand it.

Go here to read the rest:
A First Amendment Balancing Act - The Regulatory Review

An interesting story in Public Comment (Annie Gaus):

A new proposal by two San Francisco Supervisors to make "journalistic standards" a condition of City advertising contracts may be legally dubious, according to two leading First Amendment scholars.

Backing away from an earlier move to withhold City advertising funds from one local paper specifically, The Marina Times, the Board voted on Tuesday to approve placing ads in the 36-year-old paper, which circulates in a handful of Eastern neighborhoods.

Instead, Supervisors Hillary Ronen and Dean Preston announced that they are "reviewing options" to change Prop J, a 1994 law governing newspaper advertising contracts, to incorporate what Preston called "certain basic journalistic standards."

The imbroglio began at a grievance-laden Board of Supervisors meeting last week, during which Supervisors complained about what they considered unfair or inaccurate coverage by The Marina Times, making reference to "hate speech" and "disinformation," though no Supervisors provided any specifics. In a 7-4 vote, the Supervisors voted to single out The Marina Times from the City's advertising list.

San Francisco's contracting relationship with local newspapers dates back to Prop J, a 1994 law that requires the City to place ads for public notices in neighborhood or community newspapers. Each year, San Francisco's Office of Contract Administration evaluates the list according to certain content-neutral factors like circulation.

Two federal appellate precedents (not in the Ninth Circuit, where San Francisco is, but likely quite persuasive to courts even there) have held that similar viewpoint-based withdrawals of general government advertising violate the First Amendment (North Mississippi Communications, Inc. v. Jones and El Dia, Inc. v. Rossello). The matter might be different as to more specific advertising choices (e.g., if a city wants to promote itself as a place to which businesses should want to relocate, it might choose to run those ads in outlets whose editorial stances attract lots of business readers).

But when we're talking about general legally required public notices, the precedents I cite seem quite on point: The program stops being a targeted government speech program aimed at spreading a particular message in a particular place, and becomes something akin to a limited public forum, where the government gives newspapers access to funding, and must distribute it in a viewpoint-neutral way (cf. Rosenberger v. Rector)or like a general government contracting program, where the government is likewise constrained by the First Amendment (seeBoard of Comm'rs v. Umbehr).

The article quotes another Supervisor who raised the First Amendment objection:

"All of us on this Board have had negative things written about us in the press. Choosing to run for office means choosing to open yourself up to criticism, fair or not," said Sup. Catherine Stefani at Tuesday's Board of Supervisors meeting. "Taking on that responsibility does not mean that we get to become the arbiters of truth, political viewpoints, or journalistic standardsthat is far outside our prerogative, and far afield of the First Amendment."

And it also quotes both Berkeley Law Dean Erwin Chemerinsky and me as agreeing on this.

Original post:
"SF Supes Step in First Amendment Quagmire in Seeking to Update Newspaper Contracts" - Reason

How should the First Amendment apply to laws that tell giant platforms like Facebook or Twitter how to police third-party content? On one view, content moderation is a form of constitutionally protected speech in itself, much as a newspapers editorial choices are speech. But this view leads to an absurd result in which the First Amendments free speech guarantee becomes a mandate for a small number of corporate heads to rule public discourse. This paper therefore offers an alternative: When a law regulates the dominant platforms content policies, the laws downstream effects on the speech of users should determine whether it violates the First Amendment.

This kind of analysis will require significant legal innovation. The dominant platforms today host virality-driven environments whose internal dynamics undermine First Amendment laws traditional understanding that public discourse can mostly regulate itself. The First Amendments high-level purposes will have to translate differently to these spaces, with doctrinal details that often bear little resemblance to the black-letter law that applies in more traditional settings.

At worst, we may find ourselves faced with the question of how much the First Amendments traditional guarantees must be watered down to account for the new and dangerous physics of ad-driven viral discourse. But more optimistically, the First Amendment could become a spur for regulators to develop and implement new content-neutral measures for mitigating speech-related harm. These measures might create a new, slower model of online speechone that is less prone to manipulation and frenzy, less needful of censorship, and therefore more hospitable to the true freedom of speech.

The paper is also available here.

The rest is here:
Platform Speech Governance and the First Amendment: A User-Centered Approach - Lawfare