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Dear Mr. President: Congratulations on your election victory.

Thats a non-partisan congratulations. The First Amendment, with its 45 words encompassing our core freedoms of religion, speech, press, assembly and petition, doesnt take political sides.

The year 2020 has seen a dramatic increase in the ways our fellow citizens are using the First Amendment. Theres every reason to believe 2021 will be more of the same.

By this Election Day, a record number of us exercised our right to vote, the ultimate expression of our rights to petition the government.

Years of simmering injury, insult and resentment over blatant and hidden racism have boiled over into a wave of public protests, prompted by the repeated deaths of Black men and women at the hands of police officers, and rooted in economic and social systems that people of color see as tilted against them

The national crisis that is COVID-19 is tearing at the very fabric of daily life and even as it hammers everything from employment numbers to how we sometimes can say farewell to the dying, the pandemic is sparking street demonstrations for and against health measures like masks and business shutdowns.

I write to ask that as you consider your election victory, you keep these First Amendment considerations in mind using the order of the five freedoms, to help organize your thoughts.

Religion in the U.S. today covers a remarkably diverse form of beliefs and practices, unique in the world. Understandably, that creates ongoing conflict as overall social values and individual matters of conscience collide. Some call this a culture war. I hope you will think of it as does my Freedom Forum colleague, Dr. Charles Haynes: An opportunity to find common ground focusing on those places where we do agree, even as we recognize and celebrate our differences.

What of free speech? For nearly a century, most battles around this freedom focused on whether or not government could restrict or punish individuals for their speech. In this next presidential term, the focus will be on relatively new ideas: There are ideas, words or symbolic actions that are too dangerous to be heard, or that the right to speak includes a right not to listen or to be protected from even hearing.

Please keep in mind that ideas are not eliminated by silencing those who give voice to them. More speech, in more ways, is the better path. It is a proper government role to find ways to encourage diversity of thought, but not to become a national nanny or worse, an autocratic censor deciding what we should see, read and hear.

The next generation will be ill-served to face an assuredly contentious world if they arent aware of a range of ideas, concepts and creeds. A need to reinforce the key positive ideals of our society for the future must include free discussion of where we have fallen short in word, actions or law in the past.

A free press is being challenged by the triple tag team of economic loss, public mistrust and new competition. An attendant casualty has been our collective belief in truth or at least accepted facts based on solid journalism, not punditry across a myriad of new information sources.

You dont have direct responsibility to make journalism better, but things are so dire you and Congress may be needed to help ensure we have any effective journalism at all.

The number of local news outlets is plunging and news deserts in which no local news media exists are growing. The watchdog-on-government role of a free press so vital to the informed citizenry needed by a democracy cannot be allowed to simply evaporate.

The unthinkable for free press advocates of not long ago tax breaks, operating subsidies, support for public journalism as we have seen for public television and radio may well become over the next four years unavoidable.

What we do know, based on annual surveys the Freedom Forum has done since 1997, is that most of us support that watchdog duty. Work with that consensus.

Assembly and petition have had rebirths. When frustrated, Americans always protested, on our streets and now online. Your responsibility here starts with listening even when others are shouting.

Yes, you must respond to those who go outside First Amendment protections into violence. But those responses must be tempered by the recognition that peaceful dissent is democracy, not disloyalty.

I write knowing you and the nation face many challenges. But I also write with the profound hope that this letter will be a reminder that these core freedoms empower all of us to freely talk with each other in many different ways, with a goal of determining the best possible solutions for the greatest number of people, in the shortest amount of time. The First Amendment doesnt require or provide for perfection, but it fuels democracy.

With that spirit in mind, good fortune in the next four years.

Gene Policinski is a senior fellow for the First Amendment at the Freedom Forum, and president and chief operating officer of the Freedom Forum Institute. He can be reached at gpolicinski@freedomforum.org, or follow him on Twitter at @genefac.

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On behalf of the First Amendment | Opinion | dailyitem.com - Sunbury Daily Item

Plaintiffs CDK Global LLC and Reynolds and Reynolds Company develop, own, and operate proprietary computer systems known as dealer management systems ("DMSs") that process vast amounts of data sourced from various parties. Automotive dealerships hold licenses to DMSs to help manage their business operations, including handling confidential consumer and proprietary data, processing transactions, and managing data communications between dealers, customers, car manufacturers, credit bureaus, and other third parties. Plaintiffs contractually prohibit dealers from granting third parties access to their DMSs without Plaintiffs' authorization.

In March 2019, the Arizona Legislature passed the Dealer Data Security Law . The Dealer Law regulates the relationship between DMS licensers like Plaintiffs and the dealerships they serve. Under the Dealer Law, DMS providers may no longer "[p]rohibit[] a third party [that has been authorized by the Dealer and] that has satisfied or is compliant with current, applicable security standards published by the standards for technology in automotive retail [ (STAR standards)] from integrating into the dealer's [DMS] or plac[e] an unreasonable restriction on integration."

The Dealer Law also requires that DMS providers "[a]dopt and make available a standardized framework for the exchange, integration and sharing of data from [a DMS]" that is compatible with STAR standards and that they "[p]rovide access to open application programming interfaces to authorized integrators." Finally, a DMS provider may only use data to the extent permitted in the DMS provider's agreement with the dealer, must permit dealer termination of such agreement, and "must work to ensure a secure transition of all protected dealer data to a successor dealer data vendor or authorized integrator" upon termination.

Plaintiffs have sufficiently alleged that the Dealer Law abridges their freedom of speech by requiring that Plaintiffs draft code to facilitate disclosure . It is well-established that "computer code, and computer programs constructed from code can merit First Amendment protection." Universal City Studios, Inc. v. Corley (2d Cir. 2001); see also United States v. Elcom Ltd. (N.D. Cal. 2002) ("[c]omputer software is speech that is protected at some level by the First Amendment").

However, not all code rises to the level of protected speech under the First Amendment. Rather, there are "two ways in which a programmer might be said to communicate through code: to the user of the program (not necessarily protected) and to the computer (never protected)." Further, even where code communicates to the user of a program, it still may not constitute protected speech under the First Amendment if it "commands 'mechanically' and 'without the intercession of the mind or the will of the recipient.'"

Plaintiffs have sufficiently alleged that the code they must draft to comply with the Dealer Law communicates substantively with the user of the program. The Amended Complaint alleges "Plaintiffs must draft code to receive and respond to requests from 'authorized integrators' who will interact with the code by commanding it to communicate the information they choose to request." It also states that the code will express the creative choices of the software developers and communicate those choices "to those who would access the Plaintiff's DMSs, as well as to other third-party programmers." Taken as true, these allegations sufficiently allege a protected interest in the content of the code.

Defendants argue the Dealer Law cannot compel speech because it does not dictate what Plaintiffs' code must say, only that dealers must adopt a framework to share data from their DMSs. Ariz. Rev. Stat. Ann. 28-4654 (requiring that Dealers "[a]dopt and make available a standardized framework for the exchange, integration and sharing of data from dealer data systems with authorized integrators and the retrieval of data by authorized integrators using the star standards or a standard that is compatible with the star standards."). They contend that, by mandating only access, the Dealer Law regulates Plaintiffs' conduct, not speech.

Corley acknowledged this possibility, clarifying that the mere "functional capability" of a code did not implicate First Amendment Protection. But Plaintiffs' allegations go beyond the functional capability of their code because they claim users will interact with their program in a substantive way. Defendants' arguments that the Dealer Law is more properly considered a regulation on conduct therefore amount to disagreements about the factual consequences of the law and the drafted code. Such a contention cannot be resolved at the Motion to Dismiss stage.

{Moreover, the mere assertion that the law regulates conduct does not establish failure to state a claim under the First Amendment. Even where a law is aimed only at conduct, an incidental burden on speech triggers scrutinyit must be "no greater than essential." Rumsfeld v. Forum for Acad. & Institutional Rights, Inc. (2006) (finding that a burden is no greater than essential when "neutral regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.").}

I'm not sure what I think about this, but I thought some of our readers would find it interesting.

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The First Amendment and Mandated Creation of Computer Code - Reason

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Instruction

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When First Amendment expression crosses the line to intimidating election workers - AZFamily

Two men, one armed, who filmed voters dropping off ballots in Littleton on Nov. 2 were first amendment auditors and not cited by police, city and county officials said.

The men, whose names were not immediately available, drew the attention of county staff as they filmed voters dropping off ballots outside the Arapahoe County administration building on South Prince Street, said county spokesperson Luc Hatlestad. One of the men was carrying a holstered handgun and wearing a tactical vest, Hatlestad said.

Our staff asked them what was going on, and someone inside the building called police, Hatlestad said.

Responding officers determined the men were first amendment auditors, said Cmdr. Trent Cooper, Littleton Police Department spokesman.

First amendment auditors are activists who film encounters with public officials, according to the Colorado Intergovernmental Risk Sharing Agency, or CIRSA.

If the encounter results in an actual or perceived violation of the auditor's First Amendment or other protected rights, then the video likely will be posted on social media and/or serve as the basis for a claim or suit, a CIRSA memo on the phenomenon reads in part. A violation may come about if the auditor is denied the right to take photos or videos in a public place, or is detained for `suspicious' activity or other reasons.

Cooper said the men appeared to clearly understand the limits of their legal rights, and that it's not against the law to open carry guns or film people outside a government building.

Colorado law makes it illegal to impede, prevent, or otherwise interfere with the free exercise of the elective franchise of any elector.

Hatlestad said three voters came inside the building to report the men outside, but he was not aware of any voters who were intimidated out of dropping off ballots.

Police are not aware of the men speaking to any voters or stopping any voters from dropping off their ballots, Cooper said.

The goal of these guys is to get people to violate their rights, Cooper said. This guy's carrying a gun, wearing tactical gear he knows that's going to make people uncomfortable. It's an attempt to elicit a confrontation. If nobody takes the bait, eventually they get bored and leave, which is essentially what happened here.

Police did not ask the men to leave, Cooper said, though they eventually left on their own after about an hour.

A spokesman for Colorado Attorney General Phil Weiser said the incident is under investigation.

The Colorado Secretary of State's office did not immediately respond to a request for comment.

First amendment auditors have made headlines many times in Colorado in recent years, including for disrupting city council meetings, winning settlements for wrongful detention, and in one instance, allegedly threatening to kill a judge.

Hatlestad said anyone who sees anything suspicious at a ballot drop box or polling place should report it to elections officials on site or call the voter hotline at 303-795-4511.

Read more from the original source:
Men filming voters in Littleton were 'first amendment auditors,' police say - Englewood Herald

The Sixth Amendment Public Trial Clause lets defendants insist that their trials be open to the public, and the Court has interpreted the First Amendment as generally requiring such openness even when defendants are willing to waive their Public Trial Clause rights. But courts have mostly resisted the claim that either provision requirestelevisedtrials; it's enough, courts say, that the trials be open to members of the public (including the media, which will then write about the trial for the benefit of those people who can't see it directly).

But Wednesday's decision in State v. Chauvin, Minnesota state Judge Peter A. Cahill took a different approach, because of the epidemic:

In the past, failures to restrict public and media access inside the courtrooms of high-profile trials resulted in media action that was so intrusive and disruptive that defendants' rights to a fair trial were violated. While the right of the press and public to attend criminal trials is sacrosanct, and carries with it the right to report what has occurred during the trial, the right does not include a right to "telecast" the actual proceedings. Estes v. Texas(1965).

Against this historical background, the Minnesota Supreme Court promulgated the current version of Minn. Gen. R. Prac. 4, which limits audio and visual media coverage of criminal proceedings. While that rule sets out a general rule of prohibition, it also allows for the visual and/or audio recording and reproduction of trial proceedings with the consent of all parties. Even with the consent of all parties, visual or audio recording of trial proceedings is limited.

Normally, this rule can be applied without concern that it will impinge on the right to a public trial or the right of access held by the public and press. Spectators may freely attend trials, and the usual trial receives little attention, except from family and friends of the victim orthe defendant and the Court can easily accommodate those wishing to attend the trial in person. On occasion, members of the media attend and report on the proceedings. All spectators, whether journalists, interested parties, or casual observers, may, in normal times, come and go as they please.

The instant situation, however, not only is abnormalit is in fact quite unique. The COVID-19 pandemic persists and requires social distancing, especially during jury trials. All four Defendants here have been joined for trial by separate order filed today in all four cases in which this Court has granted the State's motion for trial joinder. The joint trial requires extra counsel tables, and thus a higher demand on the space within the courtroom. Even when this Court used the largest courtroom in the Fourth Judicial District for the joint motion hearing on September 11, 2020, only a handful of family and media representatives could fit into the courtroom given all the parties and counsel and the social distancing requirements in the courtroom necessitated by the COVID-19 pandemic and various orders issued by Chief Justice Gildea and the Judicial Council in the wake of the COVID-19 pandemic.

Most family and media had to observe the proceedings through a closed-circuit feed to other courtrooms, and even then had trouble hearing all of the proceedings. The general public could only observe from a closed-circuit feed to a courtroom several blocks away in the Hennepin County Government Center. The closed-circuit feed was limited to a static wide-view of the courtroom from a single camera above the jury box. This was a hearing that did not require space for jurors and it was still cramped.

A courtroom has been rebuilt in the Hennepin County Government Center, Courtroom 1856, for the upcoming joint trial in these cases. Spacing requirements mean there will be little, if any, room for any spectators in that courtroom during the trial.10 That includes not only family members and friends of George Floyd and the Defendants, but also members of the public and the press.

Not surprisingly, these cases continue to hold the interest of the press and the general public on an international scale. Virtually every filing by the parties in these cases is reported in the media, both locally and nationally. This Court's substantive orders also receive local and national news coverage. Protests demanding justice for George Floyd continue. It is expected that, even with some overflow courtrooms, the demand by family members, the public, and the press to attend the joint trial will outstrip the court's ability to provide meaningful access.

This Court concludes that the only way to vindicate the Defendants' constitutional right to a public trial and the media's and public's constitutional right of access to criminal trials is to allow audio and video coverage of the trial, including broadcast by the media in accordance with the provisions of the attached order.

The Court acknowledges that the attached order allows for greater audio and video coverage than that contemplated by Minn. Gen. R. Prac. 4.02(d), even if all parties had consented. It could be argued that the Court should simply follow the limitations of the rule to protect the constitutional rights of the Defendants, the public, and the press. The limitations of the rule are so extensive, however, that nothing would be known about the empaneled jurors, all witnesses could veto coverage of their testimony, and the public would be left with nothing but the arguments of counsel. That is hardly a basis for the public "to participate in and serve as a check upon the judicial process."

The Court's attached order seeks to accommodate the interests served by the current rule by expanding audio and video coverage only as necessary to vindicate the Defendants' constitutional right to a public trial and the public's and press rights of access to criminal trials in the unique circumstances currently prevailing in the COVID-19 pandemic and the intense public and media interest in these cases. By doing so, the Court is confident that "the public may see [that Defendants] [are] fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep [their] triers keenly alive to a sense of their responsibility and the importance of their functions."

I'm not sure whether this is right, given the Minnesota Supreme Court's rules, and at least the potential availability of a better-functioning closed-circuit feed to some other large room that would provide much the same access to interested members of the public and the media as they have traditionally gotten in nontelevised trials. Still, it seemed like an interesting decision that I thought was worth noting.

Thanks to theMedia Law Resource Center MediaLawDailyfor the pointer.

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First, Sixth Amendments Require Allowing TV Coverage of Derek Chauvin Trial - Reason