Mediaboss Marketing

The Harpers letter (7/7/20) decried a new set of moral attitudes and political commitments that tend to weaken our norms of open debate and toleration of differences in favor of ideological conformity.

A short and rather vaguely worded open letter published in Harpers Magazine (7/7/20) earlier this month caused an unlikely media storm that continues to rumble on. Glossing over right-wing threats to the First Amendment, the letter, signed by 150 writers, journalists and other public figures, decried a new intolerance to dissent and a threat to freedom of speech coming from the left.

The vagueness of the letter was both its genius and its shortcoming, allowing people of all political persuasions to put their names to it, but also for others to read into it virtually anything they wanted. As the Los Angeles Times (7/9/20) described it, the letter became a Rorschach test of subtext.

The letter generated an explosion of takes and counter-takes, hailed as everything from a welcome and long overdue triumph (Washington Times, 7/13/20) to a collective wallowing in self-pity (In These Times, 7/7/20), leading to a debate about open debate and a great deal of speech complaining about speech.

However, much of the public discussion of the Harpers letter misses the fact that it is the powerful, not the masses, who inordinately have the ability to cancel individuals for their actions, and that it is the left and those challenging power who consistently suffer the brunt of the consequences.

Chief among the threats to the First Amendment is the president himself. The Trump administration is currently suing a small news station in northern Wisconsin for running a political ad it (and countless others) aired but did not produce. They are not suing the well-funded Democratic Super PAC who paid for it, but instead are going after the messenger. While legal experts suggest that they have no case, Wisconsin has no laws against frivolous lawsuits, meaning the station will likely be bankrupted defending itself, something that appears to be exactly the point of the exercise: intimidating other media outlets into silence.

The makers of a documentary on ICE say they were warned that the federal government would use its full weight to veto scenes it found objectionable (New York Times, 7/23/20).

The federal government is using the same tactic, using its full weight trying to suppress a Netflix documentary about ICE. The New York Times (7/23/20) reports that the government demanded the removal of scenes that showed the department terrorizing communities and breaking the law during arrests. Notably, the government is deliberately targeting the films small production company, not the giant streaming service, which has the resources to fight back. (Several times, the filmmakers said, the official pointed out that it was their little production company, not the films $125 billion distributor, that would face consequences, the Times reported.)

Yet these direct attacks on the First Amendment received scant coverage in comparison to the Harpers letter, or Times columnist Bari Weiss resignation from her newspaper, citing a stifling liberal atmosphere. Weiss leavetaking has been the subject of four CNN articles and over a dozen on Fox News, whereas the attempt to suppress the ICE documentary has not been covered by Fox, and has been the subject of only one CNN piece (7/29/20)a TV review that mentions the attempted suppression.

The Trump administration has also contravened the First Amendment in attempting to ban the release of material critical of the president. The Department of Justice is currently suing Trumps former National Security Advisor John Bolton for the publication of his memoir, The Room Where It Happened, claiming that Boltons embarrassing anecdotes represent a national security violation. He must pay a very big price for this, as others have before him. This should never happen again!!! Trump tweeted (6/20/20). Bolton faces possible criminal charges, as well as having any profits seized.

Similarly, the Trump family, represented by Donalds brother Robert, used the courts to try to block the publication of Mary Trumps book, Too Much and Never Enough, wherein the presidents psychologist niece diagnoses him as a narcissist with possible antisocial personality disorder.

Perhaps most worryingly, a significant portion of the public is strongly supportive of Trumps destruction of the First Amendment. A plurality of Republicans (43%) believe he should close news outlets engaged in bad behavior, and 13% of Americans (including a quarter of Republicans) think he should immediately close the Washington Post, New York Times and CNN.

The media, who President Trump infamously labeled the enemy of the people, have been subject to a generalized nationwide government assault in recent weeks. According to the US Press Freedom Tracker, there have been at least 585 incidents, including at least 84 journalists arrested, 137 shot by police or National Guard, 80 tear-gassed and 36 pepper-sprayed while covering the George Floyd protests. Some, like photojournalist Linda Tirado, have been left permanently disfigured from police attacks. The onslaught against the press is so bad that the United Nations has gotten involved, its human rights office condemning the arbitrary arrests, and the disproportionate and discriminatory use of force.

If you get fired for saying something like this (Twitter, 7/23/20), opponents of cancel culture wont come to your defense.

But when 9News Denver meteorologist Marty Coniglio also condemned the states repression, he faced immediate consequences. After tweeting, Federal police in citiesnow where have I seen that before? accompanying it with a picture of Nazi troops, he was promptly fired. James Bennets resignation from the New York Times for soliciting and printing an op-ed (that he admits he hadnt read before publishing) calling on the military to crush the protest movement drew worldwide condemnation (even being obliquely mentioned by the Harpers signatories as their primary piece of proof of an intolerant left). But Coniglios case, where he challenged power, not indulged it, has barely been reported outside of Colorado.

Coniglios case is indicative of the fact that the primary victims of cancellation tend to be the left and those challenging power. Earlier this year, David Wright, a longtime political journalist for ABC News, was suspended and permanently pulled from political reporting after he was secretly filmed, in private, criticizing his network and admitting that he is a socialist who likes Bernie Sanders (a popular position among Americans, but not among journalists at corporate outletsFAIR.org, 3/8/16, 2/8/19, 7/26/19).

Those displaying insufficient enthusiasm for state violence from the US or its allies can also suffer immediate consequences. In February, journalist Abby Martin was barred from speaking at Georgia Southern University after refusing to swear an oath of allegiance to the state of Israel (something 28 states already make anyone receiving public money do). CNN fired its contributor Marc Lamont Hill in 2018 for criticizing Israel, and for calling for a free Palestine from the river to the sea. Going further back, Chris Hedges was forced out of the New York Times for his opposition to the Iraq invasion, a fate that also befell MSNBCs Phil Donahue and Jesse Ventura.

Thomas Chatterton Williams, the organizer of the Harpers letter, specifically warned that Donald Trump is the Canceler in Chief, and that his letter only addresses a small part of the threat to a pluralistic public discourse. Unfortunately, most of the debate in elite circles has ignored these far greater dangers in favor of focusing on overzealous Twitter usersperhaps because privileged journalists in corporate media have come to accept objections to their reporting from the powerful as inevitable, if not legitimate, whereas popular challenges to their reporting make them bristle with indignation. While the dangers of leftist cancel culture can be debated, theres no denying the dangers of the governments assault on the core American value of free speech.

Featured image: A scene from the Netflix documentary Immigration Nation.

See the article here:
Media's 'Cancel Culture' Debate Obscures Direct Threats to First Amendment - FAIR

Getty Images

When the regular season begins (and hopefully it will), the head coach of The Washington Football Team will be standing for The National Anthem. But Ron Rivera will not question the decision of players to use the anthem as a platform for protest.

Well, the truth of the matter is again, lets go back to our Constitution, to our Bill of Rights, the amendment, Rivera recently told TheAthletic.com. Lets go back to the oath of office to serve and protect. Part of the Constitution is the First Amendment. Theres a lot of people out there that support the Second Amendment vehemently. Well, if you support the Second Amendment vehemently, why wouldnt you support the first one, which is freedom of expression, freedom of speech? And thats all that is. Thats an extension of one of our unalienable rights, one of our God-given rights, one of the things written into the Constitution. So, again, lets at least applaud that. Lets celebrate that as well.

Rivera said hell stand because his father served in the military, his brother was a first responder, and his wifes family has a history of military service.

My dad had brothers that served in World War II, Rivera added. So to me, standing at attention is what Im going to do. Thats how Im going to honor them. I might kneel during the coin toss because I do support Black Lives Matter. I do support the movement to help correct the policing. But at the same time, I think everybody has to celebrate what the Constitution of the United States entitles us to do as Americans. Thats the thing that everybodys got to understand. We got to get past all this other stuff and quit making this a political fight. Theres nothing political about the Constitution. Its clear cut the Supreme Court rules on it, follow it, and then were supposed to defend it.

As the pandemic continues to consume so much of footballs focus, issues regarding the anthem will become front and center if/when games are played. Given the uncertainty created by COVID-19, criticism and controversy over players not standing for the anthem should be regarded as the proverbial good problem to have, because it will mean that games are being played.

See the original post:
Ron Rivera will stand for anthem, but fully supports First Amendment rights - NBC Sports - NFL

The First Amendment met the Second Amendment in June when a Missouri couple were confronted with protestors over police brutality in the wake of the George Floyd murder on May 25 in Minneapolis.

The couple, Mark and Patricia McCloskey, drew firearms on the crowd to defend their home, they said. This happened after the large group of protestors marched past their front gates, proceeded to their mansion, and made threats, according to the McCloskeys in a Fox News interview.

Patricia McCloskey stated that member(s) from the protest group said they were going to kill them, live in their house after they were dead (while pointing to different rooms they would live in), burn down their home, and that threats were made against their dog which was outside the home.

No shootings from the rifle or the handgun that the couple was wielding occurred.

But what did occur were felony charges made by the St. Louis Circuit Attorney Kim Gardner against the McCloskeys, citing unlawful use of a weapon.

The couples attorney, Joel J. Schwartz, was quoted in a July 20 Washington Post article saying the charges were disheartening, and he believes, unequivocally, that no crime was committed. He went on to say that he supports the First Amendment right of every citizen to have their voice but that the First Amendment must be balanced with the Second Amendment and Missouri law which entitles people to protect their home and family from potential threat under the Castle Doctrine Law.

The prosecutor went one step further beyond the charges; the McCloskeys had their firearms seized. A search warrant was obtained and the guns were seized by law enforcement.

Situations like the one the McCloskeys found themselves in are perhaps why a large group of Second Amendment supporters attended the Mille Lacs County Second Amendment Sanctuary Resolution public hearing at the Historic Courthouse last Tuesday, July 21. Their voices were heard as they exercised their First Amendment rights in defense, or in one case, against, the proposed resolution.

Both Amendments, First and Second, have come under attack as of late. Some reason that hate speech incites violence and believe the First Amendment must be revisited. And were now in a cancel culture where if a group of individuals deems certain words as hateful, their livelihoods are canceled.

Of course we know terroristic threats must never be tolerated, but as Americans, we must reject this new form of attack on personal liberties. Whether its sending someone to jail over lawfully exercising their Second Amendment rights or canceling someone for disagreement over the choice of their words, we must reject this and stand for liberties.

The group Human Rights Watch, in their fight against all forms of repression of speech in the media and around the globe, states: How any society tolerates those with minority, disfavored, or even obnoxious views will often speak to its performance on human rights more generally.

The press must remain free to exercise independence, uncontrolled by a government, a political force or social system. This needs to happen in order to maintain transparency for those very entities which the people should dictate, not the powers given within those institutions. In the same manner, individuals must remain free in speech as liberation depends on such. And when our Second Amendment doesnt exist, weve lost our ability to protect ourselves against the most lethal of threats.

I was pleased to see the First Amendment exercised last Tuesday at the Courthouse in a respectful, non-violent way. We dont know that the outcome would have been the same for the McCloskeys had they not been able to exercise their Second Amendment right.

Traci LeBrun is the editor of the Messenger.

More:
When the First Amendment meets the Second Amendment | Our Columnists - Aitkin Independent Age

Wester Wuori's "Perspective" (July 24, 2020).

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

That is the First Amendment to the US Constitution, ratified on December 15, 1791. I part company with many of my fellow liberals when it comes to freedom of speech. In the past 20 years, in my view, its been the far left that has slowly chipped away at First Amendment rights and a free exchange of ideas, especially those with whom we may not agree.

College and university speech police routinely bow to student pressure to bar speakers from campus because of their views or past writings. Campuses have created safe spaces where opinions and words are banned so as not to damage young minds. Sadly, now some in higher education are considering speech policies that could expel students for voicing a racist opinion.

The First Amendment is not absoluteno one should yell fire in a crowded theater, of course. However, this most important of our Bill of Rights does allow me to learn from and challenge others on their opinions and beliefs, no matter how vile or loathsome society may find their comments or writings or speeches.

How do we combat hateful or incendiary speech? With more speech. With better speech. With more effective arguments that make their case not because of the volume at which they are delivered but by the power of their meaning.

When it comes to racism, I would argue that silencing peoples views only drives them underground. And, its there, out of sight, where those beliefs and practices can and will do the most damage.

Im Wester Wuori and thats my Perspective.

Excerpt from:
Perspective: The Power Of The First Amendment | WNIJ and WNIU - WNIJ and WNIU

from the I-guess-a-law-is-good-if-it-makes-something-illegal dept

You can't always pick your fighter for Constitutional challenges. Sometimes you're handed an unsympathetic challenger, which makes defending everyone's rights a bit more difficult because a lot of people wouldn't mind too much if this particular person's rights are limited. But that's not how rights work.

A pretty lousy decision has been handed down by a Minnesota federal court. A challenge of two laws -- one city, one state -- has been met with a judicial shrug that says sometimes rights just aren't rights when there are children involved. (h/t Eric Goldman)

The plaintiff is Sally Ness, an "activist" who appears to be overly concerned with a local mosque and its attached school. Ness is discussed in this early reporting on her lawsuit, which shows her activism is pretty limited in scope. Her nemesis appears to be the Dar Al-Farooq Center and its school, Success Academy. Ness feels there's too much traffic and too much use of a local public park by the Center and the school.

Here's how she's fighting back against apparently city-approved use of Smith Park:

Ness has taken it upon herself to document activity at site. That includes maintaining a public blog and Facebook page all about the DAF/Success Academy controversy, complete with photos and video of street traffic, kids being dropped off at school, and people otherwise going about their business.

Her legal representation in this lawsuit isn't that sympathetic either.

The American Freedom Law Center, which claims that the battle for Americas soul is being waged in the courtrooms across America against secular progressives and Sharia-advocating Muslim Brotherhood interests, is co-counseling the case. The Southern Poverty Law Center calls that organizations co-founder David Yerushalmi an anti-Muslim activist and a leading proponent of the idea that the United States is threatened by the imposition of Muslim religious law, known as Shariah.

Her lawyer says this has nothing to do with the school's religious affiliation. Her co-counsel, David Yerushalmi, disagrees.

In a statement, he says Ness predicament is just another example of encroachment on our liberties when Islam is involved.

Ness became involved when the mosque opened its school and obtained a Conditional Use Permit for Smith Park that allowed students to use it during school days. Ness believes the permit is being violated on a daily basis by students' "excessive" use of park facilities that makes it "impossible" for nearby residents to use it at the same time.

To document these supposed violations, Ness has approached children in the park and parked across the street to take photographs/record DAF students using the park. She had two run-ins with local law enforcement before filing her lawsuit. After the most recent law enforcement encounter, Bloomington police attempted to charge Ness with felony harassment, but the Hennepin County Attorney's office declined to bring charges against her. Bloomington prosecutors also declined to prosecute Ness.

Ness sued, claiming the laws cited infringed on her Constitutional rights and that the ongoing threat of prosecution has resulted in her curtailing her documentation of park use by the school.

The problem is the laws. Ness' behavior is problematic but it shouldn't be criminally problematic. First, the state's harassment law -- as quoted in the court's opinion [PDF] -- does not require prosecutors to prove intent.

Subdivision 1. Definition. As used in this section, harass means to engage in conduct which the actor knows or has reason to know would cause the victim under the circumstances to feel frightened, threatened, oppressed, persecuted, or intimidated, and causes this reaction on the part of the victim regardless of the relationship between the actor and victim.

Subd. 1a. No proof of specific intent required. In a prosecution under this section, the state is not required to prove that the actor intended to cause the victim to feel frightened, threatened, oppressed, persecuted, or intimidated, or except as otherwise provided in subdivision 3, paragraph (a), clause (4), or paragraph (b), that the actor intended to cause any other result.

Then there's an additional ordinance -- one put in place by the city of Bloomington after Ness' two run-ins with the local PD -- that criminalizes Ness' documentation of park activities.

(24) No person shall intentionally take a photograph or otherwise record a child without the consent of the child's parent or guardian.

This is amazingly broad. It criminalizes journalism and the recording of criminal acts by minors. This revision appears to have been crafted solely to target Ness and her activism. Ness was also a frequent commenter at Bloomington city council meetings until filing this lawsuit.

The court says Ness has no standing to challenge the laws. According to the judge, she does not face a credible threat of prosecution. The decision cites the two refusals to prosecute, as well as prosecutors' statements on the issue.

Ness claims she intends to monitor an issuethe non-compliant use of DAFs facilities and the use of Smith Parkby filming and photographing the activity in the physical vicinity of DAF, which may include filming and photographing people. Compl. 36, 47, 70, 71; Ness Decl. 6, 18, 28. Ness does not claim a desire to surveil individuals or track their location by filming or photographing them once they leave DAFs neighborhood. As Ness herself has stated, I try to make this as not about people . . . . Its not specifically about an individual. Its about the City collectively not doing their job. Jones Decl. Ex. 1 at 18:4918:53. Thus, as the County Attorney and the City both acknowledge, Ness intended conduct is not proscribed by the Harassment Statute because she is not tracking or monitoring a particular individual.

But then the court goes on to quote police officers' implicit threats of arrest as evidence Ness won't be subjected to further law enforcement scrutiny or prosecution.

Ness relies on the police report from the incident, which states that Officer Meyer asked [Ness] to stop filming, and that Ness was advised that she could be charged with harassment if the parents and principal felt intimidated by her actions. Compl. 54. However, the bodycam footage of the encounter establishes that Sgt. Roepke expressly told Ness this is a public place, . . . you have a right to . . . take pictures in a public place or video or, or anything like that. Theres not an issue with that. . . . [B]ut if youre doing it in a means to intimidate them or to harass them, then it becomes a problem. Jones Decl. Ex. 3 at 1:50. Sgt. Roepke also told Ness if you want to take some pictures, come and take some pictures and then move on. Id. at 7:50. When Ness described the August 2019 encounter to Detective Bloomer months later during her interview, Ness stated that Sgt. Roepke clarified Ness conduct was not harassing behavior, and told her to be careful and read the statute. Jones Decl. Ex. 5 at 36:2236:43. The police report of the August 2019 incident, particularly when viewed together with Sgt. Roepkes statements and Ness own recollection of the incident, does not rise to the level of a credible threat of prosecution. Ness decision to chill her speech, after being told by Sgt. Roepke that she had a right to take videos and that her conduct was not harassing behavior, was not based on an objectively reasonable fear of prosecution.

Unfortunately, this supposedly "unreasonable" fear of prosecution stems directly from the law, making it a lot more reasonable than the court says. Prosecutors do not have to prove intent. And, as the officer stated clearly, all it would take is for subjects of Ness' recordings to feel harassed. It doesn't matter whether or not Ness intended to harass anyone. That's pretty open-ended and that makes her fear of prosecution a lot more reasonable.

The court agrees Ness has standing to sue the city of Bloomington over its ban on filming children.

The City Defendants argue that [e]ven if Ness had standing to sue, her facial challenge to the ordinance under the first Amendment would fail. City Defs. Mem. Supp. Mot. Dism. [Docket No. 68] at 10 (emphasis added). However, the City Defendants briefing does not include an argument for why Ness might lack standing to challenge the City Ordinance. Ness intended conduct will include photographing and filming children in a City park without parental consent. This conduct is proscribed by the City Ordinance, and the City has not disavowed an intent to charge Ness with violating the City Ordinance if she were to engage in this conduct. Under these circumstances, Ness decision to chill her speech due to the existence of the City Ordinance is objectively reasonable. Ness has standing to challenge the City Ordinance.

But it says she has nothing to sue about because the ordinance does not affect her First Amendment rights.

Here, the City Ordinance makes no distinction based on who is the photographer or recorder, what use will be made of the photograph or recording, or what message will ultimately be conveyed. Because the limitation on its face does not draw distinctions based on a speakers message or viewpoint, it is content neutral.

Neutral, except as to the content of the recordings, which is what's targeted by the city's ban. But the court says the definition of "content" hinges on what the speech conveys, rather than what it contains.

Ness also points out the ordinance is unconstitutional because it fails to do what it purports to do: protect children from being recorded. The court disagrees, saying the ordinance is adequate enough to achieve its aims.

Ness argues that the City Ordinance is underinclusive because if a person takes a step outside a City park and films children from the street, the City Ordinance will not be violated. Ness contends this underinclusiveness undermines the Citys claimed interest in protecting childrens privacy and preventing them from being exploited or intimidated. However, requiring would-be recorders to collect images from a distance, rather from inside a City park, makes it less likely that a child in the park will feel frightened or that the childs identity will be ascertainable. Thus, the Citys important government interest in protecting children is not undermined by allowing a person to record children from just outside a City parks boundaries.

Finally, the judge says the ends justify the means. The judge appears to believe laws are "narrowly tailored" if they accomplish what they set out to do.

As discussed above, the City Ordinance promotes the important government interest in regulating the competing uses of City parks and protecting childrens privacy and sense of safety and freedom from intimidation while playing in a City park. This interest would be achieved less effectively without the City Ordinance. The City Ordinance is narrowly tailored.

Sure, and the city's attempts to achieve other interests would undoubtedly be more effective if the Constitution didn't exist. But it does. And the court is supposed to be a check against government overreach, not an enabler of government efficiency.

The lawsuit is dismissed. The court says Ness can film kids from outside of the park's boundaries without fear of prosecution. Of course, this is what Ness was doing when she was approached by officers who told her to "take her photos" and "move on." Even if Ness complies with the terms of the ordinance the city appears to have passed just to stop her from doing what she was doing, she still faces the possibility of being subjected to further police action. And even if prosecutors refuse to press charges, there's still the hassle of the arrest, and the loss of time and freedom during the detainment. These harms aren't imaginary. The law written to make it more difficult for one Bloomington resident to engage in documentation of perceived permit violations stays on the books.

Most people will probably be fine with this outcome. After all, it mainly affects someone whose interest in park usage seems to be primarily motivated by bigotry. This is all but confirmed by her choice (or acceptance) of the American Freedom Law Center's legal representation. But bad people can still raise legitimate Constitutional complaints. This isn't a victory for Bloomington. It's a loss for its residents who are subject to a badly written law. Even if they have no desire to violate the ordinance, the law can still be wielded against citizens engaged in legitimate activities (like news gathering), thanks to this court's support.

Filed Under: 1st amendment, activist, children, free speech, photography, privacy, sally ness

See original here:
Federal Court Can't See Any First Amendment Implications In Local Ordinance Blocking The Photography Of Children - Techdirt