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In response to the commentary by Ali Khalili ("This is a defining moment in US human rights values," The Daily News, May 26): Ali Khalili, where do you live? The tagline in your commentary says Webster. We have trouble enough in our country that you dont need to go on creating anti-Jewish feelings here.

The First Amendment guarantees freedom to petition the government. If the American Israel Public Affairs Committee cant lobby the government, neither can any group claiming to represent Palestinian Arabs.

By the way, Ive not seen any stories about American Jews and supporters of Israel beating up or harassing Palestinian supporters anywhere, unlike what the supporters of Palestinians in New York and Los Angeles have been doing to American Jews and supporters of Israel.

Erna Pelto

La Marque

Read the original here:
First Amendment protects even the Israel lobby | Letters to the Editor | The Daily News - Galveston County Daily News

WINK NEWS

It may not occur to you before you write an online review that you can be sued for what you say or be fired for it. After all, the First Amendment gives you freedom of speech, right?

But if anyone can say anything and amplify it on social media, wheres your right to privacy? And when can you get some serious trouble for just hitting Send?

Mandy Wells said the Fort Myers roofing company she hired, Marlin Construction Group, never got started on the job. She has been living under a tarp for close to a year, she said.

There was never any materials ordered so nothing was ever done.

When she told them to get lost, they sent her a bill, she said.

They want me to pay $6,084.

When she posted about the problem online, they sued her for defamation.

Well, theyre suing me because they didnt like it.

But Marlin claims Wells damaged them with her online reviews.

I dont think anything I wrote here is unreasonable, she said.

Bob Goodman, Wells attorney, said, You can just sue anybody for anything, and hes confident theyll win.

Theyll file a lawsuit for defamation, and a lot of people will simply just remove the comment, which is what what usually the purpose of the lawsuit is.

But why would anyone have to defend themselves in an expensive lawsuit for leaving a review or speaking their mind? Doesnt the First Amendment guarantee free speech?

Are you allowed to say anything you want to at any time? Kind of? Yes, you are. But there are consequences for what you say, said attorney Pam Seay.

She isnt involved in the case, but said your First Amendment rights are largely captured in its first five words: Congress shall pass no law.

Beyond the government, private citizens and companies can react to what you say however they want, including firing you, or if they feel you damaged them with something that isnt true, suing you.

At some point, its going to happen, Seay said. It will come to a head and the companies will say thats enough, weve had it, we put our lifeblood into this company and one little person with a computer is trying to ruin me.

Attorney Scott Hertz represents Marlin Construction Group in their case against Wells.

Certainly, people have the right to make complaints, but nobody has the right to make false complaints, he said.

Hertz said Wells is the one who broke the contract.

Clearly its her intent to create the impression that Marlin refused to do the work, not that she refused to allow them to do the work.

What the word work means is one of the reasons this is going to court.I didnt say anything disparaging about them, Wells said.

She said she only posted the facts: She hired Marlin Construction Group to deal with her insurance company and get her a new roof after wind damage. She said they never did the work but wouldnt release the claim on her insurance company so she could hire someone else.

But that how its misleading, Hertz said. Marlin did go out and do physical work. Marlin went on her roof. Marlin made measurements. Marlin prepared an estimate; preparing an estimate is work.

Therefore, Marlin said, Wells online review that they did no work was wrong and damaging to the company.

You need to make sure what youre saying is accurate, that it is true, Seay said.

In this case, a judge and jury may have to decide whats true and who has been damaged.

So, what can you safely post? Almost anything, including your opinion as long as its based on truth.

But keep in mind that truth means factually true, not just something you believe, so choose your words carefully.

Yeah, I dont care what they say, Wells said. It doesnt matter the things that they make up or the words they want to twist because theres none of that anywhere in anything that I wrote.

The bottom line is its headed to a judge and maybe a trial. While we cant predict how the case will come out, we want you to know we uncovered several complaints against Marlin Construction Group. The Better Business Bureau (BBB) gives them an F rating because of a pattern of complaints, many of which reference people being approached and encouraged to file an insurance claim and issues related to that claim.

State Attorney General Ashley Moodys office sent us 14 complaints about Marlin, which theyre looking into. Some of those also relate to working with insurance companies.

Marlins attorney said those are largely related to a problem with an employee that has been fixed.

Do your research before you hire any contractor.

More:
First Amendment rights at heart of lawsuit against woman who left 'damaging' online review - Wink News

from the i-mean,-holy-shit,-dude dept

The dumb takes on social media efforts to deal with problematic content keep getting dumber. Supposedly "conservative" commentator David Marcus has now written an opinion piece for Fox somehow arguing that fact checkers used on social media sites should be regulated. He's not the first to suggest this -- we just recently wrote about a Michigan legislator who was pushing an unconstitutional bill to regulate the fact checkers, but that this is the hill supposedly "conservatives" want to die on, seems particularly stupid.

Fact checking is protected by the 1st Amendment.

It is expressive. It is a core part of journalism as well, which is doubly protected under the "freedom of the press" part of the 1st Amendment. Marcus' article is so filled with dumb that it needs a fact check itself (as if Fox News ever did that sorta thing).

Nobody is checking the fact checkers, and it is time that changed. Its time for government to regulate the fact checking industry.

Okay, let's start with Fox News. Should we have government regulators crack down on Fox News consistent fact check failures? Including publishing this nonsense article? Of course not. It's protected by the 1st Amendment as well.

This may seem antithetical to traditional conservative values of small government, but the ubiquitous and monopolistic nature of social media, the power it has to frame how we see the world, is an existential challenge. We cannot be slaves to orthodoxy if that means Americans are subject not only to lies, but also the censorship of the truth.

It's not just antithetical to the values of small government, it's antithetical to the 1st Amendment, which seems like a bigger problem. And, no, social media does not have "the power to frame how we see the world." After all, studies have shown repeatedly that Fox News's own lies have had a much bigger impact than social media in framing how people see the news. And, again, that's protected by the 1st Amendment.

The truly incredible part in this, of course, is that folks like Marcus seem to only want regulations when he believes the people he agrees with are treated unfairly. When it's others? He'd be the first one screaming about the Constitution. He's not principled, beyond "my team must win, and if not, I'll play victim."

Marcus' attempt to deal with the 1st Amendment issue is laughable to say the least:

The First Amendment rightly renders government powerless to regulate news outlets publishing content from their own in house fact checkers -- they are protected by freedom of the press. But third party independent fact checkers are another story entirely.

No, they're not another story altogether. Fact checking is expressive and it is a function of the press as well. You cannot regulate it.

These are entities such as Lead Stories, Politifact, and even the Associated Press that offer their fact checking expertise to social media platforms so the latter can claim they are not making editorial decisions. But that only works if third party fact checkers are operating objectively and without bias. It is quite obvious that this is not the case.

Again, it's pretty fucking rich for someone on Fox News to be whining about "bias."

So what can be done about this dangerous situation? Anew billbefore the Michigan House of Representatives is a move in the right direction. The bill would require fact checkers to register with the government and carry insurance to cover payment to those who suffer financial damages as a result of a bogus fact check.

Laws like this can establish simple, uniform practices that fact checkers must abide by to provide fairness in the service they provide.

No, laws like that are unconstitutional attacks on 1st Amendment protected activity.

Regulating the fact checking industry would provide much needed accountability to the American people.

No, it's an effort to intimidate fact checkers who call out bullshit like yours, Marcus.

Facts are supposed to be stubborn. Either an article or post is factual or it isnt.

Your article is not factual.

Regulating the fact checking industry would not be any kind of government censorship of the media; it would not deprive any publishing entity from running a fact check. It would merely ensure that companies which sell their fact checking services are applying objective standards when evaluating material. This is something they should be doing anyway, and is something that they are demonstrably not doing at present.

I mean, come on. This one is too easy. Just turn it around: "Regulating cable news would not be any kind of government censorship of the media; it would not deprive any publishing entity of saying what it wanted. It would merely ensure that cable TV channels are applying "objective standards" in airing content. This is something they should be doing anyway, and is something they are demonstrably not doing at present."

Same damn thing.

The American people do not just have to sit back and take it as social media platforms,which provide huge swaths of them with their news, hire censors that lie about what constitutes a fact.

No, they don't have to sit back. They can step up and speak out wherever else they'd like -- such as on Fox News, or on their own websites. What they can't do is get the government involved to intimidate fact checkers and threaten them with fines if they fact check "the wrong way."

Again, this is easy to demonstrate with just a few changes: "The American people do not just have to sit back and take it as Fox News,which provides huge swaths of them with their news, hires propagandists that lie about what constitutes a fact." And, again, American people don't have to sit back. They can ignore Fox News, they can watch other channels, they can speak out about Fox News's continued blatant propaganda and misinformation... or they can boycott their advertisers. There's lots they can do, and lots users of Facebook can do. What they cannot do under the Constitution, is pass a law regulating expressive activity like fact checking.

The people, through their elected officials absolutely have a right to ensure that this industry is providing a level playing field.

Again, let's apply that to Fox News as well to see how laughable a statement that is.

If one was to sell a service in which they weighed produce to set a price it would and should be illegal for them to secretly use different scales depending on the farmer or the type of produce.

Weighing this is not expression, genius.

Throughout the past year biased fact checking has done irreparable harm to the body politic.

Throughout the past decade, biased Fox News has done irreparable harm to the body politic. How the hell do people like Marcus not recognize that every claim they're making applies equally back on them.

Regulating the fact checking industry would go a long way towards ensuring the American people are never misled in this manner again.

Again, replace fact checking with "Fox News." And imagine how David Marcus would react if there were a serious legislative proposal to that effect.

Social media companies want to have it both ways. They insist that they are not publishers and therefore not liable for what appears on their supposedly neutral platforms. But they also insist that it is fine for them to suppress content because a third party fact checker, chosen by the social media company itself, says they should.

This is not what they insist. This is what a bunch of fake "conservative" idiots have pretended they insist in order to knock down a strawman.

There is nothing special about fact checkers that protects them from regulations requiring them to be fair and honest in their dealings.

They engage in expressive activity. Which makes them protected under the 1st Amendment, just like you and me.

This entire opinion piece is full of misleading, nonsense, and blatant factual errors. But, yeah, sure it's the "fact checkers" that need regulating.

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Filed Under: 1st amendment, content moderation, david marcus, fact checking, free speech, journalism

Read more:
Fact Check: Yes, Fact Checking Is Totally Protected By The 1st Amendment - Techdirt

SACRAMENTO Throughout my life, conservatives have believed the U.S. Constitution means what its authors intended. While it can sometimes be challenging to apply the documents verbiage to modern times, conservatives know that when the founders wrote, Congress shall make no law they meant that, Congress shall make no law. Easy peasy, as the saying goes.

By contrast, liberals have often championed a living and breathing Constitution one that evolves with the times. They dont mean proper change via amendment, but through enlightened court interpretations. Like shamans, liberal justices dont obsess over the founders intentions, but on truths found in penumbras. Go figure, but their divinations usually conform to their own biases.

In a bizarre twist, conservatives are now sounding like liberal jurists rather than traditionalists on some key constitutional questions. Lets take the First Amendment, which the founders viewed with particular significance given that they placed it, well, first in the Bill of Rights. These days, conservatives are busy reinterpreting its meaning and have bene quite creative with their new interpretations and divinations.

For instance, Floridas Republican Gov. Ron DeSantis recently signed a law that applies governmental moderating standards to social-media companies. It fines tech companies if they suspend political candidates prior to elections, lets the state attorney general and even private citizens sue these companies if they believe theyve been treated unfairly, and gives online publishers a list of enforceable editorial conditions.

Thats obviously a government restriction on speech given that the government is mandating that private publishers behave in a certain way. Yet writing in American Spectator, the Heartland Institutes S.T. Karnick has discovered such a novel method of interpreting that law that he would have made former Justice Thurgood Marshall, the late justice who was known for his creative constitutional gyrations, quite proud.

Defenders of Big Tech routinely argue that these companies have a right to do whatever they want because they are not government entities. That is false, Karnick wrote. The fact that they are in the private sector does not change the definition of the word censorship. If we erase the distinction between private censorship (which we all do) and government censorship, however, we essentially erase the First Amendment.

The Constitution forbids Congress specifically from regulating private speech, but then the 14th Amendment applied most of the Bill of Rights to the states and their governments. Karnick also argues that the 10th Amendment gives Florida the right to exercise its authority on this basic-rights issue, which is a rather odd position for a conservative.

If the 10th Amendment, which vests many powers in the states rather than the federal government, can be justified to obliterate constitutionally protected rights, then California can ban firearm ownership, despite what the Second Amendment says. If you dont think rights should apply to tech companies whose decisions anger you, then they might not apply when your decisions anger others.

The Fairness Doctrine, which mandated equal time for political views on public airwaves, offers a template for what conservatives now are suggesting. Its elimination allowed for the proliferation of conservative talk radio, given that such imbalanced programming previously was verboten. What would happen if the Biden administration could force broadcast outlets to balance the views of Mark Levin and Tucker Carlson? Take a guess.

Many of these conservatives are like liberals in another important way. They seek to control private-sector companies because they dont like how they operate. For instance, David Marcus complained in a Fox News column last week about the medias Johnny-come-lately coverage of the theory that the coronavirus emerged from a Chinese laboratory.

Yes, the media mostly treated that story as a conspiracy when Donald Trump had postulated it but are treating it seriously now that Trump is gone. So what? Publications can print whatever they choose, some do a lousy job and all of them are biased. My conclusion is the media should learn from its mistakes, but Marcus take is more draconian.

Nobody is checking the fact checkers, and it is time that changed, he wrote. Its time for government to regulate the fact checking industry. He named Politifact and Associated Press as examples of organizations that need government oversight as they advise social media even though they are journalism organizations.

Marcus claims the First Amendment forbids regulation of in-house fact checkers, but he carves out the exception for independent checkers something he appears to have pulled from thin air just like the living-and-breathing jurists. This may seem antithetical to traditional conservative values of small government, he says, but we ought not be slaves to orthodoxy.

Perhaps the Biden administration should appoint a regulator to fact-check Marcus writing for the next few weeks and then he can report on the experience. Thanks to First Amendment orthodoxy that wont happen, but its time for conservatives to grow a thicker skin and stop attacking the constitutional protections all of us enjoy.

Steven Greenhut is Western region director for the R Street Institute and a member of the Southern California News Group editorial board. Write to him at sgreenhut@rstreet.org.

More:
Anti-tech regulation turns Constitution on its head - Redlands Daily Facts

The United States Supreme Court issued on April 9 a decision in Tandon v. Newsom that struck down California's covid pandemic-related rule that limited the size of all events held in private homes, including religious gatherings, to three people per household. In an unsigned, four-page opinion, the high court's right-wing majority radically altered the law governing the First Amendment's free-exercise clause claims for special religious exemptions from otherwise generally applicable laws.

Since the Supreme Court's 1990 decision in Employment Division v. Smith, the free-exercise clause has been understood to require religious exemptions only to laws that discriminate against religionthat is, government cannot target religion for worse treatment. The California covid pandemic-related rule easily passed this test, for it limited the size of all gatherings in private homes, religious and secular alike.

In Tandon, however, the court flipped that rule. Under its new "most favored nation" approach, the government must provide a religious exemption if a law contains any secular exemption for "comparable" activities. Because California allowed larger groups to shop in supermarkets, it had to let larger groups pray indoors. The only way out was if California met a "strict scrutiny" standard by showing the law's application to religion was absolutely necessary to meet a compelling government interest.

In lower court proceedings, California public-health officials provided testimony that should have met that standard. "When people gather in social settings," they stated, "their interactions are likely to be longer than they would be in a commercial setting," with participants "more likely to be involved in prolonged conversations." They added that "private houses are typically smaller and less ventilated than commercial establishments," and that "social distancing and mask-wearing are less likely in private settings and enforcement is more difficult." But the Supreme Court's five conservatives, who have no apparent public health expertise, ignored this testimony.

Tandon is an enormous expansion of the government's obligation to provide religious accommodations to countless statutes and regulations. It's also questionable public health policy. But the most serious problem with what the Supreme Court's conservatives did in Tandon can be summarized in four words: They made it up.

That is, the Constitution does not mandate the "most favored nation" rule. The First Amendment prohibits government from either establishing religion, or prohibiting its "free exercise." But on what basis does the Supreme Court decide "free exercise" licenses such a searching judicial examination of public-health laws? The text doesn't say that. And neither history nor precedent command that approach.

At bottom, what the Supreme Court did in Tandon isn't law. It's politics. Which may help explain why the Supreme Court created this sweeping new rule through its shadow docketwhich is to say, those cases decided with minimal briefing and no oral argument outside the court's normal procedure. In doing so, the court broke its own rules that bar it from changing the law in a shadow docket opinion.

None of this should surprise us. As I've written previously, Republicans have built their recent political strategy around stocking the federal bench with right-wing partisans. As a consequence, we are approaching a level of ideological conflict where politicians might start thinking about defying the court's rulingsespecially rulings rooted in highly politicized readings of the Constitution, as Tandon was.

Which led me, on the morning following the opinion's release to tweet out a question:

The answer to this question, I think, is that Joe Biden, or any president, is free under the Constitution to decline to enforce any order of the Supreme Court that he or she believes to be unconstitutional. Why do I think this? There are three reasons.

First, as Alexander Hamilton candidly admitted in The Federalist Papers, the Constitution does not even directly establish that courts have the power to make definitive declarations regarding the Constitution's meaning.

"[T]here is," Hamilton wrote in Federalist 81, "not a syllable in the plan under consideration which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State."

Hamilton believed judicial review was implied even if not explicitly provided. But that doesn't mean judges are the only actors empowered to interpret the Constitution's meaning. A better view is actors in each branch of governmentall of whom have taken the same oath to "support and defend" the Constitutionhave a duty to interpret the meaning of the Constitution and to act, in discharging their duties, in accordance with that interpretation. Hamilton suggests as much in Federalist 81, where he wrote of the Supreme Court's "total incapacity to support its usurpations by force."

Hamilton argued the court's utter dependence on the executive branch to enforce its judgments meant the court was no real threat to liberty. But for that argument to make sense it must also be true that, at least in cases where a court ruling provokes some disquiet, the president will make an independent assessment before enforcing it.

If the President were required to enforce the court's every order, and without independent assessment of its fidelity to the Constitution, he would effectively be dragooned into enforcing even the court's "usurpations." That would make the court every bit as dangerous as Hamilton's Anti-Federalist antagonists feared it to be.

Arch anti-Federalist Thomas Jefferson, for his part, derided the idea that judges were "ultimate arbiters of all constitutional questions." This was, to Jefferson, "a very dangerous doctrine, indeed, and one which would place us under the despotism of an oligarchy." The Constitution "has erected no such single tribunal," and the plan of government, Jefferson wrote, admitted no supremacy in judges:

Enforcement of court judgments is an executive act, not a judicial one. And in carrying out his duties, the president, Jefferson argued, must decide for himself what the Constitution requires. Which means that a president may decline to enforce a court order that he or she independently concludes is unconstitutional.

The second reason presidents are free under the Constitution to decline to enforce any order of the Supreme Court that he or she believes to be unconstitutional is history provides examples of presidents declining to enforce Supreme Court orders.

In 1832, the Supreme Court in Worcester v. Georgia struck down a Georgia criminal statute prohibiting non-native Americans from residing on Native American lands without a license from the state. Only the federal government, the court held, had the power to regulate tribal lands. The court's ruling ordered the release of two missionaries imprisoned under the statute, but Georgia's courts refused to order the release, and President Andrew Jackson declined to enforce the Supreme Court's order on the recalcitrant state. Writing two decades later, journalist Horace Greeley quoted Jackson (probably apocryphally) giving the court's order the back of his hand: "[Chief Justice] John Marshall has made his decision; now let him enforce it." The order was never enforced. A year after the court's decision, Georgia repealed the law and the two men were pardoned by Georgia's governor and released from jail.

Then there is President Lincoln's defiance of Chief Justice Taney's 1861 order in Ex Parte Merryman. That Civil War-era case involved a Maryland secessionist arrested in connection with attacks on federal troops in Baltimore and imprisoned in Fort McHenry. Shortly before Merryman's arrest, Lincoln had suspended the writ of habeas corpus between Washington, D.C., and Philadelphia in a bid to allow federal troops to quell secessionist rioting without judicial interference. Days after Merryman's arrest, Taney issued an order stating that Lincoln lacked the power to suspend the writ; the Constitution, Taney held, permitted suspension only by Congress.

Lincoln ignored the order. In a message to the Congress he made clear his view that the president had his own responsibility to act according to the powers that he independently understood the Constitution to provide him:

Third, there is the matter of America's current reality. In normal politics, it makes sense for presidents (and for Congress) to cede to the court's final authority to interpret the Constitution's meaning. The ordinary expectation, whether a Democrat or a Republican, is that you'll win some at the court and you'll lose someand that's OK because there is value in finality, especially if the court is seen as an institution that is doing something more principled than simply imposing its own political preference. But these are not normal times. This is not a normal Supreme Court.

That was the point of my tweet: at some point, the perception that the court is doing politics and not law may lead to a political response. We see that already in proposals to limit judicial terms, to impose Supreme Court supermajority voting requirements, to strip courts' jurisdiction, and, most prominently, to pack the Supreme Court.

But perhaps the simplest way for Biden to push back against a right-wing Supreme Court is to follow his own oath to uphold the Constitution and refuse to enforce Supreme Court orders that he concludes fail to do so.

So imagine that California Governor Gavin Newsom decided to ignore the court's order and continued to enforce public health laws as written without religious exemption. What would happen? Would Biden send in federal troops to enforce the court's order? Or would he give California the same room to defy the court that Jackson gave Georgia in 1832? To me, it's at least imaginable that if California pushed back, Biden would have allowed California to enforce its law over the Court's order.

The covid vaccine means the crisis passed quickly enough that the court's order soon lost its practical public-health significance. But that was happenstance. Which means we may soon see another opportunity for politicians to test the limits of judicial power.

See the original post here:
The Supreme Court radically altered the meaning of the First Amendment this year in an unsigned opinion - Raw Story