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Be careful before you invite Brian Davison to become a Facebook friend. You shouldnt expect warm and fuzzy posts from a tenacious rabble-rouser who wages personal campaigns for free speech, accountability and freedom of information.

Over the last two years, Davison has filed three separate civil rights lawsuits against the Loudoun Board of Supervisors and Chairwoman Phyllis Randall (D), Commonwealths Attorney Jim Plowman (R) and the Loudoun County School Board. They have at times blocked him from their Facebook pages, deleted critical comments he posted and attempted to ostracize him. One needs only to read Davisons online comments to understand why he gets under their skin.

Davison has sought public access to the school systems student growth percentile (SGP) scores. Hes accused Plowmans office of refusing to investigate perjury by school officials. Hes offended Randall with comments about corruption, lack of accountability and conflicts of interest that extend to the families of public officials, some of whom work for county government or the school system. And, yes, Davison pokes at the Times-Mirror for what he sees as a failure to report rigorously on alleged corruption and conflicts by elected officials.

To his supporters, many of whom are members of the anything-goes club of anonymous online commenting, Davison is a valiant campaigner for truth. To his critics, hes a self-righteous insulter. Before last week, few would have characterized him as a patriot. Now hes mentioned in the same sentence with James Madison, the Virginian who wrote the First Amendment and the Bill of Rights.

The Times-Mirror has consistently campaigned for open government and freedom of information in a county that frequently conducts business behind closed doors and uses Virginias Freedom of Information Act to block disclosure of information rather than provide access to it. Were also wary of anonymous, online comments that can distort stories with bias, prejudice, insults and inaccuracies. We acknowledge that were not always comfortable with the tone of anonymous discussion on LoudounTimes.com, but we regard it as important forum for readers to express their views on stories and discuss them with fellow citizens. When we err, we're more comfortable erring on the side of freedom of expression rather than censorship.

These are uncomfortable times. First Amendment lawsuits now raise the legal argument in which Twitter users claim their constitutional rights have been violated because President Donald Trump the commander-in-tweet blocks them from his personal Twitter handle. The argument about social media rights rages in a day and age when politicians, from the president on down, are using their private accounts to discuss public affairs or socialize their positions with constituents.

Davisons cases may provide a legal precedent. A federal judge ruled Chairwoman Randall violated Davison's First Amendment rights because she briefly banned him from her personal Facebook account.

"The suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrimination against which the First Amendment guards," U.S. District Judge James Cacheris wrote in the ruling on Davisons suit.

The judge didn't issue punishment against Randall since her Facebook ban only lasted about 10 hours. That said, the judge noted Randall committed "a cardinal sin under the First Amendment" by barring the constituent who posted about county corruption. What's more, the judge pointed out from the first sentence of the ruling that "this case raises important questions about the constitutional limitations applicable to social media accounts maintained by elected officials."

Somehow that decision was interpreted by the county as a victory for the countys elected officials. The status of social media is a novel question in the law, huffed County Attorney Leo P. Rogers as if Facebook was a passing fad.

Meantime, Randall insists shes a defender of the First Amendment and cites legal confusion. In earnest calls to the Times-Mirror she defended her takedown of Davison as an appropriate response to offensive comments pertaining to family members of public officials. Later, in reaction to the ruling in the School Board case, she acknowledged confusion:

while I blocked the plaintiff overnight for approximately eight hours because he made inappropriate comments, not about the elected official but about the members of their families, and another court finds a First Amendment infraction. It just doesnt make sense to me.

It all makes perfect sense to Davison, who argues that Loudouns elected leaders will go to any lengths -- and at any cost -- to defend arcane rules that enable them to govern behind closed doors, provide cover for conflicts of interest and shut down dissent.

Despite our distaste for bad behavior, online or off, we are inclined to agree.

There is a simple resolution to confusion over public participation in government: Open access to all meetings and information that impacts the welfare of citizens and provides accountability for public decisions.

True leaders have nothing to hide. They lead us out of the dark and into the sun even if it occasionally causes sunburn. Whether in Madisons time or Davisons or Davison's children's, open government, free speech and the First Amendment must stand as the foundations of American democracy and represent the values of our American experience.

You may not like Brian Davison or the democratizing platform of social media that he uses, but how one feels about either is wholly irrelevant. Our leaders should not worry about whether Davison is a pain. They should consider whether he is right.

Comments express only the views of the author and do not necessarily reflect the views of this website or any associated person or entity. Any user who believes a message is objectionable can contact us at [emailprotected].

Excerpt from:
EDITORIAL: First Amendment 2.0 | LoudounTimes.com - Loudoun Times-Mirror

Supreme Court Justice Anthony Kennedy is seen during a ceremony in the Rose Garden at the White House on April 10.

Eric Thayer/Getty Images

Last year, a police officer in New Mexico arrested an acquaintance of his own supervisor and reported another officers misconduct. In 2014, a city plumber and rental housing inspector in Illinois complained about his citys failure to enforce codes and a lack of accessibility for those with disabilities. In 2009, a port authority officer for New York and New Jersey reported that a tunnel and bridge agent interfered with her police activities and harmed public safety.

Ostensibly all three of these public employees are whistleblowers, who sought to rectify misconduct, code violations, or safety issues. Still, they all suffered the same fatethey were dismissed from their jobs. These employees faced retaliation for their salutary speech and efforts to improve the public good and, if their allegations are believed, should have had valid First Amendment free speech arguments to challenge their dismissals. But, the bleak reality of modern American law is that such employees often have no valid free speech claim at all. As such, these three employees lost their respective cases before the 3rd, 7th, and 10th U.S. Circuit Court of Appeals in recent decisions, one as recently as July.

They lost their retaliation claims under the First Amendment, because of one of the worst Supreme Court decisions in years. That case is Garcetti v. Ceballos. Its been on the books for more than a decade, wreaking havoc on employees and bastardizing free speech jurisprudence. Those representing employees who have suffered because of the Supreme Court decision have labeled such lower court rulings as being Garcettized.

Garcetti has effectively applauded official oppression, trimmed truth in the public workplace, and done so without moral or workplace-efficiency justification, longtime Texas-based civil rights attorney Larry Watts told me. Garcetti is the greatest, judicial enemy of clean government I have seen in my 50 years at the Bar.

In Garcetti, the Supreme Court created a categorical rule: When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. Stated more simply, when public employees engage in official, job-duty speech, they are not speaking as citizens but public employees and have no free-speech rights at all. None. Zero.

For decades, the Supreme Court had a workable standard in such free speech cases.

The case involved an assistant district attorney named Richard Ceballos, who learned of perjured law enforcement statements in a search warrant affidavit. He wrote a memo to his superiors recommending dismissal of the criminal charges. Instead, he suffered a demotion and a transfer to a less desirable work location.

The case was argued twice before the Supreme Courtonce when Justice Sandra Day OConnor was still on the court and once after she had been replaced by Justice Samuel A. Alito Jr. The court ruled 54 against Ceballos, splitting along conservative-liberal lines. The more conservative jurists sided with the district attorney while the four more liberal jurists voted for the employee.

Justice Anthony Kennedy, who often writes passionately about the importance of freedom of speech and thought, authored the majority opinion in Garcetti. It is the black mark of his First Amendment record, a scarlet letter that he should attempt to finally shed.

For decades, the Supreme Court had a workable standard in such free speech cases. Under that framework, the court asked whether a public employee spoke on a matter of public concern or importance, something of larger interest to the community. In other words, was the employees speech on a matter of public concern or merely a private grievance?

If the speech was merely a private grievance, there was no First Amendment claim. But, if the speech touched on a matter of public concernsuch as speech about racism in the workforce, unsanitary conditions in a school, or brutality against inmatesthen courts had to balance the employees right to free speech against the employers efficiency interests in a disruption-free workforce.

This two-part framework was known as the Pickering-Connick test after two earlier Supreme Court decisions, the 1968 case Pickering v. Board of Education and the 1983 case Connick v. Myers.

But, decades later the Supreme Court imposed the categorical bar in Garcetti, denying any protection if an employee engages in job-duty speech or speaks as an employee instead of as a citizen.

To appreciate the impact of Garcetti, consider the plight of a public school teacher who might be disciplined for classroom speech. Perhaps the teacher speaks about a controversial political matter, offers a different lesson plan, or uses the N-word in an unplanned lecture to students about not using racial slurs.

Lincoln Brown, a sixth-grader teacher in Chicago, learned the power of Garcetti the hard way when the 7th Circuit ruled he had no First Amendment claim for using the N-word in a well-intentioned lecture against such slurs. Brown gave his impromptu [lecture] on racial epithets in the course of his regular grammar lesson to his sixth grade class, wrote the 7th Circuit in Brown v. Chicago Board of Education. His speech was therefore pursuant to his official duties.

Translation: Lincoln Brown, like so many other public school teachers, had zero free-speech protection for speech in the classroom because of Garcetti.

Its not just teachers who have lost their free speech rights from the overly broad, categorical rule of Garcetti. Police officers have faced its wrath arguably more than any other group while firefighters and university-level employees have also had to suffer retaliation without recourse due to the ruling.

There have been a few glimmers of hope in recent years. In the 2014 case Lane v. Franks, the Supreme Court refused to apply Garcetti against a university employee who was terminated after providing truthful testimony in a court case. Justice Sonia Sotomayor, in her opinion, emphasized the importance of employee speech for the public. Citizens, including public employees, are supposed to testify truthfully in court after all.

Furthermore, two federal circuit courtsthe 4th and the 9thhave ruled that Garcetti doesnt apply to professor speech, because of the additional protection of academic freedom. But, that is only two circuits. As I explained in April testimony to the House Judiciary Subcommittee on the Constitution and Civil Justice: Garcetti threatens the speech of college and university employees. Only two circuit courts of appeals have explicitly rejected Garcetti as applied to university professors.

Some lower courts will work around Garcetti, finding that it wasnt part of an employees joband thus not a part of his public roleto set policy or to criticize certain departmental practices. For example, the 2nd Circuit Court reinstated a police officers First Amendment lawsuit in the 2015 case Matthews v. City of New York, finding that the officer spoke more as a citizen when he criticized his departments arrest quota policy.

Join Dahlia Lithwick and her stable of standout guests for a discussion about the high court and the countrys most important cases.

But, these are the exceptions.

Top Comment

So let me get this straight. More...

It has been more than a decade since the Supreme Court dramatically reduced the level of free speech protection for public employees. Various statutory protections are not sufficient to guard against this type of retaliation against whistleblowers. The Constitution is the highest level of law and the first 45 words of the Bill of Rights should not be empty language when applied to public employees. The First Amendment must protect those public servants who have the courage to speak out against corruption, inefficiency, waste, and other problems.

Its time for the court to reconsider one of its biggest mistakes of recent years. In fact, its long overdue.

Read the original here:
No Free Speech for You - Slate Magazine

Common Dreams

In 'Direct Attack on the First Amendment,' Sessions Declares War on Leaks Common Dreams "Every American should be concerned about the Trump administration's threat to step up its efforts against whistleblowers and journalists," said Ben Wizner, director of the ACLU's Speech, Privacy, and Technology Project. (Photo: Gage Skidmore/Flickr/cc).

See more here:
In 'Direct Attack on the First Amendment,' Sessions Declares War on Leaks - Common Dreams

Post Register

Police confront 'First Amendment auditors' Post Register Search First Amendment Audit on YouTube, and you'll likely find hundreds of videos of people recording law enforcement in public areas and refusing to share their names with officers even when requested. One such incident happened June 12 outside the ...

Original post:
Police confront 'First Amendment auditors' - Post Register

The Modern Law Library

Posted August 3, 2017, 11:55 am CDT

By Lee Rawles

Legendary civil rights attorney Floyd Abrams joins the ABA Journals Lee Rawles to discuss his book The Soul of the First Amendment in this episode of the Modern Law Library. Abrams shares how First Amendment jurisprudence changed over time, and what dangers he sees ahead for free speech in the era of fake news and a presidential administration that is hostile to the press.

Floyd Abrams

Floyd Abrams is senior counsel at Cahill Gordon & Reindel. Abrams has a national trial and appellate practice and extensive experience in high-visibility matters, often involving First Amendment, securities litigation, intellectual property, public policy and regulatory issues. He has argued frequently in front of the U.S. Supreme Court, most recently on behalf of Sen. Mitch McConnell as amicus curiae in Citizens United v. Federal Election Commission.

Here is the original post:
First Amendment defender Floyd Abrams warns of threats to free speech in 'fake news' era (podcast) - ABA Journal