Mediaboss Marketing

On Monday in Packingham v. North Carolina,the justices unanimously (minus Gorsuch) voted to invalidate a North Carolina statute making it a felony for a registered sex offender to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages. But Justice Alito, joined by Roberts and Thomas, concurred only in the judgment. All eight Justices agreed that the statute wasnt sufficiently tailored. Both opinions emphasized the possible application of the statute to Amazon.com, washingtonpost.com, and webmd.com.

So where did the opinions differ? The central disagreement between the two opinions is how judges applying the First Amendment should respond to the changing nature of cyberspace. From the majority:

While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. The forces and directions of the Internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow.

This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.

And from the concurrence:

The Court is correct that we should be cautious in applying our free speech precedents to the internet. Ante, at 6. Cyberspace is different from the physical world, and if it is true, as the Court believes, that we cannot appreciate yet the full dimensions and vast potential of the Cyber Age, ibid., we should proceed circumspectly, taking one step at a time. It is regrettable that the Court has not heeded its own admonition of caution.

The majoritys point that that what [courts] say today might be obsolete tomorrow is an important one that I discussed in the Internet context almost 20(!) years ago in Stepping into the Same River Twice: Rapidly Changing Facts and the Appellate Process.

But I want here to highlight a slightly different point. When it comes to changing phenomena (like cyberspace), what is the best default position with respect to the First Amendment? Should judges err on the side of starchy application of free speech tests, or a more flexible approach? This are not new questions. For instance, back in 1996, in Denver Area Education Telecommunications Consortium, Inc. v. FCC, the Supreme Court considered regulation of indecency on public access and leased access channels. Justice Souter wrote a concurrence suggesting that, in the fast-changing world of telecommunications, judges should heed the admonition First, do no harm. Justice Kennedy responded: Justice Souter recommends to the Court the precept, First, do no harm. The question, though, is whether the harm is in sustaining the law or striking it down. As I noted in a different article, the injunction [f]irst, do no harm provides little guidance unless we can identify what the do no harm position is.

In Mondays case, Justice Kennedys majority opinion, consistent with his concurrence in Denver Area and his First Amendment jurisprudence more generally, treats broad and rigorous application of First Amendment tests as the do no harm position in the ever-changing world of cyberspace. Justice Alitos concurrence wants a default that takes smaller steps and gives judges (and thus legislatures) more flexibility. Obviously there is no ineluctable answer here. But, once again, baselines are doing a lot of work.

See the original post here:
What is the 'do no harm' position on the First Amendment in cyberspace? - Washington Post

Progressive hysterics highlight the beauty of the First Amendment

American free speech is a wonderful thing, even when the speech is stupid

Free speech is indeed the great American right; our freedom of speech regime is perhaps the most liberated in the world. It is exceedingly difficult to get in trouble for saying something in America. This is a good thing.

Its a good thing even when the speech in question is irritating, hateful or profoundly stupid. Such was the case recently at the University of Georgia, where the colleges Young Democrats called for the beheading of congressional Republicans. The group of students was actually playing off of a professors earlier call for the firing-squad execution of Republicans. Both the professor and the students were demanding that Republicans be killed due to their efforts to repeal Obamacare and replace it with Trumpcare. (It seems to be an accepted part of the American political order that the Left, when confronted with politics they dont like, will often quickly and happily resort to violence or the threat of violence.)

There are several ways to look at this incident. On the one hand, this is simply an instance of childish political hysterics, something the American body politic must deal with every time theres a Republican in the White House. On the other hand this kind of thing could be an indication of a much more deep-seated political dysfunction, a sign that liberals are increasingly incapable of operating within the bounds of normal, healthy, rational political discourse.

But more broadlyand more importantlywe might look at this stupid dust-up as a key indicator of the free state of American speech and expression. The level of protection that speech is afforded in this country is frankly astonishing, not just compared to the tyrannies and tinpot dictator republics across the globe but even when stacked up against the relatively enlightened countries of Western Europe and the member states of the British Commonwealth. When a university professor and a group of college students can espouse this kind of reprehensible rhetoric free from the fear of prosecution, it says something special about our country (even as it says something rather dismal about the state of progressive politics).

Our college campuses, of course, have in recent years become hotbeds of censorship and anti-free-speech agitation, though such efforts have primarily been directed atconservativespeech: if a right-wing professor or a group of College Republicans had made these comments, you can be assured that the Office of Civil Rights would be mounting several investigations into the matter, and the campus mobs would have instituted a 24-hour vigil against the offenders. Culturally and sometimes legally, free speech is often a one-way street at American universities, and that is a disgrace. But in the country at large, we are more or less entirely free to speak our minds. And that is a blessing.

MORE: Berkeley op-ed: safety of marginalized more important than free speech

LikeThe College Fixon Facebook/Follow us on Twitter

More:
Progressive hysterics highlight the beauty of the First Amendment - The College Fix

The federal government has violated the First Amendment by refusing to register trademarks that officials consider disparaging, the Supreme Court ruled unanimously Monday in a decision that provides a boost to the Washington Redskins efforts to hang on to the teams controversial name.

The ruling came in a case that involved an Asian American rock group called the Slants, which tried to register the bands name in 2011. The band was turned down by the U.S. Patent and Trademark Office because of a law against registering trademarks that are likely to disparage people or groups.

In a ruling against the government, the court said the disparagement clause of the federal trademark law was not constitutional, even though it was written evenhandedly, prohibiting trademarks that insult any group.

This provision violates the Free Speech Clause of the First Amendment, Justice Samuel A. Alito Jr. wrote in a section of the opinion supported by all participating justices. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.

[Will bands First Amendment argument resonate with Supreme Court?]

The ruling and a second one Monday that struck down a North Carolina law restricting registered sex offenders from social-media sites bolsters the reputation of the Supreme Court as protector of First Amendment rights.

At a time when some have claimed that speech may and should be regulated or censored if it is offensive, hurtful, or dangerous, the justices firm insistence that governments may not silence messages they dislike is noteworthy and important, Notre Dame law professor Richard W. Garnett said in a statement.

Redskins owner Daniel Snyder was more succinct in a statement: I am THRILLED. Hail to the Redskins. The team was not involved in the case at hand, although the court several times mentioned an amicus brief filed by the Redskins.

The case centered on the 1946 Lanham Act, which in part prohibits registration of a trademark that may disparage ... persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.

But the founder of the Slants, Simon Tam, said the point of the bands name is just the opposite an attempt to reclaim a slur and use it as a badge of pride.

In a Facebook post after the decision, Tam wrote: After an excruciating legal battle that has spanned nearly eight years, were beyond humbled and thrilled to have won this case at the Supreme Court. This journey has always been much bigger than our band: its been about the rights of all marginalized communities to determine whats best for ourselves.

Tam lost in the first legal rounds. But then a majority of the U.S. Court of Appeals for the Federal Circuit said the law violates the First Amendments guarantee of free speech. The government may not penalize private speech merely because it disapproves of the message it conveys, a majority of that court found.

(Jorge Ribas/The Washington Post)

Free-speech advocates had supported the Slants, and the courts decision seemed likely from the oral arguments.

But some ethnic and minority groups worried about what kinds of trademarks the government would now be forced to register. It seems this decision will indeed open the floodgates to applications for all sorts of potentially offensive and hateful marks, said Lisa Simpson, an intellectual-property lawyer in New York.

While unified on the bottom line, the two groups of justices wrote separate opinions in support of the ruling.

Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought we hate, Alito wrote in part of the opinion, joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Stephen G. Breyer.

Justice Anthony M. Kennedy wrote a concurring opinion that was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all, Kennedy wrote.

The Slants were not happy to be associated with the Redskins band members oppose the team mascot but the band and the team have argued that the law was unevenly applied and gave too much control to the government.

The Supreme Court vindicated the teams position that the First Amendment blocks the government from denying or cancelling a trademark registration based on the governments opinion, Lisa Blatt, a lawyer representing the Redskins, said in a statement.

The teams trademark registration was canceled in 2014 after decades of use. The team asked a district judge in Virginia to overturn the cancellation and was refused. The case is now in the U.S. Court of Appeals for the 4th Circuit in Richmond, awaiting the Slants decision.

The Native Americans challenging the team were disappointed, said their attorney Jesse Witten.

Nothing in the opinion undermines the decision of the [Patent and Trademark Office appeal board] or the District Court that the term redskin disparages Native Americans, Wittens statement read.

Justice Neil M. Gorsuch did not take part in Matal v. Tam.

The court showed no hesitation in striking down the North Carolina law, which was meant to keep registered sex offenders off social networks and websites that could bring them into contact with potential targets.

Kennedy said the law was far too broad, enacting a prohibition unprecedented in the scope of First Amendment speech it burdens.

By prohibiting sex offenders from using those websites, with one broad stroke North Carolina bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge, Kennedy wrote.

Lester Gerard Packingham is one of about 1,000 people prosecuted under the law. As a 21-year-old in 2002, he had sex with a 13-year-old girl and pleaded guilty to taking indecent liberties with a child. As a registered sex offender, he was prohibited from gaining access to commercial social-networking sites.

But in 2010, he celebrated the dismissal of a traffic ticket on his Facebook profile:

No fine, no court cost, no nothing spent. ... Praise be to GOD, WOW! Thanks JESUS.

One North Carolina court struck down the law and his conviction, but the state Supreme Court reversed, saying the law was carefully tailored to meet the states goals.

None of the justices agreed with that. A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more, Kennedy wrote. He was joined fully in his opinion by the courts liberals: Ginsburg, Breyer, Sotomayor and Kagan.

Gorsuch did not take part in the case.

The rest of the court agreed North Carolinas law could not stand. But Alito said Kennedy had gone too far in his musings and risked sending the message that states are largely powerless to restrict even the most dangerous sexual predators from visiting any internet sites.

He was joined by Roberts and Thomas in that concurring opinion.

The case is Packingham v. North Carolina.

Ian Shapira contributed to this report.

Link:
Supreme Court: Rejecting trademarks that 'disparage' others violates the First Amendment - Washington Post

Mondays decision indicates that Justice Anthony Kennedy, pictured above, is moving in the right direction on the issues at the heart of partisan gerrymandering.

Jonathan Ernst/Reuters

On Monday morning, the Supreme Court agreed to hear Gill v. Whitford, a blockbuster case that could curb partisan gerrymandering throughout the United States. Shortly thereafter, the justices handed down two excellent decisions bolstering the First Amendments free speech protections for sex offenders and derogatory trademarks. While the link between these two rulings and Whitford isnt obvious at first glance, it seems possible that both decisions could strengthen the gerrymandering plaintiffs central argumentand help to end extreme partisan redistricting for good.

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

The first ruling, Matal v. Tam, involves a dance-rock band called the Slants that sought to trademark its name. Simon Tam, the founding member, chose the name precisely because of its offensive history, hoping to reclaim the term. (He and his fellow band members are Asian American.) But the Patent and Trademark Office refused to register the name, citing a federal law that bars the registration of trademarks that could disparage or bring into contemp[t] or disrepute any persons, living or dead, institutions, beliefs, or national symbols. (The same rule spurred the revocation of the Redskins trademark.)

Every justice agreed that the anti-disparagement law ran afoul of the First Amendment. They split, however, on the question of why, exactly, the rule violates the freedom of speech. Justice Samuel Alito, joined by Chief Justice John Roberts as well as Justices Clarence Thomas and Stephen Breyer, applied the somewhat lenient test for commercial speech, which requires that a law be narrowly drawn to further a substantial interest. The trademark rule, Alito wrote, is ridiculously broad: It could apply to such theoretical trademarks as Down with homophobes (disparaging beliefs) and James Buchanan was a disastrous president (disparaging a person, living or dead). The law, then, is not an anti-discrimination clause, Alito concluded. It is a happy-talk clause, one that is far too sweeping to survive constitutional scrutiny.

Justice Anthony Kennedy perceived even more insidious censorship at play. In a concurrence joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, Kennedy wrote that the measure in question constitutes viewpoint discriminationan egregious form of speech suppression that is presumptively unconstitutional. Under the First Amendment, Kennedy explained, the government may not singl[e]out a subset of messages for disfavor based on the views expressed, even when the message is conveyed in the commercial context. The anti-disparagement rule does exactly that, punishing an individual who wishes to trademark a name that the government finds offensive. This is the essence of viewpoint discrimination, Kennedy declared, and it cannot comport with the First Amendment.

A similar rift opened up between the justices in the second free speech case of the day, Packingham v. North Carolinaanother unanimous ruling with split opinions. (Justice Neil Gorsuch did not participate in either case, as oral arguments came before he was confirmed.) Packingham involved a North Carolina law that prohibited registered sex offenders from accessing any social media website, including Facebook, LinkedIn, and Twitter. The language of the statute is so sweeping that it also barred access to websites with commenting features such as Amazon and even the Washington Post. In essence, the law excludes sex offenders from the internet. North Carolina has used it to prosecute more than 1,000 people.

Kennedy, joined by all four liberals, subjected the law to intermediate scrutiny, asking whether it burden[s] substantially more speech than is necessary to further the governments legitimate interests. He easily found that it did. The Cyber Age is a revolution of historic proportions, Kennedy wrote, and social media users engage in a wide array of protected First Amendment activity on topics as diverse as human thought. Our interactions on the internet alter how we think, express ourselves, and define who we want to be; to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. The North Carolina law therefore suppresses too much expression and is thus in contravention of the Constitution.

In his ode to social media, Kennedy proclaimed that the internet has become the modern public square, the 21st-century equivalent to those public streets and parks where the Framers hoped Americans would speak and listen, and then, after reflection, speak and listen once more. (Kennedys prose remains distinctive as ever.) In a concurrence, Alito, joined by Roberts and Thomas, rejected Kennedys public square theory as loose, undisciplined, and unnecessary rhetoric that elides differences between cyberspace and the physical world. The three conservatives agreed that the North Carolina law swept too far but insisted that Kennedys opinion granted sex offenders a dangerous amount of freedom on the web.

So: What do these casesboth correctly decided, in my viewhave to do with gerrymandering?

To start, its important to view gerrymandering through a free speech lens, one developed by Kennedy himself in 2004. When the government draws districts designed to dilute votes cast on behalf of the minority party, it punishes voters on the basis of expression and association. To create an effective gerrymander, the state classifies individuals by their affiliation with political partiesa fundamental free speech activitythen diminishes their ability to elect their preferred representatives. Supporters of the minority party can still cast ballots. But because of their political views, their votes are essentially meaningless.

Districts designed to dilute votes for the minority party punish voters on the basis of expression and association.

Kennedy has called this a burden on representational rights. Its also something much simpler: viewpoint discrimination. In performing a partisan gerrymander, the government penalizes people who express support for a disfavored partymuch like, in Tam, the government penalizes those who wish to trademark a disfavored phrase. Both state actions punish individuals on the basis of their viewpoints: If you back the minority party, your vote wont matter; if you give your band an offensive name, you cant trademark it. And even though neither action qualifies as outright censorship, both restrict the public expression of ideas that the First Amendment is meant to protect.

Packingham also includes a subtler gift to the Whitford plaintiffs. In an aside, Kennedy compared the North Carolina law unfavorably to a Tennessee measure that bars campaigning within 100 feet of a polling place. Unlike the North Carolina law, Kennedy explained, the Tennessee statute was enacted to protect another fundamental rightthe right to vote.

Perhaps this passage is just more loose rhetoricbut I doubt it. Fundamental rights receive heightened protection under the Constitution. And although most Americans would probably agree that voting is a fundamental right, the Supreme Court has been cagey about saying so and inconsistent in safeguarding it. When the court upheld a voter ID law in 2008, for example, six justices paid lip service to the right to vote even as they shredded it; only the dissenting justices noted that the right is fundamental under the Constitution. Similarly, when the courts conservatives gutted the Voting Rights Act in 2013, they did not call the right to vote fundamental. Instead, they celebrated the fundamental principle of equal sovereignty, an archaic and discredited states rights doctrine. The upshot of that decision seemed to be that states rights are fundamental but voting rights are not.

Kennedy voted to uphold the voter ID law and kneecap the Voting Rights Act. But the justice is always evolving, and his aside in Packingham reads to me like a renewed commitment to the franchise set in the free speech context. If so, thats terrific news for opponents of partisan gerrymandering. Such gerrymandering limits an individuals fundamental right to vote (by making her vote useless) on the basis of her viewpoint (that is, her support for a political party). In effect, the practice attaches unconstitutional conditions to both voting rights and free speech, putting many voters in a quandary: They can either muffle their political viewpoints and cast meaningful ballots or express their political viewpoints and cast meaningless ballots. The Constitution does not permit states to punish individuals for exercising their rights in this manner.

Top Comment

I've never understood how allowing the party in power to openly rig the system in their favor is Constitutional. More...

Unfortunately, these tea leaves do not indicate inevitable doom for partisan gerrymandering. Kennedy recently indicated concern about judicial intervention into the redistricting process, and in the past he has questioned whether courts can accurately gauge which gerrymanders go too far. The Whitford challengers believe they have the right tool to measure partisan gerrymanders, a mathematical formula called the efficiency gap. Nobody yet knows if Kennedy will agree, and the justice has sent mixed signalsits worth noting that he joined the courts conservatives in voting to stay the lower court decision in Whitford while the justices consider the case. (The court had ordered Wisconsin to redraw its maps.)

Still, Mondays decision indicates that Kennedy and the court are, at the very least, moving in the right direction on the issues at the heart of partisan gerrymandering. Free expression and association arent really free if the government can punish you for your viewpoint by ensuring your ballot doesnt matter; the right to vote isnt fundamental if it can be diluted on the basis of political affiliation. The basic First Amendment principles Kennedy espoused on Monday explain why the court may well curtail partisan gerrymandering next term. In fact, they explain why the Constitution demands nothing less.

Read the original:
Does Partisan Gerrymandering Violate the First Amendment? - Slate Magazine

David Jadon 2:39 p.m. ET June 20, 2017

David Jadon(Photo: CONTRIBUTED PHOTO)

After more than a month of bad decisions, Indian River County School administrators finally have displayed some smarts. It took an honors student's steadfast belief in the First Amendment, and worldwide attention, to make it happen.

That honors student J.P. Krause, a top student, rising seniorand the winner of the vote for Vero Beach High School's senior class presidency never knew what hit him. His classmates in hisAdvanced PlacementU.S. History class asked him to give a speech in support of his campaign, and his teacher encouraged him to do so. He gave a lighthearted, 2016 presidential campaign-inspired, 90-second speech, and his classmates laughed.

Krause said he was for liberty while his opponent was for higher taxes. He said he was opposed to the rival high school Sebastian River, and his opposing candidate was for it. Krause proposed building a wall between the two schools and making the other school pay for it. Joy Behar of "The View" later said on national television that J.P.'s off-the-cuff speech was "smart."

MORE |Superintendent overturns principal's call on Vero Beach High School class election

"Smart" Behar had that right. Indeed, the very next day after the speech the day of the election Krause represented Vero Beach High in a national academic competition. He came in 10th individually while his Vero Beach team came in third nationally.

Smart.

Unfortunately, Krause had no idea trouble was afoot back at home. School administrators had learned of his campaign speech and decided it amounted to harassment. Of course, Krause had not harassed anyone in the speech, and anyone who saw the videoand knew Krauseknew he didn't and wouldn't have done so.

The principal disqualified Krause from the officeKrausewon fair and square, and punished him to boot. To add insult to injury, the principal decided the campaign speech should be entered into Krause's permanent disciplinary record as harassment.

Not so smart.

Laurence Reisman: Trump effect puts international spotlight on Indian River County school issue

When Larry Reisman of this newspaper heard about Krause, he wrote about the unfairness of the situation. Reisman called attention to the fact that Krausehad First Amendment rights the school did not consider. Pacific Legal Foundation, for whom I am working as a summer clerk, then got wind of it. Pacific Legal represents individuals and businesses when the government violates their constitutional rights. Punishing Krause for his humorous campaign speech clearly violated Krause's First Amendment rights.

Our Founding Fathers did not design the First Amendment to protect feelings. While under certain circumstances schools have the right to punish or censor student speech, this case did not fit those circumstances. Courts have ruled that school policies that go too far to censor speech are unconstitutional. So it is here.

A classmate had recorded the speech; the video demonstrated beyond dispute the school had wronged Krause.

Within days, the entire world had seen the video. Those on the left side of the aisle, including Whoopi Goldberg and Behar on "The View," and those on the right, including "Fox & Friends" and National Review, all sided with Krause. So did Univision, the New York Daily News and the London Daily Mail. The world took his side because reasonable people on the left, right and center know the First Amendment provides the bedrock for all of our freedoms.

The global attention finally caused some smarts at the local schoolhouse.

Sadly, this local uproar exemplifies a broader phenomenon across the country, where different viewpoints are censored or restricted by both college and high school administrators. The Founding Fathers and First Amendment scholars have recognized the importance of the "marketplace of ideas." Without it, free speech cannot truly exist.

Upon entering college, campuses greet students with free speech zones, oppressive speech regulations, banned speakers, safe spaces and censorship.Once the epicenter of discussion, debate and learning, campuses have become segregated intellectually, no longer challenging students to stand up, speak and engage civilly with one another.

Americans of all political stripes must speak up to put a stop to this nonsense.

J.P. Krause did nothing wrong. To the contrary, he is a champion of the First Amendment, standing up for his right to speak when so many others would bow down. Vero Beach High School should be proud of its new senior class president. The rest of the world is.

David Jadon, a summer law clerk at Pacific Legal Foundation, is a rising third-year law student at the University of Florida College of Law. Pacific Legal Foundation is representing J.P. Krause free of charge in his dispute with the Indian River County School Board.

Read or Share this story: http://www.tcpalm.com/story/opinion/contributors/2017/06/20/guest-column-first-amendment-wins-vero-beach-high-school/411648001/

Read the rest here:
Guest column: National debate leads to First Amendment smarts at Vero Beach High School - TCPalm