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Yesterday, Indian River County School District Superintendent Dr. Mark Rendell reversed Vero Beach High Schools decision to disqualify PLF client, J.P. Krause, from the race for senior class president. After careful review of all the circumstances surrounding the Vero Beach high School Student Government Association Senior Class President election, I have decided to overturn the principals decisions regarding disqualifying candidates from the election, and will accept the original election results, the Superintendent said Tuesday afternoon.

While this is a win for our clientand the voters of Vero Beach High Schoolit doesnt go far enough. JP is entitled to a full vindication of his First Amendment rights. He still has a permanent mark on his disciplinary recordthe allegation that he harassed his opponent. The school district has refused so far to remove it from his record, claiming that this is an issue that is separate from his speech. How the district has come to this result though, is puzzling.

JPs speech in classand his subsequent punishment are directly related. It should be clear to any observer that JPs speech was political satire-speech that is protected by the First Amendment. The First Amendment wasnt designed to protect feelings, but to prevent the government from censoring views that it disagrees with. Thats just what happened here. The Districts harassment policy has been used to punish JP for his speecha speech that the school disagreed with. While under certain circumstances schools have the right to censor student speech, thats not the case here. Courts have ruled that school policies that go too far to censor speech are unconstitutional.

The policys broad ban on verbal conduct is unconstitutional, both on its face and as applied here. We know it is unconstitutional, because a U.S. Supreme Court justice has said the same about a similar school policy. In Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200 (3d Cir. 2001), the U.S. Third Circuit Court of Appeals, in an opinion written by then Judge, now Justice Samuel Alito, struck down a school districts harassment policy as overbroad, holding that even speech that is defined as harassing may enjoy First Amendment protection.

In Saxe, Judge Alito wrote that the schools harassment policy improperly swept in those simple acts of teasing and name-calling that had previously been held to be protected by the First Amendment. The policys language in that case barred speech that has the purpose or effect of interfering with educational performance or creating a hostile environment. It ignored the constitutional requirement that a school must reasonably believe that speech will cause actual material disruption before prohibiting it. Judge Alito explained that even if the speech created a hostile environment that intrudes upon . . . the rights of other students, it is not enough that the speech is merely offensive to some listener, because there is no categorical harassment exception to the First Amendments Free Speech Clause..

The schools harassment policylike the one at issue herehad no threshold requirement of pervasiveness or severity, and therefore it could cover any speech about someone the content of which could offend someone. This could bar core political and religious speech (like J.P.s political speech here). Provided such speech does not pose a realistic threat of substantial disruption, the Third Circuit held, it is within a students First Amendment rights.

Likewise here, the school has used this harassment policy for a problem that doesnt exist. Much like a square peg doesnt fit in a round hole, the arbitrary use of a school district harassment policy to punish a student for constitutionally protected speech is wrong, misguided, and sends a message to other students that their speech might be censored as well. This creates a chilling effect on campus, stifling student speech. Students should be free to learn and discuss ideas, especially ideas of public importance, absent fear of school censorship. The punishment of J.P.s speech has illustrated that the school is not committed to training its students to meet the challengesof adulthood and has sent a message to other students that their speech might be arbitrarily censored too.

The loss of First Amendment Freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976). In other words, it doesnt matter that the school district reinstated J.P. It still gave him detention and wrongly left the charge on his record that he harassed another student. He didnt. Accordingly, the threat that it will punish him in the future for similar speech is still there. Until he is ensured that he wont be punished for political satire, his speech rights are being harmed irreparably, which is why PLF wont stop until J.P.s rights are fully restored.

Read the rest here:
Despite reversal, Vero Beach High School still in violation of the First Amendment - Pacific Legal Foundation (PLF) (press release) (blog)

CBS Miami

Do You Have A First Amendment Right To Follow President's Twitter Account? CBS Miami But just as seemingly everything Trump does and says sparks controversy, so too is the president's prolific and unpredictable use of Twitter, as one reporter called it, raising a novel question of constitutional law: Is there a First Amendment right ... It doesn't take much for Trump to block you on TwitterCNN First Amendment Group Threatens to Sue Trump for Blocking Twitter TrollsAccuracy In Media (blog) 1st Amendment Lawyers Tell Trump to Un-Block Twitter UsersNBC 5 Dallas-Fort Worth TIME -TIME -Politico all 624 news articles »

Originally posted here:
Do You Have A First Amendment Right To Follow President's Twitter Account? - CBS Miami

Honors student J.P. Krause won the election for senior class president at Vero Beach High School in Vero Beach, Fla. And then, all of a sudden, his victory was stripped from him.

Summarily, the high schools administrators stripped him of his new position, and, to add insult to injury, gave him detention. Why? Because Krause delivered a satirical campaign speech that channeled Donald Trumps presidential campaign rhetoric and, in jest, claimed his opponent was a Communist. It was harassment, the principal concluded.

After Krauses classmates chanted speech, speech, he gave an impromptu speech that kept his fellow classmates laughing for well over a minute. I am for freedom, equality, and liberty, he said. His opponent? Well, she wants to advance Communist ideals, he smirked. She will raise taxes to 80 percent!

Krause also suggested in jest that his opponent supports their rivals at the nearby high school, whereas he would build a wall between the two schools and make their rival pay for it.

No one thought Krause was serious. The room, full of honors students in U.S. History, seemed to be well aware of the parallels Krause was making between his campaign speech and Donald Trumps presidential campaign speeches. The teacher allowed the off-the-cuff speech to continue, and there wasnt any reaction by students inside the classroom but laughter.

Nevertheless, the speech not only disqualified Krause from taking up the reins as class president, it also added harassment to his school record. The administration took my speech out of context and said I was harassing a student, Krause tells National Review.

It was a joke the whole way through.

Pacific Legal Foundation, a conservative public-interest law firm, is representing Krause in an attempt to remove the harassment claims from his school record. It also seeks to reinstate Krause as class president. It was pure political speech and obviously humorous, explains Mark Miller, Krauses attorney at Pacific Legal Foundation, to National Review. Its clearly protected in First Amendment speech.

In a letter sent to Mark Rendell, the superintendent of the school district, Miller argued that if a student gives a speech that is lewd, vulgar, or profane, then the school can sanction him.

But that is not remotely the case here, Miller retorted. Satirically claiming that an opponent in a class election wants to raise taxes, advance Communism, and implement a dress code is certainly not lewd, vulgar, or profane its a joke.

Because the high school applied the same speech code that it would use to punish students who say lewd, vulgar, or profane comments to that of a satirical speech, Miller contests that it is violating the First Amendment. J.P.s speech in no way singled out his fellow student candidate for her appearance, abilities, gender, race, creed, religious beliefs, or sexual orientation, Miller wrote. Nor was it deeply offensive.

Schools such as Vero Beach High School are sending the message to students that only some political statements are tolerable. Thats exactly the wrong message to tell a young man like J.P, Miller says.

Excerpt from:
Violating the First Amendment, High School Punishes Student for Satirical Campaign Speech - National Review

Lawyers from Columbia Universitys Knight First Amendment Institute sent a letter last weekarguing that President Trumps blocking users on Twitter runs afoul of the First Amendment.

The presidents account recently blocked the two Twitter users being represented after they posted critical tweets in response to a couple of the presidents tweets.

Their lawyers argument is that the presidents blocking these users from seeing or responding to his tweets on Twitter impinges on their free-speech rights under the First Amendment; the idea is that Trump, in his capacity as a state actor, has violated the Constitution by blocking access to information in what should be considered a public forum.

Yet they fail to consider that (1) these citizens have other means of accessing his tweets, and (2) Trumps account (@real DonaldTrump) is hosted by a private company, which is free to set its own policies for how its users interact.

To the first point, the two people that were blocked can still access these tweets not only from the thousands of retweets they receive from countless other accounts or news publications, but by simply creating another account from which to follow Trump.

Secondly, Trumps Twitter account is not federally owned or operated and therefore should not be treated as a government-created forum obliged to provide access to all comers.

It should be obvious that, though blocking people on Twitter may seem beneath the presidents office or pointless considering the thousands of other tweets that are critical of him from accounts he didnt bother to block, it isnt unconstitutional. Whether a judge might hold otherwise in the current climate is less clear.

View original post here:
Is It Unconstitutional for Trump to Block Twitter Users? - National Review

Free speech and its limitations are on Americans' minds. In the past year we've seen Nazis and white supremacists rally in our cities, angry protesters chase provocateurs off of college campuses, a comedian wield a bloody effigy of the president's severed head, and slurs and overt racial animus made a staple of political discourse. Controversial speech has people talking about what restrictions, if any, society can enforce on words we despise.

That inquiry isn't inherently bad. It's good for citizens to want to learn more about the contours of our constitutional rights. The dilemma is that the public debate about free speech relies on useless cliches, not on accurate information about the law.

Here are some of the most popular misleading slogans:

"Not all speech is protected. There are limits to free speech."

This slogan is true, but rarely helpful. The Supreme Court has called the few exceptions to the First Amendment "well-defined and narrowly limited." They include obscenity, defamation, fraud, incitement, true threats and speech integral to already criminal conduct. First Amendment exceptions are not an open-ended category, and the Supreme Court has repeatedly declined to add to them, especially in the last generation. Merely observing that some exceptions exist does not help anyone determine whether particular speech falls into one of those exceptions. It's a non sequitur.

Imagine you're bitten by a snake on a hike, and you want to know rather urgently whether the snake is venomous. You describe the snake to your doctor. "Well, not all snakes are venomous," your doctor responds. Not very helpful, is it?

"You can't shout 'fire' in a crowded theater."

Almost 100 years ago, Supreme Court Justice Oliver Wendel Holmes Jr. coined a version of this now-familiar metaphor. Holmes used it to explain why the Supreme Court was upholding the criminal conviction of Charles Schenck, who was jailed merely for distributing materials urging peaceful resistance to the draft in World War I. Fortunately, the Supreme Court often led by Holmes himself retreated from this terrible precedent, eventually ruling that speech can't be punished as "incitement" unless it is intended and likely to provoke imminent lawless action. In other words, this favorite rhetorical apologia for censorship was used in the course of a decision now universally recognized as bad law.

Holmes' usually misquoted slogan (he said that the law allows us to punish someone for falsely shouting fire in a crowded theater) is really just another way to observe that not all speech is protected and there are limits to First Amendment protections. As I said before, that's not in dispute, but invoking the truism does nothing to resolve whether any particular speech falls within the well-defined and narrow exceptions to the First Amendment.

"Hate speech is not free speech."

This popular saying reflects our contempt for bigotry, but it's not a correct statement of law. There is no general First Amendment exception allowing the government to punish "hate speech" that denigrates people based on their identity. Things we call "hate speech" might occasionally fall into an existing First Amendment exception: A racist speech might seek to incite imminent violence against a group, or might be reasonably interpreted as an immediate threat to do harm. But "hate speech," like other ugly types of speech we despise, is broadly protected.

"We must balance free speech and other interests."

Censorship advocates often tell us we need to balance the freedom to speak with the harm that speech does. This is arguable philosophically, but it is wrong legally. American courts don't decide whether to protect speech by balancing its harm against its benefit; they ask only if it falls into a specific First Amendment exception. As the Supreme Court recently put it, "the First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs."

"'Fighting words' are not protected under the First Amendment."

Years ago the Supreme Court recognized a very narrow First Amendment exception for "fighting words." If the exception still survives, it's limited to in-person face-to-face insults directed at a particular person and likely to provoke a violent response from that person. It doesn't apply broadly to offensive speech, even though it's often invoked to justify censoring such speech.

"Maybe this speech is protected now, but the law is always changing."

The Supreme Court's approach to constitutional rights can change very quickly. For instance, it took less than a generation for the court to reverse course on whether the government could punish gay sex. But for decades the court has been moving toward more vigorous protection of free speech, not less. Some of the most controversial and unpopular speech to come before the court like videos of animals being tortured, or incendiary Westboro Baptist Church protests at funerals have yielded solid 8-to-1 majorities in favor of protecting speech. There's no sign of a growing appetite for censorship on the court.

Even as a free speech advocate and critic of censorship, I'm happy to see a public debate about the limits of free speech. Any debate that raises consciousness about our rights can be productive. But the free speech debate should proceed based on facts and well-established law, not empty rhetoric. Familiarity with our rights and how they work is a civic obligation.

Ken White is a First Amendment litigator and criminal defense attorney at Brown White & Osborn LLP in Los Angeles. He wrote this for the Los Angeles Times.

Originally posted here:
Ken White: Actually, hate speech is protected by First Amendment - Allentown Morning Call