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GENISIA TING / AGGIE

YES Taryn DeOilers

The ongoing battle between alt-right firebrand Milo Yiannopoulos and left-leaning university students encapsulates the national debate on whether hate speech should continue to be safeguarded in the United States. While its critical to denounce the vile sentiments Yiannopoulos belches out on campuses across America, the preservation of free speech for all individuals remains paramount to our democracy.

The exceptions are, of course, cases in which insults lurch toward explicit, deliberate threats of violence called fighting words. Otherwise, Americans can freely ridicule people based on characteristics like religion, gender and race without fear of being legally punished. Although this seems immoral, the First Amendment has existed to protect speech thats controversial, aggravating and inflammatory not speech thats comfortable, ethical and well-liked.

Its crucial to recognize that silencing even the ugliest words would set a precedent for future lawmakers for permissible censorship. Because laws can be twisted and reinterpreted as time progresses, the same legislation that strips rights from those who spew offensive rhetoric could easily revoke the protection of more moderate speech.

Most importantly, unsavory expression is merely a symptom of the underlying concern, and those who espouse it wouldnt vanish with the swipe of a pen. Concealing hate speech wouldnt eradicate the hate it would just attempt to hide the speech. We must confront the source of evil if we wish to witness true change, and how can we successfully fight what we cannot see with perfect clarity?

John Stuart Mill argues in his philosophical work On Liberty that the free exchange of ideas even despicable ones is essential to arriving at a clearer perception and livelier impression of truth [that can only be] produced by its collision with error. For all of us who detest bigotry, living in a country where love, hate, truth and falsehood are equally provided a podium can be distressing and disheartening. But as Mill declares, tolerance and reason, when given the opportunity to exhibit their veracity over ignorance, will ultimately transcend and irrevocably disprove the cowardly hate behind which fools like Yiannopoulos stand.

Written by: Taryn DeOilers tldeoilers@ucdavis.edu

NO Jazmin Garcia

Allow me to clear up what this argument isnt. This stance does not endorse the persecution of those who perpetuate hate speech, nor does it advocate censorship. It simply answers the ethical implications of tolerating hate speech and the demoralizing effects of this speech insofar that it divides and endangers people.

While adverse opinions are necessary for fruitful discussion and for understanding different points of view, hate speech normalizes antagonistic depictions of marginalized people. After all, hate speech is defined by the American Bar Association as speech that offends, threatens, or insults groups based on race, color, religion, national origin, sexual orientation, disability or other traits. Often, those who defend hate speech have some degree of privilege, so this defense does little in bridging the divide and fostering understanding between communities.

It would be fallacious to say that those who believe in protecting hate speech are hateful. But the argument hangs itself on the word speech. Were more likely to unanimously agree that vandalism and acts of violence are terrible, but when it comes to similarly spirited language, hate suddenly becomes a matter of opinion.

One does not have to look further than Milo Yiannopoulos to assess the effects of hate speech. The alt-right agitator recently fell from grace when a video of his pro-pedophilia comments resurfaced. When someone defends his constitutional right to spew racist, misogynistic, transphobic and Islamophobic speech, but draws the line at pedophilia, is the issue really about free speech? This suggests that only certain kinds of speech merit a platform.

And sadly, this type of speech demonizes the marginalized. After the election, many Muslim and Hispanic Americans have been taunted by Trump supporters telling them that their time is up.

Many of those who defend hate speech do so out of a desire to be ideologically consistent in their defense of free speech. But they dont recognize the need to tailor laws to new situations and circumstances. Progress does not come from looking to old documents. It comes from challenging authority or, in this case, language that subjugates others. Written by: Jazmin Garcia msjgarcia@ucdavis.edu

Disclaimer: The views and opinions expressed by individual columnists belong to the columnists alone and do not necessarily indicate the views and opinions held by The California Aggie.

Read more:
Double Take: Should hate speech be protected under the First Amendment? - The Aggie

Newswise Just published: FDA-Required Tobacco Product Inserts & Onserts and the First Amendment, Food and Drug Law Journal, March 2017 (pdf available upon request).

This legal analysis examines:

The FDAs regulatory authority to provide consumers with information via tobacco products and their labeling; -How actively FDA could do that within existing First Amendment constraints; and New approaches to interpreting and applying the federal Tobacco Control Act and the First Amendment.

All prescription and over the counter drugs are regulated by the FDA and come with detailed inserts, onserts, or package labeling that provides consumers with warnings, instructions for use, and other important product and product use information (e.g., how to identify harms from use so that they can be quickly identified and treated or otherwise addressed). The same should be done for tobacco products that deliver nicotine, an addictive drug, along with even larger health risks and no offsetting benefits, says author Eric N. Lindblom, JD, of the ONeill Institute for National & Global Health Law at Georgetown University Law Center. (Read more of his opinion on the ONeill Institute blog.)

Abstract: In 2012, a federal court of appeals struck down an FDA rule requiring graphic health warnings on cigarettes as violating First Amendment commercial speech protections. Tobacco product inserts and onserts can more readily avoid First Amendment constraints while delivering more extensive information to tobacco users, and can work effectively to support and encourage smoking cessation. [Inserts are small printed leaflets, typically providing product information for consumers, placed inside the product package; onserts are similar leaflets temporarily stuck to the outside of product packages that consumers can pull off,open, and read.] This paper examines FDAs authority to require effective inserts and onserts and shows how FDA could design and support them to avoid First Amendment problems. Through this process, the paper offers helpful insights regarding how key Tobacco Control Act provisions can and should be interpreted and applied to follow and promote the statutes purposes and objectives. The papers rigorous analysis of existing First Amendment case law relating to compelled commercial speech also provides useful guidance for any government efforts either to compel product disclosures or to require government messaging in or on commercial products or their advertising, whether done for remedial, purely informational, or behavior modification purposes.

About the authors: Corresponding author: Eric N. Lindblom, JD, is the Director for Tobacco Control and Food & Drug Law at the ONeill Institute for National & Global Health Law at Georgetown University Law Center, and the former Director of the Office of Policy at FDAs Center for Tobacco Products. enl27@law.georgetown.edu, 202-661-6688.

Micah L. Berman, JD, is an Assistant Professor at the College of Public Health and the Moritz College of Law at Ohio State University. berman.31@osu.edu, 614-688-1438

James F. Thrasher, PhD, MA, MS, is an Associate Professor in the Department of Health Promotion, Education & Behavior at the Arnold School of Public Health, University of South Carolina. thrasher@mailbox.sc.edu, 803-777-4862

More:
FDA-Required Tobacco Product Inserts & Onserts and the First Amendment - Newswise (press release)

Harpo Productions/Oz WorksLast week, a Georgia state judge dismissed a lawsuit filed against talk-show host Dr. Oz over claims made on his show last year that much of the olive oil sold in U.S. grocery stores is fraudulent. The suit alleged that Oz wrongly disparaged the corrupt olive oil industry.

The lawsuit was brought against Oz by an industry trade group, the New Jersey-based North American Olive Oil Association (NAOOA), under Georgia's so-called veggie libel law. It's one of about a dozen states with these awful lawswhich allow a party to sue for damages if a person allegedly disparages their agricultural productson the books.

Oz won in court thanks to Georgia's anti-SLAPP law. Such laws gives people who speak out on issues of public concern a useful tool to counter lawsuits that seek to intimidate them into silence. ("SLAPP" is an acronym that stands for "strategic lawsuit against public participation.")

Several domestic olive oil brands had also been sued alongside Oz.

Fraud in the olive oil business is, in fact, a longstanding problem. A 1917 Missouri court case, Lo Buono v. V. Viviano & Bros Macaroni Mfg. Co., centered on fraudulent olive oil, as did a 1950 federal case involving another producer. In the past decade, The New Yorker has dedicated at least two lengthy pieces to the issue of fraudulent olive oil. And Congress recently held hearings on the issue.

The fictional Corleone crime family in Mario Puzo's The Godfather used its olive oil business, Genco, as a cover for its criminal activities. That depiction of mafia involvement in the olive oil trade isn't far from the truth in some cases. Facing U.S. tax fraud charges in 1951, mafia boss and drug trafficker Francisco Paolo Coppola claimed to earn much of his income as an olive oil producer.

How does such fraud play out? An olive oil might be misbranded, claiming to be of higher quality than it really isfrom an earlier pressing, for exampleor to be from one country but hail from another. Or it might be adulterated, containingfor examplea mix of olive oil and other less expensive food oils.

In fact, the NAOOA, which represents many foreign olive oil producers, whose products make up the bulk of the olive oil sold in the United States, is itself keen to identify and prevent such fraud in the industry. A 2015 report issued by the group, for example, raises "significant questions" about the quality of California olive oils tested by NAOOA.

The NAOOA clearly understands the value of free speech.

Listen, I think Oz is a quack. Forbes writer Kavin Senapathy, whose writings expose quackery around food, was probably right when she called Oz's olive oil segment as "yet another gag in his lineup of shady antics."

But it's also another reminder of attacks on Dr. Oz's First Amendment rights.

In 2014, Oz was called before Congress to explain his claims about a variety of foods and supplements he claims have particular health-promotion qualities.

"Oz has absolutely zero responsibility to hold mainstream views and every right to make money off of those views," I wrote in a 2014 piece defending Oz's free-speech rights and attacking Congress for attempting to intimidate him into silence. "His popularity has absolutely no impact on his right to say whatever the hell he wants to say. And being hauled before Congress for saying what he wants places a tremendous burden on his, your, and my First Amendment rights."

As a reminder, the First Amendment protects speech regardless of its subjective value. It protects speech by neo-Nazis and Black Muslims, pornographers and religious zealots, and climate change alarmists and deniers alike. And your right to speak freely is stronger today thanks to a renowned medical doctor who freely espouses many views that appear, by any reasonable measure, to be objectively false.

Critics of Oz are free to rail against his idiocies. I hope they'll continue to do so. But when courts and lawmakers attempt to intimidate him into silence, they are more apt to turn Dr. Oz into a First Amendment hero than expose what he truly is.

Link:
Dr. Oz Rebuffs First Amendment Challenge by Olive Oil Industry ... - Reason

By Hillel Italie, The Associated Press

NEW YORK Whenever Donald Trump fumes about "fake news" or labels the press "the enemy of the people," First Amendment scholar David L. Hudson Jr. hears echoes of other presidents but a breadth and tone that are entirely new.

"Mr. Trump may not know it, but it was Thomas Jefferson who once said, 'Nothing now can believed,'" said Hudson, a law professor at Vanderbilt University.

"But what's unusual with Trump is the pattern of disparagement and condemnation of virtually the entire press corps. We've had presidents who were embittered and hated some of the press Richard Nixon comes to mind. ... But I can't think of a situation where you have this rat-a-tat attack on the press on virtually a daily basis, for the evident purpose of discrediting it."

Journalism marks its annual Sunshine Week, which draws attention to the media's role in advocating for government transparency, at an extraordinary moment in the relationship between the presidency and the press.

First Amendment advocates call the Trump administration the most hostile to the press and free expression in memory. In words and actions, they say, Trump and his administration have threatened democratic principles and the general spirit of a free society: The demonizing of the media and emphatic repetition of falsehoods. Fanciful scenarios of voter fraud and scorn for dissent. The refusal to show Trump's tax returns and the removal of information from government websites.

And in that battle with the Trump administration, the media do not have unqualified public support.

According to a recent Pew survey, nearly 90 percent of respondents favored fair and open elections while more than 80 percent value the system of government checks and balances. But around two-thirds called it vital for the media to have the right to criticize government leaders; only half of Republicans were in support. A recent Quinnipiac University poll found that Americans by a margin of 53-37 trust the media over Trump to tell the truth about important issues; among Republicans, 78 percent favored Trump.

"We're clearly in a particularly polarizing moment, although this is something we've been building to for a very long time," says Kyle Pope, editor in chief and publisher of the Columbia Journalism Review, a leading news and commentary source for journalism.

"I think one of the mistakes the press made is we became perceived as part of the establishment. And I think one of the silver linings of the moment we're in is that we have a renewed sense of what our mission is and where we stand in the pecking order, and that is on the outside, where we belong."

Hudson, ombudsman of the Newseum's First Amendment Center, said it's hard to guess whether Trump is serious or "bloviating" when he disparages free expression. He noted Trump's comments in November saying that flag burners should be jailed and wonderedwhether the president knew such behavior was deemed protected by the Constitution (in a 1989 Supreme Court ruling supported by a justice Trump says he admires, the late Antonin Scalia).

Hudson also worries about a range of possible trends, notably the withholding of information and a general culture of secrecy that could "close a lot of doors." But he did have praise for Trump's pick to replace Scalia on the court, Neil Gorsuch, saying that he has "showed sensitivity" to First Amendment issues. And free speech advocates say the press, at least on legal issues, is well positioned to withstand Trump.

"We have a really robust First Amendment and have a lot of protections in place," says Kelly McBride, vice president of The Poynter Institute, a nonprofit journalism education center based in St. Petersburg. "That doesn't mean that attempts won't be made. But when you compare our country to what journalists face around the world, I still think the U.S. is one of the safest places for a journalist to criticize the government."

The First Amendment, which states in part that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press," is far broader and more uniquely American than when ratified in 1791.

At the time, free expression was based on the legal writings of Britain's Sir William Blackstone. The First Amendment protected against prior restraint, but not against lawsuits once something was spoken or published. Truth was not a defense against libel and the burden of proof was on the defendant, not the plaintiff. And the Bill of Rights applied to the federal government, but not to individual states, which could legislate as they pleased.

The most important breakthrough of recent times, and the foundation for many protections now, came with the New York Times Co. v. Sullivan case of 1964.

The Times had printed an advertisement in 1960 by supporters of the Rev. Martin Luther King Jr. that noted King had been arrested numerous times and condemned "Southern violators of the Constitution." The public safety commissioner of Montgomery, Ala., L. B. Sullivan sued for libel. He was not mentioned by name in the ad, but he claimed that allegations against the police also defamed him. After a state court awarded Sullivan $500,000, the Times appealed to the Supreme Court.

Some information in the ad was indeed wrong, such as the number of times King was arrested, but the Supreme Court decided unanimously for the Times. In words still widely quoted, Justice William Brennan wrote that "debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." He added that a libel plaintiff must prove "that the statement was made ... with knowledge that it was false or with reckless disregard of whether it was false or not."

"It was breathtakingly new," First Amendment attorney Floyd Abrams said of Brennan's ruling. "It was an extraordinary step the court was taking."

But freedom of speech has long been championed more in theory than in reality. Abraham Lincoln's administration shut down hundreds of newspapers during the Civil War. Woodrow Wilson championed the people's "indisputable right to criticize their own public officials," but also signed legislation during World War I making it a crime to "utter, print, write, or publish" anything "disloyal" or "profane" about the federal government. During the administration of President Barack Obama, who had taught constitutional law at the University of Chicago, the Wilson-era Espionage Act was used to obtain emails and phone records of reporters and threaten James Risen of The New York Times with jail.

Predicting what Trump might do is as difficult as following his views on many issues. He often changes his mind, and contradicts himself.

During the campaign last year, he spoke of changing the libel laws to make it easier to sue the media. But shortly after the election, he seemed to reverse himself. He has said he is a "tremendous believer of the freedom of the press," but has worried that "Our press is allowed to say whatever they want and get away with it."

Trump's disparagement of the media has been contradicted by high officials in his administration. Secretary of Defense James Mattis said recently that he did not have "any issues with the press." Vice President Mike Pence was an Indiana congressman when he helped sponsor legislation (which never passed) in 2005 that would protect reporters from being imprisoned by federal courts. In early March, he spoke at a prominent gathering of Washington journalists, the Gridiron Club and Foundation dinner.

"Be assured that while we will have our differences and I promise the members of the Fourth Estate that you will almost always know when we have them President Trump and I support the freedom of the press enshrined in the First Amendment," he said, while adding that "too often stories make page one and drive news with just too little respect for the people who are affected or involved."

More:
Advocates say First Amendment can withstand Trump attacks - The Ledger

A federal judge has ruled that the Joplin (Mo.) district violated students' First Amendment rights in 2015 when it took seventh- and eighth-graders on a field trip to a Christian-themed sports complex.

The Joplin Globe reports the court ruled in favor of the American Humanist Association, which sued the district on behalf of a parent of two students. The association had argued that the field trips to Victory Ministry and Sports Complex violated the Establishment Clause of the First Amendment.

Permission slips were sent home to parents to inform them that "their children may be invited to Bible studies and local churches while at Victory," the lawsuit said. The association argued that the permission slip "required parents to allow their child to participate in worship services, Bible studies or any other activities that may pertain to the Christian faith."

The school district asserted that the trip served a secular purpose rewarding students for positive standardized test scores and good behavior.

ButU.S. District Court Judge Douglas Harpoolconcluded in a 23-page summary judgment that some students could "feel coerced by the Joplin Districts field trips, into either not attending the events, or subjecting themselves to religious beliefs contrary to their familys teaching."

"The Court finds the relationship between Joplin District and Victory, and in particular the seventh and eighth grade field trips...to be an impermissible entanglement of government, government funding, and government authority with a particular religion and religious message," Harpool said in its ruling.

The relationship between a public school district and a religious entity was a clear violation of the First Amendment.

"The frequency, consistency, and extent of the relationship between the Joplin District and Victory goes well beyond occasional or incidental use and impermissibly entangles the Joplin District with religion," the judge said.

David Niose, Legal Director for the American Humanist Association, called the ruling a victory for the Constitution.

The school district has been funneling money and impressionable students to a religious ministry that is in the business of luring children to Christianity," Niose says, "and were glad that the court could see that this is clearly unconstitutional activity.

The judge has not yet imposed a final judgment and order, so it is not clearwhether any sanctions or penalties will be imposed on the district.

Excerpt from:
Joplin (Mo.) district's field trips to Christian center violated First Amendment - American School & University