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Protecting free speech can be challenging. Consider Bill S2493, passed last June and again last week by the New York state Senate.

The bill would withhold state university funding from any student group calling for a boycott of Israel or other "allied nations." Supporters say it's a way to show solidarity with Israel during a time of increasing anti-Semitism.

To be sure, that's a noble cause. The anti-Semitic acts being committed around the state and nation are reprehensible.

But Bill 2493 quite likely violates the First Amendment. It should be rejected by the Assembly, where it currently is in the Government Operations committee.

The bill specifically would bar state universities, city universities, and community colleges from funding any student organization that promotes, encourages, or permits boycotts against certain nations or permits intolerance or hate speech. Besides Israel, the anti-boycott bill would cover other NATO countries, South Korea, Japan, Ireland and several Pacific and Latin American treaty signatories.

The bill is unconstitutional.

The Foundation for Individual Rights in Education, a group founded in 1999 to defend and sustain individual rights at Americas colleges and universities, explains it this way: "The bills language is broad, encompassing both actual boycotts and merely encouraging others to boycott, and would compel New York universities to distribute their funding on a viewpoint-discriminatory basis. That is, New York universities could fund groups that discourage boycotts of Israel (or other allied nations), but not those that encourage it."

The U.S. Supreme Court, in Board of Regents of the University of Wisconsin v. Southworth (2000), held that When a university requires its students to pay fees to support the extracurricular speech of other students, all in the interest of open discussion, it may not prefer some viewpoints to others.

State Sen. Joseph Griffo, R-Rome, voted for defunding student groups; Assemblyman Anthony Brindisi, D-Utica, is co-sponsor of a similar bill in the Assembly.

We condemn this pattern of deplorable threats that has spread fear within the Jewish communities across our state, and New York will not turn a blind eye to such intolerance, Griffo said. We reaffirm our commitment to work with our state and federal law enforcement agencies to hold accountable the people who perpetrate these acts of hate.

No argument. By all means, hold the criminals accountable. Anyone convicted of hate crimes should be punished to the fullest extent allowed by law.

But don't pass bills that violate the First Amendment guarantee of free speech.

That's what this legislation does, and it should not become law.

See the article here:
OUR VIEW: State Bill S2493 means well but likely violates First Amendment - Utica Observer Dispatch

When the group Support Portsmouth Public Art asked Sue Landerman to make a First Amendment sculpture, she knew exactly what it should look like: Virginian-Pilot columnist Ida Kay Jordan's old desk.

The metal and stone sculpture, "Our First Freedom," will be installed on a pillar on the landing in front of the Portsmouth Public Library on Court Street. The artwork will be unveiled on March 22.

"We chose the site in front of the library also as a symbol; much in the way as the lady of justice is blindfolded in front of a courthouse," said Dr. John Joyce, president of the public art group's board. "There would be no library, no books or newspapers, without this amendment. We also believe that freedom of artistic expression ... originates from this same freedom."

Support Portsmouth Public Art uses grants and donations to commission art throughout the city. Barbara Vincent, the group's secretary, said the funds for Landerman's statue came from a Portsmouth Museum and Fine Arts Commission grant and a donation provided by Friends of the Portsmouth Public Library.

"If we didn't have people contributing to the arts for our city, we wouldn't be able to do this," Vincent said.

Landerman, a local artist, did a lot of research before she started the sculpture. She read the Constitution and a letter that George Washington wrote to Congressabout the first amendment.

"Of course, my creativity wheels started spinning," she said.

She pictured longtime friend Jordan's desk. When she was a reporter at a Pilot bureau in Portsmouth, Landerman said, her desk was in the corner and had a typewriter and big stacks of newspapers. That's what the artist wanted to replicate.

"Ida Kay, she's like legendary in Portsmouth," Landerman said.

The sculpture, which is 45 inches tall and just under 4 feet wide, took several months to complete. Landerman enlisted Newport Newssculptor Jon Ware to help construct the desk.

The finished work also features a typewriter, Washington's letter and a stack of papers topped by an issue of Currents,in which Jordan has a recurring column.

"I feel very, very honored," Jordan said, although she was abit embarrassed to have her desk immortalized.

"Oh my goodness, I hope it's not realistic because I'm a mess; a typical old-fashioned reporter."

Landerman said it's the perfect time to honor the First Amendment.

"(It) has certainly been challenged more lately," Vincent said. "We hope that this sculpture will make people think about the value of (the First Amendment) because it's certainly what separates us from other societies."

And the artwork itself beautifies the city, she said.

"Public art has many functions. It creates conversation, it inspires imagination, it can make a city a destination."

Landerman wants this piece of art to inspire action.

"I hope that (viewers) go home, go online, Google the Constitution and read it," she said. "And share it with your children and grandchildren. They'll never forget it."

See original here:
Ida Kay Jordan's former desk at the Pilot immortalized in First Amendment sculpture - Virginian-Pilot

Clay Calvert, University of Florida

(THE CONVERSATION) Senate Judiciary Committee hearings for United States Supreme Court justice nominee Neil Gorsuch are fast approaching.

Its time to consider some key questions about First Amendment speech rights the senators should ask during the constitutionally mandated advice-and-consent process.

These hearings often are contentious. That was the case for Justice Clarence Thomas in the early 1990s. And they surely wont be a cake walk this time, given Democratic anger over Republican inaction on Merrick Garland, former President Barack Obamas nominee to replace Justice Antonin Scalia, who died in February 2016.

The First Amendment questions Id pose to Gorsuch are critical because the man who nominated him, President Donald J. Trump, bashes the press as the enemy of the people yet proclaims no one loves the First Amendment more than he.

An obvious question for Judge Gorsuch is his view of the courts 2010 ruling in Citizens United v. Federal Elections Commission. That five-to-four decision divided sharply along perceived partisan lines. It affected the speech rights of corporations and unions in funding political ads shortly before elections. Committee Democrats no doubt will grill Gorsuch about Citizens United.

As the director of the Marion B. Brechner First Amendment Project at the University of Florida, I would like to suggest at least three other timely and vital questions he should be asked about speech rights but that I doubt he will face.

The first question Id pose to Gorsuch involves an issue the Supreme Court has never tackled does the First Amendment protect a persons right to record police officers doing their jobs in public places?

Its a vital question in light of incidents such as the April 2015 shooting in the back of unarmed African-American Walter Scott by white police officer Michael Slager in South Carolina. A video of it was captured on a smartphone by barber Feidin Santana while walking to work. It was key evidence in Slagers murder trial which ended with a hung jury.

Without guidance from the Supreme Court about recording cops in public venues, lower courts have had to sort it out for themselves.

Just last month, the U.S. Court of Appeals for the Fifth Circuit concluded in Turner v. Driver that First Amendment principles, controlling authority, and persuasive precedent demonstrate that a First Amendment right to record the police does exist, subject only to reasonable time, place and manner restrictions. Thats a positive step in terms of creating a constitutional right to record cops within the Fifth Circuit, which includes Texas, Louisiana and Mississippi. But just what constitutes a reasonable restriction is extremely vague and problematic, especially because judges usually defer to officers judgments.

Worse still, some courts havent even recognized any First Amendment right to record police.

In the case of Fields v. City of Philadelphia, now under review by the U.S. Court of Appeals for the Third Circuit, a federal judge ruled there is no First Amendment right to film police in public spaces unless the person recording does so with the intent of challenging or criticizing police actions. In brief, there is no First Amendment right to neutrally record police as a bystander or journalist in Philadelphia.

Gorsuch thus should be asked: Do citizens have a First Amendment right to record police doing their jobs in public places and, if there is such a right, what if any are the specific limits on that right?

Trumps presidency ushers in a new era of confrontational political activism. Protests against Trump and rallies for him are common, with some ending in arrests. Berkeley, California home of the 1960s free speech movement saw 10 arrests this month when pro- and anti-Trump individuals clashed.

Gorsuch should be questioned about the First Amendment right to peaceably assemble and the limits on that right affecting political demonstrations on public streets, sidewalks and parks. The Supreme Court privileges such quintessential public forums for picketing and protests, and it carefully reviews any restrictions imposed there on speech and assembly. Would Gorsuch follow that tradition of protection?

Disturbingly, The New York Times reported earlier this month that lawmakers in more than 15 states are considering bills that would curb, to varying degrees, the right to protest. Some measures, such as Florida Senate Bill 1096, do so by requiring a special event permit be obtained before any protest on a street, thus stifling spontaneous demonstrations that might occur after a controversial executive order or a startling jury verdict.

Requiring the government to grant a permit before one can protest constitutes a prior restraint on speech. Prior restraints, the Supreme Court has repeatedly found, are presumptively unconstitutional.

Gorsuch thus should be asked: What, if any, limits are there on the First Amendment right to engage in political speech in public spaces, including streets, sidewalks and parks?

Finally, Id ask Gorsuch for his views about the First Amendment right to offend. Its an important topic today for three reasons.

First, protesters may use offensive language to capture attention and show the passion behind their views. The Supreme Court traditionally protects offensive political speech, as it famously did in 1971 in Cohen v. California. There it ruled in favor of Paul Robert Cohens First Amendment right to wear a jacket with the words F the Draft in a Los Angeles courthouse hallway.

Second, some believe theres a pall of political correctness in society, particularly in higher education. Some students may be deterred from using certain language or expressing particular viewpoints for fear they will offend others and thus be punished.

Third, the Supreme Court is set to rule in the coming months in a case called Lee v. Tam. It centers on the power of the U.S. Patent and Trademark Office to deny an Asian-American band called The Slants trademark registration over that name because it allegedly disparages Asians. The court heard oral argument in the case in January.

Id thus ask Gorsuch: When does offensive expression - in particular, offensive speech on political and social issues - lose protection under the First Amendment?

Gorsuch already has submitted written answers to the Judiciary Committee on some issues, but not on the questions raised here. These topics filming cops in public, protesting on streets and sidewalks, and using offensive language seem especially relevant in a turbulent Trump era.

This article was originally published on The Conversation. Read the original article here: http://theconversation.com/neil-gorsuch-and-the-first-amendment-questions-the-senate-judiciary-committee-should-ask-73887.

Continued here:
Neil Gorsuch and the First Amendment: Questions the Senate Judiciary Committee should ask - mySanAntonio.com

BENTON COUNTY -- - Your children versus the constitution. Facebook versus the First Amendment. It's an argument currently under consideration by the U.S. Supreme Court and involves registered sex offenders.

"The U.S. Currently allows each state to decide whether or not a sex offender can have social media accounts, or access to the internet at all. But sex offenders argue it's their Constitutional right to surf the web."

Shannon Jenkins, Sergeant, Benton County Sheriff's Office, "People are going to complain if they can't have something that they want but the law is the law. It could be a condition of their probation or parole that would not allow a sex offender to have any kind of social media or internet access period."

Until the Supreme Court decides on sex offenders' access to the internet, the Benton County Sheriff's Office has an entire cyber division and super computer that monitors the web to stop sex offenders from getting to your kids.

"We do have a group that's actively out there searching for violations or people that are not supposed to be on certain sites. There's ways of finding offenders that are using other names," said Jenkins.

Jenkins says very few police departments have this type of cyber division. Moreover, the techniques they use to find sex offenders online are so secret that they don't share them with the public.

"We have a sex offender division that that keeps up with each offender and they are looking for any social media accounts...Ghost accounts that have been created by sex offenders. They do this everyday. I think it's a pretty unique division. As far as full time -- we have a full department that is fully invested in nothing but cyber crime," said Jenkins.

The Supreme Court has not decided whether it's a right of free speech for sex offenders to be on social media. Its ruling will likely come in May or June. But the Benton County Sheriff's Office will continue to monitor all internet activity.

More:
Sex Offenders Argue They Have First Amendment to Facebook - KNWA

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 whats unusual with Trump is the pattern of disparagement and condemnation of virtually the entire press corps. Weve had presidents who were embittered and hated some of the press Richard Nixon comes to mind. ... But I cant 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 medias role in advocating for government transparency, at an extraordinary moment in the relationship between the presidency and the press.

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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 Trumps 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.

Were clearly in a particularly polarizing moment, although this is something weve 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 were 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 Newseums First Amendment Center, says its hard to guess whether Trump is serious or bloviating when he disparages free expression. He noted Trumps comments in November saying that flag burners should be jailed and wondered if 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 Trumps 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, Florida. That doesnt mean that attempts wont 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 Britains 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, Alabama, 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 Brennans 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 Lincolns administration shut down hundreds of newspapers during the Civil War. Woodrow Wilson championed the peoples 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.

Trumps 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.

EDITORS NOTE One of a package of stories marking Sunshine Week, an annual celebration of access to public information.

Read more:
Advocates say First Amendment can withstand Trump attacks - New Haven Register