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That's it. That's the entirety of our Constitution's First Amendment, the central animus of our American way of life that gets dragged out every time someone's banned from Twitter.

There's a lot going on in those few sentences, and it's important to know when and how it applies to common situations -- and, equally as important, when it doesn't.

Let's look at some common First Amendment arguments; illuminated and debunked by a constitutional expert.

If it's a private institution, it's probably not a First Amendment issue.

If it's a public institution, the lines can get blurry.

"If you invite someone to speak on your campus and are a public university, you have to respect their First Amendment rights," Nott says. That doesn't mean you can't put regulations on a speech, like dictating the time, place, venue and suggestions for subject matter. It just means you can't do so in a way that discriminates against a certain point of view.

If students protesting play a hand in moving or canceling a speaker, that presents a different free speech challenge.

"If a speaker were to take legal action for being blocked from speaking, they can't do it against the students. You can't take constitutional action against a group of private citizens," she adds.

Such a complaint would have to go against the school, for allowing the constitutional breach to happen.

This is not a First Amendment issue though plenty of people think it is.

This scenario illustrates one of the biggest misconceptions people have about the First Amendment. Bottom line: It protects you from the government punishing or censoring or oppressing your speech. It doesn't apply to private organizations. "So if, say, Twitter decides to ban you, you'd be a bit out of luck," Nott says. "You can't make a First Amendment claim in court."

However, while it's not unconstitutional, if private platforms outright ban certain types of protected speech, it sets an uncomfortable precedent for the values of free speech.

If you work for a private company, it's probably not a First Amendment issue.

"It's the company's right to discipline their employees' speech," Nott says.

If you're a government employee, it's complicated.

Institutions like police departments, public schools and local government branches can't restrict employee's free speech rights, but they do need to assure that such speech doesn't keep the employee from doing their job. It's definitely a balancing act, and the rise of social media has made it harder for such institutions to regulate their employee's speech in a constitutional manner.

Definitely a First Amendment issue.

But, like pretty much everything in law, there are exceptions and nuances.

"It's definitely unconstitutional, unless you are trying to incite people to violence with your speech," Nott says. Even then, it needs to be a true threat -- one that has immediacy and some sort of actual intent.

It's a private company, so it's not a First Amendment issue.

There's that refrain again: Private companies, like social media sites, can do whatever they want.

But regulating conversations and posts online is a delicate balance for social media giants like Facebook.

"That says, if you are an internet company and you have some way for people to post or leave comments, you are not liable for what they do," Nott says. This covers things like obscenity, violence and threats.

The problem is, this protection often butts up against the enforcement of basic community standards.

"Facebook is under enormous pressure to take down, not just violent and illegal content, but fake news," Nott says. "And the more it starts to play editor for its own site, the more likely it is to lose that Section 230 protection."

This is a First Amendment issue, at the very least in spirit.

"Symbolic speech is protected by the constitution," Nott says. "In essence, you have the right to not speak. You have the right to silence."

In theory, a private employer could require you to stand for the anthem or say the Pledge of Allegiance, but such a requirement may run afoul of the Civil Rights Act. Even in schools, where there have been some cases of students being singled out for sitting or kneeling for the anthem, it would be hard to provide justification for punishment.

"This is an act of political speech, the most protected type of speech," Nott says. "It's completely not disruptive because it's silent." Plus, it is buttressed by court cases that have decided there is no requirement to salute the flag.

A First Amendment issue -- usually.

You are fully within your rights to record the police doing their job in public. And if you get arrested while doing so, your constitutional rights are being violated.

This is, unless you were doing something unlawful at the time of your arrest.

In a heated situation with police, that can also become a gray area. Physical assault or threats could obviously get you arrested, but what about if you were just yelling at the police while recording, say, to get them to stop an act or to pay attention?

"That's tough," Nott says. "If you were disturbing the peace, you can get arrested for that, or for other things. But the bottom line is it's not a crime to record police activities in a public space."

If it's a student publication, it's a First Amendment issue.

Nott points to a landmark Supreme Court cases from 1969 that has acted as a standard for cases involving free speech at public universities and colleges. That's Tinker v. Des Moines Independent Community School District, which you can read more about below.

Another case, Bazaar v. Fortune from 1973, helps tailor these guidelines to the student press by stating that schools cannot act as "private publishers" just because they fund a student publication or program. In other words, they can't punish the publication -- whether it be through student firings, budget cuts or withdrawals or a ban -- just for printing or broadcasting something they don't like.

Now, a gentle reminder that this is just for PUBLIC schools. All together now: Private institutions can (usually) do what they want!

More:
The First Amendment doesn't guarantee you the rights you ...

That's it. That's the entirety of our Constitution's First Amendment, the central animus of our American way of life that gets dragged out every time someone's banned from Twitter.

There's a lot going on in those few sentences, and it's important to know when and how it applies to common situations -- and, equally as important, when it doesn't.

Let's look at some common First Amendment arguments; illuminated and debunked by a constitutional expert.

If it's a private institution, it's probably not a First Amendment issue.

If it's a public institution, the lines can get blurry.

"If you invite someone to speak on your campus and are a public university, you have to respect their First Amendment rights," Nott says. That doesn't mean you can't put regulations on a speech, like dictating the time, place, venue and suggestions for subject matter. It just means you can't do so in a way that discriminates against a certain point of view.

If students protesting play a hand in moving or canceling a speaker, that presents a different free speech challenge.

"If a speaker were to take legal action for being blocked from speaking, they can't do it against the students. You can't take constitutional action against a group of private citizens," she adds.

Such a complaint would have to go against the school, for allowing the constitutional breach to happen.

This is not a First Amendment issue though plenty of people think it is.

This scenario illustrates one of the biggest misconceptions people have about the First Amendment. Bottom line: It protects you from the government punishing or censoring or oppressing your speech. It doesn't apply to private organizations. "So if, say, Twitter decides to ban you, you'd be a bit out of luck," Nott says. "You can't make a First Amendment claim in court."

However, while it's not unconstitutional, if private platforms outright ban certain types of protected speech, it sets an uncomfortable precedent for the values of free speech.

If you work for a private company, it's probably not a First Amendment issue.

"It's the company's right to discipline their employees' speech," Nott says.

If you're a government employee, it's complicated.

Institutions like police departments, public schools and local government branches can't restrict employee's free speech rights, but they do need to assure that such speech doesn't keep the employee from doing their job. It's definitely a balancing act, and the rise of social media has made it harder for such institutions to regulate their employee's speech in a constitutional manner.

Definitely a First Amendment issue.

But, like pretty much everything in law, there are exceptions and nuances.

"It's definitely unconstitutional, unless you are trying to incite people to violence with your speech," Nott says. Even then, it needs to be a true threat -- one that has immediacy and some sort of actual intent.

It's a private company, so it's not a First Amendment issue.

There's that refrain again: Private companies, like social media sites, can do whatever they want.

But regulating conversations and posts online is a delicate balance for social media giants like Facebook.

"That says, if you are an internet company and you have some way for people to post or leave comments, you are not liable for what they do," Nott says. This covers things like obscenity, violence and threats.

The problem is, this protection often butts up against the enforcement of basic community standards.

"Facebook is under enormous pressure to take down, not just violent and illegal content, but fake news," Nott says. "And the more it starts to play editor for its own site, the more likely it is to lose that Section 230 protection."

This is a First Amendment issue, at the very least in spirit.

"Symbolic speech is protected by the constitution," Nott says. "In essence, you have the right to not speak. You have the right to silence."

In theory, a private employer could require you to stand for the anthem or say the Pledge of Allegiance, but such a requirement may run afoul of the Civil Rights Act. Even in schools, where there have been some cases of students being singled out for sitting or kneeling for the anthem, it would be hard to provide justification for punishment.

"This is an act of political speech, the most protected type of speech," Nott says. "It's completely not disruptive because it's silent." Plus, it is buttressed by court cases that have decided there is no requirement to salute the flag.

A First Amendment issue -- usually.

You are fully within your rights to record the police doing their job in public. And if you get arrested while doing so, your constitutional rights are being violated.

This is, unless you were doing something unlawful at the time of your arrest.

In a heated situation with police, that can also become a gray area. Physical assault or threats could obviously get you arrested, but what about if you were just yelling at the police while recording, say, to get them to stop an act or to pay attention?

"That's tough," Nott says. "If you were disturbing the peace, you can get arrested for that, or for other things. But the bottom line is it's not a crime to record police activities in a public space."

If it's a student publication, it's a First Amendment issue.

Nott points to a landmark Supreme Court cases from 1969 that has acted as a standard for cases involving free speech at public universities and colleges. That's Tinker v. Des Moines Independent Community School District, which you can read more about below.

Another case, Bazaar v. Fortune from 1973, helps tailor these guidelines to the student press by stating that schools cannot act as "private publishers" just because they fund a student publication or program. In other words, they can't punish the publication -- whether it be through student firings, budget cuts or withdrawals or a ban -- just for printing or broadcasting something they don't like.

Now, a gentle reminder that this is just for PUBLIC schools. All together now: Private institutions can (usually) do what they want!

More:
The First Amendment doesn't guarantee you the rights you think it does - CNN

Last Wednesday, officials of the University of California Berkeley announced that they were canceling a speech to be given by conservative writer Ann Coulter scheduled for April 27. Then last Thursday, facing the prospect of a lawsuit, caught between the First Amendment and the fear of violence, university officials proposed that Coulters speech be moved to May 2 a move she and her supporters quickly rejected, pointing out that there would be no students on campus, as it coincided with a reading period before final exams.

This was a low point for the birthplace of the free-speech movement.

Ive known Ann Coulter for years, and Ive gone to great lengths truly great lengths to disagree with her. After she published a book called Godless, which accused liberalism of being a godless religion, I wrote a book called Soulless, which attacked the right-wing church of hate. I even donned her trademark sleeveless black dress, added about 10 inches of long blonde hair and posed for a cover that looked almost as sexy as hers.

We agree on almost nothing, except for the importance of free speech and public discourse. And we have always gotten along just fine.

Last summer, when a reporter went to her for comments about me, she could not have been more gracious. Thats how it should be in a democracy.

Our Founding Fathers understood something that seems to be getting lost in the ugly partisanship that has gripped our country. You dont deal with speech you dont like by shutting it down. You deal with it by speaking up yourself.Speech is powerful; it is protected not because it is harmless but because the alternative is even worse.And that alternative is what were facing now.

It is not just at Berkeley that this issue is rearing its ugly head. In response to the cancellation of a speech at Claremont-McKenna College by Heather Mac Donald, the president of Pomona College (part of the Claremont Colleges consortium) wrote an open letter defending the principle of free speech. To my shock, frankly, a group of African-American students went on the attack, claiming that white supremacists (Mac Donald is a fellow of the conservative Manhattan Institute, not the Klan) have no right to free speech. Come again? Who is supposed to decide who gets to speak? Do these students not understand that it is precisely oppressed minorities who have historically needed the protection of the First Amendment the most? Do they really think that if speech is regulated, they will be the beneficiaries? On which planet? Under which president?

For those who disagree with Coulter, shutting down her speech only elevates her position. Instead of speaking before a group of students two weeks before exams, the cancellation has brought her national attention and brought Berkeley the criticism it must surely have expected.

But blaming Berkeley is the easy way out. One way or another, the great majority of Americans who support the Constitution must stand up to the minority who think violence and censorship is the answer to speech they dont like. You cannot pick and choose which civil liberties to support, which opinions deserve protection.

As a writer myself, I get more than my share of ugly emails from people who disagree with me. No one enjoys reading those. And as a woman and a Jew, I have sharply felt the sting of hatred. But unless there is a threat of violence (the Constitution provides for shutting down speech if it poses an imminent threat of violence or an imminent threat to national security), the way to handle such ugly emails is simply hitting the Trash button, or better yet, responding with more speech.

Because if you shut down free speech this time, next time, the one who is shut down might be you.

See the original post:
Is the First Amendment dead? - Times-Enterprise

posted at 10:41 pm on April 27, 2017 by Allahpundit

Ah, big missed opportunity here by YouGov. They should have asked people to define abuse. Does the press abuse its freedom when it uses anonymous sources? When it publishes documents that werent supposed to be public? Even the obvious definitions (e.g., printing out-and-out falsehoods) could have made for interesting follow-up questions. Is it an abuse of press freedom to make an honest mistake in reporting or are only deliberate lies abusive? If the latter, should we change defamation law to make it easier for public figures like Trump to sue news outlets for good-faith mistakes?

Same question here as in the post about the Iran poll: How much of this result is driven by loyalty to Trump and how much is driven by extraneous circumstances? The White Houses war on fake news must be contributing to it but right-wing loathing of the press existed long before Trump and will exist long after his administration has passed into history.

This data comes from a different new poll, conducted online by UVAs Center for Politics, but it makes Republican disdain for the media more, shall we say, vivid:

Thats an interesting result because Trump has claimed more than once, including at CPAC this year, that his quote about the press has been distorted and misunderstood. He never said the media is the enemy of the American people, he reminds people. He said the fake news media is the enemy. It was just a few days ago that he reiterated the distinction between the media proper, which he loves loves loves almost as much as he loves things with his name emblazoned on them (which pretty well describes most of American media day to day), and the fake news subset. The Center for Politics didnt make that distinction, though, and neither did the Republicans they surveyed. To Republicans, either the entire media is fake news or even the non-fake stuff is enemy action. In fact, a separate question asked by CFP of Trump voters confirms that hes essentially immune from media criticism among his base. When you hear the media being critical of Donald Trump, the pollster asked, does their criticism make you question your support for him, or does it reinforce that hes on the right track in terms of shaking things up in Washington, D.C.? Result: 12/88.

Heres Jake Tapper nudging CNN viewers to remember that the media-critic-in-chief produces plenty of fake news himself. One last data point worth mentioning, this time from YouGov: When asked how important the media is in determining how well presidents do their jobs, Trump voters were much more likely to say not important (45 percent) than the population at large was (27 percent). Trump would probably say the same thing if asked knowing that thats what hes supposed to say, if only to deny the press any sense that they have leverage over him, but if ever there was a politician who really obviously views the media as crucial to his performance, its the tabloid mainstay turned reality-show star turned president Donald Trump, a.k.a. John Barron. This is a guy who boasts about Sean Spicers ratings and who has allegedly ruled out people for cabinet positions based on their appearance. In his heart of hearts, in an age of ubiquitous media, I bet he thinks media management is 90 percent of his job, which is of course insane. Its no more than 75 percent.

See original here:
Poll: 73% of Republicans say the media is abusing its First Amendment freedom of the press An error occurred. - Hot Air

Last Updated Apr 26, 2017 8:08 PM EDT

BERKELEY, Calif. -- Ann Coulter said in an email Wednesday that her speaking event planned for this week at the University of California, Berkeley, is "canceled" but implied she might still travel to the city or campus anyway.

Amid growing concerns of violence on campus whether Coulter turns up or not, the conservative pundit lost the backing of groups that had initially sponsored her appearance.

In an email to the Associated Press, Coulter wrote "Berkeley canceled" when asked to confirm if she would appear at the campus on Thursday.

She added, however, "I have my flights, so I thought I might stroll around the graveyard of the First Amendment."

In this April 21, 2017, photo, a leaflet is seen stapled to a message board near Sproul Hall on the University of California at Berkeley in Berkeley, Calif.

AP

Coulter was invited by campus Republicans to speak at Berkeley and her speaking fee was to be subsidized by a conservative group called the Young America's Foundation, which pulled its support Tuesday citing concerns of violence.

UC Berkeley officials say they are bracing for possible violence on campus whether Coulter comes to speak or not.

Campus spokesman Dan Mogulof said UC Berkeley officials had not heard directly from Coulter on Wednesday. But he said even if she cancels, some groups that support or oppose her could still turn out on campus.

"We have serious concerns and we're acting accordingly," Mogulof said. "We're taking the steps that our law enforcement officials believe to be necessary in order to provide safety for our students, members of the campus community and the public."

He said police were taking necessary steps to protect the campus.

Ann Coulter arrives at the 2016 TV Land Icon Awards at Barker Hangar on Sun., April 10, 2016, in Santa Monica, Calif.

AP

Police at UC Berkeley say they are preparing to deploy a "highly visible" presence of officers on campus, despite the cancellation of Ann Coulter's speech on Thursday.

Capt. Alex Yao of the University of California Police Department says authorities have received intelligence that protest groups could turn up throughout the day and into the night.

He said Wednesday that police would have a "very, very low tolerance for any violence."

The Berkeley College Republicans who had invited Ann Coulter to the University of California, Berkeley confirmed the group canceled her planned speech over safety concerns.

Troy Worden, the student group's president, says college Republicans "had to cancel the event out of concern for the safety of students."

Worden made the comments Wednesday in a news conference on UC Berkeley's campus.

Berkeley has been the scene of two violent clashes between alt-right and anti-fascist proponents in the last three months, reports CBS Sacramento. There have been numerous arrests, thousands of dollars in property damage and injuries.

2017 CBS Interactive Inc. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed. The Associated Press contributed to this report.

Here is the original post:
Ann Coulter says speech is "canceled" but she may still visit Berkeley - CBS News