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Can the government ban the text of the First Amendment itself on municipal transit ads because free speech is too political for public display?

If this sounds like some ridiculous brain teaser, it should. But unfortunately its not. Its a core claim in a lawsuit we filed today challenging the Washington Metropolitan Area Transit Authoritys (WMATA) restrictions on controversial advertising.

The ACLU, ACLU of D.C., and ACLU of Virginia are teaming up to represent a diverse group of plaintiffs whose ads were all branded as too hot for transit: the ACLU itself; Carafem, a health care network that specializes in getting women access to birth control and medication abortion; People for the Ethical Treatment of Animals (PETA); and Milo Worldwide LLC the corporate entity of provocateur Milo Yiannopoulos.

To put it mildly, these plaintiffs have nothing in common politically. But together, they powerfully illustrate the indivisibility of the First Amendment. Our free speech rights rise and fall together whether left, right, pro-choice, anti-choice, vegan, carnivore, or none of the above.

Lets start with the ACLU. Earlier this year, following President Trumps repeated commentary denigrating journalists and Muslims, the ACLU decided to remind everyone about that very first promise in the Bill of Rights: that Congress shall make no law interfering with our freedoms of speech and religion. As part of a broad advertising campaign, the ACLU erected ads in numerous places, featuring the text of the First Amendment. Not only in English, but in Spanish and Arabic, too to remind people that the Constitution is for everyone.

The ACLU inquired about placing our ads with WMATA, envisioning an inspirational reminder of our founding texts, with a trilingual twist, in the transit system of the nations capital. But it was not to be: Our ad was rejected because WMATAs advertising policies forbid, among many other things, advertisements intended to influence members of the public regarding an issue on which there are varying opinions or intended to influence public policy.

You dont have to be a First Amendment scholar to know that something about that stinks.

Our free speech rights rise and falltogether whether left, right, pro-choice, anti-choice, vegan, carnivore, or none of the above.

Lets start with the philosophical argument. WMATAs view is apparently that the litany of commercial advertisements it routinely displays involve no issues on which there are varying opinions. Beyond the obvious Coke-or-Pepsi jokes, theres a dark assumption in that rule: that we all buy commercial products thoughtlessly. Buy beer! (Dont think about alcoholism.) Buy a mink coat! (Dont think about the mink.) That is, WMATA sees varying opinions only when they relate to something it recognizes as controversial. And as the Supreme Court recently reminded us, the government violates the First Amendment when it allows only happy-talk.

And now to the practical. This is a policy so broad and vague that it permits WMATA to justify the ad hoc exclusion of just about anyone. And the broad set of plaintiffs in this case confirms that.

Despite the fact that Carafem provides only FDA-approved medications, its ad was deemed too controversial because it touched the third rail of abortion. Carafems proposed ad read simply: 10-week-after pill. For abortion up to 10 weeks. $450. Fast. Private. As we at the ACLU know all too well, as states continue to erect draconian barriers to the right to choose, information about and access to abortion care is more critical than ever. Yet Carafems ad was apparently rejected simply because some people think otherwise.

One of PETAs intended advertisements depicted a pig with accompanying text reading, Im ME, Not MEAT. See the Individual. Go Vegan. Despite the fact that WMATA routinely displays advertisements that encourage riders to eat animal-based foods, wear clothing made from animals, and attend circus performances, PETAs side of this public debate was the only one silenced by the government.

WMATAs advertising agency suggested that with some changes, ACLU and PETA might be able to get their advertisements accepted. Perhaps PETA could remove the Go Vegan slogan from its advertisement? But for the ACLU, Youll have to dramatically change your creative. In other words, as long as we dont try to make anyone think, we might get the right to speak.

That brings us to our final client: Milo Worldwide LLC. Its founder, Milo Yiannopoulos, trades on outrage: He brands feminism a cancer, he believes that transgender individuals have psychological problems, and he has compared Black Lives Matter activists to the KKK. The ACLU condemns many of the values he espouses (and he, of course, condemns many of the values the ACLU espouses).

Milo Worldwide submitted ads that displayed only Mr. Yiannopouloss face, an invitation to pre-order his new book, Dangerous, and one of four short quotations from different publications: The most hated man on the Internet from The Nation; The ultimate troll from Fusion; The Kanye West of Journalism from Red Alert Politics; and Internet Supervillain from Out Magazine. Unlike Mr. Yiannopoulos stock-in-trade, the ads themselves were innocuous, and self-evidently not an attempt to influence any opinion other than which book to buy.

WMATA appeared to be okay with that. It accepted the ads and displayed them in Metro stations and subway cars until riders began to complain about Mr. Yiannopoulos being allowed to advertise his book. Just 10 days after the ads went up, WMATA directed its agents to take them all down and issue a refund suddenly claiming that the ads violated the same policies it relied on to reject the ads from the ACLU, Carafem, and PETA.

The ideas espoused by each of these four plaintiffs are anathema to someone as is pretty much every human idea. By rejecting these ads and accepting ads from gambling casinos, military contractors, and internet sex apps, WMATA showed just how subjective its ban is. Even more frightening, however, WMATAs policy is an attempt to silence anyone who triestomakeyou think. Any one of these advertisements, had it passed WMATAs censor, would have been the subject of someones outraged call to WMATA.

So, to anyone whod be outraged to see Mr. Yiannopoulos advertisement please recognize that if he comes down, so do we all. The First Amendment doesnt, and shouldnt, tolerate that kind of impoverishment of our public conversation. Not even in the subway.

At the end of the day, its a real shame that WMATA didnt accept the ACLUs advertisement the agency could really have used that refresher on the First Amendment.

See the original post:
The First Amendment (Literally) Banned in D.C. | American Civil ... - ACLU (blog)

Xconomy San Francisco

Google software engineer James Damore confirmed to Bloomberg on Monday that Google fired him for circulating a lengthy memo on his views that women are biologically less suited to tech work than men.

His manifesto was spread through Googles internal communication channels over the weekend, and obtained by Gizmodo and other tech publications. Damore expressed his opinion that women are underrepresented in tech companies such as Google, not because of discrimination, but because, on average, women are naturally more inclined to concentrate on feelings rather than on ideas. Damore also professed his belief that women are more neurotic or prone to anxiety than men, as well as less competitive and more inclined to be collaborative.

Google acted quickly, firing Damore on grounds that his memo violated the companys code of conduct by propagating harmful gender stereotypes, according to the New York Times. Damore had criticized Google for its initiatives to promote diversity.

Damores ideas were roundly denounced by both women and men in the tech industry, including former Googler Yonatan Zunger, who is now at machine learning startup Humu. Zunger, an experienced engineer, said in a Medium post Saturday that traits Damore defines as female, such as empathy and the ability to collaborate, are the core traits which make someone successful at engineering.

But in the memo, Damore claims his views are shared by many fellow Googlers who have told him privately that theyre grateful to him for raising opinions they agree with but would never have the courage to say or defend because of our shaming culture and the possibility of being fired.

Its Damores claim that Google stifles dissent, in the memo he called Googles Ideological Echo Chamber, that may keep his ideas in the forefront of public debate. Signs are that he may sue Google, claiming a violation of his First Amendment rights, or of his rights under federal labor law.

If Damore challenges his firing on grounds that Google suppressed his free speech rights, hes unlikely to win, legal scholars say. But Damore may already have achieved part of his aims, in spades. His opinionsthough offensive to manyare now part of a public discussion in arenas much broader than Google internal memos.

Damores case has dragged Google into the ongoing political and cultural battle between right and left in the U.S.between conservative groups that resist diversity efforts, and employers such as universities that try to counter discrimination. This could turn out to be a bigger headache for Google (and potentially other companies) than an employment rights suit it may be likely to win.

David French, writing for the conservative magazine National Review, blasted Google for Damores firing. Of course Google did this, French wrote. Of course an increasingly radical progressive enclave cant handle thoughtful critiques of its ideological monoculture.

Google is a private company and has wide legal latitude to discipline its employees for their speech, but make no mistakethis is a direct assault on the American culture of free speech, French added.

Another writer forNational Review, Jim Geraghty, eagerly anticipates legal action by Damore. When does one employee holding an opinion contrary to another employees become harassment? My guess is that a lawsuit at Google is going to explore that question under the harsh glare of public scrutiny, Geraghty wrote.

Other conservative outlets, includingThe American Conservative and Breitbart,also jumped into the fray. Breitbart published a flurry of at least nine stories supporting Damores views.

On the other end of the political spectrum, The Guardians Owen Jones wrote under the headline, Googles sexist memo has provided the alt-right with a new martyr.

Jones wrote, Youre going to hear a lot about [Damore] in the coming weeks: hell probably be a star guest on alt-right shows and the rightwing lecture circuit, splashed on the front covers of conservative magazines, no doubt before a lucrative book deal about his martyrdom and what it says about the Liberal Big Brother Anti-White Man Thought Police.

The portrayals of Google as a standard-bearer for anti-discrimination policies, or a radical progressive enclave, can be dizzying, because Google has actually been trying to counter the impressionbased on its own workplace statisticsthat its hiring and promotion policies significantly disadvantage women and minority members.

If Damore files a lawsuit against Google for suppressing his views against equal opportunity measures, it might be heard even while the U.S. Department of Labor continues its investigation of a significant gender wage gap at Google.

Prior to his firing, Damore had already sought recourse by filing a complaint to the National Labor Relations Board, arguing that Google was trying to silence him, according to the New York Times.

Stanford University law professor Richard Thompson Ford, who specializes in anti-discrimination law and workplace rights, says Damore has a slight, though not non-existent, chance at winning a lawsuit against Google over his firing.

The First Amendment claim is not strong, Ford says.

Many people think the amendment gives them the right to free speech on the job, but thats a misreading Next Page

Bernadette Tansey is Xconomy's San Francisco Editor. You can reach her at btansey@xconomy.com.

More here:
The Fired Google Engineer, the First Amendment, and the Alt-Right - Xconomy

The 1st amendment says you can take to the streets or express controversial views, but the amendment doesn't protect you against the resulting consequences.

"You sort of check your first amendment rights at the door when you work for a private employer," said Lisa Edison-Smith.

Anyone who doesn't work for the state or federal government isn't protected by the 1st amendment and to most that's a little known fact.

"I didn't know that, that's actually quite a surprise to me," said Devon Solwold, Moorhead.

An employer can fire you if your views are fundamentally different than those of the company and one google employee learned that the hard way after getting fired for sending this memo internally, saying there are fewer women in tech because they are quote 'biologically different.'

On Tuesday employment lawyers say these cases are showing up more now than ever thanks to social media.

"There's this disconnect that people will often post and do things at a computer or an Ipad that they wouldn't say face to face to people. If it's not willing to say something face to face, don't do it in an electronic comment," said Edison-Smith.

While everyone we spoke to says it's an important right, it's one that should be used with caution and wisdom.

Employment lawyers say you can express your views outside of work without consequence unless they damage the reputation or business as a whole.

Follow this link:
The First Amendment: Freedom of speech in the workplace | WDAY - WDAY

EDITORIAL August 08. 2017 11:36PM Jeff Sessions is going to be a plumber.

The U.S. attorney general has been tasked by President Trump with stopping the leaks, which have plagued Trumps dysfunctional White House.

Sessions says that he is reviewing the Justice Departments policies on media subpoenas. This has renewed calls for a shield law to protect reporters from having to reveal the source of classified information.

In 1971, the U.S. Supreme Court held that the government may not prevent the publication of classified information, under the doctrine of prior restraint. But that does not mean reporters are above the law.

Most of the Trump leaks are embarrassing, not illegal. But some, such as the leaked transcript of a private conversation between Trump and his Mexican counterpart, can damage national security. World leaders will be less likely to have frank conversations with future U.S. Presidents.

If reporters are given special protection under the First Amendment not available to everyone else, who gets to decide who qualifies as a real reporter? Would you trust the Trump administration to make such a decision? How about Eric Holders Justice Department?

Deputy AG Rod Rosenstein says the Justice Department is after the leakers, not the journalists.

Sessions should proceed with caution. He must not harass reporters for covering the President. But he has a responsibility to track down those who compromise our national security to score political points.

Politics Editorial

See more here:
No shield needed: The First Amendment works just fine | New ... - The Union Leader

As we previously discussed in our post The Commander-in-Tweet and the First Amendment, the POTUS was criticized by the Knight First Amendment Institute for blocking certain Twitter users from his @realDonaldTrump account. According to the Knight First Amendment Institute, President Trumps Twitter account functions like a town hall meeting where the public can voice their views about government actions and attendees cannot be excluded based on their views under the First Amendment. Therefore, according to the Knight Institute, President Trump is violating the First Amendment by blocking users based on the content of their tweets. Subsequently, on July 11, 2017, the Knight First Amendment filed suit against President Trump and his communications team on this basis.

Recently the outcome of another case involving a government official blocking access to her social media account may foretell how the case against President Trump proceeds. Brian C. Davison, a software consultant, filed suit against the Loudon Countys Board of Supervisors and Phyllis Randall, chairman of Loudon Countys Board of Supervisors, in the Eastern District of Virginia. Davison had criticized Randall on her Facebook page and commented about alleged misconduct by her colleagues, and was subsequently blocked by Randall.

According to Davison, who appeared pro se, banning him from the Facebook page was an illegal prior restraint based solely on the content of his views. He also argued that because she posted during business hours and associated the account with her government email address, the Facebook page was meshed with her role as a government official. Randalls attorney argued that Randalls personal Facebook page should not be equated to a government account and noted that she was not using country resources to maintain the account.

After a bench trial, Judge James Cacheris found that Randall violated the First Amendment through her actions. He found that, even though she set up her Chair Phyllis J. Randall page herself and outside of the countys existing social media accounts, Randall was acting in a governmental capacity when operating her Facebook page. He also noted that Randall used her Facebook page to solicit comments from her constituents and that the about section of the page listed her as a government official, was linked to the county website and provided government contact details. Plaintiffs comment regarding alleged misconduct by County officials was obviously related to a question Defendant had fielded at a town hall earlier that evening, stated the Judge.

Judge Cacheris stated in his opinion: The First Amendment applies to speech on social media with no less force than in other types of forums. The Court cannot treat a First Amendment violation in this vital, developing forum differently than it would elsewhere simply because technology has made it easier to find alternative channels through which to disseminate ones message and The suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrimination against which the First Amendment guards The Judge further opined that the Facebook page is a forum for protected, free speech under both federal and Virginia state law.

However, the Judge imposed no penalty as Randall lifted the ban against Davidson after 12 hours, and the Judge noted that the consequences of her actions were fairly minor. Judge Cacheris clarified that Randall can moderate comments on her Facebook page, and emphasized that his ruling shouldnt be read as prohibiting all public officials from blocking commenters from their social media accounts.

As this case reflects, whether actions taken by a government official regarding his or her social media account violates the First Amendment will be a highly fact-intensive inquiry. While the opinion seems to suggest that an outright ban of a commentator to the social media account may amount to a violation, reasonable moderation will likely be tolerated. How much moderation is reasonable moderation is left to be seen. A rebuttal comment to the post would likely be allowed, but what if the government official hid the negative comments from the Facebook page? Or what if Randall had maintained a Facebook page for her official position and a separate personal Facebook page where the personal page was devoid of any references to her capacity as a government official? In any event, as more and more government officials take to using social media, this area of First Amendment law is sure to further develop.

Read more from the original source:
Stumbling Blocks: When Is Social Media Moderation a First Amendment Violation? - Lexology (registration)