Archive for the ‘First Amendment’ Category
TikTok ready to move to the courts to prevent ban in US – Ars Technica
TikTok is gearing up for a long legal battle to fight legislation in the US that threatens to ban the app in its largest market if its Chinese owner, ByteDance, refuses to sell the viral video platform.
The US House of Representatives on Saturday passed a package of national security bills that included legislation that would result in TikTok being banned in the country if Chinese parent company ByteDance does not divest the app.
Michael Beckerman, TikToks public policy head in the US, told staff in response that if the bill became law, the company would move to the courts for a legal challenge.
This legislation is a clear violation of the First Amendment rights of TikToks 170 million American users, he said in a memo to staff, according to people who viewed it. Well continue to fight.
The bill was packaged together with funding for Ukraine and Israel and sent to the US Senate, which is expected to pass the measure this week before it is signed by President Joe Biden.
This is the beginning, not the end of this long process, Beckerman told TikTok employees. The group is set to hold a town hall for staff on the US situation on Wednesday.
The people said ByteDances general counsel Erich Andersen, who also leads TikToks legal team, and would be responsible for steering the companys legal strategy, would probably step down before any court battle begins.
Andersen joined ByteDance from Microsoft in 2020, meaning his large stock compensation package would be fully vested after four years on the job, according to a person familiar with the matter.
Andersen indicated to some staff that he would stay on in the short term as the company steadies itself ahead of the expected legal battle, the person added.
A series of TikTok executives in the US have exited after the four-year mark, including the companys former chief operating officer, Vanessa Pappas.
Bloomberg News earlier reported that TikTok was preparing to remove Andersen. The Information first reported on Beckermans memo.
ByteDance has successfully used US courts to thwart several attempted bans in the US.
Last year a federal judge blocked Montana from banning the app on devices in the state before it could go into effect, with the judge saying the ban probably violated the first amendment right to free speech.
Before leaving office in 2020, President Donald Trump tried to ban the app in an executive order that also sought to force the sale of TikTok. Courts blocked its implementation, and President Joe Biden gave up on the legal fight after taking office.
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SCOTUS won’t review decision that ratchets up legal risk at protests – Reporters Committee for Freedom of the Press
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One of the First Amendments bedrock protections for a free press and free expression is the rule that an individual lawfully exercising their constitutional rights cant be held liable for a strangers uncoordinated decision to break the law nearby. As weve often emphasized, that rule is a critical safeguard for reporters who attend tumultuous events where violence may break out political rallies, say, or mass demonstrations in order to bring the public the news. But a recent order of the U.S. Supreme Court gives reason for concern that that longstanding First Amendment principle may no longer have five votes among the justices.
The case, Mckesson v. Doe, has come before the justices before. In it, a Louisiana law enforcement officer alleges that he was struck by a rock while policing a Black Lives Matter demonstration but rather than sue the individual who threw the rock, the officer chose to sue activist DeRay Mckesson for organizing the protest in the first place. Under the Courts 1982 decision in NAACP v. Claiborne Hardware, that should have made for an easy case: Before you can be held liable for another persons decision to break the law at a demonstration, the First Amendment requires proof that you authorized, directed, or ratified the strangers violent conduct. By insisting on that evidence of bad intent, the Constitution provides breathing room for lawful newsgathering and expression, ensuring that journalists can go about their jobs at chaotic events without fear that a third-partys unlawful conduct will be imputed to them.
Remarkably, the U.S. Court of Appeals for the Fifth Circuit allowed Does lawsuit to go forward regardless even though Doe never alleged that Mckesson intended his injury on the theory that Mckesson was negligent as to the risk that the protest would turn violent. (As the Reporters Committees Gabe Rottman wrote in a 2018 op-ed for The Washington Post, a similar theory was put to dangerous but ultimately unsuccessful use against journalists in connection with protests against Donald Trumps presidential inauguration in 2017). In 2020, in response to a previous bid by Mckesson to have the Supreme Court hear the case, the justices issued an unsigned order that ordered the Fifth Circuit to ask the Louisiana Supreme Court to clarify whether state tort law permitted Does lawsuit before wading into a question fraught with implications for First Amendment rights. But when the Louisiana Supreme Court answered that state law did, in fact, provide Doe with the grist for a lawsuit, the Fifth Circuit reinstated its conclusion that the First Amendment offered no defense.
Mckesson then turned to the Supreme Court again. The justices weighed the case at seven (!) conferences before weighing in often a sign that some sort of behind-the-scenes haggling is afoot. Last week, the Court ultimately declined to review the case, accompanied by a short statement from Justice Sonia Sotomayor. In carefully neutral language, Sotomayor noted that the Fifth Circuits opinion did not have the benefit of the Courts 2023 decision in Counterman v. Colorado, which reiterated the role that strict intent requirements play in providing breathing room for First Amendment freedom. Mckesson, she suggested, would still have an opportunity to argue to the Fifth Circuit that it should now revisit its earlier decision in light of Counterman.
There may be, then, a narrow path forward for Mckesson. But its an unnerving development all the same that the Court couldnt assemble a majority to reverse the Fifth Circuit outright the outcome Sotomayor may well have spent those weeks trying to build support for. At a time when the prospect of significant protest activity once again ratchets up the legal risk facing journalists who cover civic unrest, the Court cant afford to blink on core First Amendment protections.
The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy combining the law, policy analysis, and public education to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.
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SCOTUS won't review decision that ratchets up legal risk at protests - Reporters Committee for Freedom of the Press
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Say ‘Yes’ to the First Amendment Minding The Campus – Minding The Campus
For in politics, as in religion, it is equally absurd to aim at making proselytes by fire and sword. Heresies in either can rarely be cured by persecution. Alexander Hamilton, Federalist 1
All university-level students should read, study, and discuss The Federalist Papers (178788). This most sacred document of the American founding explains the logic of the Constitution. Its more important than ever to understand that logic because the advent of Artificial Intelligence means that we are rapidly approaching a dystopian singularity that requires serious thinking about individual rights and freedom. For this reason, above all others, the sanctimonious mob that currently tyrannizes academia poses a major risk to Western Civilization. The time is now. Either we learn from the past by taking it seriously, or else we will be consumed by our future. A good exercise is to write an essay that supplements The Federalist Papers for todays citizen. This is one of mine. If you object, then write your own.
Ive already written a basic introduction to the negative logic that is the scientific basis for the Bill of Rights. Consider this lesson an immediate corollary. The First Amendment to the United States Constitution is vital above all the others, and theres a single sociological reason that so much of what we hear in public discourse undermines it.
First, the reasons the First Amendment is vital. The right to believe and say anything is fundamental to the proper functioning of markets and political systems. Mental freedom provides the antifragile underpinnings of commerce and the law. Without competition among a variety of products, services, and ideas, we end up making big decisions without the price signals and public debates that allow us to consider important information.
Think of East Germany or North Korea. Life becomes painful, gray, feeble, and unfixable without prices and ideas. And when that happens, external and internal changes become problematic. Those who control rigid markets and governments dig themselves into negative feedback loops. They grow even more tyrannical because they cant see change as creative destruction. To them, change amounts to apocalyptic suicide. An alternative product or idea can make it obsolete overnight.
In the social sphere, reasoning must operate effectively, even though achieving absolute truth and perfection is impossible. Allowing individuals to think freely and express diverse ideas is essential for this purpose. Similarly, in markets, having a wide range of options contributes to stability, especially when facing creative destruction.
A product or service can almost always be improved upon or substitutedi.e., just as theres no ideal political arrangement, theres no absolutely true or perfect outcome to market competition. But thats precisely why we must keep these active as systemic processes and not end goals. Not all products and services will endure, and when they become obsolete a lot of people will lose their livelihoods and no longer get what they want over the short term. Thats precisely why options are important: so that people can make and do other things and adapt to change more easily. Moreover, in politics, as it is with markets, stagnation can lead to decay and corruption, which accentuates the pain of social and commercial change.
But how do we know finally what is good and proper in government and business?
The answer is that we dont. We cant. If we did, human activity would be meaningless and would just make the world a more loathsome place. We dont intuitively know whats best. Individuals will have opinions. Some individuals will be more right more often than others. But if we merely assume that all human beings can be wrong at least once in life, then we still must discover what is preferable through individual experimentation and comparison.
Now, for the sociological reason, the First Amendment is always under attack: the mob.
Were social creatures. Theres no doubt about that. We need partners, family, and friends. The kindness, communication, and company of others are desirable and keep us sane. We have a tribal instinct wired into us. Sacrifice and cooperation have always been keys to our survival during a crisis. But it goes deeper than that. We even need enemies to coordinate and locate our groups. For these reasons, the social instinct is so intense that when we lack a collective identity, well make one up out of thin air. Its also so strong that when we sense that our group is threatened, it alters how we feel, think, and behave. And perhaps the true tragedy is that the mob instinct has its most powerful effect on successful people. In other words, the very people who, in theory, should be much more inclined to favor rugged individualism and independent thinking are the ones most vulnerable to groupthink.
Its this group instinct thats constantly attacking the First Amendment, threatening and retarding human progress in social, economic, and scientific terms.
Our tribal confirmation bias means truth unavoidably devolves into tyranny at some point. While its true that we need others, its not true that, therefore, others should be allowed to trump our individuality. But they do, and we let them. Look at every major institution in the United States today. Conformity to the most irrational and diabolical ideas is now the norm.
At universities, corporations, and government agencies in the United States, its now routinely expected that people must agree that the accused are guilty until proven innocent, that men can be women if they so choose, and that we must live according to a racial and sexual hierarchy with black homosexual females at the top and white heterosexual men at the bottom. Theres even a convoluted ideology called intersectionality, which attempts to define and promote people by their collective identities rather than their abilities or accomplishments.
America is now the antithesis of itself.
These ideas are dominant at our most respected institutions. MIT, arguably the most advanced university on earth, is plagued by well over 75 DEI administrators. Why? It turns out that, on aggregate, the smarter you are, the more prone you are to accede to the pressure of the group. This does not mean that a few brilliant individuals wont emerge to challenge the status quo. It means that most brilliant individuals will make sacrifices to the tribe in order to assuage their guilt and fear.
Ive listened to some very smart peopleCharles Murray, Richard Brookhiser, Pedro Schwartz, Mark Cuban, and Jonah Goldbergmaintain that Donald J. Trump is bad for America because hes autocratic, corrupt, and ill-mannered. But what they object to is style not substance.
There are a lot of things wrong with Trump. Hes human. However, refusing to see that government officials have targeted him unjustly and, in the process, unwittingly proven his absolute innocence in juridical terms means disregarding the only method we have of assessing such matters. When over thirty highly trained lawyers, including Robert Mueller, Andrew Weissmann, and Rush Atkinsona team that NBC News called the best prosecutors in the businesswere given more money than the Vatican and two years to investigate Trump, they found nothing. All they could say was, we cant prove his innocence. When a team of lawyers with such extreme incentives, skills, and biases resorts to inverting the essence of Western jurisprudencei.e., the principle that citizens are innocent until proven guiltythen, as far as such things can be determined in the public sphere, Trump is the antithesis of corruption. He might be the most pristine president the U.S. has ever had, and all claims to the contrary are most likely deceptive, emotional, and self-interested.
Furthermore, the notion that Trumps disagreeableness disqualifies him from public office ignores the most realistic political advice formulated by everyone from Thucydides to Machiavelli: historians and citizens must evaluate the actions and policies of their leaders and eschew the pretense of fretting about their personal virtues.
What does all of this have to do with the First Amendment?
Well, many very smart people are incapable of reason in politics. Theyve succumbed to the sacred anger of the crowd. Theyre either joining that crowd or appeasing it out of fear or greed, or both. But theyre not thinking logically about the differences between Joe Biden and Donald Trump. Why? Because powerful people are those most at risk of crowd violence. French anthropologist and sociologist Ren Girard wrote multiple books about what he called the scapegoat mechanism, wherein the mob attacks any wrinkle of difference in the social field to which it might attribute the cause of any crisis that throws it into a frenzy.
I call this the Romantic anti-hero effect.
Behind everyones romantic nightmare, from Dr. Frankenstein to Dracula to Dorien Gray, is the perception of evil as weirdness. This explains why so many talented and successful people spout utter nonsense when it comes to politics. Great actors, musicians, scientists, engineers, and even entrepreneurs and financiers feel the weight of the public eye. Thus, they tend to hold political views that they think will placate the mob. Its usually not even conscious. Its just an instinct that ensures their survival.
Recently, Dr. Jay Bhattacharya, an incredibly smart man with whom I agree on just about everything, tweeted that his mother had been watching CNN until 2021 when she saw a report that criticized her son. Dr. Bhattacharya was proud to report that his mother no longer watches CNN because she does not suffer from the Gell-Mann amnesia effect. But with all due respect, here is the problem.
A very smart mans mother, a woman he claims does not suffer from an inability to perceive the propaganda of a major news service, was still watching CNN as late as 2021. In fact, she didnt stop watching CNN until the networks reporters took a swipe at her own son. Very smart people spend so much time in the light of moral rectitude and political certainty that they confuse these for reason (see the movie Poltergeist, 1982).
You might object. You might hold that society must regulate the First Amendment because someone might act on their evil thoughts or the evil thoughts of others. Okay, hurting people is bad. But we punish those who hurt people, not those who express the ideas that might inspire them. This is the only we way we can lay claim to the idea that people should think before they act. Moreover, the definition of suffering is itself part of our problem. To harm the bodies or property of others is wrong. But people will do anything for money and approval. This especially includes false claims to have been hurt by anyone who angers the mob. Further, what people consider an evil idea today might be good tomorrow, and vice versa.
Censuring what we consider evil can only promote tyranny in the end, not alleviate it.
In sum, yes, there will always be moments when the principle of liberty gets elided due to a crisis or a particular case, but we must always reassert that principle. This is what Reagan meant when he said that freedom is never more than one generation away from extinction. And freedom of thought is the most basic principle of all, the one upon which depend the other personal freedoms listed in the Bill of Rights.
This is simply because without the freedom to think and say what we want, sooner or later, well find ourselves unable to defend all the other personal rights. Artificial Intelligence is rapidly approaching the ability to read our minds. By definition, many smart and powerful people will use this technology to offer up all of our rights to the mob as a means of gaining power over and safety from that same mob. And nobody will be allowed to object without tremendous risk to themselves. I find the moral argument for my personal liberty the most compelling one. Who are you to make me confess or conform? However, given that individuals shape the world by developing the ideas, tools, and practices that enhance it, the true stakes here include wealth creation, scientific progress, and our ability to improve life.
Art by Joe Nalven
Eric-Clifford Graf (PhD, Virginia, 1997) teaches and writes about the liberal tradition as authored by men like Alexander Hamilton, Frederick Douglass, and Jorge Luis Borges. His latest book is ANATOMY OF LIBERTY IN DON QUIJOTE DE LA MANCHA (Lexington, 2021). All of his work can be found here: ericcliffordgraf.academia.edu/research.
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OPINION | Tulane must commit to upholding First Amendment – Tulane Hullabaloo
Lily Bodin
Students do not shed their rights at the schoolhouse gates.
At least, thats the standard upholding freedom of speech and expression in U.S. public schools. The Supreme Court established the precedent in the 1969 case Tinker v. Des Moines. The case extended the rights of the First Amendment to students in schools because the school administrators acted as a proxy for the U.S. government. It has been upheld ever since.
Students attending state-funded high schools across the country have Tinker and decades more of constitutional interpretation to fall back on when they express themselves. Administrators have a wealth of knowledge to rely upon when they discipline students. This even extends to public universities.
Unfortunately for students that attend private colleges, an already complex legal topic becomes even more blurry. Officials of private universities arent held to the same standards because they arent agents of the government. Private universities typically write and enforce their own speech codes.
Elite private universities sell themselves as intellectual powerhouses, but they still struggle with the foundational concept behind intellectual thought: freedom of expression. Private universities have been under fire since the Oct. 7 attack on Israel for the chaos on their campuses. The situation is sticky. Its so sticky that the presidents of three of our nations finest institutions Harvard University, University of Pennsylvania and Massachusetts Institute of Technology found themselves tongue-tied before Congress when questioned about how they are handling tense on-campus situations. The line between harassment and expression is unclear, even to the most esteemed academics.
Tulane University has a clear commitment to the freedom of expression outlined in its 2023 philosophy. However, as the congressional hearings of university presidents showed, institutional policy may not be enough to root out bias.
Tulane is not immune to the fallacies of other private institutions and is also being tested on its free speech boundaries. Tulane has shown up in the news again and again with freedom of speech at the center of the story. Systems of legal interpretation and justice shield public universities from the conflict. The difference between the marketplace of ideas in public and private universities lies in the methods of recourse available to students and staff alike.
Public universities are expected to uphold the First Amendment, as defined by the Constitution and interpreted for centuries by the courts, when they commit to free speech. Thus, when a public institution engages in questionable discipline of students concerning expression, their students can turn to the courts for restitution. Private universities, like Tulane, Harvard and Penn, are expected only to keep their promises to students. Administrations are capable of interpreting violations of their own rules, regardless of the impression on community members or any perceived discrepancies between academic integrity and the safety of the campus environment. Thats a much harder case for a censored student to win.
The standard set forth in Tinker v. Des Moines established that students retain their rights at public schools, but it didnt shoot down all administrative authority to regulate speech. Public school students are still disciplined for speech that materially and substantially interferes with school operation. Student speech would otherwise be protected unless the instance escalates, legally, to that of harassment or a hate crime.
By voluntarily deciding to uphold the First Amendment, Tulane administrators would be moving to embrace decades of evaluative standards set forth by U.S. courts. This, rather than a self-defined philosophy for freedom of expression, would have benefits for both the community and the administration. Students would have a clearer picture of what will be allowed and disallowed. Administrators would have a path for discipline that puts up extra guardrails against biased decisions. Grievances can be brought to court if a decision appears biased. The community would be more educated on their civil rights overall.
Now more than ever, it is critical for young intellectuals to engage in civil discourse. Speech and conduct codes are subject to bias and manipulation during a time so charged for our community. The Constitution and its interpretation are imperfect, but something must be done in order to protect the core values of education throughout the chaos. Bias in free speech interpretation impedes free academic thought. A reformed free speech policy is the first step forward.
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