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FIRE argued the U.S. Court of Appeals for the Second Circuit should join other circuits that have recognized college faculty dont lose their free speech rights when they are public employees. (Shutterstock.com)

by Josh Bleisch

Faculty at public institutions of higher education are typically charged with three main duties: teaching students, conducting research, and serving the university. But what happens when a faculty members teaching and research involves controversial public issues?

Depending on where faculty teach, the First Amendment may not protect them when they engage in scholarship and teaching on matters of public concern as part of their official job duties.

This is due to a 2006 Supreme Court case, Garcetti v. Ceballos, which held a public employees on-the-job speech was not protected because it occurred pursuant to their job duties. However, consistent with its acknowledgment of academic freedom as a special concern of the First Amendment, the Court in Garcetti singled out public university faculty as one type of public employee that may not be covered by its decision. Despite this, since Garcetti, public university faculty, to whom the right of academic freedom most clearly applies, have had to reassert that right in the federal courts.

Academic freedom is an important part of the First Amendment because our nations universities are unique centers of free inquiry and knowledge creation.

One of those faculty members is Professor John Heim, who teaches macroeconomics as an adjunct professor at the State University of New York at Albany. Notably, his brand of macroeconomics is Keynesianism, in contrast to the preferred philosophy of the UAlbany economics department, Dynamic Stochastic General Equilibrium. Despite Heim applying several times, the economics department refused to promote Heim to a tenure-track position because of his adherence to Keynesian economics.

Heim sued, alleging that UAlbany violated his First Amendment rights. But the district court found for the university, holding that regardless of whether Garcetti applied, Heims scholarship and teaching was not protected by the First Amendment because they were not on a matter of public concern. So Heim appealed to the U.S. Court of Appeals for the Second Circuit.

Yesterday, FIRE filed an amicus brief in Heim v. Daniel in support of Professor Heim. FIRE argued the Second Circuit should join its sister courts in the Fourth, Fifth, Sixth, and Ninth Circuits by recognizing that Garcettis effect of removing on-the-job public employee speech from First Amendment protection does not apply to public college and university faculty.

Why should the free speech rights of college faculty be exempt from Garcetti?

Academic freedom is an important part of the First Amendment because our nations universities are unique centers of free inquiry and knowledge creation. As argued in our brief, Rigidly applying Garcettis framework would strip Heim of First Amendment protection merely because his job, as a university professor, is to teach and produce research. This offends the essence of academic freedom by punishing professors who pursue heterodox ideology.

By over-emphasizing the role of audience size, courts risk turning the public concern analysis into a popularity contest for speech.

FIRE also argued that Heims scholarship and teaching on Keynesian economics constitutes speech on a matter of public concern. Debate and disagreement among scholars is how knowledge flourishes. Even though disputes among academics may be opaque, they can have significant impacts on the broader public. (Think professors of literature deciding collectively and over time what makes up the cannon leading to students today reading works like Homers Odyssey and Herman Melvilles Moby Dick.) The trial court in Heims case recognized as much when it noted Heims primary audiences were government officials and economic policy wonks.

But despite that recognition, the trial court held that Heims speech wasnt a matter of public concern, giving too much weight to the niche subject matter and relatively small size of Heims audience. As FIRE wrote in its brief, By over-emphasizing the role of audience size, courts risk turning the public concern analysis into a popularity contest for speech. Indeed, much of the Supreme Courts First Amendment jurisprudence concerns speech that is or was quite unpopular or simply not of interest to the broader public.

As the brief notes, the fact [t]hat Heims audience consists of public servants charged with making important economic decisions is all the court should need to understand that his scholarship and teaching is on matters of public concern.

You can read FIREs full brief here.

FIRE defends the rights of students and faculty members no matter their views at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, submit your case to FIRE today. If youre faculty member at a public college or university, call the Faculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533).

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In Heim v. Daniel, FIRE pursues opportunity to bolster academic freedom in the Northeast - Foundation for Individual Rights in Education

During the COVID pandemic, scientists seemed to be in rare agreement about the source of the virus; its lethality; the need for universal lockdowns, masks, and social distancing; the inefficacy of certain treatment options; and the near-miraculous efficacy of the vaccine.

A few dissenting voices came through. Remember John Ioannidis, the Stanford scientist who warned in March 2020 that we didnt have enough data to know whether NPI measures were doing more harm than good? Remember Dan Erickson and Artin Massihi, the two doctors from Bakersfield, California, who argued in an hour-long video, released in April 2020, that COVIDs fatality rate was similar to that of the flu? Five million people watched them before YouTube yanked the video. Remember Michael Yeadon, erstwhile VP at Pfizer, who claimed the PCR test overestimated the incidence of COVID by a factor of ten? Remember the Great Barrington Declaration, which rejected general lockdowns and argued for focused protection for the elderly and immuno-compromised who are especially vulnerable to COVID? Remember Gov. DeSantiss roundtable discussion with the three principal Great Barrington scientists? Remember Scott Atlas? Joe Rogan hosted Robert Malone and Peter McCullough, and the redoubtable Freddie Sayers of UnHerd released a steady stream of patient, challenging, informative interviews with the likes of Carl Heneghan, Swedens Anders Tegnell, and Bret Weinstein.

You could find all these eccentric sources during the pandemic, and, as the surfeit of hyperlinks in the previous paragraph indicates, theyre still available somewhere or other. But establishment scientific journals and scientists, including American public health officials at NIH, the CDC, and other agencies, ignored the contrarians or dismissed them as kooks, cranks, and conspiracy theorists (e.g., here and here), even though some of the kooks are specialists in immunology and epidemiology employed by Stanford, Oxford, and Harvard. You could find seams of dissent if you dug deep enough, but why bother? Science knew what it was doing and would tell us what to do. Problem is, Science earned its commanding capital letter only by demonizing dissenting scientists (lower-case).

Eager to do their public service, eager to suppress disinformation, eager not to kill grandma and not to help Trump, social media companies largely reinforced the manufactured scientific consensus by removing nonconforming videos, tweets, and podcasts. On Twitter, the most offensive offender was Alex Berenson, a former New York Times reporter who amassed hundreds of thousands of followers with derisive tweets mocking the official COVID narrative and public health officials. Twitter permanently banned Berenson in August 2021 after he tweeted that the COVID shot isnt a vaccine: Think of itat bestas a therapeutic with a limited window of efficacy and terrible side effect profile that must be dosed IN ADVANCE OF ILLNESS.

Berenson sued Twitter and was restored to the platform in August 2022, the first time a social media company has lost such a suit. The rationale has always been: As private companies, Twitter, Facebook, and YouTube can make whatever rules they want and are solely responsible for determining when the rules have been violated. Berensons victory doesnt undermine that argument. According to The Atlantic, the judge threw out Berensons First Amendment claim, and Twitter settled because one of its executives violated Twitter policy by communicating directly with Berenson about his account.

But the ball game is changing, bigly. The president and other officials have publicly remonstrated with media companies to do more to suppress misinformationmost dramatically in Bidens theyre killing people comment about Facebook in July 2021. Bidens statement was hastily withdrawn, but it was part of a pattern. Kate Bedingfield, White House communications director, hinted that social media companies should be held legally liable for distributing misinformation, and Jen Psaki, former White House press secretary, called on platforms to collaborate to silence harmful voices.

Since the beginning of the Biden administration, there have been rumblings that the White House and federal agencies have also privately pressured social media companies to squelch dissent. Now several lawsuits have begun to pull back the curtain. Berenson is suing Biden, alleging that members of the administration pressed Twitter to deplatform him. Lawyers representing plaintiffs in Missouri v. Biden recently filed an amended complaint showing that eighty officials from nearly a dozen federal agencies were in contact with social media executives concerning climate change, Hunter Bidens laptop, election fraud, and COVID. If it turns out that government officials leaned on media companies to remove individual users, plaintiffs have a highly plausible First Amendment case. Censorship mediated through media is still censorship.

On COVID, there appear to be smoking guns, a small arsenal of them. We now know Mark Zuckerberg gave Anthony Fauci his personal phone number. In July 2021, a Meta executive reported to Surgeon General Vivek Murthy on the companys effort to address the disinfo dozen problem, a reference to the dozen figures considered the most dangerous sources of disinformation (quoted here). On his Substack, Berenson posted a screenshot of an internal Twitter Slack chat from April 2021, in which an employee refers to a really tough question from the White House about why Alex Berenson hasnt been kicked off the platform. In another message, a Twitter employee refers to Biden COVID adviser Andy Slavitts claim that Berenson was the epicenter of disinfo. More disclosures are coming. On September 6, a judge ordered Fauci to turn over any communications between his office and social media companies.

Jenin Younes of the New Civil Liberties Alliance, whose clients have joined the Missouri suit, points out that, whatever the outcome, the case will establish legal guidelines for social media companies. These cases will determine whether or not Twitter, Facebook, and YouTube morph into state media (or, more precisely, Democratic Party media). The suits will decide whether or not federal bureaucrats control the dissemination of scientific information, and so will affect the integrity of science and public confidence in scientific expertise. No matter how you look at it, the stakes are extremely high.

Peter J. Leithart is President ofTheopolis Institute.

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Consensus by Censorship | Peter J. Leithart - First Things

On Sept. 12, FIRE submitted its comment to the Department of Education in response to the departments proposed Title IX regulations. Our message is simple: You cant require colleges and universities to violate the constitutional rights of students or faculty.

FIRE opposes these proposed regulations because the new language, and the removal of critical language from the current Title IX regulations, constitute a severe rollback of First Amendment and due process protections for students in grievance procedures conducted on campus.

The proposed regulations most egregious provisions include:

If finalized, these and many other proposed provisions will mark a new, and unfortunately familiar, era of Title IX hearings in which institutions of higher education fail to protect the First Amendment and due process rights of students and faculty, likely resulting in costly litigation for institutions to ensure these basic protections are met.

When facts are in dispute in such high-stakes proceedings, live hearings that allow for live cross-examination are essential for permitting parties to meaningfully present and challenge evidence. As we argue in our comment to the department, failure to provide those protections violates the constitutional right to due process. Our position is backed by a growing number of court decisions. In Doe v. Baum, for example, the Sixth Circuit held:

Due process requires cross-examination in circumstances like these because it is the greatest legal engine ever invented for uncovering the truth. Not only does cross-examination allow the accused to identify inconsistencies in the other sides story, but it also gives the fact-finder an opportunity to assess a witnesss demeanor and determine who can be trusted. So if a university is faced with competing narratives about potential misconduct, the administration must facilitate some form of cross-examination in order to satisfy due process.

Although FIRE believes that these proposed regulations pose serious risks for students and faculty engaged in Title IX grievance procedures, we are encouraged that the department left in place some protections afforded under the 2020 regulations, including an express presumption of innocence and a requirement that institutions provide parties with non-punitive supportive measures, as appropriate, to help students continue their education during the grievance process.

FIRE will continue to engage with the department at every opportunity and monitor the state of due process and First Amendment protections on campus.

In particular, the departments requirement that institutions expressly provide the accused with the presumption of innocence has shown to make a difference. In FIREs most recent Spotlight on Due Process report, we analyzed the policies of Americas top 53 universities. More than 90% of institutions we rated have Title IX policies that include a presumption of innocence. Troublingly, in disciplinary hearings not governed by the Title IX regulations, nearly two-thirds (62.2%) of those institutions did not explicitly guarantee students that they will be presumed innocent until proven guilty. FIRE believes the department could do more by also requiring institutions to include a statement that a persons silence shall not be held against them.

Next month, FIRE will release its latest annual Spotlight on Due Process report, which will demonstrate the severe lack of due process rights that students are afforded at top institutions, as well as the massive disparity between procedural safeguards provided in Title IX disciplinary procedures many of which will be lost if the proposed regulations are adopted compared to non-Title IX disciplinary procedures those institutions also maintain.

To create new binding regulations or amend existing binding regulations, a federal agency must go through the rulemaking process required by the Administrative Procedure Act. Before these proposed regulations are finalized, the APA requires federal agencies to announce and explain regulatory language to the public. It also requires a comment period for public input. The 60-day comment period for the proposed Title IX regulation ended on Sept. 12.

A date has not yet been announced for a final rule of these proposed regulations, which is likely months away. Nonetheless, FIRE will continue to engage with the department at every opportunity and monitor the state of due process and First Amendment protections on campus.

Given that the Department of Education is required by the APA to meaningfully consider public input, including FIREs comment, we hope they will heed our warnings and amend the proposed language to conform to the well-established constitutional protections that students must be afforded.

Not doing so will have grave consequences for civil liberties on campus.

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FIRE's comment to Department of Education: Your proposed Title IX regulations are unconstitutional - Foundation for Individual Rights in Education

The U.S. government should do more to prevent the spread of disinformation via podcasts.

The Joe Rogan Experiencea podcast where comedian and Ultimate Fighting Championship commentator Joe Rogan interviews a wide range of guestsis a conundrum.

On one side of the debate, fans of Rogan applaud his commitment to interviewing a wide range of guests for an extended period of time in a purportedly unbiased manner. Some see podcasts such as Rogans as a foil to traditional forms of mainstream media that they have come to distrust.

On other side of the debate, though, critics chide Rogan for his amplification of controversial guests, some whom are said to advance harmful conspiracy theories and further the spread of COVID-19 misinformation. They also criticize Rogan for failing to check facts and operating without traditional journalistic oversight.

How should policymakers resolve this debate?

If hosting platforms such as Spotify fail to moderate podcasts peddling in disinformation, the U.S. government should do more to regulate this growing area of news consumption.

If podcasts were treated like traditional forms of broadcast mediaradio, television, and satellitethey would be subject to oversight by the Federal Communications Commission (FCC). Although the FCC must operate within the bounds of the First Amendments speech and press protections, the FCC prohibits news broadcasters from distorting the news intentionally or from broadcasting false information that could contribute to public harm.

Podcasters, however, currently evade these prohibitions. But if the FCC and courts choose to adopt a definition of broadcast journalism that includes podcasts that distribute the news, podcast hosts could be required to obtain a license with the agency. This would bring these alternative forms of media under the FCCs supervision, eliminating some of the problems with fact-checking and deliberate misinformation that can harm listeners.

Questions of line-drawingsuch as when does a podcast cross into news territory, when does misinformation become deliberate or harmful, or can the FCC regulate other forms of online distributioncould complicate the solution of FCC supervision. But embarking on this delicate line-drawing journey would be preferable to the alternative future of over a quarter of people in the United States depending on news from an unregulated source.

Some of these debates are already underway with recent litigation surrounding Section 230 of the Communications Decency Act. This law gives platforms some immunity from information posted by third party usersbut interpretations of the reach of this immunity has been heavily politicized as a choice between misinformation or censorship. Although this debate is ongoing, the FCC has made a case for its authority to interpret Section 230 in the absence of new legislation from Congress, which means platforms such as Spotify could be responsible for misinformation spread by hosts such as Rogan.

Concerns about First Amendment violations could be mitigated by the FCC applying its preexisting First Amendment safeguards, which the agency developed following a rich history of litigation interpreting its reach. In addition, the FCC could commit to limiting the restrictions against explicit and profane material with respect to podcasts.

Even if FCC oversight of podcasts ultimately remains in question, other agencies and tools for regulatory oversight should be explored.

The Federal Trade Commission (FTC), for example, regulates paid advertising content presented on podcasts and other online venues. Although these regulations do not cover all content within podcasts, they require hosts to be fully transparent about any endorsements and advertising content.

Expanding these advertising transparency requirements to relationships between the host and guests of the hosts showwhich often benefit the guest by way of increased following and more customers, similar to an advertisementcould better control the vetting and context of information provided by guests. This expansion of regulation could circumvent First Amendment concerns because it would not restrict the speech of the guest but merely require for a disclosure about the relationship between the guests appearance on the show and the guests business ventures.

Currently, legislators are advancing bills aimed at keeping platforms from elevating harmful content. These bills, called algorithmic amplification bills, do not attempt to censor the underlying content but would limit platforms immunity from liability in the event the platforms amplify harmful content.

Platforms such as Spotify, which make big financial investments in podcasts such as Rogans, could be punished for using algorithms to amplify harmful content. Passage of new legislation regulating platforms amplification of misleading podcasts could provide for a less invasive method of ensuring content quality without directly interfering with podcasts themselves.

With any regulatory avenue taken, government agencies and Congress must carefully consider the tradeoff between potentially restricting speech and protecting listeners. This tradeoff could be addressed by clearly defining what qualifies as news or other important informationleaving entertainment and opinion to be untouched by regulators.

With public faith in media at all-time lows, and the spread of misinformation on the rise, the U.S. government must act now to oversee popular podcasts that seemingly present authoritative news.

Read more:
The Podcast Problem - The Regulatory Review

TAMPA, Fla. (WFLA) Black Lives Matter groups held a press conference on Wednesday discussing a lawsuit that alleges the Hillsborough County Sheriffs Office is responsible for a 14-year-old Tampa boys death in 2014.

Representatives from Black Lives Matter Restoration Polk and Black Lives Matter Grassroots were joined by families of Black individuals whose lives were impacted by police brutality and racial injustice to discuss the wrongful death lawsuit filed by Andrew Joseph IIIs family.

The speakers called for an end to qualified immunity, which the Hillsborough County Sheriffs Officerepeatedly invoked in this case. Qualified immunity is a government protection that shields police officers and other officials from being sued. It can also block the release of information.

In my years of activism, I have had the unfortunate opportunity to work with countless families who have been impacted by police misconduct, police brutality and how these law-enforcement agencies are able to lean on qualified immunity in order to deprive families like the families behind me, and the Andrew Joseph family from the right to justice and accountability, said Pastor Carl Soto with Black Lives Matter Restoration Polk County Inc.

Andrew Joseph III and about 100 other teenagers were kicked out of the Florida State Fairgrounds on School Day in 2014 following a number of teen-involved fights and misconduct that broke out inside the fairgrounds, according to the Hillsborough County Sheriffs Office.

However, his parents maintain that their son wasnt involved, but was handcuffed and detained. They said deputies dropped him off by the interstate to meet his ride home.The 14-year-old was hit by a car while trying to cross I-4.

A number of safety measures have been taken at the fairgrounds since that incident to ensure that any minor in attendance is safe, such as the HCSO Community Action Team that will once again be at the fair on Student Night, the Hillsborough County Sheriffs Office said in a statement to News Channel 8 earlier this year.

The Josephs said theyve seen changes in the fairgrounds policy since that night, like parents getting a call if their child is removed from the park and having them sit in a waiting area until their parents arrive. They wish their son had been given that option, avoiding what they say was an unnecessary interaction with police.

Wednesday marked day three of the wrongful death trial. The Black Lives Matter groups met outside the federal courthouse in Tampa along with the families of Emmett Till, Oscar Grant, Breonna Taylor, Jacob Blake, Markeis McGlockton and Ruben Debrosse.

Families rallied demanding change, saying their loved ones suffered the same racial injustice at the hands of law enforcement, including the family of Emmett Till.

Emmett was killed by a white mob and the police covered it up and again were seeing attempts to cover up again 66 years later, the same type of cover-up, said Tills cousin Magnolia Carter. I stand for justice, I want to see the end of qualified immunity and I want to see the justice for this family that they deserve.

Continue reading here:
Black Lives Matter calls for end to qualified immunity, discusses lawsuit against HCSO in Tampa teens death - WFLA