Tag: free speech

The Masked Agitator Veto

The leaders of the University of California at Berkeley lacked power to prevent Milo Yiannopoulos from speaking on their campus yesterday. A subset of the university’s faculty urged their Chancellor to do just that. His spokesman replied, “Our Constitution does not permit the university to engage in prior restraint of a speaker out of fear that he might engage in even hateful verbal attacks.

Most protesters opposed the event peacefully. Some did not: “security officials claim about 150 ‘masked agitators’ joined the demonstration, setting fires, throwing molotov cocktails and rocks and attacking some members of the crowd.” Yiannopoulos’ speech was cancelled in the interest of public safety.

The faculty members seeking to censor Yiannopoulos did not cover themselves with glory, but the people resorting to violence were the true villains in this narrative. They achieved through violence what could not be achieved by law.

Of course, it is possible the university did not try very hard to hold the event. But the Chancellor faced down a part of his own faculty, and the Berkeley College Republicans thanked the university police and the administration “for doing all they could to ensure the safety of everyone involved.” It does not appear the administration came up short. To the contrary, they appear to have fulfilled their obligations. They deserve praise.

This morning President Trump tweeted “If U.C. Berkeley does not allow free speech and practices violence on innocent people with a different point of view — NO FEDERAL FUNDS?”

Notice U.C. Berkeley is the subject of both actions. But the Berkeley Chancellor supported the speech, and we have no evidence that he or any other person acting on behalf of Berkeley incited violence yesterday.

I do not see how attacking people who have observed constitutional norms will encourage others to also respect free speech.

Walter Olson has more on the federal funds aspect of all this.

On Friday, February 3, at noon, Cato will host a discussion of President Trump and free speech. You can register here or walk in tomorrow.   

Thrown in Jail for Surfing the Web

Lester Packingham beat a parking ticket and celebrated on his Facebook page by proclaiming, “God is good! … Praise be to GOD, WOW! Thanks JESUS!” For this post, he was sentenced to prison—because he was a registered sex offender and a North Carolina statute bans such people from accessing a wide variety of websites. (Packingham took “indecent liberties with a minor” when he was 21, receiving a suspended sentence and probation, which he had completed.)

The law is meant to prevent communications between sex offenders and minors, but it sweeps so broadly that it conflicts with basic First Amendment principles. It doesn’t even require the state to prove that the accused had contact with (or gathered information about) a minor, or intended to do so, or accessed a website for any other illicit purpose.

After the state court of appeals overturned Packingham’s conviction—finding the criminal “access” provision unconstitutional—the North Carolina Supreme Court, over vigorous dissent, reversed and reinstated the conviction and sentence. The U.S. Supreme Court took the case and now Cato, joined by the ACLU, has filed an amicus brief supporting Packingham’s position.

The North Carolina law bans access not just to what people consider to be social-media sites, but also any sites that enable some form of connection between visitors, which would include YouTube, Wikipedia, and even the New York Times. The statute is also vague, in that it covers websites that “permit” minor children to create profiles or pages—and you can’t even find out what a website “permits” without first looking at its terms of service—itself a violation of the statute. Even if the site purports to stop minors from accessing its content, it’s impossible for someone to know whether and how that contractual provision is enforced in practice. Someone subject to this law literally can’t know what he can’t do or say; the police themselves aren’t sure!

The statute also fails constitutional scrutiny because it criminalizes speech based on the identity of the speaker. It’s well established that a state may not burden “a narrow class of disfavored speaker,” but that’s exactly what happens here. The very purpose of the First Amendment is to protect the speech of disfavored minorities—which sex offenders certainly are. Signaling out this speech for prosecution—without any allegation that it relates to conduct or motive—should earn the Tar Heel State a big “dislike” from the Supreme Court.

The Court hears argument in Packingham v. North Carolina on February 27.

“Only Progressives Need Apply”

William Felkner was a student at Rhode Island College, a state school, studying social work. The school’s faculty explained that as a profession “we do take sides” and are “devoted to the value of social and economic justice.” Accordingly, the professors required the students to lobby the state legislature for progressive policies.

But Felkner didn’t hold these same progressive views. When he refused to espouse the political ideology that was required, he was given failing grades and dismissed from the program. But of course the First Amendment has long been understood to prohibit the government from compelling an individual to espouse a political opinion with which he or she disagrees. Despite this, the lower state court actually upheld the school’s action, finding that no constitutional rights had been violated.

Cato has now joined the Foundation for Individual Rights in Education and the National Association of Scholars on an amicus brief to the Rhode Island Supreme Court, arguing that constitutional rights don’t stop at the schoolhouse door. The foundational case in this area was one in which the U.S. Supreme Court held the requirement to salute the flag in public schools was unconstitutional.

While the lower court here had held there was no evidence that Felkner was required to lobby, this holding is specifically refuted by the professor’s testimony. When asked, “So, in other words, the school was going to tell them which position they had to lobby on?”, he answered, “Yes.” The trial court also improperly focused on precedent at the primary and secondary school level rather than a post-secondary institution like Rhode Island College.

This precedent was about in-classroom speech—that teachers can maintain decorum in the classroom and require certain recitations as a means of instruction—but the trial court misapplied it to a requirement to lobby publicly in a context in which the student would be presumed to be speaking for himself. The trial court also misapplied precedent about speech which implicitly bore the approval of the school. While a school can properly restrict children’s speech that the public might reasonably perceive to be the school’s speech, it can’t require students to profess a certain political ideology—and there’s even less leeway if the students are adults.

In Felkner v. Rhode Island College, the Rhode Island Supreme Court should protect the First Amendment rights of students from being compelled to advocate policies with which they disagree as a condition of maintaining their standing at the school and progressing towards a degree.

Crazy Law Allows “Discounts” for Cash but Not “Surcharges” for Credit

In Federalist 10, James Madison warned of “a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens or to the permanent and aggregate interests of the community.” These groups—“factions” in Madison’s terms—come together to seek concentrated benefits from favorable legislation and regulation rather than competing in the marketplace, while spreading the costs throughout society.

While Madison conceded that such interests could not be stopped completely, he acknowledged that certain steps could be taken to mitigate the “effects” of these groups, and the damage that they can do to the public interest. The First Amendment is one such protection. The New York legislature, however, ignored the First Amendment rights of both merchants and consumers when—at the behest of the credit-card lobby—it passed a law restricting how retailers can convey pricing schemes, as well as the public’s right to know about them. 

New York’s no-surcharge law—like those in 10 other states—insulate credit-card companies from consumer knowledge about who is actually causing the higher prices on goods when they use their credit card (“swipe fees”). The law does this not by restricting the merchants’ ability to charge different prices as between cash and credit payments—that’s legal everywhere—but by regulating the communications regarding the different prices.

To put it simply: the law allows merchants to offer “discounts” to cash-paying customers, but makes it a crime to impose economically equivalent “surcharges” on those who use plastic. By mandating how these merchants convey their pricing structure, New York is restricting speech on the basis of its content, which would seem to be an obvious First Amendment violation.

A federal district court agreed—as have two other federal courts, including the U.S. Court of Appeals for the Eleventh Circuit when it struck down a similar Florida law. The district court held that the law “plainly regulates speech”—not conduct—by drawing a line between prohibited “surcharges” and permissible “discounts” based solely on words and labels. The Second Circuit disagreed, however, holding that the law regulates “merely prices,” not speech.

Cato has now filed an amicus brief urging the Supreme Court to take up this important case and rule that collusion between business interests and state government can’t be used to circumvent constitutional rights. Indeed, the Framers sought to protect speech from the type of crony capitalism New York’s no-surcharge law manifests. We also argue that the Court should clarify that the First Amendment covers speech even if it involves commercial matters. When legislatures abridge these protections, judges should apply the highest form of scrutiny to these laws rather than limply deferring to majoritarian will. 

The Supreme Court will decide later this month, or possibly this fall, whether to take up Expressions Hair Design v. Scheniderman.

Thanks to former Cato legal intern Frank Garrison, who’ll be starting as a legal associate later this summer, for help with this brief.

Rights in the Balance

The right to swing my fist ends where the other man’s nose begins.

The saying, it turns out, has some of its pedigree in Prohibition, during which the right to serve drinks was said to interfere with the rights of the family. But misapplication to “group rights” aside, it’s a phrase that captures our system of rights well. You are (or should be) free to do whatever you wish, so long as you don’t injure others in their rights.

You can see society hammering out the dividing line between rights in a case that produced a jury verdict last Friday: Hulk Hogan vs. Gawker. The provocative website published a mid-2000 video of the former wrestler and TV personality having sex with a friend’s wife. Hogan sued and won a verdict of $115 million, which Gawker will appeal.

The argument on Hulk’s side is that public exposure of a person’s intimate moments and bodily functions violates a right to privacy. The free speech argument is that a person has a right to broadcast and discuss anything he or she pleases.

These are both important rights. The privacy right is a little younger, having developed since about 1890. The free speech right pre-existed its 1791 acknowledgement in the Bill of Rights, so speech has a stronger heritage. But the dividing line will never be decided once and for all. Common practices and common mores will set and reset the line between these rights through accretion and erosion, the way a winding river divides a plain. That way of producing rules is very special: common law courts deciding in real cases what serves justice best.

Whatever Happened to the Left’s Love of Free Speech?

There was a time in America when the Left could be counted on to defend free speech. But as countless examples today demonstrate, those days are long gone. From campus speech codes to campaign finance to prosecutorial threats against climate change critics and more, the evidence is as fresh as this morning’s newspapers.

Campus assaults have been so well documented by the Foundation for Individual Rights in Education (FIRE) that they need no elaboration here. But the latest campaign finance “reform”—“until the court reverses its decision in Citizens United”—can be found championed in an op-ed in this morning’s Washington Post by such stalwarts of the Left as Yale Law School’s Bruce Ackerman and Ian Ayers. On Tuesday last, it seems, Seattle voters approved a measure that would “give” each registered voter a $100 “democracy voucher” that could be spent “for only one purpose—to support their favorite candidates for municipal office.” The city can of course “give” that $100 voucher only if it first “takes” the $100 from its taxpayers, which it will do in all the unequal ways that modern tax systems exhibit. Thus is the political speech of private individuals reduced by forcing the funds they might otherwise direct to candidates of their choice to be redirected through this public funding scheme to candidates they may oppose.

But that inroad on free speech pales in comparison to recent attacks on what most Americans would have thought were the free speech rights of climate skeptics, the RICO-ing of whom my colleague Walter Olson has been covering—along with the machinations of New York Attorney General Eric Schneiderman. The latest from the latter is all over the papers today, the Post’s headline reading “Exxon investigated over climate change research.” The Left has already browbeaten Exxon Mobil into ending its funding for think tanks and advocacy organizations that express climate change skepticism. Now, however, it’s getting more serious, with Schneiderman issuing a subpoena that focuses, we’re told, “on whether Exxon Mobil intentionally clouded public debate about science and hid from investors the risks that climate change could pose to its business.” “Clouded?” What, a debate that is crystal clear? That of course is what the environmental establishment would like as to believe.

And circling back to the academy, so too, apparently, would one Naomi Oreskes, a professor of the history of science at Harvard University and a critic of Exxon who laments that we haven’t yet implemented a carbon tax. There are many reasons we haven’t, she tells the Post, but a significant one “is the role of Exxon Mobil and others in fomenting disinformation, undermining public support for such initiatives, and lobbying against policies that would have begun to decrease our fossil fuel dependency.” And this from a professor of the history of science, the annals of which are littered with the corpses of “settled science.” Clearly, if we don’t stop this speaking and lobbying, we could have one more corpse.

Predicting the Return of ‘The Final Frontier’

It’s not often that a regulatory policy analyst correctly predicts a pop culture development a decade out, so…

Back in the spring of 2005, law professor Christopher Yoo (then at Vanderbilt, now at Penn) argued in Regulation that the Federal Communications Commission should liberalize its “structural regulations”—controls on such things as how the broadcast spectrum can be used, cable TV rates, ownership of different media outlets in a geograpic market, etc. He explained that those controls limit the diversity of voices and programming in mass media, making it mainstream-directed, because such programming is most profitable under those rules.

About the time his article appeared, the now-defunct UPN Network announced its cancellation of the series Star Trek: Enterprise, the most recent TV installment of the Star Trek franchise. The reason was low ratings; Trek fans are fervant and typically middle to upper class, but they were not a big enough market segment for UPN and its desired advertisers. However, those characteristics made the fans an ideal market for a paying-subscriber-supported Star Trek—something that Yoo’s reforms would have allowed, but FCC regulations prohibit.

Seeing the news hook, Yoo and I wrote an op-ed for the San Francisco Examiner explaining all this and concluding

Hopefully, if the “Star Trek” series gets yet another revival, it will be in a mass communications environment where niche shows have a better chance to live long and prosper.

Unfortunately, the FCC hasn’t adopted the reforms we envisioned (if anything, going in the opposite direction). But human innovation—both in technology and business—often finds ways around government barriers.

This week, the CBS Network announced that a new Star Trek series will launch in January 2017, exclusively on CBS’s Internet-delivered subscriber service All Access. The move will attempt to do exactly what Yoo and I foresaw: tap the Trek fanbase to see if it is a viable market for the show.

It can’t be said that CBS is boldly going where no one has gone before. Cable and satellite services, premium channels like HBO and Starz, and streaming services like Hulu and Netflix have already entered the final frontier of subscriber-supported content, delivering high-quality but niche-audience new programming such as original series Game of Thrones and House of Cards, reboots like Battlestar Galactica, and network-cancelled series like The Mindy Project. They can do this, in part, because they can escape many of the FCC’s diversity-dampening regulations—for now at least. 

Unfortunately, the FCC hovers as menacingly as a Romulan starship, as evidenced by the recently adopted net neutrality regulations. Still, let’s hope that CBS’s new venture lives long and prospers.

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