Tag: free speech

Minnesota Not-Nice

The First Amendment right to free speech extends far beyond just verbal expression. Some of the most iconic First Amendment cases have concerned the right to make silent but powerful statements, such as wearing a black armband to protest a war, Tinker v. Des Moines (1969), or an impolite shirt to protest the draft, Cohen v. California (1971). As these cases have recognized, what we choose to wear often plays an important role in how we express ourselves.

But in Minnesota, such personal expression has been unjustifiably prohibited. The state completely bans the wearing of any “political badge, political button, or other political insignia” in or around the polling place on election day. When several Minnesota citizens attempted to vote wearing clothes expressing support for the Tea Party movement or buttons reading “Please I.D. Me,” they were told that such apparel violated the law. They sued to overturn the law, but their challenge has twice been rejected by the U.S. Court of Appeals for the Eighth Circuit.

Now those voters have appealed to the Supreme Court. On the eve of our nation’s independence day, Cato, joined by the Rutherford Institute, Reason Foundation, and Individual Rights Foundation, has filed an amicus brief supporting that petition.

We explain just how startlingly far Minnesota’s statute extends. Anything from the word “occupy” to the peace symbol to a donkey or elephant might be construed as a “political insignia,” thereby running afoul of the law. Further, the statute gives election judges the power to ban any materials “promoting a group with recognizable political views.” That means Minnesota voters can’t even feel safe wearing shirts supporting the ACLU, NAACP, or their local union.

Campus Speech and Progressivism

Jeffrey Herbst, the President and CEO of the Newseum, recently released a report about free speech on campus. It is brief and well worth reading.

Herbst believes we are missing the major problem exposed by recent attacks on free speech at universities.

Systematic public opinion polling and anecdotal evidence suggests, however, that the real problem of free expression on college campuses is much deeper than episodic moments of censorship: With little comment, an alternate understanding of the First Amendment has emerged among young people that can be called “the right to non-offensive speech.” This perspective essentially carves out an exception to the right of free speech by trying to prevent expression that is seen as particularly offensive to an identifiable group, especially if that collective is defined in terms of race, ethnicity, gender, or sexual identity. The crisis is not one of the very occasional speaker thrown off campus, however regrettable that is; rather, it is a generation that increasingly censors itself and others, largely silently but sometimes through active protest.

Many people believe university students have adopted a “right to non-offensive speech” under the influence of their leftwing professors who are hostile to libertarian values. But Herbst shows that high school students and their teachers are equally doubtful about protecting speech that offends. He notes, “young adults come to campus with some fairly well-developed views that explain much of what subsequently occurs as they confront challenging speech.”

Jeffrey Herbst notes that young people support free speech in theory but not, as we have seen with Murray and others, in particular cases. In the past polls showed that while the First Amendment in the abstract received near unanimous support, its applications to unpopular speakers sometimes failed to attract a majority. Maybe the boomers were different, and young people now are returning—ironically enough—to views held by pre-boomers.

China’s War on Free Speech

China’s market economy with socialist characteristics rose from the ashes of Mao Zedong’s failed experiments with central planning. Under that repressive regime, private enterprise was outlawed and individuals become wards of the state. When Deng Xiaoping became China’s paramount leader, he abandoned Mao’s class struggle as the centerpiece of the Chinese Communist Party (CCP) and embarked on economic liberalization. There was hope that greater freedom in trading goods and services would also lead to a freer market in ideas.

That hope was dashed when troops cracked down on protesters in Tiananmen Square on June 4, 1989. Deng’s famous “Southern Tour” in 1992 resumed economic reform—and China has become the world’s largest trading nation—but protectionism in the market for ideas remains intact. Under President Xi Jinping, who advocates globalization but has cracked down on the free flow of information, China has become less free. 

In the just released World Press Freedom Index, published by Paris-based Reporters sans Frontières (RSF), China is ranked 176 out of 180 countries, just a few notches above North Korea—and President Xi is referred to as “the planet’s leading censor and press freedom predator.” In preparation for the 19th CCP Congress later this year, there has been an uptick in the war on free speech. 

Don’t Compel Doctors to Promote State-Favored Programs

Like all states, California has licensed medical centers of every kind. One particular type, often known as a “crisis pregnancy center,” provides pregnancy-related services with the goal of helping women to make choices other than abortion. Based on opposition to these centers, the California legislature enacted a law requiring licensed clinics “whose primary purpose is providing family planning or pregnancy-related services” to deliver to each of their clients the following message: “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women.” But the law also creates an exception for clinics that actually enroll clients in these programs—so, in effect, it applies only to clinics that oppose the very program they must advertise.

Several of these crisis pregnancy centers sued to block the law, arguing that it violated their First Amendment rights by forcing them to express a message to which they are opposed. But the U.S. Court of Appeals for the Ninth Circuit upheld the law, holding that it regulates only “professional speech” and therefore should be reviewed under a more deferential standard, rather than the normal strict judicial scrutiny that applies to laws compelling speech. The centers have petitioned the Supreme Court to review their case; Cato has filed a brief supporting that petition.

Internet Speech 2016: More Regulation Needed?

Election law expert Nathaniel Persily has written an interesting article about the Internet and the 2016 election. The problems Nate (and others) see in 2016 will inform the debate about free speech now and in future elections.

Persily notes that the 2016 campaign saw an “online explosion of campaign-relevant communication from all corners of cyberspace.” Here’s his description of the Trump campaign’s social media efforts:

Employing traditional web-based communication, event promotions, new apps, native advertising (in which web ads are designed to look like articles in the publication containing them), and new uses of social media, the campaign launched 4,000 different ad campaigns and placed 1.4 billion web impressions (meaning ads and other communications visible to individual users)…the campaign targeted 13.5 million persuadable voters in sixteen battleground states, discovering the hidden Trump voters, especially in the Midwest, whom the polls had ignored.”

Trump himself tweeted a great deal, having 13 million followers by election day. But the mainstream media also picked up the tweets and prompted wide discussion and attention to them. Trump garnered about $4 billion in free media during the primaries and the general election, an astonishing sum. The new media thus drove the agenda for the mainstream media; in the past, the latter shaped the agenda for everyone.

From a First Amendment perspective, 2016 saw more speech by more people than previous elections. The election also showed that you can win the White House without dominating fundraising, an outcome that weakens the case for campaign finance regulation. Both results seem good for free speech.

However, Nate Persily is a learned and sensible analyst, and his concerns about 2016 merit our attention.

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.

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