The First Amendment: Freedom of Speech, Religion, & Assembly

[Crafty_Dog]

Barret's opinion is quite unsound, and Alito's dissent is dead on.

https://www.law.cornell.edu/supremecourt/text/23-411

[DougMacG]

Barret's opinion is quite unsound, and Alito's dissent is dead on.

https://www.law.cornell.edu/supremecourt/text/23-411

Barrett has been quite a disappointment - unless I'm missing something.  I will have to read the whole thing, thank you for the link.

I don't care that they will rule half the time against our politics.  I care that they don't uphold our constitutional principles.  The war on free speech has to be stopped.

[Crafty_Dog]

I could be wrong, but I sense she was, and is, intimidated by the threats of court packing.

[Crafty_Dog]

Murthy Wounds, but Doesn’t Kill, Free Speech on Social Media
The ruling was limited to whether the plaintiffs had standing to sue. RFK Jr. has a much stronger case.
By Jed Rubenfeld
June 27, 2024 5:04 pm ET




The Supreme Court’s Wednesday ruling in Murthy v. Missouri is being touted as a vindication of the Biden administration’s highly successful efforts to induce social media platforms to censor disfavored speech. The ruling is no such thing. The court’s opinion was based solely on standing, leaving the door wide open for other parties, with firmer standing, to continue the fight. And the three justices who reached the merits found that the First Amendment had very likely been violated.

In Murthy, two states and five individuals sued the federal government for pressuring and colluding with Facebook, YouTube and other giant social-media platforms to suppress protected speech. Discovery in the case, together with independent investigations such as the Twitter Files, revealed a yearslong multiagency federal effort to induce the platforms to censor specific individuals, facts and opinions the government didn’t want people to hear. While the censored content was invariably described as “misinformation,” it included wholly accurate reporting as well as legitimate opinion, such as the original Hunter Biden laptop story and assertions that Covid might have originated in a Chinese lab.

The district court, finding what it called “arguably the most massive attack on free speech in United States history,” issued a preliminary injunction halting the government’s censorship campaign. The Fifth U.S. Circuit Court of Appeals largely affirmed that injunction. The Supreme Court, however, reversed it in a six-justice majority opinion.

But the majority held only that the plaintiffs lacked standing and didn’t reach the merits of their claim. The two state plaintiffs had asserted parens patriae standing—the authority to sue on behalf of their citizens—but the court reaffirmed that states have no such standing in suits against the federal government. As to the five individual plaintiffs, while they showed they had been censored in the past, the court found that they couldn’t prove that they were likely to be censored in the future. Because they sought injunctive relief and not money damages, past injury wasn’t enough to establish standing.

These rulings weren’t unexpected. At oral argument, several justices telegraphed their skepticism about standing. Writing in these pages in January 2023, I warned that the Murthy case might be kicked out of court on just these grounds. But the plaintiffs’ lack of standing doesn’t mean that no one has it. The Murthy opinion points to two kinds of cases as stronger candidates for standing.

First would be suits brought directly against the platforms. According to the court, the “one-step-removed” nature of the plaintiffs’ claims in Murthy—suing the government for censorship actions taken by the platforms—made it harder to establish standing. In numerous pending cases, plaintiffs have directly sued the platforms for working in partnership with the government to censor speech. In these cases, the platforms have frequently argued that the plaintiffs lack standing because they should have sued the government. After Murthy, lower courts should reject that argument.

Second, the Murthy majority emphasized that the plaintiffs in that case had demonstrated only past censorship against them and had failed to establish that they were specifically targeted for suppression by government officials. In other pending cases, plaintiffs should have no problem with these obstacles.

In Kennedy v. Biden, Robert F. Kennedy Jr. and a nonprofit, Children’s Health Defense, have sued federal officials on essentially the same grounds as did the Murthy plaintiffs. But unlike the Murthy plaintiffs, Mr. Kennedy and CHD are still being censored. CHD remains completely deplatformed from Facebook and Instagram. Moreover, government officials have repeatedly and specifically targeted both Mr. Kennedy and CHD by name when demanding more censorship from social-media platforms.

The plaintiffs won Kennedy v. Biden in the district court, which stayed its preliminary injunction pending the high court’s decision in Murthy. The government defendants have appealed the case to the Fifth Circuit, where they will undoubtedly argue that Murthy dictates reversal. It doesn’t. The Murthy majority opinion indicates that the Kennedy plaintiffs have a much stronger claim to standing and didn’t reach the question of the censorship campaign’s constitutionality. Only the three dissenting justices did, and they agreed that it is, in Justice Samuel Alito’s words, “blatantly unconstitutional.”

Murthy is a limited holding. American law doesn’t permit the government to get away with violating constitutional rights by making it impossible for anyone to seek redress in court. As Chief Justice John Marshall held in Marbury v. Madison (1803), “where there is a legal right, there is a legal remedy.”

Mr. Rubenfeld is a professor at Yale Law School and a First Amendment lawyer. He represents Robert F. Kennedy Jr. and the other plaintiffs in Kennedy v. Biden.

[Crafty_Dog]

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https://www.bizpacreview.com/2024/07/03/ny-times-straight-up-attacks-free-speech-the-first-amendment-is-out-of-control-1469919/?utm_campaign=bizpac&utm_content=Newsletter&utm_medium=Newsletter&utm_source=Get%20Response&utm_term=EMAIL


Supreme Court asks lower courts to reevaluate red states’ anti-censorship laws
July 1, 2024 | Katelynn Richardson |  Print Article
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Daily Caller News Foundation

The Supreme Court sent cases on whether two red state laws intended to prevent viewpoint-based censorship on social media violate the First Amendment back to lower courts on Monday.

The majority reversed two lower court rulings in cases brought by NetChoice, an internet trade group that sued Florida and Texas over the laws. NetChoice argued the states violated the First Amendment rights of platforms by compelling speech and preventing the companies from exercising editorial discretion.

“The parties have not briefed the critical issues here, and the record is underdeveloped,” Justice Elena Kagan wrote in the ruling. “So we vacate the decisions below and remand these cases. That will enable the lower courts to consider the scope of the laws’ applications, and weigh the unconstitutional as against the constitutional ones.”

In 2022, the 11th Circuit Court of Appeals blocked Florida’s law, which restricts platforms from banning political candidates and “journalistic enterprises.” However, the Fifth Circuit Court of Appeals later that year upheld Texas’ law, which prohibits platforms with over 50 million monthly U.S. users from censoring users or content based on viewpoint.

The Fifth Circuit found that corporations do not “have a freewheeling First Amendment right to censor what people say.”

Kagan wrote there is “enough litigation already to know that the Fifth Circuit, if it stayed the course, would get wrong at least one significant input into the facial analysis.”

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“The parties treated Facebook’s News Feed and YouTube’s homepage as the heartland applications of the Texas law,” Kagan wrote. “At least on the current record, the editorial judgments influencing the content of those feeds are, contrary to the Fifth Circuit’s view, protected expressive activity.”

Oral arguments for the NetChoice cases were held in February.

The Supreme Court ruled last week on another major First Amendment case, Murthy v. Missouri, reversing a lower court’s injunction preventing the Biden administration from “coercing or significantly encouraging” social media companies to suppress speech. The Court found 6-3 that plaintiffs who challenged the government’s efforts encouraging platforms to censor speech on hot-button issues like COVID-19 and the 2020 election did not have standing to sue, as they failed to “link their past social-media restrictions to the defendants’ communications with the platforms.”

In his dissent, Justice Samuel Alito slammed the majority for permitting “the successful campaign of coercion in this case to stand as an attractive model for future officials who want to control what the people say, hear, and think.” He called the government’s efforts “blatantly unconstitutional.”

In May, the Court unanimously allowed the National Rifle Association (NRA) to pursue its free speech lawsuit against former superintendent of the New York Department of Financial Services (DFS) Maria Vullo. The justices found the NRA had “plausibly alleged” the official violated its First Amendment rights, holding that government officials cannot “use the power of the State to punish or suppress disfavored expression.”

=================

1) The article mentions what seems to me to be a very important point: The concept of the Goolag (FB etc) being "common carriers" (e.g. a RR, a telephone company)-- the argument being that no more than the phone company can regulate what you say over its lines, FB cannot control/censor your thoughts.  On the whole, this seems to me a correct and dispositive argument.

2) Closely related to this is the cognitive dissonance of FB being a Publisher (hence editing control) with the legal protections of a Platform -- I refer to Section 720.

3) Then there is the AI issue. Like most folks (especially clueless Boomers like me) I don't really understand AI at all, but I gather that plenty of top level serious people in this stuff see deep Skynet dangers ahead-- including that people as a matter of heuristic thinking will become slaves to the AI by deferring to its judgments without any of us understanding even how it comes to them!

It does not at all seem irrational to me to think that AI does not get 1A protection.

[ccp]

https://recordinglaw.com/party-two-party-consent-states/

[Crafty_Dog]

Doubling this post from Doug on the SCOTUS here:

https://www.realclearpolitics.com/articles/2024/07/02/no_remedy_for_censorship_the_perils_of_murthy_.html

[Crafty_Dog]

HT BBG

===================

Not a fan of this site, but it’s the first place where I’ve read about this fix the DOJ will supposedly introduce:

Dept of Justice Promises to Declassify Standard Operating Procedure for Coordinating with Social Media Platforms

Just Security / by Justin Hendrix / Jul 26, 2024 at 10:04 AM

Co-published with Tech Policy Press.

After the US Supreme Court punted, just last month, on First Amendment questions concerning how U.S. law enforcement agencies should interact with social media companies, the Department of Justice is now days away from declassifying its operating procedures for handling such matters. That outcome is the result of a multi-year investigation by the Department’s Office of Inspector General (OIG), which released a report earlier this week.

Background

In late June, the Supreme Court ruled in favor of the Biden administration in Murthy v Missouri, a case that concerned whether the federal government violated the First Amendment rights of citizens by allegedly coordinating with social media platforms to remove disfavored speech. In a 6-3 ruling, the Supreme Court reversed the decision by the Fifth Circuit, finding that the plaintiffs did not have standing to bring the case, since the evidence failed to connect any specific moderation decision by the platforms to inappropriate government influence.

The case’s path to the Supreme Court started on May 5, 2022, when Missouri Attorney General Andrew Bailey filed a lawsuit accusing Biden administration officials of either coercing or colluding with tech companies in a “coordinated campaign” to remove disfavored content. Among the defendants named in the suit were the Section Chief of the Federal Bureau of Investigation’s Foreign Influence Task Force (FITF), and a special agent in the San Francisco division of the FBI who regularly interacted with social media platforms. The suit alleged that “communications” that influenced Meta’s decision to temporarily limit the propagation of a story about Hunter Biden’s laptop ahead of the 2020 election emerged from the FITF.

The allegations in the suit sparked a wave of congressional investigations, and while its most lurid claims turned out to be flimsy or bogus on inspection, fair-minded experts generally agree that there should be clearer rules about how social media platforms interact with the federal government, particularly when it comes to law enforcement, security, and intelligence agencies. Missouri’s Attorney General was likely unaware at the time he filed his suit that the Justice Department’s Inspector General had already initiated a probe to look into the subject. This week, the OIG published the result of its effort in a report titled, “Evaluation of the U.S. Department of Justice’s Efforts to Coordinate Information Sharing About Foreign Malign Influence Threats to U.S. Elections.”

The Next Phase

The report says that OIG’s goal was to assess the effectiveness of the Justice Department’s system for sharing information related to “foreign malign influence directed at U.S. elections,” to evaluate “the Department’s oversight and management of its response,” and to help streamline or otherwise improve the department’s processes. The evaluation, which included fieldwork that commenced in October 2021 and concluded in April 2023, focused on “information sharing with social media companies to evaluate the aspect of the Department’s information-sharing system that the FITF developed following foreign malign influence directed at the 2016 U.S. presidential election.” During that election cycle, a substantial campaign by the Russian government gave rise to concerns over social media platforms as a vector for foreign influence.

The OIG report found that while the FBI had developed an “intelligence sharing model” (depicted in a graphic reproduced below) involving various actors in US law enforcement and intelligence communities and social media companies, there was in fact a significant gap in policies and guidance governing interactions between the government and the platforms. Until February 2024, when the OIG report says the Department of Justice issued a new standard operating procedure (SOP), there was no formal policy, which the OIG says created potential risks such as the perception of coercion or undue influence over private entities and, in turn, the speech of American citizens. The SOP, which is contained in a classified document, sets criteria for determining what constitutes foreign malign influence, lays out supervisory approval requirements for investigating it, and provides standard language for disclosures and guidance on engagement with social media companies, according to the OIG report.

While the OIG says that the operating procedure is an improvement, it notes the information’s classified nature is a drawback. “Because DOJ’s credibility and reputation are potentially impaired when its activities are not well understood by the public, we recommend that the Department identify a way that it can inform the public about the procedures it has put into place to transmit foreign malign influence threat information to social media companies in a manner that is protective of First Amendment rights,” the report says.

The report also notes that DOJ lacks “a comprehensive strategy guiding its approach to engagement with social media companies on foreign malign influence directed at U.S. elections,” a circumstance that resulted “in varied approaches to its information-sharing relationships with social media companies depending on where those companies were based,” a particular problem when firms are foreign-owned or located outside of the US.

While the OIG found that the FBI’s model for tracking foreign influence and sharing that information with social media companies primarily relied on identifying foreign actors rather than monitoring for specific types of content, the report does note that there were instances where the FBI did share “content” information, such as specific posts, with social media companies in order to alert them to specific themes or narratives that foreign actors intended to promote. This is a particularly fraught area, as it opens the door to the types of risks that were at the core of the original complaint in Murthy v Missouri.

The OIG report makes two recommendations “to address risks in DOJ’s mission to combat foreign malign influence directed at U.S. elections,” including that the department:

1. Develop an approach for informing the public about the procedures the Department has put into place to transmit foreign malign influence threat information to social media companies that is protective of First Amendment rights.

2. Develop and implement a comprehensive strategy to ensure that the Department of Justice’s approach to information sharing with social media companies to combat foreign malign influence directed at U.S. elections can adapt to address the evolving threat landscape.

The DOJ’s response to the OIG report, located in an appendix, notes that the department concurs with the first recommendation, and plans to address it “by making publicly available a detailed summary version of the SOP and posting that summary on DOJ’s website by July 31, 2024.” The response notes that the SOP emerged from the development of “a standardized approach” to sharing information on foreign influence operations that kicked off after the Supreme Court issued a stay of the Fifth Circuit injunction that temporarily prohibited contact between agencies such as the FBI and social media firms.

DOJ also concurred with the second OIG recommendation, and plans to address it with “additional actions by August 31, 2024,” including:

Development and Release of Strategic Principles. DOJ will set forth in a public manner the principles reflecting DOJ’ s strategy for sharing FMI information with social media companies to combat the evolving threat landscape.

Resumption of FBI’s Regular Meetings with Social Media Companies. As part of that strategy, FBI will resume regular meetings in the coming weeks with social media companies to brief and discuss potential FMI threats involving the companies’ platforms. FBI will conduct these meetings-as FBI did before pausing the meetings in summer 2023 due to the now-vacated Missouri injunction (see infra at 5)–in a manner that is entirely consistent with applicable first Amendment principles. As has been FBI’ s practice, FBI will conduct these engagements with social media companies located across the country, depending on the circumstances and nature of the potential threats.

Outreach by FBI Field Offices, to Social Media Companies. FBI will instruct FBI Field Offices in the coming weeks to conduct outreach– in coordination with the FBI’s Foreign Influence Task Force (FITF)– to any identified social media companies located in their areas of responsibility, to develop contacts at those companies and ensure they are aware of the SOP and DOJ’ s overall approach for engaging with social media companies regarding FMI threat information.

Engagements by Senior Officials. In the coming months, senior DOJ officials will highlight and explain, during public engagements with relevant stakeholders and the public, DOJ’s strategy for information sharing with social media companies to combat FMI directed at our elections.

Launch of DOJ Website Page. DOJ plans to launch a new section on its website dedicated to ensuring public awareness of DOJ’s strategy for engaging with social media companies regarding FMI. The website page will collect and highlight in a single location relevant resources, guidance, and other materials, including the summary of the SOP discussed above.

The OIG report notes that the relationship between the FBI and social media companies has been successful in disrupting multiple campaigns by foreign actors to interfere in US elections. Whether the DOJ, FBI, and other security and intelligence agencies can effectively quell public fears not about foreign interference but rather about their own government’s interference in elections is an open question; certainly, these recommendations and the DOJ’s responsiveness to them should help.

The post Dept of Justice Promises to Declassify Standard Operating Procedure for Coordinating with Social Media Platforms appeared first on Just Security.

https://www.justsecurity.org/98164/fbi-social-media-foreign-influence/?utm_source=rss&utm_medium=rss&utm_campaign=fbi-social-media-foreign-influence
Modify message

[ccp]

https://www.newsmax.com/politics/newsguard-rate-censor/2024/07/28/id/1174248/


https://en.wikipedia.org/wiki/NewsGuard

Of course:

https://en.wikipedia.org/wiki/Steven_Brill_(journalist)

https://en.wikipedia.org/wiki/Tom_Glocer

https://www.wikiwand.com/en/L._Gordon_Crovitz

All Yale law grads.
One related to WSJ but the others left wing media

formed Newsguard to "fight fake news".

Did they contact CNN and MSNBC to make them warn viewers they are an ultra DNC fake news outlet?

Of course not.

[Crafty_Dog]

https://nypost.com/2024/08/10/media/uk-police-commissioner-threatens-to-extradite-jail-us-citizens-over-online-posts-well-come-after-you/?fbclid=IwY2xjawElb35leHRuA2FlbQIxMAABHUtPn8fkKYhwHND7M5X7Uxhq_i_ETLLe2g-HJpXaolRLunbKs7sYGdSn_w_aem_x2hTyJ0-YUsLEBv1jyGURA

[Crafty_Dog]

https://amgreatness.com/2024/08/12/eu-commissioner-threatens-to-use-full-toolbox-of-measures-against-elon-musk-over-trump-interview/

[Crafty_Dog]

https://x.com/SenRandPaul/status/1818662412029252064

[Crafty_Dog]

Note well the role of standing in Murthy v MO and contrast it here with RFK getting standing

https://www.theepochtimes.com/us/judge-rules-rfk-jr-can-bring-lawsuit-against-federal-agencies-in-censorship-case-5710934?utm_source=Goodevening&src_src=Goodevening&utm_campaign=gv-2024-08-23&src_cmp=gv-2024-08-23&utm_medium=email&est=AAAAAAAAAAAAAAAAYvAqcwcVzc7PzLYPrHFRB710wA0AIj31kx5JTWZu9FddhEg4S8RP

[DougMacG]

Is it your read in Murthy that specific people that were censored and harmed needed to be the plaintiffs?

[Crafty_Dog]

I confess to not having actually read it  but working from what I read here, yes.

[Crafty_Dog]

https://dailycaller.com/2024/08/26/jonathan-turley-slams-global-censors-telegram-founder-pavel-durov-arrest-fox-news/

[Body-by-Guinness]

https://dailycaller.com/2024/08/26/jonathan-turley-slams-global-censors-telegram-founder-pavel-durov-arrest-fox-news/

Lovely to see Hilliary "Cankles" Clinton chiming in to support censorship, and hardly surprising.

[Crafty_Dog]

That Kamala Harris Video and Censorship
Even after the fact checks, her comments were at war with the First Amendment.
James Freeman
Sept. 3, 2024 6:46 pm ET


In a widely viewed post on X, Robert F. Kennedy Jr. falsely describes the context of a video clip in which Kamala Harris talks about silencing someone with whom she disagrees. Once one understands the accurate context, her comment is just as appalling.

Mr. Kennedy’s mistake is in presenting the video as depicting our vice president describing why she thinks Elon Musk and his X media platform should be denied the right to free speech. In fact it’s a clip from 2019 in which Ms. Harris was trying to silence President Donald Trump and trample on First Amendment rights across all social media platforms.

Back in 2019 X was still called Twitter. Here’s what Ms. Harris told CNN about her campaign to pressure Twitter to turn off Mr. Trump’s account:

He has lost his privileges and it should be taken down. And the bottom line is that you can’t say that you have one rule for Facebook and you have a different rule for Twitter. The same rule has to apply, which is that there has to be a responsibility that is placed on these social media sites to understand their power. They are directly speaking to millions and millions of people without any level of oversight or regulation, and that has to stop.
Government must regulate speech across all media platforms and dictate one set of rules for what people are permitted to say? This is a proposal for a frontal assault on the First Amendment, and a great reason for voters not to grant Ms. Harris the promotion she now seeks. Why most media outlets have not regarded her authoritarian message as disqualifying for the presidency is a question for another day. But it’s important that Mr. Kennedy’s error not obscure the danger to liberty expressed by a candidate in her own words.

In 2019 Ms. Harris was speaking to CNN’s Jake Tapper right after the network had hosted a Democratic presidential candidates debate in Westerville, Ohio. News consumers may recall Sen. Elizabeth Warren as among the most aggressive proponents of giant, overbearing government in that primary race. But that night’s drama featured Ms. Warren resisting as Ms. Harris badgered her again and again to agree that Twitter should disable the sitting president’s account. Here’s an excerpt from CNN’s transcript, as Sen. Warren was given a chance to respond to Ms. Harris:

WARREN: So, look, I don’t just want to push Donald Trump off Twitter. I want to push him out of the White House. That’s our job.
HARRIS: Well, join me — join me in saying that his Twitter account should be shut down.
WARREN: But let’s figure — no. Let’s figure out…
HARRIS: No?
WARREN: … why it is that we have had laws on the books for antitrust for over a century, and yet for decades now, we’ve all called on how the big drug companies are calling the shots in Washington, big ag, how the gun industry, big tech — you know, we really need to address the elephant in the room, and that is how campaigns are financed.
HARRIS: You can’t say you’re for corporate responsibility if it doesn’t apply to everyone.
WARREN: I announced this morning — I announced this morning that I’m not going to take any money from big tech executives, from Wall Street executives. We’ve already agreed, Bernie and I, we’re not taking any money from big pharma executives.
Ms. Harris continued demanding that Sen. Warren endorse censorship of their chief political rival while the Massachusetts senator continued trying to change the subject. At one point questioner Marc Lacey of the New York Times tried to bring another candidate into the discussion but Ms. Harris said, “I’m not finished. I’m not finished.” She then continued to demand Ms. Warren’s assent in censorship, as the Massachusetts senator continued to resist.

Can you imagine a federal government so large and so contemptuous of constitutional liberty that Elizabeth Warren is the voice of restraint and the bulwark protecting individual rights?

Don’t say you haven’t been warned about Kamala Harris.

Her argument for shutting down the Trump account rested on an outrageous claim tying him to an El Paso shooting for which he was not responsible, and another bogus claim that criticizing the purported “whistleblower” that House Democrats would use for their partisan first impeachment amounted to threatening a witness. That night in Ohio, even CNN’s Mr. Tapper sounded skeptical:

TAPPER: So, without disputing that, let me ask you, but then there’s a slippery slope, right? I mean, does that mean anybody who writes about the whistleblower, anybody who questions the credibility of the whistleblower, that they shouldn’t have their articles, their statements on Twitter read also? I mean, that’s where it all starts heading.
HARRIS: I think that is a fine conversation for a law school debate, but that’s not what we’re talking about. We’re talking about actual words issued by the president of the United States, unfiltered, which have clearly been threatening the life of witnesses to what might be a crime.
She didn’t say which actual words she considered a threat and of course there was no actual crime established in the Democrats’ partisan first impeachment effort, which ended with acquittal in the Senate in early 2020.

Kamala Harris didn’t want Mr. Trump to be able to defend himself in the public square. And that should concern every American, whether they support Mr. Trump or not.

***

James Freeman is the co-author of “The Cost: Trump, China and American Revival” and also the co-author of “Borrowed Time: Two Centuries of Booms, Busts and Bailouts at Citi.”

[Crafty_Dog]

https://tuckercarlson.com/the-douglass-mackey-interview

[Crafty_Dog]

https://www.foxnews.com/media/hillary-clinton-called-out-suggesting-americans-should-arrested-over-disinformation-quite-chilling

[Crafty_Dog]

https://www.thegatewaypundit.com/2024/09/john-kerry-derides-first-amendment-as-major-roadblock/

[Body-by-Guinness]

The fact a mainstream, albeit unctuous, pol would flat out call for riddance of 1st amendment protections shows us just how far we've veered from the founding principles of the nation. 20 years ago this speech would have been political suicide. These days, "Progressives" smile and nod while their media handmaidens take aim at their foot and start fingering the trigger:

https://pjmedia.com/benbartee/2024/09/29/watch-john-kerry-literally-calls-for-end-of-first-amendment-speech-rights-n4932924

[Crafty_Dog]

UNC Tries to Create a ‘Free-Speech Culture’
Jed Atkins, head of the Chapel Hill campus’s new School of Civic Life and Leadership, wants to teach students to be tolerant, in an old-school way.
By Barton Swaim
Oct. 4, 2024 3:32 pm ET


Why American politics in the 21st century is marred by incivility and mistrust is the subject of more books and essays than any normal person would wish to read. The premise underlying most of them is that it’s a left-right problem: The right hates the left and the left hates the right, only the reasons for the hatred vary according to the author.

But what if it isn’t a left-right problem at all? What if the acrimony and loathing that animate our politics have more to do with class than ideology, more to do with educational status than any set of views on culture and policy?

The assumption that the nastiness of our politics is chiefly a matter of warring ideologies wouldn’t explain, for one thing, the mindless rage currently evident on elite campuses. These are places dominated by a confederation of left-progressive worldviews, yet the acrimony issuing from them is ferocious: occupations of quads and academic buildings, chanting mobs in the grip of antisemitic lunacy, assaults on Jewish students, flag-burning exhibitionism, dizzying varieties of “intersectional” preoccupations glomming onto the cause of anti-Zionism, and on and on.

Ordinary Americans don’t behave this way. A not insignificant number of students and faculty at the country’s finest universities do. The conclusion would seem to be unavoidable that elite higher education is failing in its duty to convey to students a sense of the world’s moral and political complexity and the necessity of humility in trying to interpret it. America’s leafy campuses are instead turning out large numbers of graduates who hold insane political views and detest anyone who doesn’t share them.

An awareness of this state of affairs recently led the trustees of the University of North Carolina at Chapel Hill—among the nation’s top public universities—to imagine a way forward. In January 2023 the board voted 12-0 to create a School of Civic Life and Leadership. Its purpose, according to an official statement, is to prepare students “for the responsibilities of citizenship and civic leadership by fostering a free-speech culture” dedicated to the “human search for meaning and developing the capacities for civil discourse and wise decision-making.”

The board’s decision predictably led some faculty, administrators and media commentators to allege the new school to be some kind of right-wing Republican fifth column. A few professors, always suspicious of ideas that don’t come from their own ranks, claimed, amazingly, that the board had no right to establish a new institution within the university.

In August I met with Jed Atkins, dean of the SCiLL, as it’s abbreviated. Until his appointment at UNC, he was a classics professor at Duke University, where he co-directed the Civil Discourse Project, a program designed to have students from widely divergent backgrounds and political commitments read classic texts, from Aristotle to Martin Luther King Jr., and analyze their meanings in light of present political circumstances.

Mr. Atkins prefers not to talk about the school’s allegedly controversial beginnings, and I don’t blame him. “Origins aren’t destiny,” he says. But he adds: “I can’t think of many things less controversial than providing a civic education that brings students from all backgrounds and viewpoints into community to be able to explore the big questions of human flourishing.”

Mr. Atkins, 42, is attuned to the reasons young people in the 2020s find it hard to engage in robust political argument. “We now carry in our pockets these little recording devices”—he holds up his smartphone—“and anything you say might be recorded and might find its way to the recruiters of the job that you’re applying for. There are a lot of disincentives to engage in the types of open and free-wheeling conversations that, for 20-, 21-, 22-year-olds, can be so transformative.”

I mention that a friend of mine, a professor of literature at an elite university, recently observed something he’s noticed about his students over the past couple of decades: They seem to think of social and political problems as simple matters of good and evil. Good people take the right view, evil people take the other. I liken it to Manichaeanism, the third-century philosophy holding that the world consists of spirit (good) and matter (evil).

“There’s something deeply human in that form of dualism,” Mr. Atkins says. “The basic Greek understanding of justice that Plato had to interrogate was that of helping your friends and harming your enemies. There’s a way of understanding the Hebraic law code that sees its judicial standards as breaking the cycle of violence and retribution.” (He’s right about the Mosaic law, incidentally. “An eye for an eye,” frequently caricatured as mere brutality, was meant to curb the retributive urge: Not a life for an eye, only an eye for an eye.)

Dualism is a constant temptation in human affairs, Mr. Atkins says, but it has been heightened in recent decades: “Social media is a great ratchet. There’s a ‘like’ button and a ‘dislike’ button, no ‘maybe’ button.”

Are there other ratchets? Young Americans are rejecting institutional religion in large numbers,” Mr. Atkins says, “but they aren’t abandoning the religious desire for personal meaning, moral belonging, transcendent experiences, rituals, community.” He cites Tara Isabella Burton’s 2020 book, “Strange Rites: New Religions for a Godless World.” I would also mention the books and lectures of Jordan Peterson. “Political and social movements have increasingly come to fulfill these religious longings,” Mr. Atkins continues. “The sacralization of politics inflames the urge toward dualism. They don’t see the political process as negotiating policy trade-offs but as a site of meaning and moral belonging achieved at the expense of their political out-group.”

“The civic crisis,” Mr. Atkins says, using his term for Americans’ inability to engage civilly on political subject, “is downstream from the crisis of meaning.” A properly liberal education of the sort UNC’s new school aims to foster “asks students to rise above their partial viewpoints and perspectives to consider questions that transcend their own time and place, and to do that together.”

What sort of questions? “What is the best political form? What is the best economic form? Does history have a direction and purpose? How do we reconcile liberty and our responsibilities to society? Is there a God? Maybe more particularly to the American regime: The foundational principles of the Declaration, liberty and equality—are they universal?” My thought: If a school dedicated to pondering and debating questions like these in a spirit of trust and generosity counts as a furtive right-wing insurgency, by all means let’s have more right-wing insurgencies.

Already the new school has hired 11 faculty, among them Mr. Atkins’s colleague at Duke with whom he ran the aforementioned Civil Discourse Project, John Rose. Mr. Rose’s op-ed “How I Liberated My Classroom,” on the pathology of self-censorship on college campuses, appeared in these pages in 2021.

Our conversation takes place in the school’s building. A 10-minute walk away is the quad where, on April 30, anti-Israel protesters, hiding their faces behind surgical masks and kaffiyehs, knocked over barricades, took down the American flag and replaced it with a Palestinian one. The university’s interim chancellor, Lee Roberts, whose office is adjacent to the quad, arrived with police to restore the Stars and Stripes. (Mr. Roberts has since been made chancellor.)

When protesters took the flag down a second time, a group of fraternity brothers—mindful of the U.S. Flag Code’s provision that “the flag should never touch anything beneath it, such as the ground”—held it in hand at the base of the flagpole, smiling as they endured the faceless mob’s shouted insults, until, an hour later, Old Glory could be hoisted again. The scene generated a crowd-sourced effort to raise money for a party for the “triumphant Brohemians” who participated in the flag-preserving effort. A little more than half a million dollars was raised, and the party happened—flyover, patriotic rock concert, beer galore—on Sept. 2.

It is an amusing irony that frat bros—a class of student not famous for sobriety and moderation—behaved far more civilly than their allegedly conscientious and intellectually engaged peers. The episode was a reminder, as if any were needed, that elite universities are deeply confused about the ideals they are meant to protect and foster: free speech, open rational debate, principled dissent.

Mr. Atkins thinks well-meaning university administrators—people who genuinely want universities to cultivate small-l liberal values—have too often assumed that subscribing to formal statements on “free expression” would solve the problem. “It’s very much about culture,” he says. “Statements of principle are important. The Kalven Report, the Chicago Statement”—the former a 1967 recommendation that the University of Chicago adopt a position of institutional neutrality, the latter a declaration of principles on free speech—“all those are important. I support those statements. But I think over the past 20 or 30 years we’ve spent a lot of time talking about principles and statements, which can be action-guiding, but not nearly enough time creating a free-speech culture in the classroom, in the residential halls.”

In many ways Mr. Atkins sounds like a figure of the 18th-century British Enlightenment expatiating on the benefits of polite reciprocity, rational discourse and the open exchange of views. “Free speech and civil discourse,” he says, “requires humility, the capacity to listen well. It requires building up trust. It’s much harder to cultivate that kind of culture than it is, say, to protest on the quad.”

Mr. Atkins’s third book, published Tuesday by Oxford University Press, is titled “The Christian Origins of Tolerance.” It is a tightly reasoned, footnote-heavy academic treatise on four Christian North African writers of the second through fifth centuries: Tertullian, Cyprian, Lactantius and Augustine. The “standard liberal narrative,” as Mr. Atkins terms the common explanation for the emergence of tolerance in the West, holds that it appeared after the so-called wars of religion in the 16th and 17th centuries. Only when Europe’s leading lights learned to put aside their overarching theological commitments, this narrative claims, could regimes embrace tolerance as a virtue.

Mr. Atkins contends that tolerance—which he defines, variously, as “patience within plurality” and “forbearance in the face of things, people, or viewpoints one finds objectionable or wrong”—emerged much earlier from Christian theologians thinking through biblical texts.

Reading the book, I’m reminded that the word “tolerance” and its cognates were used frequently in liberal political discourse two or three decades ago, but not much anymore. The reason, I suspect, has to do with its proper definition: To tolerate a thing is to put up with it even though you disapprove. At no point was postwar liberalism notable for putting up with things liberals disapproved of. A “tolerant” attitude, according to its usage in the 1980s and ’90s, was an attitude that pretended to tolerate things upwardly mobile, socially liberal people already approved of: “alternative lifestyles,” adherents of religions other than Christianity, casual drug use and so on. That isn’t tolerance.

It’s hardly surprising, then, that students on elite campuses, having so rarely seen it properly exemplified, give so little attention to tolerance as a virtue. “They care very much about justice,” Mr. Atkins says. “If you present tolerance or forbearance to them in a way that makes it completely separate from justice, they’ll reject tolerance. They’ll say, Well, doesn’t that make me complicit in injustice?” Part of this new school’s mission, he explains, is to “present justice and forbearance as in a relationship with each other.” Putting up with “views and practices that you find wrong,” he says, “has to be in dialogue with judgments about what is good.”

Mr. Atkins speaks frequently about his students coming to appreciate the complexity and fluidity of their own social and political views, and by extension the recklessness of judging the views of others too easily. “There’s a humility that comes with recognizing how complicated the world can be,” he says. We don’t often hear about students at top-rated universities learning and exhibiting the virtue of humility. Maybe, in time, we will.

Mr. Swaim is a Journal editorial page writer.

[Crafty_Dog]

Hillary demands gov't control over speech: In a CNN interview Friday, Hillary Clinton exposed her complete lack of concern for adhering to and upholding the First Amendment's protection of free speech. Clinton called for repealing Section 230, which she interpreted as giving "platforms on the internet immunity because they were thought to be just pass-throughs, that they shouldn't be judged for the content that is posted." She elaborated, "If [social media platforms] don't moderate and monitor the content, we lose total control, and it's not just the social and psychological effect, it's real harm." It's rather rich for Clinton, whose 2016 campaign intentionally seeded and peddled the Trump/Russia conspiracy hoax, to be expressing concern over the spread of "misinformation" via social media. As Tulsi Gabbard observed, "People like Hillary Clinton and Kamala Harris do not believe in the First Amendment because they see it as an obstacle to achieving their real goal: 'total control.'"

[Crafty_Dog]

Hat tip BBG

I’m working my way through the whole piece, but this intro does a good job of outlining its arguments, arguments I’m in full agreement with.

Journal of Free Speech Law: "Should We Trust the Censor?," by Keith E. Whittington
A new article from the Daedalus (Journal of the American Academy of Arts and Sciences) Future of Free Speech Symposium.

EUGENE VOLOKH | 11.1.2024 8:01 AM
The article is here; the Introduction:

In designing and adopting any regulatory scheme, there are two separate but important decisions to make. First, of course, we must decide on the substantive rules or standards that will govern the behavior to be regulated. This is often the most visible and contentious decision to make. Setting out the rule to be enforced is generally viewed as tantamount to setting the policy itself. But there is a second decision that must also be made, perhaps even more consequential than the first. Once we know what rule will be enforced, we must decide who will be empowered to interpret and enforce that rule. After we design the regulation, we must design the regulator. Rules are not usually self-enforcing. Someone will have to determine whether the rule has been violated and what to do in the case of violations. Those two decisions are critical to the success and significance of any regulatory scheme.

In this regard, the regulation of speech is no different than any other regulatory scheme. Changing the context of speech regulation does not change the dilemma. When we lay down a rule about what kinds of speech should be forbidden, we must also decide who will interpret and enforce that rule. Who will decide whether the rule is violated by a particular utterance and therefore whether the speech in question should be suppressed, or the speaker punished?

Moreover, such issues arise whenever we seek to regulate speech. If the government wants to prohibit some speech, it will need a process of enforcing that law or administrative regulation. If the government wants to criminalize "terroristic threats," it will need both to specify the rule against such threats and to rely on a criminal justice process for investigating and prosecuting those who make such threats. If Congress wants to exclude from federal trademark protection marks that are "scandalous" or disparaging, it will need to articulate the exception to trademark law and empower a government official to review trademark proposals and reject those that violate the rule. If the comment section of an online journal excludes some kinds of posts, the publisher will need to specify a rule explaining what content is prohibited and designate a moderator to review and delete posts that potentially offend the rule.

A great deal of theoretical argument on speech restrictions is understandably focused on the substance of potential limitations on speech. The substantive rule is where principled distinctions are drawn and where justifications for or against tolerating some types of speech can be developed. If we want to restrict speech, we need to take great care to ensure that we are restricting the right speech and for the right reasons. Constitutional doctrine and normative theory are focused on such questions as the circumstances in which false speech should be forbidden, how to distinguish obscenity from pornography, and how to distinguish fair use from copyright infringement. Most of our arguments about whether a specific kind of speech should be restricted turn on the question of whether restricting that speech would be a good idea. Does the speech in question have a high or low social value? Does the speech in question cause harms, and if so, how substantial and of what nature? Will censorship make us worse off? Should we rely on the marketplace of ideas to winnow the true from the false, or do we need the thoughtful assistance of the censor?

Those substantive debates on speech restrictions often take the implementation and enforcement of any restrictions for granted. This is understandable but a mistake. The implementation process might pass without remark simply because, at least in broad brush strokes, we think that those decisions are already fixed. If we are debating possible exceptions to the First Amendment to the U.S. Constitution, we are effectively debating how the Supreme Court ought to interpret the First Amendment, and what kinds of legal limits on speech the justices should accept. It is tempting to think that if we can just agree on the acceptable limits on speech, then the implementation of those limits would take care of itself. The details of the enforcement process might seem irrelevant to whether we think a particular type of speech should be outlawed.

I am persuaded, to some degree, by all three of the common liberal defenses of robust speech protections. Free speech is essential to the identification of the truth and the advancement of knowledge, which is particularly relevant to thinking about the scope of speech protections in an academic context. The tolerance of dissent is critical to allowing democratic processes to function, which is especially important in the context of political speech. And free expression is important to respecting human dignity and autonomy, which has particular salience in the context of artistic expression.

Those arguments are important, but they are ultimately not decisive for me. At the very core of my own skepticism about speech restrictions is distrust of those who would wield the power to suppress speech. Even if I were completely convinced that some particular type of speech is of low value and generally harmful, I would be extremely reluctant to agree to a rule prohibiting that speech because I have little faith that speech restrictions would be applied in a manner that did not have serious social costs. Censors would likely be overly aggressive in enforcing speech restrictions and biased in what they judge to be intolerable speech. It is precisely in the context of controversial speech that we will find it difficult to reach uncontroversial conclusions about whether a particular example of speech is beyond the pale. As James Madison pointed out, "if angels were to govern men, neither external nor internal controls on government would be necessary"; but the great problem with "framing a government which is to be administered by men over men" is that "you must first enable the government to control the governed; and in the next place oblige it to control itself." Obliging the government to control itself has been particularly challenging in the context of freedom of speech. Even if we could design the ideal speech code, we should not have much faith that it would be implemented in an ideal way.

For me, those concerns about who will watch the watchmen create a very strong presumption against any significant restriction on speech. The long struggle to expand freedom of speech has been to an important degree the result of a dawning realization that censors cannot be trusted and thus the scope of their authority had to be significantly narrowed. I have often found that those who favor more restrictions on the freedom of speech also tend to have more confidence about how those rules will be implemented. If we do not need to worry about the second problem, the problem of implementation, then it becomes easier to imagine that desirable rules might be developed. Those who have faith in administrators tend also to be more willing to endorse speech codes than I am. Even when I can agree that a given example of speech is a net loss for society, I am much more reluctant to take the further step of empowering someone to limit such speech. If I am asked whether we must tolerate the speech of Nazis, I am not overly concerned about the possibility that Nazis might have interesting or illuminating things to say, but I am quite concerned that building the machinery of censorship to suppress the speech of Nazis will prove threatening to speech that is valuable. I would share the view that it would be unfortunate if my fellow citizens found Nazis to be persuasive, but I have trouble imagining who I might trust to make determinations as to which ideas my fellow citizens should be allowed to hear and assess.

https://reason.com/volokh/2024/11/01/journal-of-free-speech-law-should-we-trust-the-censor-by-keith-e-whittington/