Lone Candle
Champion of Truth
“As much as Durbin may dislike hateful speech or speech that spreads conspiracy theories, they are both generally protected by the First Amendment.”
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“Durbin had plenty of reason to be troubled by these developments—the mass-tweeting of hateful language is concerning, and so too is such a powerful figure seemingly fooled by an online hoax—he was mistaken when asserting that Musk’s tweet was somehow not covered “by free speech.””
“Florida Gov. Ron DeSantis, a leading presidential contender, is skilled at appealing to Republicans who resent the censorious self-righteousness of woke progressives. But instead of defending free inquiry and open debate, DeSantis seems bent on fighting intolerance with intolerance.
When he signed the Individual Freedom Act (IFA) last April, DeSantis bragged that it would “prevent discriminatory instruction in the workplace,” striking a blow against “the far-left woke agenda.” But as a federal judge explained last week, the law’s restrictions on employee training blatantly violate the First Amendment.
The IFA expanded Florida’s definition of “unlawful employment practices” to include “any required activity” that promotes one or more of eight forbidden concepts. Some of those ideas are plainly illiberal (e.g., linking moral status to race) or patently silly (e.g., viewing virtues such as excellence, hard work, and fairness as white supremacist constructs), while others are ambiguous or debatable (e.g., the notion that “members of one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex, or national origin”).
Whatever you think of those ideas, the government has no business decreeing whether and how they can be discussed in private workplaces. Yet that is what the IFA does: It allows discussion “in an objective manner without endorsement of the concepts” while forbidding speech that “espouses, promotes, advances, [or] inculcates” them.
As U.S. District Judge Mark Walker noted when he issued a preliminary injunction against those restrictions, they amount to “a naked viewpoint-based regulation on speech,” which is presumptively unconstitutional. “Under our constitutional scheme,” Walker observed, “the ‘remedy’ for repugnant speech ‘is more speech, not enforced silence.'”
DeSantis argued that the IFA aims to prevent a “hostile work environment” created by ideas that might discomfit employees. Walker thought that was a stretch because that term encompasses speech only when it is “both objectively and subjectively offensive and when it is sufficiently severe or pervasive”—requirements that provide “shelter for core protected speech.”
More to the point, conservatives have long criticized discrimination claims based on an allegedly hostile work environment precisely because they can transform otherwise protected speech into illegal “harassment.” Yet DeSantis is not only defending that concept; he is extending it to cover even a single “required activity” that “espouses” ideas he does not like.”
“Gorsuch’s opinion presents Kennedy as “engaging in a brief, quiet, personal religious observance.” Sotomayor, who wrote the dissent, writes that this characterization is wrong, and Gorsuch’s description essentially downplays any potential coercive impacts of the prayer:
“To the degree the Court portrays petitioner Joseph Kennedy’s prayers as private and quiet, it misconstrues the facts. The record reveals that Kennedy had a longstanding practice of conducting demonstrative prayers on the 50-yard line of the football field. Kennedy consistently invited others to join his prayers and for years led student athletes in prayer at the same time and location. The Court ignores this history”.
Sotomayor’s dissent includes actual embedded photographs of the prayers on the 50-yard line with the coach surrounded by players, showing that this isn’t some quiet personal observance. He sought out media coverage for his prayers. The school district noted that despite Kennedy’s insistence that he wasn’t inviting others to pray with him, he had, in fact, done so on many previous occasions. The school district’s messaging to Kennedy was consistent in that it held no objection to his religious beliefs or even to him praying while on duty as long as it didn’t interfere with his job or suggest that the school endorsed his religion. In short, it seemed as though the school district was genuinely concerned that Kennedy’s behavior would be seen as a violation of the Establishment Clause if they didn’t clearly communicate established limits on what Kennedy was allowed to do.
She notes that Kennedy ignored attempts by the school district to try to come to some accommodation and instead turned to the press and made a big spectacle out of the prayers. Parents told the school district that their children participated in the prayers “solely to avoid separating themselves from the rest of the team.”
Sotomayor sees a constitutional violation in this case, but it’s not Kennedy’s rights that were violated:
“Properly understood, this case is not about the limits on an individual’s ability to engage in private prayer at work. This case is about whether a school district is required to allow one of its employees to incorporate a public, communicative display of the employee’s personal religious beliefs into a school event, where that display is recognizable as part of a longstanding practice of the employee ministering religion to students as the public watched. A school district is not required to permit such conduct; in fact, the Establishment Clause prohibits it from doing so.”
“People believe and say things that aren’t true all of the time, of course. When false beliefs influence the outcomes of major elections or, say, decision making during a pandemic, it’s reasonable to consider ways to minimize the ill effects those false beliefs can create. But efforts by public officials to combat them—and tremendous confusion over how to identify them—may well make things worse, not better.”
“The decision in NetChoice v. Paxton reinstates an unconstitutional Texas law that seizes control of the major social media platforms’ content moderation process, requiring them to either carry content that those platforms do not wish to publish or be so restrictive it would render the platforms unusable. This law is unconstitutional because the First Amendment prohibits the government from ordering private companies or individuals to publish speech that they do not wish to be associated with.”
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“Although the court did not identify which of the three judges dissented, it’s not hard to guess how the votes broke down. The panel includes Judge Leslie Southwick, a relatively moderate conservative appointed by President George W. Bush, as well as two notoriously right-wing judges.
Judge Edith Jones is a former general counsel to the Republican Party of Texas who was appointed by President Ronald Reagan when she was just 35 years old. Since then, she’s developed a reputation as an especially caustic conservative — Jones once told a liberal colleague to “shut up” during a court hearing, and she joined an opinion arguing that a man should be executed despite the fact that his lawyer slept through much of his trial.
The third judge, Andy Oldham, is a young Trump appointee who clerked for Justice Samuel Alito. Among other things, Oldham is the author of a Fifth Circuit opinion permitting a Trump-appointed district judge to seize control of much of the nation’s policy governing the US-Mexico border.
It is likely, but not entirely certain, that Jones and Oldham are right-wing outliers even when compared to the median justice on the Supreme Court. In 2021, Justice Clarence Thomas published an opinion expressing sympathy for the “common carrier” theory Texas relies on in NetChoice. But that opinion was joined by no other justice.
In any event, given the enormous disruption the Fifth Circuit’s NetChoice decision is likely to create for social media companies, it is likely that they will ask the Supreme Court to intervene very soon. We should know in very short order, in other words, whether the Supreme Court intends to write social media out of the First Amendment.”
“The Supreme Court, in an increasingly familiar development, handed a victory to a Christian conservative organization on Monday. The Court’s decision in Shurtleff v. Boston establishes that this organization, Camp Constitution, should have been allowed to fly a Christian-identified flag from a flagpole outside Boston’s city hall.
But Shurtleff is unlike several other high-profile victories for religious conservatives that the Court has handed down in recent years because the justices did not need to remake existing law in order to reach this result. The decision was unanimous (although the justices split somewhat regarding why the plaintiffs in this case should prevail), with liberal Justice Stephen Breyer writing the majority opinion.
The case involves three flagpoles standing outside of Boston’s city hall. The first flagpole displays the US flag, with a smaller flag honoring prisoners of war and missing service members below it. The second pole features the Massachusetts state flag. And the third typically — but not always — displays the city’s own flag.
This third flagpole, and the city’s practice of sometimes allowing outside groups to display a flag of their choice from it, is the centerpiece of Shurtleff. Since at least 2005, the city has permitted outside groups to hold flag-raising ceremonies on the plaza during which they can raise a flag of their choosing on the third flagpole.
At various times, the third flagpole has displayed the flags of many nations, including Brazil, China, Ethiopia, Italy, Mexico, and Turkey. It has displayed the rainbow LGBTQ pride flag, a flag commemorating the Battle of Bunker Hill, and a flag honoring Malcolm X.
But when Harold Shurtleff, head of an organization called Camp Constitution, asked to fly a flag associated with the Christian faith, the city refused — claiming that displaying such a flag could be interpreted as “an endorsement by the city of a particular religion,” in violation of “separation of church and state or the [C]onstitution.”
Justice Breyer’s majority opinion concludes that the city erred. Relying on a bevy of cases establishing that the government typically cannot discriminate against a particular viewpoint, Breyer notes that “Boston concedes that it denied Shurtleff’s request solely because the Christian flag he asked to raise ‘promot[ed] a specific religion.’” Under the facts of this case, that’s a form of viewpoint discrimination and it’s not allowed.
While it’s notable that Justices Neil Gorsuch and Brett Kavanaugh each wrote separate opinions indicating that they are eager to let government get cozy with religion, and they have two opportunities to do so this term, this case is a straightforward decision that follows current law — in short, nothing remarkable.”
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“The general rule in free speech cases is that the government may not discriminate against any particular viewpoint. Boston could not, for example, have a rule that Democrats are allowed to gather in the city hall plaza but not Republicans. Or that people who support restrictive immigration policies may do so, but not people who oppose them.
But there’s an exception to this general rule when the government speaks in its own voice. That is, the government is allowed to express its own opinion on a subject without also providing a forum for dissenting voices. If a public school principal tells her students to “say no to drugs,” she’s not required to give equal time to the grungy guy in the junior class who sells weed out of his 1997 Subaru Legacy.
The primary question in Shurtleff is whether, when Boston’s city government permitted a wide range of private groups — but not Camp Constitution — to display a flag of their choice outside of city hall, these flags represented the city’s speech or the private groups’ speech. Again, if the flags were a form of government speech, then Boston is allowed to exclude viewpoints it does not share.
But the Court concluded that the city did not use the third flagpole to express its own views, and that it effectively created “a forum for the expression of private speakers’ views.” As Breyer notes, Boston does not appear to have made any effort whatsoever to control which flags are displayed from this flagpole until it denied Shurtleff’s request to fly a Christian flag.”
“It’s easy to overstate, but attitudes towards freedom of action differ in the United States and the European Union. Americans tend to believe that people have a right to make their own decisions and are better trusted to do so than coercive governments; Europeans place more faith in the state, allowing room for personal choice only after officialdom installs guardrails and files away sharp edges. Yes, that exaggerates the case and there are plenty of dissenters under both systems, but it captures the treatment of speech and online conduct in the EU’s new Digital Services Act.
“Today’s agreement on the Digital Services Act is historic, both in terms of speed and of substance,” European Commission President Ursula von der Leyen commented on April 23. “The DSA will upgrade the ground-rules for all online services in the EU. It will ensure that the online environment remains a safe space, safeguarding freedom of expression and opportunities for digital businesses. It gives practical effect to the principle that what is illegal offline, should be illegal online. The greater the size, the greater the responsibilities of online platforms.”
There’s a lot in the proposed law, as you would expect of wide-ranging legislation paired with a companion bill addressing digital markets. The overall tone is of micromanagement of online spaces with dire consequences for platforms that fail to protect users from “illegal and harmful content” as defined by the government. Those who violate the rules by, for example, repeatedly failing to scrub forbidden material in timely fashion, face massive fines or expulsion from the EU market. Of course, no matter official assurances, speech hemmed in by red tape and subject to official oversight in monitored spaces isn’t especially “free” at all”
“For a long while, Russia has “flooded the zone” and bombarded the population with so many contradictory accounts of reality that they weren’t sure what to believe, or they were too cynical to believe anything. But now it’s full Orwellian control of reality, and that’s a much heavier lift because it’s not about undermining consensus, which is easy; it’s about enforcing one.”
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“I have to be honest, there were a handful of people here who have been warning about this for a long time, who were telling people like me that this was going to be a fascist dictatorship one day, and we’ve been dismissing these people. We were like, “Come on, Putin is a cynic, he’s evil in so many ways, but at least he’s a rational guy. All he wants to do is get himself insanely rich. He’s not going to do anything really drastic.”
But we were all fucking wrong. The alarmists were right all along, and almost every one of them is either dead or in jail or exiled.”
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“we’re in uncharted waters. All these major foreign media outlets, like the New York Times and the BBC, are fleeing Moscow. That’s never happened. The New York Times has had a bureau in Moscow throughout the entire 20th century, including three revolutions and two world wars and the entire Cold War. But now Moscow isn’t safe for the New York Times. I really don’t have the words to describe how unpredictable this situation is.”
“Texas Gov. Greg Abbott, who..signed a bill that aims to restrict social media platforms’ editorial discretion, says the new law “protects Texans from wrongful censorship” and thereby upholds their “first amendment rights.” The law, H.B. 20, is scheduled to take effect on December 2, but that probably will not happen, because it is blatantly unconstitutional and inconsistent with federal law.
Abbott, a former Texas Supreme Court justice who served as his state’s attorney general from 2002 to 2015, presumably knows that. But whether he is sincerely mistaken or cynically catering to his party’s base, H.B. 20 reflects widespread confusion among conservatives about what the First Amendment requires and allows.”
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“the First Amendment applies to the government and imposes no constraints on private parties.
To the contrary, the First Amendment guarantees a private publisher’s right to exercise editorial discretion. The Supreme Court emphasized that point in a 1974 case involving a political candidate’s demand that The Miami Herald publish his responses to editorials that criticized him.
The constitutional protection against compelled publication does not disappear when we move from print to the internet, or from a news outlet to a website that invites users to post their own opinions. As Justice Brett Kavanaugh noted when he was a judge on the U.S. Court of Appeals for the D.C. Circuit, “the Government may not…tell Twitter or YouTube what videos to post” or “tell Facebook or Google what content to favor.”
Yet that is what H.B. 20 purports to do. The law says “social media platforms” with more than 50 million active monthly users in the U.S. may not “censor” content based on the “viewpoint” it expresses. That edict covers any effort to “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.”
H.B. 20 makes a few exceptions, including “expression that directly incites criminal activity” and “specific threats of violence” that target people based on their membership in certain protected categories. But otherwise the rule’s reach is vast: As two trade organizations note in a federal lawsuit they filed last week, H.B. 20 “would unconstitutionally require platforms like YouTube and Facebook to disseminate, for example, pro-Nazi speech, terrorist propaganda, foreign government disinformation, and medical misinformation.””