“A.B. 2098, which threatens to punish physicians for sharing COVID-19 “misinformation” with their patients. The law, which is scheduled to take effect on January 1, defines “misinformation” as advice “contradicted by contemporary scientific consensus”—an open invitation to suppression of constitutionally protected speech.”
…
” The new law..makes physicians subject to discipline for sharing their honest opinions regarding COVID-19 if the medical board thinks they deviate from the “scientific consensus,” a term the law does not define. That nebulous standard poses a due process problem, since the law does not give doctors fair notice of which conduct it reaches. It also poses a free speech problem, since it encourages self-censorship.”
…
“While some unconventional opinions may amount to quackery, others may ultimately be vindicated. Over the course of the COVID-19 pandemic, the conventional wisdom on subjects such as intubation of patients, the utility of cloth face masks, isolation periods, and the effectiveness of vaccines in preventing virus transmission has shifted repeatedly in response to emerging evidence.
In addition to violating doctors’ freedom of speech, A.B. 2098 undermines that discovery process. It tells skeptical physicians to keep their mouths shut, lest they endanger their licenses and livelihoods by candidly sharing their opinions.”
“The editors and publishers of The New York Times and several major European media outlets have released an open letter condemning America’s prosecution of WikiLeaks founder Julian Assange.
Assange faces 19 federal charges of espionage and hacking for his alleged role in helping Chelsea Manning get access to classified military reports from the Iraq and Afghan wars. Those charges were filed in 2019, but a superseding indictment from the Justice Department filed in June 2020 added more details and accusations (but not new charges), claiming Assange recruited hackers and directed them to targets. The Department of Justice’s position is that Assange is a hacker, not a journalist.”
…
“Leaders at The New York Times and The Washington Post have long opposed Assange’s indictment for the potential chilling effect. If Assange can be imprisoned for publishing classified documents, then couldn’t the editors of the Times or the Post or any other media outlet who also published these documents face the same fate?
In order to get around these First Amendment concerns, the justification for Assange’s prosecution is that he doesn’t qualify as a journalist. He is not a “legitimate” journalist. The problem with that argument is that it gives the government the authority to define who does and does not qualify as a journalist, which itself would seem like a violation of the First Amendment’s protections. There is no “legitimacy” distinction in the First Amendment. Journalism is an activity, not just a career. Many, many people have engaged in various forms of journalistic activities without being credentialed reporters for media outlets.”
“The erroneous idea comes from the 1919 case Schenk v. United States. The case concerned whether distributing anti-draft pamphlets could lead to a conviction under the Espionage Act—and had nothing to do with fires or theaters.
In his opinion, Justice Oliver Wendell Holmes wrote that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” However, this idea was introduced as an analogy, meant to illustrate that, as Trevor Timm wrote in The Atlantic in 2012, “the First Amendment is not absolute. It is what lawyers call dictum, a justice’s ancillary opinion that doesn’t directly involve the facts of the case and has no binding authority.” The phrase, though an oft-repeated axiom in debates about the First Amendment, is simply not the law of the land now, nor has it ever been—something made all the more apparent when Schenk v. United States was largely overturned in 1969 by Brandenburg v. Ohio.
“Anyone who says ‘you can’t shout fire! in a crowded theatre’ is showing that they don’t know much about the principles of free speech, or free speech law—or history,” Foundation for Individual Rights and Expression President Greg Lukianoff wrote in 2021. “This old canard, a favorite reference of censorship apologists, needs to be retired. It’s repeatedly and inappropriately used to justify speech limitations.””
“As much as Durbin may dislike hateful speech or speech that spreads conspiracy theories, they are both generally protected by the First Amendment.”
…
“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.”
“In the U.K., defamation plaintiffs have two major advantages that Trump envies. First, they do not have to prove that an allegedly defamatory statement was false. Second, they do not have to show that the defendant deliberately or recklessly misrepresented the facts—the “actual malice” standard that the U.S. Supreme Court has said the First Amendment requires in libel actions brought by public figures.
Instead, the target of a British defamation lawsuit has the burden of establishing that he is protected by one of several recognized defenses. If he settles on a “defense of truth,” he has to show it is more likely than not that “the imputation conveyed by the statement” was “substantially true.” That plaintiff-friendly rule has made the U.K. a magnet for libel actions by prominent people whose claims might get a less receptive hearing in other countries, including American cyclist Lance Armstrong, Swedish businessman Svante Kumlin, and Russian tycoon Boris Berezovsky.”
“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.”