“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”
“A blatantly unconstitutional Texas social media law can start being enforced unless the Supreme Court steps in. The law was blocked by a U.S. district court last year after internet advocacy and trade groups challenged it. But a new order from the U.S. Court of Appeals for the 5th Circuit means Texas can begin enforcement of its social media law—and wreak havoc on the internet as we know it in the process.
NetChoice and the Computer and Communications Industry Association (CCIA)—the groups that filed the lawsuit against the Texas social media law—have now submitted an emergency petition to the Supreme Court asking it to intervene. Meanwhile, Texas and a slew of other states with Republican leaders are advocating for the law, which would treat large social media platforms like common carriers (such as railroads and telephone companies) that have a legal obligation to serve everyone.
How we got here: The Texas social media law (H.B. 20) bans large platforms from engaging in many forms of content moderation—including rejecting unwanted content outright, limiting its reach, or attaching disclaimers to it—based on the viewpoint said content conveys. It’s similar to legislation passed (and blocked, for now) in Florida.
Borrowing a page from George Orwell, supporters like Texas Gov. Greg Abbott say the law is designed to protect free speech. But in addition to protecting people and private entities from censorship, the First Amendment also protects against them being compelled by the government to speak or host certain messages—which is exactly what H.B. 20 does.
Accordingly, Judge Robert Pitman of the U.S. District Court for the Western District of Texas held last December that H.B. 20 violated the First Amendment and issued a preliminary injunction against enforcing it.
But Texas appealed, and last week the U.S. Court of Appeals for the 5th Circuit issued a stay on the lower court’s decision—meaning Texas can start immediately enforcing the social media law.
The 5th Circuit did not offer an opinion explaining its reasoning, so it’s hard to say what’s going on there. In any event, NetChoice and the CCIA are now asking the U.S. Supreme Court to step in.”
“Hearing hateful words and ideas outrages and discomforts most of us, but Mchangama’s history of free speech underscores that state suppression can grant those words and ideas more power and influence. And that the best antidote to hate in a free and open society is not to hide from it but to openly—and persuasively—confront it.”
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“In the 1920s, Germany’s Weimar Republic strictly regulated the press and invoked emergency powers to crack down on Nazi speech. It censored and prosecuted the editor of the anti-Semitic Nazi paper Der Stürmer, Julius Streicher, who used his trial as a platform for spreading his views and his imprisonment as a way of turning himself into a martyr and his cause into a crusade. When the Nazis took power in the early ’30s, Mchangama stresses, they expanded existing laws and precedents to shut down dissent and freedom of assembly.
Contemporary scholarship suggests that there can be a “backlash effect” when governments shut down speech, leading otherwise moderate people to embrace fringe beliefs. Mchangama points to a 2017 study published in the European Journal of Political Research that concluded extremism in Western Europe was fueled in part by “extensive public repression of radical right actors and opinions.”
In 1965, the United Kingdom passed a law banning “incitement to racial hatred,” but one of the very first people prosecuted under it was a black Briton who called whites “vicious and nasty people” in a speech. More recently, Mchangama notes that radical feminists in England “have been charged with offending LGBT+ people because they insist there are biological differences between the sexes. In France, ‘an LGBT+ rights organization was fined for calling an opponent of same-sex marriage a ‘homophobe.'””
“As the coronavirus pandemic rages in India, claiming thousands of lives, many Indians are turning to social media to demand that the government handle the public health crisis better. And now, the government is silencing these critics in its latest threat to the future of free speech on the internet in the world’s second-most populous country.
In recent weeks, the Indian government has requested that companies like Twitter take down content that it says contains misinformation about the Covid-19 pandemic. But critics say that India’s political leadership under Prime Minister Narendra Modi is using the premise of misinformation to overreach and suppress criticism of the administration’s handling of the pandemic.”
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“under the Modi administration of the past several years, the country has expanded its internet regulation laws, giving it more power to censor and surveil its citizens online. The government has several levers to pressure US-based tech companies into compliance: It could arrest Facebook and Twitter staff in India if their employers don’t follow orders. Even further, India could yank Twitter or Facebook off the local internet in India entirely, as it recently did with TikTok and several major Chinese apps in June. And the government resorted to effectively shutting down the internet in Kashmir in February 2020 when it wanted to quiet political dissent in the region.”
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“Facebook confirmed that it temporarily blocked posts with a #ResignModi hashtag in India, but it later said it was a mistake because of content associated with the hashtag that violated its policies. Facebook has since restored access to the hashtag.
Facebook declined to comment on how many or what takedown requests it has received from the Indian government in recent weeks. A source familiar with the company said Facebook only took down a small portion of the total requests it received.”
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“Recode reviewed the more than 50 tweets that Twitter blocked or deleted at the request of the Indian government in recent weeks. While some could be considered misleading — including one viral image showing devastation in India supposedly related to the pandemic which Indian fact-checker AltNews reported to be outdated — it wasn’t clear what was misleading about several other posts, which appeared to be straightforward news and political commentary.”
“We know deplatforming works to combat online extremism because researchers have studied what happens when extremist communities get routed from their “homes” on the internet.
Radical extremists across the political spectrum use social media to spread their messaging, so deplatforming those extremists makes it harder for them to recruit. Deplatfoming also decreases their influence; a 2016 study of ISIS deplatforming found, for example, that ISIS “influencers” lost followers and clout as they were forced to bounce around from platform to platform. And when was the last time you heard the name Milo Yiannopoulos? After the infamous right-wing instigator was banned from Twitter and his other social media homes in 2016, his influence and notoriety plummeted. Right-wing conspiracy theorist Alex Jones met a similar fate when he and his media network Infowars were deplatformed across social media in 2018.
The more obscure and hard to access an extremist’s social media hub is, the less likely mainstream internet users are to stumble across the group and be drawn into its rhetoric. That’s because major platforms like Facebook and Twitter generally act as gateways for casual users; from there, they move into the smaller, more niche platforms where extremists might congregate. If extremists are banned from those major platforms, the vast majority of would-be recruits won’t find their way to those smaller niche platforms. ”
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“Deplatforming disrupts extremists’ ability to communicate with one another, and in some cases creates a barrier to continued participation in the group. A 2018 study tracking a deplatformed British extremist group found that not only did the group’s engagement decrease after it was deplatformed, but so did the amount of content it published online.
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“When internet communities send a message of zero tolerance toward white supremacists and other extremists, other users also grow less tolerant and less likely to indulge extremist behavior and messaging. For example, after Reddit banned several notorious subreddits in 2015, leaving many toxic users no place to gather, a 2017 study of the remaining communities on the site found that hate speech decreased across Reddit.”
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“As for the extremists, the opposite effect often takes place. Extremist groups have typically had to sand off their more extreme edges to be welcomed on mainstream platforms. So when that still isn’t enough and they get booted off a platform like Twitter or Facebook, wherever they go next tends to be a much laxer, less restrictive, and, well, extreme internet location. That often changes the nature of the group, making its rhetoric even more extreme.”
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“One of the most frequent arguments against deplatforming is that it’s a violation of free speech. This outcry is common whenever large communities are targeted based on the content of their tweets, like when Twitter finally did start banning Nazis by the thousands. The bottom line is that social media purges are not subject to the First Amendment rule that protects Americans’ right to free speech.”
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““Some argue that certain websites have gotten so large that they’ve become the de facto ‘public square,’” he said, “and thus should be held to the First Amendment’s speech-protective standards.”
In an actual public square, First Amendment rights would probably apply. But no matter how much social media may resemble that kind of real space, the platforms and the corporations that own them are — at least for now — considered private businesses rather than public spaces. And as Geronimo pointed out, “A private property owner isn’t required to host any particular speech, whether that’s in my living room, at a private business, or on a private website.””
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“courts have consistently rejected free speech arguments in favor of protecting the rights of social media companies to police their sites the way they want to.”
“POLITICO spoke to 10 National Guardsmen who have taken part in the protest response across the country since the killing of George Floyd while in police custody. Many Guardsmen said they felt uncomfortable with the way they were used to handle the unrest because demonstrators lumped them in with the police. They felt that while they swore an oath to uphold the Constitution, their presence at times intimidated Americans from expressing their opinions and even escalated the tension.
And in the case of Guardsmen involved in the Lafayette incident, some felt used.
“As a military officer, what I saw was more or less really f—ed up,” said one D.C. Guardsman who was deployed to Lafayette Square last Monday and who, like some others, spoke on condition of anonymity to speak freely. The official line from the White House that the protesters had turned violent, he said, is false.”
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““I’m here to support and defend the Constitution of the United States and what I just saw goes against my oath and to see everyone try to cover up what really happened,” the Guardsman continued. “What I saw was just absolutely wrong.””
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“One of the Guardsmen at the scene said the White House isn’t being truthful.
“I’ve been tear gassed before. I was there the night before when we got tear gassed, there was tear gas there” on Monday evening, he said. He added that he and some of his soldiers felt the effects of the tear gas from their colleagues because they didn’t have masks on.”
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“The U.S. Park Police has acknowledged firing pepper balls into the crowd, which is also a chemical irritant.”
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“The officer said he even told Gen. Mark Milley, the chairman of the Joint Chiefs of Staff, just before the Park Police moved in that the protests had been peaceful that day, a sentiment that was shared by three other Guardsmen who were there.”
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” As of Monday, 42,700 National Guardsmen were deployed across 34 states and D.C. to deal with protests. At the height of the response last week, 1,200 D.C. National Guardsmen and another 3,900 from 11 states were patrolling the nation’s capital. Defense Secretary Mark Esper gave the order for the out-of-state Guardsmen to begin leaving on Friday; all are expected to return home by Wednesday.”
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“Torrie Osterholm, the D.C. National Guard’s director of psychological health, said in an interview that many Guardsmen have reached out to her in the past week to express the pain and confusion they struggled with during and after the mission, both for what they witnessed and how the protesters reacted.
One Guardsman told her, “‘I never thought I’d get a bottle thrown at me and be told I should die and I should kill myself,’” Osterholm said. “There’s not enough Kevlar to protect you from those kinds of statements spoken in your own language.”
Walker, the D.C. Guard commander, acknowledged the challenges Guardsmen faced in a Sunday briefing with reporters.
“I have some Guardsmen whose family members came out and criticized them. ‘What are you doing out here, aren’t you black?’” Walker said. “Of course, we’re all hurting. The nation is hurting.””