After Saturday’s white supremacist riots and violence against counter-protesters in Charlottesville, Virginia, community members in the city and people nationwide are still reeling. Reported Nazi sympathizer James Alex Fields, Jr., plowed his gray Dodge Challenger through a group of counter-protesters, killing 32-year-old legal assistant Heather Heyer and injuring at least 19 others. Fields has been charged with second-degree murder, three counts of malicious wounding, and one count of hit and run.

Fields’ attack was only one piece of the violence on Saturday. White supremacists, neo-Nazis, and neo-Confederates beat counter-protesters and marched through the streets of Charlottesville with Nazi flags, white supremacist images, and anti-Semitic chants. Following the weekend’s attacks, people are passing around the blame for the white supremacists’ acts of terror in Charlottesville.

In an interview with NPR’s David Green, Virginia Governor Terry McAuliffe explained that the city of Charlottesville had tried to relocate the rally to a more open park about a mile and half away from Emancipation Park, outside of downtown Charlottesville. However, the ACLU of Virginia joined a lawsuit against Charlottesville after the city refused to allow “Unite The Right” organizer Jason Kessler and his supporters to access Emancipation Park on Saturday for the previously approved demonstration.

“That rally should not have been in the middle of downtown – to disperse all those people from the park where they dispersed all over the city streets,” McAuliffe told NPR. “And it became a powder keg. And we got to look at these permits, and we got to look at where we put these rallies and protesters. I got to protect public safety.”

The ACLU of Virginia’s Executive Director Claire G. Gastanaga fired back at McAuliffe on Monday, condemning the violence that took place in Charlottesville but defending her organization’s involvement in the lawsuit against the city.

“We asked the city to adhere to the U.S. Constitution and ensure people’s safety at the protest,” Gastanaga said. “It failed to do so. In our system, the city makes the rules and the courts enforce them. Our role is to ensure that the system works the same for everyone.”

She said the city had failed to present sufficient evidence to the judge that moving the location of the rally would in fact result in no demonstration in downtown Charlottesville, instead of creating a situation in which the city would have to deal with two demonstrations in two separate locations.

“But let’s be clear: our lawsuit challenging the city to act constitutionally did not cause violence nor did it in any way address the question whether demonstrators could carry sticks or other weapons at the events,” Gastanaga said.

Over the years, the ACLU has taken somewhat of an absolutist stance on First Amendment rights, even defending speech that it hates. The organization was recently criticized by one of its own attorneys after the ACLU decided to defend Milo Yiannopoulos, a writer and speaker who is infamous for espousing hate against people of color, Muslims, immigrants, transgender people, and other marginalized individuals.

The events in Charlottesville and the ACLU’s defense of the constitutional rights of white supremacists, Nazis, and other hate-mongers raises an important question: what happens when the First Amendment–or any constitutional right for that matter–is used to protect hate and oppress other people?

In United States v. Schwimmer (1929), a pacifist applicant for naturalization was denied U.S. citizenship because she expressed that she “would not take up arms personally” in defense of the country. In his dissenting opinion, Justice Oliver Wendell Holmes asserted that the Constitution protects thoughts that we may not agree with.

“Some of her answers might excite popular prejudice, but if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought–not free thought for those who agree with us but freedom for the thought that we hate,” Holmes wrote.

That idea has been applied in other cases over the years and has evolved to include hate speech as part of protected speech. The Supreme Court upheld that principle in June when it reaffirmed that hate speech is protected under the First Amendment. Matal v. Tam dealt with the right of Asian American musician Simon Tam and his band “The Slants” to trademark their band name. The band’s trademark application was originally denied because of the band’s inclusion of a racial slur used to refer to Asians in their name.

Justice Samuel Alito wrote that the government’s restriction of “speech expressing ideas that offend … strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.'”

Of course, there are exceptions to that rule as well. The “fighting words” doctrine, which arose out of the Chaplinsky v. New Hampshire (1942) decision, has been used to curtail speech used to incite violence. According to Chaplinsky, fighting words are “words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitutes a breach of the peace by the speaker — including ‘classical fighting words,’ words in current use less ‘classical’ but equally likely to cause violence, and other disorderly words, including profanity, obscenity and threats.”

So where does the legality of the language used in Charlottesville fall on the protected/unprotected speech spectrum? Well, it can be a bit tricky. During the Charlottesville riots, white supremacists and neo-Nazis chanted anti-Semitic phrases like “Blood and soil,” which is derived from language that was used in Nazi Germany. However, if those chants were not spoken directly to a specific person, precedent may deem them to be hate speech but not fighting words. In other instances, rioters targeted specific individuals with racial and homophobic language. In those cases where particular individuals were singled out, a court might find that the aggressor was using fighting words.

Under current legal precedents, restrictions on free speech are not the clearest. What is clear is that hate groups are able to use discriminatory language that instills fear in marginalized communities without necessarily experiencing repercussions for that speech.

But it is also important, and perhaps more effective, to call out hate speech within our own communities. Eliminating hate speech is an important step in combating racism and other forms of hate, but people must also be willing to confront the beliefs and behavior that language is rooted in. Organizations like the subscription-based service Safety Pin Box provide substantive ways that allies can actively show their support for marginalized people, beyond mere social media posts “in solidarity.” People can also donate to anti-racism organizations and call their local, state, and national representatives in regard to specific issues. The events in Charlottesville are an overt demonstration of white supremacy, but they are only symptomatic of more systematic white supremacist structures. In order to combat white supremacy and other forms of hate, people must first address oppressive language and behavior in their own lives among family, friends, co-workers, and other community members.

Marcus Dieterle

Marcus is an editorial intern at Law Street. He is a rising senior at Towson University where he is double majoring in mass communication (with a concentration in journalism and new media) and political science. When he isn’t in the newsroom, you can probably find him reading on the train, practicing his Portuguese, or eating too much pasta. Contact Marcus at Staff@LawStreetMedia.com.

The post What Happens When the First Amendment Is Used to Protect Hate? appeared first on Law Street.

When Pokémon Go debuted last summer, the mobile game spread across the world–as of April 2017, more than 65 million people were playing, according to Business Insider. The game got people to exercise outside as they pursued Pokémon, but there were also some safety issues because of its augmented reality style.

Milwaukee County enacted an ordinance in February to curb the presence of Pokémon Go-style games in the city. According to the ordinance, game developers would be required to apply for a permit for augmented reality games, like Pokémon Go, to be played in parks.

But last week, U.S. District Judge J.P. Stadtmueller halted the ordinance because he said it may violate the First Amendment. Stadtmueller issued a preliminary injunction that the county cannot enforce the measure until a lawsuit between the county and Candy Lab Inc., which develops augmented reality games, is finished.

Candy Lab Inc. filed the lawsuit in response to the county’s ordinance, according to a local Fox affiliate. Under the county’s order, companies must also obtain a “certificate of insurance” worth $1 million of “general liability coverage,” according to The Hollywood Reporter.

Milwaukee County board supervisor Sheldon Wasserman filed the ordinance because the county was struggling to police activity in parks that doubled as “Pokémon centers” or “Pokémon gyms” for the game. The main issues included “traffic congestion, parking issues, littering, damaged turf, risks to natural habitats, lack of restrooms, and noncompliance with park system operational hours,” according to a report by Milwaukee County Parks. 

Milwaukee County is by far the largest in Wisconsin, home to over 16 percent of the state’s population. Other areas of the country have also experienced safety issues stemming from the game, which can distract people as they walk at night. Last year, three University of Maryland students were robbed at gun point on campus in a one-hour span while playing the game, according to the Baltimore Sun.

The federal judge wasn’t swayed by the public safety issues, however. Instead, Stadtmueller recommends that the county allocate resources to remedying the issue instead of putting the pressure on the companies:

Rather than prohibit publication of the game itself, the County could address its concerns by directly regulating the objectionable downstream conduct. … This might include aggressively penalizing gamers who violate park rules or limiting gamers to certain areas of the park. Such measures would assuage the alleged evils visited upon the parks by gamers while stifling less expression than the Ordinance does.

One issue Stadtmueller brought up in his decision was how broad the restrictions were. For a law such as this to be constitutional, he said, it must be narrowly-tailored to the specific issue and content neutral. The judge didn’t feel that was the case. Stadtmueller believes the current restrictions are too “vague” and provide too much censorship power to government officials, according to The Hollywood Reporter.

The county claims that the games can’t be considered speech, according to a local Fox affiliate. But Stadtmueller said the plot, characters, and dialogue make the game an expression of free speech.

Despite the decision, Wasserman is still committed to fighting for the ordinance. He said he is particularly intrigued by the groundbreaking nature of the case and the potential ramifications.

“I’ve also been told by the lawyers that this case is getting so hot, and that it brings up so many constitutional questions, that this has the potential to go all the way up to the U.S. Supreme Court,” Wasserman said.

Only 10 years ago it would have seemed impossible that people would walk around with their phones catching virtual Pokémon and visiting parks or buildings to battle other gamers. But now that is a reality local governments are facing.

Whichever direction the court proceeds, it will have a ripple effect across the gaming and mobile application industry. Because of the initial injunction, though, Pokémon Go fans can rejoice and continue to enjoy the application wherever, and whenever, they want.

Josh Schmidt

Josh Schmidt is an editorial intern and is a native of the Washington D.C Metropolitan area. He is working towards a degree in multi-platform journalism with a minor in history at nearby University of Maryland. Contact Josh at staff@LawStreetMedia.com.

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The parliament in Germany passed a controversial bill last Friday that would give social media companies such as Google, Facebook, and Twitter 24 hours to remove explicitly hateful speech and “obviously illegal” content before facing a fine of up to 50 million euros ($57 million).

Holocaust denial, dissemination of Nazi symbols, racist agitation, and antisemitic language are considered illegal under Germany’s criminal code and would qualify for prompt removal under the Network Enforcement Act, or “Facebook law,” as some are calling it.

The law, which will take effect in October after Germany’s elections, is the toughest of its kind. It also states that social media companies will have seven days to remove other, less offensive posts, and will have to submit a public report on the complaints they have received every six months and explain how they dealt with each instance.

German Justice Minister Heiko Maas has said he wants to treat Facebook as a media company, thereby making it legally liable for hate speech on its platform.

“Freedom of opinion ends where criminal law begins,” Maas said, adding that hate crimes in Germany have increased by 300 percent in the last two years.

“These [posts] are not examples of freedom of speech. They’re attacks on freedom of speech. The worst danger to freedom of speech is a situation where threats go unpunished,” Maas said while addressing the need for the legislation.

Germany already has some of the world’s strictest regulations regarding libel, defamation, and hate speech. However, in light of recent attacks and instances of homegrown terrorism across the continent, German and European lawmakers are facing pressure to further limit radicalization and offensive speech online.

In 2015, the European Commission created a voluntary code of conduct that called for web companies to remove videos that incite terrorism or hatred.

After the attacks in London, both British Prime Minister Theresa May and French President Emmanuel Macron said they are considering laws similar to Germany’s to fine companies that “fail to take action” against terrorist propaganda and violent content.

Facebook said in a statement, “This law as it stands now will not improve efforts to tackle this important societal problem.” And in another statement from May, the company said that the measure “provides an incentive to delete content that is not clearly illegal when social networks face such a disproportionate threat of fines. It would have the effect of transferring responsibility for complex legal decisions from public authorities to private companies.”

Because of its war-torn past, Europe has been more willing to place restrictions on freedom of speech in favor of limiting propaganda and hate speech than the United States. However, critics and human rights groups say this law may be going too far.

“Many of the violations covered by the bill are highly dependent on context, context which platforms are in no position to assess,” said David Kaye, the U.N. Special Rapporteur to the High Commissioner for Human Rights. “The obligations placed upon private companies to regulate and take down content raises concern with respect to freedom of expression.”

Joe McNamee, the executive director of the digital rights group EDRi, said that the law could establish a precedent for “wholesale privatization of freedom of expression,” with “large internet companies deciding what they want the public discourse to be.”

Celia Heudebourg

Celia Heudebourg is an editorial intern for Law Street Media. She is from Paris, France and is entering her senior year at Macalester College in Minnesota where she studies international relations and political science. When she’s not reading or watching the news, she can be found planning a trip abroad or binge-watching a good Netflix show. Contact Celia at Staff@LawStreetMedia.com.

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On Monday, the Supreme Court ruled that a law banning the registration of offensive trademarks was unconstitutional. The decision was a victory for the Asian-American dance rock band The Slants–and potentially the Washington Redskins.

Simon Tam, the band’s frontman, filed a lawsuit after the U.S. Patent and Trademark Office (USPTO) denied his application for a trademark for the name “The Slants.” The agency cited the Lanham Act, which prohibits trademarks “which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”

The court ruled in an 8-0 decision that the “disparagement clause” of the Lanham Act violates the First Amendment’s free speech clause. Justice Samuel Alito, who delivered the majority opinion of the court, said Tam chose the name of the band “to ‘reclaim’ the term and drain its denigrating force.” According to Alito, the ban on offensive trademarks “offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

The federal government had argued that trademarks are government speech, but Alito wrote to the contrary, saying “trademarks are private, not government speech.” Chief Justice John Roberts as well as Justices Clarence Thomas and Stephen Breyer were in agreement on the majority opinion.

While the justices reached a unanimous judgement, they were split on why they believed it violated the first amendment. In a concurring opinion, Justice Anthony M. Kennedy, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, wrote that the measure in question constitutes “viewpoint discrimination.”

Justice Neil Gorsuch did not contribute because he had not yet been confirmed as a justice in January when the court heard the case.

The Slants celebrated the victory with a lengthy statement following the ruling. “The Supreme Court has vindicated First Amendment rights not only for our The Slants, but all Americans who are fighting against paternal government policies that ultimately lead to viewpoint discrimination,” wrote Tam.

Tam said the band never considered itself a political group, but that “the establishment of an Asian American band was a political act in of itself.” As a result, the band has integrated activism into their work by raising awareness and funds for issues affecting Asian Americans.

“Music is the best way we know how to drive social change: it overcomes social barriers in  a way that mob-mentality and fear-based political rhetoric never can,” Tam said.

The Slants’ trademark case could also impact other controversially named groups like the Washington Redskins, which has been in jeopardy of losing its team name for being racially offensive.

In 2014, the Patent and Trademark Office canceled the team’s trademark because the team’s name is a derogatory term for Native Americans. The Redskins appealed the case, but the federal appeals court had delayed hearing it until the Supreme Court ruled in Tam’s case.

Redskins attorney Lisa Blatt said the Supreme Court’s decision “resolves the Redskins’ long-standing dispute with the government.”

“The Supreme Court vindicated the team’s position that the First Amendment blocks the government from denying or cancelling a trademark registration based on the government’s opinion,” said Blatt.

Marcus Dieterle

Marcus is an editorial intern at Law Street. He is a rising senior at Towson University where he is double majoring in mass communication (with a concentration in journalism and new media) and political science. When he isn’t in the newsroom, you can probably find him reading on the train, practicing his Portuguese, or eating too much pasta. Contact Marcus at Staff@LawStreetMedia.com.

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Today, United States law enforcement officials charged the security detail for Turkish President Recep Tayyip Erdogan after they escalated a protest outside the Turkish Embassy, leading to violence.

The skirmish broke out this May after Erdogan and his security detail met with President Donald Trump at the White House on May 16. Court documents reveal the demonstration was peaceful until a group of “radicalized protesters began taunting the peaceful protesters,” according to the Washington Post.

When Erdogan’s group arrived at the property, Turkish security provoked the demonstrators and a violent outburst broke out that entangled demonstrators from both sides, Turkish security, and American law enforcement. Eleven people were injured and nine were hospitalized, as Erdogan watched from his Mercedes-Benz.

Police in Washington D.C. have been investigating the incident alongside the State Department and Secret Service.

These charges levied against Turkish security officials are the first steps since the attack a month ago. Since the incident, American authorities have been frustrated privately and publicly regarding what they perceived as a foreign government’s attack on American free speech, according to the New York Times. 

The State Department responded by saying “violence is never an appropriate response to free speech” and that officials are “communicating our concern with the Turkish government in the strongest possible terms.”

Just last week the House of Representatives passed a bill condemning the violence and asking for punishment.

While America views free speech and protest as an integral part of its democracy, the same cannot be said for Turkey. After a failed military coup last year, Erdogan’s government has pursued enemies and detractors of his regime. Nearly 200,000 people have been arrested, dismissed, or suspended from their jobs, according to the Washington Post. While the United States ranks 43rd in the World Press Freedom rankings, Turkey is ranked 155th.

One issue is that Erdogan and his team returned to Turkey just hours after the skirmish and it is unlikely that the country would extradite its people to face charges. If they ever return to the United States, however, they risk being arrested, according to the New York Times.

With that in mind, the State Department added that it would consider additional action “as appropriate under relevant laws and regulations.”

Another issue the outburst created was how it would impact diplomatic relations between the nations. It has already halted the progress of a $1.2 million arms sale to Turkey, according to the New York Times.

The incident has certainly raised tensions with Turkey, and American officials may continue to be disappointed with their attacks on protesters. Now it remains to be seen how Turkey, and Erdogan, will respond to the charges from law enforcement.

Josh Schmidt

Josh Schmidt is an editorial intern and is a native of the Washington D.C Metropolitan area. He is working towards a degree in multi-platform journalism with a minor in history at nearby University of Maryland. Contact Josh at staff@LawStreetMedia.com.

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President Donald Trump’s Twitter account has controversially given his almost 32 million followers direct, unfiltered access to his thoughts and stances on issues. Now that users are getting blocked from the account for offending the president, a group of lawyers say his actions infringe on their freedom of speech.

On Tuesday, the Knight First Amendment Institute at Columbia University wrote a letter asking Trump to remove the blocks, adding that they constitute a violation of the First Amendment.

This request brings up some novel legal questions: Is access to a president’s tweets and the information they contain comparable to a public town hall, despite the fact that they are being posted on a private account? If so, can the president violate the Constitution if he prevents a user’s access? The lawyers’ letter states:

When the government makes a space available to the public at large for the purpose of expressive activity, it creates a public forum form which it may not constitutionally exclude individuals on the basis of viewpoint. This is true even if the space in question is ‘metaphysical’ rather than physical; even if the space is privately rather than publicly owned; and ‘even when the limited public forum is one of [the government’s] own creation.’

On the same day the letter was written, White House press secretary Sean Spicer said in a briefing that Trump’s tweets ought to be taken seriously, thereby strengthening the lawyers’ argument. He “is the president of the United States, so they’re considered official statements by the president of the United States.”

Users have been blocked for tweets as simple as covfefe-related jokes, and policy criticism. Holly Figueroa O’Reilly was blocked from the @realDonaldTrump account after she made a joke about how the pope frowned at the president during his trip to the Vatican. She agrees that her blocking may constitute an offense to her First Amendment rights.

“This is an elected official trying to silence an entire sector of the dissenting populace,” O’Reilly said in opinion article. “This is what dictators and fascists do. This isn’t what we do here in America.

@realdonaldtrump isn't a regular citizen. He's @potus His tweets are public record. Unblock us this is unconstitutional #BlockedByTrump pic.twitter.com/a9Kw4KNTlv

— Andy Signore (@andysignore) June 7, 2017

Some, however, do not think cases like these would hold up in court. Ken White, a First Amendment litigator and blogger, told Vox that a blocked user is only being prevented from being able to “read what the president has chosen to vent on this particular site,” and not to speak about matters.

Other issues include the fact that the president has two accounts, including his @POTUS handle, and the fact that ultimately they are both hosted through a private company’s servers further muddle the legal picture.

While the debate over Trump’s Twitter blocks continues, some of his former followers have started a #BlockedByTrump hashtag, choosing to view the president’s move as a badge of honor.

Tonight I am honored to join an elite club … #BlockedByTrump. Apparently, I hurt the feelings of the "leader of the free world". SAD! pic.twitter.com/yQGyt2yBJE

— Rob Szczerba (@RJSzczerba) June 2, 2017

Is #BlockedByTrump just a hashtag or the Holy Grail of Twitter?

— Christoph Rehage (@crehage) May 30, 2017

If Trump doesn’t reverse the blocks or answer the letter, the Knight Institute says his administration should prepare for “legal action to protect the First Amendment rights of blocked individuals.”

Celia Heudebourg

Celia Heudebourg is an editorial intern for Law Street Media. She is from Paris, France and is entering her senior year at Macalester College in Minnesota where she studies international relations and political science. When she’s not reading or watching the news, she can be found planning a trip abroad or binge-watching a good Netflix show. Contact Celia at Staff@LawStreetMedia.com.

The post When Trump Blocks Twitter Followers, Does he Violate the Constitution? appeared first on Law Street.

Protests in Portland, Oregon, erupted Sunday after two men were murdered in the city last week while trying to defend young girls from anti-Muslim taunts on a train.

On one side of the Portland protests was a free speech rally for supporters of President Donald Trump. It was organized by conservative group Patriot Prayer, led by Joey Gibson, a self-described “Libertarian and a Christian.” The rally of Trump supporters, located near city hall, led to two counterprotests–a rally originating from an anti-fascist group and a “Portland Stands United Against Hate” rally.

A heavily protected police force, along with Homeland Security officers, stood between the two sides. After violence broke out, police said that officers had been assaulted.

A small group of Buddhists silently joined the Portland protests, according to the Washington Post. 

Portland police face off with counter protesters as Alt-Right activists are seen in background #trump #PDXprotests @wweek pic.twitter.com/ucqnyub87m

— William Gagan (@WillyFoReal) June 4, 2017

The groups were given protest permits despite Portland Mayor Ted Wheeler’s plea to the federal government to revoke the permission.

“Our city is in mourning, our community’s anger is real, and the timing and subject of these events can only exacerbate an already difficult situation,” Wheeler posted on Facebook.

During an interview with HLN Network, Wheeler clarified that he supports free speech no matter the topic, but believed that the timing was a threat to public safety.

While the Trump supporters argued that their rally was simply to promote the First Amendment, the other side viewed it as an endorsement of the aforementioned train stabbing.

Jeremy Christian, the suspect in the murder case, brought free speech to the forefront of his trial as he entered the courtroom on May 30.

“Get out if you don’t like free speech!” he shouted.“You call it terrorism; I call it patriotism. Die.”

Christian had been seen at previous alt-right rallies in Portland, performing Nazi salutes and screaming racial slurs, according to the Washington Post.

Despite a large police presence separating the protesters, violence erupted throughout the day. The Portland Police Department made 14 arrests at a “variety of locations” and confiscated various weapons, including bricks, hammers, and hunting knives.

Another collection of weapons seized today. pic.twitter.com/tdMmMSM2Wp

— Portland Police (@PortlandPolice) June 5, 2017

The 14 suspects, whose ages ranged from 19-to 64-years-old, were all caucasian. Three got off with citations. The charges include disorderly conduct, carrying a concealed weapon, and interfering with a peace officer. The remaining 11 suspects will be arraigned in court this Friday at Multnomah County Court, according to CNN.

Police say that the situation began with each side hurling insults and names before things escalated. At some point in the day demonstrators began throwing bottles, bricks, and balloons filled with “foul-smelling liquid,” according to USA Today.

Gibson, who claims he disapproves of Christian’s actions both on the train and at previous protests, spoke against violence at the rally.

“I want everybody here . . . to find it in yourself to make this day positive, with no hate and no violence,” he told the crowd. “We have to understand Portland is legitimately shaken up right now.”

Josh Schmidt

Josh Schmidt is an editorial intern and is a native of the Washington D.C Metropolitan area. He is working towards a degree in multi-platform journalism with a minor in history at nearby University of Maryland. Contact Josh at staff@LawStreetMedia.com.

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Are President Donald Trump and Twitter friends again?

The website–Trump’s social media platform of choice–has dropped its lawsuit against the federal government for trying to identify an anonymous user who was criticizing the president.

Twitter filed the case in a California court Thursday after it received a summons from the Department of Homeland Security’s U.S. Customs and Border Protection to reveal the person behind the Twitter account @ALT_uscis (which stands for United States Citizenship and Immigration Services). Though it is not a verified Twitter page for USCIS, the account’s administrators claim to be rogue employees who use the platform to criticize Trump’s immigration policies.

So when Twitter received DHS’s order, which allegedly requested the user’s name, login information,  phone number, mailing address, and IP address, the company refused to comply and sought to have the agency’s actions declared “unlawful and “unenforceable” in court. The American Civil Liberties Union also threw its support behind Twitter, offering to represent the individual behind the account.

One day later, the government backed off of its demands and the tech company withdrew the lawsuit.

Twitter’s lawyers say it was aiming to protect the free speech and First Amendment rights of its users from being violated by the government, and that complying with the DHS requests would “chill the expression of particularly valuable political speech.”

https://twitter.com/ALT_uscis/status/850399183127273472

But this may not be the end of the Trump Administration’s attempts to crack down on those who disagree with him. The president is not known for his ability to handle criticism well. In the past, he has lashed out after being made fun of, threatened legal action against newspapers that publish unflattering stories about him, and labeled those who say negative things about him as “haters and losers.“

Victoria Sheridan

Victoria is an editorial intern at Law Street. She is a senior journalism major and French minor at George Washington University. She’s also an editor at GW’s student newspaper, The Hatchet. In her free time, she is either traveling or planning her next trip abroad. Contact Victoria at VSheridan@LawStreetMedia.com.

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“Alexa, is your speech protected by the First Amendment?”

Amazon says yes, specifically regarding a murder trial in which authorities are trying to access recordings from one of its devices owned by the defendant.

The case involves an Arkansas man named James Andrew Bates, who police suspect murdered his friend Victor Collins after Collins was found dead in Bates’ hot tub in 2015. They obtained a search warrant for 48 hours of audio recorded by Bates’ Amazon Echo speaker around the time of Collins’ death.

Though Amazon has provided authorities with Bates’ subscriber information, they are challenging the warrant for the Echo data on constitutional grounds.

An Amazon Echo is a cylindrical speaker that can be linked to an artificially intelligent personal assistant called Alexa, whose voice plays over the speaker. Similar to how Siri functions, when a user activates Alexa by saying its name (or another “wake word”), they can ask it to answer questions, play music, send messages, or order food delivery.

Amazon first released the Echo in 2014, but the gadget has become more popular in the past year, topping the list of holiday season best-sellers and appearing in the company’s first-ever Super Bowl commercial in 2016.

In a 91-page memorandum to an Arkansas circuit court seeking to quash the warrant, the company’s lawyers wrote that both a user’s requests to Alexa and its response are protected by the First Amendment, and that handing over this information to the government would violate its customers’ privacy.

Citing the Supreme Court case Riley v. California, which determined that digital information on a cell phone could not be seized without a warrant, the legal team argued:

Once the Echo device detects the wake word, the Alexa Voice Service endeavors to respond to any ensuing voice communications detected in the user’s home. Accordingly, searching Alexa’s recordings is not the same as searching a drawer, a pocket, or a glove compartment. Like cell phones, such modern ‘smart’ electronic devices contain a multitude of data that can ‘reveal much more in combination than any isolated record,’ allowing those with access to it to reconstruct ‘[t]he sum of an individual’s private life.’ Riley v. California, 134 S. Ct. 2473, 2489 (2014).

Amazon added that the prosecutors should have to show a “compelling need” for the recordings, meaning that they would not be able to find the information they need elsewhere, and that they should have to prove that the recordings are necessary to the investigation.

The case reflects a growing trend of law enforcement clashing with technology giants. Following the 2015 San Bernardino attacks, the FBI ordered Apple to create a software that would allow it to uncover encrypted information on one of the shooter’s phones. Apple fought back with the assertion that providing the government with the key to one phone would endanger the security of all iPhones. Furthermore, the company said that forcing its engineers to write code for such a software would be classified as compelled speech, a violation of the First Amendment. Ultimately, the FBI found a third party to unlock the phone for them.

Victoria Sheridan

Victoria is an editorial intern at Law Street. She is a senior journalism major and French minor at George Washington University. She’s also an editor at GW’s student newspaper, The Hatchet. In her free time, she is either traveling or planning her next trip abroad. Contact Victoria at VSheridan@LawStreetMedia.com.

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Freedom of speech is at an all-time low worldwide, according to an annual report from the Committee to Protect Journalists (CPJ). As of December 1, 2016, there are 259 journalists imprisoned internationally, with Turkey accounting for nearly a third of the global total–making 2016 the worst year for journalists since the watchdog group began in 1990.

In its annual census, CPJ named Turkey as the most hostile nation against free press, with at least 81 imprisoned journalists facing anti-state charges–the highest number in any one country at any one time. Ranked 151^st out of 180 in the World Press Freedom Index, unprecedented levels of suppression and intimidation tactics are troubling signs of President Recep Tayyip Erdoğan’s growing authoritarianism.

According to the CPJ, the arrests have accelerated due to an ongoing crackdown on media in Turkey following a failed coup d’état in July. By government decree, Erdoğan has bypassed Turkey’s judicial system to lawfully prosecute independent media companies for even remotely criticizing the establishment. These mandates have been justified by his administration as security measures against Kurdish insurgents or sympathizers of Fethullah Gülen, the self-exiled religious cleric living in rural Pennsylvania who is accused of masterminding the unsuccessful junta this past summer.

Reporters Without Borders is another organization keeping an eye on Erdoğan’s political developments. In November, the group condemned the arrests of ten employees at the Cumhuriyet opposition newspaper. Government forces raided the publication on November 5 for its perceived connections to the Kurdistan Workers’ Party (PKK) and the Gülen movement–both of which are outlawed in Turkey. The opposition newspaper was accused of “undermining national unity” and spreading propaganda for these alleged terrorist organizations.

Another anti-terrorism investigation involved the pro-Kurdish newspaper Özgür Gündem, whose print version has a circulation of roughly 7,500. Police stormed the paper’s offices and arrested 24 people after ruling that the paper acted as the “de facto news outlet” for Kurdish rebels. TurkSat, Turkey’s sole communications satellite operator, also removed more than a dozen independent TV and radio stations from its lineup due to allegations of “separatism and subversion.”

“The Turkish government’s decision to silence still more media outlets shows its growing intolerance of open political debate and dissent of any kind,” said Robert Herman, CPJ’s vice president of international programs. “The government this time targeted stations broadcasting in Kurdish and showed its disregard for the principles of democracy.”

This past year CPJ Europe and Central Asia Program Coordinator Nina Ognianova testified to the U.S. House Foreign Affairs Committee against Turkey’s media purge. Ognianova told the committee that Turkish authorities have detained more than 100 journalists, closed more than 100 media outlets, censored approximately 30 online news sources, and retracted more than 600 press credentials, since the failed coup attempt on July 15. Passports have also been reported as confiscated, including those belonging to family members of prominent critics of Erdoğan’s establishment. Such hostility is motivating many to go into exile or flee the country.

After Turkey, the countries with next highest numbers of jailed journalists are China and Egypt. China has frequently been named the world’s worst jailer of journalists in previous years, making the top spot 18 times to be exact. A total of 38 journalists were jailed in the country this year, due in large part to a crackdown on coverage of human rights abuses. As for Egypt, 25 were detained for reporting from prohibited areas in the country.

CPJ monitors nations around the world, paying close attention to journalists in government custody. Those held by non-state actors are not included in the list. Arrest statistics are incorporated into the report after the CPJ has verified that individuals were jailed for charges relating to their work.

Jacob Atkins

Jacob Atkins is a freelance blogger and contributor for Law Street Media. After studying print journalism and international relations at American University, Jacob now resides in Madrid where he is teaching English, pursuing multimedia reporting projects and covering global news. Contact Jacob at staff@LawStreetMedia.com.

http://jacobson.pressfolios.com/

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A law designed to prevent the cyberbullying of children was ruled unconstitutional in the North Carolina Supreme Court this past week. In State of North Carolina v. Robert Bishop, the state Supreme Court was asked to assess the validity of the defendant’s claim that a North Carolina law against cyberbullying was a violation of the First Amendment protection of free speech.

The case before the Supreme Court began in February of 2012 when a high school student named Robert Bishop was charged with cyberbullying under a North Carolina statute. Bishop had posted a photo of a sexual message that one of his classmates, Dillon Price, had supposedly sent the defendant. Following several more posts and accusations by Price that the defendant had falsified the sexual messages, Bishop was arrested for cyberbullying.

According to N.C.G.S. § 14-458.1, specifically under section (a)(1)(d), it is illegal to post private, personal, or sexual information related to a minor on the internet with the intent to intimidate said minor. After his arrest and conviction, Bishop appealed to the Superior Court in his county, aiming to dismiss his charges on the grounds that the North Carolina statute is a violation of free speech because it restricts speech based on content. The Court of Appeals unanimously rejected the defendant’s arguments, ruling that the statute regulates conduct rather than speech and that to “the extent the Cyber-bullying Statute touches upon or regulates some aspects of some speech, the burden on speech and expression is merely incidental.”

After this ruling, the defendant once again appealed his case, this time to the Supreme Court of North Carolina.

The state Supreme Court held that N.C.G.S. § 14-458.1 was an unconstitutional restriction of free speech. This decision was based in part on the fact that the statute was content-based and not sufficiently narrow in its interest to protect children from cyberbullying. This holding reversed the decision of the Court of Appeals and simultaneously reversed the defendant’s conviction for cyberbullying under the statute.

What does this mean for the future of cyberbullying in North Carolina? The statute has been struck down, so, pending future cyberbullying laws being written, there isn’t currently a law to point to when a child is being bullied on the internet. Attorney General Roy Cooper, an avid supporter of the law, is worried about the severity of cyberbullying and the state’s ability to protect children from it:

Just because violence happens online doesn’t make it any less real or less hurtful. Cyberbullying can lead to physical harm, depression in its victims and even suicide and it’s troubling to see this law overturned.

On the positive side of things, this ruling may serve as an example to future law makers about the importance of precise language in laws. With any luck, a more narrowly tailored law can be written that will protect kids on the internet.

Alexandra Simone

Alex Simone is an Editorial Senior Fellow at Law Street and a student at The George Washington University, studying Political Science. She is passionate about law and government, but also enjoys the finer things in life like watching crime dramas and enjoying a nice DC brunch. Contact Alex at ASimone@LawStreetmedia.com

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First, it was a song and video, satirizing him as a “big boss” whose neck swells at the sight of press freedom. Then: a poem read by a German comic on television that skewered him, making his blood boil, finally inciting him to respond. Turkey’s President Recep Tayyip Erdogan is unhappy with the recent barbs aimed at him by public figures in Germany, and has embarked on a courtroom assault to punish those who have launched satirical attacks against him, stirring up important questions for Germany to mull over: Is it unlawful for a German citizen to offend a foreign leader? Can Germans be silenced from abroad?

The latest development in the notoriously thin-skinned Turkish leader’s crusade against German critics came Tuesday when a court denied his injunction against Mathias Döpfner, the head of one of Germany’s largest media outlets. Döpfner wrote a letter–championing “freedom of expression, art and satire”–in support of Jan Böhmermann, the comic who performed the scathing poem on German television in April.

Tuesday’s ruling is a blow to Erdogan’s silencing campaign. Ralf Höcker, the lawyer representing Erdogan in Germany, said his efforts to silence the “online lynch mob” are about “human dignity, namely to protect it.” The Cologne state court backed Döpfner’s right to free speech, calling it “a contribution to building public opinion in a controversial debate.” A spokeswoman for Axel Springer, the media company Döpfner is chairman of, called the case “baseless.”

Erdogan’s legal case rests on an 1871 German law that prohibits the mocking or offending of a foreign leader. In summoning the obscure, forgotten law, he joins an esteemed club of heads of state whose critics have been silenced in the past: Shah Mohammed Reza Pahlavi of Iran and former dictator Augusto Pinochet of Chile.

The law was first brought back from obscurity in April, when Erdogan called on a German court to prosecute the comic, Böhmermann, on the basis of the 1871 law. Some Germans expressed ire at their own leader, Merkel, for her inaction in denouncing Erdogan’s attempts to suppress free speech.

“We champion that our partners and allies guarantee freedom of opinion and the independence of justice to the same extent as they are in Europe and other countries of the democratic world,” Merkel said in April, during a press conference in which she granted Turkey the go-ahead in its legal case against the satirist Böhmermann. The trial has yet to begin, as prosecutors are still investigating the case.

Erdogan’s move to silence his German critics comes at a time of increased cooperation between his government and that of German Chancellor Angela Merkel, as the European Union tries to stem the flow of refugees uprooted from the Middle East. A favored route of the Syrians, Iraqis, and Afghanis seeking refuge in Europe goes through Anatolia, from Turkish ports to Greek ones, then into Eastern Europe and beyond. Many asylum seekers hope to eventually reach Germany, which has Europe’s strongest economy and most lenient refugee stance.

The deal between Turkey and the European Union–with Merkel as its foremost representative–went into effect in March. As the enforcement of the agreement rests largely on Erdogan, he has used his newfound leverage as a tool to extend his penchant for silencing critics beyond his own borders and into Germany. How that leverage will manifest itself in the future is certainly worth keeping an eye on.

And while Germans wait for the outcome of Böhmermann’s case, they will not stop satirizing Erdogan. Instead, they’ve found more creative outlets for their ribbing: Erdogan-Burgers, anyone?

Alec Siegel

Alec Siegel is a staff writer at Law Street Media. When he’s not working at Law Street he’s either cooking a mediocre tofu dish or enjoying a run in the woods. His passions include: gooey chocolate chips, black coffee, mountains, the Animal Kingdom in general, and John Lennon. Baklava is his achilles heel. Contact Alec at ASiegel@LawStreetMedia.com.

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Earlier today, the hashtag #ThingsCollegeKidsDontGet began trending, prompting tons of funny, serious, and occasionally thought-provoking responses. Those who used the hashtag appeared to fall into two camps–some college students used it to lament the economic climate they’ve inherited–citing “affordable tuition,” “jobs,” and “a break” as things they don’t get. But there was also a way louder voice using the hashtag–those who are critical of college students following recent instances of contentious protests about race and equality across the country, most notably Mizzou and Yale. The hashtag is an interesting look into the generational divide in the U.S. that may be widening even further.

Let’s take a look at the tweets from those who believe that college students are overly sensitive:

#ThingsCollegeKidsDontGet that college is unbelievably easy, your degree impresses no one, and real life has no “safe spaces”

— Steven Crowder (@scrowder) December 14, 2015

#ThingsCollegeKidsDontGet A job after majoring in Lesbian Dance Theory.

— Ben Shapiro (@benshapiro) December 14, 2015

#ThingsCollegeKidsDontGet You can’t be anti capitalism and post on twitter with your Iphone.

— Cyborgwolf (@Cyborgwolf) December 14, 2015

#ThingsCollegeKidsDontGet The first amendment, apparently. — ScottInSC (@ScottInSC) December 14, 2015

The narrative that college students have become increasingly over-sensitive is a popular one right now. Pew conducted a widely-circulated poll that appeared to indicate that it’s true–40 percent of millennial respondents answered that the government should be allowed to limit speech that is offensive to minorities. In contrast, only 27 percent of Gen X-ers felt that way, as well as 24 percent of boomers, and 12 percent of the silent generation.

In light of the recent protests at Mizzou, Yale, and other schools, many (mostly conservative) writers and thinkers pointed to that Pew poll as evidence that millennials were overly sensitive and didn’t appreciate or understand the First Amendment. But is the concept that young people, particularly college students, are way more likely to be offended a fair assessment? Not so fast–these numbers can’t be taken out of context, and this is way more nuanced than a straight up-and-down vote on free speech. Jesse Singal, of NY Magazine, pointed out that the numbers reported by Pew weren’t some sort of crazy outlier just happening with American millennials. Singal stated, in regards to American tendencies when discussing free speech attitudes:

They’ve shown over and over again that they favor free speech in theory, when asked about it in the broadest terms, but they also tend to be fairly enthusiastic about government bans on forms of speech they find particularly offensive (what’s considered offensive, of course, changes with the times). On this subject, millennials are right in line with reams of past polling, and it would be wrong to hold up last week’s results as an example of anything other than an extremely broad tendency that’s existed for a long time.

There’s also not necessarily compelling evidence that college environments are turning our young people toward reactionary sensitivity. Michael McGough, of the Los Angeles Times, pointed out that “it seems that college students and college graduates are less prone to support punishment of ‘offensive’ speech than those who haven’t attended college.”

But this isn’t just all about numbers–there is, generally speaking, a legitimate and frustrating ideological split among older Americans and younger Americans when it comes to things like free speech and what constitutes “offensive.” #ThingsCollegeStudentsDontGet seems to be a manifest of that frustration–and indicative of the fact that the generational divide on social issues is very much alive and well. 

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

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Freedom of speech is one of our rights in the United States, and it is guaranteed by the First Amendment. So it is hard to believe that something like social media that a majority of us use every day, could be the exception to the rule that we can say what we want to say without fear of backlash. In general, there are exceptions that prevent hate speech, defamation, and threats. Some of these aren’t legal, just frowned upon by the society at large, while others can get someone in trouble. Social media sites allow for the spread of all types of speech, from spoken word pieces on sites like YouTube, to shorter phrases said in 140 characters on Twitter. The publication of negative speech has some positive and negative consequences. We’ve seen them play out in the last few years with events in Ferguson, the Occupy Wall Street movement, and every major election.

It is difficult, however, to choose which pieces of speech are worthy of protection from action and which can be used against someone in legal proceedings. Not everything said on social media can be taken at face value. What one person deems as offensive and disturbing may incite a different emotion in another person. Striking a balance between unfiltered free speech, political correctness, and censorship is difficult. Censoring what is allowed on social media may seem like it goes against our Constitutional Rights, but allowing a free-for-all on speech can lead to threats, bullying, and hate speech.

Social Media’s Impact

Speech is not, nor has it ever been, a completely good vs. evil situation. There is so much more behind a string of text than just the literal meaning of the words. This is what makes it so difficult to decide who and what has a right to be on social media sites like Twitter, Facebook, and Tumblr. Some countries, like North Korea, Iran, China, Pakistan, and Turkey, have completely blocked their citizens’ access to social media sites as a way to ward off the problem. They operate under the theory that if you take away the cause, you won’t have to worry about it.

Many websites and apps do have “report” features so that a user can alert the webmasters that something has gone wrong. This begs the question, if someone says something terrible on social media, and it is reported but nothing happens, who is responsible for the fall out? It’s an increasingly important topic across the world; this isn’t just limited to the United States.

City of Ontario, California, et al v. Quon, et al

In 2009, the Supreme Court of California heard a case that discussed the rights to free speech in text messaging between employees. Employees of the City of Ontario, California filed a claim in district court against the police department, city, chief of police, and an internal affairs officer. They believed that their Fourth Amendment rights were violated when their text messages on city-issued pagers were reviewed. The city did not have a text-messaging policy; however, it did have a general “Computer Usage, Internet, and E-mail” policy. Those employees felt as if that particular section did not cover their pagers. The court held that the city employees had a right to privacy in their text messages because there was no specific language about text messaging in the city’s policy.

This, along with several other cases about Cloud privacy has prompted many to ask the question: are Supreme Court justices too out of the loop to fully understand the severity of the problem? Most–though admittedly not all–Justices don’t interact with social media to a great extent. Perhaps one or two may have a Twitter account, but those are often controlled by members of their team. President Obama, who is largely considered more modern with technology, is the first sitting President to have a Twitter account, but there are questions about just who actually runs it.

 Anthony Elonis v. United States

This case concerns a Pennsylvania man, Anthony Elonis, and his post of violence-filled rap lyrics aimed toward his ex-wife. He didn’t use his own name, but rather the pseudonym Tone Dougie. His rap suggested that he should use his wife’s “head on a stick” in his Halloween costume. He used images that haunt the public mind, saying that he was going to terrorize a school as “Hell hath no fury like a crazy man in a kindergarten class.” Some of the other lyrics were extremely troubling:

There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave. I used to be a nice guy but then you became a slut.

He also rapped about killing federal agents. Tara Elonis, his ex-wife, felt threatened by the song. The court had to judge “whether the threatening speaker intended to harm anyone or whether the listener was genuinely afraid of being harmed.” Nancy Leong pointed out in the Huffington Post that, “because the Internet filters out voice and demeanor cues, online statements provide less information about the seriousness of the statement, and are thus more likely to be reasonably interpreted as threats.“

Elonis didn’t seem to be too upset at first, posting on Facebook: “Did you know that it’s illegal for me to say I want to kill my wife? It’s illegal. It’s indirect criminal contempt … I also found out it’s incredibly illegal, extremely illegal, to go on Facebook and say something like the best place to fire a mortar launcher at her house would be the cornfield behind it …”

The case is ongoing and it has incited intense emotions from both sides of the fence.

The Good

What are the benefits of having freedom of expression on social media? Surely, it is a way for some people to vent their anger without feeling self-conscious, nervous, or upset without resorting to violent actions. Everyone has a right to say what they think. We’ll never know, thankfully, if Elonis would have followed through on the threats in his rap.

Retweets, liking, or even posting your own status can be as effective as screaming at the top of your lungs at a protest. Lately, Facebook has been full of posts that educated everyone on topics relating to racism and the plight of African Americans in modern day America. There are always a few feminist pieces floating around. LGBTQ statuses, articles, and debate appear often, as well. Looking into the comments of these pieces, it is easy to see a cross section of what people believe about the topic. After all, the best way to argue for something is to know why people are arguing against it.

Social media has also become a home to those people who post positive things about topics from body-positive Instagram campaigns to equal media representation groups on Tumblr.

The Bad

To quote Uncle Ben from Spiderman: With great power, comes great responsibility. Unfortunately, many people do not understand their responsibility to fellow man. People who don’t believe in the status quo (or those who believe in the previous status quo that is now shifting to another) can stir up some pretty harsh feelings. People have the right to believe whatever they want, but these more extreme views on politics, racism, sexism, and homosexuality can start verbal sparring matches that help no one.

People have been using social media to post threats that haven’t been taken seriously for years. Stricter online controls would help alert the authorities in some cases, and even protect the innocent. Social media can be used for internet bullying, which in some cases is worse than the traditional verbal bullying. Online gossiping and social media platforms allow the bullying to continually exist–a problem for both the bully and the bullied.

Conclusion

Social media is one of the best inventions of the last century. It allows us to stay in contact with people we would have left behind, and it allows us to preserve our memories in a time capsule. However, it can also make or break a person depending on how someone reacts. Truthfully, the problem isn’t a freedom of speech issue, but rather one of morality. Can we take morals and apply them to the virtual world?

Resources

Primary

Supreme Court: City of Ontario, California, et al v. Quon et al

Constitution: First Amendment

Constitution: Fourth Amendment

Additional

Slate: Are Facebook Threats Real?

Huffington Post: Constitutional Rights in the Digital Age

The New York Times: Do Online Death Threats Count as Free Speech?

Salon: The Supreme Court’s baffling tech illiteracy is becoming a problem

Business Insider: This Guy’s Facebook Rants Put Him In Prison, And The Supreme Court Will Hear His Case Today

Truth Out: This Time, “Free Speech” Cannot Prevail

ABA: United States v. Anthony Elonis – Third Circuit

Index on Censorship: 10 Countries that have Social Media Banned

The New York Times: Chief Justice Samples Eminem in Online Threats Case

First Amendment Center: Social Networking

Bloomberg: The 8 Most Important Cases in the New Supreme Court Term

Noel Diem

Law Street contributor Noel Diem is an editor and aspiring author based in Reading, Pennsylvania. She is an alum of Albright College where she studied English and Secondary Education. In her spare time she enjoys traveling, theater, fashion, and literature. Contact Noel at staff@LawStreetMedia.com.

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In an ideal world elections would be determined by a competition of ideas. But in today’s world, politics in the United States is determined by fundraising, wealth, and access. Regulations stipulating how campaigns can be financed determine who can donate how much in elections and what the money can be used for. Some argue campaign donations should be protected as a form a free speech while others see these donations as giving the wealthy undue political influence. Read on for the history, controversy, and future for campaign finance reforms.

What is campaign finance?

Campaign finance refers to all money raised to support political candidates, organizations, parties, or initiatives in elections. Any successful political campaign typically costs a significant amount of money. Money is needed to cover travel expenses, pay for political consulting, and to communicate with voters. Advertising costs are by far the most significant expense in heated political campaigns.

This fundraising takes a new turn with corporations and wealthy individuals interested in spending as much as possible to support their candidate. At the federal level, campaign finance is regulated by the Federal Election Commission (FEC). At lower levels, it is governed by state and local law. Most campaign spending comes from private groups, but qualifying presidential candidates can opt to use public money.  Regulation typically takes the form of disclosure, contribution limits, and the limits that come with public financing. The strange array of political terms surrounding campaign finance often makes it hard for people to follow the actual debate.

• Political Action Committees (PACs) – the private groups that fundraise from individual contributors to spend money for political purposes. PACs are necessary since corporations and unions cannot directly donate money to a candidate or national party committee.
• Super PACs – emerged more recently due to Supreme Court decisions. These organizations have no legal limit on the amount they can spend so long as they are politically independent of the actual campaign.
• Hard money – includes donations regulated by the FEC that are made directly to political candidates by individuals and corporations. The names of those who contribute and how much they contribute are publicly available.
• Soft money – known as an indirect donation, it is often given to a political party rather than a candidate and thus can avoid certain legal limitations.
• 527 organizations – refers to advocacy groups like traditional PACs and political parties, named after their IRS code and tax-exempt status.

Watch below for more on how campaign finance works:

What is the history of campaign finance?

Numerous laws and Supreme Court cases have attempted to regulate campaign finance. Typically it is not until a political scandal that there is a push for more stringent regulation in financing.

Tillman Act

In 1907 the Tillman Act became the first ever campaign finance law after Theodore Roosevelt faced questions about which corporations funded his campaign in 1904. The Act banned corporate contributions to national campaigns; however, the law lacked any real method of enforcement.

Federal Election Commission Act (FECA)

In 1971 modern campaign finance rules were born. FECA instituted disclosure requirements for federal candidates. The Act was rewritten in 1974 after it surfaced that Richard Nixon used corrupt funds in his re-election campaign. These amendments established a system of regulation and enforcement through the Federal Election Commission. FECA also created new public financing for presidential elections to limit the influence of money. The new law put limits on individual contributions to candidates, contributions to PACs, total campaign expenditures, and spending by individuals or groups to a specific candidate.

The constitutionality of FECA was challenged in the case of Buckley v. Valeo. The Supreme Court upheld the limits on individual donations and disclosure requirements, citing the compelling state interest to prevent corruption. However, the Court stated that the limits on what campaigns and individuals could spend was a violation of the First Amendment. Further, disclosure could only apply to communications expressly advocating for a candidate. There are three key takeaways from the case:

1. Free speech allows individuals to spend unlimited political money.
2. TV or radio ads that expressly advocate for or against a specific candidate, by using words like “elect” or “defeat,” must be financed with regulated money.
3. Corporations, unions, and individuals can contribute unlimited “soft money” to political parties in an effort to influence campaigns. This encouraged many companies to set up PACs to donate.

Bipartisan Campaign Reform Act

In 2002 the Bipartisan Campaign Reform Act, or McCain-Feingold Act, was passed after it came out that wealthy Democratic donors were given special privileges and the Party had illegally accepted foreign money. The Act prohibited corporations and unions from donating directly to candidates. However, it did not regulate 527 organizations. Because of this many soft money activities previously funded by parties were now done by 527 groups.

Watch a musical overview of the history of campaign finance below:

How is campaign finance regulated today?

Rules regarding campaign finance continue to change, making many things fair game that were once illegal.

Citizens United v. Federal Election Commission

In a January 2010 5-4 decision, the Supreme Court ruled that the government cannot prohibit corporations and unions from spending money for political purposes. Essentially this allows corporations and unions to spend as much as they want on campaigns.

In the March 2010 case of Speechnow.org v. Federal Election Commission, the Federal Court of Appeals for the D.C. Circuit unanimously ruled there should be no contribution limit to groups that only make independent, uncoordinated expenditures to a campaign.

These rulings led to the rise of super PACs. Super PACs are known formally as “independent-expenditure only committees” because they cannot make contributions directly to candidates but instead spend on political advocacy independently of campaigns. Unlike regular PACs, these super PACs have no legal limit to the funds they can raise from various groups, provided they are operated correctly.

Watch the story of Citizens United v. FEC below:

McCutcheon v. Federal Election Commission

In April 2014, a 5-4 decision by the Supreme Court struck down caps on what individuals can contribute to federal candidates in any two-year election cycle because they restrict the democratic process and violate the First Amendment.

Public Funding

At the federal level, public funding is available for presidential campaigns. If a candidate agrees to limit his spending according to a formula, the candidate will receive a matching payment for the first $250 of each individual contribution in the primary campaign. Additionally, the candidate receives financing for the national nominating convention and general election campaign. Candidates have to qualify for funding by privately raising $5,000 in at least 20 states. If a candidate refuses matching funds, she is free to spend as much money as she raises privately. In the 2012 election no major candidate opted to take public funds since candidates can typically raise and spend more on their own. The price of a winning election today has made public funding near obsolete.

What are the arguments surrounding campaign finance reform?

Many of the Supreme Court justices who ruled on recent campaign finance cases decided that spending money for political purposes is equivalent to free speech and should be protected by the First Amendment. The same reasoning extends to corporations, in citing that corporations are made up of individuals and should enjoy the same political rights as individuals. Those who argue for fewer donation restrictions cite their rights guaranteed by the First Amendment.

Opponents argue the lack of restrictions gives the wealthiest unfair influence over the government. Senator John McCain (R-AZ) told Retro Report, “If money is free speech, then the wealthiest people in America are those that get to speak the most freely.”

For example, a study by the Sunlight Foundation found that just one percent of the top one percent of the United States population accounted for 28 percent of all disclosed contributions in the 2012 elections. In a statement Senator Mark Udall (D-CO) echoed these findings: “The American people are angry that a billionaire can dole out $3.6 million to influence an election — meanwhile, it would take a full-time minimum wage worker 239 years to make that much money.”

Most take issue with the rapid expansion of dark money to organizations under a 501(c)(4) designation by the IRS. 501(c)(4)s are defined as social welfare organizations and are tax-exempt. However, these organizations are allowed to participate in political campaigns so long as their primary purpose is promoting social welfare. Examples of these organizations include the Sierra Club, NAACP, and National Rifle Association.

These organizations do not have to disclose spending on political activity nor the names of donors unless they donate expressly for political advocacy. The use of these organizations for political advocacy has contributed to a sharp rise in outside spending without disclosure. A 2011 report by the Center for Responsive Politics found that since the 2006 midterms, spending from groups that do not disclose donors rose from one percent to 47 percent. Many cite large donations by these groups as a form of legal bribery, with the expectation of political favors following each donation.

Are there new developments in campaign finance?

Many Democrats in Congress have called for an amendment to undo the Citizens United ruling, but that seems very unlikely to happen. Senator Tom Udall (D-NM) proposed an amendment to undo the Citizens United case and instead allow Congress to regulate political money. Numerous Senate Democrats signed on. Harry Reid vowed to bring the measure to the floor, but most agree it has little chance of passing.

Democrats introduced a DISCLOSE Act in 2010, 2012, and again in 2014, which would require organizations that spend $10,000 or more in an election cycle to disclose their expenditures and major donors. Republicans have opposed such bills from the standpoint that they give an unfair advantage to their Democratic opponents. Learn more about the DISCLOSE Act below:

The amount of money spent in elections continues to grow at an alarming rate. The Center for Responsive Politics predicts almost $4 billion will be spent in the 2014 midterm elections, making it the most expensive midterm ever. While the 2010 midterm cost $3.6 billion, 2014 will run an estimated $333 million beyond that. Candidates and parties will spend roughly $2.7 billion, but the explosion of outside money continues to significantly influence the races. Outside groups like super PACs and 527s are expected to spend $900 million on their own. Overall, conservative candidates and groups are projected to outspend liberal candidates and groups by $1.92 billion to $1.76 billion. Expect even more money, especially from outside groups, to come flowing in to the 2016 presidential election.

While there may not be action at the national level, 16 states and more than 500 municipalities have called for a constitutional amendment on campaign finance reform. Yet both sides agree getting rid of dark money and enacting reform will not happen any time soon. Little change will happen without a large, Watergate-esque scandal to bring true reform to campaign finance.

Resources

Primary

FEC: Campaign Finance Reports and Data

SCOTUS: Buckley v Valeo

SCOTUS: McCutcheon v. Federal Election Commission

FEC: Public Funding of Presidential Elections

Additional

The New York Times: The Cost of Campaigns

Politico: Waiting for the Next Watergate

NCSL: Campaign Finance Reform: An Overview

NPR: A Century of U.S. Campaign Finance Law

Washington Post: Campaign Finance: Special Report

Atlantic: Making Sense of McCain-Feingold and Campaign Finance Reform

Washington Times: No Major Takers for Federal Campaign Funds

Open Secrets: Super PACs

Sunlight Foundation: The Political 1% of the 1% in 2012

The New York Times: Milking the Money Machine

Open Secrets: Citizens United Decision Profoundly Affects Political Landscape

Mass Live: Senate Democrats Pushing Campaign Finance Transparency

Alexandra Stembaugh

Alexandra Stembaugh graduated from the University of Notre Dame studying Economics and English. She plans to go on to law school in the future. Her interests include economic policy, criminal justice, and political dramas. Contact Alexandra at staff@LawStreetMedia.com.

The post Campaign Finance: Free Speech or Unfair Influence? appeared first on Law Street.

After nearly seven years of relatively little disruption, a Massachusetts abortion clinic was the site of a vivacious protest on Saturday. The protest was three times larger than the clinic’s normal crowd and took place within the confines of the now meaningless 35-foot buffer zone. Last Thursday’s Supreme Court decision in McCullen v. Coakley terminated Massachusetts’ buffer zones around abortion clinics in defense of protesters’ freedom of speech. A consequential storm of criticism from women’s rights groups followed. They posed the question of whether constitutionality should be the sole factor in a decision so influential.

Although I always find myself screaming on behalf of pro-choice advocates, I must admit that the Supreme Court’s ruling does follow the constitution in a very logical and technical sense. But should the Constitution be the final word? Pro-choice activists across the country certainly don’t think so.

The Ruling

SCOTUS’s decision to strike down the buffer zones stemmed from their broad definition of anti-abortion advocates’ free speech. Chief Justice Roberts wrote, “here the Commonwealth has pursued interests by the extreme step of closing a substantial portion of a traditional public forum to all speakers,” referring to sidewalks where protesters typically congregate. Eleanor McCullen, the grandma-esque poster woman for abortion opponents, argued that the buffer zones were unnecessary because the exchanges they sought to restrict were peaceful, not violent. However, an abortion opponent could just as easily whisper a dangerous threat as they could shout it.

Justice Scalia pointed out that the close, personal interactions being defended by this ruling were a perfect example of what the First Amendment is intended to protect–the right to try to persuade others. He even went on to compare these conversations to protests that occur in other scenarios, such as protesters outside the Republican National Convention or voting stations.

At this point, I know I was not alone in thinking: did he really just compare getting an abortion to filling out a ballot? It’s not like choosing a political party. It’s not a choice you can alter or change with time. It’s a choice that will change your life forever and not one that should be taken lightly. It’s a choice that you should be so firm in that a peaceful chat outside a clinic would not persuade you to change it. It’s a choice that will affect you for the rest of your life. Most importantly, its a personal choice, not one subject to public discussion and attack.

Yes, I said “attack.” Just because it’s not screaming, loud, and belligerent, doesn’t make it polite or okay–harassment can take many forms. For example, most anti-abortion protesters shame patients silently with posters calling them killers, or with pictures of living, dead, or mutilated babies. The Boston Globe shared a statement from a young woman entering the aforementioned Massachusetts clinic on Saturday. She said, “you have to walk through this circle of people staring at you and talking to you and judging you…it’s very intimidating.” This shaming can bring as much emotional pain as any violent act.

Equally as interesting is the Supreme Court’s choice to eliminate these safe zones around abortion clinics, while still retaining their own buffer zones around the courthouse. The Supreme Court’s most recent regulation on their own buffer zone states:

The term ‘demonstration’ includes demonstrations, picketing, speechmaking, marching, holding vigils or religious services, and all other like forms of conduct that involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which is reasonably likely to draw a crowd or onlookers.

In fact, the closest public place where protesters would be allowed to hold demonstrations is 252 feet from their front doors. So, not only do the hypocritical justices have their own buffer zone, but it is more than seven times that of the Massachusetts clinics. The irony is truly nauseating.

What the Supreme Court should have considered:

• History: In 1994, two staff members at Planned Parenthood clinics in Brookline, MA, were killed by shooter John C. Salvi. He went on to injure five more people and also shot up another clinic in Virginia, where he fled to after the initial crime. No one should approach protesters, especially abortion opponents in Massachusetts, with the naivety that they will always remain peaceful. The buffer zone was not full-proof, but at least it was some sort of safeguard to protect patients and staff.
• Success Rates of Buffer Zones: There haven’t been any dangerous altercations since 2007, when the 35-foot zone was enacted. The fact that these zones have worked shouldn’t be used as justification to terminate them, but rather to further their necessity.
• Success Rates of Anti-Abortion Protesters: The buffer zones did not make it impossible for abortion opponents to achieve their goal. Eleanor McCullen, the case’s plaintiff, testified to persuading about 80 women to forgo abortion procedures, even with the 35-foot buffer zone. Why should the Supreme Court make it easier for less-polite protesters to attack the patients, while peaceful abortion opponents are still accomplishing their objective?

The only silver lining is that the Supreme Court seems to realize the need for some safeguard for entering patients. They contended that there are alternative steps that the Massachusetts legislature can take to ensure the protection of clinic patients. But in the meantime, women in Massachusetts must forgo the protection, however seemingly scant, that they were once guaranteed before entering abortion clinics.

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Erika Bethmann (@EBethmann) is a New Jersey native and a Washingtonian in the making. She is passionate about travel and international policy, and is expanding her knowledge of the world at George Washington University’s Elliot School of International Affairs. Contact Erika at staff@LawStreetMedia.com.

Featured image courtesy of [Talk Radio News Service via Flickr]

Erika Bethmann

Erika Bethmann is a New Jersey native and a Washingtonian in the making. She is passionate about travel and international policy, and is expanding her knowledge of the world at George Washington University’s Elliot School of International Affairs. Contact Erika at staff@LawStreetMedia.com.

The post Sorry SCOTUS, Harassment Isn’t Free Speech appeared first on Law Street.

The Supreme Court is finally ruling on free speech relating to social media platforms. Now, before we jump the gun and say putting limitations on free speech is a violation of the First Amendment, let me explain. This conversation was sparked by a recent case — United States of America v. Anthony Douglas Elonis. I originally thought the outcome of this case was absurd — the defendant is serving more than three years in prison for a few eccentric Facebook posts. Really? Then I dug deeper and what I found was quite disturbing.

After losing his wife, his kids, and his job, Anthony Elonis was depressed and angry. He turned to Facebook to rant. And the “raps” he posted threatened his former place of work, his wife, innocent children, and an FBI agent. Below are some excerpts from his “rap lyrics”:

I also found out that it’s incredibly illegal,
extremely illegal, to go on Facebook and say
something like the best place to fire a mortar
launcher at her house would be from the
cornfield behind it because of easy access to a
getaway road and you’d have a clear line of
sight through the sun room.
Insanely illegal.
Ridiculously, wrecklessly, insanely illegal.
Yet even more illegal to show an illustrated
diagram.
===[ __ ] =====house
: : : : : : : ^ : : : : : : : : : : : :cornfield
: : : : : : : : : : : : : : : : : : : :
: : : : : : : : : : : : : : : : : : : :
: : : : : : : : : : : : : : : : : : : :
######################getaway road
Insanely illegal.
Ridiculously, horribly felonious.
Cause they will come to my house in the middle
of the night and they will lock me up.
Extremely against the law.

In another post he “rapped” about shooting up a kindergarten classroom:

That’s it, I’ve had about enough
I’m checking out and making a name for myself
Enough elementary schools in a ten mile radius
to initiate the most heinous school shooting ever
imagined
And hell hath no fury like a crazy man in a
kindergarten class
The only question is . . . which one?

Do you feel uncomfortable yet? You can also check out the hearing transcript for more of Elonis’ disconcerting posts. By now, you’re probably pretty creeped out by this weird Eminem wannabe. Well, he served his time: a 44-month sentence. What makes me see red is why he was convicted.

Elonis landed in the slammer for “transmit[ting] in interstate or foreign commerce any
communication containing any threat to kidnap any person or any threat to injure the person of another…” Anyone else think it’s problematic that despite his threats, which blatantly targeted his wife, he was sentenced on a technicality?

Cyber threats are common; Elonis’ wife is not alone. Now the media is examining when rap crosses the line from being “gangsta” to being threatening? This issue is at the crux of the case the Supreme Court will hear in the upcoming term.

True Threats

While true threats are not protected by the First Amendment, the Supreme Court is struggling with ambiguities like cyber threats. The last time the court had a case involving threats was the 2003 case Virginia v. Black et al. The court defined true threats as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”

Elonis defended his posts as art, saying he therefore lacked intent to actually carry out those threats. But his threats were specific, well thought-out, and frightening. So were his posts true threats or merely artistic expression? That’s exactly the question SCOTUS will have to answer.

When Does Rap go too Far?

Elonis is one of many who have been put on trial for violent content in rap lyrics. Now who doesn’t love some good ol’ fashioned hate-the-world, go burn in hell, Eminem-style rap? I actually love Eminem – my iTunes holds precisely 54 of his songs. Yes, his raps are graphic, violent, angry, and sometimes downright grotesque. But, aside from his mother, whom he actually bought a mansion, he does not outline specific plans for a single person’s demise. He’s just angry at the world, that’s all.

So, this is where Eminem’s content differs from Elonis’, among others. The debate is tangled — scholars and legal professionals need to consider artistic expression, intent, and how that plays out in the cyber world.

A group of legal scholars are defending Elonis and his “artistic expression” posts on Facebook. Clay Calvert, Erik Nielson, and Charis E. Kubrin argue that the context in which artistic expression is interpreted depends on its vessel of dissemination, in this case, social media. So, higher courts have difficulty determining the context and the intent, which both affect the verdict of threat cases involving social media posts.

The subject is highly complex, but my opinion on this is simple. If you post poorly written yet fear-inducing threats to Facebook, you deserve to be put away. Elonis is clearly not stable, as you can see from the nostalgic posts about his ex-wife, whom he threatened to behead.

Rap is considered an art form, so it’s protected by the First Amendment. But throw social media into the mix and our Constitution becomes difficult to apply. So, yes, I’m relieved the Supreme Court will rule on this convoluted case because it will have long-reaching ramifications. I would certainly feel more secure if social media threats were considered more seriously, especially considering the shooting in Santa Barbara last month.

When it comes to threats, there is a fine line between protecting our First Amendment rights and protecting our citizens. My hope is that the Supreme Court will find a solution by defining when threats should be taken literally and when they are artistic ploys.

Featured image courtesy of [dcwriterdawn via Flickr]

Natasha Paulmeno

Natasha Paulmeno is an aspiring PR professional studying at the University of Maryland. She is learning to speak Spanish fluently through travel, music, and school. In her spare time she enjoys Bachata music, playing with her dog, and exploring social media trends. Contact Natasha at staff@LawStreetMedia.com.

The post Supreme Court to Determine How Free Speech Applies to Social Media appeared first on Law Street.

Millennials love the Internet, and most can tell you that from a young age, bullying was as present there as it was on the playground. As states have struggled to keep changing technology on the books to prevent bullying, they have faced challenges when it comes to preventing, or correcting, behavior that happens online and outside of school.

In Illinois, the Senate just passed a law that would ban students from using phones and computers as mechanisms for cyberbullying- whether in school or at home. The bill is on its way to the governor’s desk, and if signed, would be one of few around the country to include such far-reaching rules for cyberbullying; most only tackle in-school behavior. But critics call into question whether the bill can be effective, and even if it is, whether or not it goes too far- making school administrators step in where law enforcement should instead. The law in Illinois previously covered cyberbullying only if it took place on school computers- this new bill goes far beyond that.

This Illinois bill, while in many ways necessary, calls into question a number of things, the first of which being the jurisdiction of a school’s administration. If cyberbullying is taking place outside of school altogether, it is hard to find legal precedent for why the matter should be brought inside the school. Some critics of this bill, and of others like it, say cyberbullying is best dealt with by local police authorities instead of those at the school. Furthermore, not all cyberbullying is a result of students being victimized by others at the same school- it is entirely possible that the bullying can happen from students in other school districts, other states, or even other countries.

Another potential problem with this bill would be the mechanisms by which it is enforced. The simplest way to keep track of this cyberbullying would be to have victims show school administrators websites or other social media platforms that have the bullying. But oftentimes, victims are too scared or embarrassed to do that. And even for those who do come forward, social media websites like Facebook and Twitter, and other new platforms like YikYak (which has already been called a haven for bad behavior), can allow bullies to act anonymously. Of course, some simple sleuth work or help from law enforcement would be able to dig up a lot of information on the root of the cyberbullying, but with many schools being underfunded and understaffed, there are questions about how effective administrators could be about looking into all of these instances.

But even if it were possible for school officials to effectively monitor this kind of behavior- what are the legal complications of instituting this kind of policy?

1. Historical Precedent

At public schools, students are granted a degree of free speech, and there have been a plethora of court cases trying to define such boundaries. One of the earliest is the famed Tinker v. Des Moines, which held students have the right to free speech so long as they don’t disrupt what’s supposed to happen at school (learning in a calm environment). One of the reasons cyberbullying is difficult to mesh in with a case law on free speech, is because it usually does not take place on campus, so that “disruption” is more difficult to pinpoint.

2. Different ways cyberbullying is defined

Currently, 13 states have off-campus behaviors included in their cyberbullying policies, all to varying degrees. Some states, like Arkansas, require off-campus attacks to be directed at students or staff and be “intended for the purpose of disrupting school, and has a high likelihood of succeeding in that purpose.” Other states, like Connecticut, define cyberbullying a bit more broadly, considering cyberbullying anything that “creates a hostile environment at school for the victim.” Obviously, the more broadly defined, the more instances of bullying it will include, and the more work that will need to be done by school officials as a result.

In Illinois, bullying is defined as “any severe or pervasive physical or verbal act of conduct, including communications made in writing or electronically” that results in a student fearing harm of self or property, that substantially interferes with academic performance, or causes harm to a student’s physical or mental health. That definition has always been in place in Illinois, just now extends further to cover off-campus online bullying, too.

It is not yet clear where the line will be drawn in terms of cyberbullying rules each school can enact. It seems that as long as schools can prove the bullying (on campus, or off) led to significant disruption within the school, they are within their rights to enact these policies.

[Education Week] [State Facts] [Tinker v. Des Moines] [boston.com]

—

Molly Hogan (@molly_hogan13)

Featured image courtesy of [Flickr- woodleywonderworks]

Molly Hogan

Molly Hogan is a student at The George Washington University and formerly an intern at Law Street Media. Contact Molly at staff@LawStreetMedia.com.

The post Illinois Tries to Expand Cyberbullying Laws Outside of Schools appeared first on Law Street.

What happens when two Supreme Court Justices, who rarely rule the same way, sit down for an hour-long conversation on the First Amendment? Surprisingly, a lot of laughs, and some strong opinions about free speech. On Thursday, April 17, Justices discussed the First Amendment on the Kalb Report at the National Press Club.

Justices Antonin Scalia and Ruth Bader Ginsburg couldn’t be more ideologically different- Scalia is an originalist, meaning the Constitution should be interpreted as it would have been when it was created. Ginsburg, on the other hand, sees the Constitution as a living document, one that can be interpreted differently based on how society has evolved.

Agreement on Free Speech:

But for being so different in their opinions, the two agreed on the most basic idea that freedom of speech is a necessary function of democracy.

“The right to speak my mind, that’s America to me,” Ginsburg said.

Scalia seemed to agree, saying, “democracy means persuading one another […] you can’t run such a system if here is muzzling of one point of view.”

Times v. Sullivan:

The two didn’t agree for long, though. One discussion over the case New York Times v. Sullivan elicited two very different opinions from the Justices.

Times. V. Sullivan was the case that holds public officials have a much harder time suing for libel. Basically, unless they can prove someone made libelous comments on purpose, they don’t have a shot at a lawsuit.

Scalia had no time for that, saying the founding fathers “would have been appalled at the notion they could be libeled with impunity,” and that rather than interpreting the Constitution, the Times v. Sullivan decision revised it.

Ginsburg disagreed, saying, “Times v. Sullivan is now well-accepted […] I suspect that if the founding fathers were around to see what life was like in the 1960s, they would have agreed with that.”

Using your rights… isn’t always right?:

The conversation also pointed to the fact that while the Justices may support First Amendment Rights, it doesn’t mean they agree with the ways in which people utilize those rights.

“You can be using your 1st amendment right and it can be abominable that you are,” Scalia said and continued with,  “I will defend your right to use it, but I will not defend the appropriateness of the manner in which you’re using it now- that can be very wrong.”

Specifically, Ginsburg referred to a case, which Scalia ruled on, that held flag burning was Constitutionally protected, even though he did not personally agree with the idea of it.

“I would have thrown that guy in jail if I were king,” alluding to the fact in a democracy, we don’t have that option.

The First Amendment Debate isn’t Over:

At one point, Ginsburg referenced a case the Supreme Court will hear next week, questioning whether it is legal to lie about candidates running for office.

The case is Susan B. Anthony List v. Driehaus, and it challenges an Ohio law that says groups and individuals can’t make false statements about political candidates. The court will be tasked with deciding whether or not false statements in the context of political races are protected speech.

Though it’s hard to tell how the court will rule, there have been other cases that deal with lies in relation to free speech. In 2012, the court ruled that a man who lied about receiving the Medal of Honor was protected by free speech. In 2006, after Xavier Alvarez lied about receiving a military award, he was prosecuted under the “Stolen Valor Act,” which made it illegal to do so.

Precedent for the Case:

The court held 6-3 that the First Amendment protected Alvarez’s lie. Ginsburg was in the majority; Scalia was not.

The opinion state specifically, “the Court has instructed that falsity alone may not suffice to bring the speech outside the First Amendment; the statement must be a knowing and reckless falsehood.”

The combination of Alvarez and Times as precedent will be make for an interesting decision by the Court, and Ginsburg and Scalia could very easily end up on different sides of the decision again.

Their Friendship hasn’t Waned:

But through the differing opinions on how to interpret the Constitution, Ginsburg and Scalia have remained close friends.

When Kalb asked Ginsburg if she would have voted in favor of the Times case, Scalia jumped in saying, “oh God yes she would have!”

At another point, Ginsburg poked fun at Scalia after he mentioned using telephone booths, saying, “we don’t have to worry about that anymore!”

The moderator, Marvin Kalb, seemed to appreciate the dynamic between the two, saying “they are like the old days in this capital when political differences did not stop a good friendship from flourishing.”

Having two Justices discuss not just their friendship, but views on issues as decisive as the First Amendment, as well, gives the public a great inside look into the reasoning behind Supreme Court decisions. While they had vastly different ideas about how laws should be interpreted, they both had strong reasoning behind their opinions, and respected each other as people regardless of their professional views.

You can watch the whole program here.

[Times v. Sullivan] [Alvarez Case] [Susan B. Anthony List v. Driehaus]

—

Molly Hogan (@molly_hogan13)

Featured image courtesy of [Steve Petteway, College of the Supreme Court of the United States via Wikipedia]

Molly Hogan

Molly Hogan is a student at The George Washington University and formerly an intern at Law Street Media. Contact Molly at staff@LawStreetMedia.com.

The post The First Amendment: Two Supreme Court Justices Debate What it Means appeared first on Law Street.

Revenge porn is now legal in New York. The issue occurs when a person posts nude photographs of an ex-lover on the internet as a way to embarrass and degrade the ex. The photographs are often exchanged willingly while love blossoms, but when that same love wilts, the images change from intimate gifts to dangerous weapons that can seriously damage a person’s reputation.

For example, in the New York case People v. Barber, the defendant tweeted a nude photograph of his ex-girlfriend and shared it with her sister and employer. While the court acknowledged the “reprehensible” nature of the defendant’s conduct, it nonetheless found him innocent of any crime.

The problem concerns the specific language of New York’s law. In most states, you cannot take a nude photograph of a person without that person’s knowledge or consent. This rule does not apply, however, to situations where a person willingly gives a naked photograph to another. The New York court latched onto this distinction and dismissed the case.

While this particular dismissal was based on the language of the statute, some critics wonder if legislation specifically targeting revenge porn might violate freedom of speech rights. The American Civil Liberties Union opposed a draft to California’s revenge porn bill on the grounds that “the posting of otherwise lawful speech or images even if offensive or emotionally distressing is constitutionally protected. The speech must constitute a true threat or violate another otherwise lawful criminal law, such as stalking or harassment statute, in order to be made illegal.” Those who oppose a statute criminalizing revenge porn highlight the fact that the photographs were freely given and are, in essence, the property of the receiver to do as he wishes.

In contrast, another angle to the problem concerns the ubiquity and permanence of the internet and anything posted to it. Search engines allow anyone to instantly access everything ever posted about a person. Employers, colleagues, and friends all have the ability to discover information about you posted online. This makes a naked photograph in the hands of a scornful ex-flame particularly dangerous and powerful. Put simply: there is no real way to remove something from the internet, and search engines organize what is on the internet with terrifying accurateness and efficiency. An individual risks permanent reputational damage from revenge porn.

While anyone can suffer from revenge porn, the pernicious practice more often negatively affects women. Drafters of revenge porn statutes must also analyze this issue focusing on how it relates to sexual harassment and the discrimination of women. The issue does not affect men in the same way, and drafters need to scrutinize whether or not their stance on revenge porn has any latent sexist, misogynistic, or patriarchal impulses.

Revenge porn constitutes a particularly modern problem. Numerous themes percolate, including changing mores, technological advancement, sexual harassment and discrimination, freedom of speech, and the chaos of unreciprocated love. In New York, the court has signaled to the legislature to fix the problem. Whether and how the state chooses to draft a statute speaks to which themes the state decides to value.

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Imran Ahmed is a writer living in New York City whose blog explores the legal implications of social media and the internet. Contact him via email here.

Imran Ahmed

Imran Ahmed is a writer living in New York. Contact Imran at staff@LawStreetMedia.com.

The post New York Court OKs Revenge Porn; Will the Legislature Act? appeared first on Law Street.

The First Amendment. It’s a tricky topic. Like the rest of the Bill of Rights, it’s been in place since 1791, yet every single day, we see arguments about its interpretation.

This holiday season is the perfect time to talk about the First Amendment for two reasons: the current “Duck Dynasty” controversy that’s been all over the news, and the tired, contrived, yearly argument we have about the Freedoms of Speech and Religion in regards to Christmas.

I have to admit, I’ve watched a grand total of 0 minutes of Duck Dynasty. I think it’s maybe about rednecks who make hunting equipment for people who hunt ducks. Then, last week, GQ published an interview with  one of the stars of the show, Phil Robertson. Robertson made some pretty horrific anti-gay remarks in which he compared homosexuality to bestiality, stating, “start with homosexual behavior and just morph out from there. Bestiality, sleeping around with this woman and that woman and that woman and those men”. This is just a sampling of the statements that he made in the magazine, as well as equally abhorrent follow-up comments made since the scandal broke.

In response, A & E suspended Phil Robertson, leading to a fiery back and forth between the network, the show cast, and third-party commentators. Some have decried Robertson, others have praised him. GOP Congressional candidate Ian Bayne went so far as to call him the Rosa Parks of our generation. Many of Robertson’s supporters have advocated for the man’s right to free speech, under the First Amendment.

The First Amendment argument involving Phil Robertson comes in the middle of my favorite perennial “is there a war on Christmas?” argument. For as long as I can remember, people have been going crazy about how Christmas is dealt with in the public sphere. There are arguments over whether to say Happy Holidays or Season’s Greetings rather than Merry Christmas. Publicly funded Christmas trees, such as at state capitols, are sometimes called Holiday Trees instead. People freak out, everyone says the separation of religion and state has gone too far, and I automatically get a headache.

Actually, this may explain my headache.

The juxtaposition of these two arguments is very interesting, because I think they say more about the First Amendment than about the individual arguments themselves. The First Amendment guarantees the freedoms of speech, religion, assembly, the press, and petition. But what exactly that means is constantly up for debate.

Now, I have my views on the Robertson incident and the ‘War on Christmas’, respectively. It was A&E’s, and solely A&E’s, prerogative to suspend Robertson. They are a private company. They can do whatever they like, and if that includes suspending someone from their network because it may cost them advertisers and sponsors, they may do so. Freedom of Speech as a right means that Robertson can’t be persecuted or punished by the government for what he said, and he won’t be. But whether or not he can lose his job–well that’s the right of the business for which he works, not the government. A flip argument can be said about the ‘War on Christmas’ controversy. The government cannot be seen as promoting one religion over another. For example, would calling the large green tree up at my state capitol a Christmas tree be breaking the First Amendment? Probably not. But it’s safer to be inclusive, and nicer, and I applaud that. I work retail during the holidays, and we say Merry Christmas as customers leave. But again, we are a private business, and we can do so.

These are views that I’m entitled to as an educated citizen of the United States of America. And anyone else is allowed to have their individual views as well. I don’t fault anyone who disagrees with me, as I hope I wouldn’t be faulted in turn by someone who has different opinions. First Amendment arguments will never stop, but it’s my Christmas wish that we all calm down a little bit. I hope we can all appreciate the fact that we live in a nation where we have these freedoms. Because that’s not the case everywhere in the world. And the fact that I can get into an argument about whether or not a homophobic bigot deserves to stay on his TV show under the warm glow of the tree in my living room, well that’s something for which to be thankful this Holiday season.

Happy Holidays!

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Anneliese Mahoney (@AMahoney8672) is Lead Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

Featured image courtesy of [Tristan Martin via Flickr]

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Have Yourself a Merry Little First Amendment Argument appeared first on Law Street.