Category: Constitutional Law

Free Speech Inc.: How Democrats Have Found A New But Shaky Faith In Corporate Speech

Below is an updated version of my column in The Hill on Facebook’s decision to uphold the ban on former president Donald Trump. Notably, this weekend, Twitter took it upon itself to add a gratuitous response to an observation made by Donald Trump Jr. after he tweeted “Biden isn’t the next FDR [Franklin Delano Roosevelt] he’s the next Jimmy Carter.” Twitter took it upon itself to say that many are “confused” by the remark since Carter was a great humanitarian and noble prize winner. It was a telling moment. These companies now act as either censors as officious intermeddlers when it comes to comments made on the platforms. They view themselves as a party to any postings and that viewpoints must be corrected or clarified to advance the corporate position.

Here is the column:

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New York Court Orders Mother To Remove Confederate Flag Decoration or Risk Losing Custody of Her Daughter

There is an interesting First Amendment case brewing in New York after an appellate ruled that a mother identified as Christie could lose custody of her daughter unless she removes a rock with a small confederate flag image on it in the driveway. The child is of mixed races and the court has deemed the display as inimical to the best interests of the child.  The family court judge did not make such a determination and the ruling raises a very serious free speech concern over conditioning a right to custody on the curtailment of political speech. As will come as no surprise to regulars on this blog, I view the order as an unconstitutional infringement of the First Amendment.

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The Justice Department Announces Civil Rights Indictments Against All Four Former Officers In Floyd Death

The Justice Department has secured indictments of  the four former Minneapolis police officers involved in George Floyd’s arrest and death.  The three-count indictment unsealed Friday names Derek Chauvin, Thomas Lane, J. Kueng and Tou Thao.The indictment creates as new front for the officers and a type of insurance for state prosecutors if they fail to convict the three remaining officers (or Derek Chauvin is given a new trial).

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New Jersey Police Officer Fired For Calling BLM Protesters “Terrorists”

We have been discussing the termination of public employees and others for their postings on social media or public displays.  The latest case is out of New Jersey where former Hopewell Township police officer Sara Erwin was fired recent over a June 2020 posting on Facebook in which she referred to Black Lives Matter (BLM) protesters as “terrorists.”  There remains an uncertain line of what political or social views are tolerated and what are barred on social media.  Indeed, Sgt. Mandy Gray was suspended and demoted for simply liking the June 2020 post.

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The Supreme Court Fails To End The Feres Doctrine . . . Now It Is Up To Congress

Below is my column in The Hill on the Supreme Court’s rejection of the case of a former West Point cadet who was barred from suing over the handling of her alleged rape. The case would have allowed a reconsideration of the Feres Doctrine, one of the most damaging and pernicious doctrines ever created by the Supreme Court. Continue reading “The Supreme Court Fails To End The Feres Doctrine . . . Now It Is Up To Congress”

Facebook Upholds Trump Ban But Admits Permanent Ban Lacked Any Objective Standard

Facebook’s Oversight Board just voted that the company may want to give Trump back his boots.

The decision of the board to uphold the decision to ban Trump but reconsider his lifetime ban may seem transparently convenient for many. However, there is precedent. One of my favorite trial accounts is from Ireland where an Irishman was accused by an Englishman of stealing a pair of boots. The guilt of the defendant was absolutely clear but the Irish jury could not get itself to rule for the Englishman. Instead, it acquitted the Irishman but added a line, “We do believe O’Brien should give the Englishman back his boots.” Case closed. Continue reading “Facebook Upholds Trump Ban But Admits Permanent Ban Lacked Any Objective Standard”

“Kierstien Hening Refused To Kneel”: Virginia Tech Sued By Student Who Alleges Abuse Over Her Refusal To Support BLM and Diversity Displays

The lawsuit of Virginia Tech student Kierstien Hening begins with a simple statement: “Kierstien Hening refused to kneel.”  The lawsuit filed this week against Virginia Tech soccer coach Charles “Chugger” Adair (in his official capacity) alleges that when Hening refused to kneel and support Black Lives Matter, she was benched, harassed and ultimately forced off the team. If the allegations are true, she could have not only a winning case but a case that could set important precedent for the freedom of speech. Continue reading ““Kierstien Hening Refused To Kneel”: Virginia Tech Sued By Student Who Alleges Abuse Over Her Refusal To Support BLM and Diversity Displays”

Juror 52: Does Chauvin Have A New Challenge Over Juror Brandon Mitchell?

The conviction of former Minneapolis police officer Derek Chauvin was undermined this week after the previously anonymous Juror #52 went public with interviews to discuss his experience on the jury and support the movement to curtail police abuse. The problem was not the public disclosure of his identity (which jurors can elect to do) but what his self-identification triggered on the Internet. A picture soon emerged showing Brandon Mitchell wearing a Black Lives Matter T-shirt with a reference to the death of George Floyd. The image was raised as contradicting his answers in voir dire and raising an appellate question as to juror bias that could be used to challenge the conviction. Continue reading “Juror 52: Does Chauvin Have A New Challenge Over Juror Brandon Mitchell?”

Evolving With Big Tech: Facebook’s New Campaign Should Have Free Speech Advocates Nervous

In 1964, Stanley Kubrick released a dark comedy classic titled “Dr. Strangelove or: How I Learned to Stop Worrying and Love the Bomb.” The title captured the absurdity of getting people to embrace the concept of weapons of mass destruction. The movie came to mind recently with the public campaign of Facebook calling for people to change her attitudes about the Internet and rethink issues like “content modification” – the new Orwellian term for censorship. Continue reading “Evolving With Big Tech: Facebook’s New Campaign Should Have Free Speech Advocates Nervous”

Police Groups Ask The University of Minnesota To Investigate Student’s Call To Make Life “Hell” For Officers

Minnesota Police and Peace Officers Association and the Law Enforcement Labor Services has taken the unusual (if not unprecedented) step of asking the University of Minnesota to investigate a student for her call to make the lives of campus police a living “hell.” In a video conference captured on video, student Lauren Meyers is caught making the statements in her capacity as Chief Financial Officer of the Minnesota Student Association Executive Board. Continue reading “Police Groups Ask The University of Minnesota To Investigate Student’s Call To Make Life “Hell” For Officers”

Tennessee Coach Sues After Being Fired For Tweet Insulting Stacey Abrams

We have been discussing disciplinary actions taken against faculty and students for statements made outside of their respective schools.  The latest involves Chris Malone who was fired as the offensive line coach for The University of Tennessee at Chattanooga after he posted an insulting tweet about Georgia politician Stacey Abrams. The tweet was insulting and sophomoric but the action taken by the university is rightfully now a legal matter before the Eastern District of U.S. District Court of Tennessee.  The defendants who Malone is suing include Chancellor Steven Angle, Athletic Director Mark Wharton and Coach Rusty Wright.

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Georgetown Professor Under Fire For Reading The “N-Word” In A Class On Free Speech and Racism

We have been discussing professors who have been investigated or sanctioned for the use of the “n-word” in classes or tests at Duquesne, John Marshall, Augsberg, Chicago, DePaul, Princeton, Kansas, and other schools. According to The Hoya, we can now add Georgetown as after Professor Michele Swers read the words of a Ku Klux Klan leader in her “U.S. Political Systems” class, and “did not censor the racial epithet.” What is notable in this case is that the complaint against Professor Swers suggests that she would have the protection of free speech and academic freedom if she were black but that no white person may use or read the word in any context for any purpose.

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“Outraging Public Decency”: Australian Convicted After Filming And Mocking Dying Officers In Crash

Supporting free speech is often a difficult task that demands defending the most despised individuals or offensive views in our society. That is certainly the case with Richard Pusey, 42, who became a widely hated figure after he filmed and mocked police officers who were dead or dying on the road after a crash. Pusey has been convicted of the crime of “outraging public decency,” an ambiguous crime that would allow the broad criminalizing of speech. Police officers Lynette Taylor, Glen Humphris, Kevin King and Joshua Prestney lost their lives in the accident.

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Project Veritas Sues CNN In Latest Media Defamation Lawsuit

Project Veritas has followed through with the pledge of its founder James O’Keefe to sue CNN over coverage of the ban imposed by Twitter (The group also sued Twitter in a separate lawsuit).  There has been an explosion of such defamation lawsuits including a suit by Dominion against Fox News (For full disclosure, I am a Fox contributor). The lawsuits raise interesting but challenging grounds for media lawsuits.

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Twitter Admits To Censoring Criticism of The Indian Government

Twitter LogoOn Saturday, Twitter admitted that it is actively working with the Indian government to censor criticism of its handling of the pandemic as the number of cases and deaths continues to skyrocket. There are widespread reports that the Indian government has misrepresented the number of deaths and the true rate of cases could be as much as 30 times higher than reported.  The country has a shortage of beds, oxygen, and other essentials due to a failure to adequately prepare for a new surge. Not surprisingly, the Indian government has moved to crackdown on criticism. This included a call to Twitter to censor such information and Twitter has, of course, complied. With the support of many Democratic leaders in the United States, Twitter now regularly censors viewpoints in the United States and India had no trouble in enlisting it to crackdown on those raising the alarm over the government handling of the crisis. Continue reading “Twitter Admits To Censoring Criticism of The Indian Government”

Res ipsa loquitur – The thing itself speaks