I will be speaking today at the CogX Conference today in England organized by the government’s Centre for Data Ethics and Innovation (CDEI). Unfortunately, due to the pandemic, I will be speaking virtually on facial recognition technology and privacy rights. That is a loss for me given the fact that London is one of my favorite places on Earth. (Postings will be delayed today due to the speech).
Category: Constitutional Law
Below is an updated version of my column in The Hill newspaper on how the discussion of reforms following the killing of George Floyd has been increasingly overtaken by the most radical elements in politics and commentary. The atmosphere is strikingly similar for those familiar with history and specifically the course of the French Revolution. That image of reformists becoming reactionaries was particularly evident in New York Mayor Bill de Blasio being booed by a crowd calling for his resignation and the same response to Minneapolis Mayor Jacob Frey when he refused to commit to defunding and dismantling the police department. In Washington, Mayor Muriel Bowser ordered the square near the White House to be named “Black Lives Matter” Square with giant letters painted on the street. BLM however denounced it as a meaningless stunt and activists added ‘Defund the Police.” Bowser refused to answer multiple questions on whether she would remove the added words. To do so is to risk a scene like the ones in Minneapolis and New York.
As writers, editors, and politicians yield to extreme measures, they might want to consider the fate of those who sought to ride the radical wave of the French Revolution.
Here is the column: Continue reading “Revolution Redux? How A Movement For Reform Is Becoming A Platform For Radicalism”
We have often discussed how advocating for free speech often places us in troubling company. Those who are targeted for arrest are often the loudest and most obnoxious among us. Ace Burns is one of those people. Burns, 34, whose real name is Israel Burns,, is the self-proclaimed leader of the “FTP movement (which he defined in various ways including “Fire To Property”). Burns was taken into the police station after alluding to the possibility that the Diamond District in New York would be burned to the ground. It is a prototypical violent speech cases and, as many on this blog will not be surprised to read, I believe it raises a serious concern for free speech.
Below is my column in The Los Angeles Times on President Donald Trump’s declaration that Antifa would be designated as a terrorist organization. I have explained that such a designation would ordinarily be made for “foreign terrorist organizations” by the State Department. It is also unnecessary. As I wrote recently, there is a case in New York that could be the perfect framing prosecution for treating rioting as domestic terrorism.
Ironically, Antifa is a vehemently anti-free speech organization and it could achieve that purpose if it is declared a terrorist organization. Such a designation of the entire movement could prove highly damaging to free speech in this country.
Here is the column:
In Chicago, a man wearing a Joker mask set fire to a police SUV in broad daylight. The problem is that Timothy O’Donnell has a prominent tattoo on his neck reading “Pretty.” That was one of the ways that police were able to identity him for arrest. The case however highlights the expansive claim of federal jurisdiction being used by the Justice Department.
Continue reading ““Joker” Case In Chicago Shows New Expansive Claim Of Federal Jurisdiction”
Below is my column in The Hill newspaper on the new disclosures in the prosecution of former National Security Adviser Michael Flynn. Yesterday, the attorney hired by Judge Emmet Sullivan responded on his behalf to defend his controversial orders in the case to invite third parties to argue the merits of the motion to dismiss as well as raising his option to substitute his own criminal charge of perjury against Flynn. The Justice Department responded with a 45-page filing to a three-judge appeals court panel.
The attention will now focus on the appearance tomorrow of former Deputy Attorney General Rod Rosenstein in the Senate. For me, the most pertinent question is why this investigation continued past December and seemed to become to a search for a crime rather than the investigation of any crime or collusion with Russia.
Here is the column: Continue reading “The Senate Should Focus On What The Flynn Transcripts Do Not Contain . . . Starting With A Crime”
Below is my column in USA Today on the fight between Trump and Twitter. As discussed below, this is a fight not for free speech but who will control free speech. Democrats want speech controls through private companies while the Administration wants speech controls through government agencies. The choice is between Little Brother and Big Brother.
Here is the column:
Below is my column on the Twitter controversy and censorship of social media. President Donald Trump has continued to tweet on cracking down on the riots as well as controversy over his tweets on Twitter. Like former Vice President Joe Biden, he is now calling for the outright elimination of Section 230 of the federal Communications Decency Act. While supported by many liberal members and commentators, Twitter continues to build a case against itself — and ultimately free speech on the Internet.
Here is the column:
Continue reading ““Get The Facts”: How Twitter Is Making The Case Against Itself and Free Speech”
Early on in the pandemic, I wrote about how governors can shutdown churches under the Constitution. On Friday, the Supreme Court voted 5-4 to reject an emergency appeal from a California church over the imposition of limits on the size of attendance at services. The church came close to prevailing. Chief Justice John Roberts joined his liberal colleagues in upholding what he said were limits that “appear consistent” with the First Amendment. The cost ruling is an indication of how courts are applying closer scrutiny to the treatment of churches as opposed to other institutions allowed to have greater numbers of people.
Continue reading “Supreme Court Rules 5-4 To Uphold Pandemic Orders Limiting Church Services”
Late last night, Twitter doubled down on its controversial labeling of tweets from President Donald Trump to flag what it views as misleading or offensive material. Yesterday, I wrote a column on Twitter’s policy and a second column on President Trump’s response with an executive order. I have strongly opposed Twitter’s policy on censoring and labeling material, including the decision to correct a tweet from the President on the political debate over main-in voting. Undeterred, Twitter has issued a new warning that a tweet from the President on the rioting in Minneapolis was a violation of its rule for “glorifying violence.” Twitter is now making the case for government action to monitor and control social media. The loser will ultimately be free speech.
Continue reading “Twitter Hits Trump With New Warning Over Tweet “Glorifying Violence””
President Donald Trump’s executive order on social media is framed around the effort to remove protections under Section 230 of the Communications Decency Act. For those of us who teach torts, Section 230 has been a long controversy in its shielding of companies from liability in defamation and other lawsuits. As I write today in my Hill column, Twitter is dangerously wrong in its action against the Trump tweets and Trump is right that this represents a serious attack on free speech. However, I was also critical of the threat to “shut down” or “strongly regulate” media companies. Putting the retaliatory language aside, this is not a change that will likely succeed without congressional action. However, there are some legitimate questions that Congress should consider while, in my view, erring on the side of protecting free speech. Continue reading “The Trump Executive Order and the Section 230 Option To “Strongly Regulate” Social Media”
I have a column criticizing Twitterfor its labelling of tweets from President Donald Trump as presumptively false. Twitter has yielded to demands in Congress to censor and regulate political speech. In signature style, however, Trump promptly bulldozed the high ground in the controversy by threatening to close down social media companies through retaliatory regulations. The First Amendment was written to bar that very authority in either the President or Congress or both. The President cannot be the putative victim of private censorship while claiming the authority to engage in government censorship. In fairness however Democratic leaders have threatened such a regulatory crackdown in the past. The coverage on Trump’s threat telling omits the fact that Democratic leaders and presidential candidates have made the same threat in the past.
Continue reading “Trump Threatens To “Shut Down” Social Media Companies”
We have long discussed the difficult questions raised by private and public employers punishing employees for postings on social media or controversies in their private lives. When employers are identified in the media, controversial statements or conduct can have an obvious backlash against the them, particularly if there is an allegation of racist or discriminatory views. For free speech advocates, this can raise a type of “Little Brother” problem but the First Amendment is focused on state, not private action. This ongoing debate over where to draw the line on private speech has a new controversy with the release of a truly shocking videotape of a woman, identified as Amy Cooper calling police on an African American bird watcher in Central Park. Her employer Franklin Templeton has put her on administrative leave while reviewing the incident. She is reportedly the head of insurance investment solutions at Franklin Templeton. Others have called for animal abuse charges to be filed as Cooper was shown yanking around her hapless dog during her tirade. The dog was surrendered to a local shelter for its protection. Update: Amy Cooper was fired shortly after she was put on administrative leave.
Scarborough’s co-host and wife Mika Brzezinki is calling for President Donald Trump to be banned on Twitter after he resumed his bizarre pushing of a conspiracy theory that Joe Scarborough murdered an intern in 2001. I have long denounced the President’s use of the tragic story of Lori Klausutis as callous and wrong. There is not a shred of support for this claim and the constant tweets from the President only adds to this tragedy for the Klausutis family. As I noted yesterday, “politics ain’t beanbag” but it is also not a license for such malicious slandering of your critics. Having said that, I do not support the effort to ban Trump from Twitter. I have written repeatedly about the danger posed by calls from politicians for increased censorship on social media and the Internet. Indeed, I criticized Trump recently for such banning of opposing views from his Twitter account.
Continue reading “Mika Brzezinski Calls For Trump To Be Banned On Twitter”
This week, President Donald Trump has pledged that he will “override” state orders barring in-person religious services unless governors do so. As I have previously noted, the President is claiming authority that is expressly denied to him in our system of federalism. While I have warned such deference given to the states wanes with time, any order to reopen churches in a given state will be based on the inherent authority of the courts, not the President. This issue could be coming to a head with the split decision of a panel in the Ninth Circuit late Friday to uphold the order Gov. Gavin Newsom barring large in-person religious services. Early on in the pandemic, I wrote about how governors can shutdown churches under the Constitution. The Administration can, and has promised, joined legal challenges to such state orders but it is not claiming the inherent authority of presidents to “override” state decisions. The Justice Department has warned Newsom that his order is contravening constitutional rights.